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                                                                [DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                   No. 16-17788
                             ________________________

                     D.C. Docket No. 2:16-cr-00098-AKK-TMP-1



UNITED STATES OF AMERICA,

                                                                   Plaintiff - Appellee,

versus

DONALD E. STEELE,

                                                                Defendant - Appellant.

                             ________________________

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

                                    (April 17, 2019)

Before ROSENBAUM, BRANCH and DUBINA, Circuit Judges.

PER CURIAM:

         Following a trial, the jury convicted Donald Steele of five counts of assisting

in the preparation and presentation of fraudulent tax returns, in violation of 26 U.S.C
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§ 7206(2), and one count of witness tampering, in violation of 18 U.S.C. §

1512(b)(3). Steele contends that the district court erred by not permitting him to call

Internal Revenue Service (“IRS”) Agent David Tucker to impeach the testimony

given by one of Tucker’s colleagues, Daphne Stewart, who had testified that Steele

had the opportunity to commit tax fraud. After careful consideration and with the

benefit of oral argument, we affirm.

                                             I.

      In a nutshell, the government’s case had two parts. The first part centered on

proving that Steele had prepared seven fraudulent tax returns while working at Max

Tax 1 by taking fake deductions, such as listing one customer’s wife as his disabled

dependent sister. In the other part of the government’s case, the government sought

to show that once the IRS was hot on his heels, Steele attempted to coax witnesses—

principally the customers whom he had filed the fraudulent returns on behalf of—

into stonewalling the IRS or shifting blame onto others, including his wife. Steele’s

defense focused on exploiting the fact that he was not listed as the preparer on any

of the fraudulent tax returns and on his contention that he lacked the technical know-

how to file fraudulent returns since he mainly was responsible for greeting

customers.




      1
          Max Tax was owned by Steele’s wife, Chaundra Jones, along with Renda Wilson.
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      At trial, the government presented testimony from three types of witnesses:

(1) customers of Max Tax who testified that they had turned over their financial

information to Steele and that he had told them their returns had been filed (some of

these witnesses also testified that Steele later tried to persuade them to tell the IRS

that somebody else had prepared their taxes); (2) a 2011 Max Tax employee named

Daphne Stewart, and (3) investigating agents from the IRS.

      The jury returned a guilty verdict on Counts 3 through 7 (assisting in the

preparation and presentation of fraudulent tax returns) and Count 9 (witness

tampering). With respect to Counts 3 through 7, the government presented the

following evidence supporting the jury’s verdict. Counts 3 and 4 arose from Alisa

Tate’s 2009 and 2010 tax returns, which improperly claimed $12,049 and $11,938

in business losses, respectively. Tate testified that she gave her 2009 and 2010

financials to Steele and did not interact with any other Max Tax employee. Both of

these returns claimed deductions to which she was not entitled—for example, a

deduction for expenses and losses from a non-existent home-furnishings business.

Tate testified this information was false and she had no idea where Steele got it from.

      On cross-examination, Tate stated that although she did not physically watch

Steele prepare her tax returns, she assumed he prepared her returns since he was the

only person she spoke with at Max Tax. Her returns listed Michael Eaton and Jones

as the preparers, but she testified that she had never met them before.


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       Counts 5 and 6 arose from Jeannet Washington’s 2009 and 2010 tax returns.

Washington testified that she gave her financial information to Steele and waited at

Max Tax while her taxes were prepared both years.                 In fact, according to

Washington, she picked Max Tax solely because Steele worked there, as she knew

his work from another tax-preparation service. Washington testified that for both

tax returns, Steele told her that he had finished her returns and showed her the

amount she could expect in the form of a refund. But she testified that Steele never

went over the returns line by line with her.

       Washington identified the items that were falsified on those lines on her two

returns. She testified that both of her returns listed improper medical and dental

expenses, charitable contributions, and educational expenses for her son, and also

incorrectly listed her as the head of household.           While Washington’s returns

identified Renda Wilson and Chaundra Jones as the preparers, Washington stated

she never worked with them.

       As for the last two counts for which the jury convicted Steele—Counts 7 and

9—the government’s case centered on Katrina Taylor. For Count 7, the government

contended that Steele had falsified a tax return without telling her, just like it asserted

he did to Tate and Washington. In support of this allegation, Taylor testified that,

based on her cousin’s referral, she went to Max Tax to have her 2010 tax returns

prepared. She said she waited while Steele prepared her tax return, and he called her


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back to sign it after he had completed it. Taylor’s return included improper

deductions for expenses relating to education, and it listed the wrong place of

employment. Taylor testified that Chaundra Jones was identified as the preparer of

her return, but she had never met her. And though Taylor repeatedly tried to obtain

a copy of her tax return, Steele stymied her at every turn by ignoring her calls or

pretending he could not find it.

      For Count 9—Steele’s lone witness tampering conviction—Taylor testified

that, out of the blue, Steele approached her outside of her job in August 2011. She

attested that Steele said Taylor’s cousin had told him that he had charged Taylor too

much for preparing her taxes and that the IRS had inquired about her returns. Steele

then cut Taylor a check for $200, stating that the check was for any overcharging,

but if the IRS ever asked, she should tell them that “a lady with red hair” had

prepared her taxes. Taylor understood Steele’s actions as asking her to lie to the

IRS, complete with an accompanying $200 bribe.

      As fate would have it, Taylor soon thereafter met with agents from the IRS,

including Agent Tucker. According to Taylor, Steele hounded her during her

meeting by calling her multiple times. Taylor answered one of Steele’s calls during

the meeting and put it on speaker phone. Steele then said, “Are they still there?”

When Taylor replied in the affirmative, Steele hung up.




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       Apart from Steele’s clients, the government called Daphne Stewart, one of

Steele’s co-workers. 2 It is this testimony and Steele’s efforts to impeach it that

comprise the backbone of Steele’s appeal.

       Stewart testified that she prepared tax returns for three months in 2010

alongside Steele at Max Tax. According to Stewart, she usually arrived at work

around 9:00 a.m. or 10:00 a.m. and left around 3:00 p.m. or 4:00 p.m., and Steele

was always there when she arrived and when she left. Stewart also stated that when

she arrived at work in the mornings, Steele would often tell her that the returns they

had been working on the previous day had been transmitted to the IRS. As Stewart

recalled the work environment, no other employee reviewed Stewart’s and Steele’s

work before the returns were submitted to the government.

       One time, after Stewart had completed her mother’s return, Steele told Stewart

that before he submitted the return to the IRS, he added a disabled dependent who

had thousands in educational expenses “so she could get more money.” For adding

these additional deductions, Stewart attested, Steele told her that her mother owed

him $500. Stewart admitted that she also increased her customers’ tax refunds by a

few hundred dollars.




       2
         For the third category of witnesses—IRS agents—the government called Agent Jason
Torain, who testified that he had examined the tax returns at issue and listened to the testimony of
the witnesses. Torain testified that the changes made to Tate’s, Washington’s, and Taylor’s tax
returns were “fluffing” practices designed to substantially inflate tax refunds.
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       Eventually, Stewart quit her job at Max Tax because the company shorted a

few of her paychecks and because she heard the IRS was investigating inflated

returns that had been prepared at Max Tax. In the month of October following her

resignation from Max Tax, Stewart met with Steele at a restaurant, where Steele

asked Stewart to rejoin Max Tax, while also inquiring whether the IRS had contacted

her. Stewart testified Steele told her that if the IRS happened to call, then she should

tell agents that Steele’s wife, Chaundra Jones, did “all of the work” and transmitted

all of the returns.

       On cross-examination, defense counsel asked Stewart if she had previously

told the IRS that she worked from 8:00 a.m. to 8:00 p.m., and Stewart responded

that, if the IRS agents had recorded her as saying this, then they had misheard her.

When counsel questioned her about whether she had told the IRS agents that Wilson

or Jones reviewed Steele’s and her work before the tax returns were transmitted,

Stewart testified that she never told them that, either.

       As it turns out, Agent Tucker had prepared a memorandum after interviewing

Stewart, and this memorandum apparently reflected that Stewart had, in fact, made

the statements in controversy. The government objected when counsel asked

questions based on IRS Agent Tucker’s memorandum of his interview with Stewart

because the memorandum was not in evidence.                But the court overruled the

government’s objection, and counsel continued his references to Agent Tucker’s


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memorandum. For instance, after counsel forced Stewart to admit she had filed false

tax returns for herself and her customers, counsel pointed out that she had told Agent

Tucker that she knew her tax returns were inaccurate, but did it, anyway, because

she needed the extra money.

      After the government rested, Steele announced his intentions to call Agent

Tucker, so he could impeach Stewart’s testimony that Steele worked longer hours

than she did and that their work was not subject to supervisory review, using contrary

statements Stewart had given to Agent Tucker. The government objected on two

bases: (1) it asserted Steele forfeited his right to call Agent Tucker because had not

complied with the IRS’s United States ex rel. Touhy v. Ragen, 71 S. Ct. 416 (1951),

regulations; and (2) it contended the testimony Agent Tucker would give about what

Stewart had told him was inadmissible because it was too collateral and constituted

hearsay.   Defense counsel responded by arguing that Touhy was inapplicable

because Agent Tucker had conducted his interview of Stewart under the direction of

the United States Justice Department, and Agent Tucker’s testimony was not hearsay

because he just used it to show Stewart had made prior inconsistent statements, not

for the truth of those prior statements. As for the government’s contention that Agent

Tucker’s testimony was collateral, Steele responded that it was not because it bore

on the key issue of whether he had the opportunity to submit the false returns to the

government by staying late and avoiding supervisory review.


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      Ultimately, the district court sustained the government’s objection. The court

concluded that Agent Stewart’s testimony would be hearsay and that Steele had

neglected to comply with the IRS’s Touhy regulations, and in any event, Agent

Stewart’s testimony was too collateral.

      Steele then took the stand on his own behalf. He testified that he had no

training preparing taxes and that he did not file any tax returns for Max Tax from

2009 to 2011.     And while Steele conceded that he would sometimes receive

customers’ W-2s, he insisted he never prepared or submitted their tax returns. He

also stated he did not keep long hours at Max Tax. To the contrary, Steele asserted,

Stewart was the one who worked from 8:00 a.m. until 8:00 p.m. In addition, Steele

denied trying to dissuade any witness from cooperating with the IRS.

      In closing, the government leaned on Tate’s, Washington’s, and Taylor’s

testimony. In particular, the government reminded the jury that these witnesses had

provided their W-2s to Steele and had waited around at Max Tax for their tax returns

to be completed. It further emphasized it was Steele who subsequently emerged and

announced these witnesses’ returns were completed. The government, as in its

opening, also noted Stewart’s testimony that Steele had the opportunity to commit

tax fraud because his work was not subject to supervisory review, and he worked

long hours in order to submit the falsified returns.




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      The jury returned a verdict convicting Steele on four counts of tax fraud—

Counts 3 through 7—and on one count of witness tampering—Count 9. Steele was

sentenced to 36 months’ imprisonment for each of Counts 3 through 7, and 42

months’ imprisonment for Count 9, all to be served concurrently.

      On appeal, Steele raises two interrelated challenges to the district court’s

refusal to allow him to call Agent Tucker to impeach Stewart. First, Steele contends

that the district court erred in denying him the opportunity to present Agent Tucker’s

testimony, since it would not have constituted hearsay but rather, impeachment

testimony. He further asserts this was not a collateral issue because, left unrebutted,

Stewart’s testimony established Steele had the opportunity to commit tax fraud.

Second, he argues the district court’s exclusion of Agent Tucker’s testimony violated

his Fifth Amendment right to present witnesses in his own defense and his Sixth

Amendment right to compulsory process for witnesses in his favor.

                                               II.

      We employ the abuse-of-discretion standard when reviewing the district

court’s decision to admit or exclude evidence. See, e.g., United States v. Smith, 122

F.3d 1355, 1357 (11th Cir. 1997). In deploying this standard, we will affirm, “unless

the district court has made a ‘clear error of judgment’ or has applied an ‘incorrect

legal standard.’” Conroy v. Abraham Chevrolet-Tampa, Inc., 375 F.3d 1228, 1232

(11th Cir. 2004) (quoting Piamba Cortes v. Am. Airlines, Inc., 177 F.3d 1272, 1305


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(11th Cir. 1999)). The harmless-error doctrine, which applies to evidentiary rulings,

further constrains our review. United States v. Henderson, 409 F.3d 1293, 1300

(11th Cir. 2005); United States v. Wilson, 983 F.2d 221, 223 (11th Cir. 1993); Fed.

R. Crim. P. 52(a) (providing that, under the harmless error standard, “[a]ny error . .

. that does not affect substantial rights must be disregarded”). Because of it, we will

not reverse evidentiary errors if they had no substantial influence on the verdict and

enough evidence supports the verdict, notwithstanding the error. United States v.

House, 684 F.3d 1173, 1197 (11th Cir. 2012).

      As for constitutional errors, our review is more exacting. See United States v.

Guzman, 167 F.3d 1350, 1353 (11th Cir. 1999). If an error of that magnitude occurs,

we must “be able to declare a belief that it was harmless beyond a reasonable doubt”

in order to affirm. Id. (quotation and citation omitted). Therefore, on direct review,

Sixth Amendment violations are subject to this standard.            United States v.

Hernandez, 141 F.3d 1042, 1049 (11th Cir. 1998). When the alleged erroneous

exclusion of evidence occurred “during the presentation of the case to the jury, [the

error can be] quantitatively assessed in the context of other evidence presented in

order to determine the effect it had on the trial.” Brecht v. Abrahamson, 507 U.S.

619, 629 (1993) (internal citations and quotation marks omitted).

      Even though constitutional errors “must be proven to be harmless beyond a

reasonable doubt and nonconstitutional errors must merely be shown to have not


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caused actual prejudice, both standards require the reviewing court to consider the

entire trial record when making the determination of harmless error.”          For both

standards, “[o]verwhelming evidence of guilt” can be decisive in finding harmless

error. Guzman, 167 F.3d at 1353; see also Hernandez, 141 F.3d at 1049–51 (finding

that exclusion of impeachment evidence was harmless because the evidence

presented of guilt was substantial).

      Here, we need not decide whether Steele could succeed on the merits of his

constitutional or evidentiary arguments because even assuming that he could,

overwhelming evidence satisfies both harmlessness standards.

      To illustrate, for all four tax-fraud convictions, each victim testified that he or

she had given W-2s and other financial information to Steele, waited at Max Tax

while the returns were completed, and identified Steele as the person who told them

that the returns had been completed and the general amount they could expect for a

refund. They all further attested that their returns claimed deductions that had no

basis in reality. And they likewise testified that Steele was the only person they

interacted with at Max Tax.

      In particular, Jeannet Washington testified that after she gave Steele the

necessary documentation to complete her tax returns for 2009 and 2010, she watched

Steele fill out the returns, and once he completed them, he told her how much she




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could expect by way of a tax refund. Alisa Tate gave a materially similar account

about her tax returns, in support of Counts 3 and 4.

      For her part, Katrina Taylor’s testimony supported both convictions for tax

fraud and witness tampering. She testified that she gave Steele her W-2 and her last

pay stub and waited at Max Tax for her return to be completed. Steele eventually

called her back to his desk and had her sign the completed return. Months later,

Taylor stated, Steele offered her $200 to tell the IRS that “a lady with red hair did

[her] taxes.”

      Considering this glut of evidence demonstrating Steele’s guilt, we conclude

with firm assurance that any errors the district court committed in precluding Steele

from calling Agent Tucker were harmless beyond a reasonable doubt. See, e.g., De

Lisi v. Crosby, 402 F.3d 1294, 1302 (11th Cir. 2005) (“Because the addition of the

tax returns to this already ample evidence [of guilt] would not have substantially

changed the jury’s view of White’s bias or credibility, the error of the trial court in

permitting White to assert his Fifth Amendment privilege cannot be said to have had

substantial and injurious effect or influence in determining the jury’s verdict.”)

(internal citations and quotation marks omitted).

      Although Steele tries to paint Stewart as the government’s star witness

because she gave direct evidence that he had the opportunity to commit tax fraud,

Tate, Taylor, and Washington provided ample circumstantial evidence that Steele


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had the opportunity to falsify their returns, and, in fact, falsified their tax returns.

See, e.g., United States v. Henderson, 693 F.2d 1028, 1030 (11th Cir. 1982)

(restating the blackletter rule that the law does not play favorites among direct and

circumstantial evidence because “[c]ircumstantial evidence can be and frequently is

more than sufficient to establish guilt beyond a reasonable doubt”); cf. United States

v. Watson, 669 F.2d 1374, 1383 (11th Cir. 1982) (holding constitutional error was

not harmless where the witness, whom the district court refused to let the defendant

impeach, “was the lynchpin to the government’s case [and] the only testimony to

link all the appellants in a single conspiracy”).

       Three additional points further bolster our confidence that any errors the

district court may have committed were harmless beyond a reasonable doubt. First,

impeaching Stewart’s testimony would not have changed the outcome here. Steele

was convicted of assisting in falsifying returns, so whether or not he physically

submitted returns to the IRS did not matter, in light of Tate’s, Taylor’s, and

Washington’s testimony. See United States v. Wolfson, 573 F.2d 216, 225 (5th Cir.

1978) (holding that the defendant does not need to sign or prepare the tax returns in

order to be guilty of willfully aiding and assisting in their preparation).3




       3
         The decisions of the former Fifth Circuit handed down before October 1, 1981, are
binding in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981)
(en banc).
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      Second, Steele took the stand, testifying that he had never prepared taxes, let

alone prepared false returns, never worked long hours, and never persuaded

witnesses to tell the IRS that somebody else had prepared false returns. In doing so,

he ran the risk that the jury would conclude the “opposite of his testimony [wa]s

true.” United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995) (quoting Atkins v.

Singletary, 965 F.2d 952, 961 n. 7 (11th Cir. 1992)). And under Brown, if the jury

inferred from Steele’s testimony that he had falsified tax returns and tampered with

witnesses, the jury could have relied on Steele’s testimony “as substantive evidence

of the defendant’s guilt.” Id. Particularly in combination with the testimony of Tate,

Washington, and Taylor, the jury’s rejection of Steele’s testimony established the

harmlessness beyond a reasonable doubt of any error in the district court’s failure to

permit Agent Tucker’s testimony.

      Finally, for Counts 3, 5, and 9, Stewart’s testimony was of little, if any,

significance, anyway. That’s because Steele falsified two of the returns—those

charged in Counts 3 and 5—in 2010, a year before Stewart even started working at

Max Tax. And Stewart’s testimony might have been even less valuable for Count

9—Steele’s witness tampering conviction—because Stewart gave absolutely no

testimony about Steele’s attempted coercion of Taylor; instead, Taylor herself

provided all of the testimony supporting that conviction. So we are satisfied beyond




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a reasonable doubt that any errors by the district court in declining to allow Steele

to present Agent Tucker’s testimony were harmless beyond a reasonable doubt.

      While the harmless-error standard is difficult to meet when applied to alleged

constitutional errors, it is nonetheless satisfied here. And since we hold that the

district court’s purported constitutional errors were harmless beyond a reasonable

doubt, the lower standard for measuring the harmlessness of evidentiary errors is

also satisfied. Accordingly, we affirm the district court’s exclusion of Agent

Tucker’s impeachment testimony.



                                              III.

      For the foregoing reasons, the judgment of the district court is affirmed.

      AFFIRMED.




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