              Case: 13-12397     Date Filed: 05/21/2014   Page: 1 of 6


                                                              [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 13-12397
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 2:12-cr-00261-RDP-HGD-2



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

SALLY ELIZABETH WYNN,

                                                              Defendant-Appellant.

                           ________________________

                   Appeal from the United States District Court
                      for the Northern District of Alabama
                          ________________________

                                  (May 21, 2014)

Before HULL, MARCUS, and FAY, Circuit Judges.

PER CURIAM:

      Sally Elizabeth Wynn appeals her conviction for three counts of aiding and

assisting in the preparation of materially false income tax returns. We affirm.
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                                I. BACKGROUND

      In 2006, Wynn used funds from client Jose Dilberto Gonzalez, the sole

owner and officer of Gonzalez Construction, Inc. (“GCI”), to buy a $30,000

cashier’s check, which Gonzalez used, when he bought a 2005 Lamborghini for

$165,850. Gonzalez traded it later that year, when he bought a 2006 Lamborghini

for $192,604. Before Gonzalez bought the 2005 Lamborghini, he had submitted an

application to lease the car, accompanied by his 2005 Form 1040 reporting total

income of $248,236, which Wynn and he had signed. As part of a 2008 lease

application for a 2008 Lamborghini, Gonzalez submitted his 2006 Form 1040

reporting total income of $206,650, which Wynn and he had signed, and a Form

1099, showing GCI had paid Gonzalez non-employee compensation of $478,460

in 2007.

      Gonzalez’s Forms 1040 reported total-income amounts ranging from

$55,910 to $65,632, far below his actual aggregate income. Wynn also prepared

GCI’s 2005 and 2006 corporate tax returns and processed GCI’s payroll, which

entailed reviewing GCI bank statements monthly. GCI had issued checks to

Gonzalez of $371,350 in 2005, $444,844 in 2006, and $340,996 in 2007.

      In May 2012, a federal grand jury indicted Wynn for three counts of aiding

and assisting in the preparation of materially false income tax returns, in violation




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of 26 U.S.C. § 7206(2). The evidence at trial established Wynn had prepared

2005, 2006, and 2007 Forms 1040.

      During Wynn’s trial, Special Agent Kristina Waluyn of the Internal Revenue

Service (“IRS”) testified Wynn had told her that she took responsibility for the

information reported on Gonzalez’s tax returns for the years in question. Wynn

stated she knew “about every document and every piece of paper as it relates to

Jose Gonzalez and [GCI].” R. at 451. Wynn also told Agent Waluyn she knew

Gonzalez and his family very well, and Gonzalez’s wife did not work. Wynn

knew that Gonzalez’s mortgage had been paid in full, and Gonzalez had driven

five Lamborghinis, three Corvettes, a Dodge Viper, a Nissan GTR, and a Dodge

Duran at various times. Wynn testified in her own defense and denied she had

knowingly reported false income amounts on Gonzalez’s tax returns.

      The jury convicted Wynn on all three counts. The district judge imposed

concurrent sentences of three years of imprisonment on each count, followed by

one year of supervised release. The judge also ordered Wynn to pay $322,876.03

restitution to the IRS, jointly and severally with Gonzalez. On appeal, Wynn

argues the government did not present evidence sufficient to establish she knew the

income amounts she entered on Gonzalez’s tax returns were false.




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                                 II. DISCUSSION

      We review de novo a district judge’s denial of a motion for a judgment of

acquittal on sufficiency-of-the-evidence grounds, consider the evidence in the light

most favorable to the government, and draw all reasonable inferences and

credibility choices in the government’s favor. United States v. Friske, 640 F.3d

1288, 1290-91 (11th Cir. 2011). To establish a violation of § 7206(2), the

government must prove the defendant (1) willfully and knowingly aided or assisted

(2) in the preparation or filing of a federal income tax return (3) that contained

material statements the defendant knew to be false. United States v. Kottwitz, 614

F.3d 1241, 1269, opinion withdrawn in part on other grounds, 627 F.3d 1383 (11th

Cir. 2010). To establish willfulness in a criminal tax case, the government must

prove the law imposed a duty on the defendant, the defendant knew of the duty,

and she voluntarily and intentionally violated that duty. Cheek v. United States,

498 U.S. 192, 201, 111 S. Ct. 604, 610 (1991).

      When a defendant testifies in her own defense, the jury may disbelieve her

testimony, and it may be considered as substantive evidence of her guilt. United

States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995). Consequently, a defendant,

who testifies, runs the risk that the jury might disbelieve the testimony and

conclude the opposite is true. Id. The proposition that a defendant’s testimony




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denying guilt may establish elements of the offense applies with special force to

subjective elements. Id. at 315.

      The government presented evidence that Wynn had access to several GCI

bank accounts, knew Gonzalez and his family well, and had told Agent Waluyn

that she knew about “every piece of paper” related to Gonzalez and GCI. R. at

451. Wynn told Agent Waluyn she knew Gonzalez had several expensive cars at

various times, and he repeatedly had traded in nearly new cars for new cars. Wynn

personally helped Gonzalez buy one car for over $165,000. While applying for car

loans, Gonzalez submitted copies of tax returns signed by Wynn that reported

significantly higher incomes than Gonzalez reported to the IRS. Moreover, the

jury was entitled to conclude Wynn’s testimony denying she intentionally helped

Gonzalez underpay his income taxes was false and to use that conclusion as

substantive evidence of Wynn’s willfulness. Brown, 53 F.3d at 314-15. We

conclude the evidence was sufficient for the jury to find Wynn voluntarily and

intentionally reported the materially false statements on Gonzalez’s personal tax

returns. Cheek, 498 U.S. at 201, 111 S. Ct. at 610

      Although Wynn argues a conviction cannot stand, where the evidence gives

equal or nearly equal circumstantial support to theories of guilt and innocence, the

authority cited by Wynn does not support this proposition. In Cosby v. Jones, 682

F.2d 1373 (11th Cir. 1982), we held a habeas petitioner’s possession of stolen


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goods shortly after the burglary in which the goods were taken was insufficient to

support his burglary conviction, where the defense theory that he bought the goods

after the burglary was corroborated by several witnesses. Id. at 1375, 1379-83.

We explained:

      [I]f the evidence viewed in the light most favorable to the prosecution
      gives equal or nearly equal circumstantial support to a theory of guilt
      and a theory of innocence of the crime charged, then a reasonable jury
      must necessarily entertain a reasonable doubt. . . . This is not to say
      that whenever the evidence supports a reasonable inference consistent
      with innocence the jury must acquit . . . . It is only where, after
      viewing the evidence in its most favorable light and making all
      credibility decisions in favor of the state the evidence still fails to at
      least preponderate in favor of the state, that we become concerned
      with conflicting inferences.
Id. at 1383 (emphasis added).

      Cosby is distinguishable on its facts. Even viewing the evidence in the light

most favorable to the prosecution, the evidence in Cosby was insufficient to

convict. See id. Viewed in the light most favorable to the government as well as

all credibility determinations, the evidence in this case supported Wynn’s guilty

verdict. See id.

      AFFIRMED.




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