FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

October 24, 2008

THOMAS K. KAHN

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-12340

Non-Argument Calendar

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D.C. Docket No. 06-00107-CR-3-MCR

UNITED STATES OF AMERICA,

 

Plaintiff-Appellee, 

versus

FRED JOSEPH SUTTLES,

a.k.a. Sport,

MARY R. HAM, 

 Defendants-Appellants. 

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Appeal from the United States District Court

for the Northern District of Florida 

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(October 24, 2008)

Before EDMONDSON, Chief Judge, ANDERSON and HULL, Circuit Judges.

PER CURIAM:
Defendants-Appellants Fred Joseph Suttles and Mary R. Ham appeal their

convictions for conspiracy to defraud the Internal Revenue Service (“IRS”) by

impeding the collection of tax revenues, in violation of 18 U.S.C. § 371. No 1

reversible error has been shown; we affirm.

The conspiracy charge alleged that Suttles and Ham conspired to evade

payment of employment taxes, individual income taxes, and corporate income

taxes. To that end, the indictment alleged Defendants created entities to defeat

IRS collection of taxes owed, engaged in the transfer of businesses and assets into

the name of Ham and others, created false documentation to disguise transfers of

business income to Defendants for their personal use and to conceal taxable

income, failed to withhold and to pay over employment taxes, and made

statements and committed acts to hide and conceal the conspiracy. The charged

conspiracy lasted from around August 1990 to 2006.

Defendants challenge the sufficiency of the evidence to support their

convictions. Defendants maintain that the evidence fails to show that they

knowingly and willfully agreed to defraud the IRS. Suttles argues that (1) the

evidence shows that he acted alone; and (2) fails to demonstrate that the United

Suttles also was convicted on ten substantive income tax related counts. Only the conspiracy 1

convictions of Suttles and Ham are at issue in this appeal.

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States was the target of a conspiracy. Ham argues that she was a naive woman,

dependent on Suttles for financial support; she claims to have been only a passive

recipient of the fruits of Suttle’s tax schemes. According to Ham, the government

failed to prove her subjective knowledge of Suttles’s illegal acts and failed to

prove that she intended to conspire with him to defraud the IRS. 

We review the sufficiency of the evidence to support a guilty verdict de

novo, viewing the evidence in the light most favorable to the government. United

States v. Klopf, 423 F.3d 1228, 1236 (11 Cir. 2005). We accept all reasonable th

inferences and credibility choices in favor of the jury’s verdict. United States v. 

Tinoco, 304 F.3d 1088, 1122 (11 Cir. 2002). When the government relies on th

circumstantial evidence, reasonable inferences rather than mere speculation, must

support conviction. Klopf, 423 F.3d at 1236. If a reasonable jury could conclude

that the evidence establishes guilt beyond a reasonable doubt, we will affirm the

verdict. See Jackson v. Virginia, 99 S.Ct. 2781, 2789 (1979). No requirement

exists that the evidence “exclude every reasonable hypothesis of innocence or be

wholly inconsistent with every conclusion except that of guilt,” United States v. 

Calderon, 127 F.3d 1314, 1324 (11 Cir. 1997), modified on other grounds by

th

United States v. Toler, 144 F.3d 1423, 1427 (11 Cir. 1998) (quotation and

th

citation omitted); the evidence is sufficient unless no reasonable trier of fact could

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find guilt established beyond a reasonable doubt even if the evidence might also

support a defendant’s theory of innocence. Tinoco, 304 F.3d at 1122; Calderon,

127 F.3d at 1324.

Under 18 U.S.C. § 371, it is a crime to “conspire either to commit any

offense against the United States, or to defraud the United States, or any agency

thereof in any manner of for any purpose ....” A conspiracy to defraud the United

States has three elements: (1) an agreement to achieve an unlawful objective; (2)

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defendant’s knowing and voluntary participation in the conspiracy; and (3) the

commission of an overt act in furtherance of the conspiracy. United States v. 

Cure, 804 F.2d 625, 628 (11 Cir. 1986). The agreement may be proved by

th

circumstantial evidence, see United States v. Silvestri, 409 F.3d 1311, 1328 (11th

Cir. 2005); and inferences based on defendant’s conduct may demonstrate

agreement and intent. See id. (agreement); United States v. LaSpesa, 956 F.2d

1027, 1035 (11 Cir. 1992) (participation and intent). “The government need not

th

prove that a defendant had knowledge of all details of the phases of the

The proof required to support a conviction under section 371 differs depending on whether the

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conspiracy charged falls under the “any offense” clause or the “defraud” clause of section 371. 

United States v. Mendez, 528 F.3d 811, 815 (11 Cir. 2008) petition for cert. filed, 77 USLW 3087 th

(Aug. 1, 2008). Where, as here, the “defraud” clause applies, “the government must prove that the

United States was the ultimate target of the conspiracy.” Id. (quoting United States v. Harmas, 974

F.2d 1262, 1268 (11 Cir. 1992)). th

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conspiracy. They need only demonstrate that the defendant knew the essential

nature of the conspiracy.” United States v. Lluesma, 45 F.3d 408, 410 (11 Cir. 

th

1995).

Ample evidence in the record supports the jury’s verdict that Ham and

Suttles conspired to defraud the IRS. Evidence showed that Suttles owed the IRS

around $250,000 in 1998 and that Ham was aware of that debt. At Suttle’s behest,

Ham bought a business -- Diamond Brokers -- from Suttle’s ex-wife; evidence

showed that Ham was aware that Suttles did not buy Diamond Brokers himself

because assets held in Suttles’s name would be subject to IRS collection for

Suttles’s outstanding debt. Ham obtained financing to purchase real estate several

times based on her and Diamond Broker’s representations that she worked for

Diamond Brokers; the evidence showed Ham performed little or no work for

Diamond Brokers. Ham used false documentation to support mortgage

applications; Suttles’s controlled Diamond Broker’s assets and used them to pay

Ham’s mortgage obligation and other personal expenses. Records of Diamond

Brokers showed that Suttles listed payment to Ham improperly as loan

repayments; this listing disguised the taxable nature of some payments made to

Ham. Ham allowed Suttles to use her credit cards to obtain cash; Diamond

Brokers paid Ham’s credit card bills. False representations were made to the IRS

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by Ham about the amount of time she worked at Diamond Brokers and about

amounts she received from Suttles for child support. Both Suttles and Ham

engaged in tax protestor-related activity; and Ham fled when an IRS agent

attempted to serve her with a grand jury subpoena related to the instant

prosecution. The jury reasonably could infer from Ham’s flight consciousness of

guilt. See United States v. Borders, 693 F.2d 1318, 1324-25 (11 Cir. 1982). th

Sufficient evidence demonstrated that Suttles and Ham knowingly and

voluntarily agreed to impede the collection by the IRS of taxes owed by them and

Diamond Brokers. The evidence showed that they acted jointly to prevent the IRS

from collecting taxes owed; they were aware that the purpose of their acts was to

impede IRS tax collection. The IRS, an agency of the United States government,

was the direct target of the conspiracy. We cannot say that no reasonable jury

could find beyond a reasonable doubt that Suttles and Ham conspired to defraud

the IRS in violation of 18 U.S.C. § 371.

AFFIRMED.

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