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                                                                           [PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 15-11720
                               ________________________

                      D.C. Docket No. 2:13-cr-00121-SPC-DNF-1



UNITED STATES OF AMERICA,

                                                                           Plaintiff-Appellee,

                                            versus

RONALD FRANCIS CROTEAU,

                                                                        Defendant-Appellant.

                               ________________________

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

                                       (April 11, 2016)

Before HULL, JULIE CARNES and BARKSDALE, * Circuit Judges.

HULL, Circuit Judge:


       *
        Honorable Rhesa H. Barksdale, United States Circuit Judge for the Fifth Circuit, sitting
by designation.
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      Following a jury trial, Ronald Croteau appeals his conviction and 56-month

sentence for ten counts of making false, fictitious, or fraudulent claims on his tax

returns, in violation of 18 U.S.C. § 287 and 2, and one count of corruptly

interfering with the administration of internal revenue laws, in violation of

26 U.S.C. § 7212(a). Croteau appeals both (1) the sufficiency of the evidence

supporting the jury’s verdict, and (2) the procedural and substantive reasonableness

of his sentence. After reviewing the parties’ briefs and the record, and with the

benefit of oral argument, we affirm.

                                I. BACKGROUND

A.    Offense Conduct

      The eleven-count indictment against defendant Croteau charged that from

September 2008 to September 2010, Croteau filed at least ten false income tax

returns with the IRS and created, submitted, and recorded various other false,

fictitious, or fraudulent documents with the IRS and other government entities.

We recount the evidence presented to the jury, viewing that evidence in the light

most favorable to the government and drawing all reasonable inferences in favor of

the verdict. United States v. Hunt, 526 F.3d 739, 744 (11th Cir. 2008).

      In September 2008, defendant Croteau filed three false and fraudulent tax

returns for tax years 2006, 2007, and 2008. In these returns, Croteau reported that

he was entitled to refunds totaling approximately $400,000 for these years.


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Croteau signed the forms under penalty of perjury, and he requested that the

refunds be deposited into his bank account.

       As substantiation for his tax returns, Croteau separately mailed to the IRS

“transmittal-of-information” forms with attached 1099-OID (Original Issue

Discount) forms purportedly issued to him by various financial institutions. The

1099-OID forms reported that the financial institutions had issued interest income

to Croteau and had withheld sums for federal tax purposes. Croteau’s tax returns

sought refunds of the money withheld.1 Not only was the financial information in

these forms false, but so were the forms themselves. None of the financial entities

listed on Croteau’s 1099-OID forms had issued any interest income, much less

withheld such income for which Croteau sought a refund. In response, a month

later in October 2008, the IRS mailed Croteau a letter notifying him that he had

provided the IRS with frivolous tax information.2

       In November 2008, after Croteau submitted amended tax returns for 2006,

2007, and 2008, which still contained fictitious and fraudulent information, the IRS
       1
         A 1099-OID form is an income-reporting document issued by financial institutions to
purchasers of debt instruments such as bonds. The purchaser buys the debt instrument from the
financial institution at a price discounted from the instrument’s value at maturity. The difference
in purchase price and value at maturity is taxable income that must be amortized and reported by
the tax payer incrementally over the life of the loan. See generally United States v. Hesser, 800
F.3d 1310, 1320-21 (11th Cir. 2015) (discussing mechanics and tax implications of OID interest
income and 1099-OID forms).
       2
         Croteau’s attempted fraud was identifiable to the IRS because a tax return that reports
that a taxpayer’s withheld income is identical to his 1099-OID income is inherently frivolous.
The amount of withholding reflected on a valid 1099-OID form is always less than the amount of
income paid because interest income is not taxed at 100%.
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sent Croteau another letter. The letter warned Croteau that the tax return

information he had submitted in September 2008 contained frivolous tax

information, which reflected “a desire to delay or impede the administration of

Federal tax laws.” The letter explained that “[f]ederal courts, including the

Supreme Court of the United States, [had] considered and repeatedly rejected, as

without merit, positions” that Croteau had taken in his tax returns.

      The IRS gave Croteau 30 days in which to file corrected information and

threatened to impose a $5,000 penalty if he did not or if he again submitted a

frivolous tax return. The IRS included with the letter a copy of a publication

entitled “Why Do I Have to Pay Taxes?” and urged Croteau to seek advice from a

competent tax professional or qualified attorney. Croteau promptly contacted the

IRS in December 2008 requesting the IRS to cancel the 2007 and 2008 returns he

had filed because the amounts were incorrect, and he indicated that he would

contact his accountant. The IRS responded with a letter thanking Croteau for his

cooperation.

      Over the course of the next two years, this pattern repeated itself as

(1) Croteau would submit tax returns claiming hundreds of thousands of dollars in

refunds based on false and fraudulent financial information, (2) Croteau would

likewise submit false and fraudulent supporting financial information to

substantiate his returns in the form of fraudulent 1099-OID forms containing false


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income and withholding information, which the banks had not actually issued,

(3) the IRS would then warn Croteau that it had discovered his frivolous

submissions and that he was required to submit corrected information or be

penalized, and (4) Croteau would then respond by admitting that he had made

mistakes in his filings. The IRS assessed Croteau with three $5,000 penalties in

total. The IRS never issued any refunds to Croteau because it successfully

identified all his tax returns and refund information as being frivolous.

      Yet again, in April 2009, Croteau filed two more frivolous tax returns

containing false and fraudulent information. He filed a 1040 form for 2007 by

mail, and he filed one for 2008 electronically. In his 2007 return, Croteau reported

that he had earned taxable interest and total income of $147,557, that he owed

taxes of $32,977, that $146,665 had been withheld, and that he was due a refund of

$113,688. In his 2008 return, Croteau reported that he had earned taxable interest

and total income of $1,000,011, that he owed taxes of $325,877, that $952,958 had

been withheld, and that he was due a refund of $627,081. As before, Croteau

submitted false and fictitious 1099-OID forms purportedly issued by several

financial institutions as substantiation for his tax returns.

      In May 2010, Croteau submitted two virtually identical false and frivolous

2009 tax returns claiming a refund of $957,670 based on tax payments he




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purportedly had made in 2008. He submitted one of these tax return forms by mail

and the other electronically. Both his claimed tax payments and returns were false.

      Then, in September 2010, Croteau mailed another false and frivolous 2007

tax return but altered the form to pertain to 2008. His supporting documentation

likewise pertained to 2008. Croteau claimed a refund of $538,733. He also

attached bogus 1099-OID forms purporting to show that 100% of his OID interest

income had been withheld.

      None of the financial institutions had actually issued the various 1099-OID

forms that Croteau submitted along with his tax returns. These financial

institutions also had no records that substantiated the information in Croteau’s

forms.

      The IRS also had no record that Croteau had been paid 1099-OID interest

income for tax years 2006, 2007, or 2008.

      During much of this span, Croteau availed himself of the IRS’s Filing

Information Returns Electronically (“FIRE”) system, an online computer system

that businesses and financial institutions typically use to submit information

returns to the IRS. The IRS uses these information returns to verify information

that individual tax payers submit in their personal tax returns. Croteau used the

FIRE system to submit dozens of 1099-OID information files to the IRS between

March 2009 and September 2010 in support of his various tax return submissions.


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      Also from 2008 to 2012, Croteau created, submitted, and recorded various

fictitious and fraudulent documents claiming rights to millions of dollars owed him

by the U.S. Treasury and various government agencies and officials. For example,

Croteau sent multiple fictitious and fraudulent financial instruments resembling

stock certificates to the Secretary of the Treasury claiming $300 million in bonds.

Croteau asked the Secretary to deposit the bonds for credit into Croteau’s “private

offset account.” Next to his signature on these documents, Croteau affixed a

fingerprint. A government witness from the U.S. Department of the Treasury

testified that though Croteau’s fictitious and fraudulent bond instruments exhibited

“indicia or hallmarks . . . intended to make [them] appear genuine,” other features

of the documents including the terminology used made it apparent that the

documents were “nonsense.”

      Croteau also recorded several false, fictitious, and fraudulent liens and

documents in the Lee County Clerk’s office asserting that the IRS and various IRS

officials owed him hundreds of millions of dollars in total. In August 2008,

Croteau signed and recorded a “Notice of Lien, Diplomatic Immunity and Identity

Bond on Land” and a “Private Discharging and Indemnity Bond” for $300 million.

A month later, in October 2009, Croteau recorded a “Constructive Notice &

Formal Complaint” printed on “Croteau & Associates The Law Men Group”

letterhead. This document stated that “Ronald-Francis of the family Croteau” had


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discharged debt to the IRS totaling $1,973,692.17 from his Federal Reserve Bank

trust account and that he had used the 1099-OID and 1099-A processes to

discharge his tax payments for 2007 and 2008. The document also stated that the

IRS and certain IRS employees and officials owed Croteau $1.3 million. None of

the people named in these liens or complaints ever had business dealings with

Croteau, and none owed him money.

B.    Indictment and Trial

      On August 21, 2013, a grand jury indicted Croteau with ten counts of filing

false, fictitious, and fraudulent tax returns with the IRS, in violation of 18 U.S.C.

§ 287 and 2. Croteau was charged for ten of the false and fraudulent tax returns he

filed between September 2008 and September 2010 for tax years ranging from

2006 to 2009, in which he claimed total refunds in excess of $3.8 million.

Separately, the grand jury indicted Croteau with one count of corruptly interfering

with the administration of internal revenue laws, in violation of 26 U.S.C.

§ 7212(a) and 18 U.S.C. § 2. This charge was based on the alleged false and

fraudulent tax returns covered by Counts One through Ten as well as the

supplementary submissions supporting the tax refunds including the 1099-OID

forms, the separate fictitious and fraudulent instruments Croteau submitted to the

U.S. Treasury Department, and the fictitious and fraudulent liens and documents

he recorded in the Lee County Clerk’s office.


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       The government called 19 witnesses in its case-in-chief who described in

detail defendant Croteau’s conduct related to his filing and recording numerous

false, fictitious, and fraudulent tax forms and other documents. One of the

government’s witnesses included IRS Special Agent Cameron Lalli.

       Agent Lalli testified that when he and another agent had arrested Croteau in

November 2013, Croteau had agreed to be interviewed, and he had been carrying a

driver’s license and identification card from the Little Tribe of the Pembina Nation

indicating that he was a member of that tribe. 3 Agent Lalli testified that one can

pay to become a member of this tribe. After Agent Lalli explained to Croteau that

he was arrested for filing false tax returns, Croteau admitted that he had filed the

returns but claimed that he had made a mistake and had been trying to resolve the

problem with the IRS.

       At trial, Croteau’s defense strategy was not to contest that he had in fact

filed the false, fictitious, and fraudulent tax returns and various other financial

documents the government alleged, but rather to assert a good-faith defense. In his

opening statement, Croteau’s counsel explained to the jury:

             There really won’t be any dispute as to whether or not Mr.
       Croteau filed all the documents that were filed. It’s difficult if not


       3
          The record and the parties refer to this group by a variety of names, including the “Little
Tribe of the Pembina Nation,” “Pembina Nation Little Shell Band of North America,” “Little
Pembina Nation,” “Pembina Indian Nation,” and “Pembina Nation.” For simplicity, we use the
first of these, the “Little Tribe of the Pembina Nation.”
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      impossible to get away from paper documents that have been filed;
      that’s not our issue here.

Rather, his counsel explained, “Mr. Croteau had an honest belief that what he was

doing was correct.”

      Defendant Croteau took the stand to try to explain his conduct. On cross-

examination, Croteau admitted that he had signed and filed the tax returns covered

by at least Counts One through Eight in the indictment. He also admitted that he

had set up an account through the IRS’s FIRE system and that he had filed

numerous 1099-OID forms. Croteau conceded that several financial institutions

had not in fact paid him interest or withheld interest income as Croteau had

claimed they had, as substantiation for some of his tax returns.

      Croteau testified to receiving numerous warning letters from the IRS

informing him that he had filed frivolous and unlawful claims and warning of

potential consequences. He also testified that he had contacted the IRS about it

and was instructed to refile his taxes. Croteau admitted that he had been told that

the information on which he relied in initially filing his false and frivolous tax

returns—the information about submitting 1099-OID forms—was a “scam.”

Nevertheless, Croteau continued to file subsequent tax returns in the same manner

as his initial false and fraudulent tax returns. Croteau admitted that, even after he

had realized his “mistake,” he had sought a $146,667 refund in his 2007 amended

return. Despite knowing that the IRS viewed his OID filings as being a “scam,”
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Croteau went ahead and submitted returns for 2009 seeking refunds based on this

theory. Croteau also admitted that he recorded several documents with the Lee

County Clerk’s office, which alleged that others owed him millions of dollars,

even naming individuals as debtors Croteau admitted he knew did not actually owe

him any money.

      Prior to the fall of 2008, defendant Croteau had always filed his taxes

properly and without incident. He explained that up to that point, he had his

accountant Barry Woodrow do his income taxes for about ten years. During that

time, Woodrow filed Croteau’s tax returns and Croteau regularly paid taxes to the

IRS. Croteau explained that he had “perfect books” and was never audited.

      For example, in February 2006, Croteau and his wife authorized Woodrow

to file their 2005 joint income tax return. They claimed an adjusted gross income

of $238,741, including his wife’s wages ($48,469), interest ($88), business income

($4,000), capital gains ($270,462), and losses from rental real estate ($84,298).

They claimed that $2,941 of their income had been withheld and that they owed

$23,761 in taxes. Also, in August of 2007, Croteau authorized Woodrow to file his

2006 tax return, for which he was sent a $30 tax refund.

      Defendant Croteau also testified that for 25 years, he owned and operated a

welding company, which was profitable for a time, and he typically employed

between four and fifteen people. But things began to unravel. By 2005, Croteau’s


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business was failing. In 2006, Croteau was injured in an automobile accident and

hospitalized for approximately two weeks. Croteau’s wife filed for divorce.

      Defendant Croteau admitted that, after these events, he became involved

with a tax protester and sovereign citizen group called the Little Tribe of the

Pembina Nation. This group advocated that its members did not need to submit to

governmental authority or pay taxes. At his brother Armand’s prompting, Croteau

began researching the theories espoused by this group. As he read more and more,

Croteau concluded that the sovereign citizen theories “made real sense” to him.

He and his brother Armand “donated” approximately $700 to join the Little Tribe

of the Pembina Nation and have access to identification cards, driver’s licenses,

and other such materials put out by the group. One such card explained that

members were exempt from paying taxes.

      Croteau also ordered CDs on the Internet from, and watched YouTube

videos created by, a man named Winston Shrout, even paying $500 to attend one

of Shrout’s 2-day seminars. Croteau testified that based on the information from

these sources, he came to believe that he had a secret Federal Reserve bank

account containing money to which he was entitled. He also testified that he

learned from Shrout that he could access his “principal money” by using “1099-

OID.” He also came to believe based on these sources that the United States is a

corporation and that citizens are employees of that corporation.


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      In addition, Croteau called two witnesses to testify on his behalf. One was

Walker Todd, an attorney and tax-preparer who had worked for the Federal

Reserve Bank. Todd discussed a number of the sovereign citizen theories, such as

the idea that taxpayers can access secret accounts and the “redemption theory.”

Todd explained that these theories lacked “historical basis,” were “not real,” and

were “totally fantasy.” Todd explained that the IRS scam involving the use of

1099-OID forms emerged in the late 2000’s and is considered one of the top tax

scams in recent years. Todd testified that these ideas are promulgated through the

Internet, seminars, DVDs, and YouTube videos, with Winston Shrout being one of

the main proponents.

      Defendant Croteau’s other witness was Dr. Jethro Toomer. As a clinical and

forensic psychologist, Dr. Toomer was consulted by defense counsel and asked to

evaluate Croteau to assess his overall mental functioning as it related to Croteau’s

criminal charges. As part of that evaluation, Dr. Toomer interviewed Croteau once

and performed various tests on Croteau, including use of the fourth edition of the

Diagnostic and Statistical Manual of Mental Disorders (“DSM-IV”) to do the

clinical interview. Dr. Toomer concluded that Croteau suffered from mild

depression, schizoid personality disorder, and delusional disorder. Dr. Toomer

opined that Croteau’s delusional disorder caused him to be “very certain with

regard to his opinions” and to “believe[] that his view of the world is correct.” Dr.


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Toomer explained that such a disorder would cause someone like Croteau to be

fixed in his beliefs in spite of evidence to the contrary. Thus, Dr. Toomer opined

that Croteau’s delusional condition caused him to persist in filing frivolous tax

forms and documents despite repeated warnings and instructions by the IRS and

others that what he was doing was unwarranted. Dr. Toomer testified that

Croteau’s response to these IRS warnings was to conclude, “[T]hat’s wrong, that’s

not correct.” Dr. Toomer could not say, however, whether Croteau had truly

believed what he had said.

      On cross-examination, Dr. Toomer admitted that he had not reviewed

Croteau’s medical records, had not spoken to members of Croteau’s family or to

investigators, and had not performed neurological or neuro-psychiatric testing. Dr.

Toomer also did not recommend any further treatment for Croteau. Dr. Toomer

conceded that the DSM now instructs the examiner to take into account the

person’s religious and cultural background when diagnosing a person with

delusional disorder. Dr. Toomer agreed that a person is not considered delusional

if his belief is derived from membership or association with a particular subculture.

      The government called rebuttal witness Dr. Douglas Shadle, a board-

certified psychiatrist practicing mainly in the area of forensic psychiatry, who also

evaluated defendant Croteau in connection with his criminal charges. Dr. Shadle

examined Croteau’s past psychological evaluations, including Dr. Toomer’s and an


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evaluation by another doctor, as well as various documents related to the criminal

investigation, including materials about the Little Tribe of the Pembina Nation and

the sovereign citizen movement. Dr. Shadle performed a basic psychiatric

examination of Croteau and administered the Folstein Mini Mental screening test

for various psychological conditions. On this test, which evaluates orientation,

memory, recall, and abilities to read, write, and engage in conversation, Croteau

scored 28 out of 30 points, which placed Croteau above average.

      Dr. Shadle had “very little difficulty” interacting with Croteau, although

Croteau was apprehensive initially. Croteau was talkative, answered questions

appropriately, and displayed a suitable range of emotions, from sadness to humor.

Though Dr. Shadle found that defendant Croteau had a personality disorder

marked by antisocial and narcissistic behaviors as well as some mild depression,

Dr. Shadle firmly disagreed with Dr. Toomer’s delusional disorder diagnosis of

Croteau and disagreed that Croteau had any kind of schizoid personality disorder.

      In support of this opinion, Dr. Shadle first explained that unlike with the

DSM-IV—the outdated psychiatric evaluation framework Dr. Toomer had used to

examine Croteau—the up-to-date DSM-V evaluation framework instructs that

familiarity with a person’s culture or subgroup is now considered important for

purposes of diagnosing delusional disorders. Dr. Shadle explained that it is

possible to misdiagnose a person as having a delusional disorder if the clinician


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does not take into account the subgroups or cultures with which the patient

identifies. This is because when people associate with a particular culture or

subgroup, “within their culture . . . within the group that they associate with, that is

the way everybody proceeds.” In Croteau’s case, Dr. Shadle concluded that

despite the perhaps “misguided” nature of some of Croteau’s beliefs, nevertheless,

“it was all based in reality. It wasn’t a fixed delusional belief that had no

relationship whatsoever to the people [Croteau] associated with or his own life

history.”

      At the close of trial, the district court instructed the jury. The court’s

instructions outlined the elements of defendant Croteau’s false and fraudulent tax

return charges and his charge for corruptly interfering with the administration of

internal revenue laws. The court also instructed the jury regarding Croteau’s good-

faith defense.

      The jury convicted Croteau on all eleven counts. Subsequently Croteau filed

a Rule 29 motion for judgment of acquittal, which the district court denied.

C.    Sentencing

      Croteau’s presentence investigation report (“PSI”) recommended a total

offense level of 24, which factored in an intended tax loss of $3,848,991.70, under

U.S.S.G. §§ 2T1.1(c)(4) and 2T4.1(J). Croteau had a criminal history score of I.




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As a result, Croteau’s advisory guidelines range was 51 to 63 months’

imprisonment.

       Croteau filed a sentencing memorandum requesting a downward variance

and departure. 4 He sought a downward departure pursuant to U.S.S.G. §§ 5H1.3

and 5K2.13. He argued that he suffered from anxiety disorder, delusional disorder,

and a personality disorder, as testified by Dr. Toomer, and therefore that he

suffered from diminished capacity and was unable to understand the consequences

of his behavior. Croteau sought a downward variance based on, inter alia, his

alleged diminished capacity and the need to avoid sentence disparities among

defendants found guilty of similar conduct.

       At the sentencing hearing, after acknowledging the contents of the PSI, the

district court concluded Croteau’s guidelines range was 51 to 63 months’

imprisonment. The district court then considered Croteau’s arguments in favor of

a downward departure or alternatively a variance. The court heard further

testimony from Dr. Toomer regarding Croteau’s alleged psychological conditions.

Croteau’s counsel also argued that Croteau should receive a downward variance so

as to avoid a sentencing disparity because his brother Armand Croteau had only

received a 27-month sentence for similar conduct (and had pled guilty) and had

allegedly induced defendant Croteau to behave as he had. The court gave Croteau

       4
        Croteau also filed written objections to the PSI, and the district court ruled on those
objections. Croteau has not appealed any of those rulings.
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an opportunity to argue how the 18 U.S.C. § 3553(a) sentencing factors should be

applied in his case.

       The district court explained that it had considered the testimony of both Dr.

Toomer and Dr. Shadle as well as Croteau’s testimony and all other evidence

presented at trial. Based on that evidence, the court found that Croteau had

knowingly and intentionally committed the offenses charged. The court found

Croteau to be an “intelligent man” who had been able to run a business

successfully for many years. The court found no basis for a downward departure.

       The district court then explained that it had examined the relevant factors in

Croteau’s case. It had examined Dr. Toomer’s testimony, Croteau’s history and

characteristics, and the need for Croteau’s sentence to reflect the seriousness of the

offense. The court found that Croteau had not accepted responsibility for his

actions. As to Croteau’s sentencing disparity argument, the court concluded that

Armand Croteau’s circumstances differed from defendant Croteau’s in relevant

respects. Armand had pled guilty to three counts, testified to the actions he had

taken, and accepted responsibility for them. 5 The court also denied defendant

Croteau’s downward variance request.




       5
        The district court said Armand had pled guilty to two counts, but the record shows
Armand pled guilty to three counts (two counts of making false, fictitious, or fraudulent claims
and one count of corruptly interfering with the administration of internal revenue laws).
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       The district court then sentenced defendant Croteau to 56 months’

imprisonment on each of Counts One through Ten, and to 36 months’

imprisonment on Count Eleven, with all sentences to run concurrently. Croteau’s

sentence was within the advisory guidelines range.

                      II. SUFFICIENCY OF THE EVIDENCE

       We first consider defendant Croteau’s challenge to the sufficiency of the

evidence supporting his convictions.

A.     Standard of Review

       As noted earlier, when reviewing a challenge to the sufficiency of the

evidence supporting a conviction, 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. See United States v. Lebowitz, 676 F.3d 1000, 1013 (11th Cir.

2012); United States v. Hunt, 526 F.3d 739, 744 (11th Cir. 2008). 6 We will affirm

a conviction so long as “any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Hunt, 526 F.3d at 745

(quotation marks omitted).

       “It is well-established that credibility determinations are the exclusive

province of the jury.” United States v. Thompson, 422 F.3d 1285, 1292 (11th Cir.

2005) (quotation marks and alterations omitted). And, we “resolve any conflicts in

       6
        We review de novo a challenge to the sufficiency of the evidence and a district court’s
denial of a Rule 29 motion. Hunt, 526 F.3d at 744.
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favor of the government” and “assume that the jury made all credibility choices in

support of the verdict.” Lebowitz, 676 F.3d at 1013. Accordingly, “the jury’s

verdict will not be disturbed on appeal unless the testimony is incredible as a

matter of law.” United States v. Flores, 572 F.3d 1254, 1263 (11th Cir. 2009)

(quotation marks omitted).

      Criminal defendants may not be compelled by the government to testify, see

U.S. Const. amend. V, but where they choose to testify on their own behalf, they

“run[] a substantial risk of bolstering the Government’s case,” United States v.

Williams, 390 F.3d 1319, 1325 (11th Cir. 2004) (quotation marks omitted). This is

because “when a defendant chooses to testify, he runs the risk that if disbelieved

the jury might conclude the opposite of his testimony is true.” United States v.

Brown, 53 F.3d 312, 314 (11th Cir. 1995) (quotation marks omitted). Such an

inference, drawn from the defendant’s testimony and in combination with other

corroborative evidence, may be considered substantive evidence of his guilt. See

United States v. Hough, 803 F.3d 1181, 1188 (11th Cir. 2015) (citing United States

v. McCarrick, 294 F.3d 1286, 1293 (11th Cir. 2002)). “This rule applies with

special force where the elements to be proved for a conviction include highly

subjective elements” such as knowledge or intent. Brown, 53 F.3d at 315.

      And for purposes of proving mens rea, “[g]uilty knowledge can rarely be

established by direct evidence, especially in respect to fraud crimes which, by their


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very nature, often yield little in the way of direct proof.” United States v. Suba,

132 F.3d 662, 673 (11th Cir. 1998). Therefore, mens rea elements such as

knowledge or intent may be proved by circumstantial evidence. See United States

v. Santos, 553 U.S. 507, 521, 128 S. Ct. 2020, 2029 (2008); Suba, 132 F.3d at 673.

B.    Ten False Claim § 287 Convictions

      To establish the false claim charges for violating 18 U.S.C. § 287, the

government must prove that: (1) Croteau presented a claim against the United

States to an agency or department thereof; (2) such a claim was false, fictitious, or

fraudulent; and (3) Croteau knew that the claim was false, fictitious, or fraudulent.

See United States v. Hesser, 800 F.3d 1310, 1320 (11th Cir. 2015) (reviewing

convictions under § 287). The indictment charged that Croteau knowingly and

intentionally presented ten such claims by filing income tax returns with the IRS

that sought various income tax refund amounts, and that Croteau knew that his

claims were false, fictitious, and fraudulent with respect to material facts.

      When charging the jury, as to the first element, the district court instructed

that the jury must find that Croteau “knowingly presented a false claim.” The

court explained that the word “knowingly” means “that an act was done voluntarily

and intentionally and not because of a mistake or by accident.” As to the second

element, the court instructed that the jury must find that the “claim was based on a

false or fraudulent material fact.” As to the third element, the court instructed that


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a “claim is false or fraudulent if it is untrue when made or presented and the person

making or presenting it knows it is untrue.” The court added that “the government

does not have to show that the governmental department or agency was, in fact,

deceived or misled.”

      Here the government presented ample evidence to support Croteau’s ten

§ 287 convictions. The government elicited testimony from 19 witnesses including

IRS officials and investigators. These witnesses explained in detail how and why

Croteau’s tax returns were false and fraudulent, and their testimony established

that Croteau had indeed filed these returns. Croteau’s own testimony also largely

corroborated the government witnesses’ assertions about his conduct, generally

admitting that he had in fact filed the returns. And Croteau does not challenge the

conclusion that his false tax returns concerned material facts. Croteau’s principal

defense concerned the third element: that he lacked mens rea because he did not

know the tax returns he filed were false, fictitious, or fraudulent.

      In this case, the evidence sufficiently proved that defendant Croteau knew

the tax returns he filed with the IRS were false, fictitious, or fraudulent. For years,

with the help of his accountant Barry Woodrow, Croteau had properly filed his

taxes without incident. Specifically, in August 2007 Croteau authorized Woodrow

to file his 2006 tax return, for which he was sent a $30 tax refund. Croteau then

began filing his tax returns on his own based on theories espoused by the tax-


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protesting sovereign citizen group that he had joined. The method Croteau used

was inconsistent with how he had always filed his taxes before. Croteau admitted

that after using his new methods, he was warned numerous times by the IRS that

he had submitted frivolous tax returns and that he needed to correct these returns.

Those warnings stated that there was “no basis in the law” for the manner in which

Croteau had filed his returns and that Croteau’s “information reflect[ed] a desire to

delay or impede the administration of Federal tax laws.”

      Despite these warnings, Croteau persisted in filing false, fictitious, and

fraudulent tax returns in the same manner. Croteau also admitted he had lost his

business and his marriage, from which the jury could reasonably infer that Croteau

needed money. The jury readily could have concluded from the evidence that

defendant Croteau knew what was required of him in filing his tax returns; he

simply disregarded the law by trying to use a tax protester scheme. The jury was

also free to disbelieve Croteau’s testimony to the effect that he did not know the

tax returns he filed were false and instead “conclude the opposite of his testimony

is true.” See Brown, 53 F.3d at 314 (quotation marks omitted). The jury was

entitled to reject Croteau’s narrative.

      Defendant Croteau also argues that the government failed to prove criminal

intent because none of the government’s witnesses could testify about his

knowledge or intent. For example, Croteau points out that one such witness, called


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to testify about false and fraudulent financial instruments, conceded that the fact

that someone submits a fictitious document to a government entity does not itself

reveal why someone would do so or whether they had a valid reason to do so.

      But the government was not required to prove motive—it was simply

required to prove knowledge of falsity—and in doing so it was allowed to rely on

circumstantial evidence in establishing knowledge. See Suba, 132 F.3d at 673. It

amply did so. The government also was not required to prove that Croteau acted

with specific intent to violate the law or with specific intent to commit a crime to

prove violations of § 287. See Hesser, 800 F.3d at 1320 n.16 (explicitly

concluding that § 287 does not contain any specific intent element).

      The jury was also free to disbelieve the testimony of Croteau’s expert

witness, Dr. Toomer, who opined that Croteau suffered from a delusional disorder.

Based on the government’s cross-examination of Dr. Toomer, the jury reasonably

could have concluded that Dr. Toomer’s evaluation of Croteau was not thorough to

their satisfaction or even believable. The jury also reasonably could have

concluded that, in assessing whether Croteau was genuinely delusional, Dr.

Toomer had not adequately taken into account Croteau’s association with the tax-

protesting Pembina Nation group. That is because, if Croteau’s behavior was fully

consistent with beliefs perpetuated by the Little Tribe of the Pembina Nation, his

association with that group undercuts the suggestion that Croteau’s behavior was


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due to a genuine psychological condition. And in a battle of the experts, the jury

was free to believe the government’s expert witness, Dr. Shadle, that Croteau was

not delusional and reject Dr. Toomer’s testimony that Croteau was.

      Both parties agree that good faith is a defense to charged violations of § 287.

Defendant Croteau argues that “a good faith belief that the tax laws [have] been

satisfied, even if the belief is not reasonable,” is a complete defense to false tax

return crimes. The government does not contest Croteau’s assertion. We note,

however, that it is not clear whether good faith is a defense to a § 287 violation

because all of the cases the parties cite involve not only different tax statutes but

also statutes where “willfulness” or “specific intent” was an element of the charged

crime. See Cheek v. United States, 498 U.S. 192, 193, 199-201, 111 S. Ct. 604,

606, 609-10 (1991) (construing 26 U.S.C. § 7201, which requires proof of

willfulness, and indicating that where willfulness is an element, a defendant’s

asserted good faith belief that he has complied with the tax laws—even if

unreasonable—if believed by the jury, is a defense); United States v. Morris, 20

F.3d 1111, 1115 (11th Cir. 1994) (construing 26 U.S.C. § 7206(1), which requires

proof of specific intent or willfulness, and recognizing good faith to be a viable

defense to such a charged crime).

      Even assuming arguendo that a good faith defense were applicable in the

context of § 287 violations, defendant Croteau has not shown that no reasonable


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jury could have failed to find that he had established that defense. Indeed, as

outlined above, the evidence abundantly showed Croteau did not act in good faith.

Furthermore, the decisions Croteau cites are cases where courts reversed a

conviction and remanded on the basis that the defendant was denied a proper good

faith jury instruction to which he was entitled. Cheek, 498 U.S. at 203-04, 207,

111 S. Ct. at 611-13; Morris, 20 F.3d at 1115-18; United States v. Heller, 830 F.2d

150, 154-56 (11th Cir. 1987). In contrast here, the district court gave a good faith

jury instruction for all of Croteau’s charged crimes. In convicting Croteau, the jury

was free to disbelieve his testimony. See Williams, 390 F.3d at 1325. In sum, the

evidence was more than sufficient to support Croteau’s § 287 convictions.

C.    Corruptly Interfering § 7212(a) Conviction

      To establish the corruptly interfering charge for violating 26 U.S.C.

§ 7212(a), the government must prove that Croteau “corruptly . . . obstruct[ed] or

impede[d], or endeavor[ed] to obstruct or impede, the due administration of” the

internal revenue laws. 26 U.S.C. § 7212(a). The indictment charged in Count

Eleven that Croteau did so through various means including by filing false income

tax returns and by filing and submitting other false and fictitious documents and

instruments with various government entities.

      When charging the jury, the district court instructed that the jury must find

Croteau (1) “knowingly tried to obstruct or impede the due administration of the


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internal revenue laws,” and (2) “did so corruptly.” The court explained to the jury

that “[t]o act corruptly means to act knowingly and dishonestly for a wrongful

purpose.” The court further explained that “[t]o try to obstruct or impede is to

consciously attempt to act or take some step to hinder, prevent, delay, or make

more difficult the proper administration of the internal revenue laws.”

      This Court has held that to act corruptly includes “all activities that seek to

thwart the efforts of government officers and employees in executing the laws

enacted by Congress.” United States v. Popkin, 943 F.2d 1535, 1540 (11th Cir.

1991). When proving violations of § 7212(a), the government is not required to

prove that the administration of the internal revenue laws was actually obstructed

or impeded, but only that the defendant corruptly attempted to do so. See 26

U.S.C. § 7212(a); Popkin, 943 F.2d at 1535. And here, since the indictment

alleged alternative means by which Croteau violated § 7212(a), we need only find

that sufficient evidence supported the jury’s verdict as to any one of those means.

See United States v. Mozie, 752 F.3d 1271, 1283-84 (11th Cir. 2014).

      We easily conclude that the government presented sufficient evidence to

support Croteau’s conviction as to this § 7212(a) crime as well. As we have

discussed, the government presented ample evidence that Croteau filed at least ten

frivolous tax returns with the IRS during a two-year stretch, several of which

contained false, fictitious, and fraudulent information. Croteau submitted these


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forms, and documents purportedly substantiating these tax returns such as the

1099-OID forms, both via mail and electronically. Croteau was warned multiple

times by the IRS that his submissions reflected “a desire to delay or impede the

administration of Federal tax laws.” But Croteau kept submitting false and

fraudulent tax returns in the same manner anyway. Croteau also submitted false,

fictitious, and fraudulent instruments to the U.S. Treasury Department and

recorded multiple false, fictitious, and fraudulent documents with the Lee County

Clerk’s office, all alternative means of violating § 7212(a). Given Croteau’s

affiliations with the tax-protester group the Little Tribe of the Pembina Nation, a

jury could have readily and reasonably concluded that Croteau knowingly and

corruptly tried to obstruct or impede the due administration of the internal revenue

laws.

        We reject defendant Croteau’s argument that the government was required

to offer explanations for why Croteau would submit the various false, fictitious,

and fraudulent documents that he did. It is enough that Croteau tried to obstruct or

impede the IRS or other government entities. His motive for doing so is not

relevant.

        We also disagree that in assessing whether Croteau acted corruptly, our

sufficiency analysis must take into account whether the numerous documents

Croteau submitted were obviously fictitious or fraudulent. Croteau points to the


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testimony of one government witness who explained that it was apparent that

Croteau’s fictitious financial instruments filed with the U.S. Treasury Department

were “nonsense.” But § 7212(a) criminalizes attempts to obstruct or impede; there

is no requirement that Croteau succeed in obstructing or impeding. See 26 U.S.C.

§ 7212(a); Popkin, 943 F.2d at 1535. That same government witness also testified

that Croteau’s false, fictitious, and fraudulent financial instruments nevertheless

exhibited “indicia or hallmarks . . . intended to make [them] appear genuine.”

From this fact, among other evidence, a jury reasonably could have concluded that

Croteau acted with the necessary criminal intent.

      And as we have previously explained, the jury was free to reject Dr.

Toomer’s theory, that an alleged delusional disorder prevented Croteau from acting

with the necessary criminal intent. Simply put, the evidence was more than

adequate to support Croteau’s conviction for violating § 7212(a) as well.

                                III. SENTENCING

      Croteau also challenges the procedural and substantive reasonableness of his

sentence. He argues that the district court abused its discretion in denying his

motion for a downward departure under U.S.S.G. § 5K2.13 and § 5H1.3 or

alternatively a variance.




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A.    General Reasonableness Principles

      In reviewing the reasonableness of a sentence, we first ensure that the

district court committed no significant procedural error. Gall v. United States, 552

U.S. 38, 51, 128 S. Ct. 586, 597 (2007). We then examine whether the sentence

was substantively reasonable in light of the totality of the circumstances. Id. The

party challenging the sentence bears the burden to show that the sentence imposed

is unreasonable in light of the record and the 18 U.S.C. § 3553(a) factors. United

States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).

      As to the first step, we must “ensure that the district court committed no

significant procedural error, such as failing to calculate (or improperly calculating)

the Guidelines range, treating the Guidelines as mandatory, failing to consider the

§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing

to adequately explain the chosen sentence—including an explanation for any

deviation from the Guidelines range.” Gall, 552 U.S. at 51, 128 S. Ct. at 597.

      As to the second step—assessing substantive reasonableness—the district

court must impose a sentence sufficient, but not greater than necessary, to comply

with the purposes listed in 18 U.S.C. § 3553(a)(2), including the need to reflect the

seriousness of the offense, promote respect for the law, provide just punishment for

the offense, deter criminal conduct, and protect the public. See 18 U.S.C.

§ 3553(a)(2). The district court must also consider the nature and circumstances of


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the offense, the history and characteristics of the defendant, the kinds of sentences

available, the applicable guidelines range, the pertinent policy statements of the

Sentencing Commission, the need to avoid unwarranted sentencing disparities, and

the need to provide restitution to victims. 18 U.S.C. § 3553(a)(1), (3)-(7).

      The weight given to any specific § 3553(a) factor is committed to the sound

discretion of the district court. United States v. Clay, 483 F.3d 739, 743 (11th Cir.

2007). Moreover, the district court has considerable discretion in deciding whether

the § 3553(a) factors justify a variance and the extent of such a variance. United

States v. Cubero, 754 F.3d 888, 892 (11th Cir.), cert. denied, 135 S. Ct. 764

(2014). We will not remand for resentencing unless we are left with the definite

and firm conviction that the district court committed a clear error of judgment in

weighing the § 3553(a) factors by arriving at a sentence that lies outside the range

of reasonable sentences dictated by the facts of the case. United States v. Irey, 612

F.3d 1160, 1190 (11th Cir. 2010) (en banc).

      We do not presume that a sentence falling within the guidelines range is

reasonable, but we ordinarily expect it to be so. United States v. Hunt, 526 F.3d

739, 746 (11th Cir. 2008). A sentence imposed well below the statutory maximum

penalty is another indicator of reasonableness. See United States v. Gonzales, 550

F.3d 1319, 1324 (11th Cir. 2008).




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      The district court is required “to avoid unwarranted sentence disparities

among defendants with similar records who have been found guilty of similar

conduct.” 18 U.S.C. § 3553(a)(6). However, defendants who cooperate with the

government and enter written plea agreements are not similarly situated to a

defendant who provides no assistance and proceeds to trial. United States v.

Docampo, 573 F.3d 1091, 1101 (11th Cir. 2009).

      Finally, we lack jurisdiction to review a district court’s discretionary refusal

to grant a downward departure unless the district court incorrectly believed that it

lacked the authority to depart from the guidelines range. United States v. Dudley,

463 F.3d 1221, 1228 (11th Cir. 2006).

B.    Analysis

      As an initial matter, the record shows that the district court fully understood

its authority to grant the downward departure that Croteau requested. The court

listened to the parties’ arguments for and against the departure and heard testimony

in support of the departure before denying Croteau’s request for a downward

departure. Thus, we lack jurisdiction to review the district court’s denial of

Croteau’s downward departure request. Id.




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         Defendant Croteau has not demonstrated that his sentence was procedurally

or substantively unreasonable. 7 The district court heard testimony, explained its

sentence, and noted that it considered the PSI, filings by counsel, and the § 3553(a)

factors. See Gall, 552 U.S. at 51, 128 S. Ct. at 597.

         The district court more than adequately explained its sentence and did not

abuse its discretion in declining to grant a downward variance. Croteau argues that

the “testimony of Dr. Toomer alone supports the granting of a variance” to

Croteau’s sentence. Although Croteau contends that the district court did not

adequately consider Dr. Toomer’s testimony, the record shows that the court

acknowledged Dr. Toomer’s testimony along with testimony by Dr. Shadle,

Croteau himself, and other evidence presented at trial. The district court was not

required to believe Dr. Toomer’s testimony. The court also considered Croteau’s

history and characteristics. It was well within the court’s discretion to conclude

that Croteau committed the charged offenses, and the weight given to any specific

§ 3553(a) factor is committed to the sound discretion of the district court. Clay,

483 F.3d at 743.

         Moreover, Croteau’s sentence was within the advisory guidelines range, and

we normally expect a sentence falling within the guidelines range to be reasonable.

Hunt, 526 F.3d at 746. Further, if the penalty for all charged crimes are combined,

         7
             Croteau does not challenge the district court’s calculation of his advisory guidelines
range.
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the sentence was also well below the total statutory maximum of 53 years, another

indicator of reasonableness. Gonzales, 550 F.3d at 1324. We recognize that

Armand Croteau was sentenced to 27 months. But there was no unwarranted

sentencing disparity between Croteau and his brother Armand, as his brother

accepted responsibility and was convicted on three counts, whereas Croteau was

convicted on eleven counts. See Docampo, 573 F.3d at 1101.

      For all these reasons, we affirm Croteau’s convictions and sentence.

      AFFIRMED.




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