                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-2230


UNITED STATES OF AMERICA,

                Plaintiff – Appellant,

           v.

J. BRYAN WILLIAMS,

                Defendant – Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   Liam O’Grady, District
Judge. (1:09-cv-00437-LO-TRJ)


Argued:   March 21, 2012                  Decided:   July 20, 2012


Before MOTZ, SHEDD, and AGEE, Circuit Judges.


Reversed by unpublished opinion. Judge Shedd wrote the majority
opinion, in which Judge Motz concurred.     Judge Agee wrote a
dissenting opinion.


ARGUED: Robert William Metzler, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellant.           David Harold
Dickieson, SCHERTLER & ONORATO, LLP, Washington, D.C., for
Appellee. ON BRIEF: John A. DiCicco, Acting Assistant Attorney
General, Deborah K. Snyder, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; Neil H. MacBride, United States Attorney,
Alexandria, Virginia, for Appellant.        Lisa H. Schertler,
SCHERTLER & ONORATO, LLP, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
SHEDD, Circuit Judge:

     The Government brought this action seeking to enforce civil

penalties assessed against J. Bryan Williams for his failure to

report his interest in two foreign bank accounts for tax year

2000, in violation of 31 U.S.C. § 5314. Following a bench trial,

the district court entered judgment in favor of Williams. The

Government now appeals. Because we conclude that the district

court clearly erred in finding that the Government failed to

prove that Williams willfully violated § 5314, we reverse.



                                       I

     Federal law requires taxpayers to report annually to the

Internal Revenue Service (“IRS”) any financial interests they

have in any bank, securities, or other financial accounts in a

foreign country. 31 U.S.C. § 5314(a). The report is made by

filing   a   completed   form   TD         F    90-22.1    (“FBAR”)    with   the

Department   of   the    Treasury. 1           See   id.   § 5314;    31   C.F.R.

§ 1010.350. The FBAR must be filed on or before June 30 of each


     1
       TD F 90-22.1, which is a form issued by the Department of
the Treasury, is titled “Report of Foreign Bank and Financial
Accounts” and is commonly referred to as the “FBAR.” The
regulations relating to the FBAR were formerly published at 31
C.F.R. §§ 103.24 and 103.27, but were recodified in a new
chapter effective March 1, 2011. See Transfer & Reorganization
of Bank Secrecy Act Regulations, 75 Fed. Reg. 65806 (Oct. 26,
2010). For ease, our citations are to the recodified sections.



                                       3
calendar       year    with       respect     to    foreign        financial         accounts

maintained       during       the     previous      calendar        year,       31     C.F.R.

§ 1010.306(c), and the Secretary of the Treasury may impose a

civil money penalty on any person who fails to timely file the

report, 31 U.S.C. § 5321(a)(5)(A). Moreover, in cases where a

person “willfully” fails to file the FBAR, the Secretary may

impose an increased maximum penalty, up to $100,000 or fifty

percent    of    the       balance    in    the    account    at    the       time    of   the

violation. Id. § 5321(a)(5)(C). The authority to enforce such

assessments       has       been     delegated       to      the     IRS.       31     C.F.R.

§ 1010.810(g).

     In 1993, Williams opened two Swiss bank accounts in the

name of ALQI Holdings, Ltd., a British Corporation (the “ALQI

accounts”). From 1993 through 2000, Williams deposited more than

$7,000,000 into the ALQI accounts, earning more than $800,000 in

income    on    the    deposits.      However,      for   each      of    the   tax     years

during    that    period,         Williams   did    not   report         to   the    IRS   the

income from the ALQI accounts or his interest in the accounts,

as he was required to do under § 5314.

     By the fall of 2000, Swiss and Government authorities had

become    aware       of    the    assets    in    the    ALQI     accounts.         Williams

retained counsel and on November 13, 2000, he met with Swiss

authorities to discuss the accounts. The following day, at the



                                             4
request of the Government, the Swiss authorities froze the ALQI

accounts.

     Relevant      to     this    appeal,    Williams          completed     a     “tax

organizer” in January 2001, which had been provided to him by

his accountant in connection with the preparation of his 2000

federal   tax    return.    In    response   to       the   question   in    the   tax

organizer regarding whether Williams had “an interest in or a

signature   or    other    authority     over     a    bank    account,     or   other

financial account in a foreign country,” Williams answered “No.”

J.A. 111. In addition, the 2000 Form 1040, line 7a in Part III

of Schedule B asks:

     At any time during 2000, did you have an interest in
     or a signature or other authority over a financial
     account in a foreign country, such as a bank account,
     securities account, or other financial account? See
     instructions for exceptions and filing requirements
     for Form TD F 90-22.1.

J.A. 131. On his 2000 federal tax return, Williams checked “No”

in response to this question, and he did not file an FBAR by the

June 30, 2001, deadline.

     Subsequently,         upon    the   advice        of     his   attorneys      and

accountants, Williams fully disclosed the ALQI accounts to an

IRS agent in January 2002. In October 2002 he filed his 2001

federal tax return on which he acknowledged his interest in the

ALQI accounts. Williams also disclosed the accounts to the IRS

in February 2003 as part of his application to participate in


                                         5
the Offshore Voluntary Compliance Initiative. 2 At that time he

also filed amended returns for 1999 and 2000, which disclosed

details about his ALQI accounts.

     In     June     2003,      Williams       pled    guilty       to       a    two-count

superseding        criminal      information,         which     charged           him   with

conspiracy to defraud the IRS, in violation of 18 U.S.C. § 371,

and criminal tax evasion, in violation of 26 U.S.C. § 7201, in

connection with the funds held in the ALQI accounts from 1993

through 2000. As part of the plea, Williams agreed to allocute

to   all    of    the    essential     elements        of     the   charged         crimes,

including that he unlawfully, willfully, and knowingly evaded

taxes by filing false and fraudulent tax returns on which he

failed     to    disclose      his   interest     in    the     ALQI     accounts.       In

exchange    for    his    allocution,      Williams      received        a       three-level

reduction       under    the   Sentencing      Guidelines       for      acceptance      of

responsibility. 3

     In his allocution, Williams admitted the following:


     2
       The IRS rejected the application and turned it over to the
attorney for the United States who was conducting a grand jury
investigation of Williams.
     3
        Williams also agreed to pay all taxes and criminal
penalties due for tax years 1993 through 2000, but he has since
refused to pay some of those taxes and penalties and has engaged
the IRS in litigation over that issue. See Williams v.
Commissioner of Internal Revenue, 97 T.C.M. (CCH) 1422 (Apr. 16,
2009).



                                           6
           I knew that most of the funds deposited into the
      Alqi accounts and all the interest income were taxable
      income to me. However, the calendar year tax returns
      for ‘93 through 2000, I chose not to report the income
      to my –- to the Internal Revenue Service in order to
      evade the substantial taxes owed thereon, until I
      filed my 2001 tax return.

           I also knew that I had the obligation to report
      to the IRS and/or the Department of the Treasury the
      existence of the Swiss accounts, but for the calendar
      year tax returns 1993 through 2000, I chose not to in
      order to assist in hiding my true income from the IRS
      and evade taxes thereon, until I filed my 2001 tax
      return.

              . . . .

           I knew what I was doing was wrong and unlawful.
      I, therefore, believe that I am guilty of evading the
      payment of taxes for the tax years 1993 through 2000.
      I also believe that I acted in concert with others to
      create a mechanism, the Alqi accounts, which I
      intended to allow me to escape detection by the IRS.
      Therefore, I am –- I believe that I’m guilty of
      conspiring with the people would (sic) whom I dealt
      regarding the Alqi accounts to defraud the United
      States of taxes which I owed.

J.A. 55 (emphasis added).

      In January 2007, Williams finally filed an FBAR for each

tax year from 1993 through 2000. Thereafter, the IRS assessed

two       $100,000     civil     penalties         against    him,     pursuant    to

§ 5321(a)(5), for his failure to file an FBAR for tax year 2000. 4

Williams      failed    to     pay   these       penalties,   and    the   Government


      4
       The statute of limitations for assessing penalties for tax
years 1993 through 1999 had expired by the time the IRS assessed
the civil penalties. See 31 U.S.C. § 5321(b)(1) and (2).



                                             7
brought this enforcement action to collect them. Following a

bench trial, the district court entered judgment in favor of

Williams, finding that the Government failed to establish that

Williams    willfully   violated   §    5314.   The   Government   timely

appealed.



                                   II

     The parties agree that Williams violated § 5314 by failing

to timely file an FBAR for tax year 2000. The only question is

whether the violation was willful. The district court found that

(1) Williams “lacked any motivation to willfully conceal the

accounts from authorities” because they were already aware of

the accounts and (2) his failure to disclose the accounts “was

not an act undertaken intentionally or in deliberate disregard

for the law, but instead constituted an understandable omission

given the context in which it occurred.” 5 J.A. 378-79. Therefore,


     5
       In making its determination, the district court emphasized
Williams’s motivation rather than the relevant issue of his
intent. See Am. Arms Int’l v. Herbert, 563 F.3d 78, 83 (4th Cir.
2009) (“[M]alice or improper motive is not necessary to
establish willfulness.”). To the extent the district court
focused on motivation as proof of the lack of intent, it simply
drew an unreasonable inference from the record. In November
2000, Swiss authorities met with Williams to discuss the ALQI
accounts and thereafter froze them at the request of the United
States Government. Although the Government knew of the existence
of the accounts, nothing in the record indicates that, when the
accounts were frozen, the Government knew the extent, control,
or degree of Williams’s interest in the accounts or the total
(Continued)
                                   8
the district court found that Williams’s violation of § 5314 was

not willful.

      “Willfulness may be proven through inference from conduct

meant to conceal or mislead sources of income or other financial

information,” and it “can be inferred from a conscious effort to

avoid learning about reporting requirements.” United States v.

Sturman, 951 F.2d 1466, 1476 (6th Cir. 1991) (internal citations

omitted) (noting willfulness standard in criminal conviction for

failure to file an FBAR). Similarly, “willful blindness” may be

inferred where “a defendant was subjectively aware of a high

probability    of   the    existence        of    a   tax     liability,   and

purposefully     avoided      learning      the   facts      point    to   such

liability.” United States v. Poole, 640 F.3d 114, 122 (4th Cir.

2011) (affirming criminal conviction for willful tax fraud where

tax   preparer      “closed      his       eyes   to”       large    accounting




funds held in the accounts. As Williams admitted in his
allocution, his decision not to report the accounts was part of
his tax evasion scheme that continued until he filed his 2001
tax return. Thus, his failure to disclose information about the
ALQI accounts on his 2000 tax return in May 2001 was motivated
by his desire not to admit his interest in the accounts, even
after authorities had been aware of them for over six months.
Rarely does a person who knows he is under investigation by the
Government immediately disclose his wrongdoing because he is not
sure how much the Government knows about his role in that
wrongdoing. Thus, without question, when Williams filed in May
of 2001, he was clearly motivated not to admit his interest in
the ALQI accounts.



                                       9
discrepancies). Importantly, in cases “where willfulness is a

statutory condition of civil liability, [courts] have generally

taken it to cover not only knowing violations of a standard, but

reckless ones as well.” Safeco Ins. Co. of America v. Burr, 551

U.S.    47,    57     (2007)    (emphasis        added).Whether      a    person   has

willfully failed to comply with a tax reporting requirement is a

question of fact. Rykoff v. United States, 40 F.3d 305, 307 (9th

Cir. 1994); accord United States v. Gormley, 201 F.3d 290, 294

(4th Cir. 2000) (“[T]he question of willfulness is essentially a

finding of fact.”).

       We   review     factual       findings    under   the    clearly       erroneous

standard set forth in Federal Rule of Civil Procedure 52(a).

Walton v. Johnson, 440 F.3d 160, 173-74 (4th Cir. 2006) (en

banc). “Our scope of review is narrow; we do not exercise de

novo review of factual findings or substitute our version of the

facts for that found by the district court.” Id. at 173. “If the

district court’s account of the evidence is plausible in light

of the record viewed in its entirety, the court of appeals may

not reverse it even though convinced that had it been sitting as

the    trier    of     fact,        it   would    have    weighed    the       evidence

differently.” Id. (quoting Anderson v. City of Bessemer City,

470    U.S.    564,    573-74       (1985)).     However,     notwithstanding      our

circumscribed       review     or    the   deference     we   give   to   a    district

court’s findings, those findings are not conclusive if they are

                                           10
“plainly       wrong.”       Id.      (quoting      Jiminez        v.    Mary     Washington

College, 57 F.3d 369, 379 (4th Cir. 1995)). The clear error

standard still requires us to engage in “meaningful appellate

review,” United States v. Abu Ali, 528 F.3d 210, 261 (4th Cir.

2008),    and        where    objective        evidence     contradicts          a    witness’

story, or the story itself is “so internally inconsistent or

implausible on its face that a reasonable factfinder would not

credit it, . . . the court of appeals may well find clear error

even     in     a     finding        purportedly       based        on     a     credibility

determination.” United States v. Hall, 664 F.3d 456, 462 (4th

Cir.   2012)        (citing        Anderson,    470    U.S.    at       575).    Thus,     “[a]

finding is clearly erroneous when, although there is evidence to

support it, the reviewing court on the entire evidence is left

with a definite and firm conviction that a mistake has been

committed.” F.C. Wheat Maritime Corp. v. United States, 663 F.3d

714, 723 (4th Cir. 2011).

       Here, the evidence as a whole leaves us with a definite and

firm conviction that the district court clearly erred in finding

that Williams did not willfully violate § 5314. Williams signed

his 2000 federal tax return, thereby declaring under penalty of

perjury       that    he     had    “examined       this    return       and    accompanying

schedules       and     statements”        and      that,     to     the       best   of   his

knowledge, the return was “true, accurate, and complete.” “A

taxpayer who signs a tax return will not be heard to claim

                                               11
innocence for not having actually read the return, as he or she

is charged with constructive knowledge of its contents.” Greer

v. Commissioner of Internal Revenue, 595 F.3d 338, 347 n. 4 (6th

Cir. 2010); United States v. Doherty, 233 F.3d 1275, 1282 n.10

(11th Cir. 2000) (same). Williams’s signature is prima facie

evidence that he knew the contents of the return, United States

v. Mohney, 949 F.2d 1397, 1407 (6th Cir. 1991), and at a minimum

line 7a’s directions to “[s]ee instructions for exceptions and

filing   requirements          for    Form      TD   F   90-22.1”    put   Williams      on

inquiry notice of the FBAR requirement.

       Nothing     in        the    record      indicates     that     Williams        ever

consulted   Form        TD    F    90-22.1      or   its   instructions.        In    fact,

Williams testified that he did not read line 7a and “never paid

any attention to any of the written words” on his federal tax

return. J.A. 299. Thus, Williams made a “conscious effort to

avoid learning about reporting requirements,” Sturman, 951 F.2d

at 1476, and his false answers on both the tax organizer and his

federal tax return evidence conduct that was “meant to conceal

or mislead sources of income or other financial information,”

id. (“It is reasonable to assume that a person who has foreign

bank    accounts    would          read   the     information       specified    by    the

government in tax forms. Evidence of acts to conceal income and

financial information, combined with the defendant's failure to

pursue knowledge of further reporting requirements as suggested

                                             12
on     Schedule         B,     provide      a     sufficient      basis     to    establish

willfulness        on        the    part    of    the    defendant.”).        This   conduct

constitutes willful blindness to the FBAR requirement. Poole,

640 F.3d at 122 (“[I]ntentional ignorance and actual knowledge

are equally culpable under the law.”)

       Williams’s guilty plea allocution further confirms that his

violation         of    §     5314    was       willful.    During     that      allocution,

Williams acknowledged that he willfully failed to report the

existence of the ALQI accounts to the IRS or Department of the

Treasury      as       part    of    his    larger      scheme   of   tax   evasion.      This

failure to report the ALQI accounts is an admission of violating

§ 5314, because a taxpayer complies with § 5314 by filing an

FBAR       with   the       Department      of    the    Treasury.    In    light    of   his

allocution, Williams cannot now claim that he was unaware of, 6




       6
       In fact, seven months before his criminal allocution,
Williams sent a letter to the IRS requesting to participate in
the Offshore Voluntary Compliance Initiative “[p]ursuant to Rev.
Proc. 2003-11.” J.A. 183-84. On the first page of Revenue
Procedure 2003-11, the IRS specifically informs applicants that
a primary benefit of the Initiative is that participating
taxpayers can avoid penalties for having failed to timely file
an FBAR. Clearly, Williams was aware of the FBAR at the time of
his allocution. Further, to the extent Williams asserts he was
unaware of the FBAR requirement because his attorneys or
accountants never informed him, his ignorance also resulted from
his own recklessness. Williams concedes that from 1993-2000 he
never informed his accountant of the existence of the foreign
accounts – even after retaining counsel and with the knowledge
that authorities were aware of the existence of the accounts.



                                                 13
inadvertently     ignored,   or   otherwise   lacked    the   motivation   to

willfully disregard the FBAR reporting requirement.

     Thus,   we    are   convinced   that,    at   a   minimum,   Williams’s

undisputed actions establish reckless conduct, which satisfies

the proof requirement under § 5314. Safeco Ins., 551 U.S. at 57.

Accordingly, we conclude that the district court clearly erred

in finding that willfulness had not been established.



                                     III

     For the foregoing reasons, we reverse the judgment of the

district court and remand this case for proceedings consistent

with this opinion.

                                                                   REVERSED




                                     14
AGEE, Circuit Judge, dissenting:

      The     majority      correctly        recites      that     we      review   only   for

clear    error    the      district       court’s    dispositive           factual    finding

that Williams’ failure to file the FBAR was not willful. Maj.

Op. at 9-10. The majority also correctly notes the limited scope

of   review    under       that    standard.       Id.    In    my    view,     however,    my

colleagues       in   the    majority       do     not    adhere      to    that    standard,

instead     substituting          their     judgment      for    the       judgment   of   the

district court. As appellate judges reviewing for clear error,

we   are    bound     by     the     standard       of     review       and    therefore     I

respectfully dissent.

      We recently explained how circumscribed our review under

the clear error standard must be:

      “This standard plainly does not entitle a reviewing
      court to reverse the finding of the trier of fact
      simply because it is convinced that it would have
      decided the case differently.” Anderson v. Bessemer
      City, 470 U.S. 564, 573 (1985). “If the district
      court’s account of the evidence is plausible in light
      of the record viewed in its entirety, the court of
      appeals may not reverse it even though convinced that
      had it been sitting as the trier of fact, it would
      have weighed the evidence differently.” Id. at 573-74.

      “When findings are based on determinations regarding
      the credibility of witnesses,” we give “even greater
      deference to the trial court’s findings.” Id. at 575.

United     States     v.    Hall,     664    F.3d    456,       462     (4th   Cir.   2012).

Applying      this    standard      to      the    case    at    bar,      I   conclude    the

district court’s judgment should be affirmed.



                                              15
       The       majority     opinion         rightly         points    out    that    there      is

evidence         supporting       the    conclusion           that     Williams’      failure     to

file       the    FBAR    was      willful,          particularly         if       adopting     the

majority’s         conclusion       that       a   “willful       violation”        can    include

“willful         blindness    to        the    FBAR     requirement”          or    “intentional

ignorance.”        Maj.     Op.    at        12.   That   evidence        could     have    led    a

reasonable         factfinder           to     conclude        that     the    violation        was

willful, as the majority believes. 1

       But there is also evidence supporting the opposite view.

First, there is Williams’ direct testimony that he was unaware

of the FBAR requirement in June 2001 (when it was supposed to be

filed) and that he did not willfully (or recklessly) fail to

file it. The district judge, who had the opportunity to observe

Williams’         demeanor        while        testifying,           expressly      found       that

“Williams’         testimony       that       he   only       focused     on   the     numerical

calculations         on   the      Form       1040      and    otherwise       relied      on   his

accountants to fill out the remainder of the Form is credible .

. . .” J.A. 379.

       1
       Some of that evidence, of course, is subject to two
interpretations.  For   example,  the   majority  reasons  that
Williams’ reference in his allocution to the “Department of the
Treasury” is necessarily an admission he violated § 5314.
Because the IRS is a bureau of the Department of the Treasury,
however, the reference in his plea could instead be interpreted
as a simple acknowledgement of that fact. Indeed, there was no
reference in the criminal proceedings to Section 5314 or the
FBAR at all.



                                                   16
       Significantly, the district court also found that there was

no objective incentive for Williams to continue to conceal the

ALQI account in June 2001, because at that time he knew that the

United    States    government   had   requested       the   ALQI    accounts   be

frozen, and thus Williams knew the United States government knew

about    those     accounts.   As    the    district    court       reasoned,   if

Williams had known about the FBAR requirement, there would have

been    little    incentive    for   him    under   those    circumstances      to

refuse to comply with it as of June 2001.

       Additional evidence supporting the district court’s finding

includes the undisputed evidence that, after June 2001, Williams

and his advisors began formal disclosures of the ALQI accounts,

including the filing of amended income tax returns, but they did

not    backfile    FBAR   reports.   These    disclosures     included     direct

disclosures of the ALQI accounts to the IRS in January 2002. The

district court explained the significance of this disclosure to

the IRS: “[t]hough made after the June 30, 2001” FBAR filing

deadline, the disclosure “indicates to the Court that Williams

continued to believe the assets had already been disclosed. That

is, it makes little sense for Williams to disclose the ALQI

accounts    merely    six   months   after    the   deadline    he     supposedly

willfully violated.” J.A. 378. This was a logical and supported

finding for the district court to make on the record before it.



                                       17
     The district court’s decision was set forth in a detailed

opinion     that     fully   explained      the   evidence    supporting    its

findings. Had I been sitting as the trier of fact in this bench

trial, I may well have decided differently than did the district

judge. But I cannot say that I am left with a “definite and firm

conviction” that he was mistaken. Thus, I cannot agree with the

majority that the Government has established clear error.

     I also address briefly the two other grounds for reversal

asserted    by     the   United   States    and   rejected   by   the   district

court: collateral estoppel and judicial estoppel. 2 Specifically,

the Government points to Williams’ criminal conviction and, in

particular, the language in his plea allocution, see Maj. Op. at

6, as requiring a finding that both types of estoppel apply. I

disagree.

     We review the district court’s denial of judicial estoppel

only for abuse of discretion, see Jaffe v. Accredited Sur. &

Cas. Co., 294 F.3d 584, 595 n.7 (4th Cir. 2002), and its denial

of collateral estoppel de novo, Tuttle v. Arlington Cnty. Sch.

Bd., 195 F.3d 698, 703 (4th Cir. 1999).

     2
       In light of its holding that the district court clearly
erred in finding the violation not willful, the majority did not
have cause to address either estoppel argument. Because I would
affirm the district court and the Government contends that both
types of estoppel prevent Williams from challenging the
willfulness of his violation, it is necessary to address those
points.



                                       18
       Judicial estoppel generally requires three elements:

       First, the party sought to be estopped must be seeking
       to adopt a position that is inconsistent with a stance
       taken in prior litigation. The position at issue must
       be one of fact as opposed to one of law or legal
       theory. Second, the prior inconsistent position must
       have been accepted by the court. Lastly, the party
       against whom judicial estoppel is to be applied must
       have intentionally misled the court to gain unfair
       advantage.

Zinkand v. Brown, 478 F.3d 634, 638 (4th Cir. 2007) (citations

and internal quotations omitted).

       Similarly,   a   party   seeking    to   apply    collateral    estoppel

must establish five elements:

       (1) the issue sought to be precluded is identical to
       one previously litigated; (2) the issue [was] actually
       determined in the prior proceeding; (3) determination
       of the issue [was] a critical and necessary part of
       the decision in the prior proceeding; (4) the prior
       judgment [is] final and valid; and (5) the party
       against whom estoppel is asserted . . . had a full and
       fair opportunity to litigate the issue in the previous
       forum.

Sedlack v. Braswell Servs. Grp., Inc., 134 F.3d 219, 224 (4th

Cir. 1998); Collins v. Pond Creek Mining Co., 468 F.3d 213, 217

(4th   Cir.   2006).    “The    doctrine   .    .   .   may   apply   to   issues

litigated in a criminal case which a party seeks to relitigate

in a subsequent civil proceedings . . . . [For example], a

defendant is precluded from retrying issues necessary to his

plea agreement in a later civil suit.” United States v. Wight,

839 F.2d 193, 196 (4th Cir. 1987).

       In my view, the district court correctly concluded that

                                      19
     there remains a factual incongruence between those
     facts necessary to [Williams’] guilty plea to tax
     evasion and those establishing a willful violation of
     § 5314. That Williams intentionally failed to report
     income in an effort to evade income taxes is a
     separate matter from whether Williams specifically
     failed   to   comply  with   disclosure  requirements
     contained in § 5314 applicable to the ALQI accounts
     for the year 2000.

J.A. 379. Put differently, Williams never allocuted to failing

to file the FBAR form, and certainly did not admit willfully

failing    to    file      it.    Neither          his    plea      agreement     nor   his

allocution even referred to the FBAR or § 5314. Indeed, the

Treasury Department itself notes that the FBAR is a separate

reporting requirement and not a tax return, nor is it to be

attached to a taxpayer’s tax returns. See J.A. 225, 237, 246. In

short,    pleading       guilty    to    hiding          the   existence     of   the   two

accounts for income tax purposes does not necessarily establish

that Williams willfully failed to file a FBAR for 2000. Indeed,

other separate and distinct tax penalties (including penalties

for fraud) were separately sought by the IRS from Williams for

his failure to report the income in the accounts, pursuant to 26

U.S.C.    §§ 6662    and    6663.       See   Williams         v.   Comm’r   of   Internal

Revenue, 97 T.C.M. (CCH) 1422, *4 (Apr. 16, 2009). The FBAR-

related penalty is not a tax penalty, but a separate penalty for

separate conduct.

     Thus,      viewed     as    distinct      issues,         collateral    estoppel    is

inapplicable here because Williams’ willfulness in failing to

                                              20
file    the    FBAR    is    not    an    issue   “identical       to   one    previously

litigated.”         Sedlack,        134   F.3d    at      224.     Likewise,    judicial

estoppel       is     inapplicable         because        there    is   nothing     about

Williams’ stance on willfulness here that is “inconsistent with

[the] stance taken” in his criminal proceedings. Zinkand, 478

F.3d at 638. Accordingly, I would further hold that the district

court    did    not    err     in    declining       to    apply    either     collateral

estoppel or judicial estoppel.

       For all of these reasons, I respectfully dissent and would

affirm the judgment of the district court.




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