                                                          NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              _____________

                                   No. 13-4475
                                  _____________

                        UNITED STATES OF AMERICA

                                         v.

                               THOMAS D. TUKA,

                                        Appellant
                                  _____________

                On Appeal from the United States District Court
                     for the Western District of Pennsylvania
                       District Court No. 2-11-cr-00134-001
               District Judge: The Honorable Terrence F. McVerry

                Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 May 19, 2016

         Before: SMITH, HARDIMAN, and SHWARTZ, Circuit Judges

                               (Filed: June 14, 2016)
                             _____________________

                                    OPINION
                             _____________________

SMITH, Circuit Judge.

      In this appeal, Defendant-Appellant Thomas Tuka challenges his convictions



 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
and subsequent sentencing for multiple counts of tax evasion, in violation of 26

U.S.C. § 7201, and multiple counts of willful failure to file tax returns, in violation

of 26 U.S.C. § 7203. For the reasons stated below, we will affirm.

                                           I.

      Though Tuka denies it, he is – by all accounts – a tax protestor.

Nevertheless, he apparently was not always a tax protestor; he filed tax returns and

paid any taxes due as required by law for at least the several years preceding the

events underlying his convictions. After Tuka became disabled and was unable to

perform his duties as a commercial airline pilot for U.S. Airways in 1996, he began

receiving disability benefits under the U.S. Air Pilot Disability Plan. Because U.S.

Airways treated the disability benefits as taxable income, the plan administrator

withheld taxes from these payments pursuant to Tuka’s then-current Form W-4. In

1996, Tuka filed a tax return.

      Beginning in 1997, Tuka became convinced that federal taxes were

“unconstitutional,” and instructed the plan administrator, from that point forward,

to cease withholding taxes from his disability payments. Around this time, and

through at least 2010, Tuka also began expressing his view that taxes were

unconstitutional to numerous individuals.

      Then, in 1998, after learning of a provision in the tax code allowing

taxpayers to file amended returns for past years, Tuka asked his tax advisor at

                                           2
H&R Block to help him fill out amended returns for tax years 1996 and 1997. He

did so in order to try to recover the taxes paid on his disability benefits for those

years. After some urging by Tuka, the tax advisor agreed to prepare the amended

returns along with a statement requesting a ruling from the Internal Revenue

Service on whether Tuka’s disability benefits were taxable income. Shortly after

Tuka submitted these documents, the IRS sent Tuka a check for roughly $14,000

as a partial refund of his tax liability for 1996; the IRS did not issue any refund for

1997.

        When Tuka filed a return for tax year 1999, he omitted his disability benefits

from his calculation of taxable income, leading the IRS to issue to Tuka a notice of

deficiency. Tuka challenged this notice in the United States Tax Court, arguing

that his disability benefits were tax-exempt. In a January 2003 written opinion the

Tax Court ruled against Tuka, concluding that his disability benefits were indeed

taxable income. This Court summarily affirmed. See Tuka v. Comm’r of Internal

Revenue, 120 T.C. 1, aff’d 85 F. App’x 875 (3d Cir. 2003).

        Beginning with tax year 2000, Tuka ceased submitting tax returns

altogether, including for the years after he lost the above-referenced Tax Court

case and appeal. He also left in place his instructions to the plan administrator to

not withhold taxes from his disability benefits, and, in 2005, when a different

company assumed responsibility for administering the plan, he sent the new

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administrator written instructions to the same effect. At all times relevant to this

appeal the plan administrators complied with Tuka’s instructions.

      A grand jury indicted Tuka on four counts of felony tax evasion (one for

each tax year between 2003 and 2006) and three counts of misdemeanor willful

failure to file a return (one for each tax year between 2006 and 2008). Following

trial in January 2013, a jury convicted Tuka on all counts. At sentencing, the

District Court increased Tuka’s Sentencing Guidelines range under U.S.S.G.

§ 3C1.1 after finding that Tuka willfully attempted to obstruct justice by perjuring

himself at trial. The court then sentenced Tuka to thirty months in prison followed

by three years of supervised release. This timely appeal followed.1

                                        II.

      On appeal, Tuka raises two claims for our review. First, he claims that the

government presented insufficient evidence at trial to sustain the jury’s verdict on

any of his tax evasion and failure-to-file charges. Second, he argues that the

District Court erred in applying the sentencing enhancement for perjury under

U.S.S.G. § 3C1.1. We will address each argument in turn.

                                        A.

      When reviewing the sufficiency of the evidence to sustain a conviction,

1
  The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a).
                                         4
“[w]e review the evidence in the light most favorable to the government.” United

States v. McKee, 506 F.3d 225, 232 (3d Cir. 2007). We will overturn a conviction

for insufficient evidence only if no rational trier of fact could have found the

defendant guilty beyond a reasonable doubt based on the evidence adduced at trial.

Id.

       In order to sustain Tuka’s convictions for tax evasion under 26 U.S.C.

§ 7201, the government was required to prove three elements with respect to each

of the tax years in question: “1) the existence of a tax deficiency, 2) an affirmative

act constituting an attempt to evade or defeat payment of the tax, and

3) willfulness.” United States v. Farnsworth, 456 F.3d 394, 401 (3d Cir. 2006)

(internal quotation marks and citation omitted). Similarly, to convict Tuka for

willful failure to file a tax return under 26 U.S.C. § 7203, the government had to

prove, for each of the tax years in question, that: (1) Tuka was required to file a tax

return, (2) he failed to do so, and (3) his failure was willful. McKee, 506 F.3d at

244.

       Tuka concedes the first element as to each of his tax evasion convictions

(i.e., that he owed taxes for each of the years in question), as well as the first two

elements of his failure-to-file convictions (i.e., that he was required, and that he

failed, to file a tax return), but claims that the government presented insufficient

evidence that he willfully took affirmative steps to evade payment, and that his

                                          5
failure to submit returns was willful. Tuka is wrong on all accounts.

      “The definition of willfulness is the same under both felony (§ 7201) and

misdemeanor (§ 7203) tax charges. . . . In both cases, willfulness may be inferred

from a pattern of conduct, the likely effect of which would be to mislead or to

conceal.” United States v. McGill, 964 F.2d 222, 237 (3d Cir. 1992) (internal

quotation marks and citations omitted).       Furthermore, because “[e]vidence of

affirmative acts may be used to show willfulness, and the defendant must commit

the affirmative acts willfully to be convicted of tax evasion,” we have noted that

the willfulness and affirmative-act elements of tax evasion are “closely connected.”

Id. at 237-38 (internal quotation marks and citation omitted).

      The government at trial presented more than enough evidence by which a

rational trier of fact could have concluded that, for each of the years in question,

Tuka willfully engaged in at least one overt act in an attempt to evade payment of

taxes and that he willfully failed to file tax returns. We agree with the government

that by affirmatively instructing the plan administrators to not withhold any taxes

from his disability benefits and failing to rescind these instructions for each of the

years in question, Tuka committed an overt act intended to evade the payment of

taxes. Cf. United States v. Connor, 898 F.2d 942, 945 (3d Cir. 1990). Coupled

with Tuka’s knowledge of this Court’s decision in 2003 affirming the Tax Court’s

determination that his disability benefits received in 1999 were taxable, a rational

                                          6
juror could certainly conclude that Tuka knew he had a legal duty to file a return

and to pay taxes for each of the years in question.

      To counter the government’s evidence, Tuka relies heavily on the fact that

the IRS issued him a refund of his 1996 taxes after he filed an amended return

along with a request for a ruling on the taxability of his disability benefits. Tuka

argues now (as he did before the jury) that the refund constituted a ruling in his

favor, and therefore that he had a good-faith belief that he was not required to pay

taxes on his disability benefits. Obviously, the jury did not believe him, nor was it

required to. After this Court in 2003 affirmed the Tax Court’s decision that Tuka’s

disability benefits were taxable, any subjective belief that Tuka’s disability benefits

were not taxable became objectively unreasonable. And while an honestly held

belief, regardless of its reasonableness, will still negate the element of willfulness

in a tax prosecution such as this, the jury was free to infer from this

unreasonableness that Tuka did not actually hold such a belief. Cheek v. United

States, 498 U.S. 192, 203-04 (1991) (“[T]he more unreasonable the asserted beliefs

or misunderstandings are, the more likely the jury will consider them to be nothing

more than simple disagreement with known legal duties imposed by the tax laws

and will find that the Government has carried its burden of proving knowledge.”).

      Thus, we will uphold Tuka’s convictions under 26 U.S.C. §§ 7201 and 7203.

                                          B.

                                          7
      Tuka next contends that the District Court erred by increasing his offense

level under the Guidelines by two levels for obstruction of justice under U.S.S.G.

§ 3C1.1. We review for clear error the District Court’s factual finding of willful

obstruction of justice. United States v. Powell, 113 F.3d 464, 467 (3d Cir. 1997).

      Perjury is one form of obstruction of justice. See U.S.S.G. § 3C1.1 cmt.

n.4(B).     A defendant qualifies for the perjury enhancement by giving “false

testimony concerning a material matter with the willful intent to provide false

testimony . . . .” United States v. Dunnigan, 507 U.S. 87, 94 (1993). In assessing

whether Tuka’s testimony at trial satisfied the elements of perjury, the District

Court was required “to accept the facts necessarily implicit in the verdict.” United

States v. Boggi, 74 F.3d 470, 478-79 (3d Cir. 1996) (internal quotation marks and

citation omitted). And while “it is preferable for a district court to address each

element of the alleged perjury in a separate and clear finding, express separate

findings are not required.”    Id. at 479 (internal quotation marks and citation

omitted).

      One fact “necessarily implicit” in the jury’s verdict is that Tuka did not have

a good-faith belief that his disability benefits were not taxable, for if he did have

such a belief, the jury would not have convicted him. Thus, his testimony asserting

such a good-faith belief must have been false and material. Cf. id. (concluding that

the defendant’s testimony at trial “was necessarily material” because the jury

                                         8
would not have convicted him if it had believed the testimony). In explaining why

it was applying the enhancement, the District Court stated, “I’m disappointed in

you, Mr. Tuka, to have testified in the fashion that you did . . . . I agree[ ] with

th[e] finding [that you were not truthful].” App. 597. Though the court could have

more clearly enunciated its findings as to each individual element, these statements

sufficiently indicated that it thought Tuka’s testimony satisfied these elements.

Thus, the court did not commit error, clear or otherwise, in applying the

enhancement under § 3C1.1.

                                          III.

         For the reasons stated above, we will affirm the judgment of the District

Court.




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