                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                      March 30, 2007
                            FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                        Clerk of Court

    U N ITED STA TES O F A M ER ICA,

                Plaintiff-Appellee,

    v.                                                   No. 06-5014
                                                  (D.C. No. 04-CR-104-01-K)
    LEE E. RO BB INS,                                    (N.D. Okla.)

                Defendant-Appellant.



                             OR D ER AND JUDGM ENT *


Before L UC ER O, M cKA Y, and GORSUCH, Circuit Judges.




         Appellant Lee E. Robbins was convicted by a jury of fifteen counts of tax

fraud. In this direct criminal appeal, M r. Robbins challenges the district court’s

denial of his motion for severance, the adequacy of the verdict form, the

calculation of tax loss for sentencing purposes, and the imposition of costs of

prosecution.




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                           I.

      Robbins & Associates (R& A) was a bookkeeping and tax return preparation

business which helped clients minimize their tax payments and maximize their

refunds by falsely characterizing nondeductible personal expenses as deductible

business expenses. M r. Robbins, the principal of R& A, recruited, hired, and

trained his co-defendant Gabriel Bonner for work in R& A’s office in Tulsa,

Oklahoma. After M r. Robbins moved to Georgia and opened an Atlanta office, he

left M r. Bonner in charge of the Tulsa office. M r. Robbins continued to review

M r. B onner’s work and he e-filed the returns prepared at both offices.

      The government charged M r. Robbins and M r. Bonner with conspiracy to

defraud the IRS, M r. Robbins with 15 counts of aiding and assisting the

preparation and submission of false and fraudulent tax returns in violation of

26 U.S.C. § 7206(2), and M r. Bonner w ith 50 different counts of the same crime.

Before trial, M r. Robbins moved for separate trials, arguing that he would be

prejudiced by being tried with M r. Bonner. The district court denied the motion

and the parties proceeded to their joint trial.

       At the close of evidence, M r. Robbins renewed his motion for severance

and the district court again denied it. The jury reached a verdict acquitting

M r. Bonner on all counts and finding M r. Robbins not guilty of conspiracy but

guilty of the 15 individual counts. The district court denied M r. Robbins’ motion

for a new trial and sentenced him to a total of 41 months’ imprisonment, based on

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a tax loss of over $400,000. It also ordered him to pay the costs of prosecution in

the amount of $11,430.66, as provided by § 7206.

                                           II.

      On appeal, M r. Robbins first asserts that the district court erred in denying

his motion for a severance because his defense was antagonistic to that of

M r. Bonner. A motion for severance based on conflicting defenses triggers “a

three-step inquiry” on the part of the trial court. United States v. Pursley,

474 F.3d 757, 765 (10th Cir. 2007). The first step requires a determination of

“whether the defenses presented are so antagonistic that they are mutually

exclusive,” so that “the acceptance of one party’s defense would tend to preclude

the acquittal of the other, or that the guilt of one defendant tends to establish the

innocence of the other.” Id. (quotations omitted). Next, “because mutually

antagonistic defenses are not prejudicial per se, a defendant must further show a

serious risk that a joint trial would compromise a specific trial right or prevent the

jury from making a reliable judgment about guilt or innocence.” Id. (quotations

and alterations omitted). “[I]f the first two factors are met, the trial court

exercises its discretion and weighs the prejudice to a particular defendant caused

by joinder against the obviously important considerations of economy and

expedition in judicial administration.” Id. (quotations and alterations omitted).

“W here the trial court ultimately denies severance,” this court will reverse the

decision “only where the defendant has demonstrated an abuse of discretion.” Id.

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      At trial, M r. Robbins and M r. Bonner each attempted to cast all

blame for tax fraud on the other. M r. Robbins illustrates the antagonistic nature

of their defenses by pointing out that M r. Bonner testified that it was M r. Robbins

who “caused all the wrong and illegal tax returns to be filed.” Aplt. Br. at 21.

And, according to M r. Robbins, “Bonner’s counsel sought to deliberately

undermine Robbins’ defense at trial with every witness so that Bonner appeared

only to be someone who was a data clerk.” Id. at 10. M r. Robbins also

complains that M r. Bonner’s counsel acted as an “additional prosecutor” by

identifying himself as a former prosecutor and telling the jury to disbelieve the

arguments made by M r. Robbins’ attorney. Id. at 15.

      M r. Robbins has shown that he and M r. Bonner presented defenses which

“were sufficiently exclusive and antagonistic.” Pursley, 474 F.3d at 765.

Nevertheless, he has not established the specific prejudice required at the second

analytic step. “[D]efendants are not entitled to severance merely because they

may have a better chance of acquittal in separate trials.” Id. at 766 (quotation

and alteration omitted). “Despite their differing theories of defense, nothing

prevented [M r. Robbins] from presenting evidence [or argument] to support his

theory even if it was inconsistent with [M r. Bonner’s] defense.” Id.

      Because M r. Robbins did not demonstrate the requisite prejudice, there is

no need “to explicitly engage in the third step of our inquiry–weighing prejudice

to the defendant against considerations of judicial economy.” Id. at 767. On this

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record, the district court’s denial of the motion to sever does not amount to an

abuse of discretion.

                                          III.

      M r. Robbins next argues that he is entitled to a new trial because the jury

verdict form was “irregular” and “bogus.” Aplt. Br. at 7, 31. W e review the

propriety of verdict forms under an abuse of discretion standard. United States v.

Stiger, 413 F.3d 1185, 1190 (10th Cir. 2005). Applying that standard, we will

reverse only if we have “substantial doubt that the jury was fairly guided.”

United States v. Smith, 13 F.3d 1421, 1424 (10th Cir. 1994) (quotation omitted).

M oreover, because there was no objection at trial, we review only for plain error,

which is “error that affects the defendant’s right to a fair and impartial trial.” Id.

        M r. Robbins argues that the only possible explanation for the jury’s

acquittal of M r. Bonner and conviction of M r. Robbins is confusion attributable to

the verdict form. Aplt. Br. at 27. The verdict form submitted to the jury was a

table with columns providing the date of each charged offense, the name of the

filing taxpayer, and a place for the jury foreperson to circle either “guilty” or “not

guilty.” R., Vol. I, Doc. 72. In his closing argument, M r. Robbins’ attorney

advised the jurors that the table “mirrors the one in the indictment and it has on

there the years and so forth. . . . If you correlate the exhibits with the chart, you

should be able to make your decisions on these individual counts.” Id., Sup’l

Vol. II, at 35.

                                           -5-
      On appeal, however, M r. Robbins claims the form is flaw ed for failure to

“set out details of each count.” Aplt. Br. at 7. W e have previously held that

“[t]he purpose of the verdict form is not to repeat the elements of the offense.

The language on the form serves only to identify where the jury should indicate

its verdict on each count. . . . The fact that the question on the verdict form does

not contain the language the instructions contain is immaterial.” United States v.

Overholt, 307 F.3d 1231, 1248 (10th Cir. 2002). The form submitted to the

Robbins/Bonner jury fulfilled its intended purpose. As a consequence, we see no

error in connection with the jury verdict form.

                                          IV.

      M r. Robbins asserts that the district court erred in calculating the tax-loss

amount attributable to his crimes, a determination which affects his sentence

under the advisory Federal Sentencing Guidelines. See U.S.S.G. § 2T1.1. On

guideline issues, we review legal questions de novo, factual findings for clear

error, and give due deference to the district court’s application of the guidelines

to the facts. United States v. Wolfe, 435 F.3d 1289, 1295 (10th Cir. 2006).

      In determining the total tax loss, “all conduct violating the tax law s should

be considered as part of the same course of conduct or common scheme or plan

unless the evidence demonstrates that the conduct is clearly unrelated.” U.S.S.G .

§ 2T1.1, cmt. n.2. See also United States v. Hayes, 322 F.3d 792, 801-02

(4th Cir. 2003) (holding that tax loss may include amounts in returns prepared by

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the defendant but not included in the indictment). The tax loss proved at trial

am ounted to $376,000. A t the sentencing hearing, the government produced two

tax-filer witnesses, whose false returns were not included in the indictment, and

an IRS agent. Partially crediting the witnesses’ testimony, the district court found

that M r. Robbins was responsible for an additional loss in the amount of $90,675.

Under the guidelines, this additional amount increased M r. Robbins’ base offense

level by tw o points. See U.S.S.G. §§ 2T1.1(a), 2T4.1 (Tax Table).

      M r. Robbins asserts that the trial court improperly based the tax-loss

amount on surprise testimony relating to returns not listed in the indictment and

not considered by the jury. As for the alleged “surprise” aspect of the testimony,

we note that defense counsel objected to the appearance of the witnesses, but did

not ask for a recess or continuance to develop rebuttal evidence. See R., Vol. XII

at 4. And after the district court overruled the objection, M r. Robbins’ counsel

thoroughly cross-examined the witnesses. Thus, there is no indication that the

government used an element of surprise to present misinformation to the court.

Cf. United States v. Sunrhodes, 831 F.2d 1537, 1542 (10th Cir. 1987) (“Due

process insures that a defendant will not be sentenced on the basis of

‘misinformation of a constitutional magnitude.’”) (citation omitted).

      An equally unavailing contention is that the teachings of United States v.

Booker, 543 U.S. 220 (2005) prohibit the inclusion of tax loss arising from

uncharged conduct that was not proven beyond a reasonable doubt. It is now

                                         -7-
well-settled that Booker does not preclude “judicial fact-finding by a

preponderance of the evidence standard” at the sentencing stage unless the factual

findings “operate[] to increase a defendant’s sentence mandatorily.” United

States v. Hall 473 F.3d 1295, 1312 (10th Cir. 2007). Here, the district court

explicitly “recognize[d] that the guidelines are advisory and not mandatory.”

R., Vol. XII at 78. The district court committed no clear error in determining that

M r. Robbins caused a tax loss in excess of $400,000 and sentencing him based on

that amount.

                                         V.

      M r. Robbins’ final issue is his claim that the district court committed error

in ordering him to pay $11,430.66 as the costs of prosecution without hearing

evidence to justify the assessed amount. The imposition of the costs of

prosecution is mandatory under the controlling statute, w hich provides that a

person convicted of filing a false tax return “shall be fined not more than

$100,000 . . . , or imprisoned not more than 3 years, or both, together with the

costs of prosecution.” 26 U.S.C. § 7206 (emphasis added).

      The presentence report (PSR) was the source of the assessed amount. In

his written response to the PSR, M r. Robbins objected generally to the imposition

of the costs of prosecution, but made no objection to the proposed amount.

Outside of the Booker context, a court may rely “on . . . unobjected-to facts




                                         -8-
for . . . sentencing purposes.” United States v. Wolfe, 435 F.3d 1289, 1299

(10th Cir. 2006).

      This practice is consistent with Fed. R. Crim. P. 32(i)(3)(A), which obliges

a defendant “to point out factual inaccuracies included in the PSR. And requiring

a defendant to challenge any factual inaccuracies in the PSR before or during

sentencing permits the district court to address those objections at a time and

place when the district court is able to resolve those challenges.” Id.

       M oreover, M r. Robbins was given a second opportunity to make an

appropriate objection. At the sentencing hearing, the district court made findings

of fact, including a determination that costs of prosecution amounted to

$11,430.66. It then specifically asked if there were “[a]ny objections to the

Court’s findings of fact that haven’t already been discussed.” R., Vol. XII at 69.

M r. R obbins’ counsel responded that he had no further objections.

      Contrary to M r. Robbins’ contentions, an objection to the imposition of

prosecution costs is analytically distinct from an objection to the calculation of

the amount of those costs. Because M r. Robbins did not make a proper objection

at the appropriate time, we review the costs issue for plain error. United States

v. Traxler, Nos. 05-2370, 06-2179, 2007 W L 614266, *6 (10th Cir. M ar. 1, 2007).

And we find no such error in the district court’s adoption of the amount of

prosecution costs proposed in the PSR.




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The judgment of the district court is AFFIRMED.



                                          Entered for the Court


                                          M onroe G. M cKay
                                          Circuit Judge




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