                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-5153


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

MARCEL J. TOTO-NGOSSO,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:08-
cr-00179-RWT-1)


Submitted:   December 22, 2010            Decided:   January 14, 2011


Before WILKINSON and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Robert C. Bonsib, Megan E. Green, MARCUSBONSIB, LLC, Greenbelt,
Maryland, for Appellant.     Rod J. Rosenstein, United States
Attorney, John A. DiCicco, Acting Assistant Attorney General,
Alan Hechtkopf, Gregory Victor Davis, Alexander P. Robbins,
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Marcel     J.      Toto-Ngosso       (“Toto”)       appeals       his     jury

conviction on seventeen counts of willfully aiding and assisting

in the preparation and presentation of false income tax returns,

in violation of 26 U.S.C. § 7206(2) (2006), and seventy-month

prison sentence.       On appeal, Toto argues that the district court

abused its discretion in admitting evidence, under Fed. R. Evid.

404(b), in the form of testimony from two witnesses concerning

his   preparation      of    income    tax      returns      not     charged     in   the

indictment     and   erred      in    the    calculation        of    his    Guidelines

sentence, see U.S. Sentencing Guidelines Manual (“USSG”) (2008).

We affirm.

            Rule 404(b) states that “[e]vidence of other crimes,

wrongs, or acts is not admissible to prove the character of a

person    in   order    to     show    action     in    conformity          therewith.”

Fed. R.    Evid.     404(b).          Such      evidence       “may,    however,       be

admissible     for     other     purposes,       such     as    proof       of   motive,

opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.”                 Id.    To be admissible under

Rule 404(b), evidence must be “(1) relevant to an issue other

than character; (2) necessary; and (3) reliable.”                       United States

v. Siegel, 536 F.3d 306, 317 (4th Cir. 2008) (internal quotation

marks    omitted).      “Evidence      sought     to    be     admitted     under     Rule

404(b) must also satisfy [Fed. R. Evid.] 403[.]”                            Id. at 319.

                                            2
Under Rule 403, “damage to a defendant's case is not a basis for

excluding probative evidence” because “[e]vidence that is highly

probative     invariably         will    be       prejudicial        to    the    defense.”

United States v. Grimmond, 137 F.3d 823, 833 (4th Cir. 1998).

             At trial, the Government presented testimony to show

that Toto was a tax preparer who prepared federal income tax

returns for clients at his Maryland residences.                             Six of Toto’s

clients whose tax returns were the subjects of the indictment

testified,    and     their      testimony        showed    that     the     returns    Toto

prepared for them contained numerous falsities, including false

dependents     and       other    qualifying         persons    and       exaggerated      or

wholly fabricated deductions and expenses.                           Additionally, over

Toto’s objection, the district court admitted testimony from two

additional    clients       of    Toto’s      that    the   income        tax    returns    he

prepared for them also contained false dependents, deductions,

and expenses.

             Toto    claims      that,     because      the    Government         presented

testimony pertaining to each of the seventeen tax returns that

were   charged      in    the    indictment,         admission       of    the    testimony

concerning     returns           not    charged        in      the        indictment       was

unnecessary.        For purposes of Rule 404(b), evidence is necessary

where, “considered in the light of other evidence available to

the government, it is an essential part of the crimes on trial,

or where it furnishes part of the context of the crime.”                             United

                                              3
States v. Queen, 132 F.3d 991, 998 (4th Cir. 1997) (internal

quotation marks and citation omitted).                  The statute under which

Toto was convicted proscribes a person from willfully assisting

in the preparation or presentation of false tax returns.                          See 26

U.S.C.   § 7206(2).        A   tax       violation    is     willful    if   it    is    “a

voluntary, intentional violation of a known legal duty,” and the

Government    can   establish        a    willful    violation     without        proving

“any motive other than an intentional violation of” that duty.

United States v. Pomponio, 429 U.S. 10, 12 (1976) (per curiam).

Evidence     that   Toto   had       prepared       several    additional         returns

containing false deductions and adjustments was highly probative

on the issue of whether his preparation of the false returns

charged in the indictment was done knowingly or without mistake

and   thus   significantly       aided      the     Government     in    meeting        its

burden to show that Toto acted willfully.

             Toto suggests that the evidence of his involvement in

preparing the other returns was not critical to the Government’s

case.    However, the fact that the evidence was not critical to

the   Government’s     case      “does      not     render    it   unnecessary          for

purposes of Rule 404(b).”            United States v. Rooks, 596 F.3d 204,

211 (4th Cir.), cert. denied, 131 S. Ct. 148 (2010).                         This is so

because the “necessary” prong “focuses on whether the evidence

is necessary in the sense that it is probative of an essential

claim or an element of the offense.”                   Id. at 211-12 (internal

                                            4
quotation marks omitted).               Whether Toto willfully aided in the

preparation and presentation of the seventeen returns was an

issue   at       trial,   and   evidence     of    Toto’s      preparation     of    other

false      returns    provided        context     for    the    preparation     of     the

seventeen returns charged in the indictment.                          Accordingly, the

evidence was “necessary.”

              Toto    further      suggests       that    the     admission     of     the

testimony        concerning     his    preparation       of    the    tax   returns    not

charged in the indictment did not satisfy Rule 403.                            Although

this testimony was damaging to Toto, we conclude it was not

unfairly prejudicial, as Toto has not shown there existed “a

genuine risk that the emotions of [the] jury [were] excited to

irrational behavior, and that this risk [wa]s disproportionate

to   the    probative      value      of”   the   testimony,         United   States   v.

Aramony, 88 F.3d 1369, 1378 (4th Cir. 1996) (internal quotation

marks omitted).           Moreover, the district court reduced the risk

of unfair prejudice by giving limiting instructions to the jury,

explaining that the jury could consider the evidence only in

determining Toto’s knowledge and intent.                      See Queen, 132 F.3d at

997.    Accordingly, we conclude that the district court did not

abuse      its    discretion     in     admitting       the    challenged     evidence.

See United States v. Benkahla, 530 F.3d 300, 309 (4th Cir. 2008)

(stating standard of review).



                                             5
             Toto     also     challenges            his     seventy-month          prison

sentence,      asserting     that    the       district      court     erred      in   the

calculation of his Guidelines sentence by erroneously overruling

his   objections      and:   (1)    calculating        the   tax     loss    amount    and

resulting base offense level under USSG § 2T1.1; (2) applying

the two-level enhancement under USSG § 2T1.4(b)(2) for his use

of    sophisticated       means;     and       (3)    applying       the    three-level

enhancement under USSG § 3B1.1(b) for his role in the offense.

We    review     Toto’s      sentence       for       reasonableness          “under      a

deferential      abuse-of-discretion”            standard.           Gall    v.     United

States, 552 U.S. 38, 41, 51 (2007).                   In conducting this review,

we    must   ensure   that    the    district        court    correctly      calculated

Toto’s Guidelines sentence.           Id. at 49, 51.

             Under the Guidelines, the tax loss attributable to a

defendant involved in aiding in the preparation and presentation

of false tax returns is “the tax loss, as defined in [USSG]

§ 2T1.1,      resulting      from    the       defendant’s         aid,     assistance,

procurance      or     advice.”            USSG       § 2T1.4(a).           Under      USSG

§ 2T1.1(c)(1), 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).”                                This

amount includes “all conduct violating the tax laws . . . unless

the evidence demonstrates that the conduct is clearly unrelated”

to the offense.       Id., cmt. n.2.

                                           6
            In calculating the tax loss amount, “a district court

may    consider      relevant     information        without     regard       to    its

admissibility under the rules of evidence applicable at trial,

provided     that     the     information      has     sufficient      indicia       of

reliability to support its probable accuracy.”                   United States v.

Mehta, 594 F.3d 277, 282 (4th Cir.), cert. denied, 131 S. Ct.

279 (2010) (internal quotation marks omitted).                        Additionally,

because the amount of tax loss “is not always a precise figure,”

the     Guidelines        “contemplate       that      the     [district]          court

will . . . make       a   reasonable     estimate     based    on    the   available

facts.”     Id. (internal quotation marks omitted).                  We review the

district court’s determination of the tax loss amount for clear

error.     See United States v. Allen, 491 F.3d 178, 193 (4th Cir.

2007).

            The     testimony     at     trial       established      that     Toto’s

practice    of      listing     false    deductions,         qualifying       persons,

dependents, and adjustments (collectively, “deductions”) on the

returns of his clients resulted in a tax loss to the Government

of    $117,711.       According    to    the     presentence        report,    Toto’s

practice of listing these false deductions on the returns of

several of his clients who did not testify at trial resulted in

an additional loss to the Government of $98,785.                    At sentencing,

an Internal Revenue Service (“IRS”) agent testified that, in

calculating this additional loss amount, she reviewed memoranda

                                         7
of   interviews     with    a    number      of    Toto’s       clients      who    did   not

testify at trial.           The agent adjusted the returns filed for

these clients, eliminating the false deductions that Toto had

included    on    their    returns.       Based         on    these    adjustments,       the

agent recalculated each client’s amount of tax due and owing and

thereby determined the additional tax loss amount resulting from

Toto’s   conduct.         The    district        court       adopted   the    presentence

report, credited the agent’s testimony, and found that the tax

loss amount attributable to Toto “exceeded $200,000,” resulting

in   a   base     offense       level   of       18,     see    USSG    §§ 2T1.4(a)(1),

2T4.1(G).

            Toto claims that, because the clients whose interviews

were the subjects of the memoranda were not cross-examined, the

evidence    the    Government      proffered           at    sentencing      to    establish

that the tax loss amount exceeded $200,000 was unreliable.                                 We

disagree.        The false deductions listed on the returns of the

clients who did not testify at trial fit the pattern of the

fraudulent conduct established at trial, and the $98,785 loss

amount was based on statements made by the clients themselves

establishing the falsity of the deductions Toto had claimed on

their returns.       We conclude this was an acceptable method for

the district court to use in making a reasonable estimate of the

loss amount under the Guidelines.                 See Mehta, 594 F.3d at 282-83

(approving calculation of tax loss amount from IRS assessments

                                             8
that taxpayer-clients of the defendant elected not to contest,

even   though     they    never     “substantively             agree[d]”     with      those

assessments       and    where      the        fraudulent       deductions        on    the

taxpayers’ returns fit the pattern of fraud shown at trial).                             We

therefore conclude that the district court did not commit clear

error in calculating the tax loss amount.

            We    turn    next     to    Toto’s        challenge      to   the   district

court’s    application       of    the    two-level       enhancement        under      USSG

§ 2T1.4(b)(2) for his use of sophisticated means.                           “The average

criminal         tax      fraud . . . involves                  some        concealment;

‘sophisticated’ tax fraud [meriting application of the two-level

enhancement      under      USSG    § 2T1.4(b)(2)]. . . require[s]                  more.”

United States v. Kontny, 238 F.3d 815, 820-21 (7th Cir. 2001).

“Sophistication,” however, does not refer to “the style of the

[defendant]—the degree to which he approximates Cary Grant—but

to the presence of efforts at concealment that go beyond (not

necessarily far beyond . . . ) the concealment inherent in tax

fraud.”    Id. at 821 (internal quotation marks omitted).

            “Conduct      such     as    hiding       assets    or    transactions,       or

both, through the use of fictitious entities, corporate shells,

or     offshore         financial         accounts            ordinarily         indicates

sophisticated means.”             USSG § 2T1.4, cmt. n.3.                  But these are

offered    as    examples    only;       the       “essence    of    the   definition    is

merely deliberate steps taken to make the offense difficult to

                                               9
detect.”     Kontny, 238 F.3d at 821 (internal quotation marks and

ellipsis omitted).          We review the district court’s determination

that Toto used sophisticated means for clear error.                              See id.

            The    district       court       adopted       the    presentence         report’s

recommendation to apply the enhancement under USSG § 2T1.4(b)(2)

based on     Toto’s:       (1)    use    of    an    IRS-issued         electronic       filing

number     registered       to    another          entity    to        file     his    clients’

returns; (2) use of bank accounts held in the names of others to

deposit his return preparation fees; and (3) failure to report

to the IRS the income he made as a tax preparer.                                      In Toto’s

view, the district court’s application of the enhancement was

error because his placement of false deductions on returns that

were     filed    under     the    electronic          filing          number     of    another

required “no particular knowledge or sophistication.”

            We     disagree,       because         Toto’s    conduct          shows    he   took

deliberate steps to conceal from the IRS his connection to the

fraudulent       returns    he    filed       on    behalf        of    his    clients.      By

utilizing    the    electronic          filing      number    registered          to    another

entity, Toto could omit his name and signature from the returns

and associated forms, thus perpetuating the fiction that he was

not the preparer of those returns.                     Additionally, Toto utilized

bank accounts held in the names of others to mask the income he

generated by preparing the false returns.                              These efforts, when

combined with Toto’s failure to file personal income tax returns

                                              10
disclosing the income he generated as a tax preparer, undeniably

made IRS detection of his connection to the false returns more

difficult.       Accordingly, the district court’s application of the

two-level enhancement for Toto’s use of sophisticated means was

not clearly erroneous.

            Finally, Toto claims that the district court erred in

applying the three-level enhancement under USSG § 3B1.1(b) for

his role in the offense.              However, because Toto fails to support

his claim in accordance with Fed. R. App. P. 28(a)(9)(A) (“[T]he

[appellant’s]          argument . . . must                contain . . . appellant's

contentions      and   the   reasons      for      them,    with    citations       to   the

authorities      and     parts   of    the    record       on    which    the     appellant

relies.”), we deem it abandoned.                    See Wahi v. Charleston Area

Med.    Ctr.,    Inc.,    562    F.3d    599,      607     (4th    Cir.    2009),     cert.

denied, 130 S. Ct. 1140 (2010); Edwards v. City of Goldsboro,

178 F.3d 231, 241 n.6 (4th Cir. 1999).

            We    therefore       affirm      the     district          court’s     amended

judgment.       We dispense with oral argument because the facts and

legal    contentions       are   adequately         presented      in     the     materials

before   the     court    and    argument         would    not    aid    the    decisional

process.

                                                                                   AFFIRMED




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