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                                                                      [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 12-11821
                               ________________________

                      D. C. Docket No. 4:11-cr-00012-RH-CAS-1

UNITED STATES OF AMERICA,

                                                                        Plaintiff – Appellee,

                                            versus

LENNIE FULWOOD,

                                                                     Defendant – Appellant.

                              ________________________

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

                                       (June 16, 2014)

Before PRYOR, Circuit Judge, and WOOD * and EDENFIELD, ** District Judges.

PER CURIAM:
       *
          Honorable Lisa Godbey Wood, Chief United States District Judge for the Southern
District of Georgia, sitting by designation.
       **
         Honorable B. Avant Edenfield, United States District Judge for the Southern District of
Georgia, sitting by designation.
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      Lennie Fulwood appeals his conviction on four counts of tax evasion and his

57-month prison sentence. He raises myriad arguments about the fairness of his

trial and the sentencing guidelines calculation. After review, and with the benefit

of oral argument, we affirm.

                                I. BACKGROUND

      The United States charged Fulwood with four counts of tax evasion for the

years of 2006 through 2009 as well as with twenty counts of structuring currency

transactions to evade reporting requirements. Assistant Federal Defender William

Clark provided representation from early in the case through trial.

      Just prior to the original trial date, witness David Edwards contacted Clark

with information that could constitute a new defense for Fulwood. Edwards, a

lottery winner and old acquaintance of Fulwood, told Clark that he had gifted

Fulwood one million dollars from his lottery winnings. Clark reacted with hostility

because Edwards’s story contradicted Fulwood’s account to the attorney. Fulwood

then travelled from Florida to Kentucky—in violation of the terms of his pretrial

release—to film a statement by Edwards regarding the large gift. At the time of

the videotaped statement, Edwards was confined to a nursing home with two

amputated legs and multiple other ailments.




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      Fulwood returned to Florida and provided Clark with a DVD of Edwards’s

statement, upon receipt of which, Clark filed for a continuance of the trial and

provided a copy of the DVD to the prosecutor. The Government then investigated

and contacted Edwards, at which point he recanted his statement and testified

under oath at deposition that he lied about the gift to appease Fulwood and halt his

persistent requests for Edwards to lie.

      After a total of three continuances, trial occurred in August 2011. Fulwood

made an unsuccessful motion to replace Clark with other appointed counsel

immediately before opening arguments. During trial testimony, a police officer

referenced “bootleg, counterfeit DVDs,” and another witness referenced “illegal

clubs.” Witnesses also provided testimony about Fulwood’s finances and the

prosecution presented Edwards’s videotaped deposition. The jury convicted

Fulwood on all tax evasion charges but deadlocked or acquitted on all currency

transaction charges.

      The trial court sentenced Fulwood to 57 months of incarceration based upon

a total offense level of 22 and a Criminal History Category II. The base offense

level was 18 and the court added two points for obstruction of justice and two

points for magnitude of the loss. The court also ordered Fulwood to pay

$285,044.00 in restitution and serve a three-year term of supervised release. The

court calculated tax loss based on a 28% rate.


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                                 II. DISCUSSION

      Fulwood raises nine enumerations of error for appeal. After careful

consideration of the record, the Court summarily holds that the arguments of

witness tampering, deprivation of choice of counsel, discovery violations,

cumulative error, and improper denial of post-trial motions lack merit. The Court

takes up the remaining arguments.

                            A. Attorney-Client Privilege

      Fulwood argues that Clark breached the attorney-client privilege by

revealing Edwards’s DVD recording to prosecutors upon receipt. He further

argues that Federal Rule of Criminal Procedure 16 excludes the videotaped

statement from reciprocal discovery obligations. The Court reviews Sixth

Amendment right to assistance of counsel claims de novo. United States v. Terry,

60 F.3d 1541, 1543 (11th Cir. 1995). The Defendant bears the burden to establish

that a communication was privileged. Bogle v. McClure, 332 F.3d 1347, 1358

(11th Cir. 2003).

      “The attorney-client privilege exists to protect confidential communications

between client and lawyer made for the purpose of securing legal advice . . . .” In

re Grand Jury Proceedings 88-9 (MIA), 899 F.2d 1039, 1042 (11th Cir. 1990). In

order to establish a valid privilege, Fulwood must establish:

      (1) the asserted holder of the privilege is or sought to become a client;
      (2) the person to whom the communication was made (a) is (the)
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      member of a bar of a court, or his subordinate and (b) in connection
      with this communication is acting as a lawyer; (3) the communication
      relates to a fact of which the attorney was informed (a) by his client
      (b) without the presence of strangers (c) for the purpose of securing
      primarily either (i) an opinion on law or (ii) legal services or (iii)
      assistance in some legal proceeding, and not (d) for the purpose of
      committing a crime or tort; and (4) the privilege has been (a) claimed
      and (b) not waived by the client.
In re Grand Jury Proceedings, 517 F.2d 666, 670 (5th Cir. 1975).

      Clark did not disclose a communication by Fulwood, but rather disclosed the

video of Edwards. Fulwood cannot claim attorney-client privilege on this ground

alone. Furthermore, “[c]ourts have refused to apply the privilege to information

that the client intends his attorney to impart to others.” United States v. Pipkins,

528 F.2d 559, 563 (5th Cir. 1976). Fulwood obviously took this “shotgun

deposition” with the intent of presenting it for his benefit at trial. As the

Government rightfully remarks, Fulwood “never intended for the Edwards video to

remain confidential; he only wanted to hide it long enough to sandbag the

prosecution.” Brief for Appellee at 27.

      Fulwood’s reliance on the discovery segment of the Federal Rules of

Criminal Procedure is off target. Clark properly provided the video pursuant to

Federal Rule of Criminal Procedure 16(b)(1)(A) & (c), which requires prompt

disclosure of “data” and “photographs.” The DVD is nothing more than a

compilation of sound data and moving photographs. The reciprocal discovery rule,

16(b)(2)(A), does not authorize inspection of “reports, memoranda, or other

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documents made by the defendant.” But here, Edwards made the statement;

Fulwood merely produced (and apparently directed) the film. Clark did not violate

the attorney-client privilege by disclosing the video of Edwards.

                        B. Ineffective Assistance of Counsel

      Fulwood argues that Clark’s representation constitutes ineffective assistance

of counsel. “Except in the rare instance when the record is sufficiently developed,

we will not address claims for ineffective assistance of counsel on direct appeal.”

United States v. Verbitskaya, 406 F.3d 1324, 1337 (11th Cir. 2005). Fulwood

argues that the Court benefits from the written record of a Florida Bar Complaint,

but Fulwood has only presented two letters written by Clark in his own defense.

Doc. No. 118. This is far from a record sufficiently developed to analyze

Fulwood’s claim pursuant to Strickland v. Washington, 466 U.S. 668 (1984), and

its progeny. The Court therefore declines to adjudicate the issue of Clark’s

effectiveness on direct appeal.

                      C. Testimony About Counterfeit Goods

      Fulwood argues that presentation of testimony regarding counterfeit goods

and an illegal nightclub amount to reversible error and prosecutorial misconduct:

because none of the charges against Fulwood involved the nature of his business,

such questioning amounts to a “clear violation of basic trial procedure.” United

States v. Greene, 578 F.2d 648, 654 (5th Cir. 1978). The Court reviews preserved


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claims about admission of evidence for abuse of discretion. United States v.

Jiminez, 224 F.3d 1243, 1249 (11th Cir. 2000).

       A prosecutor may not violate the basic rules of trial practice by offering

unprofessional commentary entirely unrelated to the case. Greene, 578 F.2d at

654. But the prosecutor may present testimony that is “linked in time and

circumstances with the charged crime.” United States v. McLean, 138 F.3d 1398,

1403 (11th Cir. 1998).

       The term “counterfeit” 1 came up at trial during the testimony of a

Tallahassee police officer. The prosecutor asked about how he came to know

Fulwood’s business.

       Q.    And did you perform an undercover operation [in Fulwood’s
       music store]?
       A.    Yes, ma’am.
       Q.    What exactly did you do?
       A.    I went into the store with an attempt to buy bootleg, counterfeit
       DVDs.
       Q.    Okay, what happened when you went there?
       A.    I went to the counter. I asked for – it was Russell Jenkins,
       another movie which I knew was still in theaters.

Doc. No. 95 at 185. This specific testimony came to light as the witness explained

his job. Likewise, Fulwood’s commercial landlord mentioned “illegal clubs” on

cross-examination in discussing the layout of the space. Doc. 96 at 323. This

testimony is part of the complete story of the alleged financial offense.

   1
      Clark objected to the use of the term “counterfeiter.” Doc. No. 95 at 184. No witness used
this term.
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      Furthermore, the nature of Fulwood’s business goes to his motive in evading

taxation of the income, and evidence of motive is admissible. United States v.

Utter, 97 F.3d 509, 515 (11th Cir. 1996); see also Fed. R. Evid. 404(b)(2)

(providing that evidence of crimes, wrongs, or other acts “may be admissible for

another purpose, such as proving motive”). Fulwood may have wished to evade

taxes on his income to prevent alerting the Government to the nature of his

enterprise. The high profit margin nature of Fulwood’s business also explains how

he amassed $1.1 million in unreported income by selling CDs from a flea market

store that shared space with a barber shop and an internet café. “A tax deficiency

may be proved by circumstantial evidence . . . .” United States v. Carter, 721 F.2d

1514, 1538 (11th Cir. 1984), vacated in part by United States v. Lightsey, 886 F.2d

304 (11th Cir. 1989). Under all measures, the district court did not abuse its

discretion by admitting this testimony.

                        D. Sentencing Guidelines Calculation

      Fulwood argues that the district court erred by imposing an enhancement for

obstruction of justice under U.S.S.G. § 3C1.1 based on its finding that he willfully

gave false trial testimony, and that the district court erred in determining the

appropriate tax-loss calculation under § 2T1.1. With respect to sentencing, the

Court reviews the district court’s finding of facts for clear error and the




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interpretation and application of the guidelines de novo. United States v. Massey,

443 F.3d 814, 818 (11th Cir. 2006).

      Fulwood contends that a finding of willful obstruction of justice is not

supported by a neutral view of the evidence. In relevant part, § 3C1.1 provides for

a two-level increase to the offense level when the defendant “willfully obstructed

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

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

conviction.” At trial, Edwards’s sworn deposition chronicled Fulwood’s persistent

requests that Edwards lie on his behalf. Fulwood repeatedly called Edwards, sent

him an untraceable phone, and travelled from Florida to Kentucky—in violation of

the terms of his pretrial release—to film a false statement by Edwards. Edwards

recanted his statement to prevent any harm to himself, revealing that he initially

agreed to make the video in part because he did not believe that an unsworn

statement could be used at trial. Given Fulwood’s behavior and Edwards’s sworn

statement, we are far from being “left with a definite and firm conviction that a

mistake has been committed,” United States v. Crawford, 407 F.3d 1174, 1177

(11th Cir. 2005), and therefore conclude that the district court did not commit clear

error in assessing an enhancement for obstruction of justice.

      Fulwood contends that the district court erred by calculating the tax loss at a

rate of 28% pursuant to § 2T1.1(c)(1)(A), and that the court should have used the


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20% tax rate of § 2T1.1(c)(2)(A) because he failed to file a return. § 2T1.1(c)(1)

states: “If the offense involved tax evasion . . . the tax loss shall be treated as equal

to 28% of the unreported gross income . . . .” § 2T1.1(c)(2) states: “If the offense

involved failure to file a tax return . . . the tax loss shall be treated as equal to 20%

. . . .”

           Fulwood indeed failed to file a tax return. But the crime of failure to file a

tax return, 26 U.S.C. § 7203, differs from the provision for tax evasion, 26 U.S.C.

§ 7201, and Fulwood was charged with and convicted of tax evasion. When

reading § 2T1.1(c) as a whole, the district court selected the correct tax loss

calculation using the rate of 28%.

                                     III. CONCLUSION

           Based on the foregoing discussion, we affirm Fulwood’s convictions and

sentence. The Court declines to rule on the issue of ineffective assistance of

counsel on this direct appeal.

           AFFIRMED.




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