               Case: 13-13023      Date Filed: 12/02/2014      Page: 1 of 32


                                                                     [DO NOT PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 13-13023
                              ________________________

                      D.C. Docket No. 4:12-cr-00017-RH-CAS-1



UNITED STATES OF AMERICA,

                                                                        Plaintiff-Appellee,

                                          versus

KENNETH L. BARBER,

                                                                     Defendant-Appellant.

                              ________________________

                     Appeal from the United States District Court
                         for the Northern District of Florida
                           ________________________

                                   (December 2, 2014)

Before HULL and MARCUS, Circuit Judges, and TOTENBERG, ∗ District Judge.

PER CURIAM:


       ∗
       Honorable Amy Totenberg, United States District Judge for the Northern District of
Georgia, sitting by designation.
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      After a jury trial, Kenneth L. Barber was convicted of one count of

conspiracy to defraud the United States by filing false tax returns, in violation of

18 U.S.C. § 371; six counts of aiding or assisting in the preparation of materially

false tax returns, in violation of 26 U.S.C. § 7206(2) and 18 U.S.C. § 2; four counts

of wire fraud, in violation of 18 U.S.C. §§ 1343 and 2; and three counts of making

false statements to a federally insured financial institution, in violation of 18

U.S.C. § 1014. The district court imposed a total sentence of 87 months’

imprisonment. After careful review of the record and the briefs, and with the

benefit of oral argument, we affirm Barber’s convictions and sentences.

                          I. FACTUAL BACKGROUND

      Defendant Barber’s conspiracy, tax fraud, and wire fraud convictions arise

out of his ownership and operation of a tax preparation business. Barber and his

employees prepared and filed fraudulent income tax returns to maximize their

clients’ refunds, and thus collect more preparation fees. Barber’s false-statement

convictions arise out of the discrepancies in reported income and tax between the

individual and corporate tax returns he submitted to Wachovia Bank in support of

three loan applications and the actual tax returns he filed with the Internal Revenue

Service (“IRS”).

      Because defendant Barber challenges the sufficiency of the evidence as to all

of his convictions, we describe the trial evidence in detail.


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A.    Barber’s Tax Preparation Business: 2006-2009

      In order to electronically file tax returns for clients, a tax preparer must

obtain an Electronic Filing Identification Number (“EFIN”) from the IRS. In

September 2005, Barber applied for an EFIN for his tax preparation business,

Kenneth Barber & Associates (“KBA”), but was denied. Two weeks after the IRS

denied Barber’s application, Barber’s daughter applied for an EFIN and was

approved for her tax preparation business, KLB Group Developers, Inc. (“KLB

Group”). Barber’s daughter then contracted out KLB Group’s business to Barber.

All of the fraudulent tax returns submitted electronically by Barber’s business were

filed using KLB Group’s assigned EFIN.

      Defendant Barber, who owned and operated both KLB Group and KBA,

opened an office on West Brevard Street in Tallahassee, Florida. Barber hired

multiple employees to work in his office as tax return preparers, including Shavita

Davis, Anthony Barber (“Anthony”), Hope Wynn, and Shericka Jennings, all of

whom testified against Barber at trial. Before working for Barber, Davis, Anthony,

Wynn, and Jennings had no prior experience preparing tax returns. Barber paid his

employees an hourly wage that did not exceed $10 per hour.

      Davis worked for defendant Barber from 2005 to 2009. During her

employment, Barber taught Davis how to do the following to client tax returns:

reuse fraudulent information from previous years’ returns; report false household


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help (“HSH”) income in round numbers such as $2500, $3500, $4500, $5500,

$6500, and $7500 to generate the largest possible refund; report false Schedule C 1

income and expenses; inflate wages; create fictitious employee W-2s using

employer identification numbers found online; and claim deductions for false

dependents. Davis would find dependents to claim on the return and charge the

client between $500 and $1500. Barber later told Davis to teach Anthony how to

sell false dependents (i.e., “how to hustle”).

        Defendant Barber told Davis to input $2500 to maximize the education

credit on “just about” every return and to falsify other credits, such as childcare

expenses and Schedule A deductions. Barber asked Davis to train several other

employees how to prepare false returns, including Anthony, Wynn, and Jennings.

Barber charged clients higher preparation fees for returns containing false

information. When clients questioned the fees, Barber instructed Davis to tell

them not to complain because they did not make money anyway.

        Anthony, who is not related to defendant Barber, worked for Barber from

2007 to 2010. During Anthony’s employment, Barber’s office prepared between

500 and 1000 tax returns each year, about 90 percent of which were false. Barber

referred clients to Anthony and other employees but also prepared returns himself.

Normally, Barber electronically transmitted the returns to the IRS after Davis

        1
            Self-employed taxpayers report their business income and expenses on a Schedule C
form.
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reviewed them for errors. All of the preparation fees received from clients went

into business accounts controlled by Barber. Clients paid Barber an average of

$300 for each return.

      Both defendant Barber and Davis trained Anthony to prepare false returns.

Though Davis was more “hands-on” in her training, Barber had instructed Davis to

train Anthony. On one occasion, Anthony told Barber that he was concerned

Davis was stealing because a client gave Davis a large sum of cash. Barber

laughed and told Anthony to “tell [Davis] to teach you how to hustle” and “show

you what she knows.” Davis told Anthony that she had sold that client a false

dependent for $1000, a practice Barber referred to as “hustling.” Davis and Barber

gave Anthony numbers to report as false HSH income, a practice Barber

encouraged because it increased the client’s refund amount. For the same reason,

Anthony was trained to claim the maximum $2500 education credit and falsify

other items such as filing status, childcare expenses, and charitable contributions.

Barber eventually asked Anthony to train his other employees how to prepare false

returns.

      Wynn worked for defendant Barber for about six weeks from December

2008 to January 2009. Barber, Davis, and another employee, Meshundra Turner,

trained Wynn how to adjust Schedule C income to obtain the highest tax refund,

regardless of the amount actually given by the client.


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      Jennings, who worked for defendant Barber from August 2006 to April

2008, was aware that false returns were being prepared at Barber’s office. Barber

trained Jennings to include false HSH income on tax returns and to claim education

credits even if the client did not have an eligible student. While Jennings did not

personally sell any false dependents, she knew that other preparers did so.

B.    IRS Fraud Investigation: 2007-2009

      In December 2007, IRS agent Timothy Evans went to defendant Barber’s

Brevard Street office to conduct a scheduled compliance check on KLB and KBA.

When Evans called to set up an appointment and asked to speak with the owner,

the receptionist transferred him to Barber. During the compliance check, Evans

did not deal with anyone other than Barber.

      As part of the first compliance check, Evans reviewed 100 client files and

noticed that 47 of the 100 returns reported a total of $287,000 in HSH income.

HSH income, which is income earned from working in someone else’s home, is

not very commonly reported. When Evans pointed this out, Barber stated that any

income from self-employment should be reported as Schedule C income instead.

Evans testified that reporting HSH income instead of the same amount of Schedule

C income generates a much higher refund.

      During Evans’s two-day visit, defendant Barber gave his employees a list of

clients and instructed them to clean their files of any documents (such as paycheck


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stubs and W-2s) that were inconsistent with the false information reported on the

tax returns filed with the IRS.

      Evans’s review of the almost 1300 tax returns filed by Barber’s business in

2007 revealed several red flags. The 2007 returns reported almost $2.3 million in

HSH income in round numbers such as $2500, $3500, $4500, $5500, $6500, and

$7500, with many repeated amounts. Evans also noticed that some returns claimed

different dependents each year for the same individual. The reported familial

relationships, which included many nieces and nephews, were poorly documented

and were of questionable eligibility. Yet other returns listed Barber’s P.O. Box

instead of the client’s address. When Evans asked Barber why some of the returns

listed his P.O. Box as the address, Barber explained that it was sound business

practice to have refunds come back to him to ensure that he received his

preparation fees from clients.

      After being fined after the IRS’s first compliance check, defendant Barber

instructed Davis and Anthony to stop using false HSH income and instead use false

Schedule C income. Later, Barber taught Davis and Anthony to report false

Schedule C expenses as well as false income to make the returns appear more

legitimate.

      In January 2009, Evans conducted a second, unannounced compliance check

on KLB and KBA, during which he met with defendant Barber. This time, Evans


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did not see any suspicious HSH income but noticed that many returns listed

unsupported Schedule C income. The files lacked any supporting documentation

from the client of income earned from self-employment or expenses incurred to

operate the purported business. During these compliance checks, Evans observed

that Barber was in charge of the business and Barber admitted that he trained his

tax preparers. After the second compliance check, Evans referred Barber to the

IRS’s criminal investigations unit.

      On November 13, 2009, agents executed a search warrant at defendant

Barber’s Brevard Street office. Agents seized around 55 boxes of client files and

business records, as well as Barber’s individual and corporate tax returns.

C.    2009 Business Lease

      Shortly after the execution of the search warrant, defendant Barber arranged

for Hillard Goldsmith to take over his tax preparation business. On December 1,

2009, Goldsmith entered into a commercial lease with Barber for the use of

Barber’s Brevard Street office and client base at a monthly rent of $5000. At

Barber’s recommendation, Goldsmith hired two of Barber’s employees, Anthony

and Meshundra Turner, to work as tax return preparers for Goldsmith’s business.

      Even after executing the December 1, 2009 lease, defendant Barber

maintained an office within the Brevard Street building, directly across from

Goldsmith’s office, and went to that office daily. Barber continued to interact with


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clients and participate in the preparation of fraudulent tax returns. In the beginning

of 2010, the IRS learned that returns were being filed from the Brevard Street

office using Goldsmith’s EFIN after KLB Group’s EFIN was expelled. Goldsmith

rented Barber’s office space until the spring of 2011.

D.    Specific False Returns

      At trial, the government introduced evidence as to each count of aiding or

assisting in the preparation of materially false tax returns and wire fraud against

defendant Barber. The clients, whose false returns were identified in the

superseding indictment, testified against Barber.

      As charged in Counts 16, 17, 44, and 45, defendant Barber prepared and

filed Shereka Green’s 2007 and 2008 tax returns. Barber told Green that he could

“boost [the refund amount] up” but did not elaborate. Green’s 2007 return falsely

stated Schedule C income, when she did not have her own business. Green’s 2008

return listed false HSH income. As charged in Counts 7 and 37, Barber prepared

and filed Angela Byrd’s 2006 tax return, which falsely stated her Schedule C

income and expenses and reported false HSH income. As charged in Counts 21

and 47, Barber prepared and filed Roosevelt Jones’s 2006 tax return, which falsely

stated his Schedule C income and expenses. As charged in Count 32, Barber

prepared Ninika Washington’s 2005 tax return, which falsely stated her income

and listed false HSH income. As charged in Count 12, Barber prepared Janet


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Ford’s 2006 return, which listed an unknown person as Ford’s dependent and

claimed a false education expense.

E.    Estimated Total Loss Amount

      In addition to evidence of the specific conduct charged in the superseding

indictment, the government presented evidence of the total tax loss that resulted

from defendant Barber’s fraud scheme. IRS agent Douglas Franzen reviewed a

database of 434 tax returns that reported HSH income, all prepared by Barber’s

business for the tax years 2006 through 2008. HSH was a very rare type of income

that Franzen did not recall seeing on returns prior to this case. To calculate the

total amount of tax loss, Franzen conducted a statistical sampling of 105 of the 434

tax returns that reported HSH income. The sampling was then projected onto the

total population of 434. Franzen opined, with 95% certainty, that these 434 returns

from tax years 2006 through 2008 resulted in a loss of over $700,000, which was a

very conservative estimate.

F.    Barber’s 2006 and 2007 Loan Applications

      During the course of the criminal investigation, the IRS obtained copies of

defendant Barber’s own tax returns. The IRS learned that Barber submitted his

individual and corporate tax returns to apply for three business loans from

Wachovia Bank (now known as Wells Fargo Bank), a federally insured financial

institution. The November 13, 2009 search warrant executed at Barber’s Brevard


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Street office recovered a portion of KBA’s 2005 corporate tax return. This

recovered return matched the 2005 corporate return in Wachovia’s records but not

the 2005 corporate return filed with the IRS.

       Former Wachovia banker Sherwood Brown processed the loans for Barber,

who was the guarantor for loans on behalf of KBA. Wachovia financed Barber’s

purchase of the Brevard Street office. Barber submitted copies of seven tax returns

as proof of income, as required for approval of the loans. Barber submitted his

2005 individual return for the first loan in the amount of $70,000, which closed in

August 2006. Barber submitted his 2004 and 2005 individual and corporate

returns for the second loan in the amount of $200,000, which closed in December

2006. Barber submitted his 2006 individual and corporate returns for the third loan

in the amount of $60,000, which closed in 2007.

       The copies of the tax returns Barber submitted to Wachovia Bank reflected

substantially greater income than the returns Barber filed with the IRS.

Specifically, the differences in reported income between the returns given to

Wachovia and the returns filed with the IRS were as follows: (1) $45,256 versus

$16,148 (2005 individual);2 (2) $42,760 versus $20,061 (2004 individual); (3)

$84,632 versus negative $3,360 (2004 corporate); (4) $99,923 versus negative

$30,077 (2005 corporate); (5) $61,128 versus $16,128 (2006 individual); and (6)

       2
        As noted above, Barber submitted his 2005 individual tax return to Wachovia Bank on
two separate occasions, in connection with both the first and second loans.
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$111,917 versus negative $25,648 (2006 corporate). According to Brown,

Wachovia Bank would not have approved the first loan in August 2006 if it had

seen the income figures actually reported to the IRS.

        On cross-examination, IRS agent Regina Merchant admitted that she could

not tell the jury whether the larger income figures in the returns given to Wachovia

Bank represented Barber’s actual income. Although the IRS did not investigate

Barber’s actual income, it was apparent that Barber’s business earned substantial

income each of the years under investigation.

                          II. PROCEDURAL HISTORY

A.      Superseding Indictment

        Barber, Anthony, and Davis were charged for their involvement in the tax

fraud scheme. After Anthony pled guilty to several counts of tax fraud, the grand

jury issued a 58-count superseding indictment against Barber and Davis on June 6,

2012.

        The superseding indictment charged defendant Barber with 15 counts: one

count of conspiracy to defraud the United States by filing false tax returns (Count

1, or “conspiracy count”); seven counts of aiding or assisting in the preparation of

materially false tax returns (Counts 7, 8, 12, 16, 17, 21, and 32, or “tax fraud

counts”); four counts of wire fraud (Counts 37, 44, 45, and 47, or “wire fraud

counts”); and three counts of making false statements on a loan application to a


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federally insured financial institution (Counts 56, 57, and 58, or “false-statement

counts”). Count 8 was later dismissed on the government’s motion, leaving 14

counts for trial.

B.     Motion to Sever False-Statement Counts

       On December 21, 2012, defendant Barber filed a pre-trial motion to sever

the false-statement counts from the conspiracy, tax fraud, and wire fraud counts,

pursuant to Federal Rule of Criminal Procedure 14. Barber argued that evidence

that he used a “phony tax return to support a bank loan” would greatly prejudice

his ability to get a fair trial on the remaining counts.

       At a pre-trial conference, the district court stated that severance was “very

unlikely.” Even if the false-statement counts were severed, the evidence

concerning Barber’s false statements would likely be admitted under Federal Rule

of Evidence 404(b). On April 3, 2013, the district court entered an order denying

Barber’s motion to sever counts.

       Defendant Barber renewed his motion to sever at trial. Again, the district

court reasoned that even if it severed the counts, it nevertheless would have

allowed evidence that Barber submitted false tax returns to Wachovia Bank as

inextricably intertwined with his tax fraud scheme, or at least as relevant to

Barber’s intent and knowledge of the scheme under Rule 404(b). The denial of

severance did not appear to prejudice Barber. The district court reasoned that the


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jury should have all of the evidence and it was clear that the jury was “looking at

those counts separately as they should.”

C.    Trial

      The district court severed Davis’s and Barber’s trials, and Davis was tried

first. Davis pled guilty to the charges against her during her trial. Barber

proceeded to trial on April 8, 2013.

      After closing arguments, the district court instructed the jury on the charged

offenses. In relevant part, to find defendant Barber guilty on the false-statement

counts, the government needed to prove the following facts beyond a reasonable

doubt: (1) that Barber “submitted a false federal income tax return to a bank as

charged in the count under consideration,” (2) that Barber “knew the return was

false,” (3) that Barber “acted with the intent to influence the bank’s action on his

loan request,” and (4) that “the bank’s deposits were insured by the Federal

Deposit Insurance Corporation.” (emphasis added). The district court further

instructed the jury to consider each of the 14 counts against Barber separately, as

“[the] verdict on any one count will not determine [the] verdict on any other

count.”

      During their deliberations, the jury submitted a written question to the

district court: “Does submitting a different tax return to a bank than what was filed

with the IRS automatically make it a false tax return?” The district court reasoned


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that the untrue statement given to Wachovia Bank was not the amount of income,

but that the submitted return was the return that Barber had filed with the IRS. The

jury could find that the submission of a counterfeit tax return constituted an

implicit false statement. Accordingly, the district court gave the jury the following

answer: “You must decide based on the evidence and my earlier instructions

whether tax returns submitted to a bank was [sic] false. I cannot answer your

question more specifically.”

      The jury found defendant Barber guilty on all 14 counts.

D.    Motion for Judgment of Acquittal

      Defendant Barber orally moved for a judgment of acquittal on all counts

based on sufficiency of the evidence, pursuant to Federal Rule of Criminal

Procedure 29.

      As to the conspiracy count, Barber contended that the government “failed to

make a prima facie case or a case that a reasonable jury would . . . agree was

sufficient proof of guilt,” but did not elaborate on that argument. As to the tax

fraud and related wire fraud counts, Barber argued that (1) the government failed

to identify the number of tax returns filed when Goldsmith was leasing and running

the business in 2010, and (2) the evidence did not show that Barber personally

filed, directed, or otherwise influenced the filing of false tax returns.




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      As to the false-statement counts, defendant Barber argued that there was

more evidence to show that the copies of the tax returns he submitted to Wachovia

Bank reflected his true income. Barber ran “multifaceted enterprises” and

prepared thousands of tax returns over a four-year period, making about $300 in

fees per return. Moreover, Wachovia Bank did not consider whether Barber filed

a tax return in making its loan decision.

      The district court denied defendant Barber’s motion for a judgment of

acquittal on the conspiracy count, finding sufficient evidence for a reasonable jury

to conclude that Barber conspired with Davis and Anthony to submit false tax

returns. The district court took Barber’s motion under advisement on the

remaining counts.

      On April 11, 2013, the district court entered a written order denying

Barber’s motion for a judgment of acquittal in its entirety. As to the tax and wire

fraud counts, there was sufficient evidence that Barber either directly committed or

participated in each crime, or that each crime was committed by a co-conspirator

during and within the scope of the conspiracy. As to the false-statement counts,

the district court acknowledged Barber’s argument that it was at least as likely that

Barber filed false tax returns with the IRS as that he submitted false returns to

Wachovia Bank. Nonetheless, the jury could have reasonably concluded that

Barber’s submission of a tax return to Wachovia Bank was a false representation


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that the return was authentic, regardless of whether the actual information on the

unauthentic return was accurate.

E.    Sentencing

      According to the presentence investigation report (“PSI”), defendant

Barber’s tax fraud scheme caused an actual loss of $131,781 to the government,

with an intended loss of $791,405.

      The PSI grouped the conspiracy, tax fraud, and wire fraud counts together

and recommended three adjustments to the base offense level of 7: (1) a 14-level

increase under U.S.S.G. § 2B1.1(b)(1)(H) for an intended loss greater than

$400,000 but less than $1,000,000, (2) a 2-level increase under U.S.S.G.

§ 2B1.1(b)(11)(A)(ii) for the possession or use of an authentication feature (social

security numbers), and (3) a 4-level role increase under U.S.S.G. § 3B1.1(a) for

being an organizer or leader of a criminal activity that involved five or more

participants. Because the false-statement counts, which were grouped separately,

did not affect Barber’s guidelines range, we do not discuss those calculations.

      Defendant Barber’s total offense level of 27 and his criminal-history

category of III yielded an advisory guidelines imprisonment range of 87 to 108

months. However, due to the applicable statutory maximum sentences, the

guidelines range was 60 months on the conspiracy count and 36 months on the tax

fraud counts.


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      Relevant to this appeal, defendant Barber objected to (1) the PSI’s

calculation of the intended loss amount and corresponding 14-level increase in his

offense level, and (2) the 4-level role increase for being an organizer or leader of

the crime.

      At Barber’s sentencing hearing, the district court addressed Barber’s PSI

objections. First, Barber argued that the loss calculation was too speculative

because it failed to consider the possibility that portions of the tax returns and

some of the HSH designations were legitimate. The government called Franzen,

who had testified at trial, concerning the loss amount.

      At sentencing, Franzen described in detail the method by which he

calculated the estimated loss. Franzen reviewed 434 returns that reported HSH

income, filed during tax years 2006 to 2008 by Barber’s business. Of those,

Franzen chose 105 returns at random to represent the set of 434 returns. Each of

the 105 sample returns was put into a software program that calculated the refund

owed on the return as filed. Franzen removed the reported HSH income from each

sample return to determine the refund owed without the inclusion of HSH income.

The average fraudulent refund of $1,823.41 for the 105 sample returns was then

projected onto the set of 434 returns. This method yielded a total amount of

$791,405.96 of tax due for the 434 returns.




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      Franzen only adjusted the HSH income because it was unusual to see that

type of income listed on a return, much less on 434 tax returns prepared by one

business over a few years. In ten years of working for the IRS, Franzen never

personally saw a return that included HSH income. Franzen did not know whether

the 105 sample returns were audited to determine if any of the HSH income

designations were legitimate. However, the 35 returns that were included in the

original indictment reported fictitious HSH income, none of which was legitimized

by the tax payers during the course of the investigation.

      The district court found that the evidence reasonably supported a loss

amount of over $700,000, which was in fact “very conservative.” The district

court noted that defendant Barber and his employees listed fictitious HSH income

“on return after return,” in round numbers, and often used the same number,

particularly $7500. It was therefore reasonable to extrapolate the loss from a

random sample of the 434 returns, all of which reported HSH income. Franzen’s

estimate only calculated the effect of the HSH income and did not include any

other fraudulent entries, such as false Schedule C income or education credits, or

any false returns filed in other tax years. Because it was “virtually certain that the

actual intended tax loss exceeded” $700,000, the district court overruled Barber’s

objection to the loss amount and 14-level increase.




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       Second, with respect to the role increase, defendant Barber argued that he

only supervised tax preparers at a legitimate business, and that the evidence failed

to show that he instructed, supervised, or led any illegal conduct. The government

referred to the trial evidence of Barber’s leadership role.

       The district court found that Barber was “the organizer and leader, not just a

supervisor or manager” of the fraud scheme, which clearly involved five or more

participants. Barber set up the operation, benefited from it, hired the tax preparers,

taught his preparers, and was “plainly in charge.” The factors identified in the

sentencing guidelines supported concluding that Barber was the organizer of the

scheme. Accordingly, the district court overruled Barber’s objection to the four-

level role increase.

       Based on the district court’s rulings, Barber’s total offense level was 25, 3

and his guidelines range was 70 to 87 months. The district court sentenced Barber

to a total of 87 months’ imprisonment: 60 months on the conspiracy count, 36

months on the tax fraud counts, and 87 months on the wire fraud and false-

statement counts, to run concurrently.




       3
        The district court sustained Barber’s objection to the two-level increase for use of an
authentication feature, reducing the total offense level previously calculated in the PSI by two
levels.
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                   III. SUFFICIENCY OF THE EVIDENCE

      On appeal, defendant Barber argues that the district court erred in denying

his motion for judgment of acquittal because there was insufficient evidence to

support all of his convictions. As discussed below, Barber’s arguments lack merit.

      We review de novo both a challenge to the sufficiency of the evidence and

the district court’s denial of a Rule 29 motion for a judgment of acquittal. United

States v. Gamory, 635 F.3d 480, 497 (11th Cir. 2011).

      In evaluating sufficiency, we view the evidence in the light most favorable

to the government, with all inferences and credibility choices made in the

government’s favor. Id. We affirm the conviction if, based on this evidence, a

reasonable jury could have found the defendant guilty beyond a reasonable doubt.

Id. This standard does not require the evidence to be “inconsistent with every

reasonable hypothesis other than guilt,” as we permit the jury to choose among

several reasonable conclusions that could be drawn from the evidence. United

States v. Hunt, 526 F.3d 739, 745 (11th Cir. 2008).

A.    Making False Statements

      As to his false-statement convictions, defendant Barber argues that the

government failed to prove that the tax returns submitted to Wachovia Bank were

actually false. According to Barber, it was more likely that he provided accurate

returns to Wachovia Bank and false returns to the IRS than the other way around.


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       In relevant part, § 1014 proscribes the making of “any false statement,”

made for the purpose of influencing a federally insured financial institution “in any

way.” 18 U.S.C. § 1014 (emphasis added). To sustain a conviction for making

false statements under § 1014, the government must prove that (1) “the defendant

made a false statement or report,” and (2) “that he did so for the purpose of

influencing in any way the action of [a described financial institution] upon any

application . . . or loan.” Williams v. United States, 458 U.S. 279, 284, 102 S. Ct.

3088, 3091 (1982) (quotation marks omitted). Because Barber contests only the

falsity of his statements, we focus our discussion on that element of § 1014.

       In United States v. Simmons, 503 F.2d 831 (5th Cir. 1974),4 the former Fifth

Circuit rejected a defendant’s challenge to the sufficiency of the evidence

supporting his § 1014 conviction for making false statements to a federal bank. In

Simmons, the tax return provided to the bank in support of a loan application

misstated the defendant’s income and also was never filed with the IRS. Id. at

833-34, 837. In affirming the conviction, the Fifth Circuit explained that (1) the

defendant’s testimony demonstrated that the reported amounts of tax and income

on the return were false, and (2) “[t]he evidence also showed that the return was

not as represented, a genuine return. It was never filed with the [IRS].” Id. at 837.



       4
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all Fifth Circuit decisions handed down before October 1, 1981.
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To the extent that Simmons does not squarely foreclose Barber’s argument, we

find its rationale to be persuasive.

      Viewing the evidence in the light most favorable to the government, a

reasonable jury could have found Barber guilty of knowingly making false

statements to a financial institution within the meaning of § 1014. Virtually

conclusive evidence established that all copies of the individual and corporate tax

returns that Barber submitted to Wachovia Bank in connection with his loan

applications reported substantially greater income than the returns Barber filed

with the IRS for the same tax years. The jury could have reasonably concluded

that, by submitting documents purporting to be his tax returns, Barber represented

to Wachovia Bank that those documents were copies of the same returns he

actually filed with the IRS under penalty of perjury. That implied representation—

that the returns were authentic—was false. Under this construction, the

government was not also required to prove the actual falsity of the income reported

in the returns given to Wachovia Bank.

      Our conclusion is consistent with persuasive authority from other circuits.

See United States v. Hicks, 217 F.3d 1038, 1042-44 (9th Cir. 2000); United States

v. Darrah, 119 F.3d 1322, 1327 (8th Cir. 1997). It also comports with the plain

language of § 1014, which criminalizes the making of “any” false statement that

meets the other requirements in the statute. See 18 U.S.C. § 1014; see also United


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States v. Wells, 519 U.S. 482, 489-90, 117 S. Ct. 921, 926-27 (1997) (relying on

the term “any” to support holding that the materiality of the false statement is not

an element under § 1014).

      For these reasons, we conclude that the district court did not err in denying

Barber’s motion for a judgment of acquittal on the false-statement counts.

B.    Remaining Convictions

      As to his remaining convictions for conspiracy, tax fraud, and wire fraud,

Barber summarily asserts in his counseled brief that the district court erred for the

reasons “expressed by defense counsel” at trial in support of Barber’s motion for a

judgment of acquittal. To support these conclusory assertions, Barber quotes from

the trial transcript without further discussion or citation to authority.

      We are inclined to hold that Barber abandoned any challenge to the

sufficiency of the evidence to support his convictions for conspiracy, tax fraud, and

wire fraud by failing to adequately brief those claims. See Sapuppo v. Allstate

Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (“We have long held that an

appellant abandons a claim when he either makes only passing references to it or

raises it in a perfunctory manner without supporting arguments and authority.”).

      Alternatively, even if Barber did not abandon these issues, we also conclude

that the district court correctly denied his motion for judgment of acquittal because




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the evidence was more than sufficient to sustain Barber’s conspiracy, tax fraud,

and wire fraud convictions.

      First, the government presented ample evidence that (1) Barber and Davis

agreed to impede the IRS; (2) Barber’s participation in that agreement was

knowing and voluntary; and (3) both Barber and Davis committed acts in

furtherance of the agreement, including the preparation and filing of false tax

returns. See United States v. Adkinson, 158 F.3d 1147, 1153 (11th Cir. 1998)

(setting forth the elements of a conspiracy conviction under 18 U.S.C. § 371).

      Second, the government presented ample evidence that Barber (1) willfully

and knowingly aided or assisted (2) in the preparation or filing of tax returns (3)

that contained material statements that Barber knew to be false. See United States

v. Kottwitz, 614 F.3d 1241, 1269, withdrawn in part on other grounds, 627 F.3d

1383 (11th Cir. 2010) (setting forth the elements of a tax fraud conviction under 26

U.S.C. §7206(2)).

      Third, the government presented ample evidence that Barber (1)

intentionally participated in a scheme to defraud the IRS of money, and (2) used or

caused the use of wires to execute the scheme (i.e. by electronically submitting the

aforementioned false tax returns to the IRS). See United States v. Rodriguez, 732

F.3d 1299, 1303 (11th Cir. 2013) (setting forth the elements of a wire fraud

conviction under 18 U.S.C. § 1343).


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         IV. MOTION TO SEVER FALSE-STATEMENT COUNTS

      Defendant Barber argues that the district court abused its discretion by

denying his motion to sever the false-statement counts from the conspiracy, tax

fraud, and wire fraud counts, as they were improperly joined under Federal Rule of

Criminal Procedure 8(a). According to Barber, the improper joinder allowed the

jury to use evidence of one crime to infer that he also committed the other crime.

      To determine whether separate charges were properly tried at the same time,

we undertake a two-step analysis: (1) we first review de novo whether the initial

joinder was proper under Rule 8(a), and (2) then review the denial of a Rule 14

motion to sever for abuse of discretion. United States v. Barsoum, 763 F.3d 1321,

1336 (11th Cir. 2014). As to the second step, we will reverse the denial of a

motion to sever only if the defendant meets the heavy burden of showing that “he

received an unfair trial and suffered compelling prejudice.” Id. at 1337 (quotation

marks omitted).

      Under Rule 8(a), an indictment “may charge a defendant in separate counts

with 2 or more offenses if the offenses charged . . . are [1] of the same or similar

character, or are [2] based on the same act or transaction, or are [3] connected with

or constitute parts of a common scheme or plan.” Fed. R. Crim. P. 8(a). Rule 8(a)

is construed broadly in favor of initial joinder. Barsoum, 763 F.3d at 1336-37.




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However, if the Rule 8(a) joinder of offenses appears to prejudice a defendant, the

district court may order separate trials of counts. Fed. R. Crim. P. 14.

      First, the false-statement counts were properly joined with the conspiracy,

tax fraud, and wire fraud counts in a single indictment. The knowing submission

of false statements to a federally insured financial institution, the offense charged

by the false-statement counts, was substantially similar in character to the

preparation and filing of false tax returns with the IRS. Both categories of offenses

were crimes of deceit and related in time. We are not persuaded by Barber’s

argument that the false-statement counts concerned only his individual tax returns,

whereas the remaining counts implicated returns prepared for clients by his

business.

      Second, even assuming arguendo that the counts were improperly joined

under Rule 8(a), any such error was harmless. The evidence of Barber’s guilt as to

the conspiracy, tax fraud, and wire fraud counts was overwhelming. See United

States v. Dowd, 451 F.3d 1244, 1250 (11th Cir. 2006). Even if the counts had

been tried separately, the district court would have admitted the false-statement

evidence as relevant to show Barber’s intent or knowledge of the tax fraud scheme.

See Fed. R. Evid. 404(b)(2) (evidence of other acts may be admissible for a

purpose other than proving conduct in conformity therewith, such as to show

“motive, opportunity, intent, preparation, plan, knowledge, identity, absence of


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mistake, or lack of accident”); United States v. Watson, 866 F.2d 381, 385 (11th

Cir. 1989) (any misjoinder was harmless error because evidence presented to

convict on one set of counts would have been admissible in a separate trial on the

other set of counts). Similarly, evidence that Barber prepared false returns for his

clients would likely have been admissible under Rule 404(b)(2).

      In any event, the district court expressly instructed the jury to consider each

count against Barber separately. See United States v. Slaughter, 708 F.3d 1208,

1213 (11th Cir. 2013) (noting that severance is not required when the possible

prejudice may be cured by a cautionary instruction). Under these factual

circumstances, we cannot say that Barber “received an unfair trial and suffered

compelling prejudice.” See Barsoum, 763 F.3d at 1337. The district court did not

abuse its discretion in denying Barber’s motion to sever the false-statement counts.

                             V. SENTENCING ISSUES

      Barber raises two sentencing issues on appeal. He argues that the district

court erred in overruling his objections to the loss amount and role increases in his

offense level calculation.

      We review de novo the district court’s interpretation and application of the

sentencing guidelines, and for clear error its factual findings used to calculate a

defendant’s guideline range. Rodriguez, 732 F.3d at 1305; see United States v.

Barrington, 648 F.3d 1178, 1197 (11th Cir. 2011) (reviewing loss determination


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for clear error); United States v. Ndiaye, 434 F.3d 1270, 1304 (11th Cir. 2006)

(reviewing determination of defendant’s role in the crime for clear error). When a

defendant challenges a factual basis of his sentence, the government must present

“reliable and specific” evidence to meet its burden of establishing the disputed fact

by a preponderance of the evidence. Rodriguez, 732 F.3d at 1305.

A.    Role Increase

      Barber argues that the government failed to prove that Barber was an

“organizer or leader” as required to impose the four-level role increase.

      The guidelines provide for a four-level increase to the defendant’s base

offense level if he “was an organizer or leader of a criminal activity that involved

five or more participants or was otherwise extensive.” U.S.S.G. § 3B1.1(a). To

determine whether the defendant was an organizer or leader, courts should

consider the following factors: (1) the exercise of decision making authority, (2)

the nature of participation in the commission of the offense, (3) the recruitment of

accomplices, (4) the claimed right to a larger share of the fruits of the crime, (5)

the degree of participation in planning or organizing the offense, (6) the nature and

scope of the illegal activity, and (7) the degree of control and authority exercised

over others. Id. cmt. n.4; see United States v. Caraballo, 595 F.3d 1214, 1231

(11th Cir. 2010) (noting that many cases imposing a § 3B1.1(a) increase for a

leadership or organization role involved “evidence that the defendant had recruited


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participants, had instructed participants, or had wielded decision-making

authority”).

      Here, ample evidence supports finding that Barber was an “organizer or

leader” of the tax fraud scheme. Barber owned both KLB Group and KBA,

operated the Brevard Street office, and hired employees with no prior experience in

tax preparation. Barber actively trained and encouraged his employees to prepare

false tax returns, and to perpetuate and attempt to conceal the fraud after the IRS’s

first compliance check. Although co-conspirators Davis and Anthony also taught

other employees how to prepare fraudulent returns, they did so at Barber’s

direction. All preparation fees from clients went into business accounts controlled

by Barber, other than any payment for a false dependent given directly to an

individual preparer. It is clear that Barber had decision-making authority and

exercised control over a significant criminal operation. Thus, we conclude that the

district court did not clearly err in applying the four-level role increase under

§ 3B1.1(a).

B.    Loss Amount Calculation

      Barber also argues that the government should have been able to determine

the actual loss amount based on all 434 tax returns that reported HSH income,

rather than estimating from a sample of only 105 returns.




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      In fraud cases like Barber’s, the guidelines provide for a 14-level increase to

the defendant’s base offense level if the total loss from the offense is more than

$400,000 but less than $1,000,000. U.S.S.G. § 2B1.1(b)(1)(H); see id. cmt. n.3(A)

(holding the defendant responsible for the greater of the actual or intended loss). A

district court “need only make a reasonable estimate of the loss” based on available

information and “is in a unique position to assess the evidence and estimate the

loss based upon that evidence.” Id. cmt. n.3(C) We must therefore give

appropriate deference to a district court’s loss calculation. United States v.

Bradley, 644 F.3d 1213, 1290 (11th Cir. 2011). The district court is not required to

“constrain itself to absolute figures” and instead “may rely on specific

circumstantial evidence to estimate the amount of loss.” Id. (quotation marks

omitted).

      Here, the loss calculation took into account only the 434 returns filed for tax

years 2006 through 2008 that reported HSH income, a rare type of income. The

calculation did not reflect any loss stemming from other falsely-reported

information such as Schedule C income and expenses, deductions, credits,

dependents, or filing statuses, and did not include any returns filed outside of a

three-year period. As the district court found, this calculation yielded a very

conservative loss figure given the thousands of fraudulent returns filed by Barber’s

business over the course of the scheme. The district court properly relied on


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specific circumstantial evidence to make a reasonable estimate of the total intended

loss based on available information. That estimate is entitled to appropriate

deference. We therefore conclude that the district court did not err—much less

clearly err—in its loss calculation of $791,405.96 and in applying the 14-level

increase under § 2B1.1(b)(1)(H).

                               VI. CONCLUSION

      For the foregoing reasons, we affirm Barber’s convictions and sentences.

      AFFIRMED.




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