09-2816-cr(L), 09-3103-cr(CON), 09-3152-cr(CON)
United States v. Murtaugh

                                UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
         Rulings by summary order do not have precedential effect. Citation to a summary order
 filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
 Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document filed
 with this court, a party must cite either the Federal Appendix or an electronic database (with the
 notation “summary order”). A party citing a summary order must serve a copy of it on any party
 not represented by counsel.
         At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
 the 28th day of June, two thousand ten.

 Present:
             RALPH K. WINTER,
             JOSÉ A. CABRANES,
             RICHARD C. WESLEY ,
                          Circuit Judges.
 _______________________________________
 UNITED STATES OF AMERICA ,
                  Appellee,
                  v.                                              Nos. 09-2816-cr, 09-3103-cr, 09-3152-cr

 RICHARD R. MURTAUGH , JEWEL KIDDER GILBERT, KAYE A. MASON ,
                  Defendants-Appellants.
 ________________________________________
 FOR APPELLEE:                                    ALEXANDER P. ROBBINS, Attorney, Tax Division (Alan
                                                  Hechtkopf, Attorney, Tax Division; Gregory Victor
                                                  Davis, Attorney, Tax Division; John DiCicco, Acting
                                                  Assistant Attorney General; Richard S. Hartunian,
                                                  United States Attorney for the Northern District of New
                                                  York, on the brief), United States Department of Justice,
                                                  Washington, DC.
 FOR APPELLANT:                                   BRUCE R. BRYAN , Syracuse, NY
                                                        for Defendant-Appellant Richard R. Murtaugh.

                                                  GEORGE F. HILDEBRANDT, Syracuse, NY
                                                       for Defendant-Appellant Jewel Kidder Gilbert.



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Appeal from judgments of the United States District Court for the Northern District of New York
(Frederick J. Scullin, Jr., Judge).

    UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgments of the District Court are AFFIRMED.

        Defendants Richard R. Murtaugh and Jewel Kidder Gilbert appeal from a judgment of the
District Court convicting defendants of various charges.1 Specifically, Murtaugh appeals from a June
29, 2009 judgment convicting him after a jury trial of two counts of tax evasion in violation of 26 U.S.C
§ 7201 and four counts of subscription to a false tax return in violation of 26 U.S.C. § 7206(1) and
sentencing him principally to a term of twenty one months’ imprisonment. Gilbert appeals from a July
9, 2009 judgment convicting her of one count of perjury before a federal grand jury in violation of 18
U.S.C. § 1623(a) and sentencing her principally to a term of four months’ imprisonment.

         On appeal, Murtaugh argues that the District Court erred by (1) applying an adjustment under
the United States Sentencing Guidelines (“the Guidelines”) for obstruction of justice; (2) admitting into
evidence certain records seized; (3) concluding that there was sufficient evidence to support his
conviction; (4) allowing the prosecution to discuss Murtaugh’s silence during a search of his office; (5)
failing to instruct the jury on the law regarding when a Form 1099 is issued for rental income; and (6)
failing to require that the jury begin deliberations anew after a substitute juror joined the deliberations.
On appeal, Gilbert argues that the District Court erred by (1) concluding that there was sufficient
evidence to support her conviction and (2) instructing the jury that it “should not hesitate” to acquit if
the jurors had a reasonable doubt as to Gilbert’s guilt. We assume the parties’ familiarity with the
underlying facts and procedural history of this case.

        First, both Murtaugh and Gilbert argue that the evidence presented at trial was not sufficient to
convict them. Because “the task of choosing among competing, permissible inferences is for the [jury
and] not for the reviewing court,” United States v. McDermott, 245 F.3d 133, 137 (2d Cir. 2001), we are
required to review the evidence “in the light most favorable to the government,” United States v. Gaskin,
364 F.3d 438, 459 (2d Cir. 2004), and “resolve all issues of credibility in favor of the jury’s verdict,”
United States v. Desena, 287 F.3d 170, 177 (2d Cir. 2002). See generally Jackson v. Virginia, 443 U.S. 307,
318-19 (1979). At trial, the Government introduced ample evidence that could support the jury’s
verdict. Applying the deferential standard set forth above, we conclude that there was sufficient
evidence to support the jury’s guilty verdict challenged here.

        Next, Murtaugh challenges the constitutionality of the search of his office and the subsequent
admission of evidence found during that search. Specifically, Murtaugh argues that the search warrant
issued was not supported by probable cause and that it was unreasonable for the police officers to rely


         1
         We note that defendant Kaye A. Mason has withdrawn her appeal with prejudice. See
 Mandate, United States v. Mason, No. 09-3152-cr (2d Cir. Jan. 29, 2010).

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on this search warrant. Warrant-based searches are presumptively reasonable. See Golino v. New Haven,
950 F.2d 864, 870 (2d Cir. 1991). Even if Murtaugh successfully rebutted this presumption that the
search was reasonable, he fails to show any prejudice arising from that search. To the extent—if
any—that the search was in error, that error was harmless because the Government presented sufficient
evidence that was not obtained during the search to support Murtaugh’s conviction. See United States v.
Reifler, 446 F.3d 65, 90 (2d Cir. 2006).

         Third, Murtaugh argues that the District Court erred in allowing the Government to discuss
Murtaugh’s silence during the search of his office. Murtaugh testified to his silence during the search in
the course of his direct examination during his defense. The Government did not cross-examine him
on this point. Because Murtaugh himself introduced evidence of his refusal to speak to the Internal
Revenue Service agents, he cannot now claim that the District Court erred in allowing him to admit
that testimony. See Ohler v. United States, 529 U.S. 753, 755-59 (2000) (applying the general rule that “a
party introducing evidence cannot complain on appeal that the evidence was erroneously admitted”).

          Fourth, Murtaugh argues that the District Court erred in refusing to instruct the jury on the law
governing when a Form 1099 is required. We review a district court’s jury instructions de novo. United
States v. Rivera, 546 F.3d 245, 250 (2d Cir. 2008). The defendant bears the burden of showing that the
charge given prejudiced defendant. See United States v. Abelis, 146 F.3d 73, 82 (2d Cir. 1998). Even if it
were error for the District Court to decline to instruct the jury on the question of when a Form 1099 is
required, Murtaugh has failed to show how that error prejudiced him. We therefore conclude that any
error in declining to give the instruction was harmless.

        Fifth, Murtaugh argues that the District Court erred by failing to instruct the jury to begin
deliberating anew after an alternate juror joined the deliberations. The District Court did, in fact,
instruct the jury to begin deliberating anew when the alternate juror first joined the jury. Murtaugh
argues here that the District Court should have instructed the jury to begin deliberations anew again
when a note from the jury suggested, Murtaugh argues, that the jury had not heeded the District
Court’s instruction to begin deliberating anew. Murtaugh, however, fails to show that the jury did not
begin deliberations anew. He relies only on the fact that the jury asked a question immediately upon
beginning deliberations with the new juror. He neglects to note that the jury issued its verdict only
after an additional seven hours of deliberation. Because the jury deliberated for seven hours with the
alternate juror, we cannot conclude that the jury failed to re-deliberate. It was therefore not error for
the District Court to accept the jury’s verdict.

        Sixth, Murtaugh argues that the District Court erred in imposing an enhancement for
obstruction of justice. The District Court may impose a two-level enhancement on a defendant if it
finds that the defendant willfully attempted to obstruct or impede the administration of justice in
connection with the offense of conviction. See U.S.S.G. § 3C1.1 (2008). We review de novo the
interpretation of the Guidelines, but we review the related findings of fact for clear error. United States

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v. Fiore, 381 F.3d 89, 92 (2d Cir. 2004). The district court need only find the facts to support the
imposition of an enhancement by a preponderance of the evidence, United States v. Carty, 264 F.3d 191,
194 (2d Cir. 2001), and the district court satisfies its obligation to make specific factual findings when it
adopts the findings in the Presentence Report, United States v. Molina, 356 F.3d 269, 275 (2d Cir. 2004).
Here, the District Court rested its imposition of the obstruction of justice enhancement on two
individually sufficient findings: (1) Murtaugh obstructed justice by giving a false explanation to his
accountant and (2) Murtaugh induced Gilbert and Mason to commit perjury. With respect to the
second ground for imposing the enhancement, the jury had convicted Gilbert and Mason of perjury, so
the District Court needed to find only that Murtaugh had induced the perjury to merit imposing the
enhancement. The District Court adopted the findings set forth in the Presentence Report, including
the finding that Murtaugh had “counsel[ed] others . . . to conceal the crime through false
representations.” We conclude that this finding was sufficient to support the imposition of the
obstruction of justice enhancement.

        Finally, Gilbert argues that the District Court erred in instructing the jury that it “should not
hesitate to acquit” her if the Government failed to prove her guilt beyond a reasonable doubt. If the
“alleged charging error goes to the burden of proof, we will reverse a conviction if there is a ‘reasonable
likelihood’ that the jury understood the instructions to permit a guilty verdict based on less than proof
beyond a reasonable doubt.” United States v. Shamsideen, 511 F.3d 340, 345 (2d Cir. 2008). Because
Gilbert did not object to this instruction below, we will review it for plain error. See United States v.
Deandrade, 600 F.3d 115, 119 (2d Cir. 2010). Upon review of the relevant portion of the charge, we
cannot conclude that it was error, much less plain error, for the District Court to instruct the jury that it
“should not hesitate” to acquit if the Government fails to meet its burden.

                                             CONCLUSION

       We have considered all of defendants’ arguments and find them to be without merit.
Accordingly, for the reasons stated above, the judgments of the District Court are AFFIRMED.

                                                 FOR THE COURT:
                                                 Catherine O’Hagan Wolfe, Clerk




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