                                                              [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                                                                   FILED
                          ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                               October 19, 2005
                                 No. 04-12527
                                                              THOMAS K. KAHN
                           ________________________               CLERK

                    D. C. Docket No. 02-00444-CR-T-26-TBM

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                      versus

WILLIAM L. TINER,

                                                              Defendant-Appellant.


                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                        _________________________

                                (October 19, 2005)

Before BLACK, WILSON and COX, Circuit Judges.

PER CURIAM:

      On November 5, 2002, a federal grand jury in Tampa indicted William L.

Tiner on four counts of personal income tax evasion and three counts of filing false
corporate tax returns. A jury convicted Tiner as to all seven counts. The district

court sentenced Tiner to 60 months in prison followed by 36 months’ supervised

release, based in part on its finding of intended tax loss. The convictions arose

from Tiner’s treatment of the proceeds from his two companies, WLT Software

(“WLT”) and Allied Affiliates (“Allied”), as well as Tiner’s use of a tax avoidance

technique known as the AEGIS System, a complicated scheme involving transfers

of income between various trusts to disguise the income as “management fees.”

      On appeal, Tiner argued that the evidence did not support his conviction and

that the district court abused its discretion when it limited cross-examination,

denied Tiner’s motion for mistrial, admitted evidence of his prior failure to pay

taxes, and failed to order the United States to produce an IRS agent as a witness.

Finally, Tiner argued that the district court violated United States v. Booker, 543 U.S.

__, 125 S. Ct. 738 (2005) by calculating Tiner’s offense level under the federal

sentencing guidelines based upon facts neither proven to a jury nor admitted by

Tiner (i.e., the amount of intended tax loss).

      We review sufficiency of the evidence de novo, viewing the evidence in the

light most favorable to the government and drawing all reasonable inferences in

favor of the jury’s verdict. United States v. Byrd, 403 F.3d 1278, 1288 (11th Cir.

2005), cert. denied Byrd v. United States, ___ S.Ct. ___ (2005).



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      We review evidentiary rulings for abuse of discretion, United States v.

Hasner, 340 F.3d 1261, 1274 (11th Cir. 2003); and may overturn findings of fact

only upon clear error. United States v. Griggs, 735 F.2d 1318, 1325 (11th Cir.

1984). Likewise, we review a district court’s denial of a motion for mistrial for

abuse of discretion. United States v. Wright, 392 F.3d 1269, 1274 (11th Cir. 2004),

cert. denied, Wright v. United States, 125 S.Ct. 1751 (2005).

      When the defendant does not object to his sentence at the district court level,

we review his sentence using the plain error standard. United States v. Rodriguez,

398 F.3d 1291, 1298 (11th Cir. 2005), reh’g en banc denied, 406 F.3d 1261 (11th

Cir. 2005), cert. denied, Rodriguez v. United States, 125 S.Ct. 2935 (2005).

      Tiner argues that the government failed to prove the scienter element of his

offenses, relying on an affirmative defense of good faith reliance. See United

States v. Eisenstein, 731 F.2d 1540, 1543 (11th Cir. 1984). Tiner points to a

purported admission by Michael Maricle, a certified public accountant who

promoted the AEGIS system to him, that Tiner gave him full disclosure. He argues

that this statement precludes a conviction, and that therefore the evidence was not

sufficient for the jury to convict him. At trial, however, the government presented

evidence, including a cautionary IRS notice, that tends to show that Tiner relied on

the advice in bad faith, thus undermining Tiner’s defense.



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      Because we must view the evidence in the light most favorable to the

government and draw all reasonable inferences in favor of the jury’s verdict, the

convictions must stand. A jury could reasonably infer that Tiner had knowledge of

the unlawfulness of the AEGIS system and used it despite that knowledge.

      Tiner next argues that the district court abused its discretion when it limited

the cross-examination of IRS agent Richard F. Goodwill, an agent associated with

the investigation who testified that Tiner had destroyed his bank records. We have

held that the district court has discretionary authority to limit cross-examination, so

long as the cross-examination is sufficient to satisfy the Confrontation Clause. See

United States v. Garcia, 13 F.3d 1464, 1468 (11th Cir. 1994).

      The district court did not abuse its discretion in sustaining the government’s

objection. Tiner was trying to establish that the government’s investigation was

not harmed or frustrated by Tiner’s supposed destruction of evidence. The district

court permitted Tiner to question the agent about his ability to obtain those

documents from other sources. Tiner’s additional questions about whether he

found documents that an accountant would use and about the accuracy of the tax

returns are irrelevant and sustaining the government’s objection would not have

caused a reasonable jury to have a different impression of the agent’s credibility.

      Tiner further argues that he was prejudiced because the government



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announced a method of proving tax evasion, but later deviated from that method.

Tiner argues that he was therefore entitled to a mistrial. The government’s case

did not deviate from the specific items method of proof, did not mislead the court

or Tiner about the nature of the proof to be offered, and did not result in pervasive

prejudice that warrants a finding of bad motive. Therefore, the district court did not

abuse its discretion in denying the motion for mistrial.

      Tiner additionally argues that the district court abused its discretion for

admitting evidence of Tiner’s prior failure to pay taxes because it is character

evidence based on prior bad acts. In addition, Tiner claims that the court should

have excluded the evidence as more prejudicial than probative.

      The district court here properly admitted the evidence and gave the

appropriate limiting instruction to the jury. The court reasoned from the bench that

because tax evasion is a specific intent crime, this evidence could be admitted to

show intent to wilfully evade taxes. Because the evidence would show that Tiner

had underreported his income in years before he claimed to rely on accountants’

and attorneys’ advice, the evidence would tend to show that he intended to evade

his taxes in the later years when he was purportedly relying on advice. See United

States v. Dixon, 698 F.2d 445, 447 (11th Cir. 1983) (finding that failure to report

tax liability in 1977 was relevant to intent to fail to report tax liability in 1975 and



                                            5
1976). In addition, the evidence’s probative value outweighed any prejudicial

effect.

       Tiner further contends that the district court’s failure to order the government

to produce Charles F. Felthaus, Chief of the Accounting Branch of the International

Section of the IRS, violated his due process and confrontation rights. According to

Tiner, Maricle had given Tiner a letter that Felthaus had written to an attorney in

Solana Beach, California. In his motion to compel, Tiner noted that he was unable

to locate Felthaus to subpoena him for trial. Tiner sought to compel the government

to produce Felthaus or, in the alternative, to provide a valid address for him.

       In this case, Tiner did not subpoena Felthaus because he could not locate him.

The district court ruled that the government had no obligation to produce Felthaus,

but that Tiner was free to do so. The court did not abuse its discretion because it

did not deny Tiner process. Rather, Tiner failed to locate Felthaus, despite the fact

that he knew about Felthaus for two months. Tiner cannot be said to have asserted

the right to compulsory process because he was not diligent in seeking Felthaus out

for himself. Because the right to compulsory process must “be preceded by

deliberate planning and affirmative conduct,” the right was not violated. See Taylor

v. Illinois, 484 U.S. 400, 410 (1988).

       Finally, in regards to his Booker claim, Tiner appears to concede that he did



                                              6
not object to the sentence on Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct.

2348, 2362-63 (2000), Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004),

or Booker grounds below. Instead, Tiner argues that he should be excused from the

requirement that he object below because Blakely was only two days old, and

therefore that he should not be charged with notice of the case’s application to the

federal sentencing guidelines.

      We generally have not excused the failure to preserve a claim, even when it

appears to be foreclosed by precedent. See United States v. Levy, 416 F.3d 1273

(11th Cir. 2005). In this case, Tiner not only had the benefit of Apprendi, but he

also had the benefit of Blakely itself. That Blakely was issued a mere two days

before Tiner’s sentencing is irrelevant because a competent defense attorney would

keep a close eye on relevant pending Supreme Court cases.

      Tiner claims that the district court committed Sixth Amendment error by

enhancing his sentence on the basis of facts not found by the jury, i.e. the amount of

tax loss. See United States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005).

While the court sentenced him on this basis, committing plain error, Tiner has not

met his burden of proving prejudice. He makes no argument with regard to whether

his substantial rights were affected. Therefore, Tiner has not carried his burden and

cannot show Sixth Amendment error.



                                           7
      We have held that under Booker, the district court committed statutory error

if it sentenced a defendant under a mandatory sentencing guidelines scheme.

Shelton, 400 F.3d at 1330. As with Sixth Amendment error, the appellant bears the

burden of showing prejudice based on statutory error. Tiner has made no argument

that the district court would have sentenced him differently under an advisory

guidelines scheme. Therefore, he has not met his burden of proving the third prong

of the plain error standard, and we are not permitted to exercise its discretion to

recognize the district court’s error.

      Therefore, we AFFIRM.

AFFIRMED.




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