* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 7 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAVID T. CONSTANTINE, Defendant-Appellant.

________________________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL S. CONSTANTINE, Defendant-Appellant. No. 96-6284 (D.C. CR-96-56-R) (Western District of Oklahoma)

No. 96-6311 (D.C. CR-96-56-R) (Western District of Oklahoma)

ORDER AND JUDGMENT * Before ANDERSON, HENRY, and BRISCOE, Circuit Judges

.
After examining the briefs and appellate record, th is panel has unanimously determined that oral argument would not materially assist the determination of2

this appeal. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Defendants David T. and Michael S. Constantine (her einafter, “David” and “Michael,” respectively) are brothers who appeal th eir convictions and sentences. The indictment alleged that the defendants engaged in a scheme to file tax returns containing false information, under David’s and oth ers’ names, seeking refunds to which they were not lawfully entitled. After a joi nt trial, David and Michael were each convicted on one count of conspiracy to file f alse tax returns, in violation of 18 U.S.C. § 286. David was also convicted on eightcounts of filing false tax returns, in violation of 18 U.S.C. § 287. On appeal, David argues that the evidence was insuf ficient for his conspiracy conviction; that he did not file a “clai m” within the meaning of 18 U.S.C. § 287; and that the district court erred in calculating the loss to the IRS and in classifying him as an “organizer or leader” of the criminal activity. Michael argues that the district court erred in denying his motions for severance and continuance; that the evidence of conspiracy attrial was both insufficient for his conviction and at variance with the allegations in the indictment; and that the district court erred in attributing to him the amou nt of loss to the IRS. We exercise jurisdiction under 28 U.S.C. § 1291 and af firm. We will address David’s arguments and then turn to Michael’s.3 I. DISCUSSION

A. David
1. Conspiracy
David argues that the evidence was insufficient forhis conspiracy conviction. “Evidence is sufficient to support a c onviction if the evidence and the reasonable inferences drawn therefrom, when viewed in the light most favorable to the government, would allow a reasonable jury to find the defendant guilty beyond a reasonable doubt.” United States v. Marku m , 4 F.3d 891, 893 (10th Cir. 1993). David argues that the evidence failed to show an ag reement to violate the law and interdependence, which are essential elemen ts of conspiracy. See United States v. Angulo-Lopez , 7 F.3d 1506, 1510 (10th Cir. 1993). “[T]he agree ment need not be formal or explicit but rather may be in ferred from facts and circumstances.” United States v. Arutunoff , 1 F.3d 1112, 1116 (10th Cir. 1993). The facts and circumstances must show interdependen ce — the alleged conspirators must have relied on each other in achi eving a common, illicit goal. See Angulo-Lopez , 7 F.3d at 1510.4

We disagree with David that others simply imitated the brothers’ illegal conduct, without the Constantines’ encouragement orassistance: the evidence at trial established that David recruited others underwhose names false returns would be filed, supplied the false information cont ained on the returns, and assisted in the filing of the returns. See , e.g. , Rec. vol. IV, at 250-54 (Trial Tr., dated May 22, 1996). This is sufficient evidence o f interdependence with the others. However, even if David and Michael did con spire with no one but themselves, the evidence was still sufficient for c onviction. See Rutledge v. United States , 116 S. Ct. 1241, 1246 n.7 (1996) (“[A] conspiracyrequires only two.”).

2. “Claim”
David challenges his convictions for filing false t ax returns, on the ground that he did not file false “claim[s]” within the me aning of 18 U.S.C. § 287. This argument raises a question of statutory interpretat ion, which we review de novo. See United States v. Morgan , 922 F.2d 1495, 1496 (10th Cir. 1991). David argues that the returns at issue were untimel y under 26 U.S.C. § 6072(a). See 26 U.S.C. § 6072(a) (1994) (“[R]eturns made on the basis of the calendar year shall be filed on or before the 15th day of April following the close of the calendar year . . . .”). Therefore, David a rgues, the returns were not5

“claim[s]” under 18 U.S.C. § 287. See 18 U.S.C. § 287 (“Whoever makes or presents . . . any claim upon or against the United States . . . knowing such claim to be false . . . shall be imprisoned . . . and . . . subject to a fine . . . .”). However, the former statute does not purport to def ine “claim” for purposes of the latter, nor does the latter reference the fo rmer. We see no reason to restrict the definition of “claim” in a way that Congress ha s not. Furthermore, as an IRS representative testified at trial, the government w ill honor a claim seeking a refund regardless of its timeliness. See Rec. vol. III, at 135 (Trial tr., dated May 21, 1996). Accordingly, David’s objection to his f alse filings convictions is without merit.
3. Sentencing

a. Amount of Loss
David argues that the district court erred in calcu lating the amount of loss to the IRS, for purposes of determining his offense level under United States Sentencing Guideline (“U.S.S.G.”) § 2F1.1. David c ontends that the loss calculation should have been limited to the 13 retu rns referenced in the indictment. According to David, evidence presentedat the sentencing hearing was insufficient to link him to 15 additional returns.6

We review factual findings underlying a district co urt’s offense-level calculation for clear error. See United States v. Kunzman , 54 F.3d 1522, 1531 (10th Cir. 1995). At the sentencing hearing, there was evidence that all 28 returns listed wages of $24,500, and that the majority of t he returns sought refunds of either $3,159 or $3,059. See Rec. suppl. vol. I, at 6-7 (Tr. of sentencing, dat ed July 30, 1996). Furthermore, only three employers — Phillips Petroleum, Unisys Corporation, and M&C Services — were listed in 24 o f the 28 returns. See id . at 8. Phillips Petroleum is the longtime employer of the defendants’ father. See id

. Unisys Corporation is the former employer of Michae l’s ex-girlfriend. See id . at 10. M&C Services is David’s former employer. See id . at 11. In light of this support in the record, connecting the returns to ea ch other and to David, we are not left with a “‘definite and firm conviction’” th at the district court erred in concluding that all 28 returns were part of the con spiracy of which the defendants were convicted. United States v. Pappert , 112 F.3d 1073, 1078 (10th Cir. 1997) (quoting United States v. McAlpine , 32 F.3d 484, 488 (10th Cir. 1994) (internal quotations omitted)).
b. “Organizer or Leader”7

David argues that the district court erred in asses sing a four-level increase in his offense-level, pursuant to U.S.S.G. § 3B1.1( a), for his role as an “organizer or leader” in the criminal activity. We disagree. We review the sufficiency of the evidence for the e nhancement for clear error. Cf. United States v. Brown , 995 F.2d 1493, 1500 (10th Cir. 1993) (reviewing enhancement under § 3B1.1(c)). Among th e factors that show a leadership and organizational role are: “the recru itment of accomplices . . . , the degree of participation in planning or organizing t he offense . . . , and the degree of control and authority exercised over others.” U.S.S.G. Manual § 3B1.1 cmt. (n.4) (1995). As noted above, the evidence at tria l established that David recruited others under whose names false returns wo uld be filed, supplied the false information contained on the returns, and ass isted in the filing of the returns. See Rec. vol. IV, at 250-54, 289-93, 307-11 (Trial Tr. , dated May 22, 1996). Furthermore, although David contends “Micha el . . . was the mastermind behind the scheme,” Aplt’s Br. at 18, “[t]here can . . . be more than one person who qualifies as a leader or organizer.” U.S.S.G. Manual § 3B1.1 cmt. (n.4). Accordingly, we find no error in the district court ’s enhancement for David’s role as a leader or organizer.8 B. Michael

1. Severance
Michael argues that he should not have been tried j ointly with his brother, because the bulk of the counts — eight out of nine — pertained only to David, and the jury was likely to have found Michael guilty simply based on the defendants’ sibling relationship. We disagree. The presumption is that persons indicted together f or conspiracy should be tried together. See United States v. Hardwell , 80 F.3d 1471, 1486 (10th Cir. 1996). We review a district court’s denial of a mo tion for severance for abuse of discretion. See id . We will not reverse absent a strong showing of p rejudice. See United States v. Edwards , 69 F.3d 419, 434 (10th Cir. 1995), cert. denied , 116 S. Ct. 2497 (1996). The prejudice a defendant must show “is a serious risk that a joint trial [will] compromise a specific tri al right . . . , or prevent the jury from making a reliable judgment about guilt or inno cence.” Zafiro v. United States , 506 U.S. 534, 539 (1993). “[A] negative spill-ov er effect from damaging evidence presented against [a] codefendant[]” is in sufficient prejudice to warrant severance. United States v. Wacker , 72 F.3d 1453, 1468 (10th Cir. 1995), cert. denied , 117 S. Ct. 136 (1996). Although the risk of prej udice from a joint trial is heightened when defendants have “markedly differentdegrees of culpability,”9

Zafiro , 506 U.S. at 539, “limiting instructions[] often w ill suffice to cure any risk of prejudice.” Id . Limiting instructions can likewise cure the riskof prejudice stemming from two defendants being siblings. See United States v. Mandel , 591 F.2d 1347, 1371 (4th Cir. 1979); United States v. J uarez , 573 F.2d 267, 280 (5th Cir. 1978). Appropriate limiting instructions advi se the jury to consider the evidence admitted against each defendant separately . See Zafiro , 506 U.S. at 539 (citing instructions in Richardson v. Marsh , 481 U.S. 200 (1987)). Michael does not suggest that such instructions were not given; thus, he fails to make a strong showing of prejudice. Michael further argues that his defense was antagon istic to his brother’s and could only have been presented in a separate tr ial. Michael’s theory appears to be that his brother could have exculpated him, b ut chose not to testify in the joint trial. See Rec. vol. II, at 4 (Tr. of pretrial mots., dated M ay 20, 1996). Seven factors are relevant for considering whether to sever based on potential exculpatory testimony: (1) the likelihood that the codefendant would in fact testify if the cases were severed; (2) the signific ance of the testimony to the theory of the defense; (3) the testimony’s exculpat ory nature and effect; (4) the likelihood that the testimony would be impeached; ( 5) the prejudice caused by the absence of such testimony; (6) the effect of severance on judicial economy; and (7) the timeliness of the motion. See United States v. Powell , 982 F.2d 1432-33,10

19 (1st Cir. 1992). Michael has not addressed thes e seven factors and thus has failed to make a strong showing of prejudice. Acco rdingly, we conclude that the district court did not abuse its discretion in deny ing the motion for severance.

2. Continuance
Michael argues that the district court erred in denying his motion for continuance. We will reverse the denial of a motio n for continuance only upon a showing of “clear abuse of discretion resulting in manifest injustice.” See United States v. Mitchell , 765 F.2d 130, 132 (10th Cir. 1985). We look for an “insistence upon expeditiousness in the face of a j ustifiable request for delay, [which] render[s] the [constitutional] right to def end with counsel an empty formality.” Ungar v. Sarafite , 376 U.S. 575, 589 (1964). Michael’s counsel did not move for continuance unti l the eve of trial. See Rec. vol. II, at 9 (Tr. of pretrial mots., dated May 20, 1996). By that time, many out-of-town witnesses had already arrived. See id . at 6, 9. Counsel’s delay is difficult to explain: Although she apparently learned only the week before trial that David would not ple ad, see id . at 3, we do not understand why she would have banked on his plea an d not prepared an alternative trial strategy. Furthermore, although her co-counsel (more experienced in federal court than she) withdrew pri or to trial, see id ., she delayed11

almost two weeks before moving for continuance. Se e id . at 6 (noting that cocounsel’s withdrawal was approved on May 7, 1996). Furthermore, we think the motion for continuance may have been little more than a back-door attempt to secure the severan ce that the district court properly denied; in his brief on appeal, Michael as serts that continuance would hardly have prejudiced the government since David h ad not made a similar request and his trial could go forward. See Aplt’s Br. at 19. In any event, we have reviewed the trial transcript and do not belie ve the denial of continuance rendered Michael’s counsel ineffective. See genera llyRec. vols. III & IV (Trial tr., dated May 21-23, 1996). Accordingly, we do no t believe the district court erred in denying the motion for continuance.

3. Variance
Michael argues that the evidence at trial establish ed not the single conspiracy alleged in the indictment, but rather mu ltiple conspiracies of which he was not a member. We disagree. A variance between the allegations in the indictmen t and the proof at trial is fatal to a conviction if the variance affects “‘ the substantial rights of the accused.’” Edwards , 69 F.3d at 432 (quoting Berger v. United States , 295 U.S. 78, 82 (1935)). Substantial rights are affected “w hen the jury determines a12

defendant’s [membership in a conspiracy] by relying on evidence adduced against coconspirators who were involved in separate conspi racies.” Id . Whether Michael was a member of a single conspiracy, as all eged in the indictment, is a question for the jury. See id . at 432-33. We review the evidence in the light m ost favorable to the government. See id . at 432. As noted above, there was substantial similarity am ong the false returns filed — in terms of wages reported, refunds claimed , and employers listed. Michael first proposed the tax fraud scheme to Davi d. See Rec. vol. III, at 145 (Trial tr., dated May 21, 1996). Michael apparentl y cashed one of the fraudulently-obtained checks using an alias. See id . at 221-25. Michael’s fingerprints were found on a false return filed in the name of Alvin Phyffer. See Rec. vol. IV, at 378-79 (Trial tr., dated May 22, 1 996). Finally, Michael accompanied David to post office boxes opened to re ceive fraudulently-obtained refund checks. See id . at 407-08. We believe that this and the other ev idence at trial showed that Michael was a member of the singl e conspiracy alleged in the indictment. See Edwards , 69 F.3d at 432 (“In determining whether a single conspiracy existed, a focal point of the analysis i s whether the alleged coconspirators’ conduct exhibited interdependence.” ). We note that the government was free to establish Michael’s guilt entirely through circumstantial evidence. See United States v. Troutman , 814 F.2d 1428, 1446-47 (10th Cir.13

1987) (“Conspiracy cases may be proven exclusively by circumstantial evidence.”). Thus, no variance existed. Even if a variance did exist, the strength of evide nce underlying Michael’s conviction was strong. See Edwards , 69 F.3d at 433 (noting that “the strength of the evidence underlying the conviction” is relevantto whether substantial rights were affected). Furthermore, we do not believe the evidence was so intricate that the jury could not separate Michael’s involvement f rom David’s. See id . (noting that the possibility of confusion among jurors may suggest that substantial rights were affected). Thus, we conclude that the jury wa s able to properly determine Michael’s guilt.
4. Sufficiency of the Evidence
Michael challenges the sufficiency of the evidence in terms substantially indistinguishable from his variance argument. We s ee no need to address the sufficiency argument separately.

5. Amount of Loss
Michael argues that his offense level under U.S.S.G . § 2F1.1 should not have been based on the loss to the IRS calculated b y the district court because he14

was only minimally involved in the tax fraud scheme . We review factual findings underlying offense-level calculations for clear err or. See Kunzman , 54 F.3d at 1531. Under U.S.S.G. § 1B1.3, relevant conduct foroffense-level calculations includes “in the case of a jointly undertaken crimi nal activity . . . , all reasonably foreseeable acts and omissions of others in further ance of the jointly undertaken criminal activity.” U.S.S.G. Manual § 1B1.3(a)(1)( B). We agree with the district court that “there was a strong circumstantial case” that Michael had reason to foresee the acts that his brother undertook in furtherance of the conspiracy. Rec. suppl. vol. III, at 18-19 (Tr. of sentencing, dated Aug. 21, 1996). Accordingly, we find no error, clear or otherwise, in the distri ct court’s attribution to Michael of the amount of loss.

II. CONCLUSION
For the foregoing reasons, we conclude that the def endants’ arguments lack merit: As to David: (1) the evidence was sufficie nt for his conspiracy conviction; (2) his false filings convictions did n ot require the returns to be timely; and (3) the district court did not err in c alculating the amount of loss or in sentencing him as an organizer or leader. As to Mi chael: (1) the district court did not err in denying his motions for severance an d continuance; (2) there was no variance that affected his substantial rights as to the allegation and proof of15

conspiracy; (3) the evidence was sufficient for his conviction; and (4) the district court did not err in attributing to him the calculated loss. Accordingly, the judgment of the district court is AFFIRMED. The mandate shall issue forthwith. Entered for the Court, Robert H. Henry Circuit Judge