UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-5153

UNITED STATES OF AMERICA, 

Plaintiff – Appellee, 

v. 

MARCEL J. TOTO-NGOSSO, 

Defendant – Appellant. 

Appeal from the United States District Court for the District of 

Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:08-

cr-00179-RWT-1) 

Submitted: December 22, 2010 Decided: January 14, 2011

Before WILKINSON and WYNN, Circuit Judges, and HAMILTON, Senior 

Circuit Judge. 

Affirmed by unpublished per curiam opinion. 

Robert C. Bonsib, Megan E. Green, MARCUSBONSIB, LLC, Greenbelt, 

Maryland, for Appellant. Rod J. Rosenstein, United States 

Attorney, John A. DiCicco, Acting Assistant Attorney General, 

Alan Hechtkopf, Gregory Victor Davis, Alexander P. Robbins, 

DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. 

Unpublished opinions are not binding precedent in this circuit. 
2

PER CURIAM: 

Marcel J. Toto-Ngosso (“Toto”) appeals his jury 

conviction on seventeen counts of willfully aiding and assisting 

in the preparation and presentation of false income tax returns, 

in violation of 26 U.S.C. § 7206(2) (2006), and seventy-month 

prison sentence. On appeal, Toto argues that the district court 

abused its discretion in admitting evidence, under Fed. R. Evid. 

404(b), in the form of testimony from two witnesses concerning 

his preparation of income tax returns not charged in the 

indictment and erred in the calculation of his Guidelines 

sentence, see U.S. Sentencing Guidelines Manual (“USSG”) (2008). 

We affirm. 

Rule 404(b) states that “[e]vidence of other crimes, 

wrongs, or acts is not admissible to prove the character of a 

person in order to show action in conformity therewith.” 

Fed. R. Evid. 404(b). Such evidence “may, however, be 

admissible for other purposes, such as proof of motive, 

opportunity, intent, preparation, plan, knowledge, identity, or 

absence of mistake or accident.” Id. To be admissible under 

Rule 404(b), evidence must be “(1) relevant to an issue other 

than character; (2) necessary; and (3) reliable.” United States 

v. Siegel, 536 F.3d 306, 317 (4th Cir. 2008) (internal quotation 

marks omitted). “Evidence sought to be admitted under Rule 

404(b) must also satisfy [Fed. R. Evid.] 403[.]” Id. at 319. 
3

Under Rule 403, “damage to a defendant's case is not a basis for 

excluding probative evidence” because “[e]vidence that is highly 

probative invariably will be prejudicial to the defense.” 

United States v. Grimmond, 137 F.3d 823, 833 (4th Cir. 1998). 

At trial, the Government presented testimony to show 

that Toto was a tax preparer who prepared federal income tax 

returns for clients at his Maryland residences. Six of Toto’s 

clients whose tax returns were the subjects of the indictment 

testified, and their testimony showed that the returns Toto 

prepared for them contained numerous falsities, including false 

dependents and other qualifying persons and exaggerated or 

wholly fabricated deductions and expenses. Additionally, over 

Toto’s objection, the district court admitted testimony from two 

additional clients of Toto’s that the income tax returns he 

prepared for them also contained false dependents, deductions, 

and expenses. 

Toto claims that, because the Government presented 

testimony pertaining to each of the seventeen tax returns that 

were charged in the indictment, admission of the testimony 

concerning returns not charged in the indictment was

unnecessary. For purposes of Rule 404(b), evidence is necessary 

where, “considered in the light of other evidence available to 

the government, it is an essential part of the crimes on trial, 

or where it furnishes part of the context of the crime.” United 
4

States v. Queen, 132 F.3d 991, 998 (4th Cir. 1997) (internal 

quotation marks and citation omitted). The statute under which 

Toto was convicted proscribes a person from willfully assisting 

in the preparation or presentation of false tax returns. See 26 

U.S.C. § 7206(2). A tax violation is willful if it is “a 

voluntary, intentional violation of a known legal duty,” and the 

Government can establish a willful violation without proving 

“any motive other than an intentional violation of” that duty. 

United States v. Pomponio, 429 U.S. 10, 12 (1976) (per curiam). 

Evidence that Toto had prepared several additional returns 

containing false deductions and adjustments was highly probative 

on the issue of whether his preparation of the false returns 

charged in the indictment was done knowingly or without mistake 

and thus significantly aided the Government in meeting its 

burden to show that Toto acted willfully. 

Toto suggests that the evidence of his involvement in 

preparing the other returns was not critical to the Government’s 

case. However, the fact that the evidence was not critical to 

the Government’s case “does not render it unnecessary for 

purposes of Rule 404(b).” United States v. Rooks, 596 F.3d 204, 

211 (4th Cir.), cert. denied, 131 S. Ct. 148 (2010). This is so 

because the “necessary” prong “focuses on whether the evidence 

is necessary in the sense that it is probative of an essential 

claim or an element of the offense.” Id. at 211-12 (internal 
5

quotation marks omitted). Whether Toto willfully aided in the 

preparation and presentation of the seventeen returns was an 

issue at trial, and evidence of Toto’s preparation of other 

false returns provided context for the preparation of the 

seventeen returns charged in the indictment. Accordingly, the 

evidence was “necessary.” 

Toto further suggests that the admission of the 

testimony concerning his preparation of the tax returns not 

charged in the indictment did not satisfy Rule 403. Although 

this testimony was damaging to Toto, we conclude it was not 

unfairly prejudicial, as Toto has not shown there existed “a 

genuine risk that the emotions of [the] jury [were] excited to 

irrational behavior, and that this risk [wa]s disproportionate 

to the probative value of” the testimony, United States v. 

Aramony, 88 F.3d 1369, 1378 (4th Cir. 1996) (internal quotation 

marks omitted). Moreover, the district court reduced the risk 

of unfair prejudice by giving limiting instructions to the jury, 

explaining that the jury could consider the evidence only in 

determining Toto’s knowledge and intent. See Queen, 132 F.3d at 

997. Accordingly, we conclude that the district court did not 

abuse its discretion in admitting the challenged evidence. 

See United States v. Benkahla, 530 F.3d 300, 309 (4th Cir. 2008)

(stating standard of review). 
6

Toto also challenges his seventy-month prison 

sentence, asserting that the district court erred in the 

calculation of his Guidelines sentence by erroneously overruling 

his objections and: (1) calculating the tax loss amount and 

resulting base offense level under USSG § 2T1.1; (2) applying 

the two-level enhancement under USSG § 2T1.4(b)(2) for his use 

of sophisticated means; and (3) applying the three-level 

enhancement under USSG § 3B1.1(b) for his role in the offense. 

We review Toto’s sentence for reasonableness “under a 

deferential abuse-of-discretion” standard. Gall v. United 

States, 552 U.S. 38, 41, 51 (2007). In conducting this review, 

we must ensure that the district court correctly calculated 

Toto’s Guidelines sentence. Id. at 49, 51. 

Under the Guidelines, the tax loss attributable to a 

defendant involved in aiding in the preparation and presentation 

of false tax returns is “the tax loss, as defined in [USSG] 

§ 2T1.1, resulting from the defendant’s aid, assistance, 

procurance or advice.” USSG § 2T1.4(a). Under USSG 

§ 2T1.1(c)(1), the tax loss is the “total amount of loss that 

was the object of the offense (i.e., the loss that would have 

resulted had the offense been successfully completed).” This 

amount includes “all conduct violating the tax laws . . . unless 

the evidence demonstrates that the conduct is clearly unrelated” 

to the offense. Id., cmt. n.2. 
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In calculating the tax loss amount, “a district court 

may consider relevant information without regard to its 

admissibility under the rules of evidence applicable at trial, 

provided that the information has sufficient indicia of 

reliability to support its probable accuracy.” United States v. 

Mehta, 594 F.3d 277, 282 (4th Cir.), cert. denied, 131 S. Ct. 

279 (2010) (internal quotation marks omitted). Additionally, 

because the amount of tax loss “is not always a precise figure,” 

the Guidelines “contemplate that the [district] court 

will . . . make a reasonable estimate based on the available 

facts.” Id. (internal quotation marks omitted). We review the 

district court’s determination of the tax loss amount for clear 

error. See United States v. Allen, 491 F.3d 178, 193 (4th Cir. 

2007). 

The testimony at trial established that Toto’s 

practice of listing false deductions, qualifying persons, 

dependents, and adjustments (collectively, “deductions”) on the 

returns of his clients resulted in a tax loss to the Government 

of $117,711. According to the presentence report, Toto’s 

practice of listing these false deductions on the returns of 

several of his clients who did not testify at trial resulted in 

an additional loss to the Government of $98,785. At sentencing, 

an Internal Revenue Service (“IRS”) agent testified that, in 

calculating this additional loss amount, she reviewed memoranda 
8

of interviews with a number of Toto’s clients who did not 

testify at trial. The agent adjusted the returns filed for 

these clients, eliminating the false deductions that Toto had 

included on their returns. Based on these adjustments, the 

agent recalculated each client’s amount of tax due and owing and 

thereby determined the additional tax loss amount resulting from 

Toto’s conduct. The district court adopted the presentence 

report, credited the agent’s testimony, and found that the tax 

loss amount attributable to Toto “exceeded $200,000,” resulting 

in a base offense level of 18, see USSG §§ 2T1.4(a)(1), 

2T4.1(G). 

Toto claims that, because the clients whose interviews 

were the subjects of the memoranda were not cross-examined, the 

evidence the Government proffered at sentencing to establish 

that the tax loss amount exceeded $200,000 was unreliable. We 

disagree. The false deductions listed on the returns of the 

clients who did not testify at trial fit the pattern of the 

fraudulent conduct established at trial, and the $98,785 loss 

amount was based on statements made by the clients themselves 

establishing the falsity of the deductions Toto had claimed on 

their returns. We conclude this was an acceptable method for 

the district court to use in making a reasonable estimate of the 

loss amount under the Guidelines. See Mehta, 594 F.3d at 282-83 

(approving calculation of tax loss amount from IRS assessments 
9

that taxpayer-clients of the defendant elected not to contest, 

even though they never “substantively agree[d]” with those 

assessments and where the fraudulent deductions on the 

taxpayers’ returns fit the pattern of fraud shown at trial). We 

therefore conclude that the district court did not commit clear 

error in calculating the tax loss amount. 

We turn next to Toto’s challenge to the district 

court’s application of the two-level enhancement under USSG 

§ 2T1.4(b)(2) for his use of sophisticated means. “The average 

criminal tax fraud . . . involves some concealment; 

‘sophisticated’ tax fraud [meriting application of the two-level 

enhancement under USSG § 2T1.4(b)(2)]. . . require[s] more.” 

United States v. Kontny, 238 F.3d 815, 820-21 (7th Cir. 2001). 

“Sophistication,” however, does not refer to “the style of the 

[defendant]—the degree to which he approximates Cary Grant—but 

to the presence of efforts at concealment that go beyond (not 

necessarily far beyond . . . ) the concealment inherent in tax 

fraud.” Id. at 821 (internal quotation marks omitted). 

“Conduct such as hiding assets or transactions, or 

both, through the use of fictitious entities, corporate shells, 

or offshore financial accounts ordinarily indicates 

sophisticated means.” USSG § 2T1.4, cmt. n.3. But these are 

offered as examples only; the “essence of the definition is 

merely deliberate steps taken to make the offense difficult to 
10

detect.” Kontny, 238 F.3d at 821 (internal quotation marks and 

ellipsis omitted). We review the district court’s determination 

that Toto used sophisticated means for clear error. See id. 

The district court adopted the presentence report’s 

recommendation to apply the enhancement under USSG § 2T1.4(b)(2) 

based on Toto’s: (1) use of an IRS-issued electronic filing 

number registered to another entity to file his clients’ 

returns; (2) use of bank accounts held in the names of others to 

deposit his return preparation fees; and (3) failure to report 

to the IRS the income he made as a tax preparer. In Toto’s 

view, the district court’s application of the enhancement was 

error because his placement of false deductions on returns that 

were filed under the electronic filing number of another 

required “no particular knowledge or sophistication.” 

We disagree, because Toto’s conduct shows he took 

deliberate steps to conceal from the IRS his connection to the 

fraudulent returns he filed on behalf of his clients. By 

utilizing the electronic filing number registered to another 

entity, Toto could omit his name and signature from the returns 

and associated forms, thus perpetuating the fiction that he was 

not the preparer of those returns. Additionally, Toto utilized 

bank accounts held in the names of others to mask the income he 

generated by preparing the false returns. These efforts, when 

combined with Toto’s failure to file personal income tax returns 
11

disclosing the income he generated as a tax preparer, undeniably 

made IRS detection of his connection to the false returns more 

difficult. Accordingly, the district court’s application of the 

two-level enhancement for Toto’s use of sophisticated means was 

not clearly erroneous. 

Finally, Toto claims that the district court erred in 

applying the three-level enhancement under USSG § 3B1.1(b) for 

his role in the offense. However, because Toto fails to support 

his claim in accordance with Fed. R. App. P. 28(a)(9)(A) (“[T]he 

[appellant’s] argument . . . must contain . . . appellant's 

contentions and the reasons for them, with citations to the 

authorities and parts of the record on which the appellant 

relies.”), we deem it abandoned. See Wahi v. Charleston Area 

Med. Ctr., Inc., 562 F.3d 599, 607 (4th Cir. 2009), cert. 

denied, 130 S. Ct. 1140 (2010); Edwards v. City of Goldsboro, 

178 F.3d 231, 241 n.6 (4th Cir. 1999). 

We therefore affirm the district court’s amended 

judgment. We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials 

before the court and argument would not aid the decisional 

process. 

AFFIRMED