           Case: 14-12293   Date Filed: 09/06/2017   Page: 1 of 11


                                                         [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-12293
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 0:12-cr-60297-DTKH-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

PAUL F. WRUBLESKI,

                                                          Defendant-Appellant.

                       ________________________

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

                            (September 6, 2017)

Before MARTIN, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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       A trial jury convicted Paul F. Wrubleski of charges related to tax fraud and

tax evasion. He appeals a number of the district court’s trial rulings. After careful

review, we affirm his conviction.

                                           I.

       In 2012, a federal grand jury indicted Wrubleski, charging him with one

count of attempting to interfere with the administration of the Internal Revenue

laws, in violation of 26 U.S.C. § 7212(a), and four counts of filing false, fictitious,

and fraudulent claims with the Internal Revenue Service, in violation of 18 U.S.C.

§ 287. The indictment charged Wrubleski with filing false income tax returns and

knowingly making false claims for tax refunds. Wrubleski pled not guilty and

went to trial.

       At trial, the government called Ken Hochman, an attorney at the IRS, as one

of its witnesses. Hochman testified that he represented the IRS in United States

Tax Court, including in a case filed by Wrubleski in 2004 in which Wrubleski

challenged the validity of an IRS collection action. Outside the presence of the

jury, the district court expressed concern about Hochman’s testimony. The court

said it was “concerned that [] the government is attempting to take a taxpayer’s

participation in [the IRS] review process . . . as activity that can be looked at for

the basis of a criminal charge” because “the government thinks the taxpayer was so

baseless” in bringing the Tax Court action. The government explained that


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although Wrubleski’s litigation in Tax Court could not itself constitute the crime of

interference with the administration of the Internal Revenue laws, Wrubleksi’s

previous experience in Tax Court showed his “overall willfulness” to commit other

acts that constitute the crime.

      When the jury returned, the district court gave a curative instruction. The

court said:

      I want to be clear that the fact that [Wrubleski] went to tax court, and
      the fact that, for instance, the government may not be happy with how
      [he] acted in the tax court . . . that can’t be the basis of a charge of
      corruptly trying to impede the proper administration of the Internal
      Revenue Service.

      If you tell somebody they can take an appeal [to the Tax Court] and
      they take an appeal and they lose the appeal, that’s not the basis of the
      charge here.

The court then explained that information about Wrubleski’s Tax Court litigation

was “relevant only to the question of whether the government can prove that Mr.

Wrubleski acted willfully.” Before resuming Hochman’s testimony, the court

reiterated: “I want to make sure that everybody understands that how Mr.

Wrubleski conducted himself in the litigation, that cannot serve as the basis for the

first charge, which is the charge of corruptly impeding the administration of

justice.” Despite the court’s instruction, Wrubleski moved for a mistrial on the

ground that his “use of judicial process . . . has been portrayed as being something

improperly done toward the IRS.” The district court denied his motion.


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       Later in the trial, the government called Special Agent Jason Lamb to the

stand. Lamb, an agent in the IRS’s criminal division, testified about a handwritten

note that IRS agents found while searching the office of Wrubleski’s tax preparer,

Teresa Marty. The note said: “Cease and desist in all aggravation of officials.

Why ruffle when you can be subtle.” The note also said, “MC-2 income wages, do

not include[].” 1 Over Wrubleski’s objection, the district court admitted the note

into evidence under the co-conspirator exception to the hearsay rule.

       The government also called Special Agent Robert Calabrese, the lead IRS

agent on Wrubleski’s case. Calabrese explained that Wrubleski filed false tax

returns in which he claimed tax refunds to which he was not entitled. Calabrese

then testified about a number of Wrubleski’s bank, credit card, and mortgage

records. He explained the IRS obtained these records in the course of its

investigation so that it could compare them to the income and financial information

Wrubleski had been reporting on his income tax returns. Wrubleski objected to

the financial records on the ground that the certifications for each record were

insufficient because they were photocopies, not originals. Wrubleski made clear

that his objection did not go to the contents of the records or their certifications,

but to the fact that the certifications were not originals. The court overruled that

objection and admitted the bank, credit card, and mortgage records.

       1
       Other testimony at trial established that MC-2 was one of Wrubleski’s former
employers.
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      After the parties rested, the district court gave the jury instructions. While

explaining the burden of proof in a criminal case, the court said:

      [E]very defendant is presumed by the law to be innocent. The law
      does not require a defendant to prove his innocence or to produce any
      evidence at all. Remember, ladies and gentlemen, it is the
      government that has the burden of proving a defendant [guilty]
      beyond a reasonable doubt. If the defendant fails to do that, you must
      find the defendant not guilty.

(Emphasis added.) Wrubleski objected to this last sentence, and the district court

continued its instructions. The court then said: “[T]he burden in this case is simply

100 percent on the shoulders of the government. Zero percent on the shoulders of

the defendant.”

      The jury found Wrubleski guilty on all five counts. The district court

sentenced Wrubleski to 36-months imprisonment for Count 1 and 55-months

imprisonment for each of Counts 2 through 5, all to be served concurrently.

                                           II.

      Wrubleski raises four claims on appeal. First, he says the district court erred

by admitting the handwritten note from the office of his tax preparer. Second, he

says the district court erred in denying his motion for a mistrial based on the

testimony about his Tax Court litigation. Third, he says the district court erred in

admitting his financial records because the certifications were copies of the

originals. Fourth, he says the district court erred in its oral jury instruction on the

burden of proof. We address each argument in turn.
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                                         A.

      Wrubleski first argues the district court erred by admitting into evidence the

handwritten note from his tax preparer, Teresa Marty, under Rule 801(d)(2)(E) of

the Federal Rules of Evidence. We review the district court’s ruling on the

admission of evidence for an abuse of discretion. United States v. Jiminez, 224

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

      Under Rule 801(d)(2)(E), statements of co-conspirators made “during the

course and in furtherance of the conspiracy are not hearsay.” United States v.

Miles, 290 F.3d 1341, 1351 (11th Cir. 2002) (per curiam). In order for a statement

to be admissible under Rule 801(d)(2)(E), “the government must prove by a

preponderance of the evidence: (1) that a conspiracy existed; (2) that the

conspiracy included the declarant and the defendant against whom the statement is

offered; and (3) that the statement was made during the course and in furtherance

of the conspiracy.” Id.

      The district court did not abuse its discretion in finding the government

proved the elements of this conspiracy by a preponderance of the evidence. The

evidence showed that Marty prepared Wrubleski’s 2007 income tax return, which

fraudulently claimed a $500,000 tax refund. The evidence also showed that Marty

and Wrubleski communicated about his tax filings and that Wrubleski paid Marty

for preparing the false return. This is sufficient to establish a conspiracy between


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Wrubleski and Marty to file a false claim with the IRS. See United States v.

Cagnina, 697 F.2d 915, 922 (11th Cir. 1983) (“Co-conspirators’ statements are

admissible even when no conspiracy is charged if there is independent evidence of

a concert of action in which the defendant was a participant.”). The evidence also

established that the statement was made “in furtherance of the conspiracy.” See

Miles, 290 F.3d at 1351. Agents discovered the note in Marty’s office, in a file

that was marked with Wrubleski’s name and that contained a copy of the

fraudulent 2007 tax return. Beyond that, the message on the note—which

discussed not “aggravat[ing] officials” and “not includ[ing]” Wrubleski’s wages

from his job at MC-2—appears to be a plan for accomplishing the tax fraud.

Therefore, it was not an abuse of discretion for the district court to conclude that

the note was a statement made between co-conspirators, admissible under Rule

801(d)(2)(E).

                                          B.

      Next, Wrubleski challenges the district court’s decision not to grant a

mistrial after admitting evidence about Wrubleski’s litigation against the IRS in

Tax Court. We review a district court’s denial of a mistrial for an abuse of

discretion. United States v. Newsome, 475 F.3d 1221, 1227 (11th Cir. 2007) (per

curiam).




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      Wrubleski appears to argue that using a defendant’s previous legal

proceedings against the IRS to prove the offense of interfering with the

administration of the Internal Revenue laws, 26 U.S.C. § 7212(a), is an improper

“theory of culpability.” He says the evidence of his Tax Court proceedings

showed only that “[h]e took advantage of the legal avenues offered to him,” and

did not prove he was “corruptly trying to obstruct or impede the IRS.”

      Even assuming it was error to admit the evidence of Wrubleski’s litigation

history—a question we need not decide—the admission of this evidence did not

mandate a mistrial here because the court gave an adequate curative instruction.

The district court agreed with Wrubleski that a person’s litigation in Tax Court

could not constitute a violation of § 7212(a). As we described above, this

prompted the district court to give an extensive curative instruction. The court

instructed the jury that any actions Wrubleski filed in Tax Court “can’t be the basis

of a charge of corruptly trying to impede the proper administration of the Internal

Revenue Service. . . . [H]ow Mr. Wrubleski conducted himself in the litigation,

that cannot serve as the basis for the first charge, which is the charge of corruptly

impeding the administration of justice.” “When a curative instruction is given, this

court reverses only if the evidence is so highly prejudicial as to be incurable by the

trial court’s admonition.” United States v. Garcia, 405 F.3d 1260, 1272 (11th Cir.

2005) (per curiam) (quotation omitted). Here, the evidence that Wrubleski


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challenged his tax liability in Tax Court was not so prejudicial as to be beyond the

cure offered by the district court’s prompt and thorough instruction. Because the

district court cured the error Wrubleski complains of, the court did not abuse its

discretion in denying his motion for a mistrial. See Newsome, 475 F.3d at 1227.

                                         C.

      Wrubleski next claims that the district court erred by admitting his bank,

credit card, and mortgage records without original certifications from the custodian

of each record. We reject this argument.

      The records Wrubleski challenges were admitted under Federal Rule of

Evidence 803(6), the business records exception to the rule against hearsay. A

document is admissible under Rule 803(6) if (1) it was “made at or near the time

by . . . someone with knowledge”; (2) it was “kept in the course of a regularly

conducted activity”; and (3) “making the record was a regular practice of that

activity.” Fed. R. Evid. 803(6)(A)–(C). The rule says these requirements can be

“shown by the testimony of the custodian or another qualified witness, or by a

certification that complies with Rule 902(11).” Id. 803(6)(D). Here, the

government used Rule 902(11) certifications for each of the business records.

Under Rule 902(11), a party may use a written “certification of the custodian” of

the record to meet the requirements of Rule 803(6)(A)–(C). Id. 902(11).




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      Wrubleski objects to the admission of the business records only on the

ground that the certifications the government offered were photocopies of the

original certifications and “original certifications were never produced.” However,

nothing in Rule 902(11) requires that the certification be the original, as opposed to

a photocopy. Wrubleski points to no authority to support his interpretation that the

rule imposes such a requirement. Under the Federal Rules of Evidence, “[a]

duplicate is admissible to the same extent as the original unless a genuine question

is raised about the original’s authenticity or the circumstances make it unfair to

admit the duplicate.” Id. 1003. Wrubleski has offered nothing that would call into

question the authenticity of the original certifications or make it unfair to admit the

photocopied certifications. This record discloses nothing indicating an abuse of

discretion by the district court in its admission of the business records. See

Jiminez, 224 F.3d at 1249.

                                          D.

      Finally, Wrubleski says the district court made “an incorrect statement of the

law” during its “oral instructions” to the jury on the burden of proof. “We review

jury instructions de novo to determine whether they misstate the law or mislead the

jury.” Gowski v. Peake, 682 F.3d 1299, 1310 (11th Cir. 2012) (per curiam).

      While giving oral instructions to the jury, the district court said: “If the

defendant fails to do that [i.e., prove guilt beyond a reasonable doubt], you must


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find the defendant not guilty.” Clearly, this misstated the burden of proof. Yet it is

equally clear that the district court simply misspoke. Just before it made the

misstatement, the court recited the burden of proof correctly. And, after Wrubleski

objected to the incorrect statement, the district court promptly corrected itself,

clarifying that “the burden in this case is simply 100 percent on the shoulders of

the government. Zero percent on the shoulders of the defendant.” Further, the

written instructions the jury received correctly stated, in multiple places, that the

government bears the burden of proving the defendant guilty beyond a reasonable

doubt. Taken as a whole, the instructions made clear that the government, and

only the government, bore the burden of proving Wrubleski’s guilt. See United

States v. Brown, 43 F.3d 618, 623 (11th Cir. 1995) (“We review jury instructions

by determining whether the charge, viewed as a whole, sufficiently instructed the

jurors so that they understood the issues involved and were not misled about the

law.”). On this record, we are confident the jury was not misled about the burden

of proof.

      AFFIRMED.




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