                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4433


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

DOROTHY LEE ANDERSON,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:11-cr-00837-JFA-1)


Argued:   May 17, 2013                       Decided:   July 10, 2013


Before WILKINSON, DUNCAN, and WYNN, Circuit Judges.


Affirmed by unpublished opinion.         Judge Wilkinson wrote the
majority opinion, in which Judge        Duncan joined.  Judge Wynn
wrote a dissenting opinion.


ARGUED: Jonathan McKey Milling, MILLING LAW FIRM, LLC, Columbia,
South Carolina, for Appellant.    Jamie L. Schoen, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
ON BRIEF: William N. Nettles, United States Attorney, Winston D.
Holliday, Jr., Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
WILKINSON, Circuit Judge:

       Defendant        Dorothy    Lee    Anderson     was      convicted          of   twenty

counts      of   various       crimes     for     using      stolen            identities   to

fraudulently       obtain      federal    income     tax     refunds.           Anderson    now

challenges the jury’s guilty verdict on four of those counts, as

well   as    the       district    court’s       application         of    two     sentencing

enhancements. However, finding sufficient evidence to support the

convictions and concluding that the district court did not err

in applying either of the enhancements, we affirm.



                                             I.

       In   late       2007,   Anderson      took    steps      to    establish         a   tax

preparation        business       under    the      name   of        “DL        Anderson    Tax

Service.”        She     applied     to    the      IRS    for        authorization          to

electronically file tax returns and was issued an Electronic

Filing Identification Number (“EFIN”) for her business and a

Preparer’s Tax Identification Number (“PTIN”) for herself as a

paid tax preparer. Anderson used the EFIN and PTIN throughout

2008 to submit returns for the 2007 tax year.

       In February 2009, the IRS interviewed Anderson as part of

an   investigation        into     certain      returns    filed          by    her   business

putatively on behalf of paid clients. Each return in question

indicated that the refund due was to be deposited into one of

several bank accounts controlled by Anderson, and each named

                                             2
Anderson as a third-party designee authorized to receive private

tax information relating to the filer. When asked about these

returns,     Anderson      stated     that     her     employee,      Tamika      Davis,

prepared     them,   but   an   IRS    agent    assigned        to   the   case    later

testified that he could find “no evidence of an existence of

that person.” J.A. 55.

     On September 21, 2011, a federal grand jury in the District

of   South    Carolina      charged     Anderson       in   a    twenty-one        count

superseding indictment with nineteen counts of submitting false,

fictitious, or fraudulent claims against the United States, in

violation of 18 U.S.C. § 287; one count of embezzling public

money or property, in violation of 18 U.S.C. § 641; and one

count of aggravated identity theft, in violation of 18 U.S.C.

§ 1028A.     The     indictment       alleged        that   Anderson       stole     the

identities     of    nineteen     individuals         and   used     their     personal

information to file fraudulent tax returns, with refund payments

routed to accounts under her control.

     At trial, the government presented testimony by fourteen

witnesses whose names appeared on tax returns corresponding to

Counts 1, 2, 4-8, 11-14, and 16-18 of the indictment, each filed

using Anderson’s EFIN and PTIN. The witnesses testified that

they did not authorize Anderson to prepare the returns and that

they did not receive any refund payments in connection with the



                                         3
filed    returns.         Moreover,       they        indicated         that     much     of     the

personal information listed on the returns was incorrect.

       The    government        also     called       seven       other    witnesses,          among

them    Ronald      Cooley,          President       and    CEO    of     Brookland       Federal

Credit   Union       (“Brookland”);            Russell      Sciandra,       an      IRS   Special

Agent;       and    Tracy      Trivison,        General          Manager       of   Receivables

Management         Corporation         (“RMC”),          Anderson’s        former       employer.

Cooley testified that Anderson controlled multiple accounts at

Brookland and identified certain deposits made by the United

States       Treasury         into     those     accounts.         Sciandra         linked       the

Treasury deposit amounts to refunds claimed on tax returns filed

using Anderson’s EFIN and PTIN. And Trivison testified that,

while    working         for    RMC,     Anderson          had    access       to   the    names,

addresses, social security numbers, and dates of birth of some

of the individuals whose tax returns were filed using Anderson’s

EFIN and PTIN.

       The jury found Anderson guilty on twenty of the twenty-one

counts   charged         in    the     indictment.         She    was     acquitted       only    on

Count 10, a false claim charge linked to a tax return for which

the    refund      was    deposited       into       a     separate       bank      account      not

referenced on any of the eighteen other returns. The individual

whose name appeared on the return associated with Count 10 did

not testify at trial.



                                                 4
     In calculating Anderson’s Guidelines sentencing range, the

Presentence        Investigation          Report      (“PSR”)          applied     two

enhancements now at issue in this appeal, one for the number of

victims involved and another for the amount of loss implicated.

The PSR reported that there were nineteen victims of Anderson’s

crimes, triggering a two-level enhancement pursuant to U.S.S.G.

§ 2B1.1(b)(2), and that the intended loss amount was $437,822,

triggering    a    fourteen-level        enhancement       pursuant      to   U.S.S.G.

§ 2B1.1(b)(1)(H). After accounting for these enhancements, the

PSR arrived at a final Guidelines range of 65 to 75 months’

imprisonment.

     Counsel for Anderson raised ten objections to the PSR, none

of   which    challenged      the       application    of       the    aforementioned

sentencing enhancements and most of which were resolved prior to

sentencing.       Anderson    herself      also    filed    a    pro    se    objection

challenging the “entire” PSR, but her statement was directed

primarily at the jury’s finding of guilt and not at the proposed

Guidelines range. She did not raise any specific objection to

either   enhancement.        At   the    sentencing    hearing,         the   district

court denied Anderson’s request for a variance, resolved the

outstanding       PSR   objections       --    none   of    which      affected    the

advisory Guidelines range -- and sentenced Anderson to 75 months

of incarceration. This appeal followed.



                                           5
                                            II.

       Anderson first challenges the sufficiency of the evidence

supporting the jury’s guilty verdict on four of her eighteen

convictions for submitting false or fraudulent claims against

the United States. Although Anderson preserved her objection on

this    issue,    we     note    at   the    outset     that    the    standard       for

overturning a jury verdict is a very difficult one to meet: a

conviction will be reversed for insufficient evidence “only if

no   reasonable       jury    could   have       concluded   beyond    a    reasonable

doubt” that the defendant committed the charged crime. United

States v. Sayles, 296 F.3d 219, 223 n.1 (4th Cir. 2002). On the

other   hand,    if    “substantial       evidence”     --     that   is,    direct    or

circumstantial evidence “that a reasonable finder of fact could

accept as adequate and sufficient to support a conclusion of a

defendant’s      guilt       beyond   a   reasonable     doubt”       --    supports    a

verdict, it will be upheld. United States v. Burgos, 94 F.3d

849, 862 (4th Cir. 1996) (en banc); see also United States v.

Stewart, 256 F.3d 231, 249 (4th Cir. 2001). Put otherwise, only

when the prosecution’s failure to prove its case is “clear” will

the defendant prevail in challenging a jury’s guilty verdict.

Burks v. United States, 437 U.S. 1, 17 (1978).

       Anderson specifically attacks her convictions on Counts 3,

9, 15, and 19, four counts for which the government did not

present live witness testimony as to the fraudulent nature of

                                             6
the corresponding tax returns. Notwithstanding the jury’s guilty

verdict, Anderson asserts that she is entitled to a judgment of

acquittal because “there is a total absence of evidence” with

respect to the challenged counts. Appellant’s Reply Br. 3. But

her argument is unavailing because the prosecution did present

substantial evidence of her guilt, although that evidence was

not    in   the    form       of   direct    witness      testimony    about    the   four

specific returns related to those counts.

       It is well settled that the government is not required to

come    forward        with    any    particular         form   of   evidence   and    may

proffer direct or circumstantial evidence to make its case. See

Stewart, 256 F.3d at 249 (citing Glasser v. United States, 315

U.S. 60, 80 (1942)). Here, the prosecution presented significant

circumstantial evidence demonstrating that Anderson was guilty

on    Counts      3,   9,     15,    and    19,    and    we    therefore   affirm     her

convictions.

       The tax returns associated with the four challenged counts

were remarkably similar to those associated with the fourteen

other counts on which Anderson was also convicted. All eighteen

returns contained Anderson’s EFIN and PTIN -- indicating that

she or someone acting at her instruction prepared the returns --

and each return directed the IRS to deposit the refund due into

one of two accounts controlled by Anderson. As discussed above,

the    government         presented         direct     testimonial      evidence      that

                                               7
fourteen of these eighteen returns contained false information

and    were    filed    without   the    authorization      of    the   individuals

named therein, none of whom actually received the associated

refunds. That the four other returns contained the same EFIN,

PTIN, and bank account information as these fourteen is ample

circumstantial evidence from which a reasonable jury could have

concluded -- and, here, did conclude -- that Anderson was guilty

beyond a reasonable doubt on Counts 3, 9, 15, and 19.

        We need not resolve the question of precisely how many

returns would, in some other case, be necessary to establish

this    pattern    of    fraud.   Rather,     we    need   hold    only   that     the

pattern established by direct testimony concerning the fourteen

returns       unchallenged   on   appeal      was    sufficient    circumstantial

evidence to justify the jury’s conclusion that the four other

remarkably similar returns were also false or fraudulent. Faced

with the government’s evidence, Anderson offered no satisfactory

explanation to the jury as to why those remaining returns were

not fraudulent. She was, of course, under no obligation to offer

such an explanation, but her failure to do so raised the risk

that the jury would accept the government’s evidence. See United

States v. Echeverri-Jaramillo, 777 F.2d 933, 938 (4th Cir. 1985)

(quoting McGautha v. California, 402 U.S. 183, 215 (1971)).

       It   is   worth   noting   that    the      jury   acquitted     Anderson    on

Count 10, the only count for which the corresponding tax return

                                          8
directed the refund to a bank account not listed on any of the

eighteen other returns. The acquittal indicates that the jury

was   not   asleep     at    the    wheel         in    this    case      but    actually      did

consider whether the evidence presented by the prosecution -- to

wit, the testimonial evidence and the marked resemblances among

the eighteen tax returns -- established Anderson’s guilt on each

individual    count.        The    jury      was       convinced     by    the       inculpatory

evidence with respect to eighteen of the charged counts, but not

by the evidence with respect to Count 10. This outcome is not

altogether surprising given that the single return in Count 10

deviated     from     the     pattern        displayed          by   the    eighteen         other

returns. That the jury apparently recognized and reacted to a

deviation from the pattern only fortifies the conclusion that

the striking conformity to that pattern of the four convictions

at issue here provided a sound basis for the jury’s verdict.



                                             III.

      Next, Anderson challenges the district court’s application

of    a   two-level     sentencing           enhancement         pursuant        to    U.S.S.G.

§ 2B1.1(b)(2)(A)        for       the     number        of   victims       --    nineteen       --

involved    in   this       case.       As   an       initial    matter,        we    note    that

neither     Anderson        nor     her      attorney          objected     to       the     PSR’s

application of this enhancement. Therefore, our review is for

plain error.

                                                  9
       Under the plain-error standard, a defendant “must establish

that the district court erred, that the error was plain, and

that it affected [her] substantial rights.” United States v.

Robinson, 627 F.3d 941, 954 (4th Cir. 2010) (internal quotation

marks and alterations omitted) (citing United States v. Olano,

507 U.S. 725, 734 (1993)). And even if a defendant meets this

heavy   burden,     an    appellate      court     has       “discretion         whether    to

recognize     the   error,      and    should     not    do    so       unless    the   error

seriously affects the fairness, integrity or public reputation

of judicial proceedings.” United States v. Hargrove, 625 F.3d

170, 184 (4th Cir. 2010) (internal quotation marks omitted).

Here, the district court did not commit error -- much less plain

error -- and we therefore affirm its application of the number-

of-victims enhancement.

       Pursuant     to    U.S.S.G.      §   2B1.1(b)(2)(A),              a    defendant     is

subject to a two-level sentencing enhancement if convicted of a

theft    or   fraud      offense      involving        ten    or    more      victims.     The

commentary to § 2B1.1 generally defines the term “victim” as

“(A)    any   person     who    sustained        any    part       of   the    actual    loss

determined under subsection (b)(1); or (B) any individual who

sustained bodily injury as a result of the offense.” U.S.S.G.

§   2B1.1 cmt. n.1. However, if an offense “involve[s] means of

identification,”         that   definition        is    expanded        to    include     “any



                                            10
individual whose means of identification was used unlawfully or

without authority.” Id. cmt. n.4(E).

      Anderson does not dispute that her conviction brings her

within the scope of § 2B1.1(b)(2)(A) standing alone, given that

she   was    convicted         of    using        the       means      of      identification           of

eighteen different individuals to submit fraudulent tax returns.

See Appellant’s Br. 18. She argues, however, that the number-of-

victims      enhancement            does        not     apply       to      her        because        that

enhancement       is    based       on     a    “specific        offense          characteristic,”

U.S.S.G.      §    2B1.1(b)(1),            and        the    commentary             to    a    separate

Guidelines        provision         for    aggravated            identity         theft,       U.S.S.G.

§ 2B1.6 cmt. n.2, instructs a court to “not apply any specific

offense      characteristic           for        the    .    .    .      use      of     a     means    of

identification when determining the sentence for the underlying

offense” if the defendant is also being sentenced for aggravated

identity     theft      --     as    Anderson          was    here.         The     identity          theft

sentence, so Anderson’s argument goes, is meant to account for

the   unlawful         use     of    a     means       of    identification,                  such    that

application        of        the     expanded           definition             of        “victim”        in

§ 2B1.1(b)(2)(A)         would       “double           count”     the       use     of       the     stolen

identities for sentencing purposes. See Appellant’s Br. 18-19.

      We decline to embrace Anderson’s reasoning. Like all of our

sister      circuits      to       have        considered        the      issue,         we    conclude

instead that § 2B1.6 does not preclude a district court from

                                                  11
imposing a number-of-victims enhancement in conjunction with a

sentence for aggravated identity theft. See United States v.

Lyles, 2012 WL 5907483, at *5 (6th Cir. 2012) (unpublished);

United States v. Manatau, 647 F.3d 1048, 1057 n.4 (10th Cir.

2011); United States v. Yummi, 408 F. App’x 537, 541 (3d Cir.

2010) (unpublished); see also United States v. Jenkins-Watts,

574 F.3d 950, 961-62 (8th Cir. 2009).

      Comment    2     to     the       aggravated      identity      theft       Guidelines

provision instructs a district court to refrain from applying an

enhancement     only     if      it     is   triggered    by    a    “specific       offense

characteristic for the transfer, possession, or use of a means

of identification.” U.S.S.G. § 2B1.6 cmt. n.2. The most natural

reading of the comment limits its application to enhancements

linked   to    the   nature       of     the   offense,       such   as     the    two-level

enhancement     found       in      §    2B1.1(b)(11)(C)        that       applies      if   an

offense involved “the unauthorized transfer or use of any means

of   identification         unlawfully         to    produce   or    obtain       any    other

means     of       identification.”                 Applying        this      “means         of

identification”          enhancement            from      §     2B1.1(b)(11)(C)              in

conjunction with an aggravated identity theft sentence would, in

fact,    augment     a      defendant’s         sentence       twice       for    the    same

substantive conduct -- use of a means of identification. Thus,

per Comment 2, an enhancement under § 2B1.1(b)(11)(C) cannot be

imposed alongside a sentence for aggravated identity theft.

                                               12
       By contrast, the § 2B1.1(b)(2)(A) enhancement at issue here

looks only to the number of victims of the offense. That the

term “victim” is defined to include the individuals whose means

of    identification     were   used     in      the   crime    does     not    transform

§ 2B1.1(b)(2)(A) into an enhancement triggered by a “specific

offense characteristic for the transfer, possession, or use of a

means of identification.” As the Sixth Circuit has explained,

the number-of-victims enhancement “punishes the impact of the

crime,    not   the    transfer,      possession,       or     use    of   a     means   of

identification.” Lyles, 2012 WL 5907483, at *5. As such, the

instructions contained in Comment 2 do not bar the application

of that enhancement here.



                                         IV.

       Finally, Anderson challenges the fourteen-level sentencing

enhancement triggered by the PSR’s conclusion that her intended

loss was $437,822. As with the number-of-victims enhancement,

our review here is for plain error because neither Anderson nor

her    attorney   objected      to    the     PSR’s    calculation         of    the   loss

amount or to the district court’s subsequent application of the

corresponding          enhancement.           After          reviewing          Anderson’s

contentions,      we   find   no     plain    error     in    the    district     court’s

sentencing decision on this point.



                                            13
      Although       the    PSR    states     that      “[t]he      facts     of      the   case

revealed    the      actual    loss    amount         was   $437,822.00,”          J.A.     470,

Anderson contends that she is subject to an enhancement only for

the loss of $65,911 that was found by a jury, see Appellant’s

Br.   24-25.     However,      it     is    clear      that    a    district       court     may

consider    facts     not     found    by    a    jury      when    issuing       a    sentence

somewhere between the statutory minimum and maximum. See Harris

v. United States, 536 U.S. 545, 566 (2002). 1 Here, the district

judge     made   a   factual       finding       --    based       on   the   PSR      --   that

Anderson’s       intended     loss     amount         was     $437,822.       That     finding

triggered an enhancement but did not take Anderson’s sentence

beyond    the    statutory        maximum     for     her     offenses.       A    sentencing

judge must remain free to make run-of-the-mill factual findings

underlying       advisory     Guidelines         enhancements           without       eliciting

constitutional concerns. That is all the judge did here, and the

amount-of-loss enhancement was thus permissible.

      Anderson next complains that, even if the trial judge was

free to impose an enhancement based on facts not found by a

jury, the government failed to provide sufficient evidence to

      1
       Anderson asks us to vacate her sentence and remand the
matter in light of the Supreme Court’s grant of certiorari in
United States v. Alleyne, 457 F. App’x 348 (4th Cir. 2011)
(unpublished), cert. granted, 133 S. Ct. 420 (2012) (No. 11-
9335). However, Alleyne involves the application of mandatory
minimum sentences and is not relevant to the advisory Guidelines
enhancement dispute here.



                                             14
support the PSR’s loss calculation of $437,822. Appellant’s Br.

21.    But    we    must       reject   Anderson’s         contention            at     the   outset,

because      the     government         is    not     required         to    present          evidence

demonstrating the accuracy of facts in a PSR. See United States

v. Terry, 916 F.2d 157, 162 (4th Cir. 1990). When challenging a

PSR, a defendant “has an affirmative duty to make a showing that

the information in the [document] is unreliable, and articulate

the    reasons       why       the    facts     contained       therein           are    untrue       or

inaccurate.” Id. “Without an affirmative showing the information

is inaccurate, the court is ‘free to adopt the findings of the

[PSR]     without         more       specific       inquiry       or    explanation.’”               Id.

(quoting United States v. Mueller, 902 F.2d 336, 346 (5th Cir.

1990)). Here, Anderson failed to make an affirmative showing

that    the        loss    calculation          in     the     PSR      was       inaccurate          or

unreliable,         and    her       objection       to    that    calculation              now   must

therefore fail.

       Moreover,          Anderson’s          argument       misses         the       mark     for    a

separate      reason:          the   record     does      contain       unrebutted            evidence

supporting the PSR’s loss calculation. We note as an initial

matter that, for Guidelines sentencing purposes, loss amount is

not    limited       to    the       actual     loss      resulting         from      the      charged

conduct. Rather, the Guidelines indicate that the defendant’s

intended loss         is       the    relevant       figure    when         it    exceeds      actual

loss,    U.S.S.G.          §    2B1.1    cmt.        n.3(A),      and       both      charged        and

                                                 15
uncharged conduct may be considered, see U.S.S.G. § 1B1.3(a) &

cmt. background. Moreover, a sentencing court need not precisely

calculate        intended       loss,    as   the     Guidelines       require   only    “a

reasonable estimate of the loss.” U.S.S.G. § 2B1.1 cmt. n.3(C).

      At trial, the government introduced certain bank statements

from Anderson’s accounts at Brookland, but was not permitted to

introduce evidence that the Treasury deposited $333,403 worth of

tax   refunds      into     those   accounts        in   2008.    The    district     judge

ruled     that    the     government      could       introduce       evidence   of    loss

associated with only the nineteen counts charged in this case.

Thus, the jury was not permitted to review the $333,403 figure,

although it is referenced in the record. 2

      It is well settled, however, that the ordinary rules of

evidence do not apply in the sentencing phase of a criminal

proceeding.       See     18    U.S.C.    §   3661;      Fed.    R.   Evid.   1101(d)(3).

Thus, the fact that indications of the total loss amount were

not before the jury did not bar the PSR or the trial judge from

using such evidence to determine Anderson’s sentence. Of course,

in    the   absence        of     any    objection,        the    government     had     no


      2
       The record also indicates that the IRS was “actually able
to identify some of the refunds as fraudulent and stop them
before they went out.” J.A. 274. Therefore, it is unremarkable
that Anderson’s intended loss amount ($437,822) exceeds the
amount of fraudulent tax refund payments actually deposited into
her accounts ($333,403).



                                              16
obligation   to   affirmatively   establish   the   total     loss    amount

stated in the PSR in the first place. See Terry, 916 F.2d at

162.   However,   the   ample   evidentiary   support   for    that    loss

calculation only bolsters our conclusion that the district court

did not err -- much less commit plain error -- when it applied

the fourteen-level sentencing enhancement in this case.



                                   V.

       For the foregoing reasons, the judgment of the district

court is affirmed.

                                                                 AFFIRMED




                                   17
WYNN, Circuit Judge, dissenting:

       To prove a violation 18 U.S.C. § 287, the government bears

the    burden     of        establishing     “two    elements:        1)    making   or

presenting a claim to any agency of the United States 2) knowing

such   claim     to    be    false,   fictitious,        or   fraudulent.”      United

States v. Ewing, 957 F.2d 115, 119 (4th Cir. 1992).                        There is no

dispute    that       filing    a   tax    return    for      a   refund    constitutes

“presenting a claim” to the IRS.                 The key issue here is whether

the government presented sufficient evidence to show that each

of the tax returns in this matter supporting an individual count

under 18 U.S.C. § 287 was “false, fictitious, or fraudulent.”

       For the fourteen returns supporting Counts 1, 2, 4-8, 11-

14, and 16-18, the government presented not only the returns but

also the persons named on those returns, who testified that the

returns were unauthorized and or inaccurate.                          Accordingly, I

agree with the majority that the government met its burden of

proof under 18 U.S.C. § 287 as to those fourteen counts.

       As to Counts 3, 9, 15, and 19, however, the government

presented only the four returns.                    The government essentially

argued that because these naked returns looked just like the

fourteen returns clothed by witnesses’ testimonies, they were

dressed in the requisite criminality.                     The majority apparently

agreed, stating that the four naked returns were “remarkably

similar”    to    the       returns   clothed       by    witnesses’       testimonies.

                                            18
Supra   7.        But    the   only        similarities         between     the    naked   and

clothed returns—the tax preparer information (PTIN and EFIN) and

refund destination—show nothing inherently false or fraudulent

about the four naked returns.

       Moreover, the use of the PTIN and EFIN shows only that DL

Anderson     prepared      the       return,      not       that   this    preparation     was

unauthorized.           Similarly, the use of the routing number shows

only    that      the   refund       was    to     be    deposited        into    an   account

controlled         by     Anderson,          not        that       this    direction       was

unsanctioned.           Nor is it unlawful to direct a refund to a tax

preparer or another third party.                        Put simply, the tax preparer

information (PTIN and EFIN) and refund destination appear on all

returns filed by tax preparers.                       Indeed, based on this evidence,

the returns were just as likely honest and accurate as they were

fraudulent and false.

       Further, merely associating these naked returns with the

fourteen other returns was an insufficient basis for convicting

Anderson on Counts 3, 9, 15, and 19.                           A pattern of conduct may

be   used    to    connect       a    crime      to     a    particular     individual      or

establish intent.          Here, however, the pattern is not being used

to infer that it was Anderson who filed the four returns, but

that those returns were false in the first place—that there was,

in fact, a crime.           See United States v. Drape, 668 F.2d 22, 26

(1st Cir. 1982) (“Appellant’s signature on his [tax] return was

                                                 19
sufficient to establish knowledge once it had been shown that

the return was false.”) (emphasis added).                       Yet this cannot be,

as   “[t]he    first    presumption       is   that      a    defendant     is    innocent

unless and until the government proves beyond a reasonable doubt

each element of the offense charged.”                         Clark v. Arizona, 548

U.S. 735, 766 (2006).         Drawing this inference belies the bedrock

principle of criminal law that the government bears the burden

of proving each element of an offense.                       In re Winship, 397 U.S.

358,   364    (“[W]e    explicitly     hold       that    the    Due    Process     Clause

protects the accused against conviction except upon proof beyond

a reasonable doubt of every fact necessary to constitute the

crime with which he is charged.”).

       To be sure, the government need not have presented direct

witness testimony to demonstrate that the tax returns associated

with    Counts    3,    9,   15,    and      19    were       false    or   fraudulent;

nonetheless,       some      evidence        was      required         to   carry       the

government’s      burden      to     prove        this       element—and         none   was

presented.       Because the evidence at trial was insufficient for

any rational fact-finder to conclude beyond a reasonable doubt

that   these     four   naked      returns     were      false    or    fraudulent,      I

respectfully dissent.




                                          20
