     14-2032-cr
     United States v. Cote

                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER

     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
     SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
     BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
     WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
     MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
     NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
     OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.



 1           At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
 2   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
 3   28th day of August, two thousand fifteen.
 4
 5   Present:    GUIDO CALABRESI,
 6               CHESTER J. STRAUB,
 7               ROSEMARY S. POOLER,
 8                           Circuit Judges.
 9   _____________________________________________________
10
11   UNITED STATES OF AMERICA,
12
13                                  Appellee,
14
15                           v.                                                 14-2032-cr
16
17   JOHN COTE,
18
19                           Defendant-Appellant.
20   _____________________________________________________
21
22   Appearing for Appellant:       PETER GOLDBERGER (Pamela A. Wilk, on the brief), Ardmore,
23                                  PA.
24
25   Appearing for Appellee:        ALEXANDER P. ROBBINS, Attorney, Tax Division, Department
26                                  of Justice (Caroline D. Ciraolo, Acting Assistant Attorney General;
27                                  Frank P. Cihlar, Chief, Criminal Appeals & Tax Enforcement
28                                  Policy Section; Gregory Victor Davis, Attorney, Tax Division,
29                                  Department of Justice; Deirdre M. Daly, United States Attorney
30                                  for the District of Connecticut, on the brief), Washington, DC.
31
 1   Appeal from the United States District Court for the District of Connecticut (Bryant, J.).
 2
 3        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
 4   AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
 5
 6           Defendant-Appellant John Cote appeals from the May 29, 2014 judgment of the United
 7   States District Court for the District of Connecticut (Bryant, J.), convicting him, after jury trial,
 8   of one count of conspiracy to commit tax evasion, in violation of 18 U.S.C. § 371, and four
 9   counts of tax evasion, in violation of 26 U.S.C. § 7201. Cote was principally sentenced to 46
10   months’ incarceration and ordered to pay $222,690.57 in restitution. We assume the parties’
11   familiarity with the underlying facts, procedural history, and specification of issues for review.
12
13           Cote argues that the district court committed reversible error in failing to offer sua sponte
14   a limiting instruction with respect to evidence entered by the government and in its instructions
15   to the jury on the overt act requirement for the conspiracy count. Neither contention has merit.
16
17            We review a district court’s failure to give an unrequested limiting instruction for plain
18   error, United States v. Hurtado, 47 F.3d 577, 585 (2d Cir. 1995), and will reverse only if the
19   error “is egregious and obvious and if reversal is necessary to redress a miscarriage of justice,”
20   United States v. Tracy, 12 F.3d 1186, 1195 (2d Cir. 1993) (internal quotation marks omitted).
21   Here, Cote contends that the district court should have restricted the jury’s consideration of a
22   February 2009 IRS booklet, “The Truth About Frivolous Tax Arguments,” to the tax evasion
23   counts arising from conduct occurring after the date of the document’s publication. However,
24   this exhibit was relevant to Cote’s earlier acts. See United States v. Bok, 156 F.3d 157, 165–66
25   (2d Cir. 1998) (“The jury may consider evidence of intent to evade taxes in one year as evidence
26   of intent to evade payment in prior or subsequent years.” (quoting United States v. Ebner, 782
27   F.2d 1120, 1126 n.7 (2d Cir. 1986))). In these circumstances, the district court did not commit
28   error, let alone plain error, in failing to offer sua sponte the limiting instruction Cote requests for
29   the first time on appeal.
30
31           As Cote acknowledges, binding Second Circuit precedent forecloses his argument that
32   the jury be instructed to find unanimously a specific overt act in order to return a conviction on
33   the Section 371 conspiracy offense. In United States v. Kozeny, 667 F.3d 122 (2d Cir. 2011), we
34   held that “although proof of at least one overt act is necessary to prove an element of
35   [conspiracy], which overt act among multiple such acts supports proof of a conspiracy conviction
36   is a brute fact and not itself [an] element of the crime. The jury need not reach unanimous
37   agreement on which particular overt act was committed in furtherance of the conspiracy” id. at
38   132. We are bound by prior decisions of this Court unless overruled by an en banc panel or the
39   Supreme Court. United States v. Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004).
40
41           Challenging his sentence on several fronts, Cote argues that the district court: (1) erred in
42   determining the total “tax loss” amount for purposes of calculating his Guidelines sentencing
43   range; (2) miscalculated the restitution amount; and (3) violated the Sixth Amendment by relying
44   on facts not found by the jury in imposing restitution. We reject all of Cote’s contentions.
45




                                                        2
 1          A district court’s sentence is reviewed for both procedural and substantive
 2   reasonableness, a “standard . . . akin to review for abuse of discretion.” United States v.
 3   Fernandez, 443 F.3d 19, 27 (2d Cir. 2006), abrogated on other grounds by Rita v. United States,
 4   551 U.S. 338 (2007). A procedural error occurs where a district court, inter alia, “makes a
 5   mistake in its Guidelines calculation.” United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008).
 6   We apply plain error review to sentencing challenges where the defendant fails to object to his
 7   sentence on such ground before the district court. See United States v. Thomas, 274 F.3d 655,
 8   666 (2d Cir. 2001).
 9
10            Cote argues that the district court miscalculated the total “tax loss” amount by including
11   (a) tax amounts that neither the court nor the jury found had resulted from criminal conduct and
12   (b) penalties and interest. As an initial matter, it is clear that the district court made the
13   appropriate factual findings by adopting, as modified, the findings of fact in the presentence
14   report in open court. See United States v. Molina, 356 F.3d 269, 275 (2d Cir. 2004) (“A district
15   court satisfies its obligation to make the requisite specific factual findings when it explicitly
16   adopts the factual findings set forth in the presentence report.”). Cote raises a substantial
17   question as to whether the district court erred in considering interest and penalties when
18   calculating the “tax loss” amount resulting from his conviction for tax evasion conspiracy under
19   18 U.S.C. § 371, where the relevant commentary provides that “[t]he tax loss does not include
20   interest or penalties, except in willful evasion of payment cases under 26 U.S.C. 7201 and willful
21   failure to pay cases under 26 U.S.C. 7203.” U.S.S.G. § 2T1.1, Application Note 1. However,
22   because the district court unambiguously stated that it would have imposed the same sentence
23   were Cote to prevail on his interpretation of the Guidelines, any error in calculating the
24   Guidelines sentencing range was harmless. See United States v. Feldman, 647 F.3d 450, 459 (2d
25   Cir. 2011).
26
27          Next, we turn to the restitution order. The district court’s imposition of restitution under
28   the Mandatory Victim Restitution Act (“MVRA”) is also reviewed for abuse of discretion, but
29   where the defendant fails to object at the time of sentencing, we review for plain error. See
30   United States v. Zangari, 677 F.3d 86, 91 (2d Cir. 2012).
31
32            On appeal, Cote primarily contends that the district court erred in including interest and
33   penalties in setting the restitution amount. The Internal Revenue Code “expressly defines ‘tax’ to
34   include penalties and interest.” Carroll v. United States, 339 F.3d 61, 76 (2d Cir. 2003); 26
35   U.S.C. §§ 6665(a)(2), 6601(e)(1). Thus, in determining the loss caused to the government by the
36   conspiracy to avoid the payment of Cote’s outstanding tax liability, the district court properly
37   considered these figures. See 18 U.S.C. § 3663A(b)(1)(B)(i) (defining the measure of “loss” for
38   restitution purposes as “the value of the property” taken from the victim).
39
40            Finally, Cote submits that the district court committed plain error by imposing a
41   restitution amount not determined by the jury, in violation of the Sixth Amendment. However,
42   we recently concluded in United States v. Bengis, 783 F.3d 407 (2d Cir. 2015), “that judicial
43   factfinding to determine the appropriate amount of restitution under a statute that does not
44   prescribe a maximum does not implicate a defendant’s Sixth Amendment rights,” id. at 413.
45




                                                       3
1           We have considered the remainder of Cote’s arguments and find them to be without
2   merit. Accordingly, the judgment of the district court hereby is AFFIRMED.
3
4                                                     FOR THE COURT:
5                                                     Catherine O’Hagan Wolfe, Clerk
6




                                                  4
