                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-6-2002

USA v. Corbett
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-4419




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Recommended Citation
"USA v. Corbett" (2002). 2002 Decisions. Paper 481.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/481


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                                               NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                           __________

                          No. 01-4419
                           __________

                    UNITED STATES OF AMERICA

                                  v.

                      AMARYLLIS E. CORBETT

                  Amaryllis E. Corbett, B.A., M.A.,
                                              Appellant
                           __________

        ON APPEAL FROM THE UNITED STATES DISTRICT COURT
            FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                   D.C. Crim. No. 00-cr-00063
       District Judge: The Honorable Donetta W. Ambrose
                           __________

                      Argued July 22, 2002
                           __________

      Before: SLOVITER, NYGAARD, and BARRY, Circuit Judges

                (Opinion Filed: August 6, 2002)
                          ____________

Renee Pietropaolo, Esquire (Argued)
W. Penn Hackney, Esquire
Karen S. Gerlach, Esquire
Office of Federal Public Defender
1001 Liberty Avenue
1450 Liberty Center
Pittsburgh, PA 15222

Attorneys for Appellant


Robert S. Cessar, Esquire (Argued)
Bonnie R. Schlueter, Esquire
Michael L. Ivory, Esquire
Office of the United States Attorney
633 United States Post Office & Courthouse
Pittsburgh, PA 15219

Attorneys for Appellee
                          ____________

                            OPINION
                          ____________


BARRY, Circuit Judge
     Following a jury trial in the United States District Court for the Western District
of Pennsylvania, appellant Amaryllis E. Corbett was convicted of five counts of income
tax evasion in violation of 26 U.S.C. 7201, two counts of wire fraud in violation of 18
U.S.C. 1343, and two counts of mail fraud in violation of 18 U.S.C. 1341. The
District Court sentenced Corbett, as relevant here, to thirty months of imprisonment and
restitution in the amount of $107,241.60 to the Social Security Administration ("SSA")
and $260,674.71 to the Office of Personnel Management ("OPM"). Corbett appeals only
her tax evasion convictions and her sentence. We have jurisdiction pursuant to 18
U.S.C. 3742(a) and 28 U.S.C. 1291 and will affirm Corbett’s convictions but vacate
her sentence.
     We write only for the parties who are familiar with the facts of the case, so we
need not repeat them here. Accordingly, we will forthwith address the three arguments
raised by Corbett   that insufficient evidence supports her convictions for tax evasion
because the United States failed to prove an affirmative act of evasion for the periods
charged in the Indictment; that the District Court erred in instructing the jurors to
examine any conduct from any time period to find an affirmative act of evasion; and that
the tax evasion and fraud counts should have been grouped under U.S.S.G. 3D1.2.

                               I.
     Corbett argues that there is insufficient evidence of an affirmative act of evasion
during the time frame of the Indictment to support her convictions for tax evasion. We
view the evidence in the light most favorable to the government and will sustain the
jury’s verdict if "any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979);
accord United States v. McGill, 964 F.2d 222, 229-30 (3d Cir. 1992). Section 7201
prohibits a person from "willfully attempt[ing] in any manner to evade or defeat any tax
imposed by this title or the payment thereof." The essential elements of this offense are:
(1) willfulness; (2) a tax deficiency; and (3) an affirmative act of evasion. Sansone v.
United States, 380 U.S. 343, 351 (1965) (citations omitted). Corbett’s argument is
limited to the third element.
     To be convicted of tax evasion, a defendant must commit some willful act in
addition to not filing a return and not paying the tax due. Spies v. United States, 317
U.S. 492, 499 (1943). Examples of such acts include concealing assets, hiding sources
of income, and avoiding recorded transactions. Id. "[A]ny conduct, the likely effect of
which would be to mislead or to conceal" qualifies as an affirmative act. Id.
     Here, the evidence shows that Corbett committed numerous affirmative acts of
evasion. First, she maintained the Mellon Bank account under her name and that of her
mother, Dr. Jane Matuzel, after the latter’s death and conducted all transactions via the
ATM in order to minimize in-person contact with bank employees. This included the
deposit of separate monetary U.S. Treasury checks made payable to Jane Matuzel, one
based on widow’s survivors benefits from the SSA and the other based on Dr. Matuzel’s
pension benefits from the OPM. On the few occasions when Corbett did communicate
with bank personnel, she failed to mention Dr. Matuzel’s death, and in the case of the
November 25, 1997 letter, used the words "we" and "our" to refer to the account.
Second, Corbett opened a post office box in her and Dr. Matuzel’s names in 1987, even
though Dr. Matuzel had been dead for almost four years. Corbett paid the biannual rent
in cash and used the post office box to collect Dr. Matuzel’s social security checks. She
refused to accept certified mail from the IRS or to respond to the notices sent by the SSA.
The one exception is when Corbett signed Dr. Matuzel’s name to a SSA payment review
form in November 1996. Each of these acts is sufficient to satisfy the third element of
the crime of willful evasion of assessment.
     Corbett counters that, regardless of the nature of her conduct, none of her acts
occurred within the time frame set forth in the Indictment and, thus, cannot form the
basis of her convictions for tax evasion. The Indictment charged Corbett with
committing tax evasion on or about the fifteenth of April in the years 1994 through 1998.
The evidence showed that Corbett continuously operated her ATM scheme through
January 1999. Likewise, Corbett continuously rented and used the post office box during
every year alleged in the Indictment. Moreover, with specific reference to certain
specific counts, on November 15, 1996, Corbett signed Dr. Matuzel’s name to the SSA
payment review form and returned it to the SSA. This act is sufficiently near the April
15, 1996 date alleged in count three of the Indictment. Her response to Mellon Bank’s
"no contact" letter in July 1997 and her "we" letter of November 25, 1997 occurred
within the time frame alleged in count four. Finally, her deposit of U.S. Treasury checks
made payable to Dr. Matuzel in May 1998 falls within the April 15, 1998 date alleged in
count five.
     In sum, sufficient evidence supports Corbett’s convictions for tax evasion.

                              II.
     Corbett also argues that the District Court incorrectly instructed the jury to look at
any conduct from any time period to find an affirmative act of evasion. Corbett did not
raise this argument before the District Court; therefore, plain error review applies. Under
plain error review, we may exercise our discretion to correct an error that is plain and that
affects the "substantial rights" of the defendant. United States v. Olano, 507 U.S. 725,
732 (1993).
     Corbett’s attack on the jury instructions consists of two parts. First, Corbett
suggests that the language in the jury instructions, "[a]ny conduct of the Defendant
having the likely effect of misleading or concealing will support a finding of guilt of tax
evasion," misstates the law on affirmative acts. Corbett is wrong. This language tracks
almost precisely the language used by the Supreme Court in Spies, which defines an
affirmative act as "any conduct, the likely effect of which would be to mislead or to
conceal." Spies v. United States, 317 U.S. 492, 499 (1943). By including the above
language in the jury instructions, the District Court did not err.
     Second, Corbett maintains that the District Court constructively amended the
Indictment when it charged the jury to consider as affirmative acts conduct that occurred
"prior to the tax year, concomitant with the tax year, or subsequent with the tax year." A
constructive amendment arises when a defendant is deprived of his or her "substantial
right to be tried only on charges presented in an indictment returned by a grand jury."
United States v. Miller, 471 U.S. 130, 140 (1985) (quoting Stirone v. United States, 361
U.S. 212, 217 (1960)); accord United States v. Syme, 276 F.3d 131, 148 (3d Cir. 2002).
Under plain error review, a constructive amendment is presumed prejudicial. Syme, 276
F.3d at 136, 154.
     Corbett is correct when she argues that the District Court erred in instructing the
jury to consider acts that transpired before the dates alleged in the Indictment. See
United States v. Voigt, 89 F.3d. 1050, 1089 (3d Cir. 1996) ("[T]he government’s failure
to include a predeficiency period in the indictment’s specification of the offense
precludes it from relying on conduct predating the existence of the deficiency as
substantive evidence of affirmative acts of evasion."); accord United States v. McGill,
964 F.2d 222, 231 (3d Cir. 1992). This error, however, is harmless as there are no acts
upon which the jury could have relied that did not continue through the dates of the
Indictment. Although Corbett started her ATM scheme sometime after Dr. Matuzel’s
death in 1983, she continued her modus operandi until January 1999. Similarly, Corbett
continued using the post office box that she opened in 1987 until at least the fall of 1998.
No other conduct began prior to April 15, 1994.

                              III.
     In addition to attacking her convictions for tax evasion, Corbett contests her
sentence. Specifically, Corbett asserts that the tax evasion counts should have been
grouped with the mail and wire fraud counts under U.S.S.G. 3D1.2 because her
criminal conduct was all part of one scheme to defraud the United States of Dr.
Matuzel’s retirement benefits. A district court’s factual findings underpinning a
grouping determination are reviewed for clear error while its interpretation of the
Sentencing Guidelines is reviewed de novo. United States v. Vitale, 159 F.3d 810, 813
(3d Cir. 1998).
     Section 3D1.2 provides that closely related counts shall be grouped for purposes
of calculating the total offense level. Counts are closely related if they involve
"substantially the same harm," which exists:
          (a) When counts involve the same victim and the same act or transaction.

          (b) When counts involve the same victim and two or more acts or
     transactions connected by a common criminal objective or constituting part
     of a common scheme or plan.
          (c) When one of the counts embodies conduct that is treated as a specific
     offense characteristic in, or other adjustment to, the guideline applicable to
     another of the counts.

          (d) When the offense level is determined largely on the basis of the total
     amount of harm or loss, the quantity of a substance involved, or some other
     measure of aggregate harm, or if the offense behavior is ongoing or
     continuous in nature and the offense guideline is written to cover such
     behavior.

U.S.S.G. 3D1.2 (2001).
     At sentencing, Corbett advanced arguments under each of the four subsections. It
appears, however, that the District Court rejected Corbett’s arguments based on our
decisions in United States v. Astorri, 923 F.2d 1052 (3d Cir. 1991), and United States v.
Vitale, 159 F.3d 810 (3d Cir. 1998). The District Court was correct in relying on
Astorri and Vitale in rejecting Corbett’s argument under 3D1.2(c). See Astorri, 923
F.2d at 1057; Vitale, 159 F.3d at 815. Neither case, however, discusses the propriety of
grouping tax evasion counts with fraud counts under the remaining subsections.
Accordingly, Corbett’s sentence will be vacated and the case remanded to the District
Court for analysis under U.S.S.G. 3D1.2(a), (b), and (d).
     In analyzing the issue of grouping, the District Court should consider those
subsections’ requirements. In order for 3D1.2(a) and (b) to apply, there first must be
a finding that the counts involve the same victim. Indirect and secondary victims should
be excluded. U.S.S.G. 3D1.2, cmt. n.2 (2001). "Generally, there will be one person
who is directly and most seriously affected by the offense and is therefore identifiable as
the victim." Id.
     If the District Court concludes that there is only one victim, it should proceed to
the second requirement of 3D1.2(a), the same act or transaction, and of 3D1.2(b), two
or more acts connected by a common objective. Although legally distinct, offenses may
be grouped if they "are part of a single course of conduct with a single criminal objective
and represent essentially one composite harm to the same victim." U.S.S.G. 3D1.2,
cmt. n.4 (2001); see United States v. Riviere, 924 F.2d 1289, 1306 (3d Cir. 1991); see
also United States v. Cusumano, 943 F.2d 305, 313 (3d Cir. 1991) (upholding district
court’s grouping of conspiracy, money laundering, embezzlement, unlawful kickbacks,
and travel act offenses).
     Finally, the District Court should consider whether grouping would be appropriate
under 3D1.2(d). This subsection permits grouping when the counts are of "the same
general type" and "the offense level is determined largely on the basis of the total amount
of harm or loss." United States v. Seligsohn, 981 F.2d 1418, 1425 (3d Cir. 1992)
(citations omitted); see United States v. Rudolph, 137 F.3d 173, 180 (1998).

                              IV.
     For the foregoing reasons, we will affirm Corbett’s convictions for tax evasion but
vacate her sentence and remand the matter to the District Court for reconsideration of the
sentence imposed.

                                    /s/ Maryanne T. Barry
                                   Circuit Judge
