           Case: 16-11428   Date Filed: 07/21/2017    Page: 1 of 12


                                                     [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 16-11428
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 1:14-cr-00192-ODE-AJB-1



UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,


versus

FREDERICK JENKINS,
WILLIE JENKINS,

                                                       Defendants-Appellants.

                       ________________________

               Appeals from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                              (July 21, 2017)

Before TJOFLAT, MARCUS, and WILSON, Circuit Judges.

PER CURIAM:
               Case: 16-11428    Date Filed: 07/21/2017   Page: 2 of 12


       Frederick Jenkins and Willie Jenkins, brothers who ran a tax-preparation

company, were convicted of conspiring to prepare fraudulent tax returns on behalf

of certain clients and of willfully preparing fraudulent returns on behalf of the

clients. The district court sentenced Frederick to 78 months’ imprisonment and

Willie to 75 months’ imprisonment, and it ordered them to pay $3.5 million in

restitution.

       Frederick and Willie now appeal their convictions and sentences. They

argue that the district court erred by (1) constructively amending their indictment,

(2) limiting Frederick’s cross-examination of a government witness, (3) allowing

them to proceed pro se at sentencing, (4) determining that they are responsible for

more than $3.5 million in tax loss, and (5) requiring them to pay $3.5 million in

restitution. After careful consideration of the record and the parties’ briefs, we

affirm in part, vacate in part, and remand for resentencing. We affirm Frederick’s

and Willie’s convictions. But we vacate their sentences because the district court

erred in finding that they are responsible for more than $3.5 million in tax loss and

in ordering $3.5 million in restitution.

                       I. CONSTRUCTIVE AMENDMENT

       The Fifth Amendment prohibits the district court from constructively

amending an indictment. See United States v. Keller, 916 F.2d 628, 632–33 (11th

Cir. 1990). The district court constructively amends an indictment if it alters “the


                                           2
              Case: 16-11428     Date Filed: 07/21/2017   Page: 3 of 12


essential elements of the offense contained in the indictment . . . to broaden the

possible bases for conviction beyond what is contained in the indictment.” United

States v. Narog, 372 F.3d 1243, 1247 (11th Cir. 2004) (citing Keller, 916 F.2d at

634). But it does not constructively amend an indictment when it ignores “[a] part

of the indictment unnecessary to and independent of the allegations of the offense.”

See United States v. Miller, 471 U.S. 130, 136, 105 S. Ct. 1811, 1815 (1985). In

other words, the district court may ignore parts of an indictment that are “merely

surplusage.” See id. at 137, 105 S. Ct. at 1815 (internal quotation marks omitted).

      The district court did not constructively amend Frederick and Willie’s

indictment—it ignored a part of the indictment that was mere surplusage.

Frederick and Willie argue that the district court constructively amended their

indictment because, although the indictment alleged that they prepared fraudulent

tax returns on behalf of several clients “without the [clients]’ knowledge and

consent,” the court instructed the jury that the government did not have to prove

the clients lacked knowledge and consent. However, the indictment’s allegations

about the clients’ knowledge and consent were “unnecessary to the offense[s]”

contained in the indictment. See id., 105 S. Ct. at 1815. The indictment alleged

that Frederick and Willie conspired to prepare fraudulent tax returns and that they

willfully prepared fraudulent tax returns. As Frederick’s attorney conceded at trial,

whether the clients knew that the tax returns contained fraudulent information was


                                          3
               Case: 16-11428       Date Filed: 07/21/2017       Page: 4 of 12


irrelevant to these offenses; only Frederick’s and Willie’s mens rea was relevant.

The allegations about the clients’ knowledge and consent, then, “would have had

no legal relevance if proved.”1 See id., 105 S. Ct. at 1815.

 II. LIMITING CROSS-EXAMINATION OF A GOVERNMENT WITNESS

       Although the district court has “the power to limit” a defendant’s cross-

examination of a government witness, the court’s “discretion is limited by the

guarantee of the Sixth Amendment’s Confrontation Clause that a criminal

defendant has the right to cross-examine prosecutorial witnesses.” United States v.

Maxwell, 579 F.3d 1282, 1295 (11th Cir. 2009) (internal quotation marks omitted).

Under the Confrontation Clause, a defendant is entitled to “an opportunity for

effective cross-examination.” Id. at 1296 (internal quotation marks omitted). And

the district court may not limit a defendant’s cross-examination if “a reasonable

jury would have received a significantly different impression of the witness’[s

testimony] had [the defendant] pursued the proposed line of cross-examination.”

United States v. Garcia, 13 F.3d 1464, 1469 (11th Cir. 1994).

       The district court did not err in limiting Frederick’s cross-examination of a

government witness. Frederick and Willie had an opportunity for effective cross-

examination of the witness. Frederick and Willie argue that the district court


       1
          As an alternative to their constructive-amendment argument, Frederick and Willie argue
that the government’s evidence at trial materially varied from the indictment. That argument,
however, is unavailing.
                                               4
              Case: 16-11428      Date Filed: 07/21/2017    Page: 5 of 12


violated their Sixth Amendment rights because the court, after questioning the

relevance of Frederick’s cross-examination of the witness, limited the examination

to ten additional minutes. The district court’s decision to limit the cross-

examination, Frederick and Willie contend, prevented them from eliciting

testimony suggesting that they did not file certain tax returns. But based on our

review of the record, Frederick questioned the government witness about the tax

returns at length and elicited helpful testimony. We cannot conclude that “a

reasonable jury would have received a significantly different impression” of the

witness’s testimony had the district court not limited Frederick’s cross-

examination. See id.

                    III. WAIVER OF RIGHT TO COUNSEL

      When a defendant seeks to waive his right to counsel, the district court must

satisfy itself that the defendant is competent to do so, and it must satisfy itself that

the defendant’s waiver is knowing and voluntary. See Godinez v. Moran, 509 U.S.

389, 400, 113 S. Ct. 2680, 2687 (1993). A defendant is competent to waive his

right to counsel if he meets the standard for competency to stand trial—that is, if

he “has sufficient present ability to consult with his lawyer with a reasonable

degree of rational understanding and has a rational as well as factual understanding

of the proceedings against him.” Id. at 396, 113 S. Ct. at 2685 (internal quotation

marks omitted). A defendant’s waiver is knowing and voluntary if he is “made


                                            5
              Case: 16-11428    Date Filed: 07/21/2017    Page: 6 of 12


aware of the dangers and disadvantages of self-representation” such “that he knows

what he is doing and his choice is made with eyes open.” United States v. Kimball,

291 F.3d 726, 730 (11th Cir. 2002) (per curiam) (internal quotation marks

omitted).

      The district court did not err in allowing Frederick and Willie to proceed pro

se at sentencing. The court did not have cause to believe that Frederick and Willie

were not competent to waive their counsel, and prior to their waiver, the court

“made [them] aware of the dangers and disadvantages of self-representation.” See

id. (internal quotation marks omitted).

      First, no information arose during Frederick and Willie’s proceedings that

established a “bona fide doubt regarding the[ir] competence.” See United States v.

Wingo, 789 F.3d 1226, 1235–36 (11th Cir. 2015) (internal quotation marks

omitted). We look to three factors in determining whether information arose at

trial that established a bona fide doubt about competence: “(1) evidence of the

defendant’s irrational behavior; (2) the defendant’s demeanor at trial; and (3) prior

medical opinion regarding the defendant’s competence . . . .” Id. at 1236 (internal

quotation marks omitted). Considering these factors, we cannot conclude that a

bona fide doubt about competency existed here. Frederick and Willie made a few

irrational statements when they requested to waive counsel, but at that time they

also engaged in colloquy with the court that reflected a rational understanding of


                                          6
              Case: 16-11428      Date Filed: 07/21/2017     Page: 7 of 12


the proceedings. Further, neither Frederick’s nor Willie’s demeanor during their

weeklong trial signaled incompetence, and their counsel never raised any concerns

about competency. Finally, no prior medical opinions suggested competency

issues.

       Second, Frederick and Willie knowingly and voluntarily waived counsel at

sentencing. The district court informed them that the sentencing process is

complex and requires technical analysis, including examining the Sentencing

Guidelines; that navigating the sentencing process without counsel would be

difficult; that, in the opinion of the court, waiving counsel was a mistake; and that

they faced prison sentences. With the benefit of this information, Frederick and

Willie, without equivocating, decided to waive counsel. Indeed, they even rejected

the district court’s offer to appoint them new counsel. Frederick and Willie

decided to waive counsel voluntarily and “with eyes open.” See Kimball, 291 F.3d

at 730 (internal quotation marks omitted).

                           IV. AMOUNT OF TAX LOSS

       The government, in asking the district court to adopt a certain tax-loss

calculation at sentencing, “must establish the facts by a preponderance of the

evidence and support the loss calculation with reliable and specific evidence.”

United States v. Cobb, 842 F.3d 1213, 1219 (11th Cir. 2016). If the defendant’s

“offense involved the filing of . . . fraudulent or false tax return[s], the tax loss is


                                            7
              Case: 16-11428     Date Filed: 07/21/2017    Page: 8 of 12


the total amount of loss that was the object of the offense . . . .” United States v.

Clarke, 562 F.3d 1158, 1164 (11th Cir. 2009) (citing U.S.S.G. § 2T1.1(c)(1)).

When determining the scope of the offense, the district court should consider “all

conduct violating the tax laws . . . as part of the same course of conduct or

common scheme or plan.” U.S.S.G. § 2T1.1 cmt. n.2.

      The district court erred in finding that Frederick and Willie are responsible

for more than $3.5 million in tax loss. The court’s finding was based on its

conclusion that Frederick and Willie willfully prepared hundreds of fraudulent tax

returns, but the government failed to prove that by a preponderance of the

evidence. See Cobb, 842 F.3d at 1219.

                         A. RELEVANT BACKGROUND

      At trial the government offered evidence that Frederick and Willie prepared

16 fraudulent tax returns. The evidence showed that each of the 16 returns

reported fraudulent business expenses on a Schedule C, namely non-existent

advertising and office expenses; claimed business losses; and sought a tax refund.

Based on that evidence, Frederick and Willie were convicted on one count of

conspiring to prepare fraudulent tax returns and on several counts of willfully

preparing fraudulent returns.

      At sentencing the government, seeking to establish that Frederick and Willie

are responsible for hundreds of additional fraudulent tax returns, offered the


                                           8
              Case: 16-11428     Date Filed: 07/21/2017   Page: 9 of 12


testimony of an Internal Revenue Service (IRS) agent who reviewed a sampling of

tax returns that Frederick and Willie’s company prepared. The agent reviewed 283

returns with Schedule Cs, which was 10% of the returns with Schedule Cs that the

company prepared during a certain time period, and he found that 228 of those

returns reported business losses and requested a refund. Many of the 228 returns

also reported advertising and office expenses. The 228 returns, in total, reported

around $5 million in business losses. The remaining 55 returns reported business

profits.

       According to the government, the similarities between the 228 tax returns

and the 16 fraudulent returns from trial established not only that all the 228 returns

were fraudulent but also that many other returns prepared by Frederick and Willie

were likely fraudulent. So the government asked the district court to calculate the

tax loss attributable to Frederick and Willie by extrapolating from the $5 million in

business losses reported by the 228 returns.

       The government recommended a three-step calculation process. First,

because the IRS agent reviewed just 10% of returns with a Schedule C, multiply

the $5 million in business losses by 10 to estimate the total business losses reported

by Frederick and Willie. Second, multiply the resulting $50 million in estimated

business losses by 28% since, under the Sentencing Guidelines, a defendant’s tax

loss should be treated as equal to 28% of improperly claimed deductions “unless a


                                          9
             Case: 16-11428     Date Filed: 07/21/2017    Page: 10 of 12


more accurate determination of the tax loss can be made.” See U.S.S.G. §

2T1.1(c)(1)(B). Multiplying $50 million by 28% results in around $14 million in

estimated tax loss. Third, to afford Frederick and Willie the benefit of the doubt

that some of the returns reporting business losses were legitimate, cut the $14

million in estimated tax loss in half to $7 million.

      The district court ultimately found that Frederick and Willie are responsible

for more than $3.5 million in tax loss and therefore applied to them a base offense

level of 24. See § 2T4.1(J), (K) (establishing 24 as the base offense level for an

offense involving tax loss greater than $3.5 million but less than $9.5 million).

The court noted that it is “very difficult” to identify the amount of tax loss

attributable to Frederick and Willie, but it nevertheless was “comfortable saying

that the loss” is above $3.5 million.

                                   B. ANALYSIS

      The district court erred in concluding that Frederick and Willie are

responsible for more than $3.5 million in tax loss. To establish that Frederick and

Willie are responsible for more than $3.5 million in tax loss, the government had to

at a minimum prove by a preponderance of the evidence that they engaged in

illegal conduct beyond preparing the 16 fraudulent tax returns identified at trial.

The government failed to make such a showing.




                                          10
               Case: 16-11428         Date Filed: 07/21/2017       Page: 11 of 12


        The government argued that Frederick and Willie’s relevant “course of

conduct” included willfully preparing not only the 16 fraudulent tax returns but

also hundreds of additional fraudulent returns. See § 2T1.1 cmt. n.2. But the only

evidence it offered in support thereof was the IRS agent’s testimony, and the

testimony did not show that Frederick and Willie willfully prepared additional

fraudulent returns. The agent did not identify any returns containing fraudulent

information; the agent, for example, did not identify any returns that included non-

existent advertising or office expenses. The agent did not even state that, in his

opinion, the returns he analyzed included suspicious information. Nor did the

agent testify that he believed the returns he analyzed included patterns indicative of

fraud. The agent merely testified that Frederick and Willie’s company filed a

number of returns that shared certain characteristics with the 16 fraudulent

returns—characteristics such as reported business losses and requests for tax

refunds that are not uncommon in returns. Those shared characteristics, without

more, do not establish by a preponderance of the evidence that Frederick and

Willie willfully prepared additional fraudulent returns.2 See Cobb, 842 F.3d at

1219.

                                      V. RESTITUTION

        2
          In some cases, similarities between returns identified as fraudulent and other returns
might be enough to establish the other returns as fraudulent—say, if the similarities rarely appear
in returns or the pool of fraudulent returns is sizable. But here, the similarities by themselves are
not sufficiently indicative of fraud to satisfy the government’s burden.
                                                 11
               Case: 16-11428    Date Filed: 07/21/2017    Page: 12 of 12


       The district court erred in ordering $3.5 million in restitution. The district

court based its award of restitution on its finding that Frederick and Willie are

responsible for more than $3.5 million in tax loss. Since the district court erred in

determining the amount of tax loss, it also erred in ordering $3.5 million in

restitution.

                                 VI. CONCLUSION

       We affirm in part, vacate in part, and remand for resentencing. We affirm

Frederick’s and Willie’s convictions but vacate their sentences. The district court

did not constructively amend Frederick and Willie’s indictment, did not err in

limiting Frederick’s cross-examination of a government witness, and did not err in

allowing Frederick and Willie to proceed pro se at sentencing. However, the court

erred at sentencing in finding that Frederick and Willie are responsible for more

than $3.5 million in tax loss and in ordering $3.5 million in restitution.

    AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR
RESENTENCING.




                                           12
