* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions 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, this panel has unanimously

determined that oral argument would not materially assist the determination of
2

this appeal. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Defendants David T. and Michael S. Constantine (hereinafter, “David” and

“Michael,” respectively) are brothers who appeal their convictions and sentences. 

The indictment alleged that the defendants engaged in a scheme to file tax returns

containing false information, under David’s and others’ names, seeking refunds to

which they were not lawfully entitled. After a joint trial, David and Michael were

each convicted on one count of conspiracy to file false tax returns, in violation of

18 U.S.C. § 286. David was also convicted on eight counts of filing false tax

returns, in violation of 18 U.S.C. § 287.

On appeal, David argues that the evidence was insufficient for his

conspiracy conviction; that he did not file a “claim” 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 at trial 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 amount of loss to the IRS. We

exercise jurisdiction under 28 U.S.C. § 1291 and affirm. 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 for his conspiracy

conviction. “Evidence is sufficient to support a conviction 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. Markum, 4 F.3d 891, 893 (10th Cir.

1993).

David argues that the evidence failed to show an agreement to violate the

law and interdependence, which are essential elements of conspiracy. See United

States v. Angulo-Lopez, 7 F.3d 1506, 1510 (10th Cir. 1993). “[T]he agreement

need not be formal or explicit but rather may be inferred from facts and

circumstances.” United States v. Arutunoff, 1 F.3d 1112, 1116 (10th Cir. 1993). 

The facts and circumstances must show interdependence — the alleged

conspirators must have relied on each other in achieving 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 or assistance: the evidence at

trial established that David recruited others under whose names false returns

would be filed, supplied the false information contained 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 of interdependence with the

others. However, even if David and Michael did conspire with no one but

themselves, the evidence was still sufficient for conviction. See Rutledge v.

United States, 116 S. Ct. 1241, 1246 n.7 (1996) (“[A] conspiracy requires only

two.”).

2. “Claim”

David challenges his convictions for filing false tax returns, on the ground

that he did not file false “claim[s]” within the meaning of 18 U.S.C. § 287. This

argument raises a question of statutory interpretation, 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 untimely 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 argues, the returns were not
5

“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 define “claim” for purposes

of the latter, nor does the latter reference the former. We see no reason to restrict

the definition of “claim” in a way that Congress has not. Furthermore, as an IRS

representative testified at trial, the government will 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 false filings convictions is

without merit.

3. Sentencing

a. Amount of Loss

David argues that the district court erred in calculating 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 contends that the loss

calculation should have been limited to the 13 returns referenced in the

indictment. According to David, evidence presented at the sentencing hearing

was insufficient to link him to 15 additional returns.
6

We review factual findings underlying a district court’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 the returns sought refunds of

either $3,159 or $3,059. See Rec. suppl. vol. I, at 6-7 (Tr. of sentencing, dated

July 30, 1996). Furthermore, only three employers — Phillips Petroleum, Unisys

Corporation, and M&C Services — were listed in 24 of 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 Michael’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 each other and to David, we are

not left with a “‘definite and firm conviction’” that the district court erred in

concluding that all 28 returns were part of the conspiracy 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 assessing 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 enhancement for clear

error. Cf. United States v. Brown, 995 F.2d 1493, 1500 (10th Cir. 1993)

(reviewing enhancement under § 3B1.1(c)). Among the factors that show a

leadership and organizational role are: “the recruitment of accomplices . . . , the

degree of participation in planning or organizing the 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 trial established that David

recruited others under whose names false returns would be filed, supplied the

false information contained on the returns, and assisted 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 “Michael . . . 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 jointly 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 for 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 motion for severance for abuse of

discretion. See id. We will not reverse absent a strong showing of prejudice. 

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 trial right . . . , or prevent the jury

from making a reliable judgment about guilt or innocence.” Zafiro v. United

States, 506 U.S. 534, 539 (1993). “[A] negative spill-over effect from damaging

evidence presented against [a] codefendant[]” is insufficient 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 prejudice from a joint trial is

heightened when defendants have “markedly different degrees of culpability,”
9

Zafiro, 506 U.S. at 539, “limiting instructions[] often will suffice to cure any risk

of prejudice.” Id. Limiting instructions can likewise cure the risk of prejudice

stemming from two defendants being siblings. See United States v. Mandel, 591

F.2d 1347, 1371 (4th Cir. 1979); United States v. Juarez, 573 F.2d 267, 280 (5th

Cir. 1978). Appropriate limiting instructions advise 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 antagonistic to his brother’s

and could only have been presented in a separate trial. Michael’s theory appears

to be that his brother could have exculpated him, but chose not to testify in the

joint trial. See Rec. vol. II, at 4 (Tr. of pretrial mots., dated May 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 significance of the testimony to the

theory of the defense; (3) the testimony’s exculpatory 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 these seven factors and thus has

failed to make a strong showing of prejudice. Accordingly, we conclude that the

district court did not abuse its discretion in denying 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 motion 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 justifiable request for delay,

[which] render[s] the [constitutional] right to defend with counsel an empty

formality.” Ungar v. Sarafite, 376 U.S. 575, 589 (1964).

Michael’s counsel did not move for continuance until 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 plead, see id. at 3, we do not

understand why she would have banked on his plea and not prepared an

alternative trial strategy. Furthermore, although her co-counsel (more

experienced in federal court than she) withdrew prior to trial, see id., she delayed
11

almost two weeks before moving for continuance. See 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 severance that the district court

properly denied; in his brief on appeal, Michael asserts that continuance would

hardly have prejudiced the government since David had 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 believe the denial of continuance

rendered Michael’s counsel ineffective. See generally Rec. vols. III & IV (Trial

tr., dated May 21-23, 1996). Accordingly, we do not believe the district court

erred in denying the motion for continuance.

3. Variance

Michael argues that the evidence at trial established not the single

conspiracy alleged in the indictment, but rather multiple conspiracies of which he

was not a member. We disagree.

A variance between the allegations in the indictment 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 “when the jury determines a
12

defendant’s [membership in a conspiracy] by relying on evidence adduced against

coconspirators who were involved in separate conspiracies.” Id. Whether

Michael was a member of a single conspiracy, as alleged in the indictment, is a

question for the jury. See id. at 432-33. We review the evidence in the light most

favorable to the government. See id. at 432.

As noted above, there was substantial similarity among the false returns

filed — in terms of wages reported, refunds claimed, and employers listed. 

Michael first proposed the tax fraud scheme to David. See Rec. vol. III, at 145

(Trial tr., dated May 21, 1996). Michael apparently 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, 1996). Finally, Michael

accompanied David to post office boxes opened to receive fraudulently-obtained

refund checks. See id. at 407-08. We believe that this and the other evidence at

trial showed that Michael was a member of the single 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 is 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 evidence underlying Michael’s

conviction was strong. See Edwards, 69 F.3d at 433 (noting that “the strength of

the evidence underlying the conviction” is relevant to whether substantial rights

were affected). Furthermore, we do not believe the evidence was so intricate that

the jury could not separate Michael’s involvement from 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 was 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 see 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 by the district court because he
14

was only minimally involved in the tax fraud scheme. We review factual findings

underlying offense-level calculations for clear error. See Kunzman, 54 F.3d at

1531. Under U.S.S.G. § 1B1.3, relevant conduct for offense-level calculations

includes “in the case of a jointly undertaken criminal activity . . . , all reasonably

foreseeable acts and omissions of others in furtherance 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 district court’s attribution to Michael

of the amount of loss.

II. CONCLUSION

For the foregoing reasons, we conclude that the defendants’ arguments lack

merit: As to David: (1) the evidence was sufficient for his conspiracy

conviction; (2) his false filings convictions did not require the returns to be

timely; and (3) the district court did not err in calculating the amount of loss or in

sentencing him as an organizer or leader. As to Michael: (1) the district court

did not err in denying his motions for severance and continuance; (2) there was no

variance that affected his substantial rights as to the allegation and proof of
15

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