UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4825

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

LEANDRA SMITH, a/k/a Leanra Smith, a/k/a Rhonda L. Barber,

Defendant – Appellant.

No. 09-4838

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

ANEWA TIARI-EL, a/k/a Annie B. Williams,

Defendant – Appellant.

No. 09-4893

UNITED STATES OF AMERICA,

Plaintiff – Appellant,

v.
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LEANDRA SMITH, a/k/a Leanra Smith, a/k/a Rhonda L. Barber; 

ANEWA TIARI-EL, a/k/a Annie B. Williams,

Defendants – Appellees.

Appeals from the United States District Court for the Western 

District of North Carolina, at Charlotte. Graham C. Mullen, 

Senior District Judge. (3:03-cr-00219-GCM-DCK-2; 3:03-cr-00219-

GCM-DCK-1)

Submitted: September 17, 2010 Decided: October 21, 2010

Before GREGORY, SHEDD, and DAVIS, Circuit Judges.

Affirmed in part; vacated and remanded in part by unpublished 

per curiam opinion.

James S. Weidner, Jr., JAMES S. WEIDNER, JR., Charlotte, North 

Carolina, for Leandra Smith; Claire J. Rauscher, Ross H. 

Richardson, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., 

Charlotte, North Carolina, for Anewa Tiari-El. Edward R. Ryan, 

United States Attorney, Charlotte, North Carolina; John A. 

DiCicco, Acting Assistant Attorney General, Alan Hechtkopf, 

Karen M. Quesnel, Katie Bagley, UNITED STATES DEPARTMENT OF 

JUSTICE, Washington, D.C., for the United States.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Anewa Tiari-El and Leandra Smith were convicted, after 

a jury trial, of conspiracy to file false claims for tax 

refunds, filing false claims for tax refunds, and aiding and 

abetting others in violation of 18 U.S.C. §§ 286, 287, and 2 

(2006). The district court sentenced Tiari-El to 60 months 

imprisonment and Smith to 42 months imprisonment and ordered 

both Defendants to pay restitution in the amount of $244,287.86 

to clients who paid them to file the false refund claims. 

Tiari-El and Smith appeal, contending that the district court 

erred by allowing the introduction of evidence of a nontestifying codefendant’s guilty plea and by denying their motion 

for a new trial based on the Government’s failure to turn over 

exculpatory evidence. The Government cross-appeals, arguing 

that the district court erred by failing to order restitution to 

the Internal Revenue Service. We affirm Tiari-El’s and Smith’s 

convictions, but vacate the sentences and remand with 

instructions for the district court to imposed restitution in 

favor of the Internal Revenue Service.

The Government’s evidence showed that the Defendants 

engaged in a scheme conducted through Tiari-El and Associates

(“TEA”), a law firm that provided credit counseling services, 

loan approval and education on home ownership. They offered to 

recoup from the Internal Revenue Service interest accrued on tax 
4

payments made by individuals. TEA falsely informed its clients 

that the IRS maintains a master file on each taxpayer. The tax 

payments made into this master file accrue interest, and 

according to TEA, the taxpayer can obtain the interest earned on 

this account by filing amended returns. 

TEA directed their clients to provide their completed 

prior year tax returns, sign the cover page of a Form 1040X, and 

sign a limited power of attorney. TEA would then, unbeknownst 

to the taxpayer, complete a Form 2439 “Notice to Shareholder of 

Undistributed Long-Term Capital Gains,” and submit it to the 

IRS, along with the amended return, claiming a refund in amounts 

ranging from $33,000 to $89,000. The Government presented 

evidence that the individuals named in the amended returns filed 

by TEA did not have the undistributed gains to support the 

requested refund. TEA provided that the refund checks from the 

IRS were to be sent directly to the TEA offices. TEA charged 

clients $150 to $305 for each tax year in which they filed an 

amended return claiming this fictitious refund. TEA clients 

also agreed to pay TEA fifteen to twenty-five percent of the 

refunds they received. 

Tiari-El’s daughter, Tajah Yesher-El, testified on 

behalf of the Defendants. During the cross-examination of 

Tajah, the Government sought to elicit testimony that her 

husband, Malik Yesher-El, was charged with the same offenses as 
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Smith and Tiari-El, and that he pled guilty. The district court 

initially prohibited this questioning, but upon request by the 

Government, reconsidered the ruling, and over the Defendants’ 

objections, allowed the Government to question Tajah about the 

guilty plea. The Defendants assert that this ruling violated 

their rights under the Confrontation Clause.

“[E]vidence of a non-testifying co-defendant’s guilty 

plea should not be put before the jury.” United States v. 

Blevins, 960 F.2d 1252, 1260 (4th Cir. 1992) (citations 

omitted). The reasons for this restriction are that the 

codefendant is not present to be cross-examined about his 

motives for pleading guilty and the concern that the jury will 

consider the codefendant’s guilty plea as evidence of the 

defendant’s guilt. Id. Admission of such evidence is reviewed 

de novo, and a mistrial must be declared unless the court is 

satisfied beyond a reasonable doubt that the error was harmless. 

Id. at 1262.

“If for whatever reason the jury does learn that codefendants have pled guilty, the court upon request should issue 

a limiting instruction to jurors.” Blevins, 960 F.2d at 1260 

(emphasis added). However, the Defendants did not request a 

limiting instruction and failed to object to the absence of one 

in the jury charge. The district court was not required, sua 

sponte, to give a limiting instruction.
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Moreover, our review of the record leads to the 

conclusion that the admission of this evidence was harmless when 

“measured against the other evidence presented at trial.” Id.

at 1263 (citing Arizona v. Fulminante, 499 U.S. 279 (1991)). 

The Defendants asserted that they merely gathered the relevant 

taxpayer information and sent it to Jo El Bey in Atlanta, 

Georgia, who added the Forms 2439 and prepared the amended 

returns and submitted them to the IRS. They asserted that they 

did not know the actual basis upon which the refunds were 

requested and did not know that the refund claims were 

fraudulent. However, contrary to this stance, the Government 

presented testimony that Smith and Tiari-El personally informed 

clients of the ability to receive from the IRS the interest 

accumulated in their “master file” with the IRS. Several 

witnesses testified that the signatures on the filed amended tax 

returns, the Forms 2439, and the powers of attorney were forged. 

The clients were not aware of the actual basis for the refunds 

as stated in the amended returns. Additionally, upon executing 

a search warrant of TEA’s offices, officials discovered hundreds 

of partially completed Forms 2439 and numerous computer files 

containing Forms 2439 which were completed and able to be 

attached to the refund claims. 

Additionally, in March 2003, the Defendants were 

specifically told by an IRS criminal investigator that the tax 
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refund scheme was fraudulent. Two separate state court 

injunctions were imposed prohibiting Defendants from continuing 

to prepare amended tax returns on behalf of clients because of 

the fraudulent nature of the claims, and more than 400 letters 

were received by TEA clients rejecting the refund claims as 

false. Despite these events, Tiari-El and Smith continued to 

file false claims for tax refunds on the same basis. 

When faced with this overwhelming evidence of Smith 

and Tiari-El’s knowledge of the fraudulent nature of the refund 

requests and their continued conduct of the scheme after being 

informed that the claims were false, we conclude that the 

isolated reference to Malik Yesher-El’s guilty plea during the 

five-day jury trial was harmless beyond a reasonable doubt. See

Blevins, 960 F.2d at 1262.

Next, the Defendants contend that the Government 

failed to disclose exculpatory evidence in violation of Brady v. 

Maryland, 373 U.S. 83 (1963). They contend that, at the time of 

their trial, the Government was preparing to arrest Jo El Bey in 

Georgia after a three-year investigation into his conducting the 

same type of tax refund scheme as that with which the Defendants 

were charged. They assert that the Government failed to 

disclose this information, and in fact, claimed that Jo El Bey 

did not exist and “crippl[ed] Appellants’ defense.” 
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The Government points out that the person who was 

being investigated in Georgia was Joseph Jordan. Although the 

Defendants assert that Jordan and Jo El Bey are the same person, 

there was no evidence of this. Notably, during the 

investigation of the Defendants, several cancelled checks 

written to Joseph Jordan were discovered, but none made payable 

to Jo El Bey.

Additionally, the investigation of Jordan was 

conducted by the United States Attorney’s Office for Middle 

District of Georgia, whereas the Defendants were prosecuted in 

the Western District of North Carolina. There is no requirement 

that prosecutors in one district be aware of and disclose 

information in the possession of other governmental offices. 

See United States v. Pellullo, 399 F.3d 197, 216 (3d Cir. 2005); 

Kyles v. Whitley, 514 U.S. 419, 438 (1995); see also United 

States v. Mero, 866 F.2d 1304, 1309 (11th Cir. 1989) (holding 

that prosecutor in Florida not in possession of and therefore 

not obligated to disclose information known to prosecutors in 

Georgia and Pennsylvania). Because the prosecutor in the 

Defendants’ case is not imputed with knowledge of the 

investigation in Georgia, no Brady violation can be shown by the 

Government not disclosing to the Defendants details of the 

investigation of Joseph Jordan. 
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The final issue in these appeals is the Government’s 

contention that the district court’s failure to order 

restitution in favor of the Internal Revenue Service was error. 

Although it is clear from our review of the record that the 

district court intended that restitution be made to the IRS in 

the amount of $1,394,474.67 — the amount paid on the false 

claims submitted by clients of TEA — the court failed to order 

restitution in the Judgment and Commitment Orders. Rather, the 

court ordered restitution in the amount of $244,287.86 for the 

individual victims who were clients of Tiari-El and Smith. 

Based on its concern over the IRS recouping the money paid to 

taxpayers under this fraudulent scheme, the court decided to 

wait for an accounting of monies recovered before imposing the 

restitution award. While this is a legitimate concern, the 

failure to award restitution to the IRS, a victim of the 

Defendants’ fraudulent scheme, violates the Mandatory Victims 

Restitution Act of 1996. 18 U.S.C.A. § 3663A(a)(1) (West 2000 & 

Supp. 2010); United States v. Roper, 462 F.3d 336, 338 (4th Cir. 

2006); see also United States v. Ekanem, 383 F.3d 40, 42-44 (2d 

Cir. 2004) (holding that government may be an eligible victim).

Further, the Act provides, “In no case shall the fact 

that a victim has received or is entitled to receive 

compensation with respect to a loss from insurance or any other 

source be considered in determining the amount of restitution.” 
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18 U.S.C. § 3664(f)(1)(B) (2006) (emphasis added). Rather, the 

Act provides that “[a]ny amount paid to a victim under an order 

of restitution shall be reduced by any amount later recovered as 

compensatory damages for the same loss by the victim” in any 

Federal or State civil proceeding.” See 18 U.S.C. § 3664(j)(2)

(2006). Thus, despite the fact that the IRS may recoup some of 

its losses from the taxpayers who received refunds under TEA’s 

scheme, the district court erred by failing to order restitution 

to the IRS in the full amount of its losses, with the amount to 

later be reduced by amounts recouped from taxpayers. See United 

States v. Ruff, 420 F.3d 772, 775 (8th Cir. 2005) (discussing 

mandatory nature of restitution award and the bar against double 

recovery); United States v. Scott, 270 F.3d 30, 52 (1st Cir. 

2001) (interpreting restitution order entered in fraudulent tax 

return case as allowing government to recover the total amount 

of restitution from any of several individual defendants, but

restricting total recovery to amount of loss).

Accordingly, while we affirm Tiari-El’s and Smith’s 

convictions, we vacate the judgments in part and remand the 

cases to the district court for the limited purpose of ordering 

restitution in favor of the IRS. We dispense with oral argument 

because the facts and legal contentions are adequately presented 
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in the materials before the court and argument would not aid the 

decisional process.

AFFIRMED IN PART;

VACATED AND REMANDED IN PART