PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-4584

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

TERESA BLANKENSHIP BARRINGER,

Defendant – Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Abingdon. James P. Jones, Senior District Judge. (1:19-cr-00051-JPJ-PMS-1)

Argued: December 7, 2021 Decided: February 2, 2022

Before, WILKINSON, NIEMEYER, and AGEE, Circuit Judges.

Affirmed by published opinion. Judge Agee wrote the opinion, in which Judge Wilkinson and Judge Niemeyer joined.

ARGUED: Gerald Thomas Zerkin, Richmond, Virginia, for Appellant. Jennifer R. Bockhorst, OFFICE OF THE UNITED STATES ATTORNEY, Abingdon, Virginia, for Appellee. ON BRIEF: Daniel P. Bubar, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee. AGEE, Circuit Judge:

Teresa Blankenship Barringer challenges her convictions and 36-month sentence

for multiple counts of willful failure to collect or pay over taxes, in violation of

, and making materially false statements to federal agents, in violation of

. For the reasons set forth below, we affirm the judgment of the district court.

I.

A.

Barringer was the long-time Executive Vice President (“EVP”) and a Board

member of J&R Manufacturing, Inc. (“J&R”), a Virginia company that produced electrical

connectors for coal mining equipment. Her responsibilities as EVP included managing

J&R’s accounting, payroll, sales, and accounts receivable, while her duties as a Board

member included collecting and paying federal payroll taxes. Using Internal Revenue

Service (“IRS”) Form 941, these taxes are withheld from employees’ paychecks and paid

quarterly to the IRS along with a matching contribution from the employer (collectively,

“941 taxes”).

In late 2012, J&R began experiencing financial difficulties due to a downturn in the

coal market, and, by 2014, it was delinquent on filing and paying its 941 taxes. Barringer

subsequently received a letter from the IRS notifying her that she was civilly responsible

for the delinquent taxes. Fearing that personal liability, Barringer sought to access her

account in the company’s 401(k) retirement plan, administered by AXA Equitable

Insurance Company (“AXA”), as a source of funds from which to pay the 941 taxes.

2 Relevant here, to withdraw funds from a 401(k) plan before retirement age, the participant

must be vested 1 and must establish that a distributable event has occurred. Reaching

retirement or leaving employment is such a distributable event, as are certain types of

hardship (as referenced in the Code of Federal Regulations), such as to prevent foreclosure

on a primary residence.

In November 2014, Barringer faxed AXA a Hardship Withdrawal Request Form

requesting $311,859.04 from her 401(k) plan account “[t]o prevent eviction from a

principal residence or . . . a foreclosure of the mortgage on [her] principal residence” J.A.

144. Based on her representations, AXA approved the request, and Barringer deposited the

funds into a J&R account to pay the delinquent 941 taxes and keep the company afloat, so

that “[b]y 2015 . . . J&R [had] caught up on the 941 taxes.” J.A. 354. The AXA withdrawal

form contained the following warning:

Any person who knowingly and with an intent to injure, defraud, or deceive any insurance company, files a statement of claim or an application containing false, incomplete, or misleading information may be guilty of a crime, which could result in imprisonment, fines, denial of insurance, and civil damages.

J.A. 115. Further, according to bank records, Barringer’s mortgage balance was only

approximately $200,000 when she withdrew the funds from her 401(k) account, she was

on time with her payments, and she had not received any delinquent or foreclosure notices.

By 2016, J&R had again fallen behind on its 941 taxes. On September 2, 2016,

Barringer requested from AXA a final distribution from her 401(k) account, citing the end

Participants are always vested in their own funds, but become vested in their 1

employer’s matching funds after five years of employment. 3 of her employment with J&R on August 31, 2016, as the basis. AXA approved the request.

When Barringer received the distribution, she again deposited the funds, along with some

of her personal savings, into the J&R account in order to fund the company. But this time,

although “there was money in the account that could have been paid to the IRS [for the

delinquent 941 taxes, Barringer] chose to pay herself and other vendors [instead].” J.A.

281. Notwithstanding her representation to AXA, Barringer continued working for J&R

until October 28, 2016, receiving benefits and payments from the company during that

period.

On July 25, 2019, Barringer’s attorneys met with agents of the IRS, Federal Bureau

of Investigation, Virginia State Police, and attorneys from the United States Attorney’s

Office, all of whom were investigating potential financial crimes at J&R. Barringer joined

the interview at the suggestion of one of her attorneys. 2 During the interview, “[i]t was

explained to her she didn’t have to be there, she didn’t have to answer any questions, and

that things she did say could be used against her.” J.A. 208. On this last point, “[i]t was

expressed to her at the beginning of the interview and at the end of the interview that it was

very important that she was truthful to federal law enforcement, that it was a crime to lie

to [the agents].”

2 The interview was neither recorded nor contemporaneously transcribed. Instead, an IRS investigator prepared a memorandum following the interview based on his recollection and the notes he and the other investigators took during the meeting. 4 During the interview, Barringer stated that her last day of employment at J&R was

October 28, 2016, which was consistent with her claims in two civil cases. 3 However, later

in the interview, Barringer changed her answer and asserted that she left J&R on August

31, 2016. Barringer also explained that she had tried to withdraw funds from her 401(k)

account to pay the 941 taxes, but that AXA denied her request. After receiving this denial,

she confirmed that she nonetheless submitted a withdrawal form to AXA, claiming that she

needed the funds to prevent foreclosure because she feared she would be unable to pay her

mortgage if J&R collapsed.

B.

A federal grand jury subsequently returned a nine-count indictment against

Barringer for willfully failing to collect and truthfully account for and pay taxes, in

violation of

(Counts One through Four); wire fraud, in violation of

(Counts Five and Six); and making materially false statements to federal

agents, in violation of

(a)(2) (Counts Seven through Nine).

Barringer moved pretrial to dismiss the indictment. First, she requested dismissal of

the tax charges in Counts One through Four on equal protection grounds, highlighting that

the Government had charged her, but not Roy Riley, the owner of J&R. Next, she claimed

the wire fraud charges in Counts Five and Six were insufficient as a matter of law because

the relevant statute only targets schemes aimed at appropriating funds or property from

3 Barringer sued J&R and Roy Riley, the owner of the company, for repayment of the funds she deposited into J&R (from both her 401(k) account and personal savings), failure to pay wages, and recovery of her personal property at J&R’s workplace. 5 others, and the funds at issue were hers alone. Finally, she argued that if the tax and wire

fraud charges were dismissed, then the false statements alleged in Counts Seven through

Nine by definition could not have been material to a matter within the Government’s

jurisdiction, as required by the relevant statute. The court denied the motion as to Counts

One through Four, finding that “the motion d[id] not allege [a] sufficient factual basis” to

support dismissal “on the ground of selective prosecution.” J.A. 76. As for the remaining

counts, it denied the motion without prejudice as premature.

After the Government successfully moved to dismiss Count One, 4 Barringer

proceeded to trial on Counts Two through Nine. During opening statements, the prosecutor

stated that the case was about “[t]axes, fraud, and lies.” J.A. 86. Relevant here, Ron Vincek,

AXA’s senior director of 401(k) operations, testified. He explained that the withdrawal

form requesting distribution due to end of employment (Barringer’s second request in

September 2016) required the employee and the plan sponsor to certify that the information

was correct. The form requesting distribution for a hardship (Barringer’s first request in

November 2014) required a valid hardship, limited the withdrawal amount to the sum

needed, and required approval by the “plan administrator or authorized person to act upon

the administration of the plan.” J.A. 115. On this point, Vincek indicated that reinvestment

into a company was not a valid reason for a hardship withdrawal. He also noted that AXA

would not approve a withdrawal request if the stated reason for the withdrawal did not

4 The Government “decided to dismiss that charge because there actually were [tax] deposits made.” J.A. 237. 6 satisfy IRS requirements and opined that failure to comply with those requirements could

jeopardize the validity of J&R’s entire 401(k) plan.

IRS Special Agent Trevor McMurray testified that J&R had unpaid taxes in the first

three quarters of 2016, in the amounts of $78,161.09, $64,848.13, and $43,883.20, and that

at Barringer’s direction, J&R paid $96,159.83 in other bills without first paying off those

balances. He did, however, note that the company paid off its outstanding tax balance in

2019, which post-dated Barringer’s employment at J&R. 5

Barringer also testified. She confirmed that she and the other Board members were

responsible for paying the 941 taxes, and that she proposed using the 401(k) funds to pay

the 941 taxes after receiving the IRS letter informing her of her civil liability. Relatedly,

she testified that, in her mind, she did nothing wrong when she withdrew funds from her

401(k) account to pay the 941 taxes because she was using her own funds to save the

company. And she did so because she believed that she would be unable to pay her

mortgage if J&R collapsed. Barringer also testified that she contacted AXA in 2016 to

inquire whether she could close her 401(k) account, but that AXA informed her she could

only do so if she was no longer employed at J&R. She stated that she listed her last day of

employment with J&R as August 31, 2016, in order to access the 401(k) funds, but that she

intended to be rehired the following week. J.A. 363–64. 6

5 At the close of the Government’s case-in-chief, Barringer renewed her pretrial motion to dismiss and moved for a judgment of acquittal. The district court denied both motions. 6 At the close of all the evidence, Barringer again renewed her pretrial motion to dismiss and moved for a judgment of acquittal. The district court denied both motions. 7 During closing arguments, the prosecutor reiterated that the case was “about taxes,

fraud, and lies,” J.A. 540, and emphasized that Barringer’s false statements on the 401(k)

hardship withdrawal forms could have “endanger[ed] the validity of everyone’s 401(k),”

J.A. 541. The jury subsequently convicted Barringer on all counts.

She then moved for a new trial and for a judgment of acquittal, see Fed. R. Crim. P.

29, 33, reiterating the arguments she advanced in her pretrial motion to dismiss and raising

several others. The court granted Barringer’s motion for a judgment of acquittal as to the

wire fraud charges in Counts Five and Six, finding that the Government had failed to prove

that her “deceit deprived another of a property interest.” J.A. 694. However, it denied her

motion for a new trial on the other counts. The court also denied Barringer’s subsequent

motion to reconsider the denial of her posttrial motions.

C.

A Presentence Report (“PSR”) was prepared, setting Barringer’s base offense level

at 16. See U.S.S.G. §§ 2T1.6(a), 2T4.1(F). It also applied a two-level enhancement because

Barringer “abused a position of public or private trust, or used a special skill, in a manner

that significantly facilitated the commission or concealment of the offense.” U.S.S.G. §

3B1.3. With a total offense level of 18 and a criminal history category of I, the PSR yielded

an advisory Guidelines range of 27 to 33 months’ imprisonment. Barringer objected to the

abuse-of-trust enhancement, and the Government objected to the absence of an obstruction-

of-justice enhancement, see U.S.S.G. § 3C1.1.

At sentencing, the court concluded that the abuse-of-trust enhancement was proper

because Barringer held a position of trust as to the Government to collect and pay the 941

8 taxes. It also sustained the Government’s objection and imposed a two-level enhancement

for obstruction of justice, raising Barringer’s total offense level to 20 and the advisory

Guidelines range to 33 to 41 months’ imprisonment.

The court sentenced Barringer to 36 months’ imprisonment, and Barringer timely

appealed. We have jurisdiction under

and

(a).

II.

On appeal, Barringer asserts that the district court erred by denying her motions to

dismiss, for a new trial, and for a judgment of acquittal. She also raises a due process claim

as to Vincek’s testimony. Finding these arguments unpersuasive, we affirm the district

court’s judgment as to her convictions.

A.

Barringer first contests the district court’s denial of her pretrial motion to dismiss

the wire fraud and false statement counts. Specifically, she asserts that the wire fraud

charges were deficient as a matter of law because her actions did not deprive another of a

property interest and relatedly claims that the false statements were not material to a matter

within the Government’s jurisdiction, as required under the relevant statute. We disagree.

1.

“We review the district court’s factual findings on a motion to dismiss an indictment

for clear error, but . . . review its legal conclusions de novo.” United States v. Perry,

(4th Cir. 2014) (citation omitted). “When a criminal defendant challenges

the sufficiency of an indictment prior to the verdict, . . . we apply a heightened scrutiny to

9 ensure that every essential element of an offense has been charged.”

(citation omitted).

“[A]n indictment must contain the elements of the offense charged, fairly inform a

defendant of the charge, and enable the defendant to plead double jeopardy as a defense in

a future prosecution for the same offense.” United States v. Kingrea,

(4th Cir. 2009) (citation omitted). “[T]he indictment must also contain a statement of the

essential facts constituting the offense charged[.]” Perry,

(citation

omitted).

2.

To obtain a conviction for wire fraud, in violation of

, the

Government must show that the defendant “(1) devised or intended to devise a scheme to

defraud and (2) used the . . . wire communications in furtherance of the scheme.” United

States v. Wynn,

(4th Cir. 2012). Here, the preamble to Counts Five and

Six of the indictment charged Barringer as follows:

On, about, and between November 2014 to September 2016, in the Western District of Virginia, TERESA BLANKENSHIP BARRINGER devised and intended to devise a scheme to defraud and to obtain money and property by means of materially false and fraudulent pretenses, representations, and promises.

It was part of the scheme that BARRINGER submitted forms containing one or more materially false statements to [AXA] to obtain monetary disbursements from [AXA].

J.A. 20. It then detailed the specific instances of each alleged wire fraud. 7

7 Count Five cited Barringer’s “[r]eason for request[ing]” $311,859.04 on November 20, 2014—“to prevent eviction from a principal residence or the foreclosure of the mortgage on my principal residence”—as a false statement. J.A. 20. Count Six detailed

10 Barringer argues that the Government’s “monetary disbursements” theory

insufficiently charged her with wire fraud. On this point, she contends that “obtain[ing]

monetary disbursements from [AXA]” does not equate to “a scheme to defraud” under

§ 1343 because that element has “the common understanding of wronging one in his

property rights by dishonest methods or schemes, and usually signif[ies] the deprivation of

something of value by trick, deceit, chicane, or overreaching.” Carpenter v. United States,

(1987) (citation and internal quotation marks omitted).

But any error as to the district court’s denial of Barringer’s pretrial motion to dismiss

the wire fraud counts on this basis was harmless because it subsequently granted her motion

for a judgment of acquittal on these charges. J.A. 697 (“[T]he government failed to prove

an essential element of wire fraud—that someone was deprived of a property interest due

to the defendant’s misrepresentations. The wire fraud convictions must be set aside.”).

Barringer responds, however, that such an error was not harmless because she was

prejudiced by impermissible spillover evidence from the wire fraud counts that tainted the

jury’s consideration of the remaining counts. We do not find that argument convincing.

When faced with an evidentiary spillover challenge, we “must determine whether

evidence admitted to support a reversed count prejudiced the remaining counts to warrant

their reversal.” United States v. Hornsby,

(4th Cir. 2012). Barringer must

therefore demonstrate that the challenged evidence would have been inadmissible without

Barringer’s September 2, 2016, request to obtain $50,535.08 based on the following false statement: “The Election of Benefits is submitted because the participant is [n]o longer employed by [J&R] and/or past Normal Retirement Age (date no longer employed 8/31/16).”

(first alteration in original). 11 the wire fraud counts.

She points to two particular kinds of allegedly prejudicial

spillover evidence introduced as a result of the wire fraud charges going to trial: the

withdrawal forms she used to obtain the funds from her 401(k) account, and the “character

attack” that ensued based on the line of questioning and argument that her actions

jeopardized J&R’s entire 401(k) plan.

Even absent the wire fraud counts, we are persuaded that the withdrawal forms

would have been admissible at a trial on the remaining counts. The Government introduced

these forms during Vincek’s testimony, which detailed the procedure to obtain 401(k)

distributions and discussed the fraud warnings included on the forms. At bottom, these

forms would have been admissible in a trial on the remaining counts because “evidence of

the underlying crime [(i.e., alleged wire fraud completed via the withdrawal forms)] and

the defendant’s part in it is admissible to show the motive for [her] efforts to interfere with

the judicial process[] [(i.e., her subsequent false statements to investigators)].”

(quoting

United States v. Willoughby,

(2d Cir. 1988)). In other words, “the evidence

with respect to the [withdrawal forms] was necessary to complete the story of [Barringer’s

false statements during] the federal investigation against [her].”

Barringer seemingly

recognizes the connection between the withdrawal forms and the remaining counts, as she

explains, “Although only Count 8 explicitly referenced her withdrawal application, all

three [false statement] counts, in fact, related to the withdrawal forms for her 401(k).”

Opening Br. 13 (emphasis added). Accordingly, Barringer fails to demonstrate that this

evidence would have been inadmissible at a trial on the remaining counts, meaning it does

not constitute impermissible spillover.

12 A closer question is whether the Government’s line of questioning and argument on

how Barringer’s actions “could” have “put the entire 401(k) plan in jeopardy” “[f]or the

whole company” would be admissible. J.A. 116. While this contention was arguably

necessary for the wire fraud counts to demonstrate an element of that offense—that

Barringer defrauded another of a property interest 8—it is arguably not relevant to any

element of the tax fraud or false statement counts. Said another way, in a trial on those

remaining counts, the Government’s line of argument could perhaps be excluded under

Federal Rule of Evidence 403 for “confusing the issues[] [and/or] misleading the jury.”

Under those circumstances, it could also possibly be excluded under that Rule for

“unfair prejudice.” At trial, the Government relied on its jeopardizing-the-plan theory on

several occasions, which, Barringer claims, bolstered the view that she was “a serial liar

and cheat.” Opening Br. 24; see J.A. 541 (“Mr. Vincek also told you that lies about a 401(k)

can also endanger the whole plan. That if money is taken out for invalid reasons under a

401(k), that that’s a problem for all the employees in a company and can endanger the

validity of everyone’s 401(k).”); J.A. 545 (“[Barringer’s lie] mattered because it risked the

whole plan.”); J.A. 551 (“[Wire fraud] mattered to AXA and it mattered to the

jeopardization of everyone else’s 401(k) plans.”); see also United States v. Rooney,

(2d Cir. 1994) (“It is only in those cases in which evidence is introduced on the

8 At trial, the Government claimed that the plan had a property interest in Barringer’s 401(k) account. J.A. 555 (“The plan itself controls the assets in the plan until they are withdrawn. Accordingly, the plan has property rights in the assets of the plan until it withdraws.”). As the district court’s grant of the posttrial motion for a judgment of acquittal on the wire fraud counts necessarily reflects, this proposition was not proven. 13 invalidated count that would otherwise be inadmissible on the remaining counts, and this

evidence is presented in such a manner that tends to indicate that the jury probably utilized

this evidence in reaching a verdict on the remaining counts, that spillover prejudice is likely

to occur.”).

Though perhaps close, however, we perceive no prejudice to Barringer when this

challenged evidence is considered in context. Indeed, any potential prejudice was mitigated

by the strength of the Government’s evidence on the remaining counts, the district court’s

jury instruction to consider each count separately, and the overall core similarity of the

facts underlying all counts.

Here, “the Government presented strong evidence to support the [false statement]

convictions.” Hornsby,

. For example, Barringer’s statement during her

interview with investigators that her employment with J&R ended on August 31, 2016,

directly contradicted her claims in two other court cases. Complaint at 3, Barringer v. J &

R Manufacturing, Inc., No. CL15-415 (Tazewell Cty., Va. Cir. Ct. Mar. 22, 2017) (listing

Barringer’s “last day of employment” as “October 28, 2016”); 9 Barringer’s Answer to

Riley’s Complaint & Counterclaims at 13, Riley v. Barringer, No. 1:18-cv-00007-JPJ-PMS

(W.D. Va. filed June 5, 2018), ECF No. 36 (same). Barringer’s statement that she needed

funds from her 401(k) account because she was worried about a possible foreclosure if

J&R collapsed is contradicted by the evidence that her mortgage was up-to-date and had

9 Barringer filed this document as an exhibit to her pretrial motion to dismiss in the district court below. See Additional Evidence re: Motion to Dismiss, United States v. Barringer, No. 1:19-cr-00051–JPJ–PMS–1 (W.D. Va. Nov. 12, 2019), ECF No. 23. It is not included in either the Joint Appendix or the Supplemental Joint Appendix. 14 less than a $200,000 remaining balance, which was substantially less than the $311,859.04

she withdrew for claimed hardship purposes. And Barringer’s claim that she received no

payments from J&R after August 31, 2016, was directly contradicted by payroll records.

As for the tax fraud convictions, which she does not challenge on appeal, the Government

presented strong evidence on these counts as well, eliciting testimony from IRS Special

Agent McMurray, who explained that J&R had unpaid taxes in the first three quarters of

2016. The strength of the Government’s evidence on the remaining counts thus mitigated

any prejudicial spillover. See Hornsby,

(relying on the Government’s

“strong evidence” in holding “that there was no prejudicial spillover of evidence”); United

States v. Gjurashaj,

(2d Cir. 1983) (rejecting claim of prejudicial

spillover based on the strength of the Government’s evidence on remaining counts).

“[A]ny concerns of prejudicial spillover were also mitigated by the district court’s

explicit instruction that the jury must consider . . . each count separately.” United States v.

Campbell,

(4th Cir.), cert. denied sub nom. Washington v. United States,

(2020). Here, the district court instructed the jury that it “should consider

the evidence separately as to each count and only return a verdict of guilty as to each

separate charge if the evidence proves all of the elements of that charge against the

defendant, beyond a reasonable doubt.” J.A. 643. And, except in “extraordinary situations,

we adhere to the crucial assumption that jurors carefully follow instructions.” United States

v. Rafiekian,

(4th Cir. 2021) (alteration, citation, and internal quotation

marks omitted).

15 Finally, all counts shared similar underlying facts. For example, the factual basis

underlying the indictment originated with Barringer failing to pay J&R’s 941 taxes,

knowing that this was wrong, and yet making other payments, including to herself, despite

this knowledge. As IRS Special Agent McMurray explained, “there was money in [J&R’s]

account that could have been paid to the IRS [for the delinquent 941 taxes], but [Barringer]

chose to pay herself and other vendors.” J.A. 281. And Barringer conceded this in her

testimony. She “kn[ew] that that money should [have] be[en] going to [the] IRS first before

the other people,” but she “kept writing the checks to other vendors.” J.A. 386. This factual

connection further supports our conclusion that any spillover was not prejudicial to her.

See United States v. Livingston,

(4th Cir. 2003) (per curiam) (“Where

the reversed and the remaining counts are ‘premised on essentially the same facts . . .

evidence relevant and admissible as to one set was equally relevant and admissible as to

the other; [a]ny “spillover” which may have occurred therefore was not prejudicial.’”

(alterations in original) (quoting United States v. Odom,

, 666–67 (11th Cir.

1988))). For these reasons, we conclude that Barringer fails to demonstrate prejudice as to

any impermissible spillover evidence.

Accordingly, any error as to the district court’s denial of Barringer’s pretrial motion

to dismiss the wire fraud counts was harmless. 10 For the same reasons, we also reject

10 For the reasons already discussed, the district court did not err when denying Barringer’s renewed motion to dismiss the wire fraud counts at the close of the Government’s case-in-chief and at the close of the evidence. 16 Barringer’s argument that the district court erred when declining to grant her motion for a

new trial, as it is largely duplicative of her impermissible spillover claim. 11

3.

Barringer also contends that the district court erred when denying her pretrial

motion to dismiss the false statement counts. To sustain a conviction under

(a) for a materially false statement, the Government must prove:

(1) that the defendant made a false statement to a governmental agency or concealed a fact from it or used a false document knowing it to be false; (2) the defendant acted knowingly or willfully; and (3) the false statement or concealed fact or false document was material to a matter within the jurisdiction of the agency.

United States v. Sarihifard,

(4th Cir. 1998). Barringer contends that,

given the invalidity of the wire fraud counts, her statements to investigators were not

“material to a matter within the jurisdiction of the agency.”

(emphases added). But her

understanding of both of those terms is too constrained.

“[T]he term jurisdiction should not be given a narrow or technical meaning for

purposes of § 1001. The term refers to the department’s or agency’s power to exercise

authority in a particular situation, and that power need not include the power to make final

or binding determinations.” United States v. Jackson,

, 196–97 (4th Cir. 2010)

(citations and internal quotation marks omitted). The Supreme Court has held that “the

investigation of wrongdoing is a proper governmental function; and since it is the very

11 We “review[] ‘the district court’s denial of a motion for a new trial under an abuse of discretion standard’ of review.” United States v. Wolf,

(4th Cir 2017) (citation omitted). 17 purpose of an investigation to uncover the truth, any falsehood relating to the subject of the

investigation perverts that function.” Brogan v. United States,

(1998)

(emphasis omitted).

Barringer contends that her false statements did not relate to a matter within the

Government’s jurisdiction because “the statements in her application to withdraw her own

401(k) funds could not implicate a crime against the United States [(i.e., wire fraud)] and,

therefore, the criminal investigation of those statements did not fall within the agency’s

jurisdiction.” Opening Br. 15; see also id. at 19. But the investigation was not only into

whether Barringer committed wire fraud; it also broadly targeted financial crimes at J&R.

J.A. 206 (IRS Special Agent McMurray testifying that “[a]t that time [investigators] were

looking at the employment tax and potential wire fraud”). Accordingly, assuming arguendo

that the investigators knew they could not prosecute Barringer for wire fraud, her

statements during the interview still would have been within their jurisdiction as relevant

to the broader investigation of J&R, particularly the unpaid taxes. See J.A. 206–07 (IRS

Special Agent McMurray’s testifying, “Q. [H]ow would things like employment dates be

relevant to [employment tax and wire fraud crimes]? A. Well, depending on the document,

it would be very relevant as far as [an] employment tax case. . . . Q. What about things like

pay dates or the reasons people are trying to get money? A. Well, those are all important,

yes. Q. Are they the kind of information that would affect how you might run an

investigation, what you might do in an investigation? A. Yes. Because if it’s a financial

transaction, we’re going to look at the date that financial transaction occurred and the

circumstances around it. So dates are very relevant.”); see also United States v. Rodgers,

18

(1984) (“A criminal investigation surely falls within the meaning of ‘any

matter,’ and . . . [a] department or agency has jurisdiction, in this sense, when it has the

power to exercise authority in a particular situation.” (quoting

)); United

States v. Grenier,

(6th Cir. 2008) (finding meritless an argument that

because an agency could not take a particular action, it lacked “jurisdiction,” as that term

is used in § 1001).

As for materiality, for purposes of § 1001, a “materially false” statement is one that

“has a natural tendency to influence, or is capable of influencing, the decision-making body

to which it was addressed.” United States v. Hamilton,

(4th Cir. 2012)

(citation omitted). Whether the false statement actually influenced an agency’s action is

irrelevant. Id.; see also United States v. Raza,

, 616–17 (4th Cir. 2017)

(collecting cases and holding that when the Government is the victim of the false statement,

it “must be capable of influencing . . . the particular government agency or public officials

that were targeted”).

Here, Barringer argues that since the 401(k) funds belonged to her, “she could not

commit wire fraud” and, therefore, the “false statements could not influence the decision

to charge her with offenses related to that withdrawal.” Opening Br. 20. This argument is

also inaccurately narrow. Quite simply, her answers during the interview were material

because they “ha[d] a natural tendency to influence, or [were] capable of influencing” the

direction of the investigation. Hamilton,

(citation omitted); see also

Brogan,

; Raza, 876 F.3d at 616–17. Of course, her statements did not

19 influence the investigation in a direction favorable to her, but that does not undermine their

inherently material nature. See Hamilton,

.

We thus conclude that Barringer’s statements to investigators were “material to a

matter within the jurisdiction of the agency.”

. Accordingly, we perceive

no error in the district court’s denial of Barringer’s pretrial motion to dismiss the false

statement counts. 12

We briefly address Barringer’s related claim that the district court erred when it

declined to grant her motion for a judgment of acquittal, see Fed. R. Crim. P. 29, on the

false statement counts. We “review de novo a district court’s denial of a Rule 29 motion

. . . [and] must affirm a conviction when substantial evidence viewed in the light most

favorable to the prosecution supports the verdict.” United States v. Moody,

(4th Cir. 2021) (citations and internal quotation marks omitted). In determining

whether substantial evidence exists, we “make all reasonable inferences in favor of the

government and do not weigh evidence or credibility.”

(citation and internal quotation

marks omitted). Substantial evidence exists “when a reasonable jury could find it adequate

and sufficient to establish guilt beyond a reasonable doubt.”

(citation and internal

quotation marks omitted).

For the reasons already discussed, we are persuaded that substantial evidence

supports Barringer’s conviction on the false statement counts. Barringer nonetheless

12 For the reasons already discussed, the district court did not err when denying Barringer’s renewed motion to dismiss the false statement counts at the close of the Government’s case-in-chief and at the close of the evidence. 20 responds that her conviction on Count Eight for a “False Statement to Federal Agents

Regarding Reason for Obtaining Money” is invalid because the Government failed to

negate every reasonable, truthful interpretation of her statement that she needed the funds

from her 401(k) account to prevent foreclosure. J.A. 21. However, “[a]s a general

proposition, circumstantial evidence may be sufficient to support a guilty verdict even

though it does not exclude every reasonable hypothesis consistent with innocence.” United

States v. Zayyad,

(4th Cir. 2014) (citation and internal quotation marks

omitted). And “[t]he jury was entitled to reject the theory consistent with innocence and

accept the one consistent with guilt, so long as there was substantial evidence for its

choice.”

(citation and internal quotation marks omitted).

Substantial evidence was present as to Count Eight. As discussed above, the

evidence reflected that Barringer’s mortgage was up-to-date and had less than a $200,000

remaining balance, which was substantially less than the $311,859.04 she withdrew for

claimed hardship purposes. This evidence directly contradicted her assertion that she

needed funds from her 401(k) account because she was worried about a possible

foreclosure if J&R collapsed. The jury was entitled to credit this substantial evidence when

considering Count Eight. Accordingly, we find no error in the district court’s denial of

Barringer’s motion for a judgment of acquittal on the false statement counts.

B.

Barringer also raises a due process claim, asserting that the Government knowingly

relied on Vincek’s “patently false” testimony that Barringer’s actions could have put J&R’s

entire 401(k) plan in jeopardy. Opening Br. 38–39; see also United States v. Bush,

189, 197 (4th Cir. 2019) (“[A] conviction obtained through use of false evidence, known

to be such by representatives of the State, must fall under the Fourteenth Amendment [as

a due process violation].” (quoting Napue v. Illinois,

(1959)), cert.

denied,

(2020)).

Because Barringer did not raise this claim below, it is reviewed for plain error.

United States v. Seignious,

(4th Cir. 2014); see Fed. R. Crim. P. 52(b).

To establish plain error, Barringer must demonstrate that “there has been (1) error; (2) that

is plain . . . ; [and] (3) that [it] affects [her] substantial rights.” United States v. Seigler,

(4th Cir. 2021) (citation and internal quotation marks omitted). Even if these

requirements are met, our “authority to recognize plain error is ‘permissive, not

mandatory,’ and should be employed only to prevent ‘a miscarriage of justice.’”

(citation omitted).

We detect no plain error here. At bottom, we are unconvinced that Vincek’s

testimony was patently false. In fact, Vincek’s testimony that Barringer’s improper

distributions “could” “put the entire 401(k) plan in jeopardy” “[f]or the whole company”

was plausibly accurate because her actions could have impacted the plan’s tax-favored

status. J.A. 116. Even if that result may not have been a likely one, it was not an incorrect

statement of the potential legal consequences of Barringer’s actions.

A tax-favored retirement plan such as a 401(k) “may be disqualified for failing to

operate in accordance with the . . . plan’s terms” or with other requirements imposed by

the Tax Code, which could include improper hardship distributions such as the one

Barringer received. Hull v. I.R.S.,

(10th Cir. 2011); see also Marcia

22 Beth Stairman Wagner et al., U.S. Income: EPCRS––Plan Correction and

Disqualification, 375–3d Tax. Mgmt. Port. (BNA) § I (“When a plan fails to satisfy the

qualification rules — either because the plan’s terms are lacking or because the plan has

not been operated in accordance with its terms or other legal requirements — the plan may

be ‘disqualified.’”). Disqualification can “result in the plan losing its tax-exempt status,”

thereby affecting employees, the employer, and the plan’s trust. Hull,

.

For instance, “[i]f a plan loses its protected status, employer contributions become

immediately taxable to the participants to whom they are owed, removing incentives for

employer and employee to continue their participation in the Plan.” Carter v. Pension Plan

of A. Finkl & Sons Co. for Eligible Off. Emps., No. 08 C 7169,

, at *11

(N.D. Ill. May 12, 2010) (citing

(b)–1), aff’d,

(7th Cir.

2011); accord Wagner et al., supra, § I(B)(3)(a)(1), (c). We do not speculate on whether

Barringer’s actions would have led to this consequence, but we note that Vincek’s

testimony that it could have caused the foregoing was not patently false, as Barringer

claims.

Accordingly, Barringer cannot demonstrate that an error occurred, let alone a plain

one. See United States v. Roane,

(4th Cir. 2004) (declining to entertain

a due process claim based upon assertion that a Government witness lied because there was

“no evidence” provided to substantiate the claim and noting that “conclusory accusations

that the Government should have known that a statement was false, without more” are

insufficient). Therefore, her due process claim fails.

23 III.

We now turn to Barringer’s arguments on the abuse-of-trust enhancement under

U.S.S.G. § 3B1.3. Generally, “[w]e review sentences ‘under a deferential abuse-of-

discretion standard.’” United States v. Dennings,

(4th Cir. 2019)

(quoting Gall v. United States,

(2007)). But “[o]n a challenge to a district

court’s application of the Guidelines, we review questions of law de novo and findings of

fact for clear error.” United States v. Hawley,

(4th Cir. 2019) (citation

omitted).

A.

The Guidelines provide for a two-level enhancement “[i]f the defendant abused a

position of public or private trust, or used a special skill, in a manner that significantly

facilitated the commission or concealment of the offense.” U.S.S.G. § 3B1.3. The

Sentencing Commission’s Commentary to § 3B1.3 explains its application:

“Public or private trust” refers to a position of public or private trust characterized by professional or managerial discretion (i.e., substantial discretionary judgment that is ordinarily given considerable deference). Persons holding such positions ordinarily are subject to significantly less supervision than employees whose responsibilities are primarily non- discretionary in nature. For this adjustment to apply, the position of public or private trust must have contributed in some significant way to facilitating the commission or concealment of the offense (e.g., by making the detection of the offense or the defendant’s responsibility for the offense more difficult).

U.S.S.G. § 3B1.3 cmt. n.1. The enhancement is therefore proper “in the case of an

embezzlement of a client’s funds by an attorney serving as a guardian, a bank executive’s

fraudulent loan scheme, or the criminal sexual abuse of a patient by a physician under the

guise of an examination,” but not “in the case of an embezzlement or theft by an ordinary

24 bank teller or hotel clerk.” Id. Finally, the enhancement is not to be added “if an abuse of

trust or skill is included in the base offense level or specific offense characteristic.”

U.S.S.G. § 3B1.3.

When assessing whether the defendant abused a position of trust, we typically

consider three factors, “including (1) whether the defendant had special duties or special

access to information not available to other employees, (2) the extent of the discretion the

defendant possessed, and (3) whether the defendant’s actions indicate that he is more

culpable than others in similar positions who engage in criminal acts.” United States v.

Abdelshafi,

(4th Cir. 2010) (citing United States v. Akinkoye,

(4th Cir. 1999)). The analysis is assessed from the victim’s point of view, which

is the IRS in this case. Wolf,

; see also United States v. Smith,

(4th Cir. 2009) (per curiam) (“The question must be examined from the

perspective of the victim. Smith contends that no relationship of trust existed between him

and the IRS, which was identified as the victim of the offense[.]” (citation omitted)); United

States v. May,

(6th Cir. 2009) (“[T]he IRS . . . is the victim of May’s

Section 7202 offense.”).

B.

The district court concluded that the abuse-of-trust enhancement was proper

because Barringer held a position of trust as to the Government to collect and pay the 941

taxes:

[N]ormally if a person is being prosecuted criminally for failing to pay their taxes . . . they don’t abuse their trust. But in a case such as this . . . , a person such as Ms. Barringer is placed in a position of trust by the government to

25 collect, hold, and deposit funds; so-called employment taxes, to hold in trust and deposit for the government. . . . I believe that that position of trust meets the qualifications of Section 3B1.3.

Supp. J.A. 24.

On appeal, Barringer first contends that the district court erred when finding that

she occupied a position of trust. On a preliminary point, we note the conflicting precedent

on the standard of review for this inquiry. Compare United States v. Ebersole,

, 535–36 (4th Cir. 2005) (“We review de novo the district court’s legal interpretation

of what constitutes ‘a position of trust’ under § 3B1.3.”), with Smith,

(“The district court’s decision that a defendant had a position of trust is a factual

determination reviewed for clear error.” (citing United States v. Bollin,

(4th Cir. 2001), overruled on other grounds by United States v. Chamberlain,

(4th Cir. 2017))). We need not resolve this question here because, even if we conducted a

de novo review, we would reach the same conclusion that Barringer’s role qualified as a

position of trust.

Specifically, our review of the Abdelshafi factors on this record reflects the

comprehensive scope of Barringer’s position at J&R, which was a position of trust. As IRS

Special Agent McMurray testified, “[Barringer] was responsible for the accounting. She

was responsible for the payroll. She did sales. She was responsible for collecting monies

owed to the company by customers. She basically ran the company.” J.A. 209 (emphasis

added). He also explained the significant discretion she retained in that position as to

payments: “As the second in command in that company, she could have chosen whatever

she wanted [as] to who not to pay.” J.A. 283. For instance, he explained that “there was

26 money in the account that could have been paid to the IRS [for the delinquent 941 taxes,]

but she chose to pay herself and other vendors.” J.A. 281.

Barringer’s own testimony confirmed the extensive nature of her position:

My duties were day-to-day operations of the company. And that included . . . taking sales over the phone, being the liaison between the customers [and] J&R, making sure that we had inventory to meet the needs, the bookkeeping as far as accounts payable, receivables, payroll, inventory. Did cost accounting for 17 product lines. Did some of the advertising and the advertising brochures, and worked directly with the companies, the customers.

J.A. 345. In fact, Barringer confirmed that she was “the one signing the checks,” “the one

signing the taxes,” and was “in charge of the 401(k) withholdings.” J.A. 371–72, 383. On

this point, she conceded that she was “putting the [company] money . . . to [her]self and

not the IRS.” J.A. 386. And even though she “kn[ew] that that money should [have] be[en]

going to [the] IRS first,” she instead “kept writing the checks to other vendors.” J.A. 386.

Barringer’s corporate role and the discharge of her duties sufficiently demonstrate

that she conducted J&R’s affairs with significant discretion and occupied a position of

trust, particularly related to the delinquent payroll taxes, because her position was

“characterized by professional or managerial discretion (i.e., substantial discretionary

judgment that is ordinarily given considerable deference).” U.S.S.G. § 3B1.3 cmt. n.1. Our

decision in Smith is instructive on this point. There, we affirmed the district court’s

application of the abuse-of-trust enhancement on clear-error review under similar

circumstances. As president of the corporation in question, Smith “defrauded the IRS by

using corporate funds extensively for personal vehicles and other personal purchases

without reporting the assets acquired as personal income” and by “us[ing] color-coded

27 checks to avoid payroll reporting requirements.” Smith,

. Smith

subsequently pleaded guilty to conspiracy to defraud the United States, in violation of

, and fraudulent receipt of bankruptcy property, in violation of

(2), 2.

At sentencing, over Smith’s objections, the district court applied the abuse-

of-trust enhancement, finding that Smith “had the primary responsibility for manipulation

of the payroll and expense checks to carry out the fraud involving trust fund taxes and that

his position as president afforded him discretion that facilitated the offense.”

.

On appeal, Smith asserted that the district court erred when applying this

enhancement because “no relationship of trust existed between him and the IRS.”

. We disagreed, explaining that “as an employer, Smith was placed in a position of trust

by the government. He was entrusted with collecting, holding, and depositing funds

designated in part for Social Security and Medicare and his failure to carry out this

responsibility victimized taxpayers.”

Indeed, we noted that Smith “had both a fiduciary

obligation to the IRS to carry out this responsibility, and a fiduciary relationship with the

employees of [the company] which carried the same obligation.”

. At bottom, we

explained that “it is essential that the government be able to trust employers to collect, hold

in trust, and deposit the ‘employment taxes’ owed by the employees and the company.”

at 872–73. Therefore, we affirmed the district court’s application of the abuse-of-trust

enhancement.

Considering the wide discretion accorded Barringer in her position at J&R, Smith’s

reasoning applies with equal force here. As Barringer “basically ran the company,” J.A.

209, she had a “fiduciary obligation to the IRS to carry out” her legal duty to collect and

28 pay over the 941 taxes, Smith,

. Moreover, a portion of the 941 taxes

were withheld from employees’ income to pay their share of their income taxes, and she

held them solely for transmission to the IRS. Therefore, we cannot say that the district court

erred when determining that Barringer’s discretionary role at J&R constituted a position of

trust.

Barringer nonetheless directs us to the Sixth Circuit’s decision in May to contend

that her responsibilities do not support an abuse-of-trust enhancement. In that case, the

Sixth Circuit reversed the district court’s application of the abuse-of-trust enhancement on

de novo review. May was the “registered agent, majority shareholder, sole director, and

president” of the corporation in question and, in this role, possessed sole authority to sign

checks for the company and otherwise maintained “strict control over company

correspondence.”

. Upon investigation into the corporation, the IRS

“discovered that [it] had never filed either an income tax return or an employment tax

return.”

The investigation culminated in an indictment against May, and he was

subsequently convicted of willfully evading his personal income tax liability, in violation

of

, and failing to account for and pay over payroll taxes, in violation of

.

at 600–01. At sentencing, the PSR recommended a two-level

enhancement for abuse-of-trust based on his role as the sole director of the company in

question.

. Over May’s objections, the district court adopted the PSR and applied

the enhancement.

On appeal, the Sixth Circuit explained that “[t]he level of discretion accorded an

employee is to be the decisive factor in determining whether his position was one that can

29 be characterized as a trust position.”

(citation omitted). However, it then held

that the district court erred when applying the abuse-of-trust enhancement because May

had not been in a position of trust given his lack of decision-making discretion to collect

and transfer payroll taxes to the IRS.

Specifically, the court reasoned,

May’s role would appear to be more like that of a bank teller—May’s only duty was to collect the money and pass it along to the government, as a teller’s only job is to collect depositors’ money and pass it along to the bank—rather than that of a bank executive. May had no discretion. The law simply required May to collect the payroll taxes from his employees and transfer the funds to the IRS.

(internal citations omitted).

Although this case is analogous to Barringer’s, we do not find its reasoning

persuasive and decline to follow it. Critically, the Sixth Circuit’s conclusion is a non

sequitur given the facts of the case. As the majority shareholder, sole director, and president

of the corporation in question, May possessed significant discretionary authority, including

the sole right to sign checks for the company. May,

. This role ought to

have qualified as a position of trust considering the Sixth Circuit’s emphasis on discretion

as the “decisive factor in determining whether his position was one that can be

characterized as a trust position,”

(citation omitted), which is an accurate

characterization of the Guidelines, U.S.S.G. § 3B1.3 cmt. n.1 (“‘Public or private trust’

refers to a position of public or private trust characterized by professional or managerial

discretion (i.e., substantial discretionary judgment that is ordinarily given considerable

deference).”). Accordingly, we cannot subscribe to the Sixth Circuit’s conclusion in May.

30 However, May’s underlying principles on discretion actually support our conclusion

here. If we were to consider Barringer’s discretion as the dispositive factor in our analysis,

as the Sixth Circuit contemplated, we would readily conclude that she occupied a position

of trust. As discussed above, Barringer effectively ran J&R’s affairs, determining in that

position whom to pay and when, as well as signing the company’s checks to that effect.

Under May’s principles, we would therefore reach the same conclusion that the district

court did not err when finding that Barringer occupied a position of trust.

Next, Barringer claims that the district court erroneously applied this enhancement

because it results in double-counting. That is to say, she posits that an element of her tax-

fraud conviction under

(being a “responsible person”) includes the same

conduct as that penalized by the enhancement (occupying a position of trust), meaning she

is ineligible for the enhancement. We disagree.

Section 7202 provides,

Any person required under this title to collect, account for, and pay over any tax imposed by this title who willfully fails to collect or truthfully account for and pay over such tax shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 5 years, or both, together with the costs of prosecution.

. To obtain a conviction under this section, the Government was first

required to prove that Barringer was a “responsible person”––that is, the “person required

. . . to collect, account for, and pay over” the relevant 941 taxes. See Turpin v. United States,

(4th Cir. 1992). As the jury instructions accurately reflected, a

“responsible person” is one “who has significant, although not necessarily exclusive or

31 final, control or authority over the employer’s finances or disbursement of the employer’s

funds.” J.A. 648; see Erwin v. United States,

(4th Cir. 2010) (“[T]he

essential inquiry is whether a person has significant, but not necessarily exclusive,

authority over corporate finances or management decisions.”).

Critically then, while the Government was required to make this showing to obtain

a conviction for tax fraud under § 7202, it was not obligated to prove that Barringer also

occupied a position of trust as contemplated by § 3B1.3. United States v. Taylor,

(11th Cir. 2009) (per curiam) (explaining that the defendant’s “base

offense level was based on his tax evasion and did not account for his abuse of trust” (citing

; U.S.S.G. § 2T1.6)); United States v. Lombardo,

(3d

Cir. 2008) (“Application of

is proper where the defendant failed to

truthfully account for and pay over withholding tax. Application of U.S.S.G. § 3B1.3

applies where the defendant abused of [sic] a position of trust that significantly facilitated

the commission or concealment of the offense. . . . It was not necessary for the Government

to prove an abuse of trust as defined by the Guidelines in order to convict under

. The District Court did not count the same underlying conduct twice.”).

While it is true that many responsible persons under § 7202 will also occupy

positions of trust, being a responsible person does not ipso facto equate to holding a

position of trust for U.S.S.G. § 3B1.3 purposes. Indeed, it is possible to be a responsible

person under § 7202 and yet be ineligible for the abuse-of-trust enhancement. Consider,

for instance, a hypothetical defendant who is the responsible person for purposes of

collecting and paying over the 941 taxes and nonetheless has minimal or limited discretion

32 in that role. See Johnson v. United States,

, 361–62 (4th Cir. 2013) (holding

that a corporation’s sole shareholder was a “responsible person” under

,13

despite her delegation of the company’s “daily affairs and [authority] to execute checks

and other legal documents” to another employee). Such a defendant would not qualify for

the abuse-of-trust enhancement as her circumstances would be more akin to “an ordinary

bank teller or hotel clerk” than “an attorney serving as a guardian, a bank executive’s

fraudulent loan scheme, or the criminal sexual abuse of a patient by a physician under the

guise of an examination.” U.S.S.G. § 3B1.3 cmt. n.1. Accordingly, Barringer was not

fundamentally exempt from application of this enhancement based simply on the elements

of her § 7202 conviction, meaning the district court did not engage in impermissible

double-counting.

We therefore conclude that the district court did not err when applying the abuse-

of-trust enhancement.

IV.

For the reasons discussed above, the judgment of the district court is

AFFIRMED.

13 Sections 6672 and 7202 effectively operate in tandem. While § 6672 provides for civil liability and penalties for failure to pay taxes, § 7202 subjects the perpetrator to a felony conviction. See Slodov v. United States,

(1978) (“Thus, an employer-official or other employee responsible for collecting and paying taxes who willfully fails to do so is subject to both a civil penalty equivalent to 100% of the taxes not collected or paid [under § 6672], and to a felony conviction [under § 7202].”); see also United States v. Lord,

(4th Cir. 2010) (relying on cases interpreting the “responsible person” requirement under § 6672 to interpret that same requirement under § 7202). 33