09-0336-cr
USA v. Elia (Elyaho)

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 22nd day
of April, two thousand ten.

Present:
           RALPH K. WINTER,
           ROBERT A. KATZMANN,
                      Circuit Judges,
           JED S. RAKOFF,
                      District Judge.*


________________________________________________

UNITED STATES OF AMERICA,

           Appellee,

                  v.                                            No. 09-0336-cr

YEHEZKEL ELIA,

           Defendant,

DAVID ELYAHO,


       *
          The Honorable Jed S. Rakoff of the United States District Court for the Southern
District of New York, sitting by designation.
            Defendant-Appellant.


________________________________________________

For Defendant-Appellant:                    JOSEPH A. VITA , Port Chester, N.Y.

For Appellee:                               SEETHA RAMACHANDRAN , Assistant United States
                                            Attorney (Katherine Polk Failla, Assistant United States
                                            Attorney, on the brief), for Preet Bharara, United States
                                            Attorney for the Southern District of New York, New,
                                            York, N.Y.


       Appeal from the United States District Court for the Southern District of New York
(Karas, J.).

        ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court be and hereby is AFFIRMED.

        Defendant-Appellant David Elyaho was convicted (following a jury trial) of three counts

of tax evasion in violation of 26 U.S.C. § 7201. Prior to sentencing, Elyaho objected to certain

portions of the Presentence Report arguing, inter alia, that (1) he should receive acceptance of

responsibility credit despite having put the Government to its burden at trial, and (2) the district

court should exclude unpaid state tax liabilities in calculating the total tax loss attributable to his

offense conduct. The district court heard oral argument on Elyaho’s objections at his sentencing,

after which it determined that the defendant did not qualify for acceptance of responsibility credit

and that the total tax loss properly included unpaid state taxes. The district court sentenced

Elyaho primarily to 15 months’ imprisonment on each count to run concurrently, which was the

low end of the applicable Guidelines range. On appeal, defendant argues that the district court

committed reversible error by denying him credit for acceptance of responsibility and by including


                                                    2
state tax liabilities in calculating the total tax loss. We assume the parties’ familiarity with the

facts, procedural history, and specification of issues on appeal.

        The defendant bears the burden of demonstrating that he qualifies for an adjustment for

acceptance of responsibility. See U.S.S.G. § 3E1.1(a); United States v. Smith, 174 F.3d 52, 55-

56 (2d Cir. 1999). We review a district court’s grant or denial of credit for acceptance of

responsibility for clear error, as such a determination is primarily a factual issue. See United

States v. Sewell, 252 F.3d 647, 652 (2d Cir. 2001). Such a factual determination is “entitled to

great deference on review” and “should not be disturbed unless it is without foundation.” United

States v. Taylor, 475 F.3d 65, 68 (2d Cir. 2007) (per curiam) (internal quotation marks omitted).

        A defendant who “clearly demonstrates” acceptance of responsibility for his offense is

entitled to a 2-level reduction pursuant to § 3E1.1. Application Note 2 to Section 3E1.1 clarifies:

        This adjustment is 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, cmt. n.2. “Conviction by trial, however, does not automatically preclude a

defendant from consideration for such a reduction.” Id. In “rare situations” a defendant may

demonstrate acceptance of responsibility “even though he exercises his constitutional right to a

trial,” as “where a defendant goes to trial to assert and preserve issues that do not relate to factual

guilt.” Id.

        Against this backdrop, we find that the district court plainly did not commit reversible

error in denying the defendant credit for acceptance of responsibility. Elyaho clearly contested his

factual guilt as to all of the charges against him and put the Government to its burden of proof.

For instance, Elyaho attempted to exclude from evidence a mortgage application in which he


                                                   3
stated his income to be $180,000, which demonstrated that he had understated his income in his

W-2 forms. After the attempt to exclude failed, Elyaho refused to stipulate to the authenticity of

the evidence. Once the mortgage application was ultimately admitted, the defendant then argued

that he had overstated his income to procure a “cash-out” loan. Throughout the trial, Elyaho

joined Elia’s objections where the evidence implicated Elyaho and mounted an attack on the

Government’s cooperating witnesses to undermine their credibility. Revealingly, Elyaho had the

option of pleading to the individual tax evasion counts and go to trial only on the conspiracy

count, but he instead chose to “take his chances” and go to trial on all of the counts. Because

Elyaho vigorously challenged his factual guilt as to all charges against him, the defendant clearly

fails to qualify for an adjustment for acceptance of responsibility. See United States v. Castano,

999 F.2d 615, 617 (2d Cir. 1993) (per curiam) (“Nothing in the record indicates that [the

defendant] had any purpose in going to trial other than to deny his factual guilt.”).

       As to the inclusion of state tax liabilities in calculating the total tax loss attributable to

Elyaho’s offense conduct, we have no difficulty affirming the district court in light of United

States v. Fitzgerald, 232 F.3d 315 (2d Cir. 2000) (per curiam), in which this Court affirmed the

district court’s inclusion pursuant to U.S.S.G. § 2T1.1 of state and city tax evasion as relevant

conduct. 232 F.3d at 318. We decline defendant’s invitation to disturb binding precedent in the

absence of any compelling reason to do so.

       We have considered the defendant’s remaining arguments and find them to be without

merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.

                                                    FOR THE COURT:
                                                    CATHERINE O’HAGAN WOLFE, CLERK




                                                   4
