### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-60800

UNITED STATES OF AMERICA, Plaintiff - Appellee
v. CHARLES W. IRBY, JR., Defendant - Appellant

Appeal from the United States District Court for the Southern District of Mississippi

Before JOLLY, JONES, and GRAVES, Circuit Judges. PER CURIAM: After a four-day trial, a jury convicted Charles W. Irby, Jr. of one count of

a t t empting to evade or defeat a tax in violation of 26 U.S.C. § 7201 (Count I) ; four counts of willful failure to file a tax return in violation of 26 U.S.C. § 7203 (Counts II through V); and one count of attempting to interfere with the administrat i o n o f internal revenue laws in violation of 26 U.S.C. § 7212(a) (Count VI). The district court ordered a 60-month pri s o n t e rm for Count I; concurrent 12-month terms for C o u n t s I I through V; and a 36-month term for Count VI. T h e t e r m s were ordered to run consecutively for a total of 108 months. The court also ordered a t h r e e - y e a r term of supervised release for U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Decem ber 1 8, 2 012 Lyle W . Cayce Clerk Case: 11-60800 Document: 00512087360 Page: 1 Date Filed: 12/18/2012No. 11-60800

Count I and one-year terms of supervised release for Counts II through VI, with all terms to run concurrently. Irby timely appealed. Although we GRANT Irby’s motion to reconsider the clerk’s denial of his motion t o e xt end the time for filing a reply brief and allow the brief to be submitted to us, we nevertheless conclude that the district court did not err in any respect. Irby’s appeal, however, raises an issue of first impression: whether the six

- y e a r statute of limitations for section 7201 offenses begins to run from the date the tax ret u r n w as due or following the last affirmative act of tax evasion. See 26 U.S.C. § 6531(2). Because we hold that there are no merits to

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any of Irby’s substantive points, and because we hold that the statute of limitations acc rues from the last evasive act, we AFFIRM the judgment o f the district court. I. The Due Process Clause establishes a floor requiring a “fair trial in a fair tribunal, before a judge with no actual bias against the defendant or interest in the outcome of his particular case.” Bracy v. Gram ley , 520 U.S. 899, 904-05 (1997) (quoting Withrow v. Larkin , 421 U.S. 35, 46 (1975)) (citations and intern al quotation marks omitted). “[J]udicial remarks during the course of a trial that

a r e c ritical or disapproving of, or even hostile to, counsel, the parties, or thei r cases, ordinarily do not support a bias or partiality challenge.” Liteky v. United States , 510 U.S. 54 0 , 5 5 5 (1994) (noting that we look for “a deep-seated favoritism or antagonism that would make fair judgment impossible”).

All othe r iss ues rais ed by Irby on app eal are com ple tely me rit les s: the governm ent 1 did not engage in vindic tive pr os ecut ion; the in dict me nt wa s not cons tru ctively ame nded ; ther e wa s suff icient evide nce dem ons tra ting his sc ient er and wi llf ulnes s; ther e wa s no cons tit ution al violat ion of his right to a tri al by jury; and ther e are no ground s for dis clos ing the “cham bers pap ers ” of this cour t. Irb y’ s allegat ions of bias and inco mp ete nce on the par t of the dis tri ct judge als o are me rit les s, but we wi ll brie fly add res s his argum e n t that the dis tri ct judge’ s st atem ents t o t he jury d uring voir dir e a mo unte d to a due pr oce ss vio lati on. 2 Case: 11-60800 Document: 00512087360 Page: 2 Date Filed: 12/18/2012No. 11-60800

Irby’s allegation is premised on the district judge’s statement about civic duties to prospective jurors during voir dire, including that citizens should pay their taxes. Notwithstanding that this was a legally correct statement, we

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measure the potential for bias against the totality of the circumstances at the trial. United States v. Saenz , 134 F.3d 697, 702 (5th Cir. 1998) (“The totality of the circumstances must show that the trial judge’s intervention was ‘quantitatively and qualitatively s ub s t anti al

. ’” (quoting United States v. Bermea , 30 F.3d 1539, 1569 (5th Cir. 1994))). Here, we have a single, isolated statement made during voir dire. Take n i n t h e c o ntext of a four-day trial in which the court instructed the jurors du ri n g vo i r dire and in its jury charge that the Government had the burden of proof and was required to show that Irby owed taxes and had failed to f il e tax returns, and that Irby was presumed innocent, this single statement is insufficient to form the basis of a cl a i m of judicial misconduct during a trial. See United States v. Lance , 853 F.2d 1177, 1182-83 (5th Cir. 1988); see also United States v . F ra n k l in , 586 F.2d 560, 570 (5th Cir. 1978). As such, we hold that Irby was not denied his right to a fair trial based on the single voir dire statement. II. The district court’s conclusion that Count I was not barred by the six-year statute of limitations is a legal conclusion that w e r eview de novo . See United States v. Gunera , 479 F.3d 373, 376 (5th Cir. 2007); United States v. Wilson , 322 F.3d 353, 359 (5th Cir. 2003). 3

The allege dly pr ejudi cial st atem ent wa s: “It’ s a civic dut y, and the old er cir cuit judge 2 I use d to pr act ice unde r many, many years ago use d to tel l juror s, [y] ou’ve got tw o things : Yo u sho uld vote, you sho uld pay your taxes , and th en [you s hould] se rve on a jury. Thr ee things thatyou sho uld do to com ply wi th your cit izens hip. ”
The dis tri ct court ’s fac tual findin gs are not clea rly err oneo us, and there is suf fic ient 3 evide nce to find , as the jury did , that Irby act ed to evade the paym ent of taxes as late as 2006 thr ough the use of nom inee tru st s des igned to conc eal his ass ets

. See Uni ted States v. McDo we ll , 498 F.3d 308, 312 (5t h Cir. 2007) ; Uni ted States v. Av ants , 367 F.3d 433, 441 (5t h 3 Case: 11-60800 Document: 00512087360 Page: 3 Date Filed: 12/18/2012No. 11-60800

Although we addressed the appl i c a tion of the statute of limitations to a section 7201 violation in United States v. Williams , we expressly declined to take

a position on the last affirmative act of evasion as it was not implicated by that case. 928 F.2d 145, 149 (5th Cir. 1991) (“We express no opinion relative to the effect of affirmative acts occurring subsequent to the [tax return] filing date.”). Williamsheld only that “the limitations period for a prosecution under section 7201 in which n o tax return was filed begins to accrue on the day the [tax] return is due.” Id. Because Irby last failed to file his taxes in 2001, Count I is time barred unless the statute of li m i t ations period begins to accrue following his last affirmative act of tax evasion. Section 6531(2) states: No p e r s o n shall be prosecuted, tried, or punished for any of the various offenses arising under the internal revenue laws unless the indictment is found or the information instituted w i t h i n 3 years next after the commission of the offense, except that the p e ri o d of limitation shall be 6 years-- . . . (2) for the offense of willfully attempting in any manner to evade or defeat any tax or the payment thereof; . . . .

26 U.S.C. § 6531(2). Count I thus is not time barred as long as Irby was indicted within six years of when t h e c rime of “willfully attempting in any manner to evade or defeat any tax or the payment thereof” was completed. See 26 U.S.C. § 7201; see also United States v. Dandy , 998 F.2d 1344, 1355-56 (6th Cir. 1993) (discuss i n g t h e application of the Supreme Court decision in United States v. Habig, 390 U.S. 222, 225 (1968)). The other circuits that have expressly considered the issue have concluded that the statute of limitations for section 7201 offenses runs from the later date

Cir. 2004)

. Irby’s indi ctm ent wa s ret urned i n 2 0 1 1 , f iv e years aft er his use of the nom inee tru st s. Thus, if the st atut e of lim itat ions begins runnin g fr o m t h e l a s t aff irm ative act of evas ion, Irby’ s convic tio n un derCou nt I is s upp ort ed by s uff icie nt evide nce. 4 Case: 11-60800 Document: 00512087360 Page: 4 Date Filed: 12/18/2012No. 11-60800

of either: when the tax return was due or the defendant’s last affirmative act of tax evasion. See, e.g., United States v. Anderson , 319 F.3d 1218, 1219-20 (10th Cir. 2003) (“Section 7201 criminalizes not just the failure to file a return or the filing of a false return, but the willful attempt to evade taxes in any manner .”); United States v. Carlson , 2 3 5 F

. 3 d 466, 470 (9th Cir. 2000); United States v. Wilson , 118 F.3d 228, 236 (4th Cir. 1997); United S tates v. Dandy , 998 F.2d 1344, 1355-56 (6th Cir. 1993) (“To hold that the statute of limitations for income tax evasion

. . . began to run on t h e date the returns were filed would reward defendant for successfully evading discovery of his tax fraud for a period of six
years subsequent to the date the returns were filed.”); United States v. Winfield , 960 F.2d 970, 973-74 (11th Cir. 1992) (per curiam); United States v. DiPetto , 936 F.2d 96, 98 (2d Cir. 199 1 ) ; U nited States v. Ferris , 807 F.2d 269, 271 (1st Cir. 1986); United States v. Trownsell , 367 F.2d 815 (7th Cir. 1966) (per curiam). In Dandy , the Sixth Circuit address e d facts similar to those at issue here, where the defendant did not file tax returns for 1 9 82 and 1983, but the last act of evasion did not occur until 1985. Dandy , 998 F.2d at 1355-56. The Dandy court found that the statute of limitation runs from the last evasive act “because it is these evasive acts

. . . which form the basis of the crimes alleged in

. . . [the] indictment.” Id. at 1356. In Ferris , the First Circuit supported t h e rule by pointedly stating, “[t]he defendant, however, by deceitful statements continued his tax evasi o n through [date of last act of evasion].” Ferris , 807 F.2d at 271 (noting that H

a b ig supports this result because, “[t]he [Supreme Court] held that it made no sense to assert that ‘Congress intended the limitations period to begin to run before a p p e l l ees committed the acts upon which the crimes were based’” (quoting Habig, 390 U.S. at 224-25)). No circuit has rej ected the last affirmative act of tax evasion rule. The rule, therefore, is well-supported in Supreme Court precedent and in the caselaw of othe r c ir c u its. One element of the section 7201 offense is the

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commission of an a f

f i r m a tive act seeking to evade tax liability, which can be shown through the individual’s willful failure to file a tax return, Williams , 928 F.2d at 149, or through continued evasive acts intending to avoid the payment of taxes. The statute of limitations accrues from the later of the two. Irby last acted to evade t h e p a y m e n t of his taxes in 2006, by using nominee trusts to conceal his assets. Becaus e he was indicted in 2011, the district cour t did not err in concluding that Count I was not barred by the statute of limitations. III. For the foregoing reasons, the judgment of the district court is AFFIRMED.

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