United States v. Steven Boitano

                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                   No. 14-10139
            Plaintiff-Appellee,
                                            D.C. No.
               v.                     5:11-cr-00585-EJD-1

STEVEN FRANK BOITANO,
          Defendant-Appellant.               OPINION


      Appeal from the United States District Court
        for the Northern District of California
      Edward J. Davila, District Judge, Presiding

                 Argued and Submitted
       June 12, 2015—San Francisco, California

                    Filed August 12, 2015

      Before: Mary M. Schroeder, Sandra S. Ikuta,
         and Morgan Christen, Circuit Judges.

              Opinion by Judge Christen
2                 UNITED STATES V. BOITANO

                           SUMMARY*


                          Criminal Law

    The panel reversed convictions for three felony counts of
making a false statement under penalty of perjury on personal
income tax returns in violation of 26 U.S.C. § 7206(1).

   The panel held that the convictions must be reversed
because circuit precedent establishes that “filing” is an
element of a conviction under § 7206(1), and the government
now concedes that the record does not support that the returns
were filed.


                            COUNSEL

David M. Kirsch (argued), Law Office of David M. Kirsch,
San Jose, California; and Charles M. Sevilla (argued), Law
Office of Charles Sevilla, San Diego, California, for
Defendant-Appellant.

Anne M. Voigts (argued), Assistant United States Attorney,
Barbara J. Valliere, Chief, Appellate Division, and Melinda
Haag, United States Attorney, San Francisco, California, for
Plaintiff-Appellee.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                 UNITED STATES V. BOITANO                      3

                          OPINION

CHRISTEN, Circuit Judge:

    Steven Boitano appeals his jury convictions for three
felony counts of making a false statement under penalty of
perjury on personal income tax returns in violation of
26 U.S.C. § 7206(1). We have jurisdiction under 28 U.S.C.
§ 1291 and we reverse Boitano’s felony convictions.

                      BACKGROUND

     During the period relevant to this appeal, Boitano was a
partner in Boitano, Sargent & Lilly, an accounting firm. His
responsibilities included preparing tax returns and
representing clients during IRS audits, but Boitano did not
file his own income tax returns for the years 1991 to 2007.
The IRS undertook an examination in 1992/1993 and in 2004.
Boitano still did not file any returns, and his case was referred
to the IRS’s Special Enforcement Program.

    In June 2009, Special Enforcement Program Agent Nick
Connors requested a meeting with Boitano regarding his
failure to file returns for 2001 through 2007. Connors and
Boitano ultimately met three times. During the third meeting,
Boitano handed Connors income tax returns for 2001, 2002,
and 2003. The returns were signed under penalty of perjury
by Boitano and his wife. Connors stamped the first page of
the returns “Internal Revenue Service, SB/SE - Compliance
Field, Sep 04, 2009, Area 7, San Francisco, CA,” and hand
wrote “delinquent return secured by exam” on the first page
of each. Per Boitano’s request, Connors copied the first page
of the returns and gave the copies to Boitano as receipts.
4               UNITED STATES V. BOITANO

    The returns Boitano handed to Connors reported
“estimated tax payments” that had not been made. The 2001
return reported a $26,000 payment, the 2002 return reported
a $38,000 payment, and the 2003 return reported a $57,000
payment. In fact, the government calculated that Boitano
owed the IRS $52,953.80 for 2001, $72,797.00 for 2002, and
$104,545.94 for 2003.

     Agent Connors quickly realized that the IRS did not have
record of receiving the claimed estimated tax payments.
Therefore, instead of sending the returns to the IRS service
center for processing, he confronted Boitano with the
discrepancy. According to Connors, Boitano “physically got
a little pale and said that he was not sure why there [were]
differences.” Soon thereafter, Connors sent Boitano a letter
asking that he substantiate the estimated tax payments, or, if
those estimates were not correct, that he identify the correct
estimated amounts with “a written statement dated and signed
explaining in detail why you believed the estimated payments
to be the amounts reported on the delinquent returns filed on
9/4/09.” Boitano never responded.

    Boitano was indicted and charged with three counts of
making false statements under 26 U.S.C. § 7206(1). Section
7206(1) establishes that it is a felony for any person to
“[w]illfully make[] and subscribe[] any return, statement, or
other document, which contains or is verified by a written
declaration that it is made under the penalties of perjury, and
which he does not believe to be true and correct as to every
material matter.” Boitano was also charged with three
misdemeanor counts of failure to file taxes under 26 U.S.C.
§ 7203. He pleaded guilty to the three misdemeanors, but
                    UNITED STATES V. BOITANO                        5

proceeded to trial on the felony charges.1

    Boitano argued at trial that filing is an essential element
of § 7206(1) and that his act of handing the returns to Agent
Connors did not constitute “filing” within the applicable IRS
statute and regulations. The government agreed that filing is
an element of the charged offense, but argued the filing
element was satisfied by the uncontradicted evidence
showing that Boitano handed fraudulent returns to Agent
Connors. The district court agreed with the government.
Over objection, Connors was permitted to testify that Boitano
“filed 2001, 2002, and 2003 delinquent tax returns with me.”
Connors provided additional foundational testimony that the
IRS “treat[ed] the[] returns as having been filed” on
September 4, 2009, the day Boitano handed them to Connors.

   The court instructed the jury that in order to convict
Boitano, it had to find beyond a reasonable doubt:

              First, the defendant made and signed a tax
          return for the years 2001, 2002 or 2003 that he
          knew contained false information as to a
          material matter;

              Second, the return contained a written
          declaration that it was being signed subject to
          the penalties of perjury; and

              Third, in filing the false tax return, the
          defendant acted willfully.

The court did not define “filing” for the jury.

 1
     The misdemeanor convictions are not at issue in this appeal.
6               UNITED STATES V. BOITANO

    After Boitano was found guilty on the three felony counts,
he moved for acquittal or a new trial on the basis that the
evidence did not show his returns had been filed. The district
court denied the motion, ruling that Boitano “brought these
returns and handed them to the agent for the purpose of filing
and then waited for the stamps to be stamped on them.”

    The district court sentenced Boitano to 5 months’
imprisonment on each of the misdemeanor convictions, to run
concurrently, and 36 months’ imprisonment on each of the
felony convictions, also to run concurrently. The 5-month
and 36-month periods were to run consecutively. Boitano
timely appealed. He has served his prison term for the
misdemeanor convictions and is free on bail pending the
resolution of this appeal.

                STANDARD OF REVIEW

    Challenges to the sufficiency of the evidence are reviewed
de novo. United States v. Stewart, 420 F.3d 1007, 1014 (9th
Cir. 2005). We ask whether, viewing the evidence in the light
most favorable to the government, “any rational trier of fact
could have found the essential elements of the crime beyond
a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
(1979) (internal quotation marks omitted).

                       DISCUSSION

    Boitano’s opening appellate brief reiterates the position
he argued unsuccessfully in the district court—that the
evidence did not show the subject returns were “filed” within
the meaning of the applicable IRS statutes and regulations
                    UNITED STATES V. BOITANO                               7

when he handed them to Agent Connors.2 The government’s
response brief takes an unusual twist. Reversing its prior
position, the government now concedes that “there is a single
definition of ‘filing’ that applies in both the civil and criminal
context,” and that “the record does not support that the
returns here were filed.” The government agrees with
Boitano that Connors’s testimony that the returns were “filed”
when Boitano handed them to him was incorrect. The
government’s new argument is that filing is not an element of
the charged offense because, “by its own terms, [§] 7206(1)
does not require the government to prove ‘filing’ as defined
by the IRS regulations to establish a violation of the statute.”
The government reasons, “under a correct understanding of
Section 7206(1), [Boitano’s] actions violated the statute by
his completing a return, signing it, and taking actions by
which he gave up any right of self-correction.” (Emphasis
added.) Notably, the government concedes that if it had to
prove the returns were filed within the meaning of the IRS
regulations, then Boitano’s convictions must be reversed.
Binding precedent supports Boitano’s position.

    Our court has long held that “filing” is an element of a
§ 7206(1) violation. In United States v. Hanson, we affirmed
a conviction for making false statements in violation of
§ 7206(1) where the defendant “fil[ed] false IRS forms that
reported payments [defendant] had never made and claimed
a tax refund [defendant] was not due.” 2 F.3d 942, 944 (9th
Cir. 1993). In so ruling, we stated that “[t]o prove a violation
of § 7206(1), making false statements, the government must


  2
    The government asserts that under 26 U.S.C. § 6091(b)(4) and 26
C.F.R. § 1.6091-2, returns are deemed filed if they are electronically filed,
mailed to the appropriate IRS service center, or hand-delivered to an agent
authorized to receive them.
8                   UNITED STATES V. BOITANO

prove that the defendant (1) filed a return, statement, or other
document that was false as to a material matter . . . .”3 Id. at
945.

    The government cites numerous reasons for its new
contention that § 7206(1) does not require filing, but it offers
no intervening authority for its argument that it should only
be required to show that Boitano gave up the right of self-
correction. It argues: (1) the statute, by its own terms, does
not require proof of filing; (2) the Supreme Court has not
identified filing as an element of the offense; (3) interpreting
the statute not to require filing makes sense because the
statute is not limited in its scope to tax returns; (4) the
statute’s legislative history does not establish that filing is an
element of the offense; and (5) filing a document is one way,
but not the only way, to satisfy the statute.

    We are bound, however, by Hanson’s plain and explicit
identification of “filing” as an element of a § 7206(1) offense.
Id. (“To prove a violation of § 7206(1) . . . the government
must prove that the defendant (1) filed a return. . . .”); see
also United States v. Tucker, 133 F.3d 1208, 1218 (9th Cir.
1998). The government’s argument that this language is
either unnecessary to the decision or is dictum is
unpersuasive. Dictum is “an unnecessary statement in a
published opinion that is not the result of reasoned
consideration.” Sinotes-Cruz v. Gonzales, 468 F.3d 1190,


    3
    The Ninth Circuit’s pattern jury instructions, which were used here,
reflect this rule: “In order for the defendant to be found guilty of [violating
26 U.S.C. § 7206(1)], the government must prove each of the following
elements beyond a reasonable doubt: . . . Third, in filing the false tax
return, the defendant acted willfully.” See Ninth Circuit Pattern Criminal
Jury Instruction § 9.39.
                UNITED STATES V. BOITANO                     9

1203 (9th Cir. 2006) (internal quotation marks omitted); see
also United States v. Johnson, 256 F.3d 895, 914 (9th Cir.
2001) (en banc) (“We hold that . . . where a panel confronts
an issue germane to the eventual resolution of the case, and
resolves it after reasoned consideration in a published
opinion, that ruling becomes the law of the circuit, regardless
of whether doing so is necessary in some strict logical
sense.”). Hanson’s language reflects our court’s reasoned
consideration of a matter that was both germane to the case
and necessary to the decision. Hanson specifically argued
that his tax returns were not “filed” because the IRS never
processed them. 2 F.3d at 946. The question on appeal was
whether the evidence was sufficient to sustain the conviction.
See id. at 945–46. We concluded it was because “[a] return
is ‘filed’ at the time it is delivered to the IRS,” and the
government showed “that Hanson personally mailed the
forms and that the IRS received them.” Id. at 946.

     Even if we disagreed with Hanson’s itemization of a
§ 7206(1) offense’s elements, as a three-judge panel we are
bound by prior panel opinions and can only reexamine them
when “the reasoning or theory of our prior circuit authority is
clearly irreconcilable with the reasoning or theory of
intervening higher authority.” Miller v. Gammie, 335 F.3d
889, 893 (9th Cir. 2003) (en banc). There is no such
intervening authority here. The government argues that a
Supreme Court case that preceded Hanson, United States v.
Bishop, 412 U.S. 346 (1973), indicates that the Court has not
included filing as an element of a § 7206(1) offense. But in
Bishop, filing was not contested. See id. at 350 (“The
incorrectness of the returns as filed . . . was not disputed at
trial.”). We know of no Supreme Court case holding that
“filing” is not a required element under § 7206(1).
10                UNITED STATES V. BOITANO

    In sum, because circuit precedent establishes that “filing”
is an element of a conviction under § 7206(1), and the
government now concedes “the record does not support that
the returns here were filed,” Boitano’s felony convictions
must be reversed.4

                         CONCLUSION

    We reverse Boitano’s convictions for three felony counts
of making a false statement under penalty of perjury on
personal income tax returns in violation of 26 U.S.C.
§ 7206(1).

     REVERSED.




  4
    Because we reverse Boitano’s convictions on this ground, we decline
to address his remaining arguments.