           Case: 16-13627   Date Filed: 08/23/2017   Page: 1 of 13


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-13627
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 8:15-cr-00033-VMC-TBM-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

FRAZIER WILLIAMS, JR.,

                                                          Defendant-Appellant.

                       ________________________

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

                             (August 23, 2017)

Before HULL, WILSON and FAY, Circuit Judges.

PER CURIAM:
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       Frazier Williams, Jr. appeals his jury conviction and 36-month sentence for

one count of aiding, assisting, or procuring the preparation of a false tax return

under penalty of perjury. We affirm.

                                    I. BACKGROUND

       In 2006, Williams founded Aztech Energy Corporation (“Aztech”), intended

to be a manufacturer and wholesaler of biodiesel. On February 10, 2009, Aztech

filed its 2008 federal income tax return with the Internal Revenue Service (“IRS”)

and claimed a credit in the amount of $2,974,400 for the production, distribution,

or use of biofuels. 1 Six years later, a grand jury returned a one-count indictment

alleging that Williams willfully aided and assisted in, and procured, counseled, and

advised the preparation and presentation to the IRS of a false tax return on behalf

of Aztech for calendar year 2008, in violation of 26 U.S.C. § 7206(2).

       Prior to trial, Williams filed a motion in limine to exclude evidence relating

to purchases that were made after the tax refund allegedly was received by

Williams, his company, and/or his counsel. Williams stated that the refund money

had been deposited into a bank account; however, the government believed that

Williams and Sean Donnelly, the manager of Aztech and an attorney, had spent it.

Williams argued that any transactions relating to the tax refund were not relevant


1
  The IRS’s biofuel program was an incentive program, which gave companies tax credits for
developing alternative fuels. The rate varied depending on the amount of ethanol in the fuel, and
the credit took effect upon the sale of the fuel.
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to the charged crime; alternatively, he argued that if the evidence was relevant, its

probative value was substantially outweighed by the danger of unfair prejudice,

confusing the issues, or misleading the jury. The district court denied the motion

because it found that the evidence of spending was relevant and not unduly

prejudicial. The court indicated that it might reconsider the issue depending on the

evidence presented at trial.2

       At trial, Shirley Ball, an IRS court-witness coordinator, testified that she had

gathered and provided to the government certified copies of Aztech’s 2006, 2007,

and 2008 tax returns. The government admitted into evidence IRS documents

from 2006 to 2008. On one of the 2007 tax-return forms, Williams was listed as

Aztech’s shareholder. According to the 2008 paperwork, Williams was the contact

person for Aztech and he owned 100% of the stock. There was a credit for fuel tax

in the amount of $2,974,400; Aztech’s tax return requested a refund in that

amount. The 2008 tax return was filed electronically. While Form 8453-S

originally was not signed, there was a signed copy of the form that the IRS had

sent to Aztech once it realized that the first form was not signed. Ball testified that

the tax return was signed by Williams but the address was for Donnelly’s law firm.

Donnelly had written a letter stating that his firm, which represented Aztech, had


2
 Prior to impaneling the jury, Williams renewed his motion to exclude the evidence of his
purchases using the tax-return money. The district court denied the motion without prejudice
and offered to reconsider the evidence as it was admitted at trial.
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provided the IRS with forms and requested a tax refund. Ball testified that,

including interest, the IRS had paid Aztech $2,990,217.80.

       Three IRS agents—Cindy Ferwerda, Thara Maynor, and Robert Crockett—

testified that Williams admitted to preparing and filing Aztech’s 2007 and 2008 tax

returns. In early 2010, Agents Ferwerda and Maynor audited Aztech based on its

2008 tax return. Agent Ferwerda testified that Williams told her that Aztech had

not sold any alcohol/fuel mixture in 2008 because it was still in the research and

development stage. After reviewing Aztech’s records, Agent Ferwerda only found

sales invoices to support 18,033.35 gallons of biodiesel sold; Aztech had claimed

for a sale of 92,950 gallons. Additionally, Williams purchased 14,312 gallons of

methanol, which could have been used to produce 2,800,000 gallons, not the

claimed 4,647,500 gallons.

       Agent Maynor testified, for calendar year 2007, a refund for $809,595 had

been issued to Aztech and had been distributed to individuals in the company,

including to Williams and to Donnelly’s trust account. The 2008 refund was $2.9

million and about $1 million of that was controlled by Williams. He used

$185,000 to purchase an Aston Martin car and spent $78,038.60 at a jewelry store.3

       Frank Gnisci, an accountant, testified that Aztech hired him in 2009 to

prepare unaudited financial statements for a transaction they were planning. He

3
 When the government offered into evidence charts showing how Williams spent the tax-return
money, Williams did not object.
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spoke with Williams and Donnelly about preparing the 2008 tax return but he did

not deal with the tax credits. The taxes were done using a software program;

Gnisci believed that only Williams had the password.

       After the government rested,4 Williams moved for a judgment of acquittal

pursuant to Federal Rule of Criminal Procedure 29 and argued that the government

had not met its burden on every element of the crime. The district court denied his

motion, stating that the evidence was sufficient.

       Williams testified that he did not intentionally provide false information to

prepare Aztech’s 2008 tax return. While Williams had prepared Aztech’s 2006 tax

return, Donnelly became involved with Aztech near the end of 2007 and prepared

the 2007 tax return. In 2008, Williams began to make bio-gasoline and he turned

over the company finances to Donnelly. Donnelly was responsible for purchasing

ingredients and supplies and was aware of how much was being billed. Williams

testified that he had no role in preparing the 2008 tax return, he did not have the

password to the software, and he did not tell IRS agents that he had prepared the

2007 and 2008 tax returns. He did, however, sign the 2007 and 2008 tax returns

under penalty of perjury. In early 2008, Aztech stopped operations for about nine

months. Williams signed and certified, under penalty of perjury, that Aztech had

produced 4,832,500 gallons of biofuel in 2008 and requested a tax credit of

4
  The government also presented the testimony of several other witnesses regarding Aztech’s
inability to pay debts and its inability to have produced the claimed biodiesel.
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$2,974,400. He stated he had not seen that tax return until the audit several years

later but he had signed it because Donnelly told him it was true. When asked how

he believed Aztech could have received such a large tax refund after being shut

down for nine months, Williams said that Donnelly had found an investor and he

thought the $940,000 deposit into his account was from the investor.

      At the conclusion of the trial, Williams renewed his motion for judgment of

acquittal; the court denied it for the same reason as before. The jury found

Williams guilty. Williams filed a motion for new trial based on newly discovered

evidence. Williams argued that (1) a deposition of Gnisci in a state civil suit

revealed that he refused to answer a question about his involvement with the 2008

tax return and asserted his Fifth Amendment right; (2) for the civil case, Gnisci

submitted “billing statements” for work done on the 2008 tax return, despite

claiming at trial that he did not work on the return; and (3) Donnelly “most

probably” used a software scrubbing program to delete over 11,000 relevant files

from a computer server immediately before the state civil court’s appointed

computer forensic examiner performed a forensic examination ordered by the state

judge. R. at 563. The district court denied the motion because there was other

“substantial evidence” of Williams’ guilt and the newly discovered evidence was

impeachment evidence only. R. at 1656. The court stated the most important

evidence had been the documents and Williams’ own words, not other testimony.


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      The district court adopted the presentence investigation report that had

determined the total offense level was 28; the criminal history category was I; the

statutory maximum term was 3 years of imprisonment; and the guideline

imprisonment range was originally 78 to 97 months, but it was reduced to 36

months because of the statutory maximum term. In mitigation, Williams argued

that he had the support of his family, his family needed him, he had little criminal

history, and he had been abused as a child. The court stated, “I agree with you, he

had just a real rough childhood,” but noted that millions of dollars had been lost in

the crime. R. at 1682. The court sentenced him to 36 months of imprisonment, 1

year of supervised release, and $2,974,400 in restitution to the United States.

      On appeal, Williams argues the district court committed plain error in

admitting evidence of purchases made after issuance of the tax return, erred in

denying his motion for judgement of acquittal, abused its discretion in denying his

motion for a new trial, and abused its discretion in sentencing him to 36 months of

imprisonment.

                                 II. DISCUSSION

A. Admissibility of Williams’ Purchases

      The district court has broad discretion to determine the admissibility of

evidence; we will not disturb the district court’s judgment absent a clear abuse of

discretion. United States v. McLean, 138 F.3d 1398, 1403 (11th Cir. 1998).


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However, when a defendant fails to preserve or renew during trial his objection to

the denial of a motion in limine, we review for plain error. United States v. Brown,

665 F.3d 1239, 1247 (11th Cir. 2011). To establish plain error, the defendant must

show (1) there was an error; (2) that was plain or obvious; and (3) affected his

substantial rights in that it was prejudicial and not harmless. Id. at 1247 n.3.

      Evidence is relevant if it has any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence. Fed. R. Evid. 401. The district

court may exclude evidence if its probative value is substantially outweighed by

the danger of unfair prejudice. Fed. R. Evid. 403. “Use of a defendant’s wealth to

appeal to class bias can be highly improper and can deprive that defendant of a fair

trial. But evidence of wealth or extravagant spending may be admissible when

relevant to issues in the case and where other evidence supports a finding of guilt.”

United States v. Bradley, 644 F.3d 1213, 1271 (11th Cir. 2011) (internal quotation

marks and citation omitted). “Motive is always relevant in a criminal case, even if

it is not an element of the crime.” United States v. Hill, 643 F.3d 807, 843 (11th

Cir. 2011) (alteration omitted) (quoting United States v. Sriyuth, 98 F.3d 739, 747

n.12 (3d Cir. 1996)).

      Here, we review for plain error because Williams failed to renew his

objection during trial. See Brown, 665 F.3d at 1247. Because the evidence at trial


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showed that Aztech had shut down for a large portion of 2008, Williams’ use of

the tax-return money to make purchases was relevant to show his motive in filing

the false return. See Hill, 643 F.3d at 843. Furthermore, the probative effect, in

showing either motive or intent, was not outweighed by the prejudicial effect of

letting the jury know about his spending. See Fed. R. Evid. 403; Bradley, 644 F.3d

at 1271. The court therefore did not commit error, under plain error review, in

admitting evidence of Williams’ purchases. See Brown, 665 F.3d at 1247.

Viewing the evidence in the light most favorable to admission,5 it was relevant to

prove Williams’ knowledge and motive. See Fed. R. Evid. 401.

B. Sufficiency of the Evidence

       We review de novo whether the evidence was sufficient to sustain a criminal

conviction, viewing the evidence in the light most favorable to the government,

and drawing all reasonable factual inferences in favor of the jury’s verdict. United

States v. Jiminez, 564 F.3d 1280, 1284 (11th Cir. 2009). The evidence will be

sufficient if a reasonable trier of fact could determine that it established the

defendant’s guilt beyond a reasonable doubt. Id. at 1284-85. Accordingly, it is not

enough for a defendant to put forth a reasonable hypothesis of innocence, as the

issue is not whether a jury reasonably could have acquitted but whether it


5
 See United States v. Bradberry, 466 F.3d 1249, 1253 (11th Cir. 2006) (“In evaluating the
district court’s ruling under Rule 403, we view the evidence in the light most favorable to
admission, maximizing its probative value and minimizing its undue prejudicial impact.”).
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reasonably could have found the defendant guilty. Id. at 1285. In conducting

sufficiency review, we will not revisit the question of witness credibility unless the

testimony is “incredible as a matter of law.” United States v. Chastain, 198 F.3d

1338, 1351 (11th Cir. 1999). When a defendant chooses to testify, he runs the risk

that, if disbelieved, the jury might conclude the opposite of his testimony is true,

and his false testimony may be considered as substantive evidence of his guilt.

United States v. Vazquez, 53 F.3d 1216, 1225-26 (11th Cir. 1995).

      To prove a violation of 26 U.S.C. § 7206, the government had to prove that

Williams (1) willfully and knowingly aided or assisted (2) in the preparation or

filing of a federal income tax return (3) that contained material statements that the

defendant knew to be false. 26 U.S.C. § 7206(2). The government’s evidence at

trial, in the form of testimony and IRS documents, was sufficient for a reasonable

jury to determine beyond a reasonable doubt that Williams willfully and knowingly

aided or assisted in the preparation or filing of Aztech’s 2008 federal income tax

return that contained material statements about biofuel credits that he knew to be

false. See 26 U.S.C. § 7206(2); Jiminez, 564 F.3d at 1284-85. It was not enough

for Williams to present his hypothesis of innocence—that his coworkers used him

to file the tax return themselves and lied to him about it—as the issue is not

whether the jury reasonably could have acquitted but whether it reasonably could

have found Williams guilty. See Jiminez, 564 F.3d at 1285.


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      Williams’ testimony itself is also substantive evidence of his guilt, as the

jury was entitled to conclude that the opposite of his testimony was true. See

Vazquez, 53 F.3d at 1226. Additionally, as the trial testimony did not appear to be

“incredible as a matter of law,” we will not evaluate the jury’s credibility

determinations about the IRS agents, Williams, and other witnesses. See Chastain,

198 F.3d at 1351. Accordingly, the district court did not err in denying the motion

for judgment of acquittal. See Jiminez, 564 F.3d at 1284.

C. Motion for New Trial

      We review for an abuse of discretion the district court’s denial of a motion

for new trial. United States v. Garcia, 13 F.3d 1464, 1472 (11th Cir. 1994). The

defendant bears the burden of justifying a new trial. United States v. Campa, 459

F.3d 1121, 1151 (11th Cir. 2006) (en banc).

      To succeed on a motion for new trial based on newly discovered
      evidence, the movant must establish that (1) the evidence was
      discovered after trial, (2) the failure of the defendant to discover the
      evidence was not due to a lack of due diligence, (3) the evidence is
      not merely cumulative or impeaching, (4) the evidence is material to
      issues before the court, and (5) the evidence is such that a new trial
      would probably produce a different result.

United States v. Jernigan, 341 F.3d 1273, 1287 (11th Cir. 2003) (quoting United

States v. Ramos, 179 F.3d 1333, 1336 n.1 (11th Cir. 1999)).

      Even assuming all of the evidence was discovered after trial, the district

court did not abuse its discretion in denying the motion because the evidence was


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impeachment evidence and it was unlikely to produce a different result in a new

trial. See Garcia, 13 F.3d at 1472. As to the deleted files, even if a witness did

delete them, there is no indication that they would have been exculpatory and

produce a different result at trial because there is nothing showing what was in

those files. See Jernigan, 341 F.3d at 1287. Another witness’s refusal to answer

questions at the civil deposition and billing statements that contradicted Williams’

criminal trial testimony are impeachment evidence because they go to credibility

and are not direct evidence of guilt. See id. Furthermore, none of the evidence

necessarily would produce a new result at trial, in light of the testimony of the IRS

agents and the documentary evidence showing that Williams signed the tax return

knowing it to be false. See id. Accordingly, Williams did not meet his burden to

justify a new trial. See Campa, 459 F.3d at 1151.

D. Williams’ Sentence

      We review the reasonableness of a sentence under a deferential

abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct.

586, 597 (2007). The party who challenges the sentence bears the burden to show

that the sentence is unreasonable given the seven 18 U.S.C. § 3553(a) factors and

the record. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). On

substantive-reasonableness review, we may vacate the sentence only if we are left

with the definite and firm conviction that the district court committed a clear error


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of judgment in weighing the § 3553(a) factors to arrive at an unreasonable sentence

based on the facts of the case. United States v. Irey, 612 F.3d 1160, 1190 (11th

Cir. 2010) (en banc). The district court must issue a sentence sufficient, but not

greater than necessary to comply with the purposes of § 3553(a)(2), which include

the need for a sentence to reflect the seriousness of the offense, promote respect for

the law, provide just punishment, deter criminal conduct, and protect the public

from future criminal conduct. 18 U.S.C. § 3553(a). The weight given to any

§ 3553(a) factor is a matter committed to the discretion of the district court.

United States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008).

      Here, the district court did not abuse its discretion in imposing the 36-month

sentence in light of the § 3553(a) factors, namely, the need for the sentence to

reflect the seriousness of the offense, provide just punishment, deter criminal

conduct, and protect the public from future criminal conduct. See 18 U.S.C.

§ 3553(a); Gall, 552 U.S. at 51, 128 S. Ct. at 597. The court stated at the

sentencing hearing that it considered the mitigating evidence, but gave more

weight to the seriousness of the offense, namely, the high amount of loss. See

Williams, 526 F.3d at 1322. Accordingly, the district court did not commit a clear

error of judgment in weighing the § 3553(a) factors to arrive at the sentence based

on the facts of the case. See Irey, 612 F.3d at 1190.

      AFFIRMED.


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