USCA4 Appeal: 21-4190 Doc: 50 Filed: 11/15/2022 Pg: 1 of 24

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-4190

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

AMINTA A. SMITH, a/k/a Ashley Smith, a/k/a Angel Smith,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn, Jr., District Judge. (3:18-cr-00107-MOC-DCK-1)

Argued: September 16, 2022 Decided: November 15, 2022

Before GREGORY, Chief Judge, and NIEMEYER and THACKER, Circuit Judges.

Affirmed in part, reversed in part, and remanded by unpublished per curiam opinion.

ARGUED: Melissa Susanne Baldwin, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF: Anthony Martinez, Federal Public Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Dena J. King, United States Attorney, Caryn D. Finley, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. USCA4 Appeal: 21-4190 Doc: 50 Filed: 11/15/2022 Pg: 2 of 24

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Aminta Smith (“Appellant”) was convicted of 20 counts of aiding and assisting in

the filing of false tax returns in violation of

(2), and three counts of filing

false tax returns in violation of

(1). In this appeal, Appellant challenges

the sufficiency of the evidence supporting her convictions, the district court’s admission of

non-expert summary witness testimony, two of her supervised release conditions, and the

district court’s judgment ordering immediate payment of restitution.

For the reasons below, we affirm the district court’s denial of Appellant’s motion

for judgment of acquittal, admission of the summary witness testimony, and imposition of

the supervised release condition prohibiting Appellant from seeking any extension of

credit, unless authorized to do so in advance by the probation officer. However, we reverse

and remand the imposition of the supervised release condition requiring Appellant to

refrain from going to places where she knows controlled substances are illegally sold, used,

or distributed and the order of immediate payment of restitution.

I.

Appellant’s convictions stem from her involvement in three tax preparation

businesses between 2010 and 2015. Specifically, in October 2009, Appellant started a tax

preparation business known as Touch by Angels Tax Service (“TATS”). In order to be

able to file returns electronically, a tax preparation business must have an Electronic Filing

Identification Number (“EFIN”), which identifies the company to the Internal Revenue

Service (“IRS”). In January 2010, the IRS received Appellant’s application for an EFIN

for TATS, in which she listed herself as the owner. The application also listed Benjamin

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Smith (“Smith”) 1 as an alternate contact for the business. A month later, the IRS found

Appellant unsuitable and denied her request for an EFIN for TATS.

After Appellant’s EFIN application for TATS was denied, Smith obtained EFINs

for two tax businesses: (1) Touch by Angels Accounting Services (“TAAS”) and (2) Smith

Tax & Insurance Group, LLC (“Smith Tax & Insurance”). In 2011 and 2012, Appellant

received W-2’s 2 from TAAS. From 2013 through 2015, Appellant received W-2’s from

Smith Tax & Insurance. On each of Appellant’s W-2’s, she listed her occupation as a tax

preparer.

On March 18, 2019, a federal grand jury returned a 23-count superseding

indictment, in which Appellant was charged with 20 counts of aiding and assisting in the

filing of false tax returns, in violation of

(2), and three counts of filing

false tax returns, in violation of

(1) in connection with her involvement

with TATS, TAAS, and Smith Tax & Insurance.

Counts one through 20 are based on Appellant’s preparation of her clients’ tax

returns. In short, counts one through 20 allege that Appellant assisted her clients in filing

false tax returns in an effort to maximize their refunds. Counts 21 and 22 are based on

Appellant’s 2013–2014 personal tax returns. Specifically, counts 21 and 22 allege that

1 To clarify, throughout this opinion, references to “Smith” will mean Benjamin Smith and not Appellant. 2 A W-2 is a form that taxpayers receive from their employers. This document reports the employee’s annual wages, taxes withheld, as well as other deductions, to the IRS for a specific tax year.

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Appellant’s tax returns are false because she underreported her income and failed to report

the gross receipts for her tax business on a Schedule C of her tax return. 3 Count 23 is also

based on Appellant’s personal tax return but differs from counts 21 and 22 inasmuch as it

only alleges that Appellant underreported her total income. This is so because Appellant

did attach a Schedule C to her 2015 tax return, which reported $150 of gross receipts for

TATS during the 2015 tax year.

At trial, the Government presented evidence demonstrating that Appellant prepared

false tax returns for five individuals from 2011 to 2014. Appellant’s former tax clients

uniformly testified that their tax returns either: (1) included wages for places they never

worked; (2) claimed credits for education expenses from colleges they did not attend or

expenses they did not incur; or (3) included business income for businesses that did not

exist or for amounts that were not provided to Appellant. As a result of these tactics,

Appellant’s former clients received inflated refunds, ranging from $2,775 to $9,515 per tax

year.

Appellant also prepared her own tax returns. The charges against Appellant relative

to her personal tax returns are rooted in the Government’s contention that she failed to

report her tax business on her 2013 and 2014 tax returns and underreported the income she

received from her tax business on her 2013, 2014, and 2015 tax returns. At trial, the

Government offered evidence in support of its theory that Appellant was the actual owner

Per the testimony adduced at trial, a Schedule C is a tax form that a business uses 3

to report income or losses to the IRS. This form is required if the business only has one owner. 5 USCA4 Appeal: 21-4190 Doc: 50 Filed: 11/15/2022 Pg: 6 of 24

of all three tax businesses -- namely, TATS, TAAS, and Smith Tax & Insurance -- even

though Smith was listed as the sole owner of TAAS and Smith Tax & Insurance.

Specifically, the Government called IRS Service Center Representative, Kristy

Morgan (“Morgan”), who testified about the IRS’s requirements for obtaining an EFIN.

Morgan also testified that Smith Tax & Insurance was listed as a company associated with

Appellant’s application for an EFIN for TATS. On this point, Morgan explained that Smith

Tax & Insurance was listed in the “doing business as” column of Appellant’s EFIN

application for TATS.

The Government also called IRS Special Agent Nicholas Pompei (“Agent

Pompei”), who interviewed Appellant as part of the criminal investigation. Notably, Agent

Pompei testified that when he asked Appellant about her employment, she told him that

she had been the sole owner of TATS since 2009.

The jury also heard from Meshawn Jean-Louis (“Jean-Louis”), who is a Problem

Resolution Specialist in Santa Barbara Bank and Trust’s (“Santa Barbara”) tax products

group. Santa Barbara is a bank that the IRS uses to disburse refunds to taxpayers. Jean-

Louis testified that Santa Barbara’s records indicated that at different time periods, both

Appellant and Smith were listed as the contact for the EFINs associated with TAAS and

Smith Tax & Insurance. During Jean-Louis’s testimony, the Government introduced

evidence detailing the tax preparation fees earned by TAAS between 2011 and 2012 and

by Smith Tax & Insurance from 2013 through 2015.

The Government’s last witness at trial was IRS Agent Teresa Archie (“Agent

Archie”), who testified as a non-expert summary witness. Prior to her testimony, Agent

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Archie sat through all of the testimony and evidence presented in the Government’s case-

in-chief. Initially, Agent Archie testified about two of Appellant’s former clients’ tax

returns. During this line of questioning, Agent Archie explained that if the tax returns

included false information with respect to income, it would affect the IRS’s ability to

calculate the correct tax due for those tax years. At this point, counsel for Appellant

objected that “we [do not] need [Agent Archie] to just regurgitate what the jury has already

heard through another witness or to opine on the ultimate issues in the case.” J.A. 271. 4

After hearing from the parties, the district court expressed some concern with the

line of questioning, stating, “I think most of what you’re doing is fine. I don’t have any

problem with it. It may be a couple of times she’s getting over the line. Obviously it’s

going to false information which is going to impair the Internal Revenue Service.” J.A.

272–273. Counsel for Appellant interjected and offered:

I think this might be cured if we just get a limiting instruction, that, to the extent that her testimony conflicts with the testimony or other evidence that has come in earlier, that the jury is to regard the testimony from the other witnesses as the evidence.

.

Hearing no objection from the Government, the court gave the limiting instruction.

Having suggested the limiting instruction, Appellant did not object to it and never objected

again to the testimony of Agent Archie. At the conclusion of the trial, the court also gave

a jury instruction on summary witnesses, which stated:

4 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

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Charts and summaries prepared by various witnesses were admitted into evidence and were shown to you during the trial for the purpose of explaining facts that are allegedly contained in books, records, or other documents which may or may not also be in evidence in the case. You may consider the charts and summaries as you would any other evidence admitted during the trial and give them such weight or importance, if any, as you feel they deserve.

J.A. 370. Appellant did not object to this jury instruction.

Agent Archie also testified about the Earned Income Tax Credit (“EITC”). 5

Specifically, Agent Archie testified that all of the clients referenced in the indictment

received the maximum or near the maximum level for the EITC during the relevant time

period. After reviewing several charts detailing where each client fell with respect to the

maximum EITC, Agent Archie noted that false items on Appellant’s clients’ returns would

affect their EITC.

The last topic Agent Archie covered during her testimony was the personal tax

returns of Appellant and Smith. First, Agent Archie reviewed the Government’s

demonstrative exhibit 145, which is a summary chart establishing that while Smith Tax &

Insurance earned more than $300,000 in tax preparation fees from 2013 to 2015, Appellant

did not report a Schedule C business on her 2013 or 2014 tax returns. The chart also

indicates that Appellant reported only $150 in business income on a Schedule C attached

to her 2015 tax return. Next, Agent Archie testified about 2015 bank records offered into

5 As explained at trial, the EITC is a tax credit for lower income individuals or families with qualifying children. This credit can be applied towards tax liability and if there is leftover credit, it increases the amount of refund that a taxpayer would receive.

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evidence by the Government, which indicated that Appellant was the sole signatory

authority on the Smith Tax & Insurance bank account where the preparer fees were

deposited. Further, Agent Archie testified that Appellant paid for personal expenses using

funds from Smith Tax & Insurance’s bank account and repeatedly transferred money from

the tax business account to her personal account. And Agent Archie testified that in March

2015, Smith Tax & Insurance issued a check to Smith for “biweekly pay,” which noted on

the memo line that it was “okay per Aminta Smith.” J.A. 285. On redirect, Agent Archie

testified that Smith’s tax returns were prepared by an individual named “A. Smith,” which

presumably was Appellant. Agent Archie also testified that Smith did not report a Schedule

C business on his 2013 or 2014 tax returns, nor did he file a tax return for 2015 or 2016.

Ultimately, Appellant was convicted on all counts. Following the verdict, Appellant

filed a motion for judgment of acquittal with respect to counts 21–23, arguing that the

Government failed to present sufficient evidence to establish that Appellant was required

to report business income (or loss) in 2013 and 2014 (counts 21 and 22), or that Appellant

underreported her gross receipts in 2015 (count 23). The district court denied the motion.

In doing so, the district court explained that with respect to counts 21 and 22, the

Government introduced “more than sufficient evidence for a reasonable juror to find that

these three businesses -- [TATS], [TAAS], and Smith Tax [&] Insurance -- were different

in name only and all reflected the same preparation business, for which [Appellant] was

the owner and which she should have reported on her 2013 and 2014 tax returns.” J.A.

445. As for count 23, the district court concluded, “The Government met its burden of

proving that [Appellant] underreported gross receipts or sales from her tax preparation

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business.”

. In determining that there was sufficient evidence to support the

jury’s verdict on count 23, the district court emphasized that “The evidence of the flow of

money and [Appellant’s] dominion and control over the funds is further proof that she was

the owner of the tax preparation business, no matter what nominee name it went by.”

.

At sentencing, the district court imposed a sentence of 30 months of imprisonment,

which was below the Sentencing Guidelines range of 41 to 51 months, to be followed by a

one year term of supervised release, with the standard conditions of supervised release

adopted by the Western District of North Carolina. Appellant raised several objections to

the standard conditions. However, only the following two supervised release conditions

are relevant to this appeal: (1) Appellant shall not go to a place where she knows controlled

substances are illegally sold, used, or distributed; and (2) Appellant shall not seek any

extension of credit, unless authorized to do so in advance by the probation officer. The

district court overruled Appellant’s objections to these conditions.

Lastly, before finalizing its sentence, the district court ordered Appellant to pay

$171,017 in restitution to the IRS. The district court entered a written judgment

memorializing its sentence, which stated that payment of restitution was due immediately.

Appellant timely filed a notice of appeal in which she challenges the district court’s

denial of her motion for judgment of acquittal with respect to counts 21 through 23, the

district court’s admission of Agent Archie’s summary witness testimony, two of her

supervised release conditions, and the district court’s judgment ordering immediate

payment of restitution.

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II.

In considering Appellant’s challenge to the sufficiency of the evidence, “we review

the district court’s denial of [a] [d]efendant’s motion for judgment of acquittal de novo.”

United States v. Kimble,

(4th Cir. 2017). In doing so, “we ask whether,

after viewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt.”

United States v. Millender,

(4th Cir. 2020) (emphasis in original)

(internal quotation marks omitted); see also United States v. Haas,

(4th

Cir. 2021) (“Reversal for insufficient evidence is reserved for the rare case where the

prosecution’s failure is clear.” (internal quotation marks omitted)).

As for Appellant’s quarrel with the district court’s admission of Agent Archie’s

testimony, “[w]e review evidentiary rulings for an abuse of discretion, affording substantial

deference to the district court.” United States v. White,

(4th Cir. 2016).

However, “[w]hen a criminal defendant fails to object to the district court’s evidentiary

rulings at trial, we review for plain error.” United States v. Walker,

(4th

Cir. 2022).

Lastly, with respect to Appellant’s objections to the district court’s imposition of

certain supervised release conditions, “[w]e ordinarily review conditions of supervised

release for abuse of discretion.” United States v. Boyd,

(4th Cir. 2021).

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III.

A.

Appellant first argues that the evidence presented at trial was insufficient to sustain

her convictions for filing false personal tax returns (counts 21–23). 6 To obtain a conviction

for filing false tax returns, the Government is required to prove “that the document in

question was false as to a material matter, that the defendant did not believe the document

to be true and correct as to every material matter, and that [s]he acted willfully with the

specific intent to violate the law.” Kawashima v. Holder,

(2012)

(internal citations omitted). Appellant contends that the Government failed to prove that

her tax returns contained a material falsehood with the specific intent to violate the law.

When examining the materiality requirement, we have explained, “[u]nder §

7206(1) the test of materiality is whether a particular item must be reported in order that

the taxpayer estimate and compute [her] tax correctly.” United States v. Aramony,

(4th Cir. 1996) (quoting United States v. Null,

(4th Cir.

1969)). Counts 21 through 23 are based on Appellant’s conduct during the 2013–2015

calendar years. The Government’s evidence concerning this time frame focuses on Smith

Tax & Insurance. For example, Appellant’s W-2’s established that during the 2013, 2014,

and 2015 calendar years, she provided tax return preparation services for Smith Tax &

Insurance. In addition, the Santa Barbara records detailing the tax preparation fees earned

6 Appellant did not appeal the district court’s denial of the motion for judgment of acquittal with regard to counts one through 20.

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in 2013, 2014, and 2015, all refer to one entity -- Smith Tax & Insurance. Accordingly, in

this case, materiality turns on two issues: (1) whether Appellant was required to report the

business income from Smith Tax & Insurance on a Schedule C attached to her tax returns;

and (2) whether her failure to report such income rendered her tax returns materially false.

1.

Starting with the reporting issue, as noted above, at trial, the Government called IRS

Service Center Representative Morgan, who testified that if a business has one owner, it

should report its income and any deductions on a Schedule C. In addition, Morgan testified

about the IRS’s “suitability” requirements for obtaining an EFIN as well as Appellant’s

application for an EFIN for TATS, which was rejected by the IRS. Morgan also testified

that after the IRS denied Appellant’s application for an EFIN for TATS, an individual with

the same last name as Appellant, Benjamin Smith, obtained EFINs for the tax businesses

where Appellant worked, that is, for TAAS and Smith Tax & Insurance. Lastly, Morgan

testified that Smith Tax & Insurance was listed as a company associated with Appellant’s

application for an EFIN for TATS. To put a fine point on the association between these

two purportedly different companies, Morgan explained that Smith Tax & Insurance was

listed in the “doing business as” column of Appellant’s EFIN application for TATS.

In addition, when asked about her employment, Appellant admitted to Agent

Pompei that she was the sole owner of TATS, which she started in October 2009. And

although the Government only presented bank records for the 2015 calendar year, those

records revealed that Appellant was the sole signatory authority on the bank account where

the preparer fees were deposited for Smith Tax & Insurance and that Appellant regularly

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transferred money from the tax business account to her personal account. Finally, the

Government presented evidence which casts doubt on any suggestion that Smith was more

than a mere nominee for TAAS and Smith Tax & Insurance. Specifically, the Government

presented testimony establishing that Smith did not report a Schedule C business on his

2013 or 2014 tax returns, there is no record of Smith filing a tax return in 2015 or 2016,

and Smith’s tax returns were prepared by an individual named “A. Smith.”

All told, there is sufficient evidence supporting the jury’s conclusion that Appellant

was required to report the income from Smith Tax & Insurance on a Schedule C to her tax

returns. Indeed, Appellant’s statement that she has been the sole owner of a tax business

since 2009 coupled with the evidence indicating that the purported owner of Smith Tax &

Insurance, Benjamin Smith, did not report a Schedule C business during the relevant time

period is sufficient for the jury to conclude that Appellant was the sole owner of all three

iterations of the tax businesses at issue, and thus, was required to report the income from

those businesses on a Schedule C to her tax returns -- yet she did not do so.

2.

Turning to the question of whether this omission rendered Appellant’s tax returns

materially false, there is no dispute that Appellant did not report any business income from

Smith Tax & Insurance on her 2013, 2014, or 2015 tax returns. It is also undisputed that

Smith Tax & Insurance received over $300,000 in fees for Appellant’s work during that

time period. Having already determined that there is sufficient evidence to support an

inference that Appellant was the actual owner of Smith Tax & Insurance, we also conclude

that Appellant’s failure to report Smith Tax & Insurance’s business income on a Schedule

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C to her tax returns rendered her tax returns materially false. See United States v.

Holland,

(9th Cir. 1989) (stating “any failure to report income is

material”), cited with approval in Aramony,

.

3.

As for the willfulness requirement, here, there is substantial evidence from which a

jury could infer that Appellant intentionally falsified her personal tax returns. On this

point, the Government presented evidence indicating that the manner in which Appellant

falsified her clients’ tax returns is instructive on the issue of how she falsified her own tax

returns. Specifically, as noted above, Appellant’s former tax clients testified at trial that

their tax returns: (1) listed wages for places they never worked; (2) claimed credits for

education expenses from colleges they did not attend or expenses they did not incur; and

(3) listed income for businesses that did not exist or for amounts that were not provided to

Appellant. This testimony established that Appellant repeatedly included false line items

on her clients’ tax returns in order to maximize their tax refunds.

Yet Appellant maintains that the Government has not established that she engaged

in a pattern of falsifying tax returns because “[i]t is not a ‘pattern’ to commit different acts

for different benefits.” Appellant’s Reply Br. at 11. According to Appellant, this is so

because under the Government’s theory she “underreported her personal income to avoid

paying taxes on her personal returns and . . . overreported income on clients’ returns to

maximize their Earned Income Tax Credit.”

(emphases supplied). This is a distinction

without a difference. The evidence supports the Government’s theory of the case --

namely, that Appellant used her experience as a tax preparer to game the system.

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Consequently, it makes sense that her methods to achieve the desired result -- i.e., to avoid

tax liability and/or maximize tax refunds -- would depend upon the circumstances. This

evidence, coupled with Appellant’s experience as a tax preparer, is sufficient for the jury

to infer that Appellant willfully falsified her personal tax returns. See United States v.

Diamond,

(4th Cir. 1986) (finding the defendant’s education and

professional experience relative to tax matters supported trial court’s conclusion that he

intended to file false returns).

Accordingly, because there is substantial evidence establishing that Appellant

intentionally filed false personal tax returns, the district court did not err in denying

Appellant’s motion for judgment of acquittal on counts 21–23.

B.

Appellant next lodges two challenges to the district court’s admission of Agent

Archie’s testimony. In doing so, Appellant argues generally that Agent Archie’s testimony

should have been excluded. In addition, Appellant contends that Agent Archie’s testimony

usurped the province of the jury.

1.

Appellant first argues that the district court erred by overruling her objection to

Agent Archie’s testimony. As noted above, at trial, counsel for Appellant objected that

“we [do not] need [Agent Archie] to just regurgitate what the jury has already heard

through another witness or to opine on the ultimate issues in the case.” J.A. 271. At the

outset, we must first address whether Appellant waived her objection to Agent Archie’s

testimony. If we answer that question in the affirmative, we need not reach the merits of

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the district court’s ruling on the objection. See United States v. Robinson,

(4th Cir. 2014) (“when a claim is waived, it is not reviewable on appeal, even for plain

error”). Here, Appellant argues that her request for a limiting instruction did not waive her

objection to Agent Archie’s testimony because she never explicitly withdrew her objection.

In support of this proposition, Appellant cites United States v. Rodriguez, in which

the First Circuit said, “[a] party who identifies an issue and then explicitly withdraws it[]

has waived the issue.”

(1st Cir. 2002). Appellant also focuses on her

counsel’s statement that a limiting instruction might cure her objection to Agent Archie’s

testimony, which in her view suggests that the defense preserved its objection to the

testimony.

While we have cited Rodriguez for the proposition that when a party has explicitly

withdrawn an objection, it is waived for the purposes of appeal, see Robinson,

, this is not to say that explicit withdrawal is the only way that a party can waive an

objection, or that explicit withdrawal is required for waiver. In contrast, there is support

for the argument that a party may waive an objection without explicitly withdrawing it. In

United States v. Robinson, we held that the defendant’s choice to proceed with sentencing

constituted waiver because he “consciously abandoned” his objection to the drug-quantity

calculation by choosing to continue with sentencing using only the evidence before the

court at that time rather than postponing the matter to allow the parties to gather evidence

relevant to his objection.

Here, Appellant’s conscious abandonment of her objection

is more apparent than in Robinson.

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Indeed, it was Appellant, not the court or the Government, who introduced the idea

of a limiting instruction as a possible resolution to her objection. Appellant contends that

the district court overruled her objection to Agent Archie’s testimony when it stated, “I

don’t have any problem with it.” Appellant’s Opening Br. at 15 (citing J.A. 272).

However, a balanced reading of the record establishes that the district court’s comment

was not a ruling on the objection but instead was made as part of the dialogue on the

objection. As noted above, after stating that it did not have any problem with most of the

testimony, the court explained, “It may be a couple of times she’s getting over the line.

Obviously it’s going to false information which is going to impair the Internal Revenue

Service.” J.A. 272. In response, the prosecutor offered to ask the question a different way

and Appellant’s counsel offered a solution by way of a curative instruction. The court then

fashioned the limiting instruction with the help of the parties. And it is undisputed that

Appellant did not object to the limiting instruction, nor did Appellant object to the jury

instructions on summary witnesses. Accordingly, we conclude that Appellant withdrew

her objection to Agent Archie’s testimony by proposing a curative instruction before the

district court ruled on the objection, and, as such, she waived this issue by neither objecting

to the curative instruction that was given nor objecting again to the testimony.

Moreover, the limiting instruction given at the time of Agent Archie’s testimony

clearly instructed the jury that they were permitted to determine what weight, if any, to

give Agent Archie’s summary testimony. This, coupled with the final jury instruction as

to summary witnesses, was sufficient to cure any potential issues with Agent Archie’s

testimony.

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Beyond that, any error relative to the objection was harmless because “[w]ithout

evidence to the contrary, we follow the presumption that the jury obeyed the limiting

instructions.” United States v. Johnson,

(4th Cir. 1995).

2.

Next, Appellant argues for the first time on appeal that the district court erred by

permitting Agent Archie to draw an impermissible inference that Smith Tax & Insurance’s

tax preparation fees could be attributed to her personally. Specifically, the question and

answer Appellant contests is:

Q: I’m now showing you Demonstrative Exhibit 145. What does this chart show?

A: The green bars show the amount of total fees earned according to Santa Barbara records by Aminta Smith. The little red bars you have 0, 0, and 150, are the amounts that Ms. Smith reported on her Schedule C of her tax return.

J.A. 281. According to Appellant, this testimony usurped the province of the jury by

drawing an impermissible inference that the gross receipts of Smith Tax & Insurance are

attributable to Appellant. As explained above, the Government’s demonstrative exhibit

145 is a summary chart, which established that Smith Tax & Insurance earned more than

$300,000 in preparer fees from 2013 to 2015 but Appellant did not report a Schedule C

business on her 2013 or 2014 tax returns, and only reported $150 in business income on a

Schedule C to her 2015 tax return.

At trial, the Government sought permission to publish several demonstrative

exhibits -- including demonstrative exhibit 145 -- which it maintained would assist Agent

Archie in her testimony and the jury’s understanding of it. As to demonstrative exhibit

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145, the district court specifically asked “[d]oes the defense – has the defense seen and do

you object to any of these?” J.A. 276. To which counsel for Appellant replied, “I don’t

think so. Let me just verify. No objection.”

(emphasis supplied). Because Appellant

did not object to either the demonstrative exhibit or the testimony, we review for plain

error. See United States v. Walker,

(4th Cir. 2022) (“When a criminal

defendant fails to object to the district court’s evidentiary rulings at trial, we review for

plain error.”). “To prevail under this standard, a defendant must show that (1) there was

error (2) that was plain and (3) affected substantial rights, and that (4) the error seriously

affected the fairness, integrity or public reputation of judicial proceedings.” United States

v. Johnson,

(4th Cir. 2019) (alterations adopted and internal quotation

marks omitted). “A plain error normally affects a defendant’s substantial rights if the error

was prejudicial, meaning that it affected the outcome of the district court proceedings.”

Walker,

(internal quotation marks omitted).

Here, the trial court did not err by failing to strike Agent Archie’s testimony, sua

sponte, with respect to demonstrative exhibit 145. A review of the contested question and

answer reveals that Agent Archie did not make any inferences in connection with the

summary chart. Instead, Agent Archie highlighted what the jury could see for themselves

on the chart. Accordingly, Agent Archie’s testimony is squarely within the parameters of

Federal Rule of Evidence 611(a), which allows parties to use summaries or charts “to

facilitate the presentation and comprehension of evidence already in the record.” United

States v. Oloyede,

(4th Cir. 2019) (“Rule 611(a) charts are not evidence

themselves; they are used merely to aid the jury in its understanding of the evidence that

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has already been admitted, by, for example, revealing inferences drawn in a way that would

assist the jury.”(alterations adopted and internal quotation marks omitted)).

In any event, even if the district court did err in failing to strike this testimony sua

sponte, any such error was harmless. See United States v. Caldwell,

(4th

Cir. 2021) (“An error is harmless if it’s highly probable that it did not affect the judgment.”)

(quoting United States v. Burfoot,

(4th Cir. 2018)). As explained above,

the jury was presented ample evidence from which it could conclude that Appellant was

required to report the gross receipts from Smith Tax & Insurance on a Schedule C to her

tax returns but failed to do so (counts 21 through 23). The jury also heard from Appellant’s

former clients who described Appellant’s pattern of reporting false information on their tax

returns (counts 1 through 20). Because there is sufficient evidence -- untethered to

demonstrative exhibit 145 -- supporting the jury’s verdict, we conclude that it is highly

probable that any error with respect to demonstrative exhibit 145 did not affect the

judgment.

C.

Lastly, Appellant argues that the district court erred by failing to adequately respond

to her objections to certain supervised release conditions imposed at sentencing.

Specifically, Appellant takes issue with two supervised release conditions: (1) Appellant

shall not go to a place where she knows controlled substances are illegally sold, used, or

distributed (the “Drug Condition”); and (2) Appellant shall not seek any extension of credit,

unless authorized to do so in advance by the probation officer (the “Credit Condition”).

21 USCA4 Appeal: 21-4190 Doc: 50 Filed: 11/15/2022 Pg: 22 of 24

“District courts have a duty to explain the sentences they impose.” United States v.

McMiller,

(4th Cir. 2020); see also United States v. Boyd,

(4th Cir. 2021) (“courts are expected to make individualized assessments based on the

facts before them and explain sentences in a way that allows for meaningful appellate

review and promotes the perception of fair sentencing” (internal quotation marks omitted)).

“Failure to provide such an explanation constitutes procedural error.” McMiller,

. And, “a court may only impose conditions that (1) are reasonably related to the

goals of deterrence, public protection, and rehabilitation; (2) affect no greater deprivation

of liberty than is reasonably necessary to achieve those goals; and (3) are consistent with

any pertinent policy statements issued by the Sentencing Commission.” Boyd,

.

1.

Starting with the Drug Condition, Appellant asserts that the district court erred in

imposing this condition because it is unconstitutionally vague and Appellant does not have

a history of drug use. As to the vagueness argument, we conclude that the district court

adequately explained its reasoning for rejecting this argument. Specifically, the court noted

that this condition is not unconstitutionally vague because it is limited to circumstances

where Appellant knowingly goes to places where she knows substances are sold,

distributed, or administered.

Although we conclude that the district court did not err in rejecting Appellant’s

argument that the Drug Condition is unconstitutionally vague, we conclude that the record

evidence establishes that the district court erred in imposing this condition because

22 USCA4 Appeal: 21-4190 Doc: 50 Filed: 11/15/2022 Pg: 23 of 24

Appellant does not have a history of drug use. Indeed, the lack of support for the imposition

of the Drug Condition is confirmed by the fact that the district court sustained Appellant’s

objection to a supervised release condition which required drug testing on the basis that it

was inapplicable given that Appellant does not have a history of drug use. And yet, because

the district court imposed the Drug Condition, perhaps there is some reason for this

inconsistency. But at this point, because there is nothing in the record which suggests that

the Drug Condition reasonably relates to Appellant’s history and characteristics or the

goals of deterrence, protection of the public, and rehabilitation, and thus, we conclude that

the district court abused its discretion by imposing the Drug Condition. See Boyd,

(noting that when a district court fails to address a defendant’s nonfrivolous

objections head on, “we will vacate the sentence and remand for resentencing unless

context makes the court’s reasons for rejecting the nonfrivolous objections patently

obvious”).

2.

Turning to the Credit Condition, Appellant objected to this condition on the ground

that it is inconsistent with the Sentencing Guidelines, which only recommend this condition

when a defendant is not in compliance with a payment plan. In overruling Appellant’s

objection, the district court explained that this condition is necessary given the large

amount of restitution Appellant owes combined with the fact that this provision is only in

effect for one year. Because there is no dispute that Appellant is obligated to pay more

23 USCA4 Appeal: 21-4190 Doc: 50 Filed: 11/15/2022 Pg: 24 of 24

than $170,000 in restitution 7 and the record reflects that Appellant was unable to pay a fine

at sentencing, we conclude that the district court did not abuse its discretion in imposing

this condition.

IV.

For the reasons set forth above, we affirm the district court’s denial of Appellant’s

motion for judgment of acquittal, admission of the summary witness testimony, and

imposition of the supervised release Credit Condition. However, as to the Drug Condition

and order of immediate payment of restitution, we reverse and remand for further

proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

7 The parties agree that the district court erred by ordering immediate payment of restitution. The parties also agree that the appropriate remedy is to modify or amend the judgment to correct the error. Thus, we vacate the district court’s order requiring immediate payment of restitution and remand the case with instructions to modify the judgment so that Appellant does not owe restitution until she begins her term of supervised release.

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