UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 06-4956

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

UCHE KAMALU, 

 Defendant - Appellant. 

Appeal from the United States District Court for the District of 

Maryland, at Greenbelt. Alexander Williams, Jr., District 

Judge. (8:05-cr-00210-AW) 

Argued: September 26, 2008 Decided: October 29, 2008 

Before KING, SHEDD, and AGEE, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

ARGUED: John O. Iweanoge, II, Washington, D.C., for Appellant. 

Michael R. Pauzé, OFFICE OF THE UNITED STATES ATTORNEY, 

Greenbelt, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, 

United States Attorney, Baltimore, Maryland, Stuart A. Berman, 

Assistant United States Attorney, OFFICE OF THE UNITED STATES 

ATTORNEY, Greenbelt, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM: 

 Uche Kamalu appeals his convictions on one count of 

violating 26 U.S.C. § 7212(a) (corruptly obstructing 

administration of the Internal Revenue Code), and ten counts of 

violating 26 U.S.C. § 7206(2) (willful preparation of false 

income tax returns). Because the first count of the indictment 

was not duplicitous or prejudicial to the defendant, the 

evidence was sufficient to support his convictions on the tenth 

and eleventh counts of the indictment, he was not entitled to a 

new trial, and his challenge to the sentence of imprisonment is 

moot, we affirm the judgment of the district court. 

I. 

 Kamalu, a certified public accountant, prepared federal 

income tax returns for his clients. In an eleven-count 

indictment, Kamalu was accused of causing “numerous client 

taxpayers to falsely report itemized deductions to include 

deductions for mileage expenses,” thereby understating their 

actual income tax liability. Count One of the indictment, 

charging a violation of 26 U.S.C. § 7212(a), alleged that Kamalu 

“filed hundreds of false federal income tax returns . . . on 

behalf of numerous client taxpayers he represented for the tax 

years 1999 through 2002,” and thereby “corruptly endeavored to 

obstruct and impede the due administration of the internal 

2 
revenue laws . . . by engaging in a continuous scheme to 

obstruct and impede the IRS from determining the correct amount 

of deductions to which his clients were entitled.” Counts Two 

through Eleven charged that Kamalu “willfully aid[ed] and 

assist[ed] in the preparation and presentation . . . of . . . an 

Internal Revenue Service Form 1040 and accompanying schedules . 

. . which was fraudulent and false as to a material matter,” in 

violation of 26 U.S.C. § 7206(2). The indictment included a 

chart associating each of the § 7206(2) counts with an 

individual or joint federal income tax return and indicating 

that Kamalu had falsely prepared and included in each return a 

Schedule A and Form 2106 claiming the false mileage deductions. 

 At trial, the Government called Mary Somma from the 

Criminal Investigation Branch of the Internal Revenue Service as 

an expert witness. During cross-examination by Kamalu, Somma 

testified that, like a taxpayer, a tax preparer signs a tax 

return under penalty of perjury. After the trial, Somma’s IRS 

supervisor challenged her on that point and alleged that her 

testimony had been intentionally false. The purported exchange 

between Somma and her supervisor was reported to the United 

States Attorney, who disclosed the information to Kamalu. 

 At the conclusion of the Government’s case, Kamalu filed a 

motion for acquittal under Rule 29 of the Federal Rules of 

Criminal Procedure. Kamalu argued that Count One was 

3 
duplicitous because the Government should have been required to 

charge each alleged violation of § 7212(a) individually. Kamalu 

separately contended that the evidence was insufficient to 

support his convictions under Counts Ten and Eleven because the 

indictment specified a false Schedule A and Form 2106 for the 

taxpayer associated with those counts but that the Government 

did not prove those particular forms were ever filed. The 

district court denied Kamalu’s motion. 

 A jury convicted Kamalu on all eleven counts of the 

indictment. Following the Government’s disclosure pertaining to 

Somma, Kamalu filed a motion for a new trial under Rule 33 and 

argued the testimony was perjurious. The district court denied 

Kamalu’s motion. 

 The sentencing guidelines applicable to Kamalu’s 

convictions provided a base offense level of 14 for a tax loss 

between $30,000 and $80,000 and a base offense level of 16 where 

the tax loss is between $80,000 and $200,000. United States 

Sentencing Guidelines Manual § 2T4.1 (2007). In preparation for 

sentencing, the Government submitted a memorandum to the 

Probation Officer purporting to establish that the total tax 

loss attributable to Kamalu’s conduct was $157,072. The 

Government attributed $53,052 of the tax loss to the taxpayers 

identified in Counts Two through Eleven of the indictment. The 

Government contended the other $104,020 of alleged tax loss 

4 
should be attributed to Kamalu from unidentified clients on the 

basis of adjustments to their tax returns following 

correspondence audits by the IRS. Kamalu objected to the 

inclusion of the $104,020 in the tax loss calculation. 

 The district court accepted the Government’s tax loss 

calculation of $157,072 as attributable to Kamalu and ultimately 

determined a sentencing guidelines offense level based on that 

loss with a sentencing range of 27 to 33 months. The court 

sentenced Kamalu to 27-months imprisonment on each count, to run 

concurrently, and one-year of supervised release on each count, 

to run concurrently. Kamalu appeals. 

II. 

 Kamalu contends the district court erred in denying his 

Rule 29 motion for acquittal because (1) Count One was 

duplicitous and prejudicial and (2) the evidence was 

insufficient as a matter of law to sustain his convictions on 

Counts Ten and Eleven. Kamalu also contends the district court 

erred in denying his Rule 33 motion for new trial because 

Somma’s testimony was perjurious. Kamalu further contends the 

Government failed to prove the disputed $104,020 tax loss by a 

preponderance of the evidence and that the sentence of 27-months 

imprisonment was unreasonable. 

5 
A. 

 A district court’s denial of a Rule 29 motion for acquittal 

is subject to de novo review. United States v. Alerre, 430 F.3d 

681, 693 (4th Cir. 2005). 

1. 

 “[D]uplicity is the joining in a single count of two or 

more distinct and separate offenses.” United States v. Burns, 

990 F.2d 1426, 1438 (4th Cir. 1993) (internal quotation marks 

omitted). 

The overall vice of duplicity is that the jury cannot 

in a general verdict render its finding on each 

offense, making it difficult to determine whether a 

conviction rests on only one of the offenses or on 

both. Adverse effects on a defendant may include 

improper notice of the charges against him, prejudice 

in the shaping of evidentiary rulings, in sentencing, 

in limiting review on appeal, in exposure to double 

jeopardy, and of course the danger that a conviction 

will result from a less than unanimous verdict as to 

each separate offense. 

United States v. Duncan, 850 F.2d 1104, 1108 n.4 (6th Cir. 1988) 

abrogated on other grounds by Schad v. Arizona, 501 U.S. 624 

(1991). 

 However, “two or more acts, each of which would constitute 

an offense standing alone and which therefore could be charged 

as separate counts of an indictment, may instead be charged in a 

single count if those acts could be characterized as part of a 

single, continuing scheme.” United States v. Shorter, 809 F.2d 

6 
54, 56 (D.C. Cir. 1987), abrogated on other grounds by Daubert 

v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993); see also

United States v. Berardi, 675 F.2d 894, 898 (7th Cir. 1982) 

(alleging multiple acts is not duplicitous if the acts are part 

of a continuing course of conduct). Moreover, a duplicitous 

count is not to be dismissed unless it causes prejudice to the 

defendant. United States v. Sturdivant, 244 F.3d 71, 75 (2d 

Cir. 2001) (citing United States v. Margiotta, 646 F.2d 729, 733 

(2d Cir. 1981) and United States v. Murray, 618 F.2d 892, 896 

(2d Cir. 1980)). “Where the indictment ‘fairly interpreted’ 

alleges a ‘continuing course of conduct, during a discrete 

period of time,’ the indictment is not prejudicially 

duplicitous.” United States v. Davis, 471 F.3d 783, 790 (4th 

Cir. 2006). 

 Count One of the indictment expressly charged Kamalu with 

“engaging in a continuing scheme,” thereby aggregating several 

potentially discrete counts of violating § 7212(a) in a single 

count. Even if doing so rendered the indictment duplicitous 

despite the allegation of a continuing scheme, we are unable to 

find any prejudice to Kamalu. Count One presented no risk of 

double jeopardy because the Government is now foreclosed from 

prosecuting Kamalu for further violations of § 7212(a) that 

7 
could form part of the alleged scheme.1 Rather, Kamalu 

benefitted from the aggregation because each discrete count 

would have been amenable to a separate sentence upon conviction. 

See Berardi, 675 F.2d at 898 (noting that charging each discrete 

criminal offense in a separate count would have subjected the 

defendant to multiple statutory penalties). Thus the district 

court did not err in denying Kamalu’s motion for acquittal on 

Count One and we affirm his conviction. 

2. 

 When a criminal conviction is appealed on the ground that 

the underlying evidence is insufficient, we review the evidence 

in the light most favorable to the Government to determine 

whether “any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt.” 

United States v. Abuelhawa, 523 F.3d 415, 422 (4th Cir. 2008). 

 1

 Nor is there risk that the continuing scheme in violation 

of § 7212(a) impermissibly overlapped with the discrete charges 

of § 7206(2) violations because there are different elements to 

each crime. Compare United States v. Aramony, 88 F.3d 1369, 

1382 (4th Cir. 1996) (setting forth the elements of § 7206(2)) 

with United States v. Williams, 644 F.2d 696, 699 (8th Cir. 

1981) (setting forth the elements of § 7212(a)). Double 

jeopardy does not bar prosecution of the same act under two 

criminal statutes that require proof of different elements. 

United States v. Allen, 13 F.3d 105, 108-09 & 109 n.4 (4th Cir. 

1993) (citing Blockburger v. United States, 284 U.S. 299, 304 

(1932)). 

8 
Both Kamalu and the Government agree that Kamalu’s conviction on 

Counts Ten and Eleven of the indictment must rest on evidence 

that “(1) the defendant aided, assisted, or otherwise caused the 

preparation and presentation of a return; (2) that the return 

was fraudulent or false as to a material matter; and (3) the act 

of the defendant was willful.” Aramony, 88 F.3d at 1382. 

 Cesarine Ngoma’s tax returns were the subject of Counts Ten 

and Eleven of the indictment. The Government introduced no 

evidence that Kamalu assisted her in the preparation of a 

Schedule A or Form 2106 for the years at issue, or that Ngoma 

filed those particular documents with her income tax returns. 

However, Ngoma testified that Kamalu had assisted in the 

preparation of a Schedule C for the tax returns at issue and on 

which the false business mileage deductions appeared. That 

evidence, viewed in the light most favorable to the Government, 

is sufficient to establish the elements of the crime. 

 Kamalu argues, nonetheless, that the references to Schedule 

A and Form 2106 in the indictment created a variance between the 

indictment and the evidence adduced at trial (i.e., that 

Schedule C, not Schedule A or Form 2106, was introduced into 

evidence). However, a conviction will not be set aside for such 

a variance unless it modifies the elements of the crime. United 

States v. Davis, 202 F.3d 212, 216 n.3 (4th Cir. 2000). That 

the false deductions Kamalu manufactured for Ngoma appeared on 

9 
Schedule C rather than Schedule A and Form 2106 had no effect on 

the elements of the crime charged. Moreover, the indictment 

accused Kamalu of “willfully aid[ing] and assist[ing] in the 

preparation and presentation of . . . an Internal Revenue 

Service Form 1040 and accompanying schedules” for the identified 

clients in specific tax years. (Emphasis added.) That language 

encompassed Ngoma’s entire tax return, including Schedule C, 

giving Kamalu adequate notice of the charges against him. Thus, 

the reference to Schedule A and Form 2106 in Counts Ten and 

Eleven was harmless surplusage. Thus, the district court did 

not err in denying Kamalu’s motion for acquittal on those counts 

and we affirm Kamalu’s convictions. 

B. 

 We review denial of a Rule 33 motion for a new trial for 

abuse of discretion. United States v. Perry, 335 F.3d 316, 320 

(4th Cir. 2003). A defendant may be entitled to a new trial 

after a showing that the testimony of a witness was false and 

that the Government offered it despite knowledge of the 

falsehood. United States v. Wallace, 538 F.2d 326, 326 (4th 

Cir. 1976) (per curiam). However, Kamalu’s argument that the 

district court erred in denying his motion for new trial is 

without merit because Somma’s testimony was true and accurate. 

10 
A true statement is not perjury. See, e.g., United States v. 

Good, 326 F.3d 589, 591 (4th Cir. 2003). 

 The Internal Revenue Code requires that “any return . . . 

shall . . . be verified by a written declaration that is made 

under the penalties of perjury.” 26 U.S.C. § 6505 (2002). The 

implementing regulations, which Kamalu does not challenge, 

provide that: 

if a return, declaration, statement, or other document 

is prepared for a taxpayer by another person for 

compensation or as an incident to the performance of 

other services for which such person receives 

compensation, and the return, declaration, statement, 

or other document requires that it shall contain or be 

verified by a written declaration that is prepared 

under the penalties of perjury, the preparer must so 

verify the return, declaration, statement, or other 

document. 

26 C.F.R. § 1.6065-1 (2008). Moreover, signatories to a Form 

1040, including the tax preparer, subscribe to a declaration 

that provides “Under penalties of perjury, I declare that I have 

examined this return and accompanying schedules and statements, 

and to the best of my knowledge and belief, they are true, 

correct, and complete. Declaration of preparer (other than 

taxpayer) is based on all information of which preparer has any 

knowledge.” The declaration on all the tax returns in this case 

expressly included the paid tax preparer, Kamalu. Finally, “[a] 

tax return that does not contain such a declaration does not 

contain information on which the substantial correctness of the 

11 
self-assessment [of income tax liability] may be judged” and is 

therefore invalid. Hettig v. United States, 845 F.2d 794, 795 

(8th Cir. 1988) (per curiam); accord Mosher v. IRS, 775 F.2d 

1292, 1294 (5th Cir. 1985) (per curiam); Borgeson v. United 

States, 757 F.2d 1071, 1073 (10th Cir. 1985) (per curiam). 

Thus, even if the accusation were true that Somma intended to 

testify falsely, as a matter of law her testimony was correct 

and could not have caused Kamalu any legal prejudice. The 

district court did not abuse its discretion in denying Kamalu’s 

motion for a new trial. 

 

C. 

 Finally, Kamalu contends the district court erred when it 

found the tax loss exceeded $80,000 and calculated his 

sentencing guidelines range accordingly. Kamalu separately 

argues the 27-month sentence was unreasonable. 

 At oral argument, the Government informed the Court that 

Kamalu’s sentence of active incarceration had been served and 

that he had been released from custody. Kamalu did not dispute 

the Government’s representation. 

 “[I]f an event occurs while a case is pending on 

appeal that makes it impossible for the court to grant 

any effectual relief whatever to a prevailing party, 

the appeal must be dismissed,” for federal courts have 

“no authority to give opinions upon moot questions or 

abstract propositions, or to declare principles or 

12 
13 

rules of law which cannot affect the matter in issue 

in the case before it.” 

Incumma v. Ozmint, 507 F.3d 281, 286 (4th Cir. 2007) (quoting 

Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 

(1992)). Because Kamalu has completed his term of active 

incarceration this Court can grant no meaningful relief on these 

issues, which challenge only the length of sentence rather than 

the underlying convictions,2 and we dismiss them as moot. 

III. 

 For the foregoing reasons, we affirm the judgment of the 

district court. 

AFFIRMED

 2

 No retroactive adjustment of his completed sentence of 

active incarceration can affect the unexpired term of supervised 

release. United States v. Johnson, 529 U.S. 53, 58-59 (2000).