IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-20409

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

TAMNY DENISE WESTBROOKS, also known as Tammy Westbrooks, also 

known as Tammy Westbrook, 

 Defendant - Appellant

Appeals from the United States District Court

for the Southern District of Texas

USDC No. 4:14-CR-355-1

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before STEWART, Chief Judge, and HIGGINBOTHAM and COSTA, Circuit 

Judges.

PER CURIAM:*

A jury convicted Tamny Denise Westbrooks of one count of obstructing 

the tax laws and three counts of filing fraudulent tax returns. We affirmed all 

four convictions. 858 F.3d 317 (5th Cir. 2017). On the obstruction count, we 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 21, 2018

Lyle W. Cayce

Clerk

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No. 16-20409

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rejected Westbrook’s argument that 18 U.S.C. § 7212(a) only reaches conduct 

that interferes with an ongoing IRS proceeding. Id. at 322–24. In a case in 

which the Second Circuit had adopted that same view, the Supreme Court held 

that the tax obstruction statute does require that the obstructive conduct 

occurr during the pendency of a “particular administrative proceeding, such as 

an investigation, an audit, or other targeted administrative action,” Marinello 

v. United States, 138 S. Ct. 1101, 1109 (2018), or at least when such an IRS 

action is foreseeable to the defendant, id. at 1110. The Supreme Court then 

granted the petition for certiorari in this case, vacated our prior judgment, and 

remanded for reconsideration in light of Marinello.

The government concedes that the obstruction conviction is no longer 

valid. It correctly points out that at least one aspect of the obstruction 

allegations—that Westbrook provided false testimony at a show cause hearing 

in federal court—satisfies the proceeding requirement as that hearing was 

held to assess her compliance with an IRS subpoena for tax records. But most 

of the other alleged obstruction, which focused on her paying employees in cash 

and failing to keep adequate records, does not satisfy Marinello. Because the 

jury believed it could consider all of this conduct as part of the obstruction 

count, and we do not know which of the allegations it found to be proven, the 

obstruction conviction must be vacated.

The disagreement between the parties is about what the vacatur of the 

obstruction conviction means for the three “false return” convictions. 

Westbrook contends that the improper obstruction count contaminated the 

false return counts. This same argument about “spillover prejudice” was 

raised in Governor Edwin Edwards’s appeal of his convictions because an 

intervening Supreme Court decision had invalidated the legal basis for some 

of the mail fraud counts. United States v. Edwards, 303 F.3d 606, 638–40 (5th 

Cir. 2002) (citing Cleveland v. United States, 531 U.S. 12 (2000)). We noted 

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that the concept came from cases challenging a failure to grant a pretrial 

severance, and we had never decided whether “spillover from invalid claims 

can be a basis for granting a new trial.” Id. at 639. We did not resolve that 

question in Edwards because even assuming the theory applied in this 

“retroactive misjoinder” situation, the improper taint exists only if the counts 

the jury should not have heard allowed the introduction of evidence that would 

not have otherwise been admissible. Id. at 640. That was not the case in 

Edwards, id., and it is not the case here. Evidence concerning cash payments,

shoddy or nonexistent bookkeeping, and prior false returns was admissible 

even without the obstruction count as either intrinsic to the false return counts 

or permissible Rule 404(b) evidence that showed Westbrooks’ plan, fraudulent 

intent, and absence of mistake. United States v. Morgan, 117 F.3d 849, 861 

(5th Cir. 1997); FED. R. EVID. 404(b). The testimony about Westbrook’s false 

testimony at the show cause hearing was, as we have already explained, a 

permissible basis for the obstruction count and, even if not, would have been 

admissible as probative of Westbrook’s intent. Because the now-invalid 

obstruction count did not allow the jury to consider evidence that would not 

have been allowed at a trial focused on just the false return counts, the latter 

will not be vacated. Edwards, 303 F.3d at 640. 

The final question relates to the sentences for those false return 

convictions we are upholding. The government agrees that we should vacate 

those sentences and remand for resentencing in light of the vacatur of the 

obstruction count. That new sentencing will include but not be limited to 

reconsideration of the restitution amount which the government concedes 

should be reduced as it included amounts based on returns filed only during 

the time period covered by the obstruction count. 

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* * *

The conviction on Count One is VACATED. The sentences for Counts Two 

through Four are VACATED. The case is REMANDED for resentencing and 

entry of judgment consistent with this opinion. 

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