2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-6-2002

USA v. Corbett

Precedential or Non-Precedential: Non-Precedential

Docket No. 01-4419

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Recommended Citation

"USA v. Corbett" (2002). 2002 Decisions. Paper 481.

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 NOT PRECEDENTIAL 

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 __________ 

 No. 01-4419 

 __________ 

 

 UNITED STATES OF AMERICA 

 v. 

 AMARYLLIS E. CORBETT 

 Amaryllis E. Corbett, B.A., M.A., 

 Appellant 

 __________ 

 

 ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

 FOR THE WESTERN DISTRICT OF PENNSYLVANIA 

 D.C. Crim. No. 00-cr-00063 

 District Judge: The Honorable Donetta W. Ambrose 

 __________ 

 

 Argued July 22, 2002 

 __________ 

 

 Before: SLOVITER, NYGAARD, and BARRY, Circuit Judges 

 (Opinion Filed: August 6, 2002) 

 ____________ 

 

Renee Pietropaolo, Esquire (Argued) 

W. Penn Hackney, Esquire 

Karen S. Gerlach, Esquire 

Office of Federal Public Defender 

1001 Liberty Avenue 

1450 Liberty Center 

Pittsburgh, PA 15222 

Attorneys for Appellant 

Robert S. Cessar, Esquire (Argued) 

Bonnie R. Schlueter, Esquire 

Michael L. Ivory, Esquire 

Office of the United States Attorney 

633 United States Post Office & Courthouse 

Pittsburgh, PA 15219 

Attorneys for Appellee 

 ____________ 

 

 OPINION 

 ____________ 

BARRY, Circuit Judge 

 Following a jury trial in the United States District Court for the Western District 
of Pennsylvania, appellant Amaryllis E. Corbett was convicted of five counts of income 

tax evasion in violation of 26 U.S.C. 7201, two counts of wire fraud in violation of 18 

U.S.C. 1343, and two counts of mail fraud in violation of 18 U.S.C. 1341. The 

District Court sentenced Corbett, as relevant here, to thirty months of imprisonment and 

restitution in the amount of $107,241.60 to the Social Security Administration ("SSA") 

and $260,674.71 to the Office of Personnel Management ("OPM"). Corbett appeals only 

her tax evasion convictions and her sentence. We have jurisdiction pursuant to 18 

U.S.C. 3742(a) and 28 U.S.C. 1291 and will affirm Corbett’s convictions but vacate 

her sentence. 

 We write only for the parties who are familiar with the facts of the case, so we 

need not repeat them here. Accordingly, we will forthwith address the three arguments 

raised by Corbett that insufficient evidence supports her convictions for tax evasion 

because the United States failed to prove an affirmative act of evasion for the periods 

charged in the Indictment; that the District Court erred in instructing the jurors to 

examine any conduct from any time period to find an affirmative act of evasion; and that 

the tax evasion and fraud counts should have been grouped under U.S.S.G. 3D1.2. 

 

 I. 

 Corbett argues that there is insufficient evidence of an affirmative act of evasion 

during the time frame of the Indictment to support her convictions for tax evasion. We 

view the evidence in the light most favorable to the government and will sustain the 

jury’s verdict if "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); 

accord United States v. McGill, 964 F.2d 222, 229-30 (3d Cir. 1992). Section 7201 

prohibits a person from "willfully attempt[ing] in any manner to evade or defeat any tax 

imposed by this title or the payment thereof." The essential elements of this offense are: 

(1) willfulness; (2) a tax deficiency; and (3) an affirmative act of evasion. Sansone v. 

United States, 380 U.S. 343, 351 (1965) (citations omitted). Corbett’s argument is 

limited to the third element. 

 To be convicted of tax evasion, a defendant must commit some willful act in 

addition to not filing a return and not paying the tax due. Spies v. United States, 317 

U.S. 492, 499 (1943). Examples of such acts include concealing assets, hiding sources 

of income, and avoiding recorded transactions. Id. "[A]ny conduct, the likely effect of 

which would be to mislead or to conceal" qualifies as an affirmative act. Id. 

 Here, the evidence shows that Corbett committed numerous affirmative acts of 

evasion. First, she maintained the Mellon Bank account under her name and that of her 

mother, Dr. Jane Matuzel, after the latter’s death and conducted all transactions via the 

ATM in order to minimize in-person contact with bank employees. This included the 

deposit of separate monetary U.S. Treasury checks made payable to Jane Matuzel, one 

based on widow’s survivors benefits from the SSA and the other based on Dr. Matuzel’s 

pension benefits from the OPM. On the few occasions when Corbett did communicate 

with bank personnel, she failed to mention Dr. Matuzel’s death, and in the case of the 

November 25, 1997 letter, used the words "we" and "our" to refer to the account. 

Second, Corbett opened a post office box in her and Dr. Matuzel’s names in 1987, even 

though Dr. Matuzel had been dead for almost four years. Corbett paid the biannual rent 

in cash and used the post office box to collect Dr. Matuzel’s social security checks. She 

refused to accept certified mail from the IRS or to respond to the notices sent by the SSA. 

The one exception is when Corbett signed Dr. Matuzel’s name to a SSA payment review 

form in November 1996. Each of these acts is sufficient to satisfy the third element of 

the crime of willful evasion of assessment. 

 Corbett counters that, regardless of the nature of her conduct, none of her acts 

occurred within the time frame set forth in the Indictment and, thus, cannot form the 

basis of her convictions for tax evasion. The Indictment charged Corbett with 

committing tax evasion on or about the fifteenth of April in the years 1994 through 1998. 

The evidence showed that Corbett continuously operated her ATM scheme through 

January 1999. Likewise, Corbett continuously rented and used the post office box during 

every year alleged in the Indictment. Moreover, with specific reference to certain 

specific counts, on November 15, 1996, Corbett signed Dr. Matuzel’s name to the SSA 

payment review form and returned it to the SSA. This act is sufficiently near the April 

15, 1996 date alleged in count three of the Indictment. Her response to Mellon Bank’s 
"no contact" letter in July 1997 and her "we" letter of November 25, 1997 occurred 

within the time frame alleged in count four. Finally, her deposit of U.S. Treasury checks 

made payable to Dr. Matuzel in May 1998 falls within the April 15, 1998 date alleged in 

count five. 

 In sum, sufficient evidence supports Corbett’s convictions for tax evasion. 

 II. 

 Corbett also argues that the District Court incorrectly instructed the jury to look at 

any conduct from any time period to find an affirmative act of evasion. Corbett did not 

raise this argument before the District Court; therefore, plain error review applies. Under 

plain error review, we may exercise our discretion to correct an error that is plain and that 

affects the "substantial rights" of the defendant. United States v. Olano, 507 U.S. 725, 

732 (1993). 

 Corbett’s attack on the jury instructions consists of two parts. First, Corbett 

suggests that the language in the jury instructions, "[a]ny conduct of the Defendant 

having the likely effect of misleading or concealing will support a finding of guilt of tax 

evasion," misstates the law on affirmative acts. Corbett is wrong. This language tracks 

almost precisely the language used by the Supreme Court in Spies, which defines an 

affirmative act as "any conduct, the likely effect of which would be to mislead or to 

conceal." Spies v. United States, 317 U.S. 492, 499 (1943). By including the above 

language in the jury instructions, the District Court did not err. 

 Second, Corbett maintains that the District Court constructively amended the 

Indictment when it charged the jury to consider as affirmative acts conduct that occurred 

"prior to the tax year, concomitant with the tax year, or subsequent with the tax year." A 

constructive amendment arises when a defendant is deprived of his or her "substantial 

right to be tried only on charges presented in an indictment returned by a grand jury." 

United States v. Miller, 471 U.S. 130, 140 (1985) (quoting Stirone v. United States, 361 

U.S. 212, 217 (1960)); accord United States v. Syme, 276 F.3d 131, 148 (3d Cir. 2002). 

Under plain error review, a constructive amendment is presumed prejudicial. Syme, 276 

F.3d at 136, 154. 

 Corbett is correct when she argues that the District Court erred in instructing the 

jury to consider acts that transpired before the dates alleged in the Indictment. See 

United States v. Voigt, 89 F.3d. 1050, 1089 (3d Cir. 1996) ("[T]he government’s failure 

to include a predeficiency period in the indictment’s specification of the offense 

precludes it from relying on conduct predating the existence of the deficiency as 

substantive evidence of affirmative acts of evasion."); accord United States v. McGill, 

964 F.2d 222, 231 (3d Cir. 1992). This error, however, is harmless as there are no acts 

upon which the jury could have relied that did not continue through the dates of the 

Indictment. Although Corbett started her ATM scheme sometime after Dr. Matuzel’s 

death in 1983, she continued her modus operandi until January 1999. Similarly, Corbett 

continued using the post office box that she opened in 1987 until at least the fall of 1998. 

No other conduct began prior to April 15, 1994. 

 III. 

 In addition to attacking her convictions for tax evasion, Corbett contests her 

sentence. Specifically, Corbett asserts that the tax evasion counts should have been 

grouped with the mail and wire fraud counts under U.S.S.G. 3D1.2 because her 

criminal conduct was all part of one scheme to defraud the United States of Dr. 

Matuzel’s retirement benefits. A district court’s factual findings underpinning a 

grouping determination are reviewed for clear error while its interpretation of the 

Sentencing Guidelines is reviewed de novo. United States v. Vitale, 159 F.3d 810, 813 

(3d Cir. 1998). 

 Section 3D1.2 provides that closely related counts shall be grouped for purposes 

of calculating the total offense level. Counts are closely related if they involve 

"substantially the same harm," which exists: 

 (a) When counts involve the same victim and the same act or transaction. 

 (b) When counts involve the same victim and two or more acts or 

 transactions connected by a common criminal objective or constituting part 

 of a common scheme or plan. 
 (c) When one of the counts embodies conduct that is treated as a specific 

 offense characteristic in, or other adjustment to, the guideline applicable to 

 another of the counts. 

 (d) When the offense level is determined largely on the basis of the total 

 amount of harm or loss, the quantity of a substance involved, or some other 

 measure of aggregate harm, or if the offense behavior is ongoing or 

 continuous in nature and the offense guideline is written to cover such 

 behavior. 

U.S.S.G. 3D1.2 (2001). 

 At sentencing, Corbett advanced arguments under each of the four subsections. It 

appears, however, that the District Court rejected Corbett’s arguments based on our 

decisions in United States v. Astorri, 923 F.2d 1052 (3d Cir. 1991), and United States v. 

Vitale, 159 F.3d 810 (3d Cir. 1998). The District Court was correct in relying on 

Astorri and Vitale in rejecting Corbett’s argument under 3D1.2(c). See Astorri, 923 

F.2d at 1057; Vitale, 159 F.3d at 815. Neither case, however, discusses the propriety of 

grouping tax evasion counts with fraud counts under the remaining subsections. 

Accordingly, Corbett’s sentence will be vacated and the case remanded to the District 

Court for analysis under U.S.S.G. 3D1.2(a), (b), and (d). 

 In analyzing the issue of grouping, the District Court should consider those 

subsections’ requirements. In order for 3D1.2(a) and (b) to apply, there first must be 

a finding that the counts involve the same victim. Indirect and secondary victims should 

be excluded. U.S.S.G. 3D1.2, cmt. n.2 (2001). "Generally, there will be one person 

who is directly and most seriously affected by the offense and is therefore identifiable as 

the victim." Id. 

 If the District Court concludes that there is only one victim, it should proceed to 

the second requirement of 3D1.2(a), the same act or transaction, and of 3D1.2(b), two 

or more acts connected by a common objective. Although legally distinct, offenses may 

be grouped if they "are part of a single course of conduct with a single criminal objective 

and represent essentially one composite harm to the same victim." U.S.S.G. 3D1.2, 

cmt. n.4 (2001); see United States v. Riviere, 924 F.2d 1289, 1306 (3d Cir. 1991); see 

also United States v. Cusumano, 943 F.2d 305, 313 (3d Cir. 1991) (upholding district 

court’s grouping of conspiracy, money laundering, embezzlement, unlawful kickbacks, 

and travel act offenses). 

 Finally, the District Court should consider whether grouping would be appropriate 

under 3D1.2(d). This subsection permits grouping when the counts are of "the same 

general type" and "the offense level is determined largely on the basis of the total amount 

of harm or loss." United States v. Seligsohn, 981 F.2d 1418, 1425 (3d Cir. 1992) 

(citations omitted); see United States v. Rudolph, 137 F.3d 173, 180 (1998). 

 IV. 

 For the foregoing reasons, we will affirm Corbett’s convictions for tax evasion but 

vacate her sentence and remand the matter to the District Court for reconsideration of the 

sentence imposed. 

 /s/ Maryanne T. Barry 

 Circuit Judge