                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
___________

No. 08-1150
___________




                                          District Court for the
___________                               Western District of Missouri.

United States of America,              *
                                       *
            Appellee,                  *
                                       *
      v.                               *
                                       *
Shirley Aldridge,                      *
                                       *
            Appellant.                 *
                                  ___________




                                     BENTON, Circuit Judges.
                                  ___________
BENTON, Circuit Judge.

       A jury convicted James Elbert Aldridge, Jr., and Shirley Lorraine Aldridge on
five counts of aiding and abetting the filing of false tax returns, 26 U.S.C. § 7206(1)
and 18 U.S.C. § 2. The Aldridges appeal, alleging grand jury, trial, and sentencing
errors. Jurisdiction being proper under 28 U.S.C. § 1291, this court affirms.


                                           I.

      In September 1991, James Aldridge became a partner in Concept Marketing
International (CMI), a nationwide retail business selling gold and silver coins.
Investors purchased coins from CMI, and made commission profits by recruiting new
buyers to form a four-tier syndicate.

       CMI also sold consumers a trust system. Taxpayers created various trusts
where they placed their assets. James Aldridge advised purchasers that, by funneling
funds through the trusts, they could eliminate their tax liability by deducting personal
expenses from taxable income.

      The Aldridges personally used the trust system. Between 1999 and 2004, the
Aldridges filed Form 1040 returns that failed to report taxable income of $1,685,381,
causing a tax deficiency of $654,257. In four of those years, the Aldridges filed
returns claiming the earned income tax credit.

       In 2001 and 2002, respectively, tax accountants Brenda Fritts and Gary
Edwards informed James Aldridge that these personal expense deductions were
illegal. An investor, Charles Schurle, also told Aldridge that his tax attorney and
accountant advised against the trust system. Nevertheless, Aldridge persisted in
taking the deductions, and advised clients to do so without discussing the trust
provisions with tax attorneys or accountants. In January 2004, CMI and Liberty

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Commerce Group trusts (LCGT), two trusts under the Aldridges’ control, were given
a cease-and-desist order from the State of Missouri Securities Division. The two
trusts, claiming to offer investors a 97% tax deduction for personal expenses, were
ordered to stop omitting material facts.

      On July 9, 2004, an Internal Revenue Service special agent served grand jury
subpoenas on the Aldridges, requiring them to produce documents before a federal
grand jury. The Aldridges twice failed to produce the requested documents. The
government filed a motion for criminal contempt. The district court1 allowed the
Aldridges nearly four additional months to comply with the subpoenas, and eventually
dismissed the contempt motion. The grand jury returned a five-count indictment
charging the Aldridges with filing false tax returns.

       A jury trial commenced. The court denied the Aldridges’ motions for acquittal,
mistrial, and the district judge’s recusal based upon bias. During a ten-day trial, the
court admitted evidence of: 1) CMI’s pyramid sales scheme; 2) the cease-and-desist
order from the Missouri Securities Division against CMI and LCGT; and 3) an
extramarital relationship between James Aldridge and an employee. The Aldridges
submitted jury instructions alleging a bona fide contract between the trusts and them.
The court refused the instructions, instructing the jury on the Aldridges’ defense of
good faith and reliance on the advice of tax experts. The Aldridges were convicted
on all counts.

       At sentencing, the court considered evidence that James Aldridge was
responsible for tax losses incurred by taxpayers involved with CMI or the trusts.
Adopting the presentence investigation report, the court found James Aldridge
responsible for $654,257 in personal taxes due and $427,770 in third-party tax
deficiencies for a combined loss of $1,082,027. The court applied U.S.S.G. § 2T1.1,
      1
        The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
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assigning a base offense level of 22. The court increased James Aldridge’s total
offense level to 28 based upon special offense characteristics, abuse of trust, and
perjurious testimony. The court determined James Aldridge’s advisory guideline
range as 78 to 97 months. The court applied an upward variance because the
Guidelines did not adequately account for the harm to and number of third-parties.
The court imposed a 108-month sentence on James Aldridge.

      The court found Shirley Aldridge responsible for a tax loss of $654,257,
assigning a base offense level of 20. After increases for special offense characteristics
and perjurious testimony, the court imposed a 63-month sentence based upon a total
offense level of 24.

                                           II.

       The Aldridges contend that their indictments should have been dismissed
because the prosecutor and IRS special agent misled the grand jury about the proper
tax treatment of trusts. Well-established case law rejects the Aldridges’ argument.
See United States v. Taken Alive, 513 F.3d 899, 903-904 (8th Cir. 2008) (where petit
jury found defendant guilty, grand jury error is rendered harmless); United States v.
Ruiz, 446 F.3d 762, 769 (8th Cir. 2006) (“The petit jury’s ultimate finding of guilt
beyond a reasonable doubt renders the alleged grand jury error, if any, harmless.”)
(citation omitted); United States v. Sanders, 341 F.3d 809, 818 (8th Cir. 2003)
(same).

                                          III.

       The Aldridges claim that the district court committed trial error by: 1)
directing a guilty verdict; 2) failing to properly instruct the jury; 3) demonstrating a
pattern of prejudice and bias; 4) denying their motion for acquittal; 5) convicting


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them based upon insufficient evidence; 6) denying their motion for a mistrial; and
7) improperly admitting evidence.

       The Aldridges allege that the district court directed a guilty verdict against
them. They claim the district court commented, in the presence of the jury, that the
Aldridges could not challenge the IRS’s determination that they were guilty of
operating “sham” trusts. The Aldridges also argue that the court failed to properly
instruct the jury as to their theory of the case – they performed in good faith under a
bona fide trust contract. A defendant is entitled to a theory-of-defense instruction that
is timely requested, supported by the evidence, and correctly states the law. United
States v. Claxton, 276 F.3d 420, 423 (8th Cir. 2002). The district court “has broad
discretion in formulating the jury instructions.” United States v. Johnson, 278 F.3d
749, 751 (8th Cir. 2002). This court reviews the instructions as a whole, and affirms
if they “fairly and adequately submitted the issues to the jury.” Id. at 752.

       The record does not support the Aldridges’ claim that the court directed a guilty
verdict. At a bench conference, the court informed counsel that the question before
the jury was whether the Aldridges willfully filed false tax returns, not whether the
trusts were properly administered or a “sham.” The jury was instructed as to the
Aldridges’ good faith defense (Jury Instruction No. 22) and their reliance on the
advice of an attorney, accountant, or other tax expert (Jury Instruction No. 23). The
court committed no error.

       The Aldridges assert that the district court judge demonstrated prejudice and
bias that required recusal. A federal judge “shall disqualify himself in any proceeding
in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a).
Recusal is within the sound discretion of the district court, and that decision is
reviewed for an abuse of discretion. In re Kansas Pub. Employees Retirement Sys.,
85 F.3d 1353, 1358 (8th Cir. 1996). The test for recusal is “whether the judge’s
impartiality might reasonably be questioned by the average person on the street who

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knows all of the relevant facts of a case.” Moran v. Clarke, 296 F.3d 638, 648 (8th
Cir. 2002) (en banc); accord United States v. Jordan, 49 F.3d 152, 156 (5th Cir.
1995) (considering how the facts would appear to a “well-informed, thoughtful and
objective observer, rather than the hypersensitive, cynical, and suspicious person”);
Clemens v. United States Dist. Court for the Central Dist. of California, 428 F.3d
1175, 1178 (9th Cir. 2005) (same); Matter of Mason, 916 F.2d 384, 386 (7th Cir.
1990) (same).

       Disqualification of a judge for bias is seldom appropriate unless the bias derives
from an “extrajudicial source.” United States v. Darden, 70 F.3d 1507, 1536 (8th Cir.
1995). Absent this, the record must evince a “deep-seated favoritism or antagonism
[on the part of the judge] that would make fair judgment impossible.” Liteky v. United
States, 510 U.S. 540, 555 (1994). In this case, there was no evidence of extrinsic bias;
nor does this court conclude that the trial judge exhibited a deep-seated favoritism or
antagonism. The trial judge allowed the Aldridges nearly four additional months to
comply with grand jury subpoenas, and dismissed the government’s contempt motion
despite the Aldridges’ repeated failure to timely produce requested records.

       The Aldridges challenge the district court’s denial of their motion for acquittal.
They allege the government failed to prove that they knew their tax returns were false.
Reviewing the denial of a motion for acquittal, this court views the evidence in the
light most favorable to the jury’s verdict, resolves all evidentiary conflicts in favor of
the government, and accepts all reasonable inferences supported by the evidence.
United States v. No Neck, 472 F.3d 1048, 1052 (8th Cir. 2007), citing United States
v. Littrell, 439 F.3d 875, 880 (8th Cir. 2006). This court reverses “only if no
reasonable jury could have found the defendant guilty beyond a reasonable doubt.”
Id. At trial, the government presented: 1) testimony from Fritts, Edwards, and Schurle
that James Aldridge knew the illegality of the tax scheme; 2) a cease-and-desist order
from the Missouri Securities Division; and 3) statements by Shirley Aldridge that,
based upon their reported income, she had a “concern that [their] tax return would be

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pulled” if they didn’t take the earned income credit. The district court did not err in
denying the motion for acquittal.

       The Aldridges claim that there was insufficient evidence to support a guilty
verdict. They raise, for the first time, provisions of the Office of Law Revision
Counsel to establish that they acted pursuant to the terms of the trusts and applicable
tax law. Issues not raised in the district court are reviewed for plain error. See United
States v. Chahia, 544 F.3d 890, 899 (8th Cir. 2008), citing United States v.
Abdullahi, 520 F.3d 890, 896 (8th Cir. 2008). The government proved that the
Aldridges exclusively controlled the trusts from 1999 through 2004, and neither the
trusts nor the Aldridges reported the proper income. The evidence was sufficient to
sustain the guilty verdict, and there was no plain error.

       The Aldridges assert that a motion for mistrial should have been granted.
Because the brief does not support this assertion with any argument, this court deems
the issue abandoned. See United States v. Gonzales, 90 F.3d 1363, 1369-70 (8th Cir.
1996) (“Rule 28(a)(6) of the Federal Rules of Appellate Procedure requires an
appellant's brief to ‘contain the contentions of the appellant on the issues presented,
and the reasons therefor, with citations to the authorities, statutes, and parts of the
record relied on.’ Failure to abide by this provision on an issue is deemed to be an
abandonment of that issue.”) (citation omitted); United States v. Brooks, 175 F.3d
605, 606-07 (8th Cir. 1999); Milligan v. City of Red Oak, Iowa, 230 F.3d 355, 360
(8th Cir. 2000).

       The Aldridges also contend that the district court improperly admitted the
following evidence in violation of the Rule 404(b) of the Federal Rules of Evidence:
1) an illicit affair between James Aldridge and his secretary; 2) CMI’s pyramid sales
scheme; and 3) the cease-and-desist order against CMI and LCGT. See Fed. R. Evid.
404(b) (providing that evidence of prior bad acts, though inadmissible to show that
a person acted in conformity with the prior acts, may be admissible for other purposes

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such as proof of motive, opportunity, intent, and absence of mistake or accident). The
district court’s evidentiary rulings are reviewed for an abuse of discretion. United
States v. Durham, 470 F.3d 727, 731 (8th Cir. 2006). This court reverses a 404(b)
ruling only when such evidence clearly had no bearing on the case and was introduced
solely to prove a defendant’s propensity to commit criminal acts. United States v.
Howard, 235 F.3d 366, 372 (8th Cir. 2000).

       First, regarding the affair, Rule 404(b) does not bar evidence that completes the
story of the crime or explains the relationship of the parties. See United States v.
Rock, 282 F.3d 548, 551 (8th Cir. 2002); United States v. Rodriguez, 859 F.2d 1321,
1326 (8th Cir. 1988). In this case, James Aldridge’s relationship with his secretary
was offered to prove why she perjured herself before the grand jury: to protect James
Aldridge at his request. The secretary’s testimony about the relationship was also
necessary to establish how she obtained detailed knowledge of the workings of CMI
and LCGT.

       Second, regarding the pyramid scheme,“crimes or acts which are ‘inextricably
intertwined’ with the charged crime are not extrinsic and Rule 404(b) does not apply.”
United States v. Adams, 401 F.3d 886, 899 (8th Cir. 2005), citing United States v.
O'Dell, 204 F.3d 829, 833 (8th Cir. 2000). CMI’s business plan generated income by
requiring that each investor recruit other investors to form a 1,296-person pyramid.
This income was funneled through the Aldridges’ trusts, and inextricably intertwined
with the fraudulent trusts.

       Third, as to the cease-and-desist order, Rule 404(b) permits evidence
establishing knowledge, intent, and lack of mistake. See United States v. Frost, 234
F.3d 1023, 1025 (8th Cir. 2000); United States v. Sparkman, 500 F.3d 678, 683 (8th
Cir. 2007). The order was, in part, based upon the tax deductions featured by CMI
and LCGT investments. The cease-and-desist order is admissible as proof of
knowledge, intent, or lack of mistake regarding the fraudulent trust system. The court
did not abuse its discretion by admitting the evidence at trial.

                                          -8-
       The Aldridges do not establish trial error. Their convictions are affirmed.

                                            IV.

       The Aldridges allege sentencing error based upon the Fifth and Sixth
Amendments. James Aldridge also challenges the assignment of third-party tax losses
to his sentence under U.S.S.G. § 2T1.1.

                                             A.

       The Aldridges argue that their sentences were enhanced by third-party
statements not presented before the jury or at the sentencing hearing, in violation of
the Fifth and Sixth Amendments. To the contrary, a sentencing court does not violate
the Sixth Amendment by making determinations on enhancements not presented to
a jury. United States v. Wallace, 408 F.3d 1046, 1048 (8th Cir. 2005) (per curiam).
The Sixth Amendment right to confrontation and cross-examination is inapplicable
here.

                                             B.

       James Aldridge raises the issue that the district court improperly calculated the
guidelines range by including third-party tax losses in calculating the base offense
level. The district court adopted the presentence investigation report’s determination
that, under § 2T1.1, James Aldridge is responsible for a tax loss of $1,082,027, which
included $427,770 in third-party tax deficiencies. He did not object to the resulting
Guidelines range at sentencing. This court reviews for plain error. See United States
v. Plancarte-Vazquez, 450 F.3d 848, 854 (8th Cir. 2006). This court “will correct a
plain error only if it affected his substantial rights and ‘seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.’” Id., quoting United States v.

                                            -9-
Olano, 507 U.S. 725, 736 (1993); see United States v. Pirani, 406 F.3d 543, 550 (8th
Cir. 2005) (en banc).

       Guideline § 2T1.1 applies to tax fraud convictions under § 7206(1). The
offense level is based on the tax loss attributable to the defendant’s conduct.
“Relevant conduct for sentencing is viewed broadly: ‘In determining the total tax loss
attributable to the offense . . ., all conduct violating the tax laws 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.’” United States v. Ervasti, 201 F.3d
1029, 1042 (8th Cir. 2000), quoting U.S.S.G. § 2T1.1(c)(1) cmt. application n.2.
Tax loss is “the total amount of loss that was the object of the offense (i.e., the loss
that would have resulted had the offense been successfully completed).” U.S.S.G. §
2T1.1(c)(1).

       The record establishes that James Aldridge filed his taxes using the same
trust/deduction system that he advised customers to use. Viewed broadly, James
Aldridge’s advice to third-parties was “relevant conduct” as part of a related “common
scheme or plan.” See U.S.S.G. § 1B1.3(a)(2). The district court did not commit plain
error by including third-party tax losses in James Aldridge’s base offense level.

                                           C.

       James Aldridge also alleges that the sentencing court impermissibly considered
hearsay evidence when attributing third-party tax losses to him. “In making factual
findings in support of a particular sentence, a district court may consider any evidence
that has ‘sufficient indicia of reliability to support the conclusion that it is probably
accurate.’” United States v. Sanchez, 461 F.3d 939, 948 (8th Cir. 2006) (citation
omitted); see also United States v. Wise, 976 F.2d 393, 402 (8th Cir. 1992) (holding
that reliable hearsay evidence may be considered so long as it has “sufficient indicia
of reliability”). Judicial findings at sentencing must be established by a

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preponderance of the evidence. See United States v. Gordon, 510 F.3d 811, 817-18
(8th Cir. 2007). This court reviews “the district court’s fact-finding related to the
calculation of an advisory guidelines sentence for clear error.” United States v.
Alvarez, 478 F.3d 864, 868 (8th Cir. 2007).

        At sentencing, the court heard testimony from an IRS agent about the taxpayers
involved with CMI or the trusts, and the losses to the government, which were based
upon deficiencies already paid, on appeal, or in current litigation. The agent’s
testimony was based upon: 1) CMI and LCGT client records; 2) bank records; 3) IRS
records of the third-parties; 4) discussions with the IRS agent reviewing the accounts
of the taxpayers; and 5) the agent’s 23 years experience with the IRS. The IRS agent
testified that the tax deficiencies were related to the reason for the audit “around 95
percent [of the time], if not higher.” The evidence presented at the sentencing hearing
met the required indicia of reliability. The court did not clearly err in finding by a
preponderance of the evidence that James Aldridge caused the third-party tax losses.

                                          V.

      The judgment of the district court is affirmed.
                     ______________________________




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