     Case: 12-20107       Document: 00512212524         Page: 1     Date Filed: 04/18/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           April 18, 2013

                                       No. 12-20107                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

KENDRICK BAKER,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CR-252-1


Before JONES, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       A jury found Kendrick Baker guilty on 16 counts of willfully aiding and
assisting in the preparation and presentation of false tax returns. On appeal,
Baker contends the Government engaged in purposeful race discrimination in
selecting jurors. He also claims error in the admission of certain evidence and
that the evidence was insufficient to support the convictions.
       We AFFIRM.



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 12-20107

                                 DISCUSSION
      In March 2011, a federal grand jury indicted Kendrick Baker for violating
26 U.S.C. § 7206(2). The charge against Baker involved professional tax-return
services he provided to eight individuals between January 2006 and January
2008 near Houston, Texas. He allegedly made false statements of expenses to
increase the amount of the individuals’ tax returns. Baker was tried by a jury
in the United States District Court for the Southern District of Texas and found
guilty. He timely appealed.
      A. Batson Challenge
      Baker objected to the Government’s use of its peremptory strikes against
certain potential jurors, arguing to the court that the Government rejected two
Hispanic veniremen because of their ethnicity. See Batson v. Kentucky, 476 U.S.
79 (1986).   A Batson challenge involves three procedural steps: (1) the
“defendant must make a prima facie showing that a peremptory challenge has
been exercised on the basis of race”; (2) the Government “must offer a race-
neutral basis” for the strike; and (3) “the trial court must determine whether the
defendant has shown purposeful discrimination.” Snyder v. Louisiana, 552 U.S.
472, 476-77 (2008). “The ultimate burden of persuasion always lies with the
party making the claim of purposeful discrimination.” United States v. Bentley-
Smith, 2 F.3d 1368, 1373 (5th Cir. 1993).
      Baker, who is African-American, argued there were no race-neutral
reasons for the Government’s peremptory strikes of two Hispanic veniremen and
a third of an uncertain racial minority. The Government responded that the two
Hispanic venire members had “disclosure problems” on their juror-questionnaire




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                                    No. 12-20107
forms.1    Baker countered that the Government did not request further
information from these two members of the venire and that non-minority
prospective jurors with similar omissions on their forms were not struck from
the panel.
      The Government informed the court that race was not a reason for the
strikes. The prosecutor pointed out that he did not strike other minorities. In
analyzing the objection, the district court assumed that Baker had established
a prima facie case of discrimination. The court then found the Government had
provided a race-neutral explanation and overruled the challenge.
       The Government does not challenge the district court’s finding of a prima
facie case, and Baker concedes the Government offered a race-neutral
explanation.     This appeal therefore involves only whether purposeful
discrimination was shown. The district court has to evaluate the credibility of
a prosecutor’s explanation, “and the best evidence of discriminatory intent often
will be the demeanor of the attorney who exercises the challenge.” Snyder, 552
U.S. at 477 (citation and quotation marks omitted).
      The determination of whether there was intentional discrimination “is a
fact finding, which is accorded great deference.” United States v. Causey, 185
F.3d 407, 413 (5th Cir. 1999). We review this finding for clear error and reverse
if we are “left with the definite and firm conviction that a mistake has been
committed.” United States v. Williams, 610 F.3d 271, 281 (5th Cir. 2010)
(quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985)).


      1
        The Government explained that the third venire member was struck because of
previous reasons presented to the court in a discussion regarding a strike for cause. On
appeal, Baker makes no argument regarding the third prospective juror, thus waiving any
issue.

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      In this fact-finding of why certain potential jurors were struck, we do not
have a firm conviction that the district court made a mistake. See United States
v. Montgomery, 210 F.3d 446, 454 (5th Cir. 2000). We find no error.
      B. Sufficiency of the Evidence
      Baker renewed a motion for judgment of acquittal at the close of all the
evidence, arguing there was insufficient proof that the tax returns were “false
as to any material matter.” We review the district court’s denial of that motion
de novo. United States v. Mudekunye, 646 F.3d 281, 285 (5th Cir. 2011).
Viewing all evidence in a “light most favorable to the verdict,” we affirm “if a
reasonable trier of fact could conclude from the evidence that the elements of the
offense were established beyond a reasonable doubt.” Id.
      A conviction under Section 7206(2) requires the Government to prove “the
defendant willfully aided . . . another in the preparation or presentation under
the internal revenue laws of a document that is fraudulent or false as to any
material matter.” United States v. Clark, 577 F.3d 273, 285 (5th Cir. 2009). We
reject Baker’s premise that the Government must prove the entries on the tax
returns were false according to tax law.       Although in some cases expert
testimony might be required to substantiate the Government’s prosecution, this
case does not turn on the niceties of arcane tax law. It is sufficient to prove
falsity if the return contains a loss that was “neither substantiated nor
requested.” Mudekunye, 646 F.3d at 286.
      The indictment charged Baker based on tax-preparation services he
provided to eight individuals on 16 separate tax returns. At trial, testimony
from all eight taxpayers revealed that each return contained an expense the
individual did not incur and that no such expense was ever communicated to


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                                       No. 12-20107
Baker. Accordingly, a reasonable juror could determine beyond a reasonable
doubt that each of the 16 tax returns was false as to a material matter.
      C. Admissibility of the Evidence
      Over Baker’s objection, the district court admitted evidence of Baker
preparing a tax return for an undercover investigator. This preparation was not
the basis of any count in the indictment. Baker argued the evidence was
inadmissible under Federal Rule of Evidence 404. The district court determined
the evidence was relevant to establish Baker’s intent and that the probative
value was not substantially outweighed by the risk of undue prejudice.
      We review the district court’s decision to admit evidence of Baker’s other
acts for abuse of discretion. See United States v. McCall, 553 F.3d 821, 827 (5th
Cir. 2008). This evidence “must be strictly relevant to the particular offense
charged.” Id. We do not reverse if the Government proves beyond a reasonable
doubt that any error is harmless. Id.
      In determining admissibility of evidence of other bad acts under Rule
404(b), a court must decide if such extrinsic evidence (1) “is relevant to an issue
other than the defendant’s character,” and (2) “possess[es] probative value that
is not substantially outweighed by its undue prejudice.”2 United States v.
Beechum, 582 F.2d 898, 911 (5th Cir. 1978).
      Baker’s indictment relied on 16 tax returns that spanned the tax years of
2005 through 2007. The earliest return was filed on January 26, 2006, and the
latest was filed on January 28, 2008.                Baker prepared the undercover
investigator’s tax return on February 7, 2008. According to Baker, the admitted
tape recording revealed that he properly prepared the tax return but then


      2
          There is no argument that this evidence was intrinsic to the charged crime.

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altered the document with false entries without obtaining further information
from the investigator.
      The Government was required to prove Baker acted willfully and not as
the result of a mistake. Clark, 577 F.3d at 285. Baker pled not guilty and
argued that the Government would not prove the requisite state of mind and an
absence of mistake beyond a reasonable doubt. Thus, the evidence was relevant
to an issue other than Baker’s character. See McCall, 553 F.3d at 827-28.
      Probative “value must be determined with regard to the extent to which
the defendant’s unlawful intent is established by other evidence.” Beechum, 582
F.2d at 914. Here, the evidence carried more than the minimal value that Baker
suggests. In addition to consistently challenging the Government’s ability to
prove his state of mind, part of Baker’s defense was that he obtained information
about the taxpayers and used it to calculate the expenses. He contended that if
a return contained a false entry, it was because of what the taxpayer conveyed
to Baker. The taxpayers testified to the contrary, claiming they never told Baker
they incurred listed expenses. Baker countered that they signed the documents
and certified their accuracy. Therefore, evidence that Baker did not rely on the
investigator’s information to alter entries days later provided circumstantial
support for a finding that Baker willfully entered false expenses on the previous
16 tax returns. Any potential undue prejudice of this relevant evidence was
lessened by the court’s giving a limiting instruction to the jury. See United
States v. Crawley, 533 F.3d 349, 355 (5th Cir. 2008).
      Based on this record, we cannot say the district court abused its discretion
in admitting evidence of the undercover investigation.
      AFFIRMED.


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