United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 07-2330

___________

United States, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Yvonne Delores Garth, formerly *

known as Yvonne Caldwell, *

*

Defendant - Appellant. *

___________

Submitted: February 13, 2008

Filed: September 3, 2008

___________

Before RILEY, JOHN R. GIBSON, and BENTON, Circuit Judges.

___________

JOHN R. GIBSON, Circuit Judge.

Yvonne Garth was convicted of two counts of conspiring to defraud the United

States with respect to claims against the government in violation of 18 U.S.C. § 286

and six counts of aiding and abetting the making of false claims against the

government in violation of 18 U.S.C. §§ 2 and 287. The first conspiracy count alleged

that, while working as a tax preparer, she conspired with tax filers by providing false

2001 tax returns claiming an undeserved refund. The second conspiracy count alleged

that she provided false W-2 documents to filers so that they could have a return

prepared by a legitimate tax preparer for the 2002 and 2003 tax years claiming refunds
1

The Honorable Richard H. Kyle, United States District Judge for the District

of Minnesota, presided over the trial.

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they were not owed. She brings this appeal raising three principal arguments: (1) the

government varied from the indictment by proving multiple conspiracies rather than

the two single conspiracies charged; (2) the district court1

 violated her Sixth

Amendment right to trial by jury and her Fifth Amendment right to due process by

making sentencing findings using the preponderance of the evidence standard; and (3)

the district court violated her Sixth Amendment right to confront the witnesses against

her when it admitted the tax returns of non-testifying tax filers to prove that they filed

false returns and conspired with her to do so. She also raises several evidentiary

challenges based on the Federal Rules of Evidence. We affirm.

We state the facts in the light most favorable to the jury verdict. United States

v. Hudspeth, 525 F.3d 667, 671 (8th Cir. 2008). Yvonne Garth (then Yvonne

Caldwell) worked at a Jackson Hewitt Tax Services franchise, under the supervision

of franchise holder Paul Hahn, during the 2001 tax season, which ran through the

early months of 2002. Hahn’s franchises catered to persons who required assistance

filing simple, inexpensive tax returns. He operated several storefronts in the Twin

Cities area, some of which were permanent stores and others of which were seasonal

locations that operated only during tax season. All of the returns at Jackson Hewitt

were prepared using computer software. Hahn explained that the software did a lot

of the work necessary to complete a return, making extensive training and vetting of

preparers unnecessary. The preparer would answer a series of questions asked by the

software and based on the responses, the software would request specific data about

the taxpayer. In order to reduce errors, the software would require important

information to be typed twice, including the taxpayer’s social security number, W-2

wage information, and employer’s tax identification number. After the return was

complete, several copies were printed, and the taxpayer was required to review and

sign the return. The returns were filed with the IRS electronically, but Jackson Hewitt
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kept other documents relating to the filed return in the records department, and in most

instances those documents were signed by the tax filer. To prevent fraud, preparers

were also required to photocopy or view each taxpayer’s social security card and the

card of each dependent he intended to claim.

Hahn operated a seasonal store at Lake Street and First Avenue (the East Lake

Street store) out of the lobby of a check cashing business in a less desirable area of

town. A return prepared at the East Lake Street store could be identified by a unique

number that was assigned to each tax return by the tax preparation software. On an

electronically filed return, the computer printed the name of the preparer at the bottom

of a return, which it recognized because each preparer had to log-on to the software

with a unique identifier. When an East Lake Street store customer received a refund

check for his tax return through Jackson Hewitt , the check was stored in the secured

area of the adjacent check cashing store and was handed to the customer by employees

of that business, not employees of Jackson Hewitt. 

According to Hahn, he hired Garth because she claimed prior experience

completing tax returns. Upon her hiring, Garth asked to work in the East Lake Street

store, and she was the only tax preparer who was permanently placed there. While

Garth worked at Jackson Hewitt, three different receptionists worked with her: Garth’s

daughter, Latrina Caldwell; then briefly Ranika Evans; and finally Starsha Wyatt,

whom Garth recommended for the job. None were tax preparers, and according to coowner Sally Hahn, none were given the computer password to prepare returns under

Garth’s name. All but Evans were referred to at trial as co-conspirators. Garth ended

her employment with Jackson Hewitt sometime between March 1, 2002 and March

15, 2002, after preparing 197 paid returns. According to Hahn, she was never

replaced, and the East Lake Street store was closed. 

The indictment against Garth alleges two separate, but similar conspiracies.

The first conspiracy revolved around her employment as a tax preparer at the East
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Lake Street store and covered the term of that employment during the 2001 tax

season. The government presented over ten witnesses to prove conclusively that each

witness filed false tax returns, claiming credits and tax refunds for amounts which

they were not owed by the government. When confronted at trial, these tax filers

admitted that their tax returns reported wages, expenses, charitable contributions, and

other credits which they did not make nor earn. Most witnesses, however, claimed

ignorance of the fraud, testifying that they did not actually read the return before

signing it and had no knowledge that their return was inaccurate. In most instances,

there was evidence suggesting that the tax filers knew their returns were false because

they had signed statements under penalties of perjury that they read and agreed the

return was accurate to their knowledge.

The government also proved with sufficient evidence that Garth was the tax

preparer for each return. All but one of the witnesses admitted that their return was

prepared at the East Lake Street store where Garth worked, and each tax return was

filed listing Garth as the preparer. However, only three witnesses, Lisa Evans, Hope

Jackson, and Nina Horne, affirmatively identified Garth as the preparer of their false

tax return. Most of the witnesses were never asked if they remembered who prepared

their return. To prove that Garth was responsible for each return, the government

relied largely upon the fact that her name was listed as preparer on the electronically

filed returns, meaning that they were prepared under her computer password at the

East Lake Street store, and the fact that Garth’s name was signed to the paperwork

stored by Jackson Hewitt for most of the returns.

There was also an issue at trial as to whether the returns were prepared

mistakenly or intentionally, but the evidence at trial supported the inference that Garth

acted purposefully. Paul Hahn testified that the computer software prevented

typographical errors. Moreover, Evans testified that Garth demanded a share of

Evans’s refund when she returned to the store to retrieve it. When Evans refused, she

heard Garth or another person sitting next to Garth say that “[t]hey are from Chicago
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and they break legs.” Although he did not affirmatively identify Garth, Marshal

Wylie testified that his tax preparer asked him for more money or a gift, which he

refused, when he returned to the East Lake Street store to pick up his refund. Lisa

Norris was in jail when her false return was filed and when her refund checks were

cashed. Her federal refund check was endorsed to Latrina Caldwell, Garth’s daughter,

and the state check was endorsed to Starsha Wyatt, the receptionist at the East Lake

Street store, whom Garth had recommended for employment. Kevin Garth, the

defendant’s nephew by marriage, filed a 2001 tax return, prepared by Garth, falsely

claiming wages from Footlocker. He claimed to have gotten the false W-2 from

someone off the street and given it to Garth to prepare his returns, but no such W-2

was found in Jackson Hewitt’s files. In addition to the witness testimony, the court

admitted into evidence the returns and tax documents of other non-testifying tax filers

who allegedly participated in the conspiracy with Garth. 

The second conspiracy alleged in the indictment concerned an agreement

among several individuals who used false W-2 forms that allegedly came from Garth

to claim fraudulent refunds from the government. In connection with this conspiracy,

Garth was indicted of aiding and abetting seven individual tax filers in making false

claims. The government introduced evidence showing that Garth, in exchange for a

fee or a percentage of the refund, would provide a false W-2 in the taxpayer’s name,

using a legitimate, or nearly legitimate, employer identification number and name.

Often, she would act through an intermediary.

For example, Natasha Davis testified that she met Garth through her child’s

father, Richard Porter. Davis gave Garth her name and address, and Garth provided

her with a 2003 W-2 claiming false wages earned and taxes paid from Foot Locker,

a company Davis admitted she did not work for in 2003. Garth and Davis had an

agreement that Davis would pay Garth $500 when she received her tax refund. Davis

used the W-2 to file a false return and ultimately received a refund on a Visa check

card. According to Davis, Garth showed up at Davis’s house with her son to collect
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her share shortly after learning that Davis had received the refund. Garth, her son, her

daughter Latrina, and Davis all waited at Davis’ house while Porter went to get cash

from the check card. Porter returned and Garth was paid $500. Davis also listed

several other individuals she knew who also transacted similarly with Garth: Jessica

Gregory, Lakisha Hammond, Tamika Jones, Shantey Williams, Antonne Walker,

Etwon (“Skittles”) Glover, and the aforementioned Porter.

Kimberly Pearson was convicted of filing a false tax return using a W-2 she

obtained through Antonne Walker. According to her testimony, she paid Walker

$1,500 to give to the person who had created the W-2. She later watched Walker give

the money to Garth in front of her house. Despite Pearson’s affirmative identification

of Garth, the jury acquitted Garth of aiding and abetting Pearson. Walker testified that

he was convicted of filing a false return, using a W-2 claiming wages earned from an

employer, City of Minneapolis, for whom he never worked. He claimed to have

gotten the W-2 from a woman named either Kiesha or Killa on Lake Street. He

denied knowing Garth or getting the W-2 from her. Agent Jeremy Martin testified,

however, that Walker told him in prior interviews that he got both his own W-2 and

Pearson’s W-2 from Garth.

Chentia Hodroff used a false W-2 for the 2003 tax year from the City of

Minneapolis, an employer for whom she never worked. She claimed to have gotten

the W-2 from Ray Robinson. Nicole Octavia Williams testified that her forged

Footlocker W-2 came from a man named Ray, whom she met in a bar. She only knew

that Ray got the W-2 from a female. Shantey Williams used a false W-2, which she

got through a man nicknamed “Skittles,” from the City of Minneapolis, where she

never worked, She said “Skittles” told her that a woman named “Von” was the

source of the false document. “Skittles’s” involvement in the criminal activity was

corroborated by Natasha Davis. Jerome Roberson also used a forged City of

Minneapolis W-2, which he purchased through a female who claimed to have gotten

it through a relative named Yvonne.
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Termone Realford used a forged W-2 from Foot Locker to file his tax return

and claim a refund for the 2003 tax year. After first denying it, he finally admitted

that he previously told investigators that a “Donte” offered to get a blank W-2 for

Realford from his mother, a woman named Yvonne. He then claimed he had been

lying and that the forged W-2 had appeared in his mailbox one day. Other W-2 forms

for non-testifying tax filers were also introduced and shown to be false. Several could

be connected to Garth by familial relationships. One belonged to her son, Donte

Caldwell, and another was used by her daughter, Latrina Caldwell. These and other

facts formed the basis of the government’s proof at trial.

I.

The district court found that Garth’s Sentencing Guidelines’ base offense level

was six and her criminal history category was II. She was assessed a twelve-level

increase based on the amount of the attempted false claims, which the district court

found by a preponderance of the evidence to be $280,852, a two-level increase

because she was a tax preparer, and a four-level increase for organizing or leading a

criminal activity that involved five or more participants. Her total offense level was

calculated at twenty-four, and her advisory sentencing range was 57-71 months. The

district court sentenced Garth to 57 months. She argues that the district court’s

findings that she was responsible for $280,852 in attempted false claims and that she

was a leader or organizer of more than five people violated her Sixth Amendment

right to a trial by jury and her Fifth Amendment due process right to have facts found

beyond a reasonable doubt. She also argues that the district court erred by considering

summary tax tables at sentencing.
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A.

We review de novo Garth’s claim that the sentencing procedure violated her

due process and Sixth Amendment rights. See United States v. Martinez, 339 F.3d

759, 761 (8th Cir. 2003). Garth’s argument can be boiled down into two separate

issues for our consideration. First, she claims a right to have tax loss amounts

considered by the jury and relies upon Cunningham v. California, 549 U.S. 270

(2007). We distinguished the mandatory state sentencing statute in Cunningham from

the advisory Sentencing Guidelines in United States v. Marston, 517 F.3d 996, 1006

(8th Cir. 2008). As long as the district court applies the Guidelines in an advisory

fashion, the Sixth Amendment right to a jury trial is not infringed when the district

court finds facts in support of the sentence imposed. Id.

Second, Garth contends that the district court violated her due process rights by

failing to apply a heightened evidentiary standard of proof to the amount of false

claims and to the finding that she was an organizer or leader of five or more people.

It is well-understood that generally a district court may rely on facts found by a

preponderance of the evidence to aid it at sentencing. See e.g., United States v.

Bradford, 499 F.3d 910, 919 (8th Cir. 2007), cert. denied, 128 S. Ct. 1446 (2008). We

have, however, said that there could be circumstances where due process would

require those facts that have an “extremely disproportionate” effect on a defendant’s

sentence to be found by a heightened standard, although we have never required such

a standard to be applied. United States v. Calva, 979 F.2d 119, 122 (8th Cir. 1992);

Bradford, 499 F.3d at 919; United States v. Townley, 929 F.2d 365, 369 (8th Cir.

1991) (“[T]he preponderance standard the Court approved for garden variety

sentencing determinations may fail to comport with due process where, as here, a

sentencing enhancement factor becomes ‘a tail which wags the dog of the substantive

offense.’”) (quoting McMillan v. Pennsylvania, 477 U.S. 79, 88 (1986)); see also

United States v. Galloway, 976 F.2d 414, 425-26 (8th Cir. 1992) (en banc) (“It is clear

that the Constitution limits a legislature’s ability to designate some factors as elements
2

The Third and Seventh Circuits have held that by rendering the Guidelines

advisory, the Court has remedied any due process violation that occurs when

sentencing facts found by a preponderance of the evidence are used to calculate an

advisory Guidelines’ range that causes an extreme increase in the length of the

defendant’s sentence. United States v. Fisher, 502 F.3d 293, 308 (3d Cir. 2007) (“In

sum, because the Guidelines are now advisory and district judges are empowered to

discharge their duties fully in the first instance, it is a logical impossibility for the ‘tail

to wag the dog,’ as could occur when the Guidelines were mandatory.”), cert. denied

128 S. Ct. 1689; United States v. Reuter, 463 F.3d 792, 793 (7th Cir. 2006), cert.

denied, 127 S. Ct. 1163 (2008). We appear to have summarily dismissed the

argument that the tail can no longer wag the dog now that the Guidelines are advisory.

United States v. Archuleta, 412 F.3d 1003, 1007 (8th Cir. 2005) (“Nothing in Booker

changes the interpretation of McMillan in our post- Apprendi cases.”). The Ninth

Circuit agrees with our post-Booker conclusion and continues to apply a several factor

test to determine whether sentencing facts had an “extremely disproportionate” effect

on a sentence. United States v. Staten, 466 F.3d 708, 720 (9th Cir. 2006). 

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of the crime and others as sentencing enhancers.”). We have said that in cases where

the effect of a sentencing factor on the ultimate sentence may have been extreme, the

standard that due process requires would be clear and convincing evidence.2

 United

States v. Matthews, 29 F.3d 462, 464 (8th Cir. 1994) (concluding, without deciding

whether a heightened standard of proof applies, that the district court’s use of the clear

and convincing evidence standard was sufficient). 

Garth argues that her sentencing range should have been 1-7 months based on

the facts of conviction and her criminal history, which is well-below the 57-months

sentence she received. The sentencing range was increased as a result of the district

court’s findings, which she argues had a “disproportionate effect on [her] sentence.”

But those findings were all based on the conspiracies for which Garth was tried and

convicted. Due process does not require a heightened standard of proof of facts that

enhance a sentence when they relate to a conspiracy for which the defendant was

charged. United States v. Behler, 14 F.3d 1264, 1272 (8th Cir. 1994); United States

v. Thompson, 51 F.3d 122, 125 (8th Cir. 1995); United States v. Pugh, 25 F.3d 669,
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676 (8th Cir. 1994); accord United States v. Garro, 517 F.3d 1163, 1169 (9th Cir.

2008) (holding that heightened evidentiary standard of proof is not required where the

sentencing enhancement is “based entirely on the extent of the conspiracy to which

[the defendant] pled guilty.”). The district court’s findings in this case—the amount

of false claims made and the number of participants—all stem from the underlying

conspiracy convictions. Consequently, due process does not require a heightened

standard of proof.

B.

Next, we consider whether the findings by the district court were supported by

a preponderance of the evidence. “We review a district court's findings of fact at

sentencing for clear error, giving due deference to the court's opportunity to observe

witnesses’ credibility. . . .” United States v. Russell, 234 F.3d 404, 408 (8th Cir.

2000). The district court did not clearly err by concluding that Garth was responsible

for $88,964 in false claims filed in 2001. In each instance, the return was filed using

her password and computer at the East Lake Street Jackson Hewitt, and three 2001

filers affirmatively identified Garth as the preparer of their return. Each return was

manipulated in order to claim excess refunds. The manipulation is obvious when the

tax return is compared to the filer’s actual wage and tax amounts withheld, which

were proven by introduction of the filers’ accurate W-2 form from Jackson Hewitt’s

files or from the IRS. Evans testified that Garth demanded a share of her refund when

she returned to the store to retrieve it, and that Garth threatened her when she refused.

With regard to the 2002 tax year, the district court did not clearly err by

concluding that Garth contributed to $29,345 in false claims against the federal

government. She prepared David Thomas’s 2002 return claiming $4,694, even

though he died in 2001 and, consequently, earned no income in 2002. Garth’s

culpability for Thomas’s return was obvious in light of the fact that she was not only

the preparer, but that his return and Garth’s return both listed an identical dependent,
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a person named Yvonne Coleman. Virginia Taylor testified against Garth and

admitted that she falsely claimed a refund of $6,259 for 2002 based on an agreement

with Garth to split that amount with her. Cynthia Thomas, who died prior to trial,

made $4,310 in false claims against the government in 2002, based on a false W-2

supplied by Garth and her daughter Latrina Caldwell. This finding was supported by

the introduction of a taped interview between Thomas and investigators that was

admitted at sentencing. Thomas’s son Dashawn also made a $3,417 false claim using

a false W-2 in 2002 and can be connected to Garth through his mother and by the fact

that his false W-2 was from Comtec, Garth and Caldwell’s 2001 employer. Comtec

connects Latrina Caldwell’s false claim amount of $2,365 to Garth, as does the

mother-daughter relationship between the two women. Anita Turner filed a false

claim amount of $4,715 using a false W-2 from Industrial Staffing. She can be

connected to Garth by the fact that Garth’s son, Donte Caldwell, referred to her as his

aunt, she lived near filer Terome Realford’s brother Carl Sanders, and she filed one

of the $9,627 false Footlocker W-2s for 2003, which have been linked to Garth by

their distinct similarity to one another. Finally, Erick West filed a false claim in 2002

for $3,585 using a false W-2 from the Minnesota Department of Economic Security,

where West did not work. West can be connected to Garth by the fact that Garth

prepared West false 2001 tax return, which greatly exaggerated West’s wages from

Wal-Mart.

Many of the false W-2s used to file 2003 tax returns were alike and, when

grouped together, evidence a common plan or scheme. For instance, nine distinct W2s falsely reported the same wages, $ 9,627, from employer Footlocker with the same

incorrect employer identification number. One of the $9,627 Footlocker W-2s was

connected to Garth by the trial testimony of Natasha Davis that she received the W-2

from Garth. Another of the $9,627 Footlocker W-2s is connected to Garth by the trial

testimony of Agent Jeremy Martin, who testified that Terome Realford told

investigators that he got his false Footlocker W-2 from Garth. The remaining seven

can be connected to Garth by their similarity to the other two. 
3

The jury acquitted Garth of aiding and abetting Pearson, but since the standard

of proof for sentencing is lower than the standard for conviction, the district court did

not clearly err by concluding that Garth was responsible for Pearson’s false claim.

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Similarly, a group of eight forged City of Minneapolis W-2s also falsely

reported $9,627 in wages. They can be connected to Garth both by their similarity to

the Footlocker W-2s and by testimony. Agent Jeremy Martin testified that Antonne

Walker told him that Garth supplied him with one of the $9,627 City W-2s. Carl

Sanders, who used one of the same W-2s, can be connected to Garth by the fact that

he is co-conspirator Terome Realford’s brother. Shantey Williams used one of the

$9,627 City W-2s and testified that she received the W-2 from a woman called “Von.”

Eleven more false 2003 claims were made using forged City of Minneapolis W2s, although they, for the most part, had different wage amounts. Some can be

connected to Garth by testimony. Camille Echols used one of these W-2s in the

amount of $13,000 and Shantey Williams, who identified Garth, testified that she

knew Echols was involved in the scheme too. Jelahn Prentiss was not mentioned at

trial, but she used a false City W-2 with the same amount as Echols, $13,000.

Kimberly Pearson used a false City W-2 and testified that it came from “Yvonne.”3

Natasha Davis, who used a false Footlocker W-2, testified that Jessica Gregory, who

filed a false claim using a City W-2, was also involved in the illegal scheme. Cynthia

Thomas used a false City W-2 that she claimed in pre-trial statements to investigators

that she got from Garth. The remaining City W-2s can be connected to Garth by the

fact that they purported to be from the City of Minneapolis, like so many other W-2s

in this case, and they were forged.

Neither was it clear error for the district court to conclude that Garth was

responsible for Donte Caldwell’s false claim in the amount of $4,143 because

Caldwell was Garth’s son, and there was testimony that he helped his mother collect

on debts from other tax files. Moreover, there was testimony that connected Terome

Realford, another filer, to Caldwell. Caldwell also listed Terome Realford’s son as
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a dependent on Caldwell’s federal return and listed Garth as providing childcare

services to that child. In total, $95,941 was attributed to Garth for the tax year 2003

based on Caldwell’s false W-2, the false City of Minneapolis W-2s, and the false

Footlocker W-2s. When this amount is added to the false claims made in 2001

($88,964) and 2002 ($29,345), then Garth’s total responsibility was $214,250. The

district court did not clearly err in concluding that this amount was supported by a

preponderance of the evidence.

Finally, we conclude that the district court did not clearly err when it found that

Garth was an “organizer or leader of a criminal activity that involved five or more

participants or was otherwise extensive.” USSG § 3B1.1.

When evaluating a defendant’s role in the offense, the court considers

several factors, including: “the exercise of decision making authority, the

nature of participation in the commission of the offense, the recruitment

of accomplices, the claimed right to a larger share of the fruits of the

crime, the degree of participation in planning or organizing the offense,

the nature and scope of the illegal activity, and the degree of control and

authority exercised over others.”

United States v. Blumberg, 961 F.2d 787, 790-91 (8th Cir. 1992) (internal emphasis

omitted) (quoting USSG § 3B1.1 n.3). The criminal activity (whether we refer to it

as a large conspiracy or several small conspiracies operating around Garth) was

extensive in this case, involving over sixty people. Garth was the linchpin of the

conspiracy, providing the means by which every claim was filed against the

government. There was evidence that she recruited others into the scheme and that

she took as much as half of the false claim amount secured by each tax filer.

Consequently, the district court properly concluded she was a leader and the activity

involved more than five participants.
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C.

Garth also seems to argue that the government’s proof of tax loss failed because

it used tax tables summarizing the amount of tax loss by year and by tax filer. The

case she cites to support her argument, United States v. Wainright, 351 F.3d 816 (8th

Cir. 2003), is one where the allegedly improper summary charts were used at trial.

Id. at 820. Her complaint is with regard to sentencing, where the only rule of evidence

is that the information have “sufficient indicia of reliability to supports its probable

accuracy.” United States v. Fleck, 413 F.3d 883, 894 (8th Cir. 2005) (internal

quotation marks and brackets omitted). Garth claims that the charts contain

assumptions and conclusions not based on witness testimony. The charts are based

partly on witness testimony, but they were mostly compiled from the tax documents

admitted at trial and sentencing. Garth points out no discrepancies among the

summary charts and the tax documents or the witness testimony. Absent some

allegation that the summaries misstated the evidence on which they were based, the

district court committed no error by admitting them.

II.

Garth argues that there was a variance between the proof at trial and the

allegations in the indictment. She, not unreasonably, interprets the indictment to aver

the existence of two single, overarching conspiracies: the “2001 conspiracy,” wherein,

as a tax preparer, she provided false tax returns to co-conspirators in order that they

might file false claims against the government, and the “2003 conspiracy,” wherein

she provided false W-2 forms to co-conspirators for the same purpose. She argues,

however, that there was insufficient proof connecting her alleged co-conspirators to

one another. In other words, she avers that even if the tax filers entered into an illegal

agreement with Garth (thereby establishing multiple conspiracies), they did not enter

into an illegal agreement with one another (to establish two single conspiracies).
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Even if we assume that Garth has correctly identified a variance, only a material

variance justifies reversal. Berger v. United States, 295 U.S. 78, 81-82 (1935). Since

Garth raised this argument below, we will not reverse if the error was harmless and

the error would be harmless if it does not affect the defendant’s substantial rights. Fed.

R. Crim. P. 52(a); United States v. Barth, 424 F.3d 752, 759 (8th Cir. 2005). A

variance infringes a defendant’s substantial rights when one of three forms of

prejudice are established. We may dismiss two of the three types of prejudice

without analysis because neither was averred in this case. Thus, even though

prejudice exists when the indictment itself causes insufficient notice of what evidence

would be provided against the defendant at trial or when it was so vague as to risk

subsequent prosecution for the same conduct, see Berger, 295 U.S. at 82; United

States v. Smith, 450 F.3d 856, 860 n.1 (8th Cir. 2006), those forms of prejudice are

not present here.

Garth does aver prejudice of the third type, which is the type most commonly

associated with a multiple conspiracy variance: that the defendant was prejudiced by

“the spillover of evidence, that is to say the jury’s inference of guilt [was] based on

evidence not related to that defendant’s conspiracy.” Barth, 424 F.3d at 759; Smith,

450 F.3d at 860 n.1; see Kotteakos v. United States, 328 U.S. 750, 774 (1946). In

Kotteakos, the Court reversed the appellant’s conviction on account of a variance by

proof of multiple conspiracies because of “[t]he dangers for transference of guilt from

one to another across the line separating conspiracies” where the appellants were not

members of the multiple putative conspiracies. 328 U.S. at 774. But the danger of

spillover evidence “is minimal, if not non-existent” where the appellant is involved

in all of the multiple putative conspiracies. United States v. Scott, 511 F.2d 15, 20

(8th Cir. 1975); accord United States v. Ghant, 339 F.3d 660, 664 (8th Cir. 2003)

(“[The defendant] has cited no case in which, despite evidence that the defendant

participated in all of the conspiracies, a variance between the number of conspiracies

charged and the number proven was found to have prejudiced the defendant.”); see

United States v. Nicholson, 231 F.3d 445, 452 (8th Cir. 2000) (substantial evidence
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put defendant complaining of variance in “the thick of things” and, thus, defendant did

not suffer “‘unwarranted imputation of guilt from others’ conduct’”). Garth identifies

no evidence that might have led the jury to convict her on account of criminal activity

for which she was not allegedly involved. And our review of the record reveals no

such evidence. Consequently, she “faced little or no risk of prejudice from spillover

evidence because [s]he was involved in all stages and aspects of the crimes

committed. Regardless of how many conspiracies the government alleged were

committed, it presented evidence that [Garth] was involved in all of them.” Barth, 424

F.3d at 759-60 (8th Cir. 2008). 

Garth does argue, however, that she was prejudiced at sentencing on account

of the variance because the sentencing court held her accountable for the false claims

of every tax filer even though the government did not prove that each tax filer was a

member of the single conspiracies. Essentially, this is another variation on the

argument we dismissed in Part I, whether Garth has a right to have sentencing facts

proven to the jury. Since the right to trial by jury is not violated when a district court

finds sentencing facts that do not increase the maximum punishment for the crime of

conviction, and Garth was not exposed to such an increase, she cannot show prejudice

on account of the variance. United States v. Marston, 517 F.3d 996, 1006 (8th Cir.

2008) (increase on account of facts found by district court that was within statutory

maximum did not violate Sixth Amendment). The district court was well within its

authority to consider Garth’s involvement in each false claim in deciding upon her

sentence.
-17-

III.

Garth also makes several challenges to the evidence. She argues her rights

under the Confrontation Clause were violated when the district court admitted tax

returns of non-testifying witnesses. We review de novo alleged violations of the

Confrontation Clause. United States v. Heppner, 519 F.3d 744, 751 (8th Cir. 2008),

cert. filed, 08-5334 (U.S. July 12, 2008). The Confrontation Clause applies only to

testimonial statements, such as prior testimony at a preliminary hearing, former trial,

or before a grand jury and statements made in the course of police interrogations. 

Crawford v. Washington, 541 U.S. 36, 68 (2004). “‘Testimony,’ in turn, is typically

‘[a] solemn declaration or affirmation made for the purpose of establishing or proving

some fact.’” Id. at 51 (quoting 2 N. Webster, An American Dictionary of the English

Language (1828)). The Court observed, “Most of the hearsay exceptions covered

statements that by their nature were not testimonial—for example, business records

or statements in furtherance of a conspiracy.” Id. at 56; see also id. at 76 (Rehnquist,

C.J., concurring in the judgment) (“[T]he Court’s analysis of ‘testimony’ excludes at

least some hearsay exceptions, such as business records and official records.”). Garth

stipulated at trial that the tax returns were business records to avoid the “need to bring

in a business records witness[].” She makes no attempt, in her brief, to argue that the

tax returns were testimonial. And, in fact, the returns were not prepared for litigation,

as is expected of testimonial evidence. See United States v. Torres-Villalobos, 487

F.3d 607, 613 (8th Cir. 2007) (holding that warrants of deportation were “properly

characterized as non-testimonial official records that were prepared independent of

this litigation” and were not prepared “to prove facts for use in future criminal

prosecutions.”) Consequently, the admission of tax returns did not violate Garth’s

right to confront her accusers. 

The remaining evidentiary challenges we review for abuse of discretion. United

States v. Durham, 470 F.3d 727, 731 (8th Cir. 2006). Garth argues that the tax

documents were inadmissible hearsay. By stipulating that the records were business
-18-

records, Garth has necessarily forfeited this argument because business records are

admissible under the hearsay exception. Fed. R. Evid. 803(6).

 

She also argues that investigator Jeremy Martin gave improper opinion

testimony that all the “Yvonne Caldwell” signatures on the 2001 paper tax returns

stored by Jackson Hewitt appeared to be in similar handwriting. Martin was not

established as an expert. However, lay witnesses may make “opinions or inferences

which are (a) rationally based on the perception of the witness, (b) helpful to a clear

understanding of the witness’ testimony or the determination of a fact in issue, and (c)

not based on scientific, technical, or other specialized knowledge within the scope of

Rule 702.” Fed. R. Evid. 701. Martin was not making a specialized, scientific, or

technical handwriting analysis. He was only asked whether the many signatures of

the same name appeared similar. Moreover, each document was admitted into

evidence and displayed for the jury to consider in conjunction with Martin’s lay

testimony. Consequently, his analysis was rational, helpful, and not based on expert

knowledge; the district court did not abuse its discretion by admitting the testimony.

Finally, Garth makes an incomplete argument that evidence proving that nontestifying witnesses filed false returns was inadmissible character evidence, Fed. R.

Evid. 404(b), and was unfairly prejudicial, Fed. R. Evid. 403. We conclude that

neither argument has merit because each piece of evidence was relevant to the two

conspiracies and the relevance outweighed any unfair prejudice to the defendant.

 

IV.

Garth’s conviction and sentence are AFFIRMED.

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