11-0393-cr(L)
United States v. Ohle
                          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.

      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 20th day of October, two thousand eleven.

PRESENT: ROBERT D. SACK,
         REENA RAGGI,
                   Circuit Judges,
         RICHARD K. EATON,
                   Judge.*

----------------------------------------------------------------------
UNITED STATES OF AMERICA,
                                          Appellee,

                         v.                                              Nos. 11-0393-cr(L),
                                                                              11-0395-cr(CON)
JOHN B. OHLE, III, WILLIAM E. BRADLEY,
                                          Defendants-Appellants.
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APPEARING FOR APPELLANTS:                        STUART E. ABRAMS, Frankel & Abrams, New
                                                 York, New York, for Defendant-Appellant John
                                                 B. Ohle, III.


           *
        Judge Richard K. Eaton of the United States Court of International Trade, sitting by
designation.

                                                     1
                                             EDWARD S. ZAS, Federal Defenders of New
                                             York, Inc., Appeals Bureau, New York, New
                                             York, for Defendant-Appellant William E.
                                             Bradley.

APPEARING FOR APPELLEE:                      STANLEY J. OKULA, JR., Assistant United
                                             States Attorney (Katherine Polk Failla, Assistant
                                             United States Attorney, Nanette L. Davis, Special
                                             Assistant United States Attorney, on the brief), on
                                             behalf of Preet Bharara, United States Attorney
                                             for the Southern District of New York, New
                                             York, New York.

       Appeal from the United States District Court for the Southern District of New York

(Jed S. Rakoff, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgments entered on January 28, 2011, are AFFIRMED.

       John B. Ohle, III and William E. Bradley appeal from convictions entered after a jury

trial at which both men were found guilty of conspiracy to defraud an agency of the United

States, specifically, the Internal Revenue Service, see 18 U.S.C. §§ 371, 1341, 1343; 26

U.S.C. § 7201, and at which Ohle was also found guilty of two counts of attempted tax

evasion, see 26 U.S.C. § 7201. Defendants challenge the sufficiency of the evidence

supporting their convictions and related forfeiture orders, as well as the district court’s denial

of their new trial motion based on a purported denial of due process as recognized in Brady

v. Maryland, 373 U.S. 83, 87 (1985). Bradley further challenges his 12-month prison

sentence as procedurally unreasonable. We assume the parties’ familiarity with the facts and

record of prior proceedings, which we reference only as necessary to explain our decision

to affirm.

                                                2
       1.     Sufficiency Challenges

       Defendants bear a heavy burden in raising sufficiency challenges to their convictions

because although our standard of review is de novo, we must view the trial evidence in the

light most favorable to the verdict, assuming that the jury resolved all questions of witness

credibility and competing inferences in favor of the prosecution. See United States v. Abu-

Jihaad, 630 F.3d 102, 134-35 (2d Cir. 2010), cert. denied, 131 S. Ct. 3062 (2011). Under this

“exceedingly deferential” standard of review, United States v. Hassan, 578 F.3d 108, 126 (2d

Cir. 2008), defendants can secure relief only by showing that no rational trier of fact could

have found the essential elements of the crimes beyond a reasonable doubt, see Jackson v.

Virginia, 443 U.S. 307, 319 (1979); accord United States v. Abu-Jihaad, 630 F.3d at 135.

              a.     Conspiracy

       Defendants contend that the evidence did not permit a reasonable jury to find that

schemes to defraud one of Ohle’s trust clients, Ecetra Ames, and his employer, Bank One,

were part of the charged single overarching conspiracy to defraud the United States. We

disagree.   The question of whether evidence shows a single conspiracy or multiple

independent conspiracies “is a question of fact for a properly instructed jury.” United States

v. Burger, 224 F.3d 107, 114 (2d Cir. 2000); accord United States v. Chavez, 549 F.3d 119,

125 (2d Cir. 2008). Defendants do not contend that the jury was improperly instructed on

this point. Having reviewed the record, we conclude that a rational jury could have found

that the complex, multi-phase process by which conspirators stole money from the Ames

trust, then stole fees from Bank One that would not otherwise have gone to them, and finally


                                              3
avoided paying federal taxes on the monies so obtained constituted a single interdependent

scheme to defraud the United States. See United States v. McDermott, 245 F.3d 133, 136-37

(2d Cir. 2001); United States v. Sureff, 15 F.3d 225, 230-31 (2d Cir. 1994).1

       Defendants further argue that the evidence was insufficient to permit a reasonable jury

to find that the charged conspiracy affected a financial institution, as required to afford the

government the benefit of the ten-year statute of limitations specified in 18 U.S.C. § 3293(2).

In fact, evidence of referral fees paid to John Manella, Bradley, and Jay Gordon in

connection with “HOMER” tax shelter transactions permitted a reasonable jury to find this

effect requirement satisfied in the manner charged by the district court, i.e., by obtaining

monies that Bank One would otherwise not have paid, or at the very least, not to these

persons. Cf. United States v. Aguilar, 585 F.3d 652, 656 (2d Cir. 2009).

              b.     Tax Evasion

       Ohle next argues that the trial evidence was insufficient to permit any reasonable jury

to find him guilty of attempted tax evasion. He submits that he did not have fair notice that

his conduct in entering into the complex “1256” tax shelter transaction at issue, see 26 U.S.C.




       1
         Insofar as defendants submit that their conspiracy convictions are repugnant to law
because Bank One was itself guilty of marketing unlawful tax shelters, the argument fails
because the scheme to defraud Bank One, whatever its culpability, was only part of the
charged conspiracy to avoid paying federal taxes to the United States on criminally obtained
monies. See James v. United States, 366 U.S. 213, 221 (1961) (refusing to “perpetuate the
injustice of relieving embezzlers of the duty of paying income taxes on the money they
enrich themselves with while honest people pay their taxes on every conceivable type of
income”).

                                              4
1256, could constitute a willful attempt to evade federal income taxes, see 26 U.S.C. § 7201.

Neither argument is persuasive.

        Trial evidence showed that Ohle, a tax lawyer and certified accountant, stated to

various “1256” shelter participants that the vehicle was structured to limit their actual risk

of loss to the amount invested. The jury heard further evidence indicating Ohle’s knowledge

that the investment would generate paper losses in far larger—i.e., multimillion

dollar—amounts. It also heard that Ohle nevertheless made false statements to another tax

lawyer regarding the nature of the shelter transaction to obtain an opinion letter indicating

that his own investment objectives and his claimed tax deduction from these paper losses

were lawful. Where the evidence so convincingly demonstrates an intent to defraud the

United States of taxes owed, we need not delineate the precise boundaries of the “at risk” or

“primarily for profit” theories of evasion pursued by the government, see 26 U.S.C.

§§ 465(b)(4), 165(c)(2), in order to reject Ohle’s fair notice argument on the merits, see

United States v. Tannenbaum, 934 F.2d 8, 11 (2d Cir. 1983) (rejecting fair warning challenge

where ample trial evidence demonstrated that defendant knew he was committing unlawful

act).

              c.     Venue

        Defendants argue that the trial evidence was insufficient to permit a preponderance

finding that the charged crimes were properly venued in the Southern District of New York.

See United States v. Rommy, 506 F.3d 108, 119 (2d Cir. 2007) (discussing preponderance

standard for venue). Venue is proper where the defendant intentionally or knowingly caused


                                              5
an act in furtherance of the charged offense to occur, or where the defendant could

reasonably foresee that such an act would occur as a result of his own conduct. See United

States v. Svoboda, 347 F.3d 471, 483 (2d Cir. 2003).

                     i.     Conspiracy

       For a conspiracy charge, venue lies in any district in which an overt act in furtherance

of the conspiracy was committed by any conspirator. See id. at 482-83. This can include

evidence that a conspirator traveled into the district, see United States v. Nathan, 476 F.2d

456, 461-62 (2d Cir. 1973), or directed communications into the district, see United States

v. Rommy, 506 F.3d at 120, in furtherance of the charged scheme.

       Defendants argue that the only relevant acts proved to have occurred in the Southern

District of New York predated the charged conspiracy. The argument is grounded in

defendants’ contention that acts relating to the Ames trust embezzlement, many of which

occurred in the Southern District of New York, could not be viewed as part of the later

referral-fee scheme. Having already concluded that a reasonable jury could find all these

activities to be part of the single charged conspiracy against the United States, we reject

defendants’ argument that overt acts in the Southern District of New York pertaining to the

Ames trust do not suffice to satisfy venue on the conspiracy count.

                     ii.    Tax Evasion

       A tax evasion charge is properly venued wherever a defendant’s attempt to evade

taxes was begun, continued, or completed. See United States v. Drachenberg, 623 F.3d 122,

125 (2d Cir. 2010); cf. Spies v. United States, 317 U.S. 492, 499 (1943) (holding that “any


                                              6
conduct, the likely effect of which would be to mislead or to conceal” can be affirmative act

of tax evasion).

       As to Count 2, a reasonable jury could find venue in the Southern District of New

York based on wire transfers that Ohle directed others to send from the United States to

Bermuda and back because they passed through New York correspondent banks.2 The

evidence showed that (1) on November 19, 2001, Ohle directed Charles Schwab to wire

transfer $7 million from Ames trust accounts in San Francisco to Carpe Diem accounts in

Bermuda; (2) on November 27, 2001, Ohle directed Schwab to transfer an additional

$347,834.04 from the San Francisco accounts to the Carpe Diem Bermuda accounts; (3) on

December 3, 2001, Ohle directed Carpe Diem to transfer $300,000 back to United States

accounts; and (4) on December 7, 2001, Ohle directed Carpe Diem to transfer the full

$347,834.04 back to United States accounts. A reasonable jury could find that as a

sophisticated lawyer and tax accountant, Ohle would have foreseen that these international

wire transfers would necessarily pass through New York correspondent banks. See Citibank,

N.A. v. Wells Fargo Asia Ltd., 495 U.S. 660, 663 (1990) (“To complete [international]

transactions, most banks that participate in the interbank trading market utilize correspondent

banks in New York City, with whom they maintain, directly or indirectly, accounts

denominated in United States dollars.”).


       2
        In light of Ohle’s sophistication, the fact that he sent multiple transfers through New
York correspondent banks, and the independent record evidence supporting the reasonable
conclusion that the transfers served a tax evasion purpose, we find it is unnecessary to
express a view regarding whether a showing of only a single such transfer, without more,
could establish venue on a tax evasion charge in the Southern District of New York.

                                              7
       Further, while the most obvious purpose of these transfers was to swindle the Ames

trust undetected, the following evidence supports a reasonable preponderance that all four

transfers also served a tax evasion purpose. See Spies v. United States, 317 U.S. at 499.

First, regarding the $7 million and $300,000 transfers, Edward Doherty at Carpe Diem

testified that Ohle told him that the Ames trust planned to make a single payment to Carpe

Diem in Bermuda that would include Ohle’s $300,000 “commission,” and that Carpe Diem

should then wire Ohle’s “commission” back to the United States. See Trial Tr. at 1009. An

IRS agent testified that Carpe Diem wired the $300,000 back not to Ohle but, rather, to an

“Invested Interest” account held by one of Ohle’s associates, Jonathan Freedman. See id. at

1962-63. The IRS agent further testified that Freedman then transferred $250,000 of the

$300,000 total to Brown to fund Brown’s role in the fraudulent referral fee scheme, and only

sent the remaining $50,000 on to Ohle personally. See id. From the totality of this evidence,

a jury could reach a preponderance finding that Ohle concocted this first sequence of

international wire transfers not just to steal and hide his theft from the Ames trust, but also

to hide from tax authorities $250,000 of the $300,000 total income that he thereby received.

       Second, regarding the two $347,834 transfers, Doherty testified that the first of these

transfers was characterized as an “overpayment” on the Ames trust investment. See Trial Tr.

at 1010-11. After Carpe Diem received the “overpayment,” Ohle told Carpe Diem that the

Ames account in San Francisco had been closed, and that the “overpayment” should thus be

returned to a different trust account, see id. at 1011-12, an account that the IRS agent

identified as the same Freedman account to which Ohle’s $300,000 “commission” had been


                                              8
wired. See id. at 1964. The IRS agent further testified that Freedman transferred $250,000

of the $347,834 total to Brown, and only the remaining $97,834 to Ohle personally. See id.

at 1964-65. Again, a reasonable jury could infer from the totality of the circumstances that

Ohle devised the second sequence of wire transfers to hide $250,000 of $347,834 in

embezzled income from tax authorities.

       Ohle’s venue challenge to Count 3 merits little discussion. Trial evidence showed that

Ohle directed misleading communications to a lawyer in the Southern District of New York

in order to obtain an opinion letter regarding the “1256” shelter that would facilitate his

evasion of federal taxes. A jury reasonably could have easily concluded that this conduct

was intended to mislead or conceal information about Ohle’s tax liability and, thus, that the

attempted tax evasion charge in Count 3 was also properly venued in the Southern District

of New York. See United States v. Gross, 276 F.2d 816, 820 (1960).

       2.     Bradley’s Sentencing Challenge

       Bradley argues that his sentence is infected by procedural error, specifically, a

miscalculation of his Sentencing Guidelines range by (1) the application of a two-level

enhancement for abuse of trust, see U.S.S.G. § 3B1.3; (2) the refusal to apply a two-level

minor-participant adjustment, see id. § 3B1.2(b); and (3) a miscalculation of the loss

resulting from his offenses, see id. § 2B1.1(b)(1). We review these sentencing challenges

for reasonableness, a standard akin to abuse of discretion, see United States v. Cavera, 550

F.3d 180, 187 (2d Cir. 2008) (en banc), and we conclude that each challenged Guidelines

calculation is supported by a preponderance of the evidence. See United States v. Garcia,


                                             9
413 F.3d 201, 220 n.15 (2d Cir. 2005). Even if we were to conclude otherwise, however, any

error would have been harmless because the sentencing record unambiguously indicates that

the district court would have imposed the same below-guidelines sentence of 12 months’

imprisonment regardless of the Guidelines. See United States v. Jass, 569 F.3d 47, 68 (2d

Cir. 2009); accord United States v. Feldman, 647 F.3d 450, 460 (2d Cir. 2011).

       3.     Forfeiture Challenges

       We review defendants’ challenges to the district court’s forfeiture orders for abuse of

discretion. See United States v. Gaskin, 364 F.3d 438, 461-62 (2d Cir. 2004).

              a.     Bradley’s Forfeiture Challenge

       Bradley’s challenge to the order that he forfeit $255,000 appears to rest on the

mistaken premise that he can only be required to forfeit fraud proceeds that he personally

kept. To the contrary, 18 U.S.C. § 981(a)(1)(C) authorizes forfeiture of “[a]ny property . . .

which constitutes or is derived from proceeds traceable to” the offense, id., whether kept by

the defendant or shared with others, see United States v. Uddin, 551 F.3d 176, 181 (2d Cir.

2009). We identify no clear error in the district court’s factual finding that Bradley obtained

$255,000 in proceeds from Bank One traceable to the charged conspiracy, and that any

payments Bradley made from these proceeds to Manella were not for services Manella

rendered to Bank One. Accordingly, we reject Bradley’s forfeiture challenge on the merits.

              b.     Ohle’s Forfeiture Challenge

       Ohle argues that the district court erred in ordering him to forfeit $2,954,344. As with

Bradley, we identify no clear error in the district court’s factual finding that Ohle received


                                              10
$2,954,344 constituting, or derived from, proceeds traceable to the charged conspiracy. See

18 U.S.C. § 981(a)(1)(C). Specifically, we cannot say that the district court clearly erred in

finding that $697,934 in funds embezzled from Ames constituted proceeds traceable to the

conspiracy, and that, in light of the fact that these embezzled funds were used to fund Ken

Brown’s role in the conspiracy, the $1 million Brown later paid to Ohle was “derived from”

those earlier proceeds. Id.

       4.     New Trial

       Finally, Ohle and Bradley assert that the government’s failure to make disclosures

required by Brady v. Maryland, 373 U.S. 83, compelled the district court to grant them a new

trial. See Fed. R. Crim. P. 33. Here again, our standard of review is abuse of discretion. See

United States v. Brunshtein, 344 F.3d 91, 101 (2d Cir. 2003). Having reviewed the district

court’s thoughtful and meticulous opinion denying defendants’ Rule 33 motions, see United

States v. Ohle, No. 3:08cr1109 (JSR), 2011 WL 651849 (S.D.N.Y. Feb. 7, 2011), we reject

their Brady claim as meritless.

       Defendants can point to only one potentially material document that was not contained

in the original electronic database turned over by the government. For the reasons stated by

the district court, defendants cannot show a reasonable probability that timely disclosure of

this document would have resulted in a different outcome at trial. See id. at *5-6; United

States v. Persico, 645 F.3d 85, 111 (2d Cir. 2011); United States v. Brunshtein, 344 F.3d at

101. Accordingly, there is no need to remand, as defendants urge, for an evidentiary hearing

on their Brady claims. Cf. United States v. Erb, 543 F.2d 438, 443 (2d Cir. 1976) (rejecting

argument that claim of evidence suppression required evidentiary hearing).

                                             11
      We have considered defendants’ remaining arguments and conclude that they are

without merit. For the foregoing reasons, the judgments of conviction are AFFIRMED.

                                FOR THE COURT:
                                CATHERINE O’HAGAN WOLFE, Clerk of Court




                                         12
