     Case: 16-20409      Document: 00514523234         Page: 1    Date Filed: 06/21/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals

                                      No. 16-20409
                                                                                Fifth Circuit

                                                                              FILED
                                                                          June 21, 2018

UNITED STATES OF AMERICA,                                                Lyle W. Cayce
                                                                              Clerk
              Plaintiff - Appellee

v.

TAMNY DENISE WESTBROOKS, also known as Tammy Westbrooks, also
known as Tammy Westbrook,

              Defendant - Appellant




                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 4:14-CR-355-1


ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before STEWART, Chief Judge, and HIGGINBOTHAM and COSTA, Circuit
Judges.
PER CURIAM: *
       A jury convicted Tamny Denise Westbrooks of one count of obstructing
the tax laws and three counts of filing fraudulent tax returns. We affirmed all
four convictions. 858 F.3d 317 (5th Cir. 2017). On the obstruction count, we



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 16-20409
rejected Westbrook’s argument that 18 U.S.C. § 7212(a) only reaches conduct
that interferes with an ongoing IRS proceeding. Id. at 322–24. In a case in
which the Second Circuit had adopted that same view, the Supreme Court held
that the tax obstruction statute does require that the obstructive conduct
occurr during the pendency of a “particular administrative proceeding, such as
an investigation, an audit, or other targeted administrative action,” Marinello
v. United States, 138 S. Ct. 1101, 1109 (2018), or at least when such an IRS
action is foreseeable to the defendant, id. at 1110. The Supreme Court then
granted the petition for certiorari in this case, vacated our prior judgment, and
remanded for reconsideration in light of Marinello.
         The government concedes that the obstruction conviction is no longer
valid.    It correctly points out that at least one aspect of the obstruction
allegations—that Westbrook provided false testimony at a show cause hearing
in federal court—satisfies the proceeding requirement as that hearing was
held to assess her compliance with an IRS subpoena for tax records. But most
of the other alleged obstruction, which focused on her paying employees in cash
and failing to keep adequate records, does not satisfy Marinello. Because the
jury believed it could consider all of this conduct as part of the obstruction
count, and we do not know which of the allegations it found to be proven, the
obstruction conviction must be vacated.
         The disagreement between the parties is about what the vacatur of the
obstruction conviction means for the three “false return” convictions.
Westbrook contends that the improper obstruction count contaminated the
false return counts.     This same argument about “spillover prejudice” was
raised in Governor Edwin Edwards’s appeal of his convictions because an
intervening Supreme Court decision had invalidated the legal basis for some
of the mail fraud counts. United States v. Edwards, 303 F.3d 606, 638–40 (5th
Cir. 2002) (citing Cleveland v. United States, 531 U.S. 12 (2000)). We noted
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                                 No. 16-20409
that the concept came from cases challenging a failure to grant a pretrial
severance, and we had never decided whether “spillover from invalid claims
can be a basis for granting a new trial.” Id. at 639. We did not resolve that
question in Edwards because even assuming the theory applied in this
“retroactive misjoinder” situation, the improper taint exists only if the counts
the jury should not have heard allowed the introduction of evidence that would
not have otherwise been admissible. Id. at 640. That was not the case in
Edwards, id., and it is not the case here. Evidence concerning cash payments,
shoddy or nonexistent bookkeeping, and prior false returns was admissible
even without the obstruction count as either intrinsic to the false return counts
or permissible Rule 404(b) evidence that showed Westbrooks’ plan, fraudulent
intent, and absence of mistake. United States v. Morgan, 117 F.3d 849, 861
(5th Cir. 1997); FED. R. EVID. 404(b). The testimony about Westbrook’s false
testimony at the show cause hearing was, as we have already explained, a
permissible basis for the obstruction count and, even if not, would have been
admissible as probative of Westbrook’s intent.        Because the now-invalid
obstruction count did not allow the jury to consider evidence that would not
have been allowed at a trial focused on just the false return counts, the latter
will not be vacated. Edwards, 303 F.3d at 640.
      The final question relates to the sentences for those false return
convictions we are upholding. The government agrees that we should vacate
those sentences and remand for resentencing in light of the vacatur of the
obstruction count. That new sentencing will include but not be limited to
reconsideration of the restitution amount which the government concedes
should be reduced as it included amounts based on returns filed only during
the time period covered by the obstruction count.




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                                No. 16-20409
                                    ***
The conviction on Count One is VACATED. The sentences for Counts Two
through Four are VACATED. The case is REMANDED for resentencing and
entry of judgment consistent with this opinion.




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