                              In the

United States Court of Appeals
               For the Seventh Circuit

Nos. 07-1129, 07-1610, & 07-1712

U NITED S TATES OF A MERICA,
                                                    Plaintiff-Appellee,
                                                     Cross-Appellant,
                                  v.



R ONALD J. P RESBITERO ,
                                               Defendant-Appellant,
                                                    Cross-Appellee,
                                 and


JOE J. V ELASQUEZ,
                                                           Defendant,
                                                       Cross-Appellee.


            Appeals from the United States District Court
        for the Northern District of Illinois, Eastern Division.
              No. 03 CR 786—Joan B. Gottschall, Judge.



     A RGUED F EBRUARY 28, 2008—D ECIDED JUNE 24, 2009




  Before R OVNER, W OOD , and W ILLIAMS, Circuit Judges.
  W ILLIAMS, Circuit Judge. A jury heard abundant
evidence that although Presbitero Drywall Company’s
2                         Nos. 07-1129, 07-1610, & 07-1712

tax returns contained deductions for payments to sub-
contractors, the subcontractors did not exist. The jury
also heard that the company’s owner, Ronald Presbitero,
and construction superintendent, Joe Velasquez, went to
great lengths to perpetuate the fiction, even having
checks made out to the non-existent subcontractors that
were cashed every week. Because we conclude a
rational jury could have concluded that one reason
both Presbitero and Velasquez attempted to make up
the subcontractors was to impede the functions of the
Internal Revenue Service, we uphold Presbitero’s con-
viction for filing false tax returns and reverse the judg-
ment of acquittal granted to Velasquez for conspiring to
defraud the United States. The district court denied the
government’s request for a leadership enhancement for
Presbitero based on its decision to acquit Velasquez, which
we are reversing, so we remand Presbitero’s case for
resentencing.


                   I. BACKGROUND
  Ronald Presbitero was the namesake, president, and
sole owner of Presbitero Drywall Company (“PDC”). As
the name suggests, PDC was in the business of installing
drywall. Joe Velasquez worked as PDC’s construction
superintendent. At trial, a jury heard that Presbitero
signed PDC’s corporate tax returns from 1995 through
1998. On each return, the company claimed tax deduc-
tions on schedule A, line 5 totaling approximately
$5.9 million. James Hughes, the company’s accountant,
testified that he calculated the deductions by adding the
Nos. 07-1129, 07-1610, & 07-1712                           3

amounts of canceled checks made out from PDC to six
subcontractors.
   The government maintained at trial that the six sub-
contractors did not exist. The six entities were all incorpo-
rated on the same day. None ever filed a tax return of
any sort with the IRS, none paid its annual tax with the
Illinois Secretary of State, and the six corporations had
all been dissolved (by operation of Illinois statute for
failure to pay tax and file an annual report) before PDC
issued any checks to them. Residents at several of the
entities’ listed business addresses also testified that no
drywall businesses operated from the listed addresses. In
addition, two foremen who worked for PDC during the
relevant time said they had not seen subcontractors at
job sites during their tenure and that they were not
aware of the existence of the six subcontractors. The
foremen also testified that drywall work was seasonal,
with less work in the winter. IRS Special Agent Helene
Seltzer testified that the hundreds of checks made out
from PDC to the six subcontractors showed no seasonal
fluctuation. The jury also heard that Presbitero ordered
blank invoice forms for invoices from the six subcon-
tractors and asked that each invoice look “different.” The
forms company delivered the blank invoices not to any
subcontractors, but to PDC.
  Velasquez was in charge of hiring, managing, and
assigning PDC’s drywall installers. Each week, for
several years, Velasquez and others told Presbitero’s
assistant the number of hours subcontractors had pur-
portedly worked that week. The assistant then prepared
4                        Nos. 07-1129, 07-1610, & 07-1712

checks and gave them to Presbitero, who signed them.
She also prepared invoices from the six subcontractors
to PDC, but the invoices were never mailed anywhere.
Nor did she recall ever receiving a piece of mail, tele-
phone call, or visit from a subcontractor.
  Instead of mailing checks to the subcontractors,
Velasquez or his sister, father, or one of his children
would pick up the checks from Presbitero’s assistant.
Velasquez had made arrangements with Leonard Sklare
whereby Sklare agreed to cash the checks at his currency
exchanges every week or two in exchange for a fee of
$50,000. Before the checks were taken to one of Sklare’s
currency exchanges each week, Velasquez often called
ahead to tell Sklare the total value of the checks to be
cashed to ensure Sklare had enough cash on hand.
Velasquez also often took the checks himself to be
cashed. The checks were cashed for tens of thousands
of dollars at a time.
  Presbitero delivered the canceled checks to Hughes, his
accountant, so they could be used to prepare the com-
pany’s financial statements and tax returns. On PDC’s
2007 tax return, the company reported “other costs” on
schedule A, line 5 of Form 1120 as $2,577,546. That num-
ber principally came from the checks made out to the
six subcontractors the government maintained were
fictitious. On the company’s 2008 tax return, line 5 for
“other costs” was reported as $1,540,370, and a sup-
porting schedule reported that of that amount, costs
for “sub-contractors” were $1,478,121. In addition to
explaining how he prepared PDC’s tax returns, Hughes
Nos. 07-1129, 07-1610, & 07-1712                        5

also explained that when PDC paid its employees, he
would complete payroll tax forms containing amounts
withheld from employees. He stated that such reporting
did not apply to the employees of a subcontractor
because the subcontractor was responsible for those
payments.
  An indictment charged Presbitero and Velasquez with
conspiring to defraud the United States by impeding,
impairing, and obstructing the lawful functions of the
Internal Revenue Service in the correct determination
and collection of revenue and income taxes, in violation
of 18 U.S.C. § 371. The indictment also charged
Presbitero with two counts of making false tax returns
on behalf of PDC, in violation of 26 U.S.C. § 7206(1).
  The jury convicted on all counts, returning a guilty
verdict against both defendants on the conspiracy count
and against Presbitero on the other counts. The district
court later granted the defendants’ request for a judg-
ment of acquittal on the conspiracy count on the basis
that Velasquez lacked the intent to defraud the IRS.
Because a conspiracy conviction requires an agree-
ment between at least two persons, Presbitero’s con-
spiracy conviction fell as well. The district court denied
Presbitero’s request for a mistrial on the other two
counts. After calculating the advisory guidelines range
of imprisonment as 51 to 63 months, the district court
sentenced him to 24 months’ imprisonment, two years’
supervised release, a fine of $50,000, and 100 hours of
community service. Presbitero appeals, and the govern-
ment brings a cross appeal.
6                            Nos. 07-1129, 07-1610, & 07-1712



                       II. ANALYSIS
  Presbitero raises several challenges to his convictions
for filing false corporate tax returns. In a cross appeal,
the government appeals the district court’s grant of
Velasquez’s motion for judgment of acquittal as well
as Presbitero’s sentence. We address each argument
in turn.


    A. Presbitero’s Appeal
  Presbitero appeals his conviction for willfully filing
materially false corporate tax returns in violation of
26 U.S.C. § 7206(1). Pursuant to this section, it is a felony to
     Willfully make[] and subscribe[] any return, state-
     ment, or other document, which contains or is
     verified by a written declaration that is made
     under the penalties of perjury, and which he
     does not believe to be true and correct as to
     every material matter.


       1.   Constructive Amendment of the Indictment
  Presbitero first argues there was an impermissible
constructive amendment of the indictment, which occurs
when the permissible bases for conviction are broadened
beyond those presented to the grand jury. See United
States v. Blanchard, 542 F.3d 1133, 1143 (7th Cir. 2008);
see also Stirone v. United States, 361 U.S. 212, 216-19 (1960).
“[T]he allegations in the indictment and the proof at trial
Nos. 07-1129, 07-1610, & 07-1712                           7

must match in order ‘to insure that the defendant is not
subject to a second prosecution, and to give the defendant
reasonable notice so that he may prepare a defense.’ ”
Blanchard, 542 F.3d at 1143 (citations omitted). Presbitero
takes exception to the government’s argument at trial that
he willfully filed false tax returns by including amounts
attributable to fictitious subcontractors—a theory, he
argues, not charged in the indictment.
  We begin with our standard of review. The govern-
ment maintains that Presbitero failed to raise a timely
objection in the trial court on the constructive amend-
ment of the indictment grounds he now raises, and that
our review on this point should, therefore, be for plain
error only. See United States v. Khilchenko, 324 F.3d 917,
920 (7th Cir. 2003). We agree. First, Presbitero’s counsel
did not make a constructive amendment of the indict-
ment objection during the jury instruction conference, as
he contends. During the discussion of a proposed in-
struction, Presbitero’s counsel took issue with the fact
that although the indictment alleged that multiple lines
on the tax return were false, the government argued it
only had to prove, for each count, that one of the lines
alleged was false. There was no mention of a construc-
tive amendment to the indictment. And there was also
no mention of the complaint Presbitero now makes—that
the government argued at trial that the subcontractors
were fictitious. Presbitero’s objections at the jury instruc-
tion conference did not preserve his constructive amend-
ment argument.
 Presbitero did raise a constructive amendment argu-
ment in a post-trial motion, but it did not preserve his
8                          Nos. 07-1129, 07-1610, & 07-1712

current argument either. The argument in his post-trial
motion addressed an entirely different theory, one
alleging that a witness’s testimony before the grand jury
differed from that given at trial, and it also came too late.
See United States v. Hughes, 213 F.3d 323, 328 n.7 (7th Cir.
2000), vacated on other grounds, 531 U.S. 975 (2000). So, our
review is only for plain error.
  Plain error review means that we will reverse only if
there was an error, that was plain, that affected the defen-
dant’s substantial rights, and that affected the fairness,
integrity, or public reputation of the judicial proceed-
ings. United States v. Folks, 236 F.3d 384, 390 (7th Cir.
2001). When the argument is that a constructive amend-
ment of the indictment occurred, plain error occurs if the
amendment constitutes a mistake so serious that the
defendant probably would have been acquitted had there
not been a mistake. United States v. Ackley, 296 F.3d 603,
606 (7th Cir. 2002).
  There was no plain error warranting reversal here. The
indictment’s second and third counts are the relevant
ones. Count Two charged that with respect to the PDC
tax return for the fiscal year ending April 30, 1997:
    defendant PRESBITERO falsely represented and
    caused to be represented on line 2 and on Schedule
    A, line 8, of said Form 1120 that the “cost of goods
    sold” for Presbitero Drywall, Inc., was $5,415,290;
    and falsely represented and caused to be repre-
    sented on Schedule A, line 5, and on said Form
    1120 that “other costs” were $2,577,546. In fact, as
    PRESBITERO then and there well knew and be-
Nos. 07-1129, 07-1610, & 07-1712                         9

   lieved, the “cost of goods sold” and “other costs”
   were less than the sums reported.
Count Three alleges, regarding the fiscal year ending
April 30, 1998 tax return:
   that defendant PRESBITERO falsely represented
   and caused to be represented on line 2 and on
   Schedule A, line 8 of said Form 1120 that the “cost
   of goods sold” for Presbitero Drywall, Inc. was
   $3,918,803; falsely represented and caused to be
   represented that on Schedule A, line 5, and on said
   Form 1120 that “other costs” were $1,540,370; and
   falsely represented and caused to be represented
   on a supporting schedule that costs for “sub-con-
   tractors” were $1,478,121. In fact, as PRESBITERO
   then and there well knew and believed, the “cost of
   goods sold”, “other costs”, and costs for “sub-
   contractors” of Presbitero Drywall, Inc., were
   amounts less than the amounts reported.
As Presbitero emphasizes, Counts Two and Three
did not explicitly allege that the tax returns were false
because the subcontractors did not exist.
  That does not mean, however, that a constructive amend-
ment occurred when the government contended at trial
that the subcontractors were fictitious. The government
argued the subcontractors did not exist in support of the
indictment’s allegation that the deductions on line 5 of
schedule A were too high. PDC’s accountant testified
that he prepared the deductions that appeared on line 5
based on the sums of the hundreds of checks made out
to the six subcontractors, and the returns’ supporting
10                           Nos. 07-1129, 07-1610, & 07-1712

schedules identified the source of the amounts on line 5
as payments to subcontractors (along with much
smaller amounts for tool rental and scrapping). The gov-
ernment’s position at trial was that each line 5 was false
because it reflected deductions for millions of dollars in
payments to six subcontractors that did not exist, which
was consistent with the indictment’s allegation that the
amount on this line was false and too high. Put simply, the
amounts on line 5 were too high if there were no sub-
contractors.
  Presbitero also contends that the government did not
prove the charge in the indictment that the amounts on
the “other costs” lines (line 5) and “costs of goods
sold” lines (line 8) were “[i]n fact” “less than the sums
reported.” He points out that line 8 on schedule A is a
total line summing the amounts on several lines, including
line 3 for “cost of labor” and line 5 for “other costs.” So,
he maintains, if the deductions actually reflected pay-
ments to employees that should have been taken on line 3
(“cost of labor”), the amounts on the total lines (line 8)
were still accurate. The jury was not permitted to convict
Presbitero upon a finding that only the total line was
wrong, though. Instead, to account for this potential
problem, the jury received an explicit instruction that it
had to find line 5 false in order to convict Presbitero on
Counts Two and Three. That instruction was consistent
with long-standing case law that generally, “when a jury
returns a guilty verdict on an indictment charging
several acts in the conjunctive, . . ., the verdict stands if the
evidence is sufficient with respect to any of the acts
charged.” Turner v. United States, 396 U.S. 398, 420 (1970).
Nos. 07-1129, 07-1610, & 07-1712                            11

And a section 7206(1) conviction does not require the
government to prove an actual tax deficiency. United States
v. Peters, 153 F.3d 445, 461 (7th Cir. 1998); see also Boulware
v. United States, 128 S. Ct. 1168, 1178 n.9 (2008) (noting that
Courts of Appeals unanimously hold that section 7206(1)
does not require proof of a tax deficiency). The jury
also received an instruction that to convict on Counts Two
and Three it had to find the return “false as to a material
matter, as charged in the Count.” Read together, the
instructions directed the jury that it needed to find line 5
on schedule A false in the manner charged in the indict-
ment to convict him. See United States v. Evans, 486 F.3d
315, 324 (7th Cir. 2007) (stating that appellate court gives
deference to specific wording of jury instructions as long
as they contain offenses’ essential elements).
  Moreover, Presbitero could not have been terribly
surprised that the government argued the returns were
false by virtue of including amounts attributable to ficti-
tious subcontractors, nor does he explain how his ability
to prepare his defense was impaired. See Blanchard, 542
F.3d at 1143 (noting that one of the principal concerns
behind the prohibition on constructive amendments is
the impairment of a defendant’s ability to prepare his
defense). The government filed a proffer pursuant to
United States v. Santiago, 582 F.2d 1128 (7th Cir. 1978),
overruled on other grounds, Bourjaily v. United States, 483
U.S. 171 (1987), well before trial that clearly maintained
the six subcontractors were fictitious. In addition, Count
One’s charge of a conspiracy to impede the functions of
the Internal Revenue Service alleged that the six entities
were fictitious and contained numerous paragraphs
12                          Nos. 07-1129, 07-1610, & 07-1712

explaining why, including that the defendants had
created false invoices for more than 800 checks written to
the fictitious corporations. There was no constructive
amendment of the indictment warranting a new trial here.


     2.   Sufficiency of the Evidence
  Presbitero also argues that insufficient evidence
supports the jury’s decision to find him guilty of violating
26 U.S.C. § 7206(1). A defendant seeking to reverse a
conviction based on insufficient evidence faces a heavy
burden, with our inquiry being whether “any rational trier
of fact could have found the essential elements of the
crime beyond a reasonable doubt.” United States v.
Brandt, 546 F.3d 912, 915 (7th Cir. 2008) (quoting United
States v. Farris, 532 F.3d 615, 618 (7th Cir. 2008)).
  Sufficient evidence supported Presbitero’s conviction.
A conviction under section 7206(1) requires proof that:
(1) a person made or subscribed to a federal tax return
which he verified as true; (2) the return was false as to a
material matter; (3) the defendant signed the return
willfully and knowing it was false; and (4) the return
contained a written declaration that it was made under
the penalty of perjury. United States v. Peters, 153 F.3d 445,
461 (7th Cir. 1998). Presbitero contests the second and
third requirements.
  “[A] false statement is ‘material’ when it has ‘the poten-
tial for hindering the IRS’s efforts to monitor and verify
the tax liability’ of the corporation and the taxpayer.”
Peters, 153 F.3d at 461 (quoting United States v. Greenberg,
Nos. 07-1129, 07-1610, & 07-1712                        13

735 F.2d 29, 32 (2d Cir. 1984)). “The focus of 7206(1) is
clearly on the taxpayer’s intent.” Id. Presbitero main-
tains on appeal that the tax returns were not false as to a
material matter because, he says, the deductions on the
returns were for payments made to independent con-
tractors. Payments to independent contractors, he points
out, would not carry with them the tax obligations im-
posed upon a company when it pays employees. Presbitero
never argued his independent contractor theory at trial,
however, and instead repeatedly referred to the workers
as employees. He also did not ask for a jury instruction
on his current independent contractor theory.
  Alternative explanations are generally not enough to
win a challenge to the sufficiency of the evidence. United
States v. Humphreys, 468 F.3d 1051, 1054 (7th Cir. 2006).
Here, there was plenty of evidence from which the jury
could have concluded that Presbitero helped make up
six purported subcontractors. Witnesses testified that
drywall businesses did not operate out of the listed
addresses and none of the entities ever filed a tax return.
Presbitero’s own assistant made out the invoices that
purportedly came from the six entities, on invoices that
Presbitero had ordered himself. Taking millions of dollars
in deductions for payments to subcontractors that did not
exist would impede the IRS’s ability to determine the
company’s tax liability. Moreover, if the jurors thought
that the proceeds from the checks went to employees,
taking deductions for payments to “subcontractors”
meant that the company was not fulfilling the tax ob-
ligations it would have for employees.
14                        Nos. 07-1129, 07-1610, & 07-1712

  Even if the deductions were for payments to inde-
pendent contractors, as he now asserts, Presbitero still
signed false tax returns because the deductions at
issue were taken for payments to subcontractors. The
“purpose behind [section 7206(1)] is to prosecute those
who intentionally falsify their tax returns regardless of
the precise ultimate effect such falsification may have.”
United States v. DiVarco, 484 F.2d 670, 673 (7th Cir. 1973).
Therefore, it is not a defense to a charge of willfully and
knowingly filing a fraudulent tax return that the amount
fraudulently deducted could have been deducted for
some other reason. United States v. Helmsley, 941 F.2d 71,
92-93 (2d Cir. 1991); United States v. Bliss, 735 F.2d 294,
301 (8th Cir. 1984). We also disagree with Presbitero’s
contention that no rational jury could have found the
drywall installers were employees instead of indep-
endent contractors. Velasquez hired and fired the
workers, gave out the work assignments and schedules,
and set the rate of pay. Foremen employed by PDC super-
vised the work at the site, and PDC purchased and pro-
vided the drywall. In addition, no worker received a Form
1099 from PDC. See Bennett v. Dep’t Employment Sec., 530
N.E.2d 541, 544 (Ill. App. Ct. 1988) (finding drywall
installers were employees where plaintiff set wages,
provided materials, imposed deadlines, and could dis-
charge if work unsatisfactory). Also, from the testimony
regarding a lack of seasonal fluctuation in the checks
cashed at the currency exchange, the jury could have
concluded that all the proceeds from the checks were
not used to pay workers of any sort for installing
drywall, meaning that costs were less than the sums
reported on the returns as the indictment had alleged.
Nos. 07-1129, 07-1610, & 07-1712                          15

   Presbitero also contests the sufficiency of the proof that
he signed the return willfully and knowing that it was
false. Again, he faces a steep uphill battle, as our only
question is whether there was sufficient evidence to
support the jury’s conclusion that he did. See Brandt, 546
F.3d at 915. As we discussed, the jury had plenty of
evidence from which it could conclude that Presbitero,
the owner of the company, went to great lengths to make
it seem that his company was paying millions of dollars
to subcontractors. That evidence bears on his knowledge
of the falsity of the returns he signed that took deductions
for subcontractors, as does the fact that he brought the
canceled checks to his accountant specifically so that
the accountant could prepare the company’s tax returns
and other reports. Moreover, the jury heard that em-
ployee wages carry with them additional consequences
that matter to the IRS, including withholding require-
ments and Social Security taxes. From all the evidence it
heard, the jury could have believed that one reason
Presbitero wanted to take deductions for “subcontractors”
was to defraud the IRS and that doing so would have
impeded the IRS had it attempted to look into his pay
scheme. The jury therefore could have found that he
signed the returns willfully and knowing that they were
false, and sufficient evidence supported the jury’s verdict.


    3.   Due Process Based on Successive Prosecutions
  Presbitero also argues that he was deprived of his right
to the due process of law when the government prosecuted
him in this case after unsuccessfully charging and trying
16                         Nos. 07-1129, 07-1610, & 07-1712

him with ERISA and mail fraud violations in an earlier
case because, he says, the government took inconsistent
positions in the two cases. The indictment in the earlier
case charged that Presbitero and Presbitero Drywall
Company underreported the total hours worked by
drywall installers and the total fringe benefit contributions
due for PDC from January 1995 through August 1997,
thereby defrauding a carpenters’ trust fund and causing
false reports to be filed with the Department of Labor. A
jury convicted the company on four ERISA counts.
Presbitero, individually, was acquitted.
   We review Presbitero’s due process claim de novo. See
United States v. Eshkol, 108 F.3d 1025, 1027 (9th Cir. 1997).
As support for his argument, Presbitero directs us to
decisions from other circuits that found due process
violations where the government took fundamentally
opposite positions in different trials involving the same
crime. See Smith v. Groose, 205 F.3d 1045 (8th Cir. 2000)
(finding due process violation where state used “inconsis-
tent, irreconcilable”theories to secure convictions against
two defendants in different trials for the same offenses and
stating, “[t]o violate due process, an inconsistency must
exist at the core of the prosecutor’s cases against defen-
dants for the same crime”); Thompson v. Calderon, 120 F.3d
1045, 1058 (9th Cir. 1997) (en banc), rev’d on other grounds,
523 U.S. 538 (1998) (stating “it is well established that
when no new significant evidence comes to light a pros-
ecutor cannot, in order to convict two defendants at
separate trials, offer inconsistent theories and facts re-
garding the same crime”); see also Abbate v. United States,
359 U.S. 187, 197-200 (1959) (Brennan, J., specially concur-
Nos. 07-1129, 07-1610, & 07-1712                             17

ring). Not everyone agrees that the due process clause
prevents the government from arguing inconsistent
theories. See United States v. Frye, 489 F.3d 201, 214 (5th Cir.
2007) (stating “a prosecutor can make inconsistent argu-
ments at the separate trials of codefendants without
violating the due process clause” but finding inconsisten-
cies not material to the conviction) (citation omitted); see
also Bradshaw v. Stumpf, 545 U.S. 175, 190 (2005) (Thomas,
J., concurring) (stating that the Supreme Court “has never
hinted, much less held, that the Due Process Clause
prevents a State from prosecuting defendants based on
inconsistent theories”).
   This case does not present us with the opportunity to
decide whether we would agree with Smith and Thompson.
Notably, unlike in those two cases, the two trials did not
involve the same underlying crime. The indictment in the
first case alleged that false statements or omissions
were made in ERISA-related documents as part of a
scheme to defraud a carpenters’ union. This case, on the
other hand, alleged tax fraud based on deductions taken
in the company’s corporate tax returns.
  In addition, the government did not take fundamentally
opposite positions in its two prosecutions. The govern-
ment’s position in the first case was that PDC employees
installed the drywall for PDC and that PDC understated
the number of hours worked by those employees in its
monthly reports to the union fringe benefit funds. See, e.g.,
United States v. Presbitero Drywall Co., Inc., No. 02 CR 165,
2003 WL 1562280, at *1-3 (N.D. Ill. Mar. 24, 2003) (memo-
randum opinion resolving post-trial motions). The defen-
18                        Nos. 07-1129, 07-1610, & 07-1712

dants maintained in the first case that subcontractors
had performed the work and that the company did not
have to report hours worked by subcontractors to the
union funds. The government then demonstrated that
the subcontractors did not exist. In this case, the govern-
ment’s position was that the six subcontractors did not
exist. As a result, it maintained, Presbitero was guilty of
filing false corporate tax returns because he took deduc-
tions on the basis of non-existent subcontractors. The
government contended in both trials that the subcon-
tractors did not exist. There is no fundamental conflict
in these positions. Finally, although Presbitero’s brief
asserts that the amount of work actually performed was
the central issue in each prosecution, the amount of
drywall installed was not the issue here; rather, the
question was whether six subcontractors that the gov-
ernment maintained were fictitious had installed the
drywall.


     4.   Sixth Amendment Right to Confront Witnesses
  Presbitero also argues that he was prohibited from cross
examining IRS Special Agent Helene Seltzer regarding
bias toward him because of his earlier acquittal on ERISA
and mail fraud charges, and, therefore, that his Sixth
Amendment right to confront the witnesses against him
was violated. Cross examining a witness to establish
bias implicates a core value of the Sixth Amendment’s
Confrontation Clause. See United States v. Martin, 287
F.3d 609, 620 (7th Cir. 2002).
  Before trial, the government moved to bar any reference
to Presbitero’s prior acquittal. The district court granted
Nos. 07-1129, 07-1610, & 07-1712                            19

the motion but said that if the defense wanted to use the
prior acquittal to show a government witness’s bias, the
defense should “see me ahead of time to get me to recon-
sider that ruling . . . I will reconsider it once the facts are
brought to me.” Presbitero did not raise the issue again
during trial and did not ask the district court to allow
him to raise his prior acquittal for bias purposes while
Special Agent Seltzer was on the stand.
  Special Agent Seltzer testified about summaries she
prepared of the 800 or so checks PDC made out to the
six subcontractors. She also testified that computer
searches she ran yielded no evidence that the six sub-
contractors existed other than their incorporation in 1993
and dissolution in 1994. During her testimony, she
also said there were no seasonal fluctuations in the
value of checks cashed each week and that it was
unusual for a business to cash checks at a currency ex-
change, for which a fee must be paid, instead of depositing
them into a corporate checking account.
  Presbitero argues on appeal that Special Agent Seltzer
was biased because Presbitero was acquitted in the
earlier case during which she also testified as a govern-
ment witness. Had he asked the district court during the
trial whether he could explore potential bias with this
witness, as the court had instructed, the district court
could have evaluated the request and made a determina-
tion in light of the evidence presented. His failure to do so
means that our review is at the least forfeited, with our
review for plain error. See United States v. Anderson, 450
F.3d 294, 299 (7th Cir. 2006); cf. United States v. Irby, 558
20                         Nos. 07-1129, 07-1610, & 07-1712

F.3d 651, 656 n.4 (7th Cir. 2009) (noting that plain
error review might not be appropriate if defendant had
strategic reasons for not raising claimed Confrontation
Clause violation at trial).
  We find no plain error here. That Special Agent Seltzer
also testified in a previous case where Presbitero was
acquitted does not necessarily mean she was biased in
this one. Significantly, Special Agent Seltzer’s testimony
mainly summarized factual data, so it was readily subject
to verification if inaccurate; it was not the type of testi-
mony readily susceptible to bias. Any error in limiting
cross examination was harmless. See United States v.
Smith, 454 F.3d 707, 714 (7th Cir. 2006) (harmless error
analysis applies to errors arising under Sixth Amend-
ment Confrontation Clause).


  B. Government’s Appeal
     1.   Judgment of Acquittal on Velasquez’s Conspiracy
          Charge
  In a cross appeal, the government argues that the
district court erred by granting Velasquez’s motion for
judgment of acquittal after the jury had found him guilty
of conspiring to defraud the United States in violation of
18 U.S.C. § 371. Our review of a judgment of acquittal is
de novo. United States v. Hendrix, 482 F.3d 962, 966 (7th
Cir. 2007). A judgment of acquittal is to be granted only
when “the evidence is insufficient to sustain a conviction.”
Fed. R. Crim. P. 29(a). During our review of the grant of a
judgment of acquittal, we view the evidence in the light
Nos. 07-1129, 07-1610, & 07-1712                           21

most favorable to the government and ask whether any
rational jury could have found the essential elements of
the charged crime beyond a reasonable doubt. United
States v. Jones, 222 F.3d 349, 352 (7th Cir. 2000). We will
set aside a jury’s guilty verdict only if “the record
contains no evidence, regardless of how it is weighed,”
from which a jury could have returned a conviction.
United States v. Moses, 513 F.3d 727, 733 (7th Cir. 2008)
(quoting United States v. Gougis, 432 F.3d 735, 743-44 (7th
Cir. 2005)).
  The statute at issue, 18 U.S.C. § 371, reads in relevant
part:
    If two or more persons conspire either to commit
    any offense against the United States, or to defraud
    the United States, or any agency thereof in any
    manner or for any purpose, and one or more of
    such persons do any act to effect the object of the
    conspiracy, each shall be fined not more than
    $10,000 or imprisoned not more than five years, or
    both.
  Count One in the indictment charged Presbitero and
Velasquez with engaging in a conspiracy “to defraud the
United States by impeding, impairing, obstructing and
defeating the lawful functions of the IRS in the correct
determination and collection of revenue and income taxes,”
in violation of 18 U.S.C. §§ 371, 2. The indictment asserted
that the two defendants caused more than 800 checks
totaling $5.9 million to be made to six fictitious corpora-
tions and created false invoices and other supporting
paperwork for the six corporations. It further charged
22                         Nos. 07-1129, 07-1610, & 07-1712

that Presbitero filed PDC corporate tax returns claiming
$5.9 million in payments to the six corporations as a
deduction for cost of goods sold on the 1995 through
1998 tax returns.
  Convicting Velasquez required the government to
prove beyond a reasonable doubt that the conspiracy
charged in Count One existed, that Presbitero and
Velasquez knowingly and willfully joined the conspiracy
with intention to further the conspiracy, and that a
coconspirator committed an overt act in furtherance of
the conspiracy. See United States v. Jackson, 33 F.3d 866,
870 (7th Cir. 1994); United States v. Useni, 516 F.3d 634, 650
(7th Cir. 2008); see also United States v. Klein, 247 F.2d 908
(2d Cir. 1957). The government presented more than
enough evidence for a jury to find that the six subcon-
tractors did not exist. A jury also could have readily
concluded that Velasquez agreed to help perpetuate the
fiction. Velasquez provided Presbitero’s assistant with
hours to be attributed to the subcontractors even though
the subcontractors did not exist. He did this on a weekly
basis, for several years, and Presbitero’s assistant then
used this information to type up hundreds of checks
made out to the subcontractors. Velasquez was also the
one who arranged for these checks to be cashed at
currency exchanges owned by Leonard Sklare, and
Velasquez often cashed the checks himself each week in
exchange for tens of thousands of dollars in return.
  The closest question is whether a rational jury could
have found that Velasquez had the requisite intent.
Velasquez maintains, and the district court agreed, that
Nos. 07-1129, 07-1610, & 07-1712                        23

the element of intent is lacking. The government agrees
that to convict Velasquez of violating 18 U.S.C. § 371 in
this case, it needed to prove that he intended to impede
or obstruct the functions of the Internal Revenue Service,
not just that he had the intent to do something improper.
See United States v. Attanasio, 870 F.2d 809, 817 (2d Cir.
1989). Although the district court granted Velasquez’s
motion for judgment of acquittal, we agree with the
government that a rational jury could have determined
that Velasquez had the requisite intent.
  That is, from the evidence before it, the jury could have
concluded that Velasquez knew that at least one
purpose of the agreement to make up the six subcontrac-
tors was to reduce PDC’s tax liability on false pretenses.
Doing so did not require Velasquez, who was in charge of
hiring and managing the drywall installers, to understand
exactly how PDC had prepared its tax returns (there
was no evidence that he ever saw the tax returns or
assisted in their preparation). The jury heard that
Velasquez had filed individual tax returns before on
which he had taken business deductions, and the jury
therefore could have concluded that he understood the
concept of business deductions. In addition, Velasquez’s
own signed tax returns included W-2 forms detailing
withholdings made from his pay as a PDC employee, so a
jury could infer that he understood the concept of em-
ployee withholding. A rational jury could have decided
that Velasquez knew that when he submitted hours not
actually worked by subcontractors to Presbitero’s
assistant and undertook the efforts he did to keep the
subcontractor fiction alive, he was helping the company
24                        Nos. 07-1129, 07-1610, & 07-1712

falsely take business deductions for payments to fake
subcontractors or helping it avoid employee tax liability
by not accurately reporting the nature of hours worked.
  In finding that Velasquez lacked the necessary intent,
the district court stated that the defendants’ actions could
have been for “the purpose of siphoning funds from
Presbitero Drywall or, as the defendants maintained,
helping to avoid having to hire incompetent workers as
a result of questionable union practices.” There was no
evidence, though, that Presbitero and Velasquez made
up the subcontractors’ existence to siphon funds from the
company for themselves absent tax benefits (and that
would have been a bit odd since Presbitero was the
sole owner of PDC). A rational jury also could have
concluded that the defense’s argument that the money
from the checks was paid to drywall installers in an
attempt to avoid collective bargaining obligations did not
make sense. If union issues were the real problem, the
jury could have wondered why the company did not
simply hire real subcontractors. In addition, the jury
heard testimony that there was no seasonal fluctuation
in the checks, which could have further helped it reject the
defense’s argument. Notably too, the jury could have
concluded that Velasquez and Presbitero wanted to
deceive both the union and the IRS; the two ideas are not
mutually exclusive. The important point is that a
rational jury could have taken the evidence before it and
concluded that at least one reason Velasquez helped
carry out the subcontractor fiction was to defraud the
IRS. The judgment of acquittal in his favor is reversed.
Nos. 07-1129, 07-1610, & 07-1712                           25

   We also agree with the government that the district
court’s conditional grant of a new trial to Velasquez
cannot stand. Our review of a decision to grant a new
trial is usually for abuse of discretion, United States v. Van
Eyl, 468 F.3d 428, 436 (7th Cir. 2006), but it is plenary
when the district court’s analysis was purely legal in
nature, United States v. Boyd, 55 F.3d 239, 242 (7th Cir.
1995). When evidence has been properly admitted at
trial, as it was here, a district court may grant a new trial
only if the evidence “preponderates heavily against the
verdict, such that it would be a miscarriage of justice to
let the verdict stand.” United States v. Washington, 184
F.3d 653, 657-58 (7th Cir. 1999). As the district court
recognized, its reasoning in deciding Velasquez’s chal-
lenge to the sufficiency of the evidence applied equally to
its decision to grant him a new trial, such that if we
reversed on the former we might reverse on the latter
as well. For the reasons we discussed above, it would not
be a miscarriage of justice to let the jury’s guilty verdict
stand. We therefore vacate the order that granted
Velasquez a new trial.


    2.   Presbitero’s Sentence
   The government also challenges Presbitero’s sentence.
(It does not ask us to revisit his acquittal on Count One,
the conspiracy count.) The government argues that the
district court should have given Presbitero an enhance-
ment pursuant to U.S.S.G. § 3B1.1 for being an organizer
or leader of criminal activity. Application note 2 to this
guideline says the enhancement applies when the defen-
26                        Nos. 07-1129, 07-1610, & 07-1712

dant is an organizer, leader, manager, or supervisor of
“one or more other participants.” With that in mind, the
district court denied the government’s request for this
enhancement based on its conclusion that Velasquez was
not a participant in the crime. As we discussed, we are
reversing the district court’s determination that Velasquez
did not participate in the scheme. As a result, we
remand Presbitero’s case for resentencing, during which
the district court should consider whether the U.S.S.G.
§ 3B1.1 enhancement is warranted. See United States v.
Scott, 405 F.3d 615, 617 (7th Cir. 2005).
  To aid everyone during the resentencing, we also take
note of the government’s arguments that the district
court took impermissible factors into account when it
sentenced Presbitero to a below-guidelines sentence. For
one, the district court commented on the amount of
money Presbitero paid in attorney’s fees, stating at the
sentencing hearing that Presbitero had spent “probably
a good part of his savings defending against charges
brought by the Government. That’s a long time to be
fighting the government. Almost ten years. And a huge
amount of stress that’s involved with that, and expense.”
Presbitero maintains that the district court did not
actually rely on the amount of attorney’s fees incurred
when it decided which sentence to impose. Instead, he
says, the comments we quoted were just observations
that did not factor into his sentence.
 It is not clear to us from the record whether the com-
ments regarding attorney’s fees and the resulting stress
were simply asides at the hearing or whether they
Nos. 07-1129, 07-1610, & 07-1712                          27

factored into the imprisonment term decision. In an
opinion issued after Presbitero’s sentencing hearing, we
explained that the fact “that a defendant spends heavily
on lawyers is not a mitigating factor. It would not only
encourage overspending; it would be double counting,
since the pricier the lawyer that a defendant hires, the
less likely he is to be convicted and given a long sentence.”
United States v. Sriram, 482 F.3d 956, 961 (7th Cir. 2007),
vacated on other grounds, 128 S. Ct. 1134 (2008). So the
district court on remand should not consider high attor-
ney’s fees as a mitigating factor. And while we
certainly recognize the emotional and financial tolls of an
investigation, indictment, and trial, the resulting stress
is not in and of itself an appropriate reason to lower
Presbitero’s sentence. See Sriram, 482 F.3d at 961 (pro-
tracted prosecution not a reason to lower sentence).
  The government also points out that the district court
took note that the government was the victim in this case
and then said that fact was “modestly mitigating” in that
Presbitero had not depleted other individuals’ fortunes.
The government is a victim in all tax fraud cases, so that
fact did not distinguish Presbitero from other persons
who violate 26 U.S.C. § 7206(1). See United States v. Higdon,
531 F.3d 561, 563 (7th Cir. 2008); cf. 18 U.S.C. § 3553(a)
(court should consider “need to avoid unwarranted
sentence disparities among defendants with similar
records who have been found guilty of similar conduct”);
Gall v. United States, 128 S. Ct. 586, 597 (2007) (when
sentencing outside the guidelines, court “must consider
the extent of the deviation and ensure that the justifica-
tion is sufficiently compelling to support the degree of the
28                         Nos. 07-1129, 07-1610, & 07-1712

variance”). It is not clear to us whether that fact affected
the sentence determination either, as the district court
did not mention it when summarizing the reasons for
choosing the sentence it did:
     Considering the absolute unlikelihood of recidi-
     vism, the passage of a significant period of time
     since the commission of the offense, during which
     there was no evidence that the defendant has
     committed other crimes, given defendant’s age,
     given defendant’s family situation, given the
     evidence that defendant has basically been a hard-
     working person for his entire life, I think that
     [the §] 3553 factors are adequately considered by
     this sentence.
  The quoted passage reflects that the district court
concluded Presbitero was not likely to recidivate, and the
government challenges that determination as well.
In particular, it maintains that the fact that Presbitero did
not express contrition at sentencing should have been
deemed to be an aggravating factor because Presbitero’s
“obstinate behavior” at sentencing suggested a higher
sentence was necessary. We do not reach the same con-
clusion as the government.
  First, we find no evidence of any obstinate behavior
on Presbitero’s part. When asked whether there was
anything he wished to say before a sentence was imposed,
Presbitero said, “No, your Honor, not really. I think [my
counsel] said it all.” Other than answering the court’s
yes/no questions at the beginning of the hearing, that was
all he said at sentencing. Declining to exercise the right to
allocute does not alone make a defendant’s behavior
Nos. 07-1129, 07-1610, & 07-1712                         29

obstinate, and a defendant has no obligation to speak at
sentencing if he does not wish to do so. More
importantly, the district court judge presided over the
hearing and commented on many other things, and she
made no suggestion that there was anything obstinate
in Presbitero’s demeanor or behavior. See Gall, 128 S. Ct.
at 597-98.
  The case cited by the government, United States v. Li, 115
F.3d 125, 135 (2d Cir. 1997), does not compel the con-
clusion that the district court was required to impose a
higher sentence because Presbitero did not admit his
guilt. In that case, the defendant protested her innocence
at sentencing in a narrative that lasted upwards of fifteen
to twenty minutes. When the judge stopped her, the
Second Circuit recounted, she “responded so emotionally
that she was ordered—and was nearly removed—from
the courtroom.” The Second Circuit found no abuse of
discretion in the district court’s decision to take her
protestations of innocence, attitude, and demeanor at
sentencing into account in setting the sentence. We have
no quarrel with that decision. As it applies to Presbitero,
even putting aside the much more egregious behavior
of the Li defendant, the Second Circuit’s reasoning is
important. The court did not say that a defendant who
maintains her innocence must receive a higher sentence;
instead, it emphasized the district court’s discretion
and found no abuse of discretion in the district court’s
decision to take the defendant’s statements and behavior
at sentencing into consideration in that particular case.
That reasoning is consistent with the Supreme Court’s
recent emphasis on a sentencing judge’s discretion at
sentencing. See Gall, 128 S. Ct. at 600.
30                           Nos. 07-1129, 07-1610, & 07-1712

  The district court here undertook a thorough evalua-
tion of whether Presbitero was likely to recidivate. See
18 U.S.C. § 3553(a)(2)(C) (court shall consider “the need
for the sentence imposed . . . to protect the public from
future crimes of the defendant”). It looked to facts in-
cluding that this conviction was Presbitero’s first and
also that there had been a significant passage of time
since the offense, with no evidence he had committed
other crimes during that time. He also was retired, PDC
had been dissolved, and he was 65 years old at sentencing.
Although the government argues that age was an
improper consideration as Presbitero was not infirm or
unable to live in a prison, the district court considered
Presbitero’s age as one indication that he was unlikely to
commit these crimes again. That was a proper consider-
ation under our case law. See United States v. Carter, 538
F.3d 784, 791-92 (7th Cir. 2008); United States v. Holt, 486
F.3d 997, 1004 (7th Cir. 2007). In short, we do not find an
abuse of discretion in the district court’s determination
that Presbitero was unlikely to recidivate.1
  Finally, we note that in making the observations we
did, we are not saying that a below-guidelines sentence is
necessarily unreasonable. Cf. Gall, 128 S. Ct. at 597 (review-


1
  We also note that the district court did not grant Presbitero a
reduction for acceptance of responsibility. See United States v.
Travis, 294 F.3d 837, 840 (7th Cir. 2002) (stating purpose of
acceptance of responsibility adjustment “is not only to induce
guilty pleas; it also takes into account the reduced rate of
recidivism among defendants who admit the wrongfulness
of their actions”).
Nos. 07-1129, 07-1610, & 07-1712                             31

ing below-guidelines sentence only for abuse of discre-
tion). It helps our review of whether a below-guidelines
sentence is reasonable, though, when a district court
makes clear which factors it relies upon to impose a
sentence below the advisory guidelines range. See Higdon,
531 F.3d at 565; see also United States v. Burton, 543 F.3d 950,
953 (7th Cir. 2008). We remand Presbitero’s case for
resentencing consistent with this opinion.


                    III. CONCLUSION
  Presbitero’s conviction is A FFIRMED, but we V ACATE his
sentence and R EMAND for resentencing. The judgment
of acquittal as to Velasquez is R EVERSED.




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