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

                                                                            FILED
                                                                           July 19, 2012

                                       No. 11-20210                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

TONYA BUCKNER WOMACK; DONALD RAY WOMACK,

                                                  Defendants-Appellants



                   Appeals from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:08-CR-822-2


Before STEWART, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        A husband and wife were indicted for offenses arising out of their business
of preparing federal income tax returns. The indictment alleged one count of
conspiring to defraud the United States by obstructing the collection of income
taxes and by assisting in the preparation of false income tax returns, see 18
U.S.C. § 371, and 25 counts of aiding and assisting in the preparation of false
income tax returns. See 26 U.S.C. § 7206(2). Thirteen of the counts charged the



        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 11-20210

husband, while the remaining twelve charged the wife. A jury convicted them
on every count. We AFFIRM.
                                     FACTS
      Donald and Tonya Womack were the owners and operators of Front Door
Tax Services, a small company that prepared personal income tax returns in
Houston, Texas. Originally, Donald was the only person who prepared returns
for the business. Donald misrepresented that he was an accountant who had
worked previously for the IRS. As business grew, he sought assistance in
preparing the returns from his wife, Tonya. At first, Tonya only provided
support services to Donald. Her responsibilities progressed until she registered
with the IRS to obtain an electronic filing identification number so that she
could file client returns electronically. Donald used this identification number
as well. At some point, Tonya began to prepare tax returns for customers. To
learn the proper methods for preparing a return, she attended a tax preparation
course provided by a national tax-preparation business.
      The Womacks came to the attention of the Internal Revenue Service due
to unusual deductions claimed on returns they prepared. A federal grand jury
returned a 26-count indictment against the couple, alleging a conspiracy and
aiding and assisting in the preparation of false tax returns. A jury trial was held
in the United States District Court for the Southern District of Texas.
      The government’s case concerned 26 of the thousands of returns the
Womacks prepared. One government witness was Robert Walenta. Front Door
prepared his return, which prompted an IRS inquiry because it claimed a
substantial deduction for vehicle mileage. The IRS told Walenta he needed to
submit documentation to support the deduction. When Walenta told Donald,
Donald offered to provide fraudulent mileage logs that could be given to the IRS.
      Other taxpayers also testified. They explained how their returns claimed
deductions that were not permitted, such as charitable deductions although the

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                                  No. 11-20210

taxpayer never donated to charity or mortgage-interest deductions although the
taxpayer did not own a home. The taxpayers all testified that they never
provided the Womacks with any information that would justify the inclusion of
those deductions on their tax returns. Tonya testified that any errors contained
in the tax returns she prepared were honest mistakes due to her unfamiliarity
with the specific requirements of the tax code.
        The government also called an undercover IRS agent. As part of the
investigation, the agent went to Front Door to have a tax return prepared. He
brought along the necessary paperwork. The agent calculated he legitimately
would owe about $300 in taxes. He testified that Front Door offered him a choice
of three refunds: $3,200, $3,500, or $4,200.
        At the close of the government’s case, both Donald and Tonya moved for
acquittal. This motion was denied. Tonya, but not Donald, put on evidence. Her
theory was that each of her errors were accidental mistakes.
        The jury found Donald and Tonya guilty on all counts. The district court
sentenced Donald to 60 months imprisonment and three years of supervised
release. Tonya was sentenced to 33 months of imprisonment and three years of
supervised release. Both were ordered to pay restitution of $161,855, for which
they are jointly and severally liable. They appeal.
                                  DISCUSSION
        There are five issues: (1) Were jurors improperly allowed to consider, in
deciding Tonya’s guilt, the fact that Donald prepared false mileage logs; (2) did
the district court err in denying funding to the defense for an expert witness; (3)
was there reversible error in the government’s closing statement; (4) was there
sufficient evidence to convict Donald; and (5) did the district court err by denying
Donald’s motion for a fifth continuance?
I.      District Court’s Jury Instruction Regarding Fraudulent Mileage Logs



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      Tonya argues the district court erred by informing the jurors that they
could consider, when determining her criminal intent, that Donald attempted to
give false mileage logs to a customer. She did not object at trial, which leads us
to review the instruction for plain error only. See United States v. Smith, 354
F.3d 390, 396 n.7 (5th Cir. 2003).       To establish plain error, Tonya must
demonstrate the district court committed (1) an error, (2) that was clear or
obvious, and (3) that affected her substantial rights. United States v. Burns, 526
F.3d 852, 858 (5th Cir. 2008). In the context of jury instructions, “[p]lain error
occurs only when the instruction, considered as a whole, was so clearly erroneous
as to result in the likelihood of a grave miscarriage of justice.” United States v.
Garcia, 567 F.3d 721, 728 (5th Cir. 2009) (quotation marks and citation omitted).
      The instruction Tonya challenges related to the use of the evidence under
Rule 404(b). Under that rule, evidence of other acts may be introduced to prove
“motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). Generally, these other acts
are only relevant to the actor. For this reason, the other acts of one person
usually cannot be used to show the intent of another. See United States v.
Cihak, 137 F.3d 252, 258 & n.3 (5th Cir. 1998). There is an exception when the
individuals are part of a conspiracy, but the alleged conspiracy here ended before
Donald offered the false logs. See United States v. Mann, 161 F.3d 840, 859-60
(5th Cir. 1998).
      Prior to the testimony, the district court provided the following instruction:
            The evidence that you are hearing, ladies and gentlemen, is
      evidence of -- that pertains to acts of the defendants that may be
      similar to those charged in the indictment but which were
      committed on other occasions.
            You must not consider any of this evidence in deciding if
      either of the defendants committed the acts that are charged in the
      indictment. You may, however, consider this evidence for other
      limited purposes. If you find beyond a reasonable doubt from other


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                                     No. 11-20210

         evidence in this case that either of the -- or both of the defendants
         did commit the acts charged in the indictment, then you may
         consider the evidence that you are now hearing of similar acts
         allegedly committed on other occasions to determine whether either
         or both of the defendants had the state of mind or intent necessary
         to commit the crimes charged in the indictment, or whether either
         or both of the defendants committed the acts for which they are on
         trial by accident or mistake.
Tonya believes the instruction was erroneous because it referred to “the
defendants” collectively instead of only to Donald. She argues the instruction
impermissibly linked her to Donald’s bad act.
         The district court gave this instruction before it knew the scope or
implication of the testimony. Because of the uncertainty, there was a chance the
testimony would apply to Tonya as well as to Donald. Although it is now clear
that the testimony only implicated Donald, the district court did not have the
benefit of being in our position. We neither expect nor require the district court
to be omniscient. At the time the instruction was given, it was not clearly
erroneous for the district court to refer to both defendants.
         Even if there had been error, the district court’s later instruction mitigated
any prejudice. At the end of the trial, when it was known that the testimony
only concerned Donald, the district court instructed the jury that it could use the
evidence only against him. This instruction limited any prejudice that may have
existed. See United States v. Duffaut, 314 F.3d 203, 210 (5th Cir. 2002).
         There was no plain error on this issue.


II.      Denial of a Motion for Employing an Expert Witness
         The Womacks appeal the district court’s denial of funds to retain an expert
witness. The Womacks wanted an expert who could testify that most of the
returns they prepared were not fraudulent. The district court refused. We
review that ruling for an abuse of discretion. United States v. Hardin, 437 F.3d


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                                  No. 11-20210

463, 468 (5th Cir. 2006).
      The Womacks are considered indigent defendants. Counsel for an indigent
defendant may request expert services and, “[u]pon finding . . . that the services
are necessary and that the person is financially unable to obtain them, the court
. . . shall authorize counsel to obtain the services.” 18 U.S.C. § 3006A(e)(1). This
statutory command requires district courts to “grant the defendant the
assistance of an independent expert under § 3006A when necessary to respond
to the government’s case against him, where the government’s case rests heavily
on a theory most competently addressed by expert testimony.” Hardin, 437 F.3d
at 468 (quotation marks and citation omitted). If the expert’s testimony would
be irrelevant, however, it would not be necessary and the district court may deny
the request. See 18 U.S.C. § 3006A(e)(1).
      This issue consumed a good deal of time before trial. It was discussed at
a pre-trial conference and the court then requested briefing. After the briefs
were submitted, the district court held another conference on the question.
      In their brief and during the conferences, the Womacks did not identify
any binding precedent to support their position. On multiple occasions, the
Womacks explained that the evidence would only be relevant if the government
strayed from the indictment and alleged that most of the returns the Womacks
prepared were fraudulent. The government advised that it was not its intent to
make those types of allegations. Given this assurance, the Womacks noted that
the need for an expert may not be ripe for determination pretrial and instead
could be addressed later.
      With this understanding, the district court concluded that expert
testimony would be irrelevant. Its ruling reflects the understanding that prior
good acts, like bad acts, can be relevant but generally are not. See United States
v. Dobbs, 506 F.2d 445, 447 (5th Cir. 1975). The court shared the Womacks’
concern that there was some chance that the government’s case could drift off

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                                  No. 11-20210

course, but concluded that it would be possible to limit this danger without
incurring the large costs associated with their request. The record reflects
agreement by the Womacks on this point. Under these circumstances, the
Womacks have not shown that the district court abused its discretion.
       The Womacks argue that the government did wander off course during
trial and violated this pretrial understanding. If that occurred, it creates an
issue that is independent of what we have just concluded was a valid decision
not to fund an expert. We examine next what occurred during trial.


III.   Government’s Closing Statement
       Tonya asserts that the government’s closing statement materially
misstated the evidence presented at trial in two ways. First, she argues that the
government impermissibly linked her to the false mileage logs offered by Donald.
Second, she contends the government claimed that every tax return prepared by
Front Door was fraudulent.
       Because she did not object to the statements at the time they were made,
we review for plain error. United States v. Mares, 402 F.3d 511, 515 (5th Cir.
2005). “Plain error exists if (1) there was error; (2) the error was clear and
obvious; and (3) the error affected a substantial right.” Burns, 526 F.3d at 858.
An error is clear if its existence cannot be reasonably debated.      See United
States v. Bohuchot, 625 F.3d 892, 897 (5th Cir. 2010). Generally, an error affects
a defendant’s substantial rights “if there is a reasonable probability that the
result of the proceedings would have been different but for the error.” United
States v. Montes-Salas, 669 F.3d 240, 247 (5th Cir. 2012).
       When reviewing the propriety of closing remarks, context matters. Burns,
526 F.3d at 858. A statement that could appear defective if analyzed in isolation
may lose its tarnish once it is viewed in the light of the entire trial. Moreover,



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                                 No. 11-20210

because closing statements are not evidence, counsel are provided generous
leeway. United States v. Thompson, 482 F.3d 781, 785 (5th Cir. 2007).
      The first asserted error concerns the government’s statement that both
Tonya and Donald offered false mileage logs to a customer. Because there was
no objection made at the time, Tonya must show more than the existence of
error; she must also prove prejudice. See Burns, 526 F.3d at 858. Generally, any
prejudicial impact attributable to a closing statement can be contained by the
district court’s instructions to the jury. See United States v. Turner, 674 F.3d
420, 439-40 (5th Cir. 2012). The district court’s instructions here, which we
presume the jury followed, reminded the jury that it could only consider certain
evidence when determining guilt. See id. at 430. Tonya has not expressed any
objection to these instructions. With these safeguards in place, Tonya has not
shown that there is a reasonable probability that she would have been acquitted
had the government not made the remark. See id. at 439-40.
      Tonya also contends that the government committed plain error when it
commented on the manner in which Front Door was run. She focuses on two
different portions of the closing. The government, after recounting an instance
of alleged fraud, stated that:
            The benefit to the Womacks were happy customers, repeat
      business, client who gets a big refund this year is liable to go back
      next year. And once in the door, what did Mr. and Mrs. Womack do?
      They prepared amended returns, that is, they took the taxpayers
      back to prior tax years and had them change what they had
      reported one, two or three years in the past. They charged fees, and
      this was a way for the Womacks to build the clientele, build
      revenue, get people in the door, get people coming back next year.

            And because of this, of course, they obtained a competitive
      advantage. Their competitors in the tax preparation field, imagine
      being an honest tax preparer trying to build a clientele. The honest
      tax preparer can’t promise a large refund every year. Sometimes an
      honest tax return preparer has to tell the client the way it is. And


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                                  No. 11-20210

      an honest tax preparer cannot compete with a false and fraudulent
      tax preparer. You can see the advantage that the defendants have.
      Of course, who wouldn’t want a $4,000 refund when in fact maybe
      you owed $300? You see how the Womacks motivated people to use
      their business and pay them their fees.

             Now, the income that Mr. and Mrs. Womack generated was
      just fine. If you do a little simple math that they prepared 3,000
      returns a year and charged approximately $150 per return, that
      comes out to a revenue of over -- about $450,000.
Towards the end of its closing statement, the government returned to this issue:
      The way to make money at this operation is a volume business. You
      get them in, you charge them $150, you run up how many thousands
      of returns you can do in a year. And they’re mostly crammed in
      that tax season. You heard Mrs. Womack say that. Before April
      15th, you’re just churning them out like it’s a factory, 20 to 25 a day
      in a slow day, she says. It gets worse than that. The only way you
      can churn them out like that is if you cookie-cutter, churning out the
      same Schedule A and the same Form 2106 over and over again, just
      tinkering a little bit with the numbers. That’s how you are make
      money.
      These statements are vague. The interpretation pressed by Tonya is that
the government argued that almost all the returns prepared by the Womacks
were fraudulent. If that is so, the government’s statement is not supported by
the evidence presented. It is a reasonable interpretation, especially when
certain sentences are read in isolation. It is not, however, the only reasonable
interpretation.
      Placed in the broader context, the government’s statement may also be
seen as a description of how the Womacks acquired customers. Under this
theory, a few fraudulent returns played a small yet critical role in attracting new
business. Testimony established that under Front Door’s pricing structure, a
customer was charged a fee of $140 regardless the size of the refund secured.
The most efficient way of acquiring new business was by referrals from pleased
customers. These customers were generally unfamiliar with the tax code and,

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                                  No. 11-20210

by preparing similar fraudulent tax returns for some of them, the Womacks
could establish a reputation for obtaining large refunds. The fraud therefore
was limited to the extent necessary to maintain a reputation for finding large
deductions for clients. Under this interpretation of the government’s remarks,
there was no erroneous allegation of systematic fraud. Rather, the allegation
was that some fraudulent returns helped keep business coming through the
door. That argument is not devoid of evidentiary support.
      Our standard of review does not require us to decide which of the
competing interpretations is most reasonable. Because the statement can be
interpreted in two ways, one of which is free of error, Tonya cannot establish
plain error. See Bohuchot, 625 F.3d at 897.


IV.   Sufficiency of the Evidence Against Donald
      Donald argues that the evidence presented by the government was
insufficient for a jury to convict. He preserved this challenge by moving for a
judgment of acquittal at the end of the government’s case-in-chief. See United
States v. DeLeon, 247 F.3d 593, 596 & n.1 (5th Cir. 2001).
      We review de novo a properly preserved challenge to the sufficiency of the
evidence. United States v. McElwee, 646 F.3d 328, 340 (5th Cir. 2011). We
construe “all the evidence, direct and circumstantial, in the light most favorable
to the jury’s verdict, accepting all reasonable inferences and credibility choices
in favor of that verdict.” United States v. Griffin, 324 F.3d 330, 356 (5th Cir.
2003) (quotation marks and citation omitted). We will affirm “if a rational trier
of fact could have found that the government proved all essential elements of a
crime beyond a reasonable doubt.” United States v. Thompson, 647 F.3d 180,
183 (5th Cir. 2011). For the evidence to be sufficient, it “need not exclude every
reasonable hypothesis of innocence or be wholly inconsistent with every



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                                  No. 11-20210

conclusion except that of guilt.” United States v. Anderson, 174 F.3d 515, 522
(5th Cir. 1999) (quotation marks and citation omitted).
      Donald challenges the sufficiency of the evidence for the conspiracy count
as well as for aiding and assisting the preparation of false tax returns. To obtain
a conviction for conspiracy under 18 U.S.C. § 371, the government had to prove
beyond a reasonable doubt that there was (1) an agreement between Donald and
Tonya, (2) to commit a crime, (3) an overt act by one of the conspirators in
furtherance of the agreement, and (4) the specific intent to commit the crime.
See United States v. Garza, 429 F.3d 165, 168-69 (5th Cir. 2005); see also Cheek
v. United States, 498 U.S. 192, 200-01 (1991). Donald contends there was
insufficient evidence to prove an agreement or to prove that the Womacks knew
they were claiming illegal deductions for their customers. We first address the
evidence of an agreement.
      A “jury may infer the existence of an agreement to a conspiracy from
testimony and the other circumstantial evidence.” United States v. Zamora, 661
F.3d 200, 209 (5th Cir. 2011) (marks and citation omitted). This evidence
includes the conduct of the alleged co-conspirators. United States v. Garcia, 917
F.2d 1370, 1376 (5th Cir. 1990). The evidence presented here, viewed in its
proper light, was sufficient to prove the existence of an agreement. The record
establishes that Front Door was a small business operated by a husband and
wife. Donald and Tonya were the only two people who prepared tax returns,
they discussed the details of their business with each other, used the same
electronic filing identification number to file returns, and made similar errors
in the preparation of the relevant tax returns. It was reasonable for the jury to
infer an agreement from this evidence.
      There was also sufficient evidence to prove the requisite intent. “Intent
may, and generally must, be proven circumstantially.”           United States v.
O’Banion, 943 F.2d 1422, 1429 (5th Cir. 1991) (quotation marks and citation

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                                      No. 11-20210

omitted). Usually, “[p]roof of such intent . . . can arise by inference from all of
the facts and circumstances surrounding the transaction.” United States v.
Rivera, 295 F.3d 461, 466-67 (5th Cir. 2002) (quotation marks and citation
omitted). Donald stresses that specific intent is a high degree of mens rea.
While this is true, it still may be proven by circumstantial evidence. United
States v. Nguyen, 493 F.3d 613, 624 (5th Cir. 2007).
       The evidence at trial established that Donald was relatively
knowledgeable about federal tax practices and allowable deductions. There was
also evidence that he used this knowledge to fraudulently claim a mileage
deduction for a client and then offered fictitious logs as supportive evidence.
Furthermore, he lied to his clients by assuring them that he was an accountant.
This evidence, coupled with the type of deductions claimed, was sufficient to
prove his intent.1
       To find Donald guilty of conspiracy, the jury must have found that Tonya
intended to violate the law as well. She testified that she attended a tax-
preparation course in which she was taught how to prepare federal income tax
returns. That course included discussion on the legality of certain deductions.
Despite this class and her on-the-job experience, she frequently inflated the size
of deductions claimed by her clients. Although Tonya testified that these were
all honest mistakes, the jury did not need to believe her. See United States v.
Bernegger, 661 F.3d 232, 240-41 (5th Cir. 2011). There was enough evidence
from which the jury could infer specific intent.
       Donald also challenges the sufficiency of the evidence presented for the
thirteen substantive counts of aiding and assisting in the preparation of a false


       1
         Donald also asks that we hold, as a general matter, that IRS Form 8453 creates a
presumption that the information provided to the tax preparer is correct and that this
presumption should preclude the jury from finding that Donald intended to commit fraud.
Assuming without deciding that the presumption exists, the evidence presented was sufficient
to overcome the presumption.

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                                   No. 11-20210

return. See 26 U.S.C. § 7206(2). To establish a violation, the government
needed to prove that Donald “willfully aided, assisted, counseled, or advised
another in the preparation or presentation under the internal revenue laws of
a document that is fraudulent or false as to any material matter.” United States
v. Mudekunye, 646 F.3d 281, 285 (5th Cir. 2011) (quotation marks and citation
omitted). Donald argues that there was insufficient evidence linking him to the
relevant returns because witnesses did not see him inputting each detail. His
argument misstates what the government must prove.
        “[A] person need not actually sign or prepare a false tax return to either
conspire to or actually aid and abet the filing of a false income tax return.”
United States v. Clark, 577 F.3d 273, 285 (5th Cir. 2009) (quotation marks and
citation omitted). Rather, the statute reaches a person who willfully “advises the
preparation or presentation” of a return. 26 U.S.C. § 7206(2). The evidence
presented clearly demonstrates, either directly or by reasonable inference, that
Donald took part in the preparation of the returns for which he was convicted.
The evidence was sufficient.


V.      Donald’s Request for a Continuance
        Finally, Donald argues that the district court erred by refusing to grant
him a fifth continuance on the eve of trial to give him time to retain a different
attorney. We review the district court’s decision for abuse of discretion. United
States v. Lewis, 476 F.3d 369, 387 (5th Cir. 2007). The district court has wide
discretion when considering these motions so long as the defendant had a
reasonable opportunity to secure counsel of his choice. Newton v. Dretke, 371
F.3d 250, 255 (5th Cir. 2004). There is little doubt that Donald had enough time
here. The grand jury indicted Donald in December 2008. By January 2009,
Donald had secured counsel. Throughout the next year, he was granted four
continuances. Eventually, a trial date was set: Monday, March 1, 2010. The

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                                No. 11-20210

Friday afternoon before, Donald made his last request for continuance. Noting
that his request for a fifth continuance came at the eleventh hour and that it
risked prejudicing the government, the district court denied his motion. This
was not an abuse of discretion. See United States v. Hughey, 147 F.3d 423, 432
(5th Cir. 1998).
      AFFIRMED.




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                                        No. 11-20210

JENNIFER WALKER ELROD, Circuit Judge, concurring in part and concurring
in the judgment:
       A jury convicted Donald and Tonya Womack and I agree that we must
affirm its verdict. I also agree with much of the reasoning of the majority
opinion and join that opinion except for Part III. I write separately because I
would hold that the government’s closing argument went well beyond the
evidence admitted at trial and thus was plainly improper. We must affirm
because the trial record contains ample evidence of guilt. Still, the government’s
improper remarks are troubling, especially in light of our many recent reminders
to prosecutors to stick to the evidence during closing arguments.1
       It is well-settled that “[a] prosecutor is confined in closing argument to
discussing properly admitted evidence and any reasonable inferences or
conclusions that can be drawn from that evidence.” United States v. Vargas, 580
F.3d 274, 277–78 (5th Cir. 2009). Here, the government transgressed this
limitation in two important ways.


       1
         This circuit has confronted too many improper closing arguments in recent years. See,
e.g., United States v. Jefferson, 432 F. App’x 382, 389–93 (5th Cir. 2011) (unpublished) (clearly
improper prosecutorial remarks did not affect substantial rights given other evidence of guilt);
United States v. Aguilar, 645 F.3d 319, 322–27 (5th Cir. 2011) (reversing on plain error review
due to improper remarks); United States v. Raney, 633 F.3d 385, 395–96 (5th Cir. 2011) (per
curiam) (reversing on other grounds but noting that “[d]espite our precedent clearly
condemning such remarks, the government continues to disregard our admonishments”);
United States v. Pittman, 401 F. App’x 895, 898–901 (5th Cir. 2010) (unpublished) (clearly
improper remarks did not affect substantial rights); United States v. Gracia, 522 F.3d 597 (5th
Cir. 2008) (reversing on plain error review due to improper remarks).
        Although the government quibbled at oral argument as to whether its closing remarks
were improper, it unquestionably should have known that it was inappropriate to refer to
items that were not in evidence and that it told the court it would not use. It has long been
recognized as “verboten” for a prosecutor to “directly refer to or even allude to evidence that
was not adduced at trial.” United States v. Murrah, 888 F.2d 24, 26 (5th Cir. 1989) (citing
United States v. Morris, 568 F.2d 396 (5th Cir. 1978)). As the Supreme Court put it more than
75 years ago: “[W]hile [the United States Attorney] may strike hard blows, he is not at liberty
to strike foul ones. It is as much his duty to refrain from improper methods calculated to
produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”
Berger v. United States, 295 U.S. 78, 88 (1935).

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                                        No. 11-20210

       First, the government improperly used the fake mileage logs evidence
against Mrs. Womack during its closing argument—not just once, but twice.2
These remarks were improper because, as the majority opinion correctly
concludes, the false mileage logs were evidence only of Mr. Womack’s intent, not
Mrs. Womack’s.
       Second, the government repeatedly insinuated in its closing that the
Womacks were engaged in a large-scale fraud far beyond the 25 fraudulent tax
returns introduced at trial—despite assuring the district court that it would not
and that it lacked the evidence to do so. The Womacks filed a pre-trial motion
requesting funds for an expert to testify that the vast majority of returns they
prepared were honest and accurate. After a lengthy hearing, the district court
denied the motion.          But the district court conditioned its denial on the
government’s representation—as “an officer of the court”—that it would not
argue that the thousands of returns outside of its investigation were illegal.
Indeed, the government told the district court that it did not even have the
evidence to support such an argument. At trial, the government put on evidence
of 25 false returns. In its closing, however, it repeatedly suggested that those 25
returns were just a sampling of thousands more false returns, as the following
closing argument excerpts reveal:3
       •        “The way to make money at this operation is a volume
                business. You get them in, you charge them $150, you run up
                how many thousands of returns you can do in a year. . . . It
                gets worse than that. The only way you can churn them out
                like that is if you cookie-cutter, churning out the same

       2
         One of the Womacks’ former customers, Robert Walenta, testified at trial that the IRS
informed him in 2007 that he owed thousands of dollars related to tax returns prepared by
Front Door. Mr. Walenta contacted Mr. Womack, who gave him two amended tax returns with
falsified mileage logs attached to submit to the IRS. This “other acts” evidence was admissible
under Rule 404(b)(2) as evidence of Mr. Womack’s intent, but it was not admissible against
Mrs. Womack.
       3
           The majority opinion only quotes some of these excerpts.

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                                 No. 11-20210

            Schedule A and the same Form 2106 over and over again, just
            tinkering a little bit with the numbers. That’s how you are
            [sic] make money. It’s not the bald way. It’s the sneaky way,
            the dishonest way. ” (Emphasis added).

      •     “Together, [the Womacks] operated this business, and
            together they benefitted from their fraud. That’s how they
            built their business, and they took home the income from their
            business at the end of the day.” (Emphasis added).

      •     “The benefit to the Womacks were happy customers, repeat
            business . . . . [T]his was a way for the Womacks to build the
            clientele, build revenue, get people in the door, get people
            coming back next year. And because of this, of course, they
            obtained a competitive advantage. Their competitors in the
            tax preparation field, imagine being an honest tax preparer
            trying to build a clientele. The honest tax preparer can’t
            promise a large refund every year.” (Emphasis added).

      •     “If you do a little simple math that they prepared 3,000
            returns a year and charged approximately $150 per return,
            that comes out to a revenue of over -- about $450,000. For a
            small business, that’s a lot of money. And we know that some
            of that money went into the swimming pool in the backyard
            of the Womacks’ home.”

      •     “As husband and wife they ran this business, as husband and
            wife they were there in the business day in and day out. As
            husband and wife they reap the reward. As husband and wife
            they spent the money and lived the life.”

These statements are not vague, as the majority opinion would have it. They
plainly suggest, again and again, that fraud permeated the Womacks’ tax
preparation business, although the government had assured the court and
defense counsel that it would not do this. These remarks were clearly improper.
      But our appellate review does not end here. “[W]hether the prosecutor’s
remark was legally improper” is only the first step in reviewing an improper
closing argument claim. United States v. Mendoza, 522 F.3d 482, 491 (5th Cir.


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                                       No. 11-20210

2008).     Second, we ask “whether the remark ‘prejudiced the defendant’s
substantive rights.’”4 Id. (quoting United States v. Morganfield, 501 F.3d 453,
467 (5th Cir. 2007)). In making this prejudice determination, we consider “(1)
the magnitude of the statement’s prejudice, (2) the effect of any cautionary
instructions given, and (3) the strength of the evidence of the defendant’s guilt.”
Raney, 633 F.3d at 394 (internal quotation marks omitted).
       Applying this three-factor prejudice standard, reversal is unwarranted.
As for the false mileage logs testimony, the magnitude of prejudicial effect was
high because the evidence was perhaps the most damning mens rea evidence
presented at trial. But the district court issued a cautionary instruction and,
more importantly, the trial record contains ample evidence of Mrs. Womack’s
guilt. The jury heard the testimony of numerous Front Door customers that the
Womacks repeatedly claimed the same itemized deductions for their customers,
regardless of the customer’s individual financial situation. The jury also heard
the testimony of Special Agent Rosalez, that when he visited Front Door
undercover, posing as a customer, a receptionist asked him if he would like a
refund of $3,200, $3,500, or $4,200, and explained that the larger the refund he
selected, the longer he would have to wait. He selected $4,200, paid an up-front
fee of $148, and left. He later received from Front Door a tax return that yielded
a $4,200 refund. It is rather incredible that Tonya could have been unaware of
this practice while working in Front Door’s small office. Having weighed the
pertinent prejudice factors, I cannot conclude that the government’s improper
comments about the mileage logs “cast[] doubt on the correctness of the jury
verdict.” Vargas, 580 F.3d at 278.
       Nor was there prejudice on the basis of the government’s remarks about
the Womacks being engaged in a large-scale fraud. The first two prejudice

       4
        When, as here, our review is for plain error, this second step “overlaps with the third
prong of plain error review.” Vargas, 580 F.3d at 278.

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                                 No. 11-20210

factors weigh in favor of reversal because the prejudicial effect was high and no
cautionary instructions were issued. But the evidence of guilt was strong
enough that the prosecution’s improper remarks do not undermine confidence
in the verdict.
      For the foregoing reasons, I respectfully concur in part and concur in the
judgment.




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