# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 4, 2011 Decided October 7 , 2011 Amended December 9, 2011

No. 10

- 3039

U NITED S TATES OF A MERICA
, A PPELLEE

v.

A BDUL K ARIM K HANU
, A PPELLANT

Appeal from the United States District Court for the District of Columbia (No. 1:09

- cr

- 00087)

John W. Nields Jr., argued the cause for appellant. With him on the briefs were William R. Martin and Kerry Brainard Verdi

.
Katherine M. Kelly , Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Ronald C. Machen Jr. , U.S. Attorney, and Elizabeth Trosman and Suzanne G. Curt , Assistant U.S. Attorneys. Roy W. McLeese III, Assistant U.S. Attorney, entered an appeara nce.

Before: S ENTELLE
, Chief Judge

, G INSBURG and B ROWN
,2

Circuit Judges

.
Opinion for the Court filed P ER C URIAM

. Opinion concurring in part and dissenting in part filed by Chief Judge S ENTELLE

.

P ER C URIAM : Appellant Abdul Karim Khanu appeals his conviction and sentence on two counts of attempted tax evasion. He argues the Government failed to prove the element of tax loss because it relied upon a flawed calculation under the “cash method of proof” and attributed to Khanu $1.9 million of alleged gain when those funds, as a matter of law, belonged to his two corporations. Khanu challenges his sentence to the extent it rests upon the allegedly incorrect calculation of tax loss. We affirm the convictions and the

sentence.
Background

This appeal arises from an indictment returned in March of 2009, charging appellant Khanu with twenty

- two counts generally related to his alleged evasion of personal income taxes and corporate taxes arising from his operation of tw o nightclubs in Washingto n, DC. According to the evidence adduced at trial, appellant owned or co

- owned corporations which operated the two nightclubs from 1999 until 2003. In preparation for establishment of the first nightclub, appellant leased a property in northwest Washingt on from a landlord who required the submission of a personal balance sheet. The balance sheet, which became critical evidence for reasons which will be set forth more fully below, indicated that appellant personally had $700,000 in cash on hand and in ban k accounts as of April 12, 1999. The operation of the nightclubs generated substantial amounts of cash from such items as cover charges at the door and sales from the bars.3

Khanu was responsible for large cash deposits in the corporate bank accounts.

In October of 2003, Internal Revenue Service agents executed a search warrant on Khanu’s home and seized approximately $1.9 million in cash from a safe in a dead

- bolt

locked pantry. Khanu later swore an affidavit attest ing that the $ 1.9 million “is the pr operty” of the corporations, which

, pursuant to a closing agreement with the IRS, then used the money to satisfy outstandi ng tax liabilities of their own

.
In March of 2009, the grand jury returned the twenty

- two count indictment charging: (1) conspiracy (18 U.S.C. § 371) (Count 1); (2) three counts of attempted tax evasion related to the filing of his individual income tax returns from 2001 through 2003 (26 U.S.C. § 7201) (Counts 2

- 4); (3) four counts of aiding and assisting in the preparation and filing of false tax returns related to the annual corporate tax returns for two corporations of which he was an owner for the fiscal years ending September 30, 2002 and 2003 (26 U.S.C. § 7206(2)) (Counts 5

- 8); and (4) fourteen counts of aiding and assisting in t he preparation and filing of false tax returns related to the quarterly tax returns for those corporations during the same time period (26 U.S.C. § 7206(2) ) (Counts 9

- 22).

Before trial, the defense moved to exclude evidence of the $1.9 million, arguing th at Khanu had disclaimed any ownership of the funds in the affidavit, and that the funds could not be included in his net worth at the end of 2003 because the Government had seized them before the end of that tax year. The district court denied Khanu’s mot ion because

, notwithstanding the putative “repayment” of the $1.9 million to the corporations, a jury could find Khanu had exercised sufficient control over the money for it to be taxable as personal income to him.4

After a three

- week trial, the jury found Khanu guilty of two counts of attempted tax evasion related to the filing of his individual tax returns for 2002 and 2003 but acquitted him of all other charges. The district court sentenced Khanu to concurrent thirty

- eight month terms of incarceration o n the two counts of conviction followed by concurrent three

- year terms of supervised release, and ordered restitution of $951,520.00. In an amended judgment, the court reduced the amount of restitution to $302,832.64.

The Trial

As pertinent to this app eal, critical evidence offered by the government in the trial included an income and tax computation presented by an expert witness and evidence of the $1.9 million seized under the search warrant of October 2003. The government presented the computation evidence through IRS Agent Freddie Lewis. The theory of the government’s case as to both years, outlined by Lewis, was based on the “cash method of proof.” This method computes cash on hand held by the taxpayer, cash expenditures by the taxpayer, and com pares that cash total against cash from all known sources for the years in question. The net excess of cash expenditures over the cash from all sources is treated as unreported income. As the government’s expert testified at trial, the cash method of pro of requires a starting point with respect to the cash on hand. Lewis began his analysis with a starting figure for cash on hand derived from the balance sheets Khanu submitted to his landlord preparatory to the lease of nightclub space in April of 1999. After making adjustments for Khanu’s accounts at the time of the filing of the balance sheet, Lewis calculated that the appellant had cash on hand of $698,886.20 on the date of the balance sheet.

Using the cash method, the cash on hand remaining at the end of 1999 ($559,554.29) was carried forward to the5

beginning of 2000, the remaining cash on hand at the end of 2000 ($371,652.77) was carried forward to 2001, and the remaining cash on hand at the end of 2001 ($65,507.67) was carried forward to 2002.

Lewis then continued his calculation by determining all identifiable sources and uses of cash by Khanu during the years under examination. These calculations, as presented in evidence before the jury, included the $1.9 million of cash seized from appellan t’s home in October 2003. In this final calculation, Lewis determined that in 2002 appellant had total cash expenditures of $609,498.90 against $156,403.85 in total sources of cash. By subtracting the cash from known sources from the total cash expenditu res, Lewis concluded and the government contended that appellant had $453,095.05 in unreported income for the tax year 2002. For the tax year 2003, Lewis calculated that appellant’s total cash expenditures exceeded his total sources of cash by $2,227,690. 07. The government contended that Khanu had underreported his income by that amount in 2003. Particularly, the calculation for 2003 included the $1.9 million seized from Khanu’s home. Therefore, exclusive of the $1.9 million, Khanu’s unreported income, as evidenced by the cash method calculation, approximated $300,000 for that year.

Analysis

Appellant argues that the judgment of the district court rests on reversible errors both as to the convictions and the sentences. Appellant offers two principal arguments going to the validity of the convictions, one as to the sentencing. One of the alleged substantive errors affects both counts of conviction, the other only tax year 2003. We begin with the error asserted as to both years.6

A. The Met hod of Proof

To establish a violation of 26 U.S.C. § 7201, the prosecution must establish three elements beyond a reasonable doubt: “(1) willfulness, (2) the existence of a tax deficiency, and (3) an affirmative act constituting an evasion.” United States v. Smith , 267 F.3d 1154, 1165 (D.C. Cir. 2001). Appellant asserts that the prosecution in the present case did not present sufficient evidence to establish the second element beyond a reasonable doubt. Therefore, the defense argues, the district c ourt erred in denying his motion for judgment of acquittal. As noted above, the government’s evidence on the element of tax deficiency rested on a “cash method” of proof. Under this indirect method of proof, the prosecution’s evidence “focuses on the tax payer’s sources and uses of income,” United States v. Hogan , 886 F.2d 1497, 1509 (7th Cir. 1989). In using this method, the government is required to present evidence relating to the taxpayer’s cash expenditures. See United States v. Toushin , 899 F.2d 61 7, 619 (7th Cir. 1990). As Agent Lewis presented in this case, taxable and nontaxable cash sources are added together, including any cash accumulated and on hand at the beginning of the tax period. To the extent that cash expenditures exceed cash sources during the taxable period, as was evidenced in this case, the government’s theory is that the excess may be inferred to be unreported income. See id. at 620. The government argues that the accounting evidence, supported by documentary and other evidence underlying the accounting, is sufficient to survive defense motions for judgment of acquittal, and support the jury’s determination that the evidence established a tax deficiency beyond a reasonable doubt.

Appellant argues that the prosecution’s eviden ce is not sufficient to establish a deficiency under the cash method.7

This argument rests on the proposition that under this method, “the government must establish the defendant’s cash on hand at the beginning of each of the disputed years with reasonable certainty , while negating all other sources of nontaxable income during the same period.” United States v. Conaway

, 11 F.3d 40, 44 (5th Cir. 1993) (emphasis added). Appellant argues that the government’s figure of $698,886.20 was not established with re asonable certainty, nor all other sources of nontaxable income negated. Appellant contends that he might well have understated his cash on hand for business reasons at the time of the preparation of the balance sheet relied upon by the government’s accoun tant. He further contends generally that there might have been other sources of nontaxable income that the government did not negate. We find neither of these arguments convincing.

While it is true that appellant might have understated his cash on hand in his business transactions, this goes to the weight of the evidence, not its legal sufficiency. Likewise, it is also true that despite the government’s evidence that it could locate no sources of nontaxable income, there may have been some. The difficu lty with appellant’s arguments is not that they are without reason, but that they prove far too much. It is always the case that the government’s accounting figures in a cash method tax computation might be refuted, either as to the beginning amount or to the possibility of nontaxable sources. If the government had to establish with absolute certainty a beginning number and an impervious bar to nontaxable sources, indirect methods of proof of income could never be used. No matter how the government prove d the beginning number, the defendant could always argue after judgment that the government had not negated the possibility that he had some other money hidden somewhere or that some other source existed. It is not improperly shifting the burden of proof to the defendant to say that unrebutted evidence of8

the government is sufficient to survive a motion under Rule 29 and to sustain a conviction. To adopt the appellant’s argument would be to hold that indirect methods of proof can never be used to establis h deficiencies in income tax prosecutions

— a proposition long ago rejected. For example, in United States v. Johnson , 319 U.S. 503 (1943), the Supreme Court upheld the tax evasion convictions of a defendant engaged in an illicit gambling business, observin g that “[i]t is not to be expected that the actual financial transactions of such a vast illicit business would appear by direct proof.” Id. at 517. In Johnson , as in the case before us, the government proved the existence of a deficiency by an indirect method

— in this case by the “cash method,” in Johnson by the similar “cash expenditures method.”

In short, we find no error in the district court’s denial of the defendant’s motions for judgment of acquittal.

B. The $1.9 Million

Khanu has, from the outset , argued the $1.9 million seized from his safe should have been “excluded” from the Government’s evidence of tax loss. In his pretrial “Motion to Exclude the $1.9 Million,” Khanu said the money was not income to him because it was the “property” of the corporations, for which h e acted only as a custodian

. Khanu renewed this argument after trial , pointing to evidence the nightclubs brought in nearly $1 million in cash from a party just two weeks before the raid

. The district court rejected Khanu’s a rgument because, it held, the money would still count as income to Khanu if he exercised sufficient control over it and intende d to put it to his personal use; whether he did so was for the jury to determine.

On appeal, however, Khanu does not press the p oint about control and ownership of the funds while they were in9

his custody; rather, he contends his “return” of the funds, regardless of his prior actions or intent

, nullifies any liability on his part for the income tax on those funds. C iting cases about the tax consequences of embezzlement, he says he had no obligation to report the $1.9 million on his 2003 tax return because he “lost control of the funds” to the IRS or at least “disclaimed any ownership interest” in the money when he si gned the affidavit. See James v. United States , 366 U.S. 213, 220 (1961) ( dictum ) (“if, when, and to the extent that the victim recovers back the misappropriated funds, there is of course a reduction in the embezzler’s income’”); Gilbert v. Comm’r , 552 F. 2d 478, 481 (2d Cir. 1977) (“if [an embezzler] repays the money during the same taxable year, he will not be taxed”); Han v. Comm’r , 83 T.C.M. 1824, 2002 WL 1298745

, at *23 (2002) (“Funds over which a taxpayer has obtained dominion and control, lawfully or unlawfully, are not taxable to him to the extent they are repaid before year end”); Mais v. Comm’r , 51 T.C. 494 (1968) (funds seized from embezzler by police not taxable to him in the year repaid)

.

I f we are to consider this late

- raised but intriguing

ar gument, then w e must first determine the appropriate standard of review, which in turn depends upon the nature of the error Khanu has assigned. I n his opening brief Khanu

argue d “it was error to permit the government to include the $1.9 million in its [c] hart

, ” which went to the jury. Br. of Appellant at 40

. T o this the Government understandably responded that the district court “properly admitted” evidence of the $1.9 million

. Br. of Appellee at 17. Although t he dispute thus seemed to have been neatly framed in terms of admissibility, Khanu in his reply brief (at page 5) then inform ed us that , contrary to the Government’s understanding (and ours), “[his opening ] brief on appeal makes no argument about admissibility of evidence in connection the $1.9 mi llion at all.”10

Khanu’s emphatic reply does not clarify matters ; quite the opposite

. Accusing the Government of “mischaracterizing” his argument does not thereby entitle Khanu to review of the claim on his terms , to wit, as a bare question of law we may resolve without considering how, when

, or whether he presented the claim to the district court. If there is a distinction between Khanu’s argument against “permitting the inclusion” of evidence and a conventional argument against “admission” of the same

, then it eludes us. A ccording to Khanu, however, the difference lies in the standard of review : W hereas questions of admissibility are review ed only for abuse of discretion

, s ee United States v. Warren , 42 F.3d 647, 655 (D.C. Cir. 1994) , his claim, which raises the purportedly different, legal question of “includability

, ” should be review ed de novo.

Khanu is confused as well as confusing. In order to

pursue a n objection based upon “erroneous evidence,” Br. of Appellant at 39, he mu st identify an erroneous evidentiary ruling, whether the underlying error is one of law, fact

, or judgment

. Khanu , however, waived any objection to the admission of evidence, as we explain ed above, and has identifie d no other evidentiary ruling as the sub ject of his argument

. *

* Khanu first cited the dictum in James v. United States , 336 U.S. 213 (1961), and the decisions of the tax court described in the dissenting opinion, at the sentencing phas e of this case. We think Khanu’ s objection under James rests upon a theory of em bezzlement that he did not present in his pretrial motion, in which he argued he was merely the custodian of the $1.9 million, and that he effectively repudiated when he moved for a judgment of acquittal; in that motion he maintained he had “ freely and

tra nsparently ” borrowed cash from the corporations and “ ther e was not one shred of evidence” of skimming. Therefore, were we to review th e district court’ s ruling on a “ pure question of law ” arising under James

, we would do so only for plain error, and under that standard we would hold the district court did not commit reversible error.11

Assuming Khanu’s argument is aimed at something, we think it is the sufficiency of the evidence that he willfully attempted to evade taxes ; to wit

, he says, “ t here is no criminal tax evasion with respect to the $1.9 million,” because under the dictum in James “there was no tax due and owing on those funds

. ” Br. of Appellant at 35. W hen we address the sufficiency of the evidence underlying a conviction, we view the evidence in the light most favorable to the Government and ask whether “ any rational trier of fact” could

, based upon the evidence at trial, find the element of tax loss beyond a reasonable doubt

. Jackson v. Virginia , 443 U.S. 307, 319 (1979)

.

Kh anu co ncedes the Government’s chart , which he identified as the target, if not the underlying subject , of this argument

, showed unreported income of $300,000 i n addition to the $1.9 million in dispute. One would think that an end to the matter. Khanu nevertheless contends the verdict cannot be assumed to rest upon the tax owing on the $300,000 because the inclusion of the $1.9 million on the chart “severely prejudiced” the jury’s deliberations

. The objective standard prescribed in Jackson

, however, re quires us to consider whether “ any rational trier of fact” could convict Khanu, not whether the jury that actually convicted him might have voted differently under other circumstances

. Because a rational trier of fact could find beyond a reasonable doubt a tax was due and owing on $300,000 of income

, we leave for another day how best to interpret the dictum in James

.
The Sentencing

Appellant also contends, unsurprisingly, that the district court erred in considering the tax due on the $1.9 million in determining his sentence. We affirm the sentence b ecause the district court made sufficient factual findings at sentencing to support the inclusion o f the $1.9 million in the calculation of12

tax lo ss notwithstanding Khanu's “ repayment ” of those funds to his corporations

. S ee U.S.S.G. § 2T1.1 (c) (1), (5) (“the tax loss is the total amount of loss that was the object of the offense (i.e., the loss that w ould have resulted had the offense been successfully completed)” and is “not reduced by any payment of the tax subsequent to the commission of the offense”); see also § 1B1.3(a) & cmt., n.1 (relevant offense conduct for purposes of sentencing is not limite d to acts for which defendant is criminally liable and includes “ all acts and omissions committed ... by the defendant ... that occurred during the commission of the offense, in preparation for that offense, or in the course of attempting to avoid detectio n or responsibility for that offense” )

.

* * *

In sum, the judgment of the district court is in all respects

Affirmed

.No. 10-3039 – United States v. Khanu

S E N T E L L E , Chief Judge

, concur ring in part and dissenting in part: Whil e I am please d to join in my colleag ues’ aff irmance of the judgme nt of conviction on Count 3, I find my self unable to join the opinion or the result as to Count 4.

I acc ept the majori t y ’s statement of the underly ing fac ts
respe cting the $1.9 milli o n

. Br iefly

, g overnme nt ag ents discovere d the $1.9 m i l l i on in cash in Khanu’ s possession during the rele vant tax y ear

. Khanu identified the money as that

o f h i s corpor ation, disavowed ownership, paid the m oney ov er to the I RS in settlement of corpor ate tax obliga tions, and did not
possess it at the end of the tax y ear

. Unlike the majority

, I cannot, howeve r, conclude that those fac ts support the inclusion of the $1.9 milli on in the computation of the defic iency element of tax evasion. Unlike the majority

, I find appellant’ s arg ument

on this point neither confusing nor confuse d, nor do I find the distinction betwee n “‘pe rmitting the inclusion’ of evidenc e and

a conventional arg ument ag ains t ‘admission’ of the same,” elusive. Maj. Op. a t 10.

To me, the distinction is plain. Appellant does not contend that the evidenc e was not admissible for some purpose, only that the $1.9 milli on amount co uld not be included in the expert witness’s computation upon which the defic iency element of tax evasion wa s based. I t would seem rea sonable, indeed commonplace

, to assume that use of a ca s h m ethod or other

c ir c u ms ta n ti a l e v id e nce method of establishing defic iency w o u ld alway s involve acc ounting which would include ca sh flow and cash amounts that would pass throug h the ex p er t witness’s computations but not be i n cl u ded in the final defic iency at the conclusion of those computations. Any nontaxable source of

cas h t o t he taxpay er would cer tainly enter the expert witness’s computation, but such amount would not be included at the end.
For example, it would not be err or for the cour t t o admi t2

evidenc e of a taxpay er’ s bank acc ount swelling by $100,000 due

to a nontaxable g ift, and y et it would be err or for the same court
to permit the expert witness to tes t i fy t o the jury that that $100,000 wa s included in the shortag e upon which the expert witness bases his conclusion of repor ted income defic iency

. J ust so here

.

Unlike the majority

, I share appellant’ s understanding of the

appropr iate standard of revie w. Certainly

, admissibi l ity of evidenc e is g ener ally revie wed for abuse of discreti o n , s ee United States v. W

arren , 42 F.3d 647, 655 (D

. C

. C i r. 1994).
Howeve r, the tax conseque nces of a particula r transac tion would

seem to be a rathe r pure question of law which we would revie w de novo for leg al er

ror.

Finally

, I do not acc ept the majo ri ty ’s descr iption of this

arg ument as “late raised.” Khanu filed his “mot ion to exclude $1.9 milli on from g overnme nt’s calc ulations . . .” on Aug ust 3, 2009. The district court enter ed its denial of that motion on October 14, 2009. Both of thes e occur red befor e the

commence ment of the trial. I n this c ourt, the first point arg ued by appellant in his opening brief is that “the $1.9 milli on was, as

a matter of law, not taxable income to Mr. Kh an u

. ” I see no

sense in which the arg ument is late raised. T h ere fore

, concluding that the standard of review i s for leg al err or, the

rema ining que stion is whether it was in fa ct er ror. I t was. 1

T h e m a j o r i t y ’ s f o o t n o t e a t p a g e 1 0 d o e s n o t h i n g t o c h a n g e 1

t h i s f a c t

. T h e m o s t t h e m a

j o r i t y c a n a s s e r t i s n o t t h a t K h a n u d i d n o t

r a i s e t h e o b j e c t i o n i n t h e d i s t r i c t c o u r t
, b u t t h a t h e d i d n o t c i t e t h e

a p p r o p r i a t e c a s e

. I k n o w o f n o p r e c e d e n t o r o t h e r r u l e o f l a w

r e q u i r i n g a l i t i g a n t t o c i t e a p a r t i c u l a r c a s e i n o r d e r t o p r e s e r v e a n

e r r o r

.3

I n the court below, and befor e us, appellant has consistently contende d that the $1.9 mill i o n could not be included in the computation of his cash expenditures, as it was held by him only in sa feke eping for the corpor ations. The g overnme nt arg ued at trial, and arg ues on appea l, that it was a fac tual issue for the jury

to resolve as to whether he was in fac t hold i n g the cash for the

corpor ations, or had taken it fo r h i s p er sonal use. I f the $1.9 milli on was proper ly included in the acc ountant’s computation, the g overnme nt contends, then it was for the jury to d ec ide whether it was cash he held and expended upon i ts seizure, or cash he held for the corpor ation which was not includable. The difficulty with the gover

nment ’s case is that it should not have been included in his unrepor ted i n co m e under either circ umstance.

Appellant arg ues, and I ag ree , that under the prin cipl e of taxation announce d by the Supreme Court in Jame s v. United States

, 366 U.S. 213 (1961), even if Khanu took the money from the corporations for his persona l use—whe ther that is called embezzli ng or skimmi n g— i t could not under the fac ts of this

case be included in his taxable income. I n Jame s , th e C o u rt

acce p t ed with approva l the g overnme nt’s proposition that “‘if, when, and to the ex t ent that the victim rec overs back the misappropriate d funds, there is of cour s e a reduc tion in the embezz l er ’s income.’” Id. at 220 (quoting the brief of the United States). Whil e the opinion in Jam es is a plurality opinion, neither of the separ ate opinions questioned the judgme nt of the plurality on this point. Whil e neither the Supreme Court nor this court has clea rly spoken to the question since Jame

s , other lower courts have reiter ated the Supreme Court’s point. I n Gilbert v. Commissioner of Internal Rev enue , 552 F.2d 478 (2d Cir. 1977), the Second Circuit held that “if [an embezzler] repa

y s the money during the same taxable y ear , he will not be taxed.” Id. at 481 (citing Jame s ). L ikewise, the Tax Court has followed Jame

s

. I n Han v. Commissioner

, 83 T.C.M.4

1824 (2002), that court decla red, “[f]unds over which a taxpay er h as obtained domi nion and control, lawful ly or unlawful ly

, ar e not taxable to him to the extent they are repa id befor e y ear end.” Id. at 23 (e mphasis added)

.

Ver y direc tly on point to the issue befor e us, in Mais v. Com mi s s i o ner , 51 T.C. 494 (1968), the Tax Court held that embezzled money tur n ed over “to the New York Police Depa rtment for restitution to” the victim would not be “tre at[ed]

as income” to the embezzler in the y ear of the em bezzl ement. Id. at 497. L ang uag e of Mais applies perf ectly to the case befor e

us. The Un i t ed States on appea l is unable to dispute the

corr ectne ss of defe nd an t ’s interpre tation that money g ained by embezzlement but repa id during the t ax y ear does not g ener ate
tax liabilit y fo r the embezzler. Citi ng Mais

, the g overnme nt
arg ues that Khanu s h o u l d have repor ted the $1.9 milli on then d ed u ct ed i t. I am at a loss as to how this would fill in t h e

nece ssary element of defic iency

. The zero income shown by not
repor ting the $1.9 million is precisely the s ame as the zero that would be shown by repor ting then deduct ing it. I n any event, nothing in Jame

s co m pels the “re port then deduct” proce dure the g overnme nt would impose, nor do I see any wa y i n which willful criminal conduct could be found on the part of the defe ndant fo r not comply ing with such an appar ently frivolous

acc ounting pr ocedur e.

Finally

, the g overnme nt contends, and the majority arg ues, that if the inclusion of the $1.9 milli on in the tax acc ounting was

err or, it was harmless. I ts argu m en t i s that beca use there was other acc ounting evid en ce of over $300,000 of unrepor ted income in 2003, on which an additional $75,000 was due in owing

, the inclusion of the $1.9 mil l i o n did not prejudice the defe ndant. This arg ument fails for two rea sons. Firs t
, the potential prejudice from a proper ly evidenc ed $3 0 0 ,000 understate ment enhanc ed by a $1.9 milli on i mproper inclusion5

would s ee m evident. The g overnme nt went to the trouble of including the $1.9 milli on in its acc ounting, defe nded it ag ainst motions to exclude at trial, and arg ued the $2.2 milli on fig ure to the jury

. I do not be lieve we c an hold with c onfidenc e that this chang e in the mag nitude of evidenc e by the improper inclusion di d n o t p rejudice the minds of the jury

. Perhaps equally importantly

, if not more so, we cannot know that the jury did not enti re l y b ase its g uilt verdic t on the $1.9 milli on while disbelieving or being unconvince d as to the smaller fig ure in the

acc ounting. Nonethele ss, the g overnme nt is corr ect that the $300,000 was proper ly in evidenc e. There for e, we should not

reve rse the district court’s denial of defe ndant’s motion for judgme nt of acquittal, but rathe r should vacate the judgme nt and

rema nd this count for re trial.

I note ag ain that I would not hold, nor did appellant contend, that the seizure of the $1.9 milli on could not come into evidenc e—only that it could not be included as p art of the

unrepor ted income. I t may be that the evidenc e would g o to the intent of the defe ndant or to his method of opera tion. I t is likely that the $1.9 milli on could, indeed perha ps should, be part of the

acc ountant’s computation as a source of ca sh, then offse t by an expenditure at the time of the seizure and t h e re t u rn to the

corpor ation.

For t h e re asons set forth above, I dissent from the court’s aff irmance of the c onviction and sentenc e on Count 4.