                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 06-4956


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

UCHE KAMALU,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.      Alexander Williams, Jr., District
Judge. (8:05-cr-00210-AW)


Argued:   September 26, 2008                 Decided:   October 29, 2008


Before KING, SHEDD, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: John O. Iweanoge, II, Washington, D.C., for Appellant.
Michael R. Pauzé, OFFICE OF THE UNITED STATES ATTORNEY,
Greenbelt, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein,
United States Attorney, Baltimore, Maryland, Stuart A. Berman,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Uche       Kamalu       appeals          his       convictions        on       one    count        of

violating         26      U.S.C.           §      7212(a)          (corruptly              obstructing

administration of the Internal Revenue Code), and ten counts of

violating    26        U.S.C.    §    7206(2)             (willful      preparation             of    false

income tax returns).             Because the first count of the indictment

was   not    duplicitous             or     prejudicial            to     the    defendant,             the

evidence was sufficient to support his convictions on the tenth

and eleventh counts of the indictment, he was not entitled to a

new trial, and his challenge to the sentence of imprisonment is

moot, we affirm the judgment of the district court.



                                                     I.

      Kamalu,      a     certified          public         accountant,          prepared         federal

income     tax     returns       for       his        clients.            In     an    eleven-count

indictment,        Kamalu       was       accused          of     causing       “numerous            client

taxpayers     to       falsely        report         itemized        deductions            to    include

deductions       for     mileage          expenses,”            thereby     understating             their

actual   income         tax    liability.                 Count    One    of     the       indictment,

charging a violation of 26 U.S.C. § 7212(a), alleged that Kamalu

“filed hundreds of false federal income tax returns . . . on

behalf of numerous client taxpayers he represented for the tax

years 1999 through 2002,” and thereby “corruptly endeavored to

obstruct     and       impede    the        due      administration             of    the       internal

                                                     2
revenue       laws    .   .     .    by    engaging      in     a   continuous       scheme    to

obstruct and impede the IRS from determining the correct amount

of deductions to which his clients were entitled.”                                   Counts Two

through       Eleven      charged         that     Kamalu       “willfully         aid[ed]    and

assist[ed] in the preparation and presentation . . . of . . . an

Internal Revenue Service Form 1040 and accompanying schedules .

. . which was fraudulent and false as to a material matter,” in

violation of 26 U.S.C. § 7206(2).                            The indictment included a

chart        associating        each       of    the     §     7206(2)     counts      with    an

individual or joint federal income tax return and indicating

that Kamalu had falsely prepared and included in each return a

Schedule A and Form 2106 claiming the false mileage deductions.

        At    trial,      the       Government         called       Mary    Somma     from    the

Criminal Investigation Branch of the Internal Revenue Service as

an expert witness.                  During cross-examination by Kamalu, Somma

testified that, like a taxpayer, a tax preparer signs a tax

return under penalty of perjury.                        After the trial, Somma’s IRS

supervisor challenged her on that point and alleged that her

testimony had been intentionally false.                             The purported exchange

between       Somma    and    her      supervisor        was    reported      to    the   United

States Attorney, who disclosed the information to Kamalu.

        At the conclusion of the Government’s case, Kamalu filed a

motion       for   acquittal         under      Rule    29    of    the    Federal    Rules    of

Criminal        Procedure.                Kamalu       argued       that    Count     One     was

                                                   3
duplicitous because the Government should have been required to

charge each alleged violation of § 7212(a) individually.                                 Kamalu

separately          contended    that    the       evidence       was     insufficient       to

support his convictions under Counts Ten and Eleven because the

indictment specified a false Schedule A and Form 2106 for the

taxpayer associated with those counts but that the Government

did    not    prove     those    particular        forms    were        ever    filed.      The

district court denied Kamalu’s motion.

       A     jury    convicted     Kamalu       on    all    eleven        counts    of     the

indictment.          Following the Government’s disclosure pertaining to

Somma, Kamalu filed a motion for a new trial under Rule 33 and

argued the testimony was perjurious.                    The district court denied

Kamalu’s motion.

       The      sentencing         guidelines          applicable              to   Kamalu’s

convictions provided a base offense level of 14 for a tax loss

between $30,000 and $80,000 and a base offense level of 16 where

the tax loss is between $80,000 and $200,000.                                  United States

Sentencing Guidelines Manual § 2T4.1 (2007).                            In preparation for

sentencing,          the   Government      submitted          a    memorandum        to     the

Probation Officer purporting to establish that the total tax

loss       attributable     to    Kamalu’s         conduct        was    $157,072.          The

Government attributed $53,052 of the tax loss to the taxpayers

identified in Counts Two through Eleven of the indictment.                                  The

Government      contended        the    other      $104,020       of    alleged     tax    loss

                                               4
should be attributed to Kamalu from unidentified clients on the

basis        of     adjustments         to        their           tax    returns         following

correspondence         audits      by   the       IRS.            Kamalu      objected     to   the

inclusion of the $104,020 in the tax loss calculation.

       The     district      court      accepted            the    Government’s          tax    loss

calculation of $157,072 as attributable to Kamalu and ultimately

determined a sentencing guidelines offense level based on that

loss with a sentencing range of 27 to 33 months.                                         The court

sentenced Kamalu to 27-months imprisonment on each count, to run

concurrently, and one-year of supervised release on each count,

to run concurrently.              Kamalu appeals.



                                              II.

       Kamalu contends the district court erred in denying his

Rule    29        motion    for    acquittal           because          (1)      Count    One    was

duplicitous          and     prejudicial              and     (2)        the      evidence       was

insufficient as a matter of law to sustain his convictions on

Counts Ten and Eleven.               Kamalu also contends the district court

erred   in        denying   his     Rule     33       motion       for     new    trial    because

Somma’s testimony was perjurious.                           Kamalu further contends the

Government failed to prove the disputed $104,020 tax loss by a

preponderance of the evidence and that the sentence of 27-months

imprisonment was unreasonable.



                                                  5
                                 A.

     A district court’s denial of a Rule 29 motion for acquittal

is subject to de novo review.    United States v. Alerre, 430 F.3d

681, 693 (4th Cir. 2005).



                                 1.

     “[D]uplicity is the joining in a single count of two or

more distinct and separate offenses.”     United States v. Burns,

990 F.2d 1426, 1438 (4th Cir. 1993) (internal quotation marks

omitted).

    The overall vice of duplicity is that the jury cannot
    in a general verdict render its finding on each
    offense, making it difficult to determine whether a
    conviction rests on only one of the offenses or on
    both.    Adverse effects on a defendant may include
    improper notice of the charges against him, prejudice
    in the shaping of evidentiary rulings, in sentencing,
    in limiting review on appeal, in exposure to double
    jeopardy, and of course the danger that a conviction
    will result from a less than unanimous verdict as to
    each separate offense.

United States v. Duncan, 850 F.2d 1104, 1108 n.4 (6th Cir. 1988)

abrogated on other grounds by Schad v. Arizona, 501 U.S. 624

(1991).

     However, “two or more acts, each of which would constitute

an offense standing alone and which therefore could be charged

as separate counts of an indictment, may instead be charged in a

single count if those acts could be characterized as part of a

single, continuing scheme.”     United States v. Shorter, 809 F.2d

                                  6
54, 56 (D.C. Cir. 1987), abrogated on other grounds by Daubert

v.   Merrell   Dow    Pharm.,    Inc.,    509   U.S.    579    (1993);        see   also

United States v. Berardi, 675 F.2d 894, 898 (7th Cir. 1982)

(alleging multiple acts is not duplicitous if the acts are part

of a continuing course of conduct).                 Moreover, a duplicitous

count is not to be dismissed unless it causes prejudice to the

defendant.      United States v. Sturdivant, 244 F.3d 71, 75 (2d

Cir. 2001) (citing United States v. Margiotta, 646 F.2d 729, 733

(2d Cir. 1981) and United States v. Murray, 618 F.2d 892, 896

(2d Cir. 1980)).         “Where the indictment ‘fairly interpreted’

alleges   a    ‘continuing      course    of    conduct,      during      a   discrete

period    of    time,’     the     indictment          is     not       prejudicially

duplicitous.”        United States v. Davis, 471 F.3d 783, 790 (4th

Cir. 2006).

      Count One of the indictment expressly charged Kamalu with

“engaging in a continuing scheme,” thereby aggregating several

potentially discrete counts of violating § 7212(a) in a single

count.    Even if doing so rendered the indictment duplicitous

despite the allegation of a continuing scheme, we are unable to

find any prejudice to Kamalu.                Count One presented no risk of

double jeopardy because the Government is now foreclosed from

prosecuting     Kamalu   for    further      violations     of      §   7212(a)     that




                                         7
could      form    part     of    the    alleged     scheme. 1        Rather,    Kamalu

benefitted        from    the     aggregation    because      each    discrete       count

would have been amenable to a separate sentence upon conviction.

See Berardi, 675 F.2d at 898 (noting that charging each discrete

criminal offense in a separate count would have subjected the

defendant to multiple statutory penalties).                         Thus the district

court did not err in denying Kamalu’s motion for acquittal on

Count One and we affirm his conviction.



                                            2.

        When a criminal conviction is appealed on the ground that

the underlying evidence is insufficient, we review the evidence

in   the    light    most       favorable   to   the      Government    to   determine

whether     “any     rational       trier   of     fact     could    have    found    the

essential     elements       of    the   crime     beyond    a   reasonable     doubt.”

United States v. Abuelhawa, 523 F.3d 415, 422 (4th Cir. 2008).


      1
       Nor is there risk that the continuing scheme in violation
of § 7212(a) impermissibly overlapped with the discrete charges
of § 7206(2) violations because there are different elements to
each crime.   Compare United States v. Aramony, 88 F.3d 1369,
1382 (4th Cir. 1996) (setting forth the elements of § 7206(2))
with United States v. Williams, 644 F.2d 696, 699 (8th Cir.
1981) (setting forth the elements of § 7212(a)).          Double
jeopardy does not bar prosecution of the same act under two
criminal statutes that require proof of different elements.
United States v. Allen, 13 F.3d 105, 108-09 & 109 n.4 (4th Cir.
1993) (citing Blockburger v. United States, 284 U.S. 299, 304
(1932)).



                                            8
Both Kamalu and the Government agree that Kamalu’s conviction on

Counts Ten and Eleven of the indictment must rest on evidence

that “(1) the defendant aided, assisted, or otherwise caused the

preparation and presentation of a return; (2) that the return

was fraudulent or false as to a material matter; and (3) the act

of the defendant was willful.”             Aramony, 88 F.3d at 1382.

      Cesarine Ngoma’s tax returns were the subject of Counts Ten

and   Eleven    of    the    indictment.        The    Government         introduced      no

evidence      that    Kamalu    assisted       her    in   the     preparation       of   a

Schedule A or Form 2106 for the years at issue, or that Ngoma

filed those particular documents with her income tax returns.

However,      Ngoma    testified     that      Kamalu       had     assisted    in     the

preparation of a Schedule C for the tax returns at issue and on

which   the    false    business    mileage          deductions     appeared.        That

evidence, viewed in the light most favorable to the Government,

is sufficient to establish the elements of the crime.

      Kamalu argues, nonetheless, that the references to Schedule

A and Form 2106 in the indictment created a variance between the

indictment      and    the     evidence     adduced        at     trial    (i.e.,    that

Schedule C, not Schedule A or Form 2106, was introduced into

evidence).      However, a conviction will not be set aside for such

a variance unless it modifies the elements of the crime.                            United

States v. Davis, 202 F.3d 212, 216 n.3 (4th Cir. 2000).                              That

the false deductions Kamalu manufactured for Ngoma appeared on

                                           9
Schedule C rather than Schedule A and Form 2106 had no effect on

the elements of the crime charged.                    Moreover, the indictment

accused Kamalu of “willfully aid[ing] and assist[ing] in the

preparation    and   presentation    of      .    .    .    an    Internal   Revenue

Service Form 1040 and accompanying schedules” for the identified

clients in specific tax years.          (Emphasis added.)              That language

encompassed    Ngoma’s   entire   tax     return,          including    Schedule    C,

giving Kamalu adequate notice of the charges against him.                         Thus,

the reference to Schedule A and Form 2106 in Counts Ten and

Eleven was harmless surplusage.              Thus, the district court did

not err in denying Kamalu’s motion for acquittal on those counts

and we affirm Kamalu’s convictions.



                                     B.

       We review denial of a Rule 33 motion for a new trial for

abuse of discretion.       United States v. Perry, 335 F.3d 316, 320

(4th Cir. 2003).      A defendant may be entitled to a new trial

after a showing that the testimony of a witness was false and

that   the    Government   offered      it       despite         knowledge   of    the

falsehood.     United States v. Wallace, 538 F.2d 326, 326 (4th

Cir. 1976) (per curiam).          However, Kamalu’s argument that the

district court erred in denying his motion for new trial is

without merit because Somma’s testimony was true and accurate.



                                     10
A true statement is not perjury.          See, e.g., United States v.

Good, 326 F.3d 589, 591 (4th Cir. 2003).

     The Internal Revenue Code requires that “any return . . .

shall . . . be verified by a written declaration that is made

under the penalties of perjury.”         26 U.S.C. § 6505 (2002).        The

implementing     regulations,    which   Kamalu    does   not    challenge,

provide that:

     if a return, declaration, statement, or other document
     is prepared for a taxpayer by another person for
     compensation or as an incident to the performance of
     other   services  for   which  such   person  receives
     compensation, and the return, declaration, statement,
     or other document requires that it shall contain or be
     verified by a written declaration that is prepared
     under the penalties of perjury, the preparer must so
     verify the return, declaration, statement, or other
     document.

26 C.F.R. § 1.6065-1 (2008).         Moreover, signatories to a Form

1040, including the tax preparer, subscribe to a declaration

that provides “Under penalties of perjury, I declare that I have

examined this return and accompanying schedules and statements,

and to the best of my knowledge and belief, they are true,

correct,   and    complete.     Declaration   of   preparer     (other   than

taxpayer) is based on all information of which preparer has any

knowledge.”      The declaration on all the tax returns in this case

expressly included the paid tax preparer, Kamalu.             Finally, “[a]

tax return that does not contain such a declaration does not

contain information on which the substantial correctness of the


                                    11
self-assessment [of income tax liability] may be judged” and is

therefore invalid.            Hettig v. United States, 845 F.2d 794, 795

(8th Cir. 1988) (per curiam); accord Mosher v. IRS, 775 F.2d

1292,   1294     (5th    Cir.   1985)     (per    curiam);    Borgeson        v.   United

States,    757    F.2d    1071,    1073    (10th    Cir.     1985)     (per    curiam).

Thus, even if the accusation were true that Somma intended to

testify falsely, as a matter of law her testimony was correct

and   could     not    have   caused    Kamalu     any     legal    prejudice.       The

district court did not abuse its discretion in denying Kamalu’s

motion for a new trial.



                                           C.

      Finally, Kamalu contends the district court erred when it

found     the    tax     loss     exceeded       $80,000     and     calculated      his

sentencing       guidelines     range     accordingly.             Kamalu   separately

argues the 27-month sentence was unreasonable.

      At oral argument, the Government informed the Court that

Kamalu’s sentence of active incarceration had been served and

that he had been released from custody.                    Kamalu did not dispute

the Government’s representation.

           “[I]f an event occurs while a case is pending on
      appeal that makes it impossible for the court to grant
      any effectual relief whatever to a prevailing party,
      the appeal must be dismissed,” for federal courts have
      “no authority to give opinions upon moot questions or
      abstract propositions, or to declare principles or


                                           12
     rules of law which cannot affect the matter in issue
     in the case before it.”

Incumma v. Ozmint, 507 F.3d 281, 286 (4th Cir. 2007) (quoting

Church of Scientology of Cal. v. United States, 506 U.S. 9, 12

(1992)).    Because   Kamalu   has   completed   his   term   of   active

incarceration this Court can grant no meaningful relief on these

issues, which challenge only the length of sentence rather than

the underlying convictions, 2 and we dismiss them as moot.



                                III.

     For the foregoing reasons, we affirm the judgment of the

district court.

                                                               AFFIRMED




     2
       No retroactive adjustment of his completed sentence of
active incarceration can affect the unexpired term of supervised
release. United States v. Johnson, 529 U.S. 53, 58-59 (2000).



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