                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 ______________

                                         No. 14-1122
                                       ______________

                            UNITED STATES OF AMERICA

                                             v.

                               RODNEY E. MILLER, SR.,
                                           Appellant
                                  ______________

                       APPEAL FROM THE DISTRICT COURT
                               OF THE VIRGIN ISLANDS
                              (D.C. No. 3-13-cr-00007-001)
                       District Judge: Honorable Curtis V. Gomez
                                    ______________

                    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  December 12, 2014
                                   ______________

            Before: CHAGARES, JORDAN, and SHWARTZ, Circuit Judges
                               ______________

                                          OPINION
                                       ______________

SHWARTZ, Circuit Judge

       Rodney Miller appeals his judgment of conviction and sentence for willfully

causing the filing of a false tax return in violation of 26 U.S.C. § 7206(2). For the

reasons that follow, we will affirm.

       
        This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
                                             I

       Miller served as Chief Executive Officer of Roy Lester Schneider Hospital (“the

Hospital”) from 2002 to 2007. In 2006, he was paid a base salary of $265,000. A portion

of that salary, $150,000, was paid by the Government of the Virgin Islands, and the

remainder, $115,000, was paid by the Hospital. The Hospital also paid Miller a $40,000

housing allowance and $205,750 in two installments for other benefits, including

incentive and retention bonuses, cost of living increases, and education and spousal

allowances.

       The jury heard evidence that Miller used different bank accounts to receive these

funds. Miller directed that the portion of his salary paid by the Hospital and his housing

allowance be deposited into his Navy Federal Credit Union account.1 The portion of

Miller’s salary paid by the Government of the Virgin Islands was deposited into his

Banco Popular account. Miller directed the Hospital to transfer the other $205,750 in

benefits to his Pentagon Federal Credit Union account.

       Thomas Dardaris, owner of Liberty Tax Service in Beaufort, South Carolina,

prepared Miller’s 2006 federal income tax return. Miller, a walk-in customer, produced a

W-2 form for his income from the Government of the Virgin Islands and a 1099 form for

accrued interest. Miller told Dardaris that he had another $115,000 in income but did not

have a W-2 or 1099 form for it. Although the $115,000 figure corresponds with the

       1
         Miller directed the Hospital to create a bank account for the Hospital with the
Bank of Nova Scotia that was used to transfer his Hospital salary and housing allowance
into his Navy Federal Credit Union account.
                                             2
portion of Miller’s salary paid by the Hospital, Dardaris testified that Miller told him that

this income reflected “housing allowances, education, [and] reimbursements.” App. 160.

They agreed to describe this amount as “fees” under a section of the tax return for

“[o]ther income.” App. 160. Miller did not disclose to Dardaris the remaining $205,750

he received or his $40,000 housing allowance. Miller then filed his tax return.

       On December 28, 2007, an attorney for the Hospital contacted Miller about the

$205,750 “lump-sum” payments he had received. App. 168. Miller indicated that his

W-2 and 1099 forms “were in storage” and that he would look for them. App. 172.

Miller then faxed the attorney a handwritten explanation of the lump sum that detailed the

payments it included, but he never provided his W-2 or 1099 forms.

       Miller testified that he told Dardaris that his salary was comprised $150,000 from

the Government of the Virgin Islands and $115,000 from the Hospital. He claimed that

he “was not aware that [the other] sums were taxable” as he “didn’t have a 1099 at the

time.” App. 274. He explained that he had “never received a 1099, [or] a W-2 for any

other income from the hospital[,] ever.” App. 275. He testified that he did not know into

which account the extra $115,000 portion of his salary was deposited but that it was part

of his base salary.

       The jury convicted Miller of willfully aiding, assisting, procuring, counseling, or

advising in the preparation and presentation of a false tax return in violation of 26 U.S.C.

§ 7206(2). The District Court sentenced Miller to twenty-one months’ imprisonment and

a term of supervised release. Miller appeals.
                                              3
                                              II2

                                              A

       Miller contends that there is insufficient evidence to support his conviction.3 To

prove a violation under 26 U.S.C. § 7206(2), the Government must show that the

defendant:

       willfully aid[ed] or assist[ed] in, or procure[d], counsel[ed], or advise[d] the
       preparation or presentation under, or in connection with any matter arising
       under, the internal revenue laws, of a return, affidavit, claim, or other
       document, which is fraudulent or is false as to any material matter, whether
       or not such falsity or fraud is with the knowledge or consent of the person
       authorized or required to present such return, affidavit, claim, or document.

26 U.S.C. § 7206(2). The elements of the offense are “(1) that [the] defendant aided,

assisted, procured, counseled, advised or caused the preparation and presentation of a

return; (2) that the return was fraudulent or false as to a material matter; and (3) that the

act of the defendant was willful.” United States v. Gambone, 314 F.3d 163, 174 (3d Cir.

2003). Willfulness in the criminal tax context requires a showing that “the law imposed a

duty on the defendant, that the defendant knew of this duty, and that he voluntarily and

intentionally violated that duty.” Cheek v. United States, 498 U.S. 192, 201 (1991).




       2
          The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
        3
          We exercise plenary review of the grant or denial of a judgment of acquittal,
reviewing the record “in the light most favorable to the prosecution to determine whether
any rational trier of fact could have found proof of guilt beyond a reasonable doubt.”
United States v. Caraballo-Rodriguez, 726 F.3d 418, 424, 430 (3d Cir. 2013) (en banc)
(internal citations, quotation marks, and alterations omitted).
                                               4
       Here, there is sufficient evidence from which a jury could find a violation of

Section 7206(2).4 There is no dispute Miller caused the filing of a return that omitted a

significant portion of his compensation. Miller’s employment agreement outlined his

compensation to include a base salary, a signing bonus, and incentive payments, as well

as housing, spousal, and education allowances, and it contemplated that these payments

may be subject to withholding taxes, indicating that they were taxable. Dardaris testified

that he and Miller discussed “housing allowances, education, [and] reimbursements” with

respect to the $115,000 Miller received above his $150,000 salary from the Government

of the Virgin Islands. App. 160. They decided to report it as “fees” under the section for

“[o]ther income.” App. 160. Miller did not provide Dardaris any other information

concerning the income he received. As a result, Miller reported only $265,198 when his

income was, in fact, $510,947. In addition, the jury had evidence that $205,750 of

Miller’s unreported income was placed in a separate account into which no salary was

deposited, suggesting Miller was attempting to segregate it from the income he reported.

Thus, a jury could reasonably infer that Miller was aware of his obligation to report both

his salary and the other benefits he received, but failed to disclose all of his income to




       4
        Miller’s subsequent filing of an amended tax return in 2009 does not alter our
conclusion that there was sufficient evidence of willfulness. United States v. Klausner,
80 F.3d 55, 63 (2d Cir. 1996) (“[E]ventual cooperation with the government does not
negate willfulness . . . .”).
                                              5
Dardaris and thereby underreported his income willfully.5 Hence, sufficient evidence

supports Miller’s conviction under Section 7206(2).

                                              B

       The District Court correctly sentenced Miller at a base offense level of sixteen.6

Under U.S.S.G. § 2T1.4, the base offense level for offenses involving aiding or assisting

tax fraud is determined by the amount of the tax loss. U.S.S.G. § 2T1.4. “Tax loss” is

“the total amount of loss that was the object of the offense (i.e., the loss that would have

resulted had the offense been successfully completed).” U.S.S.G. § 2T1.1(c)(1). Put

differently, “the ‘tax loss’ is the amount of loss the defendant intends to bring about, not

the amount of loss to the government that actually results.” United States v. Clarke, 562

F.3d 1158, 1164 (11th Cir. 2009). It “is not reduced by any payment of the tax

subsequent to the commission of the offense.” U.S.S.G. § 2T1.1(c)(5). Therefore, the

tax loss resulting from Miller’s offense is the amount he intended to cause when he filed

a false tax return; his subsequent attempt to amend the tax return does not alter the

calculation. Thus, the District Court did not err in finding a tax loss of $86,798 and

       5
          The Hospital produced a 1099 reflecting Miller’s receipt of $415,604.08 of other
income, but it is unclear if it was prepared as of the date Miller met with Dardaris. Miller
denied receiving it and thus did not provide this 1099 to Dardaris. A jury could
nonetheless infer from his statement to the Hospital’s attorney that his W-2 and 1099
forms were in storage that Miller had a 1099 form for the extra benefits and therefore
knew he had such forms reflecting income he was obligated to report. A jury could thus
infer that Miller’s failure to provide a 1099 form to Dardaris was an attempt to evade his
tax obligation.
        6
          We exercise plenary review of an interpretation of the Sentencing Guidelines and
review factual findings for clear error. United States v. Grier, 475 F.3d 556, 570 (3d Cir.
2007) (en banc).
                                              6
sentencing Miller at a base offense level of sixteen. See U.S.S.G. §§ 2T1.4, 2T4.1

(setting a base offense level of sixteen for offenses involving a tax loss of “[m]ore than

$80,000” but less than $200,000).7

                                              III

       For the foregoing reasons, we will affirm.




       7
         Miller also argues that he did not, in fact, intend to cause a tax loss of $86,798,
but the jury’s verdict amply supports the conclusion that he did.
                                              7
