                             NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
     FOR THE THIRD CIRCUIT
           __________

Nos. 08-3028, 08-3931, 08-4077, 08-4316
              __________

   UNITED STATES OF AMERICA

                  V.

       JOHN MICHAEL CRIM,
             a/k/a Red

John Michael Crim, Appellant at No. 08-3028
              __________

   UNITED STATES OF AMERICA,

                  V.

          JOHN BROWNLEE,
            a/k/a J.D. Law

 John Brownlee, Appellant at No. 08-3931
            __________

   UNITED STATES OF AMERICA

                  V.

        ANTHONY TRIMBLE,
            a/k/a Chip

Anthony Trimble, Appellant at No. 08-4077
            __________

   UNITED STATES OF AMERICA

                  V.

       CONSTANCE TAYLOR,
                                 Appellant at No. 08-4316
                                       __________

                     On Appeal from the United States District Court
                         For the Eastern District of Pennsylvania
               (D.C. Criminal Nos. 2-06-cr-00658-001, 2-06-cr-00658-002,
                       2-06-cr-00658-005 and 2-06-cr-00658-003)
                     District Judge: The Honorable Anita B. Brody
                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                   September 15, 2011

            BEFORE: SLOVITER, SMITH, and NYGAARD, Circuit Judges

                                (Filed November 15, 2011)
                                       __________

                               OPINION OF THE COURT
                                     __________

NYGAARD, Circuit Judge

       Appellant John Michael Crim co-founded a group known as the Commonwealth

Trust Company (CTC). This firm counseled and encouraged investors to, among other

things, place income and assets into trusts so as to evade federal income taxes. A grand

jury indicted Crim, along with Appellants John Brownlee, Constance Taylor and

Anthony Trimble, with one count of conspiracy to defraud the United States in violation

of 18 U.S.C. § 371.1 Appellants Crim, Brownlee and Taylor additionally were charged

with one count of corruptly endeavoring to obstruct and impede the due administration of



1
  Often referred to as a “Klein Conspiracy,” a conspiracy to violate this section gets its
name from the Second Circuit case of United States v. Klein, 247 F.2d 908 (2d Cir.
1957), and has become the generic term for a conspiracy to frustrate the government
(usually the IRS) in its lawful information gathering functions. See, e.g., United States v.
Alston, 77 F.3d 713, 719 n. 13 (3d Cir. 1996).
                                              2
the Internal Revenue law, in violation of 26 U.S.C. § 7212(a). Appellants Taylor and

Trimble were charged with a second count of violating this section.

                                       I. Background

       Because we write primarily for the parties, who are well-acquainted with the

lengthy and complex history of this case, we will relate only those facts necessary to

address the issues on appeal. CTC marketed two domestic trusts and one offshore trust to

its clients. Based on instructions provided by CTC, many of the firm‟s clients did not file

federal tax returns. CTC advised its clients that they could escape paying federal income

taxes by diverting their income through one of CTC‟s trusts. The firm also advocated

transferring a client‟s assets into one of CTC‟s domestic trusts to protect the assets from

IRS liens and seizures.

       Crim and co-defendants Brownlee, Taylor and Trimble were convicted by a jury

on all counts after a jury trial. All were sentenced to various terms of imprisonment and

ordered to pay differing amounts of restitution to the IRS. Raising various issues both

jointly and individually, Crim, Brownlee, Taylor and Trimble appeal their convictions

and sentences. By order of March 10, 2009, we consolidated their appeals.2

       The bulk of the issues raised by the Appellants concern the propriety of their

convictions. We will begin with the various challenges to the sufficiency of the evidence.

                          II. Sufficiency of the Evidence Challenges

A.     Sufficiency of the Evidence of Appellant Crim‟s conviction


2
 We have jurisdiction over these matters pursuant to 28 U.S.C. § 1291. Additionally, we
have jurisdiction to review the District Court‟s sentences pursuant to 18 U.S.C. § 3742.
                                              3
       Our inquiry is limited to determining whether the jury‟s verdict is permissible.

See United States v. McGill, 964 F.2d 222, 229 (3d Cir. 1992). Appellant Crim argues

that the evidence was insufficient to support his conviction at Count II for corruptly

endeavoring to impede the due administration of IRS laws at a training seminar hosted by

CTC in May of 2002 in Lancaster, Pennsylvania. We disagree.

       Section 7212(a) provides, in part, that “[w]hoever corruptly or by force or threats

of force . . . obstructs or impedes, or endeavors to obstruct or impede, the due

administration of this title, shall, upon conviction thereof, be fined not more than $5,000,

or imprisoned not more than 3 years, or both. . . .” To prove a violation of § 7212(a), the

Government must establish (1) corruption, force, or threat of force, and (2) an attempt to

obstruct the administration of the IRS. Here, the Government‟s evidence is more than

sufficient to permit the jury to conclude beyond a reasonable doubt that Crim violated 26

U.S.C. § 7212(a).

       With respect to the first element of the offense, the Government charged Crim

with corruptly attempting to interfere with the administration of the IRS. An act is

“corrupt” within the meaning of Section 7212 if it is performed with the intention to

secure an unlawful benefit for oneself or for another. See, e.g., United States v. Reeves,

752 F.2d 995, 998-99 (5th Cir.), cert denied, 474 U.S. 834 (1985). We note that Crim

does not contest the sufficiency of the evidence against him at Count One. Therefore,

Crim‟s recognition that the evidence was sufficient to prove that CTC was an illegal

conspiracy to promote tax evasion more than establishes Crim‟s state of mind for the first

element of a Section 7212(a) violation, which rests on the promotion of CTC to others.

                                             4
       The evidence presented at trial clearly supports the second element of the offense.

The Government‟s evidence demonstrated, among other things, that Crim spoke and

made welcoming remarks at the CTC tax evasion seminar and was present at the

Lancaster session to promote and encourage CTC and its sales force. Given this

evidence, the jury‟s verdict was permissible and we will affirm Crim‟s conviction at

Count Two of the indictment.

B.     Sufficiency of the Evidence of Appellant Brownlee‟s Conviction

       Appellant Brownlee argues that the evidence was insufficient to support his

conviction at Count One of the indictment. He argues that there was no evidence of a

shared unity of purpose or common goal between him and the other conspirators. He also

argues that the jury‟s verdict was against the weight of the evidence. We disagree.

       The Government presented sufficient evidence to support Brownlee‟s conviction

at Count One. To prove a conspiracy to defraud the United States in violation of 18

U.S.C. 371 (Count 1), the evidence must establish the following elements beyond a

reasonable doubt: (1) an agreement to defraud the United States, (2) an overt act by one

of the conspirators in furtherance of that objective, and (3) any conspirator's commission

of at least one overt act in furtherance of the conspiracy. See United States v. Rankin,

870 F.2d 109, 113 (3d Cir. 1989). “To conspire to defraud the United States means

primarily to cheat the government out of property or money, but also means to interfere

with or obstruct the government by deceit, craft, trickery, or at least by means that are

dishonest.” Hammerschmidt v. United States, 265 U.S. 182, 188 (1924).



                                              5
       The Government established that Brownlee warned clients about all-expenses paid

vacations to “Club Fed” if they did not shred, burn, and separate their garbage. The

evidence showed that Brownlee sent emails to Crim, Taylor and another co-defendant,

Wayne Roebuck, expressing his concern about “drawing the attention of the IRS and

leaving a trail.” In an email to Crim, for example, Brownlee warned about having a

client “who gets pinched hard by the IRS and turns into a singing canary.” The evidence

also revealed that Brownlee sold trusts and opinion letters to clients on behalf of CTC

and received commissions for those sales. Brownlee was a frequent speaker at CTC

conferences and training seminars. In sum, there was sufficient evidence to support

Brownlee‟s conviction at Count One.

       There was also sufficient evidence to support Brownlee‟s conviction at Count

Two. Testimony revealed that Brownlee spoke about liens at CTC‟s training session in

Lancaster. Brownlee, an attorney, specifically spoke on the topic of the “Legal

Substance of Liens,” which outlined a method advocated by the conspirators to make a

client‟s assets appear valueless and not subject to taxation by the IRS. An IRS

investigator also testified to a handwritten document he discovered at the Lancaster Host

Hotel, the location of a CTC conference. The one-page document had the initials “J.B.”

and a date on it. No conference speaker besides Appellant Brownlee had the initials

“J.B.” These notes, the record reveals, were similar to several slides of a Power-Point

presentation on liens. The investigator also testified that Brownlee often used Power-

Point in his presentations. From this evidence, the jury could certainly infer that



                                             6
Brownlee spoke at CTC‟s Lancaster conference about the firm‟s techniques of

fraudulently using liens to hide assets from the IRS.3

       Brownlee‟s conviction at Count Two will be affirmed.

C.     Sufficiency of the Evidence of Appellant Taylor‟s Convictions

       Appellant Taylor argues that the evidence was insufficient to support her

convictions at Counts Two and Three of the indictment. Like Crim, she does not

challenge her conviction at Count One. Her argument is meritless.

       The evidence established that Taylor spoke at CTC training sessions in Lancaster,

Pennsylvania on several occasions. The conference agenda, for example, lists her as

presenter on the subject of “The Documents.” An IRS agent‟s testimony confirms

Taylor‟s participation in the conference and her discussion of CTC trusts. The agenda for

the Lancaster conference also listed Taylor as speaking on the topic of “Doing Business a

la GDS.”4 Testimony established that during this session, Taylor instructed the CTC

sales department on how to use her document service to evade the IRS. Finally, evidence

3
  Brownlee also claims the verdict was against the weight of the evidence. He made this
argument before the District Court in a Rule 33 motion. United States v. Johnson, 302
F.3d 139, 150 (3d Cir. 2002). The District Court did not abuse its discretion. Rule 33
requests for a new trial “are not favored and should be granted sparingly and only in
exceptional cases.‟” United States v. Silveus, 542 F.3d 993, 1005 (3d Cir. 2008) (citation
omitted). Although a district court can grant a Rule 33 motion if it finds the jury‟s
verdict “contrary to the weight of evidence,” it should do so “only if it believes that there
is a serious danger that a miscarriage of justice has occurred—that is, that an innocent
person has been convicted.‟” Johnson, 302 F.3d at 150 (citation omitted). Brownlee has
failed to highlight any “serious danger that a miscarriage of justice ha[d] occurred.” The
District Court did not abuse its discretion.
4
 Taylor was involved in an aspect of this conspiracy known as “Guardian Document
Services.” Through GDS, Taylor provided fraudulent trust documents to CTC clients and
advised those clients on how to maintain and manage CTC trusts.
                                              7
established that Taylor spoke at another CTC conference in Exton, Pennsylvania about

the services provided by her company.

         Taylor‟s principal argument is that no evidence was presented about what she

actually said at these conferences. Along these lines, she also argues that the

Government was required to prove that someone actually filed a false tax return as a

result of her speech. We are not persuaded. First, the jury heard several recordings of

Taylor‟s speeches from other CTC conferences wherein she lectured clients on how to

prevent the IRS from assessing and collecting taxes. We agree with the Government here

that it was reasonable for the jury to conclude that Taylor spoke with similar purpose at

the Lancaster and Exton meetings. Further, the Government does not have to prove

Taylor was successful in her attempts to impede the administration of tax laws, only that

she had the intent to do so, which the jury could reasonably infer from the Government‟s

evidence in this case. See, e.g., United States v. Bostian, 59 F.3d 474, 479 (4th Cir.

1995).

         Taylor‟s arguments lack merit and we will affirm her conviction at Counts Two

and Three of the indictment.

                               III.   Evidentiary Challenges

         Appellants Crim, Brownlee and Taylor challenge the District Court‟s admission of

various pieces of evidence. We find all of the evidentiary challenges to be meritless and

conclude that the District Court did not abuse its discretion.

A.       Appellant Crim‟s challenge to the admission of excerpts of his autobiography



                                              8
       Appellant Crim argues that the District Court abused its discretion when it

admitted certain excerpts from an autobiographical document entitled “Meet Me Half

Way.” At issue are eleven excerpted statements from the work, that include, for example,

Crim‟s revocation of “any alleged authority that any Government agency might have over

me,” and Crim‟s “rescission of his signature on all United States Government documents,

including his Social Security number,” which he refers to as “the mark of the beast.”

Also admitted into evidence was his admission in the autobiography to “the use of

corporations to do off-shore investments.” Crim filed a motion in limine to exclude these

and other statements, which the District Court denied.

       The Government initially argues that this evidence was intrinsic evidence and was

properly admitted as such. In United States v. Green, 617 F.3d 233, (3d Cir. 2010), we

acknowledged that evidence is either intrinsic, and not subject to Rule 404(b), or

extrinsic. Evidence is intrinsic if it directly proves the charged offense. Id. at 248-49.

Intrinsic evidence also can consist of “uncharged acts performed contemporaneously

with the charged crime . . . if they facilitate the commission of the charged crime.” Id.

The excerpts from Crim‟s autobiography are not intrinsic evidence under Green. First,

these statements do not directly prove violations of either 18 U.S.C. § 371 or I.R.C. §

7212(a). Crim‟s opinions on whether he, for example, had to possess a Social Security

number do not directly prove elements of Count One or Count Two of the indictment.

Further, the actions described in the excerpts are not uncharged acts performed

contemporaneously with the actions charged in either count of the indictment. This



                                              9
evidence was, instead, extrinsic evidence admitted, we presume, under FED.R.EVID.

404(b).5

       We will reverse the District Court‟s evidentiary rulings only if its decision was

“arbitrary, fanciful, or clearly unreasonable . . . where no reasonable person would adopt

[its] view.” Green, 617 F.3d at 239. To satisfy the requirements of Rule 404(b),

evidence of other acts must (1) have a proper evidentiary purpose, (2) be relevant under

FED.R.EVID. 402, (3) satisfy Rule 403, that is to say, not be substantially more prejudicial

than probative, and (4) be accompanied by a limiting instruction when requested,

instructing the jury not to use the evidence for an improper purpose. United States v.

Cross, 308 F.3d 308. 320-21 (3d Cir. 2002) (footnote omitted). We have noted that the

threshold established by Rule 404(b) is not overly high, and that almost all evidence can

be admitted under it so long as it is for a purpose other than to demonstrate a defendant‟s

bad character in order to encourage the jury to convict on the basis of a propensity to

commit crime. Green, 617 F.3d at 248-49.

       The District Court did not abuse its discretion in determining that these

requirements were met. The excerpts from the autobiography were probative of Crim‟s

intent, lack of good faith and consciousness of guilt. Indeed, in ruling on a motion filed

under FED.R.CRIM.P. 33, the District Court found this same evidence “highly probative”

because it “tended to negate a good faith defense” and because it indicated that Crim was

on notice that the IRS Code applied to him.


5
 We presume as much because the District Court did not explicitly state its reasons for
admitting this evidence.
                                              10
       Nor was the admission of this evidence unfairly prejudicial under Rule 403.

Crim‟s argument on this point is disingenuous. He argues that the autobiographical

excerpts portray him as an “anti-tax fanatic” and a “tax protestor,” but later acknowledges

that he is the “alleged leader of a quasi-tax protestor organization.” The probative value

of Crim‟s anti-government beliefs was not substantially outweighed by the danger of

prejudice to him. Of course, any risk of prejudice could have been minimized by a

limiting instruction. Crim, however, failed to request one.

       We see no abuse of discretion in the admission of this evidence.

B.     Admission of Appellants‟ failure to file tax returns

       Three of the Appellants, Crim, Brownlee and Taylor, argue that the District Court

abused its discretion in admitting their failures to file tax returns from the years 2000

through 2003. The District Court admitted this evidence not under Rule 404(b) but as

intrinsic evidence of the Government‟s case-in-chief.

       After our decision in Green, we question whether this evidence was intrinsic by

nature. The failure to file an income tax return does not directly prove either a violation

of 18 U.S.C. § 371 or of I.R.C. § 7212(a). Furthermore, it is a bit of a stretch to find the

failure to file an individual income tax return as facilitating the crimes charged. The

Appellants were charged with assisting clients in obstructing the administration of tax

laws and of defrauding the Government through that instruction. A failure to file a

personal income tax return does not facilitate those crimes.

       Although the District Court‟s admission of this evidence as intrinsic may have

missed the mark, such error was harmless in any event because the evidence would easily

                                             11
be admitted under Rule 404(b). The failure to file a tax return was certainly probative of

their intent to defraud the Government and prevent the IRS from assessing and collecting

taxes on CTC clients. This evidence was also admissible as proof of motive, intent, plan

or knowledge. See FED.R.EVID. 404(b). Further, evidence that they failed to file a tax

return was not unduly prejudicial to the Appellants, no more so than the emails,

documents and audio recordings introduced at trial, all admitted with no objection from

the Appellants.

          The District Court‟s failure to give a limiting instruction does not amount to an

abuse of discretion. The Government warned the jury that the Appellants were not on

trial for their failure to file tax returns and that this evidence was to be considered only

for the limited purpose of evaluating the Appellants‟ intent, plan and public statements.

See, e.g., United States v. Giraldi, 86 F.3d 1468, 1378 (5th Cir. 1996).

C.        Admission of Evidence Concerning a Celebrity Client

          Appellant Crim argues that the District Court abused its discretion in permitting

the Government to elicit testimony from witnesses concerning CTC celebrity client, actor

Wesley Snipes. Crim‟s argument on this point is meritless. The District Court did not

abuse its discretion in admitting what was limited testimony regarding the tax-evading

actor.6

D.        Admission of the Brownlee Notes



6
  Snipes, a film actor of some note, was convicted of the willful failure to file individual
federal income tax returns for calendar years 1999, 2000, and 2001. See United States v.
Snipes, 611 F.3d 855 (11th Cir. 2010).
                                               12
       Appellant Brownlee argues that the District Court abused its discretion in

admitting a page of handwritten notes on hotel stationary that IRS investigators

discovered at the site of one of CTC‟s conferences as well as a Power Point presentation.

Brownlee submits that the page of handwritten notes is inadmissible hearsay. It is not.

“„Hearsay‟ is a statement, other than one made by the declarant while testifying at the

trial or hearing, offered in evidence to prove the truth of the matter asserted.”

FED.R.EVID. 801(c). These notes simply relate the advice Brownlee gave CTC clients

on how to create sham liens against their assets. As such, they are not declarations of an

act, but instead, more akin to instructions to do something, which we have held not to be

hearsay. See, e.g., United States v. Reilly, 33 F.3d 1396, 1410 (3d Cir. 1994). Put

another way, these notes were not offered to prove the truth of the statements contained

within them, but instead to prove the fact that certain instructions had been given to CTC

clients. See Anderson v. United States, 417 U.S. 211, 220 n. 8 (1974). We dismiss

outright Brownlee‟s challenge to the admissibility of the Power Point presentation, which

was, after all, his own exhibit.

       The District Court did not abuse its discretion by admitting this evidence.

                               IV. Prosecutorial Misconduct

       Appellant Brownlee points to three different remarks made by the prosecutor

during closing argument as evidence of prosecutorial misconduct, all of which he

objected to. We review for abuse of discretion a district court‟s ruling on a

contemporaneous objection. United States v. Brennan, 326 F.3d 176, 182 (3d Cir. 2003).



                                             13
These statements were not improper and the District Court did not abuse its discretion.

      As we have recently explained,

             A prosecutor‟s comments can create reversible error if they
             “so infected the trial with unfairness as to make the resulting
             conviction a denial of due process.” Donnelly v.
             DeChristoforo, 416 U.S. 637, 643 (1974). “[A] criminal
             conviction is not to be lightly overturned on the basis of a
             prosecutor‟s comments standing alone, for the statements or
             conduct must be viewed in context; only by so doing can it be
             determined whether the prosecutor‟s conduct affected the
             fairness of the trial.” United States v. Young, 470 U.S. 1, 11,
             (1985). Moreover, we “must examine the prosecutor's
             offensive actions in context and in light of the entire trial,
             assessing the severity of the conduct, the effect of the curative
             instructions, and the quantum of evidence against the
             defendant.” Moore v. Morton, 255 F.3d 95, 107 (3d Cir.
             2001). “A finding of prosecutorial misconduct requires
             reversal unless the error is harmless.” Brennan, 326 F.3d at
             182. “If the error is constitutional, we will affirm [only] if we
             determine that the error is harmless beyond a reasonable
             doubt.” United States v. Helbling, 209 F.3d 226, 241 (3d Cir.
             2000). “If the error is non-constitutional, we will affirm when
             it is highly probable that the error did not contribute to the
             judgment.” Id. (quotation omitted).

United States v. Lee, 612 F.3d 170, 194 (3d Cir. 2010).

      We have reviewed the prosecutor‟s closing argument and find it to contain nothing

improper. Moreover, the specific comments in question certainly do not “so infect the

trial with unfairness as to make the resulting conviction a denial of due process.” Darden

v. Wainwright, 477 U.S. 168, 181 (1986). The District Court did not abuse its discretion

by overruling Brownlee‟s objections to the Government‟s closing argument.

                         V.     Request for a limiting instruction




                                            14
       Appellants Crim and Taylor maintain that the District Court erred by omitting an

agreed-to instruction on the cooperating defendant‟s guilty pleas from its final jury

charge. Neither Crim nor Taylor noticed this omission at trial. They likewise failed to

object to the omission from the jury charge. We, therefore, review their argument for

plain error. United States v. Ozcelik, 527 F.3d 88, 96 (3d Cir. 2008).

       Following this Court‟s model instruction 4.19, the District Court instructed the

jury to consider testimony of a witness who had reached a plea agreement with the

Government “with care and caution.” The District Court further advised that “whether or

not the testimony may have been influenced by the plea agreement, grant of immunity,

Government promise or any other benefit, is for you to determine.” Through a clerical

error, however, the second portion of the model jury instruction was omitted. That

portion stated:

              You must not consider [the witness‟s] guilty plea as any
              evidence of [name of defendant]‟s guilt. (His)(Her) decision
              to plead guilty was a personal decision about (his)(her) own
              guilt. Such evidence is offered only to allow you to assess the
              credibility of the witness; to eliminate any concern that (the
              defendant) (any of the defendants) has been singled out for
              prosecution; and to explain how the witness came to possess
              detailed first-hand knowledge of the events about which
              (he)(she) testified. You may consider (name of witness)‟s
              guilty plea only for those purposes.

       The omission of this section of the model instruction was not error, much less

plain error. First, the District Court repeatedly instructed the jury to “separately consider

the evidence against each defendant in each offense charged.” Second, in closing

argument, the Government stressed to the jurors that they “need to consider each


                                             15
defendant separately” when determining guilt. Third, Brownlee‟s counsel repeatedly

cautioned the jury to “give each one of [the defendants] separate consideration.”

       We recognize that admitting a co-conspirator‟s guilty plea can jeopardize the

fundamental fairness of a criminal trial because of the likelihood that the jury may impute

a co-conspirator‟s guilt to a defendant. See Government of the Virgin Islands v.

Mujahid, 990 F.2d 111, 116 (3d Cir. 1993). This is why a judge must instruct the jury as

to the limited purpose of such evidence. Id. at 116. Such an instruction should highlight

for the jury “how the guilty plea evidence can and cannot be used.” Id.

       While not complete, the charge given in this case was sufficient to inform the jury

of the limited purpose for which the guilty pleas could be considered. The guilty plea of

concern here was not used as evidence against Appellants Crim and Taylor. There was

no error, much less a plain one, by omitting this part of the model jury instructions.

                        VI. The Willful Blindness Jury Instruction

       Appellant Brownlee next argues that the District Court erred by instructing the

jury on “willful blindness” because there was no evidence that he deliberately ignored

learning about CTC tax evasion schemes. Under the willful blindness doctrine, a

defendant has knowledge of a fact if he is “aware of a high probability” of the fact and

“consciously and deliberately tried to avoid learning about this fact.” United States v.

Stadtmauer, 620 F.3d 238, 257 (3d Cir. 2010). The District Court instructed the jury that

              When, as in this case, knowledge of a particular fact is
              essential to the offense charged, the Government may prove
              that the defendants knew of that fact if the evidence proves
              beyond a reasonable doubt that those defendants deliberately
              closed his or her eyes or that a defendant deliberately closed

                                             16
              his or her eyes to what would otherwise have been obvious to
              him or her.

              No one can avoid responsibility for a crime by deliberately
              ignoring the obvious. Thus, you may find that a defendant
              knew the purpose of the conspiracy was to deceive or cheat
              the United States by impeding or impairing, obstructing or
              defeating the lawful functions of the IRS based on evidence
              which proves that defendant was aware of a high probability
              of this fact and the defendant consciously and deliberately
              tried to avoid learning about this fact.

       Brownlee failed to object to this instruction, so we review for plain error. United

States v. Flores, 454 F.3d 149, 156 (3d Cir. 2006) (reviewing for plain error where the

defendant failed “to raise his objection to the willful blindness instruction at trial”). Here

again, we see no error, much less a plain one.

       Sufficient evidence supported this instruction. For example, throughout the trial

Brownlee‟s counsel maintained that Brownlee was unaware of CTC‟s “off-shore

program,” while other testimony indicated Brownlee expressed concern that certain

clients failed to use an off-shore mailing address. Based on this and other evidence in the

record, the jury could have found that Brownlee deliberately closed his eyes to what CTC

was instructing its clients to do. Therefore, the willful blindness instruction was properly

given. See, e.g., United States v. Leahy, 455 F.3d 634, 652 (3d Cir. 2006).

       Having determined that there are no errors that merit a reversal of the convictions,

we turn to those issues that concern the Appellants‟ sentences.

                       VII. Challenges to the Appellants‟ Sentences

       We review the Appellants‟ challenges to their sentences individually, beginning

with Appellant Crim.

                                              17
A.     Calculation of the Tax Loss.

       Appellant Crim raises several challenges to the District Court‟s calculation of the

tax loss charged against him. He argues that the loss calculated in the pre-sentence report

differs from the Government‟s loss calculation figures, and that the District Court cannot

adopt the pre-sentence report where it fails to resolve certain factual disputes. He further

argues that that the audit documentation submitted by the Government relating to the tax

loss does not “establish with any degree of reasonable certainty” what audit adjustments

made by the IRS were not attributable to CTC. Crim concedes that he failed to object to

the tax loss calculations at sentencing. We therefore review the District Court‟s

calculations for plain error. United States v. Williams, 464 F.3d 443, 445 (3d Cir. 2006).

We find no error here, much less a plain one.

       The Government maintained that the amount of tax loss was $17,242,806.57

whereas the pre-sentence report placed the amount at $15,415,279.00. The District Court

adopted the lesser figure set out in the pre-sentence report. For sentencing purposes,

however, this is a distinction without a difference. Both amounts lead to the same base

offense level of 26 under the advisory sentencing guidelines. See U.S.S.G. § 2T1.4 (tax

loss table). Furthermore, the District Court adopted the pre-sentence report range of 151-

188 months, reducing it to 96 months, which was the appropriate statutory maximum.

       Having considered all of Crim‟s further arguments on this point, we find no error.

B.     Substantive Reasonableness of Brownlee‟s Sentence




                                             18
       Appellant Brownlee maintains that the District Court abused its discretion when

imposing his sentence because it unreasonably failed to consider all of the § 3553(a)

factors. Our review of the record, however, reveals a sentence imposed within reason.

       The District Court sentenced Brownlee to a term of imprisonment of 78 months, a

term that was substantially below the Guidelines range. Brownlee does not challenge the

court‟s calculation of his Guidelines range, nor does he allege any procedural error during

the sentencing hearing. Instead, he limits his challenge to the substantive reasonableness

of the sentence imposed. We review for abuse of discretion. See Gall v. United States,

552 U.S. 38, 51 (2007); United States v. King, 454 F.3d 187, 194 (3d Cir. 2006).

       We are satisfied that Brownlee‟s sentence was reasonable. The District Court

followed the three-step process outlined in United States v. Gunter, 462 F.3d 237, 247

(3d Cir. 2006). It further gave “rational and meaningful consideration [to] the factors

enumerated in 18 U.S.C. § 3553(a)” as required by United States v. Grier, 475 F.3d 556,

571 (3d Cir. 2007) (en banc). The District Court also took into account Brownlee‟s

background, including the difficulties he had in his personal life as well as his extensive

involvement in the conspiracy. The District Court imposed a sentence that was below the

suggested advisory Guidelines range, which we find an eminently reasonable choice.

C.     Challenge to Appellant Trimble‟s Sentence

       Appellant Trimble also challenges the reasonableness of his sentence. He first

argues that the Government‟s tax loss calculation was mere speculation and hearsay,

rendering his sentence procedurally unreasonable. We reject this argument out-of-hand.



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The Government‟s calculation met the requirements of a reasonable estimate and Trimble

has pointed to no particular calculation as erroneous. See U.S.S.G. § 2T1.1, app. note 1.

       He argues further procedural unreasonableness, maintaining that the District Court

prohibited him from challenging the Government‟s $5.7 million loss figure attributed to

him. The record reflects, however, that Trimble brought no specific challenge to this

calculation and did not specifically object to the District Court‟s adoption of it.

Here again, we are satisfied that the District Court‟s sentence was procedurally and

substantively reasonable. As it did with the other Appellants, the District Court followed

the three-step process outlined in United States v. Gunter, 462 F.3d 237, 247 (3d Cir.

2006). The District Court gave “rational and meaningful consideration [to] the factors

enumerated in 18 U.S.C. § 3553(a)” as required by Grier, supra., including Trimble‟s

lack of criminal history, familial situation, civic and charity involvement, contrition and

character evidence. The District Court imposed a sentence that was within the suggested

advisory guidelines range, which was not an abuse of its discretion.

                             VIII. Errors Requiring a Remand

       The Government correctly acknowledges that problems exist with the manner in

which the District Court ordered restitution against Appellants Crim and Taylor and in

which it sentenced Appellant Crim. After careful review, these errors require us to vacate

Appellant Crim‟s sentence and remand his case for resentencing. We further remand

Crim and Taylor‟s cases for clarification of the District Court‟s restitution order.

A.     Appellant Crim‟s Sentence



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       Appellant Crim was sentenced to 96 months on both Counts One and Two of the

indictment, to run concurrently. This was error.

       In United States v. Ward, 626 F.3d 179 (3d Cir. 2010), we held that a District

Court commits procedural error when it sentences a defendant to an individual sentence

on all counts, rather than sentencing him separately on each count of an indictment. We

explained that such a sentence is inconsistent with U.S.S.G. § 5G1.2 and prevents us

from determining whether the sentence is legal as to a particular count. Id. at 184.

       In light of our decision in Ward, we will vacate Crim‟s sentence and remand this

matter to the District Court with instructions for it to impose sentence on each count.

B.     Restitution Orders

       Under the Mandatory Victims Restitution Act, (MVRA), “[a] person sentenced to

pay a fine or other monetary penalty, including restitution, shall make such payment

immediately unless . . . the court provides for payment on a date certain or in

installments.” 18 U.S.C. § 3572(d)(1). This statute also mandates that the sentencing

order include a payment schedule in consideration of the defendant‟s economic

circumstances. See 18 U.S.C. § 3664(f)(2), see also, United States v. Coates, 178 F.3d

681, 684 (1999). Failure to do so constitutes plain error. United States v. Corley, 500

F.3d 210, 227 (3d Cir. 2007).

       Here, as the Government concedes and Appellants Crim and Taylor point out, the

District Court ordered restitution in the amount of $17,242,306.57 from Appellant Crim

and $3, 300,000.00 from Appellant Taylor, but the record reveals the District Court‟s


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failure to take into account their financial resources and a failure to state on the record the

manner and schedule of payments. The District Court‟s sentencing orders are also silent

on these matters, but for the amount of restitution ordered and that restitution is to be

made immediately.

       It was plain error, therefore, for the District Court to order restitution without

taking into account Crim and Taylor‟s financial resources and without stating, on the

record, the manner, method and schedule of payments. We will, therefore, vacate the

District Court‟s orders of restitution in those appeals and remand those matters to the

District Court so that it may specify the amount of restitution and the method, manner

and schedule of payments, after taking into account the financial resources of each

Appellant.

                                     IX.     Conclusion

       We will affirm the convictions of Appellants Crim, Brownlee and Taylor. We

affirm the sentences given Appellants Brownlee, Taylor and Trimble. We will vacate

Appellant Crim‟s sentence and remand for resentencing. We will also vacate the award

of restitution entered against Appellants Crim and Taylor and will remand to the District

Court for clarification.




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