                                                                    FILED
                                                        United States Court of Appeals
                                                                Tenth Circuit

                                                             October 20, 2017
                                   PUBLISH                  Elisabeth A. Shumaker
                                                                Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
 v.                                                   No. 16-3321
 KATHLEEN STEGMAN,

        Defendant - Appellant.



        APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF KANSAS
                  (D.C. No. 2:14-CR-20109-JAR-1)


Justin K. Gelfand, Capes Sokol Goodman & Sarachan, P.C., St. Louis, Missouri,
appearing for Appellant.

Jeffrey Brian Bender, Attorney, Tax Division (David A. Hubbert, Acting
Assistant Attorney General, S. Robert Lyons, Chief, Criminal Appeals & Tax
Enforcement Policy Section, and Gregory Victor Davis, Attorney, Tax Division,
with him on the brief), United States Department of Justice, Washington, D.C.,
appearing for Appellee.



Before BRISCOE, EBEL, and MATHESON, Circuit Judges.


BRISCOE, Circuit Judge.
      Defendant Kathleen Stegman was convicted by a jury of two counts of

evading her personal taxes for the tax years 2007 and 2008, in violation of 26

U.S.C. § 7201. Stegman was sentenced to a term of imprisonment of 51 months,

to be followed by a three-year term of supervised release. The district court also

ordered Stegman to pay a $100,000 fine, plus restitution in the amount of

$68,733. Stegman now appeals. Exercising jurisdiction pursuant to 28 U.S.C.

§ 1291, we affirm Stegman’s convictions and sentence.

                                         I

                               Factual background

      In September 1997, Stegman formed a Kansas corporation called Midwest

Medical Aesthetics Center, Inc. (MMACI). The company operated in an office in

Leawood, Kansas, and provided a wide range of medical aesthetic services

including, but not limited to, liposuction, microdermabrasion, and laser hair

removal.

      On January 16, 1998, a Certificate of Amendment was filed with the

Kansas Secretary of State to reflect a name change from MMACI to Midwest

Medical Aesthetics Center, P.A. (MMACPA or Midwest), and, relatedly, to

convert the business to a professional association. Notwithstanding the name

change, the business continued to be owned and operated by Stegman, and also

continued to provide the same types of medical aesthetic services.




                                         2
      Clients of Midwest were permitted to pay for services with a credit card,

cash, or checks made out to Stegman personally. Of these forms of payment,

Stegman preferred and encouraged the use of cash or checks. At the end of each

business day, Stegman would personally collect the cash and checks that were

paid by Midwest’s clients.

      Stegman established several limited liability corporations, including

Samson, LLC (Samson). Stegman in turn used these corporations to effectively

launder Midwest client payments. As part of this process, Stegman would use the

corporations to purchase money orders, typically in denominations of $500 or

less, that she in turn used to purchase items for personal use. In 2007, Stegman

purchased 162 money orders totaling $77,181.92. In 2008, she purchased 252

money orders totaling $121,869.99. And in 2009, she purchased 157 money

orders totaling $73,697.31. Notably, Stegman reported zero cash income on her

federal income tax returns during each of these years.

      Stegman employed separate tax preparers for her corporate and personal tax

returns. Alex Jones prepared the corporate tax returns. Don Lake prepared

Stegman’s personal tax returns. Although Stegman provided Jones with Midwest

bank account information as proof of its corporate income, she did not provide

him with bank records for the other accounts into which she deposited corporate

income, including the Samson account and a personal account at U.S. Bank.

Similarly, Stegman did not provide Lake with accurate records of the Midwest

                                         3
client payments that she used to purchase personal property.

      In November 2009, the Internal Revenue Service (IRS) initiated a civil

audit of the 2007 and 2008 tax returns of both Stegman and Midwest. During the

civil audit, Stegman told the IRS that Midwest never accepted cash payments and

rarely accepted checks. Stegman further told the IRS that she kept approximately

$300,000 in cash at her home and reported that the source of the cash was gifts

from relatives or money that she had saved from prior earnings. Stegman also

provided the IRS with conflicting information about Samson and its purpose.

Initially, Stegman told the IRS that “the business purpose of Samson was to lease

equipment to Midwest . . . , and she paid them approximately $3,000 a month.”

Aplee. App. at 115. She later told the IRS that “Samson had no business

purpose” and “was only the name of a bank account.” Id. at 116.

      In October 2010, the case was referred to the IRS’s criminal investigation

division. The criminal referral report listed the basis for suspected fraud as

omitted income and false expenses/deductions. The report noted that Midwest

took in large amounts of cash, yet made no cash deposits in 2007 or 2008. The

report also noted Stegman’s “lavish” lifestyle, which included frequent travel,

large asset purchases of approximately $2,000,000 (unsupported by associated

loans), all despite her reporting personal income of $50,000 for 2007 and $57,105

in 2008. Notably, the report indicated that, contrary to her 2007 and 2008 tax

returns, Stegman had submitted loan applications reporting personal income

                                          4
ranging from $10,000 to $46,000 per month.

      For example, in 2007, Stegman applied for loans related to the purchase of

two condominium units in Las Vegas. On her loan applications, Stegman

represented that her monthly income was $30,000, even though her 2007 federal

tax return reported an annual adjusted gross income of $79,428. Stegman

purchased the condominium units for $543,966.16 and $558,652.86. In 2009,

however, she disposed of both units by way of short sale contracts, resulting in

forgiven debt of $362,209 and $339,722. In doing so, Stegman falsely reported to

the lending bank that she was broke.

      As part of its criminal investigation, the IRS interviewed Midwest

employees and clients, reviewed bank records, money order purchases, business

and bank records, and tax records. The investigation revealed that Stegman used

Samson to create false business expenses. For example, Stegman falsely claimed

that Samson provided “cleaning,” “maintenance,” “equipment,” and “supplies” to

Midwest.

      The investigation also revealed that Stegman engaged in obstructive

conduct. In particular, she altered Midwest’s general ledgers and directed

employees of Midwest to destroy business records, including payment receipts,

client folders, and a sign that was used at the business stating that cash was

accepted. Stegman also altered business ledgers that she provided to the IRS; the

IRS was able, however, to obtain the original, unaltered ledgers from her tax

                                          5
preparer. Lastly, Stegman encouraged a former Midwest client, Dr. Evelyn Clark,

to tell the IRS that she didn’t remember anything about her dealings with

Midwest.

                              Procedural background

      On October 29, 2014, a federal grand jury indicted Stegman on five counts

(Counts 1 through 5) of tax evasion, covering the tax years 2007 through 2010, in

violation of 26 U.S.C. § 7201, and one count (Count 6) of conspiring to defraud

the United States by obstructing the lawful governing functions of the IRS, in

violation of 18 U.S.C. § 371. 1 Each of the five counts of tax evasion were tied to

a specific tax year. Counts 1 through 3 related to the tax years 2008 through 2010

for the business. Counts 4 and 5 related to the tax years 2007 and 2008 for

Stegman personally. The conspiracy count (Count 6) charged both Stegman and

an individual named Christopher Smith with conspiring to defraud the United

States by obstructing the IRS from ascertaining, computing, assessing and

collecting federal corporate and personal taxes.

      On February 24, 2015, Stegman moved “to dismiss th[e] case due to the

Government’s destruction of exculpatory evidence,” namely, “the IRS audit file

regarding . . . Stegman’s 2000 and 2001 federal tax returns.” Aplt. App., Vol. 1

at 95. The district court denied that motion.

      1
       A superseding indictment was filed on January 21, 2015. The superseding
indictment did not add or remove any counts that were contained in the original
indictment.

                                         6
      The case proceeded to trial beginning on March 8, 2016. During the first

week of trial, the district court granted the government’s motion to amend the

indictment to change all of the references to “Midwest Medical Aesthetics Center,

Inc.” to instead read “Midwest Medical Aesthetics Center.” At the conclusion of

the evidence, the jury convicted Stegman of evading her personal taxes for the tax

years 2007 and 2008 (Counts 4 and 5), as well as evading corporate taxes for the

tax years 2008 and 2009 (Counts 1 and 2). The jury acquitted Stegman of

evading corporate taxes for the tax year 2010 (Count 3). The jury also acquitted

Stegman and Smith of the conspiracy charge (Count 6).

      Stegman moved for judgment of acquittal or, in the alternative, a new trial.

The district court granted the motion as to the two counts that related to the

evasion of corporate taxes (Counts 1 and 2), but denied the remainder of the

motion. In doing so, the district court concluded that “there was a flaw in the

way the case was charged.” Aplt. App., Vol. XII at 3311. In other words, the

district court explained, it chose to acquit Stegman of the corporate tax evasion

counts not due to a lack of “proof beyond a reasonable doubt that this corporation

evaded taxes,” but rather because “the indictment itself was flawed in attributing

the loss as due and owing by Ms. Stegman, when actually it was due and owing

by the corporation.” Id. at 3314.

      The district court sentenced Stegman on October 18, 2016. Based upon

testimony from IRS Revenue Agent Janice Willard, the district court found that

                                          7
Stegman’s evasion of personal and corporate taxes caused a federal tax loss in

excess of $550,000. The district court also imposed enhancements for use of

sophisticated means and obstruction of justice. The district court ultimately

sentenced Stegman to a term of imprisonment of 51 months, a sentence at the low

end of the advisory Guidelines range, to be followed by a three-year term of

supervised release. The district court also ordered Stegman to pay a $100,000

fine, plus restitution to the IRS in the amount of $68,733.

                                            II

         Stegman raises five issues on appeal, four of which pertain to her

convictions and one of which pertains to her sentence. Although several of these

issues require extensive discussion due to their fact-intensive nature, we conclude

that all of these issues lack merit.

                    A. The amendment of the indictment during trial

         In her first issue on appeal, Stegman contends that the district court erred

by granting the government’s motion to amend the indictment in the midst of

trial. We review de novo a district court’s decision to grant or deny a motion to

amend an indictment. See United States v. Pina, 974 F.2d 1241, 1243 (10th Cir.

1992).

         1. Relevant facts

         In 1997, Stegman filed articles of incorporation with the State of Kansas

for MMACI. The following year, 1998, Stegman filed an amendment to the

                                             8
articles of incorporation that converted the business to a professional association

and altered slightly its name (MMACPA).

      Stegman’s filings with the IRS, however, did not make the nature or name

of her business clear. During the time period covered by the superseding

indictment, the tax returns that Stegman filed with the IRS identified the business

as “Midwest Medical Aesthetics Center,” but did not otherwise identify

Midwest’s particular corporate form. Further, the forms effectively treated the

business as a C corporation. Not until February 2013 did Stegman file documents

with the IRS adding a “P.A.” to the name of her business.

      The indictment in this case alleged that Stegman “was the owner/operator

of Midwest Medical Aesthetics Center, Inc. (MMACI), located in Leawood,

Kansas.” Dist. Ct. Docket No. 1 at 1. The indictment proceeded to refer

repeatedly to MMACI. A superseding indictment was returned in January 2015

that included the same references to MMACI.

      During opening statements at trial, defense counsel mentioned that the

entity at issue was “more properly called Midwest Medical Aesthetics Center,

P.A. for professional association.” Aplt. App., Vol. VIII at 2251. Subsequently,

“in the course of cross examining more than several [government] witnesses,”

defense counsel raised the issue “again as to the proper name [of the entity] and,

beyond that even, the existence of the entity Midwest Medical Aesthetics Center,

Inc.” Id. The government objected, and the district court heard arguments and

                                          9
invited briefing on the issue. The government, as part of its briefing on the issue,

moved to amend the superseding indictment to read “Midwest Medical Aesthetics

Center and not Midwest Medical Aesthetics Center, Inc.” Aplt. App., Vol. II at

444.

       On the sixth day of trial 2, the district court granted the government’s

motion to amend and ordered that the superseding indictment refer to Stegman’s

business as “Midwest Medical Aesthetics Center.” Id., Vol. VIII at 2258-59. In

doing so, the district court concluded that Stegman was “fully on notice of which

entity [wa]s at issue” in the indictment. Id. at 2254. The district court explained:

              This isn’t a situation where there actually is a Midwest
       Medical Aesthetics Center, Inc., that filed a different set of tax
       forms. This isn’t a situation where there could potentially be a
       jeopardy, double jeopardy problem because there’s an entity that
       filed tax returns under this name, but the government has charged an
       entity under another name. All were on notice that it was Midwest
       Medical Aesthetics Center that was the subject of Counts 2, 3, and 4.
              And therefore, I find that it is a minor change and a variance.
       It doesn’t prejudice the defendants. The defendants were on notice.
       And that in all respects, this is a variance that can be amended, as the
       government moves to amend, by going forward with the name being
       Midwest Medical Aesthetics Center. That matches the name on the
       tax returns. It matches the name on most of the business records that
       I’ve seen thus far. * * *
              A variance, as opposed to an amendment, occurs when the
       evidence at trial proves facts other than those alleged in the
       indictment, but the charging terms and elements stated in the
       indictment remain unaltered. And that is the case here.

       2
        The first day of trial was comprised solely of voir dire. Testimony began
on the second day of trial, following the parties’ opening statements. The
presentation of testimony from both sides occurred over a period of
approximately twenty days.

                                          10
              This is the type of variance that does not affect the substantial
      rights of the defendants in this case because the variance does not
      prevent the defendants from presenting their defense properly, it does
      not unfairly surprise them, or surprise them at all. It does not expose
      them to double jeopardy.
              This variance is not fatal because the defendants, again,
      could’ve anticipated from the indictment and the evidence what
      evidence would be presented at trial. Could’ve anticipated just from
      the face of the indictment itself what evidence would be presented at
      trial, again, the corporate tax returns for this entity.

Id. at 2254-2256.

      At the conclusion of all the evidence, the jury found Stegman guilty of two

counts of corporate tax evasion and two counts of personal tax evasion, and

acquitted her on one count of corporate tax evasion and the conspiracy charge.

Stegman subsequently moved for judgment of acquittal, and the district court

granted her motion in part, dismissing the two convictions for corporate tax

evasion. In doing so, the district court noted, as argued by Stegman, that “the

Superseding Indictment specifie[d] that the corporate taxes were due and owing

by Stegman, and the Government did not prove that Stegman herself owed the

taxes.” Id., Vol. VI at 1740. More specifically, the district court noted that the

government “did not offer evidence that would have supported a theory that

[Midwest] was a sham corporation or a disregarded entity, nor did it attempt to

pierce [Midwest]’s corporate veil.” Id. at 1740-1741. Thus, the district court

concluded, “the income tax at issue . . . was due and owing by [Midwest], not Ms.

Stegman.” Id. at 1741.


                                         11
      2. Analysis

      The Presentment Clause of the Fifth Amendment states, in pertinent part,

that “[n]o person shall be held to answer for a capital, or otherwise infamous

crime, unless on a presentment or indictment of a Grand Jury.” U.S. Const.

amend. V. The Supreme Court has interpreted this provision to mean that an

indictment may not be “amended except by resubmission to the grand jury.”

Russell v. United States, 369 U.S. 749, 770 (1962); see also Stirone v. United

States, 361 U.S. 212, 215-16 (1960).

      This prohibition does not, however, “extend to alterations that are ‘merely a

matter of form.’” United States v. Dowdell, 595 F.3d 50, 67 (1st Cir. 2010)

(quoting Russell, 369 U.S. at 770). Thus, we “ha[ve] distinguished between a

district court’s amending an indictment as to form, which is permissible, and as to

substance, which is an impermissible usurpation of the grand jury’s prerogative.”

United States v. Pina, 974 F.2d 1241, 1243 (10th Cir. 1992). Further, we have

“defined an amendment of form as a change that does not mislead the defendant

in any sense, does not subject the defendant to any added burdens, and does not

otherwise prejudice the defendant.” Id. Likewise, other circuits “have allowed

ministerial corrections of clerical errors in names, dates, and citations, so long as

the change would not deprive the defendant of notice of the charges against him.”

Dowdell, 595 F.3d at 68. “In short, when a change ‘le[aves] the substance of the

charge unaffected, the switch d[oes] not usurp the prerogative of the grand jury.”

                                          12
Id. (quoting United States v. Eirby, 262 F.3d 31, 38 (1st Cir. 2001)) (alteration in

original).

      Stegman argues that “[t]he amendment substantively changed the entity

from which individual and corporate income tax obligations allegedly flowed and

the affirmative acts of tax evasion the Government had to prove.” Aplt. Br. at 13.

“Furthermore,” she argues, “the district court constructively amended the

indictment by, inter alia, broadening the possible bases for conviction.” Id.

Stegman argues that “[t]o allow an indictment to be amended in a tax evasion

case to substitute the name of one business entity allegedly impacting tax liability

for the name of another business entity frustrates 130 years of jurisprudence

prohibiting district courts from amending indictments.” Id.

      We reject these arguments. Contrary to her assertion, and consistent with

what the district court concluded, the amendment was merely a matter of form,

dropping the “Inc.” to accurately reflect the change that Stegman made to the

structure of her business (and a change, we note, that she did not alert the IRS to

when she filed the business’s federal tax returns). Further, as clearly stated by

the district court, the amendment did not mislead Stegman in any sense, did not

subject her to any added burdens, and did not otherwise prejudice her in any way.

See Pina, 974 F.2d at 1243. Moreover, the amendment did not deprive Stegman

of notice of the charges against her. In short, the obvious and consistent focus of

the criminal proceedings, both before and after the amendment, was on whether

                                         13
Stegman evaded federal taxes by diverting money from the only business she

owned that generated an income, using that money for personal expenses, and

failing to properly report these transactions to the IRS. Consequently, because

the amendment was one of form only, the district court did not err in granting the

government’s motion to amend the indictment.

      Stegman also asserts that the district court’s allowance of the amendment

violated her due process rights. Specifically, she argues that “[t]he jury was

never told there was an amendment or that [she] was entitled to rely on the

indictment” and, “[a]s a result, the jury may have been left with the impression

that [she] misled them on the issue of the existence of MMACI.” Aplt. Br. at 29.

      This argument fails for several reasons. First, Stegman’s counsel conceded

at oral argument that Stegman never asked the district court for such an

instruction. Second, and relatedly, she failed to properly alert the district court to

this constitutional challenge. Third, the argument lacks merit given our

conclusion that the amendment was one of form only. Finally, the evidence of

Stegman’s guilt was overwhelming and thus we are not persuaded that the district

court’s decision to allow the amendment deprived her of the right to a fair trial.

                        B. The purported Braswell violation

      In her second issue on appeal, Stegman contends that the government

violated the Supreme Court’s decision in Braswell v. United States, 487 U.S. 99

(1988), by using against her corporate records, specifically company ledgers, that

                                          14
it obtained by compulsory summons issued to her, and that this violation requires

reversal of her convictions. Because this issue concerns Stegman’s Fifth

Amendment privilege against self-incrimination, we review the issue de novo.

See United States v. Banks, 761 F.3d 1163, 1184 (10th Cir. 2014) (“Whether a

defendant’s Fifth Amendment privilege against self-incrimination has been

violated is a legal question we review de novo.”).

      1. The holding in Braswell

      The Supreme Court granted certiorari in Braswell to address “the question

whether the custodian of corporate records may resist a subpoena for such records

on the ground that the act of production would incriminate him in violation of the

Fifth Amendment.” 487 U.S. at 100. The Supreme Court “conclude[d] that he

may not.” Id. In reaching this conclusion, the Court began by noting that

corporations “are not protected by the Fifth Amendment.” Id. at 102. More

specifically, the Court noted that it “ha[d] long recognized that, for purposes of

the Fifth Amendment, corporations and other collective entities are treated

differently from individuals.” Id. at 104. This collective entity rule, the Court

noted, mandated “that without regard to whether [a] subpoena is addressed to the

corporation” or “to the individual in his capacity as a custodian, a corporate

custodian . . . may not resist a subpoena for corporate records on Fifth

Amendment grounds.” Id. at 108-09 (citations omitted). The Court then

contrasted this with sole proprietorships and noted that sole proprietors are

                                         15
entitled to “show that [an] act of production [of proprietorship documents] would

entail testimonial self-incrimination.” Id. at 104.

      In a passage relevant to the case at hand, the Court explained the proper

and improper uses of corporate records produced pursuant to a subpoena:

      Although a corporate custodian is not entitled to resist a subpoena on
      the ground that his act of production will be personally
      incriminating, we do think certain consequences flow from the fact
      that the custodian’s act of production is one in his representative
      rather than personal capacity. Because the custodian acts as a
      representative, the act is deemed one of the corporation and not the
      individual. Therefore, the Government concedes, as it must, that it
      may make no evidentiary use of the “individual act” against the
      individual. For example, in a criminal prosecution against the
      custodian, the Government may not introduce into evidence before
      the jury the fact that the subpoena was served upon and the
      corporation’s documents were delivered by one particular individual,
      the custodian. The Government has the right, however, to use the
      corporation’s act of production against the custodian. The
      Government may offer testimony—for example, from the process
      server who delivered the subpoena and from the individual who
      received the records—establishing that the corporation produced the
      records subpoenaed. The jury may draw from the corporation’s act
      of production the conclusion that the records in question are
      authentic corporate records, which the corporation possessed, and
      which it produced in response to the subpoena. And if the defendant
      held a prominent position within the corporation that produced the
      records, the jury may, just as it would had someone else produced the
      documents, reasonably infer that he had possession of the documents
      or knowledge of their contents. Because the jury is not told that the
      defendant produced the records, any nexus between the defendant
      and the documents results solely from the corporation’s act of
      production and other evidence in the case.

Id. at 117-18 (footnote omitted).




                                          16
      2. Relevant facts

      Prior to trial, Stegman moved “to exclude from evidence handwritten

ledgers of Midwest . . . , which were produced to the IRS pursuant to a Corporate

Summons.” Dist. Ct. Docket No. 146 at 7. Stegman argued, in pertinent part,

that under Braswell, “the Government [could not] introduce into evidence the fact

that . . . Stegman produced the documents in response to [a] subpoena, and thus

[could not] attribute the documents to Stegman as an individual.” Id. The district

court denied Stegman’s motion. In doing so, the district court concluded that “the

ledgers [we]re admissible as business records without compelling . . . Stegman to

testify.” Id. The district court emphasized that “[t]he Government’s witnesses

would not be permitted to name . . . Stegman as the custodian of records or the

person who received the subpoena.” Id. at 7-8.

      During its case in chief, the government presented testimony from IRS

Agent Janice Willard. She testified that the IRS, during its criminal investigation,

served a summons on Midwest and obtained ledgers in response to the summons.

Defense counsel, citing Braswell, objected to the ledgers being “attributed to Ms.

Stegman by her handwriting.” Aplt. App. at 2717 (Trial Tr. at 3904). The district

court overruled the objection, consistent with its pretrial ruling on Stegman’s

motion to exclude the evidence.

      Later, during the cross-examination of Stegman’s expert witness,

government counsel asked about those ledgers:

                                         17
      Q.    Whose ledgers are these?

      A.    I’m assuming they’re Ms. Stegman’s.

      Q.     So you’re testifying in a criminal tax case based on ledgers
      that are squarely at issue, and you’re assuming that those are Ms.
      Stegman’s?

      A.     Well, you’re assuming. That’s the testimony you’re giving.
      You’re saying that she faxed those or she provided those. I’m not
      sure about - - is that 2010?

      Q.     Did you hear testimony from Revenue Agent Willard that in
      response to a summons, she received these green ledgers; yes or no?

      A.     I don’t know what years those are.

      Q.      So you don’t know when these ledgers were received by the
      IRS; is that what you’re saying to the jury now?

      A.     I can’t tell you - - if you’d let me see the ledgers, I could tell
      you. I know that there - - there were ledgers provided. I don’t know
      who you got them from at this point.

      Q.     Well, have you - - let me ask you, did you listen to Revenue
      Agent Willard testify that she received green ledgers, and that was
      introduced as evidence in this trial you were part of?

      A.     These are green ledgers that she received; is that what you’re
      saying? In 2010, okay, right.

      Q.     Okay. Do you recognize those ledgers?

      A.     I do.

      Q.    And can you finally agree with us that those are Ms.
      Stegman’s ledgers that she controlled; yes or no?

Aplt. App. at 3063-64 (Trial Tr. at 4547-48).

      Before Stegman’s expert witness responded to this last question, Stegman’s

                                          18
counsel asked to approach the bench. The district court responded in the

following manner, carefully noting the parameters of the holding in Braswell:

            There’s no Braswell violation. This is a - - basically, it’s a
      closely-held corporation, almost a single shareholder, depending on
      what you look at in those years. The testimony has been that these
      were produced pursuant to a summons, not who produced them, but
      produced pursuant to a summons, received by the revenue agent.
      And there has obviously been testimony that these were ledgers
      prepared by Ms. Stegman. All of that taken together in context does
      not make that a Braswell violation.

            I was concerned during his examination of this witness that he
      was going to say something inappropriate in the context of him not
      wanting to answer questions. So you might want to remind him
      about that rule because I don’t typically want anybody testifying that
      Ms. Stegman produced these in response to a summons.

Id. at 3064-65 (Trial Tr. at 4548-49).

      3. Analysis

      Stegman argues on appeal that “[t]he prosecutor . . . violated Braswell by

asking [the] witness to agree ‘that those are Ms. Stegman’s ledgers that she

controlled.’” Aplt. Br. at 14 (quoting Aplt. App. at 3062-64). In other words,

Stegman argues, “[t]he prosecutor blatantly attributed the records to [her], not the

corporation.” Id. at 33 (emphasis in original). Stegman in turn argues that

“[b]ecause inter alia the Government used these ledgers to advance its allegation

that [she] used whiteout before disclosing documents to the IRS, the Government

cannot prove that this was harmless beyond a reasonable doubt.” Id. at 14.




                                         19
      Contrary to Stegman’s assertions, however, we conclude that the

prosecutor’s questions did not violate Braswell. Specifically, the prosecutor did

not ask the witness whether Stegman was the one who the compulsory summons

was served upon or the one who delivered the requested ledgers to the

government. Rather, the prosecutor asked the witness only who owned or

controlled the ledgers and the witness testified simply that he assumed the ledgers

belonged to Stegman. Thus, the questions did not violate the prohibition outlined

in Braswell. It is also worth noting, as the district court did in overruling

Stegman’s contemporaneous objection, that nothing about the questions or the

response was particularly significant, given the other evidence that was presented

at trial establishing that Stegman was in complete control of Midwest and had

prepared the ledgers at issue.

      In sum, then, we conclude that the prosecutor’s questions and the witness’s

response did not violate Stegman’s Fifth Amendment privilege against self-

incrimination.

                 C. The alleged destruction of exculpatory evidence

      In her third issue on appeal, Stegman argues that the district court erred in

denying her motion to dismiss the indictment due to destruction of exculpatory

evidence. As explained in more detail below, the district court denied the motion

based upon a series of factual findings made after conducting an evidentiary

hearing on the motion. We review the district court’s factual findings for clear

                                          20
error. United States v. Harry, 816 F.3d 1268, 1276 (10th Cir. 2016).

      1. Relevant facts

      In 2004 and 2005, the IRS audited Stegman’s personal tax returns for the

years 2000 and 2001. The IRS did so because of Stegman’s involvement in, and

victimization by, an offshore investment “Ponzi scheme” called Anderson Ark

Associates. This audit ultimately resulted in a “no change” letter issued by the

IRS to Stegman.

      In November 2009, the IRS initiated a civil audit of the 2007 and 2008 tax

returns of both Stegman and Midwest. In October 2010, the case was referred to

the IRS’s criminal investigation division. As part of the referral, the IRS’s civil

division forwarded to the criminal division a “referral package” of documents that

included the file from the earlier audit that the IRS had conducted regarding

Stegman’s 2000 and 2001 tax returns. That file “consisted of a stack of paper that

was approximately six to seven inches thick.” Dist. Ct. Docket No. 108 at 4.

      On April 6 and 11, 2011, IRS agent Willard spent approximately twelve

hours reviewing the file relating to the 2000 and 2001 audit. Willard “took

fourteen pages of notes” during this review. Id. According to Willard, “she

reviewed the file to see if there were similar issues involved as with her

investigation, to see if [Stegman] or her tax preparer made a statement in the prior

audit, and to see if there was a pattern of conduct.” Id. Further, Willard

indicated that “[h]er notes were intended to serve as a manageable summary of

                                          21
the documents included in the file.” Id. Willard provided her notes to her

supervisor, Special Agent Randy Praiswater, “and they discussed the file” and

“agreed the civil audit [in 2000 and 2001] dealt with the Anderson Ark scheme

because Stegman was considered a victim of that Ponzi scheme.” Id. at 5.

Although “[t]hey noted that there were some similar transactions included in the

civil audit file related to the current investigation,” they likewise noted that “the

civil audit file involved conduct that was close to ten years old” and “[t]hey did

not believe those transactions were relevant to the tax years that were the subject

of the criminal investigation.” Id.

       Willard and Praiswater did not discuss the 2000 and 2001 audit file again

until February 2013, when they agreed that the file should be sent back to the

IRS’s civil division for refiling because it was not relevant to the criminal

investigation. According to Praiswater, he and Willard “examined the file for

potential defenses, or for items that were similar to the activity . . . under

investigation, and determined that the civil audit file was not relevant to the . . .

criminal case.” Id. at 5-6. Consequently, “[o]n March 1, 2013, . . . Willard

returned the civil audit file to her supervisor . . . in St. Louis” and “[n]either . . .

Willard nor . . . Praiswater requested a hold or freeze be placed on the civil audit

file.” Id. at 6. “[T]hey [both] believed that the file would be returned to

wherever it had originally been stored.” Id. Willard’s supervisor, Linda

McAdon, “received the audit file on March 4, 2013, and recommended that it be

                                            22
refiled.” Id. at 16. However, “[t]he file was ultimately destroyed at the National

Archives and Record Administration facility around July 2013, without the IRS

agents’ knowledge.” Id.

      2. The district court proceedings

      On October 29, 2014, the criminal investigation culminated in the

indictment in this case. On February 24, 2015, Stegman moved to dismiss the

indictment due to destruction of exculpatory evidence, namely the old civil audit

file relating to her tax returns for 2000 and 2001. Stegman argued that these

returns “contain[ed] positions that were similar, if not identical, to the positions

the Government [wa]s claiming [we]re criminal in this case and that, after the IRS

put the tax returns under the microscope and summonsed financial records, the

IRS . . . found the tax returns were accurate and did not assess any additional

tax.” Dist. Ct. Docket No. 69 at 3. Stegman further argued that the IRS civil

audit file stemming from 2000 and 2001 was destroyed by the IRS and was thus

unavailable for their review and use at trial.

      The district court held an evidentiary hearing on the motion on July 14,

2015, and took the matter under advisement. On August 21, 2015, the district

court issued a memorandum and order denying the motion to dismiss the

indictment.

      Stegman had argued that “she had a good faith belief that she was

complying with the tax laws” and that she should have been “able to rely on” the

                                          23
“no change” letter issued by IRS following the 2000-2001 audit “as circumstantial

evidence to support her good faith defense.” Dist. Ct. Docket No. 108 at 8. But

the district court concluded “that the civil audit file’s exculpatory value as to a

good faith defense was not obvious at the time it was destroyed.” Id. More

specifically, the district court noted, citing Willard’s notes, that the 2000-2001

audit focused on the Anderson Ark matter and “Stegman’s business expenses

were not the focus of th[at] audit.” Id. at 9. Thus, the district court concluded

“that the purpose of the 2000-2001 civil audit was entirely unrelated to the

charges at issue in this [criminal] case.” Id. In addition, the district court found

that the presence in the old civil audit files of information from Stegman’s banks

and creditors was the result of Stegman failing to cooperate initially with the civil

audit, which in turn prompted the IRS to issue third party summonses for bank

records and creditor information. Id. at 9-10. Further, the district court

concluded that the “no change” letters sent to Stegman “would not have

communicated to her any information about the substance of the audit” and

instead “merely communicated the fact that there was no change to her taxes due

and owing for the tax years in question.” Id. at 10. Lastly, the district court

concluded that the disclosure and effective use of the old civil audit file would

not have “ma[d]e the difference between a conviction and acquittal for Stegman.”

Id.

      Stegman also argued “that the information in the civil audit file about

                                          24
checks she received from her mother, non-liquid personal property such as furs

and jewelry, and cash holdings [was] exculpatory because [it] support[ed] a cash

hoard defense.” Id. at 11. The district court, however, concluded that Stegman

had “fail[ed] to explain how a cash hoard would exculpate her given the[]

[government’s] allegations” that “it was not relying on the net worth method of

proof in this case” and would instead rely on evidence that Stegman “mishandled

income derived from her business” and “claimed personal expenditures as

business expenditures on her tax returns.” Id. Thus, the district court found that

“[w]hile the evidence m[ight] be potentially exculpatory, Stegman ha[d] failed to

establish that the civil audit file had apparent exculpatory value as to a cash

hoard.” Id. at 13.

      In sum, the district court “f[ound] that the exculpatory value of the civil

audit file was not apparent.” Id. More specifically, the district court concluded

that “[a]lthough the contents of the file m[ight] potentially relate to Stegman’s

cash hoard or good faith defenses, the record before [it] d[id] not support the

conclusion that they were facially exculpatory.” Id. “Moreover,” the district

court concluded, “even if facially exculpatory, Stegman [did] not me[et] her

burden of showing she could not obtain comparable evidence through reasonable

means.” Id. On this point, the district court noted that “Agent Willard’s fourteen

pages of notes were produced to defendants and [could] be used at trial.” Id.

Further, “the notes indicate[d] that the documents included in the file that the

                                          25
investigators thought m[ight] be relevant to the current investigation—tax returns,

bank records, statements of asset—were obtained from third party summons” and

thus could “be obtained from other sources.” Id. “[I]n particular,” the district

court noted, “Stegman could produce evidence of her liquid and non-liquid assets

in support of any cash hoard defense.” Id.

      The district court then turned to the question of “whether Stegman ha[d]

shown that the Government destroyed the records in bad faith.” Id. at 14. The

court began by rejecting the notion that the government had explicit notice that

Stegman believed that the civil audit file was exculpatory. Id. at 15. The civil

audit file, the court noted, “contained evidence of cash and other holdings during

a much earlier time frame, 2000-2003,” and “this evidence was in the form of

bank records and other financial documents that had been summonsed during the

audit based on Stegman’s initial failure to cooperate, but were not ultimately

relevant to the purpose of the audit.” Id. The district court further noted that “the

underlying financial documents could be reasonably obtained elsewhere” because

some were “public records and others could reasonably be expected to be within

Stegman’s possession or control.” Id. at 16.

      The district court also concluded there “[wa]s no evidence that the files

were destroyed at the agents’ direction.” Id. “Neither Agent Willard nor SA

Praiswater returned the file with the understanding that it would be destroyed.”

Id. Rather, the district court found, “[t]hey both believed from prior experience

                                          26
that it would be refiled.” Id.

      In addition, the district court concluded that “the evidence [wa]s not central

to the Government’s case,” and “there [wa]s no indication that it plan[ned] to use

any information about the civil audit to prove the charges in this case.” Id.

Indeed, the court noted, “the Government ha[d] steadfastly maintained that the

civil audit was completely unrelated to the charges in this case and therefore

ha[d] no probative value.” Id. at 17.

      Finally, the district court found “that the Government ha[d] offered an

innocent explanation for the destruction of the civil audit file.” Id. The court

explained:

      The agents determined after carefully reviewing the file and
      preparing a written summary, that the civil audit file was neither
      relevant nor exculpatory to their criminal investigation. The Court
      weigh[ed] heavily the fact that Agent Willard prepared a careful
      summary of the file and provided it to Defendants in discovery; these
      [we]re not actions of a person attempting to cover up exculpatory
      evidence. When Agent Willard and SA Praiswater decided to close
      out their investigation to fraud suspense, they had to decide what to
      do with the civil audit file. They decided to return the file with the
      expectation that it would be refiled, as this had been their experience
      when returning and requesting audit files in the past. Agent Willard
      sent the file to McAdon in March 2013, and McAdon recommended
      that it be refiled. The Government was unaware that the file had
      been destroyed until Defendants requested the file during discovery
      in December 2014.

Id.

      In sum, the district court found no bad faith on the part of the agents.




                                         27
      3. Analysis

      “The Due Process Clause imposes duties on the government not to deprive

a defendant of exculpatory evidence.” United States v. Harry, 816 F.3d 1268,

1276 (10th Cir. 2016). In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme

Court held that “the suppression by the prosecution of evidence favorable to an

accused upon request violates due process where the evidence is material either to

guilt or to punishment, irrespective of the good faith or bad faith of the

prosecution.” Id. at 87.

      Where, as here, a defendant “made the requisite request[] but the evidence

was no longer available at that time,” “the failure to preserve the evidence

violates due process if the evidence was exculpatory and its exculpatory value

was apparent before its loss (assuming that the evidence was ‘of such a nature

that the defendant would be unable to obtain comparable evidence by other

reasonably available means’).” Harry, 816 F.3d at 1276 (quoting California v.

Trombetta, 467 U.S. 479, 489 (1984)). “If, however, the exculpatory evidence

was not apparently exculpatory but merely ‘potentially useful,’ the failure to

preserve the evidence does not violate due process ‘unless [the] criminal

defendant can show bad faith on the part of the police.’” Id. (quoting Arizona v.

Youngblood, 488 U.S. 51, 58 (1988)) (alteration in original).




                                          28
             i. Was the civil audit file facially exculpatory?

      The district court in this case correctly observed, as we have previously

held, that “[t]he government’s duty to preserve extends only to evidence that

‘might be expected to play a significant role in the suspect’s defense.’” Id.

(quoting Trombetta, 467 U.S. at 488). Stegman, as the defendant, “bears the

burden of showing that the missing evidence met that standard when it was lost.”

Id.

      Stegman argues on appeal, as she did below, that the civil audit file was

“facially exculpatory.” Aplt. Br. at 37. In support, Stegman points to testimony

of IRS Agent Willard at the evidentiary hearing conceding that the civil audit file

showed that Stegman had some cash and thus could perhaps support a cash hoard

defense. Stegman also asserts that the civil audit file “contained ‘no change

letters’—evidence that Stegman could have introduced to establish that she relied

in good faith on the IRS’s determination that her tax positions were valid.” Id.

(emphasis in original).

      Addressing these two arguments in order, the district court expressly

rejected Stegman’s argument, made below, that “evidence of a cash hoard is

exculpatory as a matter of law.” Dist. Ct. Docket No. 108 at 11. Thus, Stegman

must point to something in addition to evidence that she was in possession of a

large amount of cash. As noted, Stegman points, as she did below, to Agent

Willard’s testimony at the evidentiary hearing conceding that Stegman had some

                                          29
cash and that this could conceivably support a cash hoard defense. Notably, the

district court stated in its decision that it “d[id] not agree with [Stegman] that

[Willard] agreed that the civil audit file contained evidence that supported a cash

hoard defense in this case.” Id. at 13. “To be sure,” the district court stated,

“Willard agreed with Stegman’s attorney that the audit file contained evidence of

cash, and of non-liquid holdings that could be converted to cash, but both [IRS]

agents repeatedly testified that they did not believe that the audit file contained

evidence that was relevant to a defense to the charges in this case, including a

cash hoard defense.” Id. Stegman makes no attempt on appeal to challenge the

district court’s findings on this point. Nor does Stegman even acknowledge, let

alone address, the district court’s conclusion that a cash hoard would not have

exculpated Stegman because the government was not using a net worth method to

prove her tax evasion, and instead was gathering and relying on evidence that she

“mishandled income derived from” Midwest,” took cash from Midwest, and

“claimed personal expenditures as business expenditures on her tax returns.” Id.

at 12. Finally, Stegman fails to acknowledge, let alone challenge, the district

court’s finding that many of the documents contained in the civil audit file could

be obtained from other sources, including Stegman herself. Id. at 13.

      Turning next to Stegman’s argument that the civil audit file would have

supported a good faith defense, the district court specifically found that,

(1) “Stegman’s affidavit” in the civil audit case “was wholly concerned with the

                                           30
Anderson Ark matter,” (2) her then-attorney’s “letters [in the civil audit file] all

discuss his client’s conduct with regard to Anderson Ark and the fact that she was

a victim of the investment scheme,” (3) “Stegman’s business expenses were not

the focus of the [prior] audit,” and (4) “[t]here can be no dispute that the purpose

of the 2000-2001 civil audit was entirely unrelated to the charges at issue in this

case.” Id. at 9. Stegman makes no attempt to challenge any of these findings on

appeal. Thus, the fact that the civil audit file contained “no change” letters,

standing alone, is immaterial.

      The district court did not clearly err in finding “that the exculpatory value

of the civil audit file was not apparent” with respect to the defenses of good faith

or cash hoard. Id. at 13.

             ii. Did the IRS agents act in bad faith?

      Because the civil audit file was not apparently exculpatory, “the

government [could have] violated [Stegman’s] right to due process only if it lost

or deliberately destroyed the [file] in bad faith.” Harry, 816 F.3d at 1278. As

previously noted, the district court found that Stegman failed to establish that the

IRS agents acted in bad faith.

      On appeal, Stegman challenges this finding, arguing that “[e]ven if the civil

audit files were only potentially exculpatory, the Government acted in bad faith,

therefore requiring dismissal.” Aplt. Br. at 38 (emphasis in original). In support,

Stegman asserts that IRS agents “Willard and Praiswater admitted they knew the

                                          31
evidence supported” her cash hoard defense. Id. at 39 (emphasis in original).

Stegman also argues that “the IRS’s violation of federal law prohibiting the

agency from destroying records establishes per se bad faith.” Id. at 40 (emphasis

in original). But, Stegman complains, “the district court denied [her] the

opportunity to establish a violation of federal law by the IRS.” Id.

      Addressing these arguments in order, the district court agreed that “the

Government was on notice that [Stegman] advanced a cash hoard defense” before

the civil audit file was returned and destroyed. Dist. Ct. Docket No. 108 at 15.

“But the question,” the district court concluded, was “not whether the

Government was aware that Stegman was maintaining a cash hoard defense, but

whether it was on notice that the information contained in the civil audit file

would support that defense.” Id. Although both Willard and Praiswater testified

that the civil audit file “included evidence of Stegman’s cash, and of her non-

liquid assets that could be converted to cash,” both of them “determined that the

financial documents included in the audit file were not exculpatory as to the cash

hoard defense.” Id. Stegman points to nothing in the record that would establish

that the district court’s findings on this point were clearly erroneous. Indeed, the

district court noted that “evidence of cash and other holdings” in the civil audit

file pertained to “a much earlier time frame, 2000-2003.” Id. The district court

also noted that “the underlying financial documents could be reasonably obtained

elsewhere,” id., some being “public records and others [that] could reasonably be

                                          32
expected to be within Stegman’s possession or control.” Id. at 16. Notably,

Stegman makes no mention of these findings, nor does she attempt to challenge

them.

        As for Stegman’s claim that the agency itself acted in bad faith, the district

court found that “[t]he file was ultimately destroyed at the National Archives and

Record Administration facility around July 2013, without the IRS agents’

knowledge” and that “[t]here [wa]s no evidence that the files were destroyed at

the agents’ direction.” Id. at 16. Although Stegman now contends that she would

have presented evidence from IRS personnel “that incineration of these audit files

was inconsistent with the Code of Federal Regulations provisions governing the

retention of these particular records,” she fails to point to any evidence

establishing that the IRS itself played a role in the file’s destruction.

        It is also worth noting, as did the district court, that much of the

information allegedly contained in the civil audit files could have been obtained

by Stegman from other sources, including herself. Again, Stegman’s appellate

brief is silent on this point.

        Lastly, Stegman argues that “the IRS’s violation of federal law prohibiting

the agency from destroying records establishes per se bad faith.” Aplt. Br. at 40

(emphasis in original). We disagree. As we have noted, there is no evidence that

the IRS itself played a role in the file’s destruction and the district court made no

such finding. Moreover, Stegman fails to cite to any authority supporting a per se

                                            33
bad faith rule.

             iii. Conclusion

      In sum, we conclude that Stegman has failed to establish that the district

court erred in denying her motion to dismiss the indictment due to destruction of

allegedly exculpatory evidence.

             D. The admission of testimonial statements from Don Lake

      In her fourth issue on appeal, Stegman argues that the district court erred

by allowing the government to introduce testimonial statements from her personal

tax preparer, Don Lake, in violation of the Confrontation Clause. “[W]e review

de novo to determine whether the defendant was afforded a reasonable

opportunity to impeach adverse witnesses consistent with the Confrontation

Clause.” United States v. John, 849 F.3d 912, 918 (10th Cir. 2017).

      1. Relevant facts

      Stegman employed Don Lake as her personal tax preparer for the tax years

in question. During the course of the IRS’s criminal investigation, various agents

interviewed Lake and Lake also responded to summonses requiring disclosure of

documents related to his preparation of Stegman’s personal tax returns.

Stegman’s defense attorneys also interviewed Lake.

      Lake died in May 2015, after Stegman was indicted, but before the case

proceeded to trial. Stegman responded by filing a motion in limine asking the

district court to “prohibit[] the Government from eliciting evidence and/or making

                                         34
references to any oral or written statements allegedly made by . . . Lake . . . to

Government agents.” Dist. Ct. Docket No. 116 at 1. The district court heard

arguments on the motion on March 1, 2016, and took the matter under

advisement. The district court subsequently denied the motion during trial,

outside the presence of the jury.

      The district court concluded “that there [we]re . . . two categories of

statements” from Lake. Aplt. App., Vol. VI at 1746. “The first category,” the

district court concluded, “consist[ed] of documents that Lake provided to IRS

agents in connection with their investigation into Stegman’s taxes and notes of

interviews conducted by IRS officials during which both Lake and Stegman were

present.” Id. “Some of the[se] documents had Lake’s handwriting on them,

which was identified at trial by Lake’s wife; some documents contained

handwriting that witnesses testified belonged to . . . Stegman.” Id. The district

court “allowed those documents to be admitted at trial because they [we]re not

testimonial and [we]re not subject to the Confrontation Clause.” Id. The district

court explained that these “documents were turned over to the IRS on Stegman’s

behalf within the scope of Lake’s power of attorney relationship with Stegman,”

and were also “business records, which [we]re not testimonial and [we]re not

subject to the Confrontation Clause.” Id. The district court also noted that

“statements in Stegman’s handwriting, once properly authenticated, were

admissible as statements of a party opponent pursuant to Fed. R. Evid.

                                          35
801(d)(2)(A).” Id. Lastly, the district court concluded that “Stegman was present

for the interviews with IRS agents, and though Lake may have been the one

talking to agents, he did so on her behalf as her power of attorney.” Id. Thus, the

district court concluded, “[t]he interview notes . . . contain[ed] Stegman’s

statements and [we]re also admissible pursuant to Fed. R. Evid. 801(d)(2)(A).”

Id.

      “The second category of statements,” the district court concluded,

“consist[ed] of statements made by Lake to IRS officials that were not truly . . .

Stegman’s statements.” Id. “The only statement of that nature the Government

sought to introduce was a statement that Lake made to IRS agents without

Stegman present, stating that Samson, LLC was a Schedule E real estate

business.” Id. at 1746-47. The district court “did not allow that statement to be

admitted at trial” for three reasons: “because Stegman was not present when Lake

made the statement, her own statements about Samson, LLC contradicted Lake’s

statement, and Stegman had no opportunity to cross examine Lake about that

testimonial statement.” Id. at 1747.

      2. Analysis

      In her appeal, Stegman focuses exclusively on the district court’s admission

of Government Exhibit 85. 3 Exhibit 85, which was admitted through the


      3
       At oral argument, Stegman’s counsel clarified that her Confrontation
Clause challenge does not extend to Government Exhibits 331 and 332.

                                         36
testimony of Lake’s widow, Patricia Lake, 4 was comprised of a fax cover sheet

and faxed records that Lake sent to IRS Revenue Agent Schrock during the course

of the IRS’s investigation. 5 Mrs. Lake identified Lake’s handwriting on the fax

cover sheet and on some of the accompanying records. Stegman objected to

Exhibit 85, arguing that the language on the fax cover sheet—“workpapers [sic]

used to prepare her 2008 tax returns”—violated her confrontation rights because

“[s]he ha[d] no idea what work papers he used, and yet they’re being attributed

and used against” her. Aplt. App., Vol. VIII at 2138. The district court

concluded that all of the documents “appear[ed] to be business records . . . of the

Lake’s Tax Service because there [we]re documents collected as part of the client

file.” Id. at 2140. The only exception, the district court concluded, were two

pages in the exhibit that “on their face appear[ed] to be a communication from

. . . Stegman to . . . Lake.” Id. The district court concluded that “these [we]re



      4
        Mrs. Lake testified that she worked with Lake and assisted him in
preparing tax returns for clients, including Stegman.
      5
        The district court noted that these records included “a GMAC mortgage
account,” “personal property tax receipts from a state government, special
assessment bills on real property,” “real property tax-related documents, county
tax notices, Countrywide Home Loan mortgage statement, State of Kansas vehicle
registration, documents about personal property tax, Bank of America, 1099
statements,” “a Schedule K-1,” “a letter on the letterhead of SA Investors Group
to Samson, LLC,” “country treasurer records and property tax statements,”
“W-2s,” “a modified adjusted gross income worksheet that ha[d] some
computations under regular tax and alternative minimum tax” and a document
from Stegman to Lake that was both typewritten and handwritten and included
“itemized information.” Aplt. App., Vol. VIII at 2138-39.

                                         37
the same kind of documents that . . . Stegman would’ve produced directly to the

IRS at their request” had Lake not been acting as her representative. Id. at 2142.

And, the district court noted, although Lake’s fax cover sheet referred to the

documents as “workpapers [sic],” it concluded that the documents were “not work

papers at all,” and instead “were just documents.” Id. At defense counsel’s

request, the district court instructed the jury regarding Exhibit 85: “I’m

instructing you that when you consider this exhibit, it’s not work papers, it’s a

number of financial documents from institutions. It’s not really work papers, but

it is a number of financial documents that you can fully consider.” Id. at 2147.

      Stegman argues in her appeal that “Lake’s assertions to Government agents

investigating [her] [we]re testimonial.” Aplt. Br. at 43. According to Stegman,

“[w]hen a preparer responds to an IRS agent’s request—even in the context of a

civil matter—that preparer unquestionably recognizes that his response is formal

and that the primary purpose of the request is to establish the existence of some

fact that is at least potentially relevant to a criminal investigation.” Id.

(emphasis in original). Stegman in turn argues that “Lake, as a retired IRS agent,

no doubt appreciated the possibility of a criminal investigation based on the IRS’s

request for his work papers (not a common request in a routine civil audit),” and

hence his “assertion to Schrock that the documents he provided were the

‘workpapers [sic] used to prepare her 2008 tax returns’ was a testimonial

statement not subject to confrontation.” Id. at 44.

                                           38
      The problem with Stegman’s arguments is that she makes no attempt to

challenge the district court’s finding that the papers contained in Exhibit 85 were,

save for the fax cover sheet, Stegman’s financial documents rather than Lake’s

work papers. And, in turn, she makes no attempt to explain how such financial

documents were testimonial in nature. As for the fax cover sheet that contained

Lake’s handwriting, we agree with the district court that it was not testimonial in

nature either. The Confrontation Clause, the Supreme Court has emphasized,

“reflects an especially acute concern with a specific type of out-of-court

statement.” Crawford v. Washington, 541 U.S. 36, 51 (2004). In particular, it is

focused on “[a]n accuser who makes a formal statement to government officers”

and thus “bears testimony in a sense that a person who makes a casual remark to

an acquaintance does not.” Id. In other words, testimonial statements are those

that the declarant “would reasonably expect to be used prosecutorially.” Id.

Applying these principles to Lake’s notation on the fax cover sheet, we are not

persuaded that it was testimonial. Specifically, Lake’s notation was “cooperative

and informal [in] nature” and there is no indication that Lake would have

reasonably expected the notation “‘to be used prosecutorially.’” United States v.

Wilson, 788 F.3d 1298, 1316 (11th Cir. 2015) (quoting Crawford, 541 U.S. at 51).

As a result, we conclude that the admission of the fax cover sheet did not violate

Stegman’s rights under the Confrontation Clause.




                                         39
      Finally, to the extent that Stegman argues that Lake’s act of production in

response to the IRS summons was testimonial, that argument was not raised in the

district court and fails under plain error review. See generally Molina-Martinez

v. United States, — U.S. —, 136 S. Ct. 1338, 1343 (2016) (discussing the

conditions that must be met to establish plain error). At a minimum, Stegman,

who does not cite to a single case in support of this argument, cannot establish

that any error in admitting evidence of Lake’s act of production was plain.

                      E. Stegman’s advisory sentencing range

      In her final issue on appeal, Stegman argues that the district court erred by

miscalculating her advisory sentencing range under the Sentencing Guidelines.

More specifically, Stegman asserts that “the district court improperly calculated

the intended tax loss and improperly applied the sophisticated means and

obstruction of justice enhancements” in calculating her advisory Guidelines

sentencing range. Aplt. Br. at 50.

      “We review sentencing decisions for ‘reasonableness under a deferential

abuse-of-discretion standard.’” United States v. Anwar, 741 F.3d 1134, 1136

(10th Cir. 2013) (quoting United States v. Begaye, 635 F.3d 456, 461 (10th Cir.

2011)). Although “[r]easonableness review is a two-step process comprising a

procedural and a substantive component,” id. (quoting United States v. Halliday,

665 F.3d 1219, 1222-23 (10th Cir. 2011)), Stegman challenges only the

procedural reasonableness of her sentence, i.e., whether the district court properly

                                         40
calculated her advisory Guidelines range. “Procedural reasonableness ‘requires,

among other things, a properly calculated Guidelines range.’” Id. (quoting United

States v. Mollner, 643 F.3d 713, 714 (10th Cir. 2011)). In reviewing a district

court’s calculation of a defendant’s advisory Guidelines range, this court reviews

legal questions de novo and factual findings for clear error, giving due deference

to the district court’s application of the guidelines to the facts. Id.

      1. Calculation of intended tax loss

      Section 2T1.1 of the Sentencing Guidelines applies to tax-related crimes

such as those that Stegman was convicted of violating. It directs a district court,

in calculating a defendant’s advisory Guidelines sentencing range, to apply a base

offense level “from § 2T4.1 (Tax Table) corresponding to the tax loss.” U.S.

Sentencing Guidelines Manual § 2T1.1(a)(1) (U.S. Sentencing Comm’n 2013).

For “offense[s] involv[ing] tax evasion or a fraudulent or false return, statement

or other document, the tax loss is the total amount of loss that was the object of

the offense (i.e., the loss that would have resulted had the offense been

successfully completed).” Id. § 2T1.1(c)(1). “If the offense involved . . . both

individual and corporate tax returns, the tax loss is the aggregate tax loss from the

offenses added together.” Id. § 2T1.1(c)(1), note (D).

      The district court in this case found that “the corporate tax loss and the

individual tax loss [we]re inextricably intertwined.” Aplee. App. at 276. The

district court explained:

                                           41
      The individual tax liability is based on what happened at the
      corporation. Ms. Stegman, the evidence showed, obtained income
      through the corporation in the form of diverting cash that was
      supposed to go to the corporation that never hit the corporation’s
      books or – or bank account, for that matter, but went into Samson’s
      bank account or her own bank account that she controlled.

             The corporation expended monies on her behalf, either through
      cash transactions or through credit cards– payments on credit cards
      that were in her name. So in other words, in order to determine what
      her tax liability is, one has to start with an analysis of the corporate
      tax liability. And then the next step being what dividends –
      distributions in the form of dividends or returns of capital
      contributions or capital gains should be recognized as income to Ms.
      Stegman. So these things are inextricably intertwined.

             Ms. Stegman obtained personal benefit by using [Midwest]
      essentially, as the government characterizes it, as her own bank
      account, as her own cash piggy bank. She used that corporation to
      pay her personal expenses. She skimmed a lot of cash out of that
      corporation and paid it to herself without any record and without any
      payment of tax by her or the corporation on the tax receipts – or on
      the cash receipts that the corporation received.

             So in that sense, it’s clearly a part of the same course of
      conduct or common scheme or plan and so both should be
      considered. It also meets the definition of relevant conduct under the
      relevant conduct guideline. And there’s no caveat or limitation in
      terms of whether it was reasonably foreseeable to her. That
      particular language goes to jointly undertaking the activity.

Id. at 236-237.

      On appeal, Stegman argues that “[t]he district court improperly included

the alleged intended corporate tax loss of MMACPA after granting [her] motion

for judgment of acquittal as to all corporate tax evasion counts.” Aplt. Br. at 50.

In support, she argues that “she was acquitted of all corporate tax evasion


                                         42
counts—not because the Government proved what was alleged only by a

preponderance of the evidence but not beyond a reasonable doubt, but because the

Government completely failed to prove what it alleged.” Id. at 52 (emphasis in

original). Consequently, Stegman argues, “the Government, at most, established

an intended tax loss amount of approximately $68,000 for the two counts of

conviction.” Id. at 53.

      We disagree. At the time of sentencing, the district court acknowledged

that it had acquitted Stegman of the two counts of corporate tax evasion found by

the jury. The court explained, however, that it did so not because there was a

lack of “proof beyond a reasonable doubt that th[e] corporation evaded taxes,” but

rather because the indictment itself was flawed in attributing the loss as due and

owing by . . . Stegman, when actually it was due and owing by the corporation.

Aplt. App., Vol. 12 at 3314. The district court nevertheless concluded that, for

purposes of calculating Stegman’s sentence, it was “appropriate [under the

Guidelines] to aggregate the tax loss of both corporation and individual.” Id.

      Quite clearly, § 2T1.1 directs a district court to consider “the aggregate tax

loss from the offenses added together” if the offense involved “both individual

and corporate tax returns.” U.S. Sentencing Guidelines Manual § 2T1.1(c)(1)(D)

(U.S. Sentencing Comm’n 2013). Further, Application Note 2 states, in pertinent

part, that “[i]n determining the total tax loss attributable to the offense (see

§ 1B1.3(a)(2)), all conduct violating the tax laws should be considered as part of

                                           43
the same course of conduct or common scheme or plan unless the evidence

demonstrates that the conduct is clearly unrelated.” Id., § 2T1.1 cmt. n.2. In

addition, § 1B1.3(a)(2), which is referenced in Application Note 2, states that a

defendant’s base offense level shall be determined on the basis of “all acts and

omissions” committed by the defendant “that were part of the same course of

conduct or common scheme or plan as the offense of conviction.” Id.

§ 1B1.3(a)(2). And that is consistent with our precedent, which holds that a

district court may consider as relevant conduct “unindicted, dismissed, or

acquitted conduct.” United States v. Rodebaugh, 798 F.3d 1281, 1300 (10th Cir.

2015).

         Here, Stegman does not seriously dispute the district court’s factual

findings that the corporate and individual tax losses at issue were inextricably

intertwined. Consequently, we conclude that the district court did not err in

utilizing the aggregate loss to determine Stegman’s base offense level.

         2. Sophisticated means enhancement

         Section 2T1.1(b)(2) of the Sentencing Guidelines states that if a tax-related

“offense involved sophisticated means, increase [the base offense] level by 2

levels. If the resulting offense level is less than level 12, increase to level 12.”

U.S. Sentencing Guidelines Manual § 2T1.1(b)(2) (U.S. Sentencing Comm’n

2013). Application Note 5 to § 2T1.1 states that “‘sophisticated means’ means

especially complex or especially intricate offense conduct pertaining to the

                                           44
execution or concealment of an offense” and includes “[c]onduct such as hiding

assets or transactions, or both, through the use of fictitious entities, corporate

shells, or offshore financial accounts.” Id., cmt. n.5 (emphasis omitted).

      The district court in this case concluded that the “sophisticated means”

enhancement applied to Stegman. Although Stegman objected to application of

the enhancement, the district court rejected Stegman’s objection:

            This is not a case in which the only evidence as to the
      execution or concealment of the tax fraud pertained to Ms. Stegman
      simply not providing her accountant with information about income
      or expenses, either individual or for purposes of the corporate return.
      There was evidence in this case of an active and complicated scheme
      to conceal assets. And some of – conceal assets and conceal income.
      Some of it in the context of the investigation itself.

             So, for example, after Ms. Stegman was aware that there was a
      criminal investigation, she told her tax preparer, I believe it was Mr.
      Mendoza at that point, “We need to clean this up,” and sent him an e-
      mail and some information regarding that. The altered ledgers were
      in the context of knowing that there was an investigation underway.
      But even before that, there was the creation of multiple LLCs. The
      primary one used, of course, was Samson, that was used to divert
      checks that should’ve been written to [Midwest] for services received
      but were paid to Kathleen Stegman by use of her stamp and then
      deposited in the Samson account.

             To be sure, Samson was claimed on a couple of these tax
      returns, but Ms. Stegman also indicated to one or more of her tax
      return preparers that Samson was just a name on a bank account.
      Well, actually that’s what she told the IRS, that Samson was just a
      name on the bank account, it had no business purpose. She made
      inconsistent statements at other times about Samson and claimed that
      it did marketing and advertising and actually had a business purpose.

            But the evidence at trial showed that Samson’s primary use
      was apparently to divert money from [Midwest] and use of its bank

                                           45
account so that receipts from [Midwest] went into Samson. There
were other entities and other LLCs used as well, although Samson
was the primary one that was used for at least diversion of money.

       There were – there was evidence about straw purchases. Tony
Felitsky buying the yacht. He couldn’t afford the yacht. He was in
the middle of a divorce, he had no money. There was some
suggestion he had reason to want to hide the fact that he was buying
the yacht, but there was also evidence that he didn’t have any money
and that he didn’t really use the yacht. And I think it was Ms.
Stegman’s brother that testified that it was her yacht. Everyone –
and her employees testified it was her yacht. Everyone understood it
was her boat, not Mr. Felitsky’s. She used him as a straw purchaser.
There was also straw purchases of gold through others, including one
or more of her boyfriends.

       The use of the money orders one could definitely call
structuring. I mean, it’s way below the structuring limit and it was
driven not so much it seems to be by the – the reporting requirement
as it was the fact that money orders couldn’t be purchased for more
than $300 or $500, depending on the outlet. But it – it was a
mechanism by which she didn’t have to report. And there really, in
my view, was no reasonable explanation for somebody driving all
over Leawood and Overland Park buying money orders at every Hen
House and Hy-Vee in town to, in turn, use to – to make gold
purchases and to pay off a yacht and to other – to make payments on
other personal items to her own benefit.

      Why spend the time? Why go through all of this? Why have
employees involved in buying money orders? Why use their name,
family members’ names, LLC’s names, everyone’s name but her own
name to buy money orders unless she was trying to hide the fact that
she was using cash from [Midwest] for personal – for personal
expenses and assets.

       In that sense, it’s not an offshore account. Or there are
schemes that are clearly more sophisticated and more complex in
terms of using, you know, layers and layers of fictitious entities. But
in this case, Ms. Stegman didn’t just use entities, she used people and
layers and layers of people, employees, boyfriends, LLCs, and
engaged in what must’ve been a pretty time-consuming enterprise to

                                  46
      essentially launder the money that she skimmed from [Midwest]
      through money orders in very small amounts.

             In that sense, and the totality of the evidence which I must
      consider, it was complicated, it was complex, it was – it was labor-
      intensive, and it was effective. So I think the sophisticated means
      enhancement is appropriate and I’ll overrule and deny that objection.

Aplee. App. at 229-234.

      In her appeal, Stegman challenges the district court’s findings and

application of the enhancement. To begin with, Stegman argues that “[t]he

individual tax evasion counts essentially boiled down to the Government’s theory

that [she] did not disclose income to her preparer, Lake.” Aplt. Br. at 53. Such

conduct, she argues, “is insufficient to trigger th[e] [sophisticated means]

enhancement” because “not telling someone something is hardly sophisticated.”

Id. at 53-54. Further, she argues, the creation and use of “multiple LLCs does

not, by any means, make her offenses ‘sophisticated.’” Id. at 54. According to

Stegman, “the formation of an LLC [is] straightforward,” and “the LLCs [she]

formed had legitimate business purposes and were unambiguously registered to

her.” Id. Lastly, Stegman argues that the district court improperly considered her

“alleged cash expenditures in applying this enhancement,” even though “the IRS

destroyed evidence that negated the Government’s theory that [she] had $0.00 at

the beginning of tax year 2006.” Id.

      Addressing these arguments in order, it is clear from the record that the

district court based application of the sophisticated means enhancement on more

                                         47
than Stegman simply withholding information from Lake, her personal tax

preparer. In particular, the district court pointed to what it characterized as

Stegman’s “active and complicated scheme to conceal assets” and income. Aplee.

Supp. App. at 229. Part of that scheme, the district court noted, “was the creation

[and use] of multiple LLCs.” Id. at 230. Although it is undisputed that these

LLCs were registered to Stegman, no one but her knew that she was diverting

income from her business to Samson, or that she was using the other LLCs to

disguise information when it served her purposes. Moreover, the district court

expressly found, and Stegman has made no attempt to dispute, that “Samson’s

primary use was apparently to divert money from [Midwest] and use of its bank

account so that receipts from [Midwest] went into Samson.” Id. at 230-231. The

district court also found, and Stegman again does not dispute, that she used

employees of her business to purchase money orders in order to conceal income

from the business. In sum, the district court found, and Stegman does not

seriously dispute, that “she used people and layers and layers of people,

employees, boyfriends, LLCs, and engaged in . . . a . . . time-consuming

enterprise to essentially launder the money that she skimmed from [Midwest]

through money orders in very small amounts.” Id. at 232.

      That leaves only Stegman’s argument that it was improper for the district

court to consider her cash expenditures because “the IRS destroyed evidence that

negated the Government’s theory that [she] had $0.00 at the beginning of tax year

                                          48
2006.” Aplt. Br. at 54. This argument is patently absurd. Even assuming, for

purposes of argument, that the old civil audit file contained information outlining

the amount of cash that Stegman had on hand, that information would have been

irrelevant because the audit occurred in 2004 and 2005 and pertained to the years

2000 and 2001, well before the conduct at issue in this case. Moreover, the

district court expressly found, and Stegman does not dispute, that all of the

information in the old civil audit file was available from other sources, including

Stegman herself.

      Thus, in sum, we conclude that the district court did not err in applying the

sophisticated means enhancement under § 2T1.1(b)(2).

      3. Obstruction of justice enhancement

      Section 3C1.1 of the Guidelines directs a district court to “increase [a

defendant’s] offense level by 2 levels” if “the defendant willfully obstructed or

impeded, or attempted to obstruct or impeded, the administration of justice with

respect to the investigation, prosecution, or sentencing of the instant offense of

conviction” and “the obstructive conduct related to (A) the defendant’s offense of

conviction and any relevant conduct” or “(B) a closely related offense.” U.S.

Sentencing Guidelines Manual § 3C1.1 (U.S. Sentencing Comm’n 2014).

      The district court in this case found that Stegman obstructed the IRS’s

investigation in three ways: directing employees to shred receipts that

documented cash that she received from her business, altering Midwest ledger

                                          49
entries (specifically, 2010 Midwest ledgers) to change the characterization of the

way certain expenses were entered so that they appeared to be legitimate business

expenses, and directing a witness, Dr. Evelyn Clark, to testify that she did not

remember her business relationship with Midwest. Aplt. App., Vol. 12 at

3241-44.

      On appeal, Stegman argues that all of these acts of obstruction related

solely to Midwest’s finances and taxes, and not to her acts of personal tax

evasion. Thus, she argues, the acts did not relate to “the instant offense of

conviction.” As previously discussed, however, the district court expressly found

that the acts of corporate and personal tax evasion were inextricably intertwined

and Stegman does not dispute this finding. Moreover, the district court found,

and Stegman does not dispute on appeal, that the act of shredding corporate

receipts “directly related to [Stegman’s] tax liability because she didn’t claim as

dividends, as salary, as any sort of income, cash that she skimmed and took from

the corporation.” Id. at 3245. The district court also found, again without dispute

from Stegman on appeal, that in 2010 Midwest’s ledgers were changed so that

“things were being hidden in terms of the real characterization, how money was

being expended,” and “[b]y and large it was being expended . . . for the personal

benefit of . . . Stegman, not for any business expenses.” Id. at 3243.

      Stegman also argues that any attempt she made to tamper with Clark’s

testimony was unsuccessful because Clark told investigators that she couldn’t

                                          50
recall what happened when she was a client of Midwest. Notably, the district

court found that even if Stegman’s attempt to influence Clark’s testimony was

unsuccessful, it nevertheless was an attempt to obstruct justice that fell squarely

within the scope of § 3C1.1. Id. at 3244. Notably, Stegman fails to address this

“attempt” finding.

      We therefore conclude that the district court did not err in applying the

obstruction of justice enhancement.

                                         III

      The judgment of the district court is AFFIRMED.




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