UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-2230

UNITED STATES OF AMERICA,

Plaintiff – Appellant,

v.

J. BRYAN WILLIAMS,

Defendant – Appellee.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. Liam O’Grady, District 

Judge. (1:09-cv-00437-LO-TRJ)

Argued: March 21, 2012 Decided: July 20, 2012

Before MOTZ, SHEDD, and AGEE, Circuit Judges.

Reversed by unpublished opinion. Judge Shedd wrote the majority 

opinion, in which Judge Motz concurred. Judge Agee wrote a 

dissenting opinion.

ARGUED: Robert William Metzler, UNITED STATES DEPARTMENT OF 

JUSTICE, Washington, D.C., for Appellant. David Harold 

Dickieson, SCHERTLER & ONORATO, LLP, Washington, D.C., for 

Appellee. ON BRIEF: John A. DiCicco, Acting Assistant Attorney 

General, Deborah K. Snyder, UNITED STATES DEPARTMENT OF JUSTICE, 

Washington, D.C.; Neil H. MacBride, United States Attorney, 

Alexandria, Virginia, for Appellant. Lisa H. Schertler, 

SCHERTLER & ONORATO, LLP, Washington, D.C., for Appellee. 
2

Unpublished opinions are not binding precedent in this circuit.
3

SHEDD, Circuit Judge:

The Government brought this action seeking to enforce civil 

penalties assessed against J. Bryan Williams for his failure to 

report his interest in two foreign bank accounts for tax year 

2000, in violation of 31 U.S.C. § 5314. Following a bench trial, 

the district court entered judgment in favor of Williams. The 

Government now appeals. Because we conclude that the district 

court clearly erred in finding that the Government failed to 

prove that Williams willfully violated § 5314, we reverse. 

I

Federal law requires taxpayers to report annually to the 

Internal Revenue Service (“IRS”) any financial interests they 

have in any bank, securities, or other financial accounts in a 

foreign country. 31 U.S.C. § 5314(a). The report is made by 

filing a completed form TD F 90-22.1 (“FBAR”) with the 

Department of the Treasury.1 See id. § 5314; 31 C.F.R. 

§ 1010.350. The FBAR must be filed on or before June 30 of each 

 1 TD F 90-22.1, which is a form issued by the Department of 

the Treasury, is titled “Report of Foreign Bank and Financial 

Accounts” and is commonly referred to as the “FBAR.” The 

regulations relating to the FBAR were formerly published at 31 

C.F.R. §§ 103.24 and 103.27, but were recodified in a new 

chapter effective March 1, 2011. See Transfer & Reorganization 

of Bank Secrecy Act Regulations, 75 Fed. Reg. 65806 (Oct. 26, 

2010). For ease, our citations are to the recodified sections.
4

calendar year with respect to foreign financial accounts 

maintained during the previous calendar year, 31 C.F.R. 

§ 1010.306(c), and the Secretary of the Treasury may impose a 

civil money penalty on any person who fails to timely file the 

report, 31 U.S.C. § 5321(a)(5)(A). Moreover, in cases where a 

person “willfully” fails to file the FBAR, the Secretary may 

impose an increased maximum penalty, up to $100,000 or fifty 

percent of the balance in the account at the time of the 

violation. Id. § 5321(a)(5)(C). The authority to enforce such

assessments has been delegated to the IRS. 31 C.F.R. 

§ 1010.810(g).

In 1993, Williams opened two Swiss bank accounts in the 

name of ALQI Holdings, Ltd., a British Corporation (the “ALQI 

accounts”). From 1993 through 2000, Williams deposited more than 

$7,000,000 into the ALQI accounts, earning more than $800,000 in 

income on the deposits. However, for each of the tax years 

during that period, Williams did not report to the IRS the 

income from the ALQI accounts or his interest in the accounts, 

as he was required to do under § 5314.

By the fall of 2000, Swiss and Government authorities had 

become aware of the assets in the ALQI accounts. Williams 

retained counsel and on November 13, 2000, he met with Swiss 

authorities to discuss the accounts. The following day, at the 
5

request of the Government, the Swiss authorities froze the ALQI 

accounts. 

Relevant to this appeal, Williams completed a “tax 

organizer” in January 2001, which had been provided to him by 

his accountant in connection with the preparation of his 2000 

federal tax return. In response to the question in the tax 

organizer regarding whether Williams had “an interest in or a 

signature or other authority over a bank account, or other 

financial account in a foreign country,” Williams answered “No.” 

J.A. 111. In addition, the 2000 Form 1040, line 7a in Part III 

of Schedule B asks:

At any time during 2000, did you have an interest in 

or a signature or other authority over a financial 

account in a foreign country, such as a bank account, 

securities account, or other financial account? See 

instructions for exceptions and filing requirements 

for Form TD F 90-22.1. 

J.A. 131. On his 2000 federal tax return, Williams checked “No” 

in response to this question, and he did not file an FBAR by the 

June 30, 2001, deadline.

Subsequently, upon the advice of his attorneys and 

accountants, Williams fully disclosed the ALQI accounts to an 

IRS agent in January 2002. In October 2002 he filed his 2001 

federal tax return on which he acknowledged his interest in the 

ALQI accounts. Williams also disclosed the accounts to the IRS 

in February 2003 as part of his application to participate in 
6

the Offshore Voluntary Compliance Initiative.2 At that time he 

also filed amended returns for 1999 and 2000, which disclosed 

details about his ALQI accounts. 

In June 2003, Williams pled guilty to a two-count 

superseding criminal information, which charged him with 

conspiracy to defraud the IRS, in violation of 18 U.S.C. § 371,

and criminal tax evasion, in violation of 26 U.S.C. § 7201, in

connection with the funds held in the ALQI accounts from 1993 

through 2000. As part of the plea, Williams agreed to allocute 

to all of the essential elements of the charged crimes, 

including that he unlawfully, willfully, and knowingly evaded 

taxes by filing false and fraudulent tax returns on which he 

failed to disclose his interest in the ALQI accounts. In 

exchange for his allocution, Williams received a three-level 

reduction under the Sentencing Guidelines for acceptance of 

responsibility.3

In his allocution, Williams admitted the following:

 2 The IRS rejected the application and turned it over to the 

attorney for the United States who was conducting a grand jury 

investigation of Williams.

3 Williams also agreed to pay all taxes and criminal 

penalties due for tax years 1993 through 2000, but he has since 

refused to pay some of those taxes and penalties and has engaged 

the IRS in litigation over that issue. See Williams v. 

Commissioner of Internal Revenue, 97 T.C.M. (CCH) 1422 (Apr. 16, 

2009).
7

I knew that most of the funds deposited into the 

Alqi accounts and all the interest income were taxable 

income to me. However, the calendar year tax returns 

for ‘93 through 2000, I chose not to report the income 

to my –- to the Internal Revenue Service in order to 

evade the substantial taxes owed thereon, until I 

filed my 2001 tax return. 

I also knew that I had the obligation to report 

to the IRS and/or the Department of the Treasury the 

existence of the Swiss accounts, but for the calendar 

year tax returns 1993 through 2000, I chose not to in 

order to assist in hiding my true income from the IRS 

and evade taxes thereon, until I filed my 2001 tax 

return.

. . . .

I knew what I was doing was wrong and unlawful. 

I, therefore, believe that I am guilty of evading the 

payment of taxes for the tax years 1993 through 2000. 

I also believe that I acted in concert with others to 

create a mechanism, the Alqi accounts, which I 

intended to allow me to escape detection by the IRS. 

Therefore, I am –- I believe that I’m guilty of 

conspiring with the people would (sic) whom I dealt 

regarding the Alqi accounts to defraud the United 

States of taxes which I owed. 

J.A. 55 (emphasis added).

In January 2007, Williams finally filed an FBAR for each 

tax year from 1993 through 2000. Thereafter, the IRS assessed 

two $100,000 civil penalties against him, pursuant to 

§ 5321(a)(5), for his failure to file an FBAR for tax year 2000.4

Williams failed to pay these penalties, and the Government

 4 The statute of limitations for assessing penalties for tax 

years 1993 through 1999 had expired by the time the IRS assessed 

the civil penalties. See 31 U.S.C. § 5321(b)(1) and (2). 
8

brought this enforcement action to collect them. Following a 

bench trial, the district court entered judgment in favor of 

Williams, finding that the Government failed to establish that 

Williams willfully violated § 5314. The Government timely 

appealed.

II

The parties agree that Williams violated § 5314 by failing 

to timely file an FBAR for tax year 2000. The only question is 

whether the violation was willful. The district court found that 

(1) Williams “lacked any motivation to willfully conceal the 

accounts from authorities” because they were already aware of 

the accounts and (2) his failure to disclose the accounts “was 

not an act undertaken intentionally or in deliberate disregard 

for the law, but instead constituted an understandable omission 

given the context in which it occurred.”5 J.A. 378-79. Therefore, 

 5 In making its determination, the district court emphasized 

Williams’s motivation rather than the relevant issue of his 

intent. See Am. Arms Int’l v. Herbert, 563 F.3d 78, 83 (4th Cir. 

2009) (“[M]alice or improper motive is not necessary to 

establish willfulness.”). To the extent the district court 

focused on motivation as proof of the lack of intent, it simply 

drew an unreasonable inference from the record. In November 

2000, Swiss authorities met with Williams to discuss the ALQI 

accounts and thereafter froze them at the request of the United 

States Government. Although the Government knew of the existence

of the accounts, nothing in the record indicates that, when the 

accounts were frozen, the Government knew the extent, control, 

or degree of Williams’s interest in the accounts or the total 

(Continued)
9

the district court found that Williams’s violation of § 5314 was 

not willful.

“Willfulness may be proven through inference from conduct 

meant to conceal or mislead sources of income or other financial 

information,” and it “can be inferred from a conscious effort to 

avoid learning about reporting requirements.” United States v. 

Sturman, 951 F.2d 1466, 1476 (6th Cir. 1991) (internal citations 

omitted) (noting willfulness standard in criminal conviction for 

failure to file an FBAR). Similarly, “willful blindness” may be 

inferred where “a defendant was subjectively aware of a high 

probability of the existence of a tax liability, and 

purposefully avoided learning the facts point to such 

liability.” United States v. Poole, 640 F.3d 114, 122 (4th Cir. 

2011) (affirming criminal conviction for willful tax fraud where 

tax preparer “closed his eyes to” large accounting 

 

funds held in the accounts. As Williams admitted in his 

allocution, his decision not to report the accounts was part of 

his tax evasion scheme that continued until he filed his 2001 

tax return. Thus, his failure to disclose information about the 

ALQI accounts on his 2000 tax return in May 2001 was motivated 

by his desire not to admit his interest in the accounts, even 

after authorities had been aware of them for over six months. 

Rarely does a person who knows he is under investigation by the 

Government immediately disclose his wrongdoing because he is not 

sure how much the Government knows about his role in that 

wrongdoing. Thus, without question, when Williams filed in May 

of 2001, he was clearly motivated not to admit his interest in 

the ALQI accounts. 
10

discrepancies). Importantly, in cases “where willfulness is a 

statutory condition of civil liability, [courts] have generally 

taken it to cover not only knowing violations of a standard, but 

reckless ones as well.” Safeco Ins. Co. of America v. Burr, 551 

U.S. 47, 57 (2007) (emphasis added).Whether a person has 

willfully failed to comply with a tax reporting requirement is a 

question of fact. Rykoff v. United States, 40 F.3d 305, 307 (9th 

Cir. 1994); accord United States v. Gormley, 201 F.3d 290, 294 

(4th Cir. 2000) (“[T]he question of willfulness is essentially a 

finding of fact.”). 

We review factual findings under the clearly erroneous 

standard set forth in Federal Rule of Civil Procedure 52(a). 

Walton v. Johnson, 440 F.3d 160, 173-74 (4th Cir. 2006) (en 

banc). “Our scope of review is narrow; we do not exercise de 

novo review of factual findings or substitute our version of the 

facts for that found by the district court.” Id. at 173. “If the 

district court’s account of the evidence is plausible in light 

of the record viewed in its entirety, the court of appeals may 

not reverse it even though convinced that had it been sitting as 

the trier of fact, it would have weighed the evidence 

differently.” Id. (quoting Anderson v. City of Bessemer City, 

470 U.S. 564, 573-74 (1985)). However, notwithstanding our 

circumscribed review or the deference we give to a district 

court’s findings, those findings are not conclusive if they are 
11

“plainly wrong.” Id. (quoting Jiminez v. Mary Washington 

College, 57 F.3d 369, 379 (4th Cir. 1995)). The clear error 

standard still requires us to engage in “meaningful appellate 

review,” United States v. Abu Ali, 528 F.3d 210, 261 (4th Cir. 

2008), and where objective evidence contradicts a witness’ 

story, or the story itself is “so internally inconsistent or 

implausible on its face that a reasonable factfinder would not 

credit it, . . . the court of appeals may well find clear error 

even in a finding purportedly based on a credibility 

determination.” United States v. Hall, 664 F.3d 456, 462 (4th 

Cir. 2012) (citing Anderson, 470 U.S. at 575). Thus, “[a] 

finding is clearly erroneous when, although there is evidence to 

support it, the reviewing court on the entire evidence is left 

with a definite and firm conviction that a mistake has been 

committed.” F.C. Wheat Maritime Corp. v. United States, 663 F.3d 

714, 723 (4th Cir. 2011). 

Here, the evidence as a whole leaves us with a definite and 

firm conviction that the district court clearly erred in finding 

that Williams did not willfully violate § 5314. Williams signed 

his 2000 federal tax return, thereby declaring under penalty of 

perjury that he had “examined this return and accompanying 

schedules and statements” and that, to the best of his 

knowledge, the return was “true, accurate, and complete.” “A 

taxpayer who signs a tax return will not be heard to claim 
12

innocence for not having actually read the return, as he or she 

is charged with constructive knowledge of its contents.” Greer 

v. Commissioner of Internal Revenue, 595 F.3d 338, 347 n. 4 (6th 

Cir. 2010); United States v. Doherty, 233 F.3d 1275, 1282 n.10 

(11th Cir. 2000) (same). Williams’s signature is prima facie

evidence that he knew the contents of the return, United States 

v. Mohney, 949 F.2d 1397, 1407 (6th Cir. 1991), and at a minimum 

line 7a’s directions to “[s]ee instructions for exceptions and 

filing requirements for Form TD F 90-22.1” put Williams on 

inquiry notice of the FBAR requirement.

Nothing in the record indicates that Williams ever 

consulted Form TD F 90-22.1 or its instructions. In fact, 

Williams testified that he did not read line 7a and “never paid 

any attention to any of the written words” on his federal tax 

return. J.A. 299. Thus, Williams made a “conscious effort to 

avoid learning about reporting requirements,” Sturman, 951 F.2d 

at 1476, and his false answers on both the tax organizer and his 

federal tax return evidence conduct that was “meant to conceal 

or mislead sources of income or other financial information,” 

id. (“It is reasonable to assume that a person who has foreign 

bank accounts would read the information specified by the 

government in tax forms. Evidence of acts to conceal income and 

financial information, combined with the defendant's failure to 

pursue knowledge of further reporting requirements as suggested 
13

on Schedule B, provide a sufficient basis to establish 

willfulness on the part of the defendant.”). This conduct 

constitutes willful blindness to the FBAR requirement. Poole, 

640 F.3d at 122 (“[I]ntentional ignorance and actual knowledge 

are equally culpable under the law.”)

Williams’s guilty plea allocution further confirms that his 

violation of § 5314 was willful. During that allocution, 

Williams acknowledged that he willfully failed to report the 

existence of the ALQI accounts to the IRS or Department of the 

Treasury as part of his larger scheme of tax evasion. This 

failure to report the ALQI accounts is an admission of violating 

§ 5314, because a taxpayer complies with § 5314 by filing an 

FBAR with the Department of the Treasury. In light of his 

allocution, Williams cannot now claim that he was unaware of,6

 6 In fact, seven months before his criminal allocution, 

Williams sent a letter to the IRS requesting to participate in 

the Offshore Voluntary Compliance Initiative “[p]ursuant to Rev. 

Proc. 2003-11.” J.A. 183-84. On the first page of Revenue 

Procedure 2003-11, the IRS specifically informs applicants that 

a primary benefit of the Initiative is that participating 

taxpayers can avoid penalties for having failed to timely file 

an FBAR. Clearly, Williams was aware of the FBAR at the time of 

his allocution. Further, to the extent Williams asserts he was 

unaware of the FBAR requirement because his attorneys or 

accountants never informed him, his ignorance also resulted from 

his own recklessness. Williams concedes that from 1993-2000 he 

never informed his accountant of the existence of the foreign 

accounts – even after retaining counsel and with the knowledge 

that authorities were aware of the existence of the accounts.
14

inadvertently ignored, or otherwise lacked the motivation to 

willfully disregard the FBAR reporting requirement.

Thus, we are convinced that, at a minimum, Williams’s

undisputed actions establish reckless conduct, which satisfies 

the proof requirement under § 5314. Safeco Ins., 551 U.S. at 57. 

Accordingly, we conclude that the district court clearly erred 

in finding that willfulness had not been established. 

III

For the foregoing reasons, we reverse the judgment of the 

district court and remand this case for proceedings consistent 

with this opinion.

REVERSED
15

AGEE, Circuit Judge, dissenting: 

The majority correctly recites that we review only for 

clear error the district court’s dispositive factual finding 

that Williams’ failure to file the FBAR was not willful. Maj. 

Op. at 9-10. The majority also correctly notes the limited scope 

of review under that standard. Id. In my view, however, my 

colleagues in the majority do not adhere to that standard, 

instead substituting their judgment for the judgment of the 

district court. As appellate judges reviewing for clear error, 

we are bound by the standard of review and therefore I 

respectfully dissent. 

We recently explained how circumscribed our review under 

the clear error standard must be: 

“This standard plainly does not entitle a reviewing 

court to reverse the finding of the trier of fact 

simply because it is convinced that it would have 

decided the case differently.” Anderson v. Bessemer 

City, 470 U.S. 564, 573 (1985). “If the district 

court’s account of the evidence is plausible in light 

of the record viewed in its entirety, the court of 

appeals may not reverse it even though convinced that 

had it been sitting as the trier of fact, it would 

have weighed the evidence differently.” Id. at 573-74.

“When findings are based on determinations regarding 

the credibility of witnesses,” we give “even greater 

deference to the trial court’s findings.” Id. at 575.

United States v. Hall, 664 F.3d 456, 462 (4th Cir. 2012). 

Applying this standard to the case at bar, I conclude the 

district court’s judgment should be affirmed. 
16

The majority opinion rightly points out that there is 

evidence supporting the conclusion that Williams’ failure to 

file the FBAR was willful, particularly if adopting the 

majority’s conclusion that a “willful violation” can include 

“willful blindness to the FBAR requirement” or “intentional 

ignorance.” Maj. Op. at 12. That evidence could have led a 

reasonable factfinder to conclude that the violation was 

willful, as the majority believes.1

But there is also evidence supporting the opposite view. 

First, there is Williams’ direct testimony that he was unaware 

of the FBAR requirement in June 2001 (when it was supposed to be 

filed) and that he did not willfully (or recklessly) fail to 

file it. The district judge, who had the opportunity to observe 

Williams’ demeanor while testifying, expressly found that 

“Williams’ testimony that he only focused on the numerical 

calculations on the Form 1040 and otherwise relied on his 

accountants to fill out the remainder of the Form is credible . 

. . .” J.A. 379.

 1 Some of that evidence, of course, is subject to two 

interpretations. For example, the majority reasons that 

Williams’ reference in his allocution to the “Department of the 

Treasury” is necessarily an admission he violated § 5314. 

Because the IRS is a bureau of the Department of the Treasury, 

however, the reference in his plea could instead be interpreted 

as a simple acknowledgement of that fact. Indeed, there was no 

reference in the criminal proceedings to Section 5314 or the 

FBAR at all. 
17

Significantly, the district court also found that there was 

no objective incentive for Williams to continue to conceal the 

ALQI account in June 2001, because at that time he knew that the 

United States government had requested the ALQI accounts be 

frozen, and thus Williams knew the United States government knew 

about those accounts. As the district court reasoned, if 

Williams had known about the FBAR requirement, there would have 

been little incentive for him under those circumstances to 

refuse to comply with it as of June 2001. 

Additional evidence supporting the district court’s finding 

includes the undisputed evidence that, after June 2001, Williams 

and his advisors began formal disclosures of the ALQI accounts, 

including the filing of amended income tax returns, but they did 

not backfile FBAR reports. These disclosures included direct 

disclosures of the ALQI accounts to the IRS in January 2002. The 

district court explained the significance of this disclosure to 

the IRS: “[t]hough made after the June 30, 2001” FBAR filing 

deadline, the disclosure “indicates to the Court that Williams 

continued to believe the assets had already been disclosed. That 

is, it makes little sense for Williams to disclose the ALQI 

accounts merely six months after the deadline he supposedly 

willfully violated.” J.A. 378. This was a logical and supported 

finding for the district court to make on the record before it. 
18

The district court’s decision was set forth in a detailed 

opinion that fully explained the evidence supporting its 

findings. Had I been sitting as the trier of fact in this bench 

trial, I may well have decided differently than did the district 

judge. But I cannot say that I am left with a “definite and firm 

conviction” that he was mistaken. Thus, I cannot agree with the 

majority that the Government has established clear error. 

I also address briefly the two other grounds for reversal 

asserted by the United States and rejected by the district 

court: collateral estoppel and judicial estoppel.2 Specifically, 

the Government points to Williams’ criminal conviction and, in 

particular, the language in his plea allocution, see Maj. Op. at 

6, as requiring a finding that both types of estoppel apply. I 

disagree. 

We review the district court’s denial of judicial estoppel 

only for abuse of discretion, see Jaffe v. Accredited Sur. & 

Cas. Co., 294 F.3d 584, 595 n.7 (4th Cir. 2002), and its denial 

of collateral estoppel de novo, Tuttle v. Arlington Cnty. Sch.

Bd., 195 F.3d 698, 703 (4th Cir. 1999). 

 2 In light of its holding that the district court clearly 

erred in finding the violation not willful, the majority did not 

have cause to address either estoppel argument. Because I would 

affirm the district court and the Government contends that both 

types of estoppel prevent Williams from challenging the 

willfulness of his violation, it is necessary to address those

points. 
19

Judicial estoppel generally requires three elements: 

First, the party sought to be estopped must be seeking 

to adopt a position that is inconsistent with a stance 

taken in prior litigation. The position at issue must 

be one of fact as opposed to one of law or legal 

theory. Second, the prior inconsistent position must 

have been accepted by the court. Lastly, the party 

against whom judicial estoppel is to be applied must 

have intentionally misled the court to gain unfair 

advantage.

Zinkand v. Brown, 478 F.3d 634, 638 (4th Cir. 2007) (citations 

and internal quotations omitted).

Similarly, a party seeking to apply collateral estoppel 

must establish five elements: 

(1) the issue sought to be precluded is identical to 

one previously litigated; (2) the issue [was] actually 

determined in the prior proceeding; (3) determination 

of the issue [was] a critical and necessary part of 

the decision in the prior proceeding; (4) the prior 

judgment [is] final and valid; and (5) the party 

against whom estoppel is asserted . . . had a full and 

fair opportunity to litigate the issue in the previous 

forum.

Sedlack v. Braswell Servs. Grp., Inc., 134 F.3d 219, 224 (4th 

Cir. 1998); Collins v. Pond Creek Mining Co., 468 F.3d 213, 217 

(4th Cir. 2006). “The doctrine . . . may apply to issues 

litigated in a criminal case which a party seeks to relitigate 

in a subsequent civil proceedings . . . . [For example], a 

defendant is precluded from retrying issues necessary to his 

plea agreement in a later civil suit.” United States v. Wight, 

839 F.2d 193, 196 (4th Cir. 1987). 

In my view, the district court correctly concluded that 
20

there remains a factual incongruence between those 

facts necessary to [Williams’] guilty plea to tax 

evasion and those establishing a willful violation of 

§ 5314. That Williams intentionally failed to report 

income in an effort to evade income taxes is a 

separate matter from whether Williams specifically 

failed to comply with disclosure requirements 

contained in § 5314 applicable to the ALQI accounts 

for the year 2000. 

J.A. 379. Put differently, Williams never allocuted to failing 

to file the FBAR form, and certainly did not admit willfully 

failing to file it. Neither his plea agreement nor his 

allocution even referred to the FBAR or § 5314. Indeed, the 

Treasury Department itself notes that the FBAR is a separate 

reporting requirement and not a tax return, nor is it to be 

attached to a taxpayer’s tax returns. See J.A. 225, 237, 246. In 

short, pleading guilty to hiding the existence of the two 

accounts for income tax purposes does not necessarily establish 

that Williams willfully failed to file a FBAR for 2000. Indeed, 

other separate and distinct tax penalties (including penalties 

for fraud) were separately sought by the IRS from Williams for 

his failure to report the income in the accounts, pursuant to 26 

U.S.C. §§ 6662 and 6663. See Williams v. Comm’r of Internal 

Revenue, 97 T.C.M. (CCH) 1422, *4 (Apr. 16, 2009). The FBARrelated penalty is not a tax penalty, but a separate penalty for 

separate conduct.

Thus, viewed as distinct issues, collateral estoppel is 

inapplicable here because Williams’ willfulness in failing to 
21

file the FBAR is not an issue “identical to one previously 

litigated.” Sedlack, 134 F.3d at 224. Likewise, judicial 

estoppel is inapplicable because there is nothing about 

Williams’ stance on willfulness here that is “inconsistent with 

[the] stance taken” in his criminal proceedings. Zinkand, 478 

F.3d at 638. Accordingly, I would further hold that the district 

court did not err in declining to apply either collateral 

estoppel or judicial estoppel. 

For all of these reasons, I respectfully dissent and would 

affirm the judgment of the district court.