                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-23-2009

USA v. Kevin Small
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3971




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                                                NOT PRECEDENTIAL


       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                  __________

                      No. 07-3971
                      __________

           UNITED STATES OF AMERICA,
                              Appellee,

                           vs.

              KEVIN WILLIAM SMALL,
                               Appellant.
                    __________

     On Appeal from the United States District Court
           for the Middle District of Pennsylvania
                   (D.C. No. 06-cr-00139)
  District Court Judge: Honorable Christopher C. Conner
                       ___________

      Submitted Under Third Circuit L.A.R. 34.1(a)
                   January 8, 2009
                    ___________

Before: FUENTES, FISHER and ALDISERT, Circuit Judges

            (Opinion Filed: January 23, 2009)


                     ___________

                      OPINION
                     ___________
FUENTES, Circuit Judge:


       Kevin Small’s attorney has filed a motion to withdraw as counsel, and submitted a

brief pursuant to Anders v. California, 386 U.S. 738 (1967). Counsel has adequately

fulfilled the requirements and we agree that there are no nonfrivolous issues for appeal.

Accordingly, we grant the motion to withdraw as counsel and affirm the sentence

imposed by the District Court.

                                              I.

       Because we write for the parties, we discuss only the facts relevant to our

conclusion. On January 31, 2007, Small was indicted by a grand jury of four counts of

filing false federal tax returns in violation of 18 U.S.C. § 287, and one count of mail fraud

in violation of 18 U.S.C. § 1341. Specifically, Small was charged with filing four false

IRS Form 1040s seeking tax refunds totaling $1,023,903 while he was incarcerated in

Pennsylvania. After a full trial, Small was convicted on the four counts of filing false

federal tax returns, and acquitted on the mail fraud count.

       At trial, Small did not dispute that the IRS received the tax forms or that they

included false information. Instead, his defense was that he had not filed those tax

returns; he called several other inmates who testified that they were responsible for filing

the false tax returns. In turn, the Government produced evidence from Small’s mail and

Small’s cell directly linking him to the tax forms, including but not limited to letters sent

to the IRS, requests for IRS forms, applications for bank accounts, letters to foreign

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embassies regarding offshore bank accounts, a request for a duplicate social security card,

handwritten notations of figures corresponding to the falsified tax forms, and

correspondence with Pershing LLC, which was falsely listed as the employer in one of the

tax forms.

       At the sentencing hearing, Small requested a two-level reduction for acceptance of

responsibility pursuant to U.S.S.G. § 3E1.1. He claimed that he deliberately instigated

the investigation by sending letters to various authorities, and that he also repeatedly

attempted to contact the prosecutor in order to cooperate. He explained that he did so

because he had committed the crimes not for financial gain, but rather to get transferred to

the federal penitentiary system where he believed he might be able to receive parole.

       After consideration, the District Court imposed a sentence of 135 months, which

was in the middle of the Guideline range of 120 to 150 months. The District Court cited

Small’s extensive criminal history and the facts that he “fabricated a defense and

produced false documents at trial” and that “he not only filed false IRS returns claiming

that he was owed tax refunds, but also established bank accounts to receive those

moneys.”

                                             II.

       Third Circuit Local Appellate Rule 109.2(a) provides: “Where, upon review of the

district court record, trial counsel is persuaded that the appeal presents no issue of even

arguable merit, trial counsel may file a motion to withdraw and supporting brief pursuant



                                              3
to Anders v. California . . . .” Our inquiry is twofold: “(1) whether counsel adequately

fulfilled the rule’s requirements; and (2) whether an independent review of the record

presents any nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.

2001).

         In his Anders brief, Small’s counsel presents several possible issues for appeal and

adequately explains why each has no merit: (1) whether the District Court lacked

jurisdiction; (2) whether there was insufficient evidence for the jury to reach its verdict;

(3) whether the District Court erred in its jury charge, its evidentiary rulings, or its rulings

on various motions; (4) whether the District Court erred under Batson v. Kentucky, 476

U.S. 79 (1986), in allowing the Government to strike from the jury the only member of

the jury panel who was African-American; and (5) whether the sentence imposed was

unreasonable, specifically with regard to a request for a downward departure for

acceptance of responsibility.

         In addition, Small filed a pro se brief raising these additional complaints: (1)

whether venue was improper given that Small was not within the Middle District of

Pennsylvania at all relevant times of the offense; (2) whether the Government violated

Brady v. Maryland, 373 U.S. 83 (1965), in withholding certain evidence; (3) whether trial

counsel was ineffective for failure to object to a Government exhibit and failure to call

witnesses; and (4) whether the District Court erred in failing to order a psychological

evaluation before trial.



                                               4
       Looking at the issues raised by Small’s counsel, we are convinced that they lack

merit. First, we cannot say the evidence presented by the Government was insufficient

for a reasonable jury to find that Small filed false tax returns. United States v. Gibbs, 190

F.3d 188, 197 (3d Cir. 1999). The only issue in contention at trial was whether the

returns were filed by Small or whether they were filed by someone else, and the

Government linked Small to the returns via overwhelming evidence including letters,

prison address, social security number, bank accounts, handwritten notations, and

fingerprints.

       Second, the District Court did not commit clear error under Batson. In striking the

only African-American juror from the panel, the Government explained that the juror’s

son had been convicted of armed robbery and had served time in state prison, resulting in

a risk of partiality. The District Court credited this race-neutral explanation, and we are

therefore required to give “great deference on appeal” to this decision, which represents a

finding of fact. Hernandez v. New York, 500 U.S. 352, 364 (1991); accord United States

v. Milan, 304 F.3d 273, 281 (3d Cir. 2002).

       Third, with regard to the District Court’s refusal to reduce the sentence for

acceptance of responsibility, Small’s counsel properly notes that the question of whether a

defendant has “accepted responsibility” is a factual question reviewed for clear error.

United States v. Rodriguez, 975 F.2d 999, 1008 (3d Cir. 1992); U.S.S.G. § 3E1.1

Application Note 5 (noting that the determination of the sentencing judge regarding



                                              5
acceptance of responsibility “is entitled to great deference on review”). Here, the District

Court noted that section 3E1.1 is generally “not intended to apply to a defendant who puts

the government to its burden of proof at trial by denying the essential factual elements of

guilt, is convicted, and only then admits guilt and expresses remorse.” U.S.S.G. § 3E1.1

Application Note 2. Accordingly, we cannot say that the District Court committed clear

error in denying the sentence reduction.

       Finally, the District Court had jurisdiction under 18 U.S.C. § 3231. Moreover,

counsel’s brief thoroughly addresses the propriety of the various other rulings made by

the District Court at or before trial.

       This leaves only the additional issues raised by Small in his pro se brief, all of

which we find frivolous. The objection to venue was waived and cannot be raised for

direct review on appeal. United States v. Robinson, 167 F.3d 824, 829 (3d Cir. 1999)

(“[A] defendant must raise the issue of improper venue before the jury returns a

verdict.”). Likewise, none of the Brady objections were raised before the District Court,

so we decline to review them in the first instance. United States v. Ferri, 778 F.2d 985,

997 (3d Cir. 1985) (declining to opine on the merits of the Brady claim in the first

instance but noting that its decision is without prejudice). Third, the ineffective

assistance claims also were not raised below, and we do not review these claims on direct

appeal unless ineffectiveness is apparent on the record. United States v. Olfano, 503 F.3d

240, 246-47 (3d Cir. 2007) (citing United States v. McLaughlin, 386 F.3d 547, 555 (3d



                                              6
Cir. 2004)). Here, neither of the ineffectiveness claims asserted suggest that the result of

the proceeding would have been different; moreover, we observe that Small admitted he

lied to his counsel and commended his counsel’s performance despite that fact. Cf.

United States v. Monzon, 359 F.3d 110, 120 (2d Cir. 2004) (finding no ineffectiveness

where counsel performed skillfully taking into account that his client was lying to him).

Finally, a psychological examination was never requested, and we cannot say the District

Court committed plain error by failing to order one sua sponte; by all accounts, there was

no reason to suspect that Small was incompetent to stand trial.

                                            III.

       For the foregoing reasons, we grant counsel’s motion to withdraw and affirm the

District Court’s judgment sentencing Small to 135 months’ imprisonment.




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