NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 15-3876

_____________

UNITED STATES OF AMERICA

 

v.

DAVID EVDOKIMOW,

 Appellant 

______________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Crim. Action No. 1-14-cr-00605-001)

District Judge: Honorable Noel L. Hillman

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Argued: October 26, 2017

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Before: GREENAWAY, JR., COWEN, Circuit Judges, and PADOVA, District Judge*

(Opinion Filed: March 16, 2018)

______________

Robert J. Basil, Esq.

The Basil Law Group

1270 Broadway

Suite 305

New York, NY 10001

 

* The Honorable John R. Padova, Senior United States District Judge for the 

Eastern District of Pennsylvania, sitting by designation. 
2

Lawrence S. Lustberg, Esq. [ARGUED]

Jason R. Halpin, Esq.

Gibbons P.C.

One Gateway Center

Newark, NJ 07102

Counsel for Appellant

Mark E. Coyne, Esq.

John F. Romano, Esq. [ARGUED]

Office of United States Attorney

970 Broad Street, Room 700

Newark, NJ 07102

Counsel for Appellee

______________

OPINION**

______________

PADOVA, Senior District Judge.

David Evdokimow appeals his conviction, after a jury trial, of eight counts relating 

to his failure to report and pay taxes on his personal and business income. He raises two 

claims of error. First, he argues that he was erroneously prevented from presenting 

evidence that he filed amended tax returns and paid all of his tax liabilities some 

seventeen months after learning of the criminal investigation against him. Second, he 

contends that his trial was rendered fundamentally unfair by the Government’s comments 

in closing argument, which he asserts improperly suggested to the jury that he had never 

paid his outstanding taxes when, in fact, he had. We address each of these claims in turn

and conclude that there is no basis to overturn Evdokimow’s conviction.

 

** This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 

does not constitute binding precedent.
3

I. Background

Defendant David Evdokimow was a plastic surgeon who operated his own 

practice, De’Omilia Plastic Surgery (“De’Omilia”) in northern New Jersey. Starting in 

2006, Evdokimow hired two individuals, John Wright and Ginger Sweeton, to help him 

make financial arrangements to reduce his taxes. Although Evdokimow’s prior 

accountant warned him not to get involved with Wright and Sweeton, he retained them 

anyway. 

Wright, Sweeton, and Evdokimow put in place a scheme in which Evdokimow 

arranged for the creation of a series of shell corporations to which he transferred proceeds 

from his practice. Evdokimow then used those funds to pay his personal expenses. The 

shell corporations were created with the assistance of Evdokimow’s friends and 

employees, who were listed as the corporations’ directors and officers and also opened 

bank accounts in the names of the corporations at Evdokimow’s request. Evdokimow 

also had these associates create signature stamps, which he then used to write checks 

from the shell corporations’ bank accounts and to file tax returns for the corporations. 

Evdokimow kept the signature stamps in the basement of the house where his parents 

lived, rather than in his office or his own home. Once Evdokimow transferred money 

from his practice to the corporations, he claimed those transfers as business expenses on 

both his personal tax returns and the business tax returns for De’Omilia, thereby reducing 

his and his practice’s taxable income. Evdokimow also paid part of his employees’ 

salaries through checks purportedly written as bonuses or for reimbursement of expenses 
4

from which no taxes had been withheld. He also had his patients make checks out to him 

personally and would cash those checks at banks where either he or a trust in his name

had accounts. Evdokimow avoided cashing $10,000.00 or more in checks at any one 

time to avoid his banks’ currency reporting requirements, and did not report that income 

on his tax returns. 

Evidokimow and Sweeton regularly discussed the tax scheme, and Sweeton 

provided instructions to Evdokimow that explained not only the mechanics of the 

arrangements, but also that their purpose was to “swap[] money to keep it from being 

taxable to” him. Suppl. App. 439; 2524. Evdokimow also discussed the tax scheme on 

multiple occasions with Dr. Augusto DaSilva, who had a similar arrangement with 

Wright and Sweeton. Evdokimow and DaSilva occasionally used code phrases to discuss 

Wright and Sweeton. On at least one occasion, an employee with knowledge of the 

arrangements warned Evdokimow that he risked getting caught if he did not pay more 

taxes. 

In 2008, the Internal Revenue Service (“IRS”) audited Evdokimow’s 2006 

personal tax return. In his response to the audit, Evdokimow made false statements to the 

IRS agent to support representations in his return. Sweeton also told Evdokimow that she

would create documents to substantiate the deductions he had claimed in his returns. 

Sweeton then created and provided to the IRS false documents that included fake mileage 

logs to reflect nonexistent business trips and false invoices from the shell corporations to 

De’Omilia. Based on these materials, the IRS agent found that Evdokimow owed
5

approximately $122,000 in taxes and penalties, which Evdokimow paid. In the wake of 

the audit, DaSilva, who had also been audited, considered firing Sweeton, at which point

Evdokimow told DaSilva that “we know that what we’re involved with is bullshit” and 

“if you’re going to the IRS, you’re going to go to jail . . . . You have no choice but to 

continue.” Suppl. App. 1274; 1275. 

The effect of the scheme was to substantially reduce Evdokimow’s tax payments. 

Between 2006 and 2010, Evdokimow failed to report over $5.95 million in income on his 

personal tax returns, which resulted in $935,476.00 in unpaid taxes. De’Omilia failed to 

report over $5.83 million in income over the same period, which resulted in a tax 

deficiency of more than $2 million. 

The Government began a criminal investigation into Evdokimow’s taxes in the fall 

of 2009. Evdokimow became aware of the investigation in January, 2012, when he was 

served with a subpoena. DaSilva testified at trial that when Evdokimow learned about 

the investigation, he warned DaSilva about it using coded language and later told DaSilva 

that he intended to respond by suing Sweeton under the pretense that he knew nothing 

about his taxes and had merely relied on Sweeton’s professional advice. Evdokimow 

disputed DaSilva’s account, testifying that he had not read any of his tax returns until he 

was subpoenaed in 2012, was not knowledgeable about accounting or bookkeeping, and 

had depended on Sweeton up to that point. 

After he became aware of the investigation, Evdokimow took steps to repay his 
6

tax deficiencies.1 He retained lawyers and accountants to assist him to identify his 

taxable income for the years 2005 through 2013, and did so without the help of Sweeton, 

who refused to turn over financial documents to him. Evdokimow filed an amended tax 

return for 2006 in June 2013, and filed amended returns for the remaining years in 

September 2013. Evdokimow accordingly paid all of his tax liability, including penalties 

and interest, totaling $3,395,394.00. 

Evdokimow was indicted on October 15, 2014, and charged in a superseding 

indictment on August 18, 2015, with one count of conspiracy to defraud the United States 

by filing false tax returns in violation of 18 U.S.C. § 371, four counts of attempted 

personal income tax evasion for tax years 2007 to 2010 in violation of 26 U.S.C. § 7201 

and 18 U.S.C. § 2, and three counts of attempted corporate income tax evasion for tax 

years 2008-2010, also in violation of 26 U.S.C. § 7201 and 18 U.S.C. § 2. 

Before trial, the Government moved to preclude Evdokimow from presenting 

evidence that he filed amended tax returns and paid additional taxes after learning of the 

criminal investigation against him in January, 2012. The District Court granted the 

motion in limine with respect to the amended tax returns and payments after oral 

argument on September 9, 2015. The District Court concluded that any evidence 

concerning Evdokimow’s subsequent tax payments was “of marginal probative value” 

that was “substantially outweighed by its potential for prejudice and confusion to the 

 

1 Because the District Court precluded Evdokimow from testifying regarding the 

remedial steps he took after receiving the subpoena in 2012, our recitation of these facts 

relies on counsels’ proffers of what the evidence would show, were it to be admitted.
7

jury.” App. 156. The Court reasoned that, while subsequent payments “could have 

probative value,” the “delay of at least 18 months” between the point when Evdokimow 

learned of the investigation and when he filed his amended returns eliminated any such 

value in this case. App. 157. The Court further concluded that the eventual payment of 

the taxes was “potentially confusing to the jury” and created a risk of jury nullification 

that was “potentially uncurable . . . by even a careful instruction as to render it 

admissible” because it opened the prospect of the defendant “argu[ing] to the jury that 

[he] pay[s] [his] taxes like anybody else.” App. 157-58. Evdokimow sought 

reconsideration of the District Court’s decision on the first day of trial, but the request

was denied. 

After a twelve-day trial, the Government, in its summation, described 

Evdokimow’s conduct at several points in terms of the “tax loss” that he had caused. The 

Government also argued that Evdokimow had benefited from and “saved” millions of 

dollars by underpaying his taxes. Evdokimow objected to these comments, arguing that 

they misleadingly suggested to the jury that he still had tax obligations outstanding, when 

in fact he had satisfied the tax debt before he was indicted. As a remedy, Evdokimow 

requested that the District Court instruct the jury that he had paid his tax obligations after

learning about the investigation, which he conceded was a fact not in evidence. The 

Court denied the request, but instructed the Government to be careful in rebuttal to make 

clear that the issue before the jury related only to the time period covered by the 

indictment. In rebuttal, the Government mentioned Evdokimow’s wealth and ability to 
8

pay his taxes between 2006 and 2012, and argued that “[s]ometimes people that have a 

lot of money are willing to commit crimes to get more. And that’s what happened here.” 

App. 326-27.

The jury found Evdokimow guilty on all counts on November 18, 2015. 

Evdokimow moved for judgment of acquittal or for a new trial under Federal Rules of 

Criminal Procedure 29 and 33. The Court heard argument on and denied the motions on 

February 16, 2017, and sentenced Evdokimow to 36 months’ imprisonment and a

$96,000.00 fine on the same day. 

II. Analysis2

A. Exclusion of Evidence of Subsequent Tax Payments

Evdokimow asserts that the District Court erred by excluding evidence that he 

filed amended tax returns and paid his tax debt after he learned he was under 

investigation. Evidentiary rulings are generally reviewed for abuse of discretion.3 United 

 

2 The District Court had jurisdiction under 18 U.S.C. § 3231. This Court has 

jurisdiction over Evdokimow’s appeal pursuant to 28 U.S.C. § 1291.

3 Evdokimow urges us to exercise plenary review over this claim, arguing that the 

District Court grounded its ruling on a misinterpretation of our decision in United States 

v. Stoehr, 196 F.2d 276 (3d Cir. 1952), which amounts to legal error. Specifically, 

Evdokimow argues that the District Court misread Stoehr to erroneously apply “a

presumption against admitting” evidence of his subsequent tax payments, when Stoehr in 

fact favors admission of such evidence, and seems to argue that the District Court 

erroneously read Stoehr to require exclusion of such evidence in every case. Appellant’s 

Br. at 21. This argument mischaracterizes the District Court’s ruling. The District Court 

clearly did not read Stoehr to require exclusion of that evidence as a matter of law. 

Moreover, while the District Court referenced Stoehr, it did not rely on Stoehr for its 

analysis, but rather applied the standard for exclusion of potentially relevant evidence 

established by Federal Rule of Evidence 403. We therefore conclude that the District 
9

States v. Friedman, 658 F.3d 342, 352 (3d Cir. 2011) (citation omitted). The District 

Court’s discretion is “construed especially broadly in the context of [Federal] Rule [of 

Evidence] 403.”4 United States v. Sussman, 709 F.3d 155, 173 (3d Cir. 2013) (quoting 

United States v. Mathis, 264 F.3d 321, 326-27 (3d Cir. 2001)). “[W]hen a court engages 

in a Rule 403 balancing and articulates on the record a rational explanation, we will 

rarely disturb its ruling.” United States v. Finley, 726 F.3d 483, 491 (3d Cir. 2013) 

(quoting United States v. Sampson, 980 F.2d 883, 889 (3d Cir. 1992)). 

Evdokimow argues that we should not utilize this deferential standard of review 

because the District Court failed to sufficiently explain its Rule 403 analysis. As we 

explained in Finley, we have found that courts failed to properly perform this analysis 

where they have “failed to mention anything about probative value or prejudice 

surrounding particular evidence.” Id. (citations omitted). We have also held that trial 

courts have failed to sufficiently explain their analyses when the “reasoning underlying 

the Court’s Rule 403 balancing [is] not apparent from the record” or when the courts 

“merely recite[] the text of the rule.” United States v. Caldwell, 760 F.3d 267, 284 (3d 

Cir. 2014) (quotation omitted); see, e.g., United States v. Palma-Ruedas, 121 F.3d 841, 

852 (3d Cir. 1997) rev’d on other grounds United States v. Rodriquez-Moreno, 526 U.S. 

 

Court’s ruling on the Government’s motion in limine was an evidentiary ruling applying

Rule 403, and we review the District Court’s ruling for abuse of discretion.

4 Rule 403 provides that “[t]he court may exclude relevant evidence if its 

probative value is substantially outweighed by a danger of one or more of the following: 

unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or 

needlessly presenting cumulative evidence.” Fed. R. Evid. 403.
10

275 (1999) (explanation insufficient where court “merely stated a conclusion that the 

probative value of the evidence outweighed its prejudicial effect”); Sampson, 980 F.2d at 

889 (reversing where “[t]he record [did] not disclose a Rule 403 balancing”); Gov’t of 

Virgin Islands v. Pinney, 967 F.2d 912, 918 (3d Cir. 1992) (reversing because “the trial 

court did not explain why it was denying defendant’s motion under Rule 403”). 

However, courts are not required to write a treatise on every motion in limine; even in 

situations where “a more detailed explanation from the District Court would have been 

helpful,” we will evaluate the Court’s ruling for abuse of discretion so long as “we are 

able to see that the District Court conducted a Rule 403 analysis.” Finley, 726 F.3d at 

491.

Here, the District Court ruled on the motion in limine only after hearing 

substantial argument and receiving thorough briefing from the parties concerning the 

evidence that the Government sought to preclude. In the course of its ruling, the Court 

articulated its assessments of both probative value and prejudicial effect: it explained that 

it found that the delay in filing amended returns reduced the probative value of that 

evidence to demonstrate Evdokimow’s earlier mental state, and described its concern that 

evidence of tax payments made years after the period charged in the Indictment would 

confuse the jury and raise the prospect of nullification. Such analysis is sufficient to 

enable us “to see that the District Court conducted a Rule 403 analysis” and assess it on 

appeal. Id.

Evdokimow next argues that the District Court erred in its application of our 
11

decision in United States v. Stoehr, 196 F.2d 276 (3d Cir. 1952), to assess the probative 

value of the evidence of his amended returns and tax payments. Stoehr, like the instant 

case, involved a defendant charged with and convicted at trial of willful tax evasion, who 

maintained in his defense that his tax payments had been made in good faith reliance on 

the advice of others. Id. at 279. The defendant sought to admit evidence showing that,

fifteen months after being confronted about the fraud, he offered a compromise payment

to the government in exchange for the release of all liability. Id. at 282. The lower court 

excluded this evidence; we affirmed, noting that while evidence of a prompt amended 

filing and payment of additional tax might have been admissible, in the case at issue the 

trial court could have reasonably concluded that the fifteen-month delay “destroyed 

whatever slight probative value a prompt offer might have had.”5Id. at 283. 

The District Court in this case reached a similar conclusion, ruling that 

Evdokimow’s remedial tax payments, made seventeen or more months after he 

purportedly learned of the fraud, were of “marginal probative value” regarding his intent 

 

5 Contrary to the assertions of the dissent, Stoehr does not “indicate[] that evidence 

of remedial actions should generally be admitted.” Dissenting Op. at 3. Rather, we 

emphasized in Stoehr that district courts “must consider the circumstances of the 

individual case” when making these determinations. Stoehr, 196 F.2d at 282. And in the 

sixty-five years since Stoehr was decided, other courts have agreed with that notion, 

becoming, if anything, more skeptical of the evidence’s admissibility. See, e.g., United 

States v. Beavers, 756 F.3d 1044, 1050 (7th Cir. 2014) (“[S]ubsequent remedial actions 

may not be probative of the defendant’s prior state of mind because such actions are 

equally consistent with (1) promptly correcting a genuine mistake and (2) trying to cover 

up a purposeful lie in the hope of avoiding prosecution.”); United States v. Radtke, 415 

F.3d 826, 841 (8th Cir. 2005) (“little, if any, probative value in . . . amended filing”); 

United States v. Pang, 362 F.3d 1187, 1194 (9th Cir. 2004) (“[E]vidence of belated tax 

payments, made while awaiting prosecution, is irrelevant.”).
12

at the time he filed his original tax returns. App. 156. The District Court cited our 

decision in Stoehr, noting that we had both endorsed the position that subsequent 

remedial actions could be of some evidentiary value to prove a defendant’s earlier good 

faith, and held that a significant delay in taking those actions could weaken or destroy 

any such value. Evdokimow argues that the District Court erroneously focused on the 

seventeen-month gap between the time he learned of the Government’s investigation and 

the time he filed his first amended tax return, and that it failed to consider his 

intermediate remedial steps, which, he argues, amount to the kind of prompt attempts to 

address his liability that the Stoehr Court thought might be admissible. In fact, however, 

the District Court acknowledged that Evdokimow’s proffered evidence included the steps 

he took to investigate and reconstruct his income during the intervening seventeen 

months. It is clear from the questions the Court asked during the hearing that it 

considered the probative value of all of the steps Evdokimow took after learning of the 

Government’s investigation, including those taken before he ultimately filed amended 

returns. The District Court simply concluded that all of that evidence was of limited 

probative value that was substantially outweighed by the risk of jury confusion. In light 

of the “very substantial discretion” we afford such conclusions, we cannot say this ruling 

was an abuse of discretion simply because some jurists might possibly come to a 

“differing view of the highly subjective factors of (a) the probative value, or (b) the 

prejudice presented by the evidence.” United States v. Long, 574 F.2d 761, 767 (3d Cir. 

1978). We therefore hold that the District Court provided a rational explanation for its 
13

ruling, and did not abuse its discretion in granting the motion in limine.

Even if the District Court had abused its discretion, we are nonetheless convinced 

that any error was harmless. Errors in evidentiary rulings will not be reversed when “it is 

highly probable that the error did not affect the result.” United States v. DeMuro, 677 

F.3d 500, 557 (3d Cir. 2012) (quoting United States v. Friedman, 658 F.3d 342, 352 (3d 

Cir. 2011)). Errors are harmless when “we have a sure conviction that the error did not 

prejudice the defendant[],” United States v. Stadtmauer, 620 F.3d 238, 266 (3d Cir. 2010)

(alteration in original) (quotation omitted), and we will not reverse when the other 

evidence in the record of the defendant’s guilt is overwhelming, see United States v. 

Christie, 624 F.3d 558, 571 (3d Cir. 2010) (evidentiary error was harmless “given the 

truly overwhelming quantity of legitimate evidence against” the defendant).

Evdokimow argues that the evidence that he eventually paid his taxes is highly 

relevant to the issue of his intent when he filed his original, false returns, and that,

consequently, the exclusion of that evidence prejudiced his defense that his original 

filings were made in good faith. However, the exclusion of evidence regarding 

Evdokimow’s subsequent tax payments did not prevent him from putting on his defense. 

Evdokimow presented a thorough good-faith defense to the jury, which heard his account 

that he had deferred entirely to Sweeton for the preparation of his tax returns; that he had 

not looked closely at his returns and was unaware of any fraud until he received a 

subpoena; that he has since hired a new accountant; and that he cooperated with both the 

Government’s investigation and the earlier IRS audit. 
14

The jury also heard extensive evidence that contradicted Evdokimow’s account 

that he was unaware of and uninvolved in the tax fraud.6 Alexandra Lehr, Evdokimow’s 

former office manager, testified that he ignored warnings from his former accountant not 

to involve himself with Wright and Sweeton. Grigor Damyanov and Christine 

Chamberlain testified that Evdokimow was personally involved in recruiting them to 

open bank accounts that were used in the scheme. Agent Valenti, the lead case agent, 

DaSilva, Damyanov, Chamberlain, and Lehr all testified that Evdokimow used stamps of 

other people’s signatures to write checks to pay his personal expenses. Agent Valenti, 

Lehr, DaSilva, and Ilda Pereira, the branch manager at one of Evdokimow’s banks, all 

testified that he had patients make checks out to him personally and cashed them in 

amounts below currency reporting requirements. DaSilva also testified that Evdokimow

communicated with him in code about both the scheme and the government investigation.

He also testified that Evdokimow admitted to him that they were “involved” in “bullshit” 

for which they could “go to jail.” Suppl. App. 1274, 1275. Given this overwhelming 

evidence that Evdokimow engaged in the tax fraud scheme willfully and the fact that 

Evdokimow was able to present a thorough good-faith defense to the jury, we hold that, 

even if the District Court had abused its discretion in excluding the subsequent tax 

payments, any error in excluding such evidence would have been harmless.

 

6 After a conviction on a jury verdict, we view the evidence in the light most 

favorable to the Government. United States v. Hoffecker, 530 F.3d 137, 146 (3d Cir. 

2008) (citing United States v. Wood, 486 F.3d 781, 783 (3d Cir. 2007)).
15

B. The Government’s Comments in Closing Argument

Evdokimow claims that the Government made prejudicial comments in its closing 

argument that violated his Fifth Amendment right to due process by implying to the jury 

that his tax debt remained outstanding at the time of trial when, in fact, he had paid his 

deficiencies before he was indicted. Evdokimow objected to some of these comments 

after the Government’s summation and in a motion for a new trial.7

“We review a district court’s ruling on contemporaneous objections to closing 

arguments for abuse of discretion.” United States v. Berrios, 676 F.3d 118, 134 (3d Cir. 

2012) (citing United States v. Lore, 430 F.3d 190, 210 (3d Cir. 2005)). Similarly, “[t]he 

‘decision to grant or deny a motion for a new trial lies within the discretion of the district 

court.’” United States v. Vitillo, 490 F.3d 314, 325 (3d Cir. 2007) (quoting United States 

v. Cimera, 459 F.3d 452, 458 (3d Cir. 2006)). The Court exercises plenary review, 

however, over the underlying legal question of whether a defendant’s Fifth Amendment 

right to a fair trial has been infringed. United States v. Liburd, 607 F.3d 339, 342 (3d Cir. 

2010) (citing United States v. Dees, 467 F.3d 847, 854 (3d Cir. 2006)). When reviewing 

a claim that a prosecutor’s remarks violated a defendant’s Fifth Amendment right to a fair 

trial, “we first determine whether those remarks constituted misconduct.” Gov’t of the 

 

7 Evdokimow conceded at oral argument that he did not object below to at least 

some of the comments he now objects to on appeal. Oral Arg. at 24:27 (argued October 

26, 2017). Unpreserved errors are subject to plain error review. Gov’t of the Virgin 

Islands v. Mills, 821 F.3d 448, 456 (3d Cir. 2006). However, we need not decide which 

comments were preserved for appeal because we conclude, for the reasons set forth 

below, that none of these comments amounted to a denial of due process. Consequently, 

they would not merit reversal even if they were all objected to below.
16

Virgin Islands v. Mills, 821 F.3d 448, 456 (3d Cir. 2016) (citing Berrios, 676 F.3d at 134-

36) (additional citation omitted). “If so, we proceed to determine whether that 

misconduct ‘so infected the trial with unfairness as to make the resulting conviction a 

denial of due process’ . . . taking into account ‘the entire proceeding.’” Id. (quoting 

Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974); and Liburd, 607 F.3d at 344)

(additional citation omitted).

8

Evdokimow challenges six comments made by the Government during its closing

and one made during its rebuttal. These comments fall into two categories. First, 

Evdokimow objects to the Government’s use of the word “loss” to describe the amount of 

taxes that he evaded paying prior to learning of the Government’s investigation. The 

Government showed two demonstrative summary exhibits during its closing, which had 

been admitted into evidence without objection, and which set out the personal and 

business income that went unreported for each of the years at issue, as well as the 

additional taxes owed on those unreported amounts. At two points in its closing 

argument, the Government referred to these exhibits as setting forth the “tax loss” in the 

case.9 Second, Evdokimow objects to the Government’s argument that he “saved” 

 

8 Courts normally assess whether errors of criminal procedure were harmless, Fed. 

R. Crim. P. 52, and the parties debate the precise standard of harmless error that should 

apply here. However, this Court has previously explained that, on direct appeal, the 

harmless error inquiry is subsumed “within our inquiry into whether the misconduct 

resulted in an unfair trial.” Mills, 821 F.3d at 460 n.11 (citations omitted). 

9App. at 315 (“You have on that issue, ladies and gentlemen, two summary 

exhibits in evidence, Government Exhibit 111 and 112, and they set forth the tax loss 

numbers in this case.”); 316 (“And you will see for each of those years, there’s an 
17

money by virtue of his tax scheme. At several points during its summation, the 

Government described both the motivations for and substance of Evdokimow’s actions as 

“saving” or “benefiting” himself in the amount of millions of dollars.10 The Government 

also told the jury in its rebuttal that Evdokimow “could have paid his taxes between 2006 

and 2012,” but that “[s]ometimes people that have a lot of money are willing to commit 

crimes to get more. And that’s what happened here.” App. 326-27.

Evdokimow argues that these comments, taken together, falsely and improperly

implied to the jury that he had never paid the taxes at issue in the trial, when, in fact, he 

had. He argues that creating this implication amounted to misconduct because the 

suggestion was a) an improper appeal to the jurors’ emotions based on their individual 

interests as taxpayers, and b) false and not supported by the evidence at trial. See Mills, 

821 F.3d at 458 (stating that prosecutors “may not cross the line and invite the jury to 

render a decision on grounds of bias, passion, prejudice, or sympathy”); United States v. 

Rivas, 493 F.3d 131, 139 (3d Cir. 2007) (stating that prosecutors “cannot make 

 

additional tax owing of between $150,000 and $404,000, again, plainly a substantial tax 

loss to satisfy the first element of tax evasion.”).

10App. at 313 (“Between 2006 and 2010, he concealed approximately $5.8 million 

in taxable income from the IRS, and the scheme benefited him to the tune of millions of 

dollars.”); 314 (“Now, why did the defendant do this? Money. As a result of this 

scheme, he saved himself millions of dollars and had approximately $5.8 million of his 

personal expenses spent.”); 317 (arguing that the Government had proved the requisite 

state of mind based on “the fact that [Evdokimow]’s the one who saved millions of 

dollars in taxes by underreporting the vast majority of his taxable income”); 318 (“And 

yet despite all that bad luck on the defendant’s part, he was lucky enough to have saved 

himself—to have had $5.8 million of his personal expenses paid and saved himself 

millions of dollars in taxes.”).
18

arguments unsupported by the record evidence”) (citations omitted). For the purposes of 

this appeal, we will assume arguendo that the Government’s references to “loss” and 

“savings” suggested or raised an inference that Evdokimow had never paid his taxes, and 

therefore amounted to misconduct. We must then determine whether these comments so 

infected the entire proceeding with unfairness as to amount to a denial of due process. 

Mills, 821 F.3d at 456 (quotation and citations omitted). For the reasons that follow, we 

conclude that they do not.

To determine whether misconduct by the Government amounts to a denial of due 

process, we assess “the severity of the conduct, the effect of the curative instructions, and 

the quantum of evidence against the defendant.” Id. at 461 (quoting United States v. Lee, 

612 F.3d 170, 194 (3d Cir. 2010)). Consequently, in our examination of the allegedly 

improper statements made by the Government during its closing argument, we consider

first, the severity of the comments and their pervasiveness in light of the entire closing 

argument; second, the District Court’s instructions on the role of lawyers’ arguments and 

the elements of the offenses; and third, the strength of the evidence against Evdokimow. 

See id. at 462-63.

The seven comments to which Evdokimow objects were made in the course of 

seventy-two pages of closing and rebuttal argument by the Government. Even though we 

assume that these comments encouraged an impermissible inference, we find that they 

were not sufficiently severe or prevalent to infect the entirety of the proceedings with 

unfairness, as they were made in passing in the course of lengthy argument and did not 
19

explicitly state the improper premise (i.e., that Evdokimow had never paid his tax debt). 

Compare id. at 462 (stating that argument that jurors would only be safe in their homes if 

they convicted the defendant was severe misconduct), and Moore v. Morton, 255 F.3d 95, 

116-18 (3d Cir. 2001) (stating that closing arguments in a rape case that failure to believe 

a victim witness would “perpetrate[] a worse assault on her” and that jury could infer the 

defendant had a race-based “preference” based on the race of his wife were too severe to 

be cured by the trial court’s instructions), with Berrios, 676 F.3d at 135 (concluding that

“a mere ten lines [of objectionable argument] out of over seventy-five pages of closing 

argument” did not merit reversal (citations omitted)). We therefore conclude that the lack 

of pervasiveness and severity of these seven comments weighs against a finding that the 

comments infected the fairness of the entire proceeding.

In addition, the District Court provided the jury with a number of instructions on 

the significance of the lawyers’ arguments, the elements of the charged offenses, and the 

jury’s obligation to reach a decision based only on the facts and the law. In assessing the 

potential prejudice of a prosecutor’s challenged comments, we must consider the 

comments in light of the District Court’s instructions to the jury in the full jury charge. 

See Mills, 821 F.3d at 462-63 (finding that the admonition that the lawyers’ arguments 

are not evidence and the “clear and complete jury instruction on the elements” weighed 

against a finding of fundamental unfairness even when the District Court had not 

specifically addressed the prosecutor’s improper statements (quoting Edward v. City of 

Philadelphia, 860 F.2d 568, 574 (3d Cir. 1988))); Berrios, 676 F.3d at 135-36 (stating 
20

that instructions given to the jury “to base its judgment on the evidence” and that 

“arguments by counsel do not constitute evidence” were an “adequate response” to the 

possibility of prejudice created by misconduct in the prosecutor’s closing statement). 

Although the District Court denied Evdokimow’s specific request that it tell the jury that 

he had already paid his outstanding tax debt, the Court did charge the jury at the end of 

trial that it should decide the case based on the evidence and not on sympathy or bias, and 

that the arguments of counsel were not evidence. The District Court also gave full 

instructions on the elements of each offense with which Evdokimow was charged, which 

included the instruction that, in order to prove the existence of a tax deficiency, “[t]he 

Government [was] required to establish only that the defendant owed a substantial 

amount of income tax during the years in question, regardless whether it is more or less 

than the amount set forth in the indictment.” Suppl. App. 2265 (emphasis added). Such 

instructions, which we presume the jury followed, Mills, 821 F.3d at 463 (citing 

Richardson v. Marsh, 481 U.S. 200, 206 (1987)), served to clarify that nothing the 

Government said during its closing should be taken to imply the existence of facts not 

established through the evidence admitted at trial and that the only relevant period of 

inquiry for the jury was the period of years charged in the indictment. We therefore 

conclude that the instructions given were sufficient to address any potential prejudice 

from the seven comments to which Evdokimow objects.

The final consideration we weigh in evaluating whether any improper comments 

by the Government rendered the trial fundamentally unfair is the “strength of the 
21

evidence against the defendant.” Id. at 463 (citing Darden v. Wainwright, 477 U.S. 168, 

182 (1986) (additional citations omitted)). Because Evdokimow did not dispute that he 

had underreported his taxes, but instead maintained that he had done so in good faith 

reliance on his financial advisors, the central question at trial was Evdokimow’s mental 

state. As described above, the jury heard overwhelming evidence of Evdokimow’s 

knowledge of and willful involvement in the tax scheme with which he was charged. 

Moreover, the comments at issue characterized evidence that the jury had already 

encountered during the trial, such as the loss summary charts and accounts of 

Evdokimow’s personal spending. See United States v. Gambone, 314 F.3d 163, 179 (3d 

Cir. 2003) (“[W]e have held that probative evidence on the same issue as improper 

remarks may mitigate prejudice stemming from those remarks.” (citations omitted)). 

Because “the jury was presented with ample evidence on which it could convict” 

Evdokimow, we conclude that any misconduct in the Government’s argument did not 

impact the jury’s verdict. Berrios, 676 F.3d at 136. In light of the trial as a whole, and 

upon consideration of the severity of the comments, the effect of the District Court’s 

instructions, and the weight of the evidence, we hold that the seven comments to which 

Evdokimow objects did not render Evdokimow’s trial fundamentally unfair and, 

therefore, did not constitute a denial of due process. 

Accordingly, because we find that the Government’s comments in the course of its 

closing argument did not result in a denial of due process, we further find the District 

Court did not abuse its discretion by overruling his objections to those comments,
22

denying his request for a jury instruction that he paid his taxes prior to his indictment,

and denying his motion for a new trial. It is clear from the record that the District Court 

considered Evdokimow’s various objections. The District Court explained, however, that 

the prosecutorial statements were not “so misleading or incomplete in light of [its] rulings 

as to require any remedy or instruction.” Suppl. App. 2179. It also stressed that tax 

deficiency was an element of the offense, which the Government was entitled to address 

in summation. And importantly, the District Court explained that a curative instruction 

“would only cloud and make murky” what the jury should have already known—that the 

time period at issue was from 2006 to 2012. Suppl. App. 2182. Under these 

circumstances, there is no basis to hold that the District Court abused its discretion in 

declining to issue an instruction or grant a mistrial.

IV. Conclusion

For the foregoing reasons, we conclude that the District Court did not abuse its 

discretion by excluding evidence that Evdokimow eventually paid his outstanding tax 

debt, and also did not abuse its discretion by overruling his objections to the 

Government’s comments in its closing argument, denying his request for a jury 

instruction, and denying his motion for a new trial. We will therefore affirm the 

judgment of the District Court.
1

United States v. Evdokimow, No. 15-3876. 

COWEN, Circuit Judge, dissenting.

The District Court committed reversible error by preventing Evdokimow from 

presenting—in his defense to criminal charges that he “willfully” failed to report and pay 

his taxes—evidence that he actually filed amended tax returns and paid his tax liability in 

its entirety after learning of the criminal investigation. I also conclude that the trial was 

rendered fundamentally unfair because the government repeatedly suggested in its 

closing argument that he had never paid his taxes. Accordingly, I must respectfully 

dissent.

Initially, the District Court erred by excluding Evdokimow’s evidence of 

subsequent amended tax returns and tax payments. In short, the District Court’s 

reasoning is inconsistent with the approach to evidence of remedial actions that we set 

forth in United States v. Stoehr, 196 F.2d 276 (3d Cir. 1952). I also believe that we 

should not defer to the District Court’s ruling because it failed to engage in the requisite 

“on-the-record” balancing. 

The majority is correct that evidentiary rulings are generally reviewed for abuse of 

discretion and that this discretion is construed especially broadly in the Rule 403 context. 

See, e.g., United States v. Sussman, 709 F.3d 155, 173 (3d Cir. 2013). While we rarely 

disturb a district court’s ruling, such deference is only appropriate if the district court 

“‘engages in a Rule 403 balancing and articulates on the record a rational explanation’” 
2

for its disposition. United States v. Finley, 726 F.3d 483, 491 (3d Cir. 2013) (quoting 

United States v. Sampson, 980 F.2d 883, 889 (3d Cir. 1992)). “We have also held that 

trial courts have failed to sufficiently explain their analyses when the ‘reasoning 

underlying the Court’s Rule 403 balancing [is] not apparent from the record’ or when the 

courts ‘merely recite[] the text of the rule.’” (Maj. Op. at 9-10 (quoting United States v. 

Caldwell, 760 F.3d 267, 284 (3d Cir. 2014)).) “[W]e do not afford that court the 

deference normally afforded when we review for abuse of discretion if the district court 

failed to engage in on-the-record balancing” (and, in such cases, we either remand or 

undertake the balancing ourselves where practical). United States v. Bailey, 840 F.3d 99, 

117 (3d Cir.), cert denied, 137 S. Ct. 839 (2017). It is also critical not to overlook the 

language of Rule 403 itself, which provides that the court may exclude relevant evidence 

if its probative value is “substantially outweighed” by the danger of unfair prejudice, 

confusing the issues, or misleading the jury. See, e.g., Blancha v. Raymark Indus., 972 

F.2d 507, 516 (3d Cir. 1993) (noting that Rule 403 should be used sparingly because 

evidence is concededly probative and balance should be struck in favor of admissibility).

Stoehr provides (as the government puts it) “definitive guidance” on the issue 

before us (Appellee’s Brief at 15), and the District Court accordingly looked to what it 

characterized as “the only clear precedent from the Third Circuit on this issue” (SA41). 

While obviously predating Rule 403 itself, our 1952 ruling appears to anticipate the rule’s 

basic approach to admissibility. In this tax evasion case, we observed that some courts 
3

have displayed increased liberality in prosecutions for crimes involving fraudulent intent 

with respect to the admission of the defendant’s subsequent statements and conduct. 

Stoehr, 196 F.2d at 282. We agreed with the principle expressed by Judge Learned Hand 

in Matot—“so long as evidence does not confuse the jury, its exclusion merely because 

of logical remoteness from the issue is always a hazard and is usually undesirable.” Id. 

(addressing United States v. Matot, 146 F.2d 197, 198 (2d Cir. 1944)). Such “a rule of 

liberality” does not render admissible every subsequent self-serving act of the defendant, 

and the district court must consider the circumstances of each individual case. Id. But 

the district court must ask: “Is the evidence of defendant’s subsequent mental state 

(which evidence is supplied by the subsequent act) of any probative value in establishing 

his state of mind at the time of the alleged criminal acts, and if so, does the evidence not 

unduly entangle the issues or confuse the jury?” Id. (citing 6 Wigmore on Evidence § 

1732). As the majority points out, this Court ultimately upheld the district court’s 

exclusion of evidence showing that, fifteen months after being confronted with his tax 

fraud, Stoehr offered to make a compromise payment in exchange for the release of all 

liability. Id. at 282-83. However, the Stoehr Court also noted that “evidence of a prompt 

amended filing and payment of additional tax might have been admissible.” (Maj. Op. at 

11.) “If the defendant here had promptly filed an amended return and made payment of 

the additional sum owed, we think such evidence might very well have been admissible.” 

Id. (discussing Heindell v. United States, 150 F.2d 493, 497 (6th Cir. 1945)). At the very 
4

least, Stoehr and its rule of liberality indicated that evidence of remedial actions should 

generally be admitted. 

In this case, the District Court essentially turned this precedent “on its head.” 

Initially, the District Court did “rely on Stoehr for its analysis.” (Id. at 9 n.3.) In addition 

to acknowledging our ruling as the only clear Third Circuit precedent on this issue and 

referencing our rule of liberality, it appropriately recognized that Stoehr “agrees with the 

principle, the principles behind this rule of liberality in allowing such evidence.” (SA41.) 

Evidence of a subsequent mental state “could have probative value in establishing the 

defendant’s state of mind at the time of the alleged criminal act.” (Id.) However, the 

District Court also referred to the absence of “a blanket exclusion of evidence of such 

subsequent mental state.” (Id.) More importantly, the District Court explained that the 

evidence “could have probative value” but “here the, similar to Stoehr, the lack of a 

timely filing of an amended return and the payment of such fines takes it out of the, takes

this case out of the exception that Stoehr might allow for such admissibility.” (SA42.) It 

thereby treated the admission of subsequent remedial actions as an exception, implying 

that there is a presumption against the admission of such evidence. Such an approach is 

contrary to our “rule of liberality,” the notion that the exclusion of such evidence merely 

because of logical remoteness is “always a hazard and is usually undesirable,” and our 

recognition of the fact that evidence of a promptly filed amended tax return and tax 
5

payment “might very well have been admissible.” Id. at 282-83 (footnote omitted). In 

other words, admission is the “rule”—and not the “exception.”

Similarly, the District Court never really addressed in its ruling the differences 

between the circumstances of Stoehr’s compromise offer, on the one hand, and 

Evdokimow’s subsequent filing of amended tax returns, his unconditional payment of his 

full tax liability, and his explanation for why it took at least seventeen months for him to 

take these particular remedial steps after he had received the subpoena, on the other hand. 

It is uncontested that whether a defendant acts promptly must be assessed based on the 

specific circumstances. See, e.g., id. at 282. While the majority points to the questions 

the District Court asked counsel during the hearing, the District Court never discussed or 

even acknowledged in its actual decision the evidence that Evdokimow “retained lawyers 

and accountants to assist him to identify his taxable income for the years 2005 through 

2013, and did so without the help of Sweeton, who refused to turn over financial 

documents to him” (Maj. Op. at 6). In contrast, Stoehr made his offer of compromise 

approximately fifteen months after “his newly retained accountant had informed him of 

the amount of taxes due the government.” Id. at 283. The District Court also failed to 

take into account the fact that Stoehr did not file an amended return—and did not actually 

pay the money he owed. Id. Instead, Stoehr made a compromise offer “in return for a 

release of ‘all criminal and/or civil liability’ for the years involved.” Id. at 282 (footnote 

omitted). Evdokimow paid the government—without any condition or other “strings 
6

attached”—his entire tax liability, including penalties and interest, amounting to 

$3,395,394.00. 

Taking into account the other side of the Rule 403 inquiry, I similarly conclude 

that the District Court did not undertake the requisite “on-the-record” balancing. I 

acknowledge that the District Court heard lengthy argument on this evidentiary question, 

engaged counsel on the issues of confusion and nullification (as well as probative value 

and Stoehr itself), and rendered a relatively lengthy ruling on the record (and returned to 

this question again in its denial of Evdokimow’s motion for reconsideration as well as its 

decision denying his motion for an acquittal or a new trial). Yet, given our rule of 

liberality and the probative value of his amended tax returns and tax payments, see, e.g., 

id. at 282-83 (“If the defendant here had promptly filed an amended return and made 

payment of the additional sum owed, we think such evidence might very well have been 

admissible.” (footnote omitted)), this is not a case where “a relatively minor risk of 

substantial undue prejudice should counsel against admitting [the evidence],” Bailey, 840 

F.3d at 119. The District Court, in turn, did not explain its concerns about jury confusion 

and nullification or articulate how such considerations substantially outweighed the

probative value of the evidence. See, e.g., Caldwell, 760 F.3d at 284 (“This statement 

[i.e., ‘because knowledge and intent are at issue here, they are more probative than 

prejudicial’ and ‘the probative value outweighs any prejudicial effect’] is nothing more 

than a bare recitation of Rule 403, with an added notation about the Court’s 
7

understanding that knowledge is at issue in the case.”). As to jury nullification, the 

District Court stated that “[i]t would simply be every criminal defendant’s option in a tax 

case to figure out what I should have paid a long time ago and pay it and just argue to the 

jury that I pay my taxes like anybody else.” (SA43.) However, it never explained why 

the district judge could not simply bar defense counsel from making such an 

unacceptable appeal to the jurors. Likewise, wouldn’t appropriate jury instructions be 

more than sufficient to guard against possible nullification and clear up any confusion 

regarding the applicable time period? In fact, the District Court instructed the jury as to 

the obligation to apply the law it gave to the facts. “You must apply the law that I give to 

you, whether you agree with it or not.” (SA2249.) The District Court also told the jury 

that, when it allowed evidence for a limited purpose only, “I instructed you to consider 

that evidence only for that limited purpose, and you must do that.” (SA2251.) The jury 

then could have been instructed that it “only consider subsequent [amended tax returns 

and tax payments] to the extent they bore upon the defendant’s state of mind when the 

[original] returns were filed—but that if the defendant possessed the required criminal 

intent at the time the false returns were filed, repayment would not absolve him.” 

(Appellant’s Reply Brief at 15 (citation omitted).)

In addition, Evdokimow asserts that the government made prejudicial comments 

in its closing argument by implying that his tax liability remained outstanding even 

though he had paid his outstanding taxes, penalties, and interest more than a year before 
8

his indictment.1 As the majority observes, “we first determine whether those remarks 

constituted misconduct.” Gov’t of the V.I. v. Mills, 821 F.3d 448, 456 (3d Cir. 2016) 

(citing United States v. Berrios, 676 F.3d 118, 134-36 (3d Cir. 2012); United States v. 

Lee, 612 F.3d 170, 194 (3d Cir. 2010)). At the very least, prosecutors “cannot make 

arguments unsupported by the record evidence.” United States v. Rivas, 493 F.3d 131, 

139 (3d Cir. 2007) (citing United States v. Dispoz-O-Plastics, Inc., 172 F.3d 275, 285 (3d 

Cir. 1999); United States v. Pelullo, 964 F.2d 193 (3d Cir. 1992)). The majority assumes 

arguendo that the government’s references “suggested or raised an inference that 

Evdokimow had never paid his taxes, and therefore amounted to misconduct” (and then 

decided that these comments did not result in an unfair trial amounting to a denial of due 

process). (Maj. Op. at 18.) However, I believe that the government’s comments did 

improperly suggest or imply that Evdokimow still had not paid his taxes—which was 

simply not true. After all, the government repeatedly referred to its loss and 

Evdokimow’s gain, e.g.:

“[H]e concealed approximately $5.8 million in taxable income from the 

IRS, and the scheme benefited him to the tune of millions of dollars” 

(SA2125); “Now, why did the defendant do this? Money. As a result of 

 

1 Evdokimow admits that he did not object below to some of the comments he 

now challenges on appeal. However, the government acknowledges that “Evdokimow 

argued that the language used by the Government insinuated to the jury ‘that the 

government missed out on taxes’ or ‘suffered and lost money,’ which was not true 

because Evdokimow amended his returns and paid those taxes.” (Appellee’s Brief at 43 

(quoting SA2177).) The District Court considered but rejected this argument on its 

merits. 
9

this scheme, he saved himself millions of dollars and had approximately 

$5.8 million of personal expenses spent” (SA2126); “they [Exhibits 111 

and 112] set forth tax loss numbers in this case” (SA2137); “there’s an 

additional tax owing of between $150,000 and $404,000, again, plainly a 

substantial tax loss” (SA2138); “[y]ou know from the fact that he’s the one 

who saved millions of dollars in taxes by underreporting the vast majority 

of his taxable income” (SA2139); and “he was lucky to have saved 

himself—to have had $5.8 million of his personal expenses paid and saved 

himself millions of dollars in taxes” (SA2168).

Such statements indicated that the loss and gain were permanent or at least on-ongoing in 

nature. The District Court itself expressed concern about the term “tax loss,” observing 

inter alia that “loss sounds more permanent than deficiency” and “[p]erhaps ‘loss’ is not a 

good word to use.” (SA2180-SA2181.)

Finally, I consider whether the erroneous exclusion of Evdokimow’s evidence of 

amended tax returns and tax payments as well as the inappropriate comments rise to the 

level of reversible error. Evidentiary rulings are subject to a harmless error standard of 

review. See, e.g., United States v. DeMuro, 677 F.3d 550, 557 (3d Cir. 2012). We must 

reverse unless it is highly probable that the error did not affect the result. See, e.g., id. 

As the majority notes, errors are harmless if “‘we have a sure conviction that the error did 

not prejudice the defendant,’” United States v. Stadtmauer, 620 F.3d 238, 266 (3d Cir. 

2010) (quoting United States v. Jannotti, 729 F.2d 213, 220 n.2 (3d Cir. 1984)), and we 

will not reverse when the record includes truly overwhelming evidence of guilt, see, e.g., 

United States v. Christie, 624 F.3d 558, 571 (3d Cir. 2010). However, I further note that 

it is not enough for us to find that it is more likely than not that the error was harmless. 
10

See, e.g., Jannotti, 729 F.2d at 220 n.2. According to the majority, any evidentiary error 

was harmless given the “overwhelming evidence that Evdokimow engaged in the tax 

fraud scheme willfully and the fact that Evdokimow was able to present a thorough goodfaith defense to the jury.” (Maj. Op. at 14). Similarly, it concluded that any misconduct 

by the government did not amount to a denial of due process on account of the 

comments’ relative lack of pervasiveness and severity, the jury instructions, and the 

weight of the evidence. 

I do not agree. Simply put, the District Court’s evidentiary ruling effectively 

gutted the defense he wished to present to the jury. The government must prove that the 

defendant acted willfully. See, e.g., Boulware v. United States, 552 U.S. 421, 424 n.2 

(2008). The District Court instructed the jury that “[w]illfully means a voluntary and 

intentional violation of a known legal duty.” (SA2268.) “The defendant’s conduct was 

not willful if he acted through negligence, mistake, accident, or due to a good faith 

misunderstanding of the requirements of the law” (id.). See, e.g., DeMuro, 677 F.3d at 

557. While the government did present a strong case against Evdokimow, there was 

clearly evidence to support his claim that he did not act willfully and was instead the 

victim of a scam perpetrated by Sweeton. “Evdokimow presented a thorough good-faith 

defense to the jury, which heard his account that he had deferred entirely to Sweeton for 

the preparation of his tax returns; that he had not looked closely at his returns and was 

unaware of any fraud until he received a subpoena; that he has since hired a new 
11

accountant; and that he cooperated with both the Government’s investigation and the 

earlier IRS audit.” (Maj. Op. at 13-14.) Obviously, evidence that he went so far as to file

amended tax returns and paid everything he owed the government once he had received 

the subpoena and was able to determine, with the help of lawyers and accountants but 

without the financial documents in Sweeton’s possession, his taxable income for the 

multiple years at issue could have tilted the case in his favor. At the very least, it is not 

“highly probable” that the exclusion of such evidence in these circumstances failed to 

affect the outcome of the trial. Similarly, the government’s comments implying that 

Evdokimow had not paid his taxes struck at the heart of this defense. Why would an 

innocent (if naïve) individual who had relied on the experience and expertise of the 

mastermind of the scheme fail to pay his taxes (which he does not dispute he owes) once 

the scheme came to light?

Finally, we should not overlook the unfair and even downright impossible position 

that resulted from the combination of the District Court’s evidentiary ruling and the 

government’s closing argument. The District Court granted the government’s motion to 

exclude evidence of the amended tax returns and tax payments. Having succeeded in 

keeping from the jury evidence of Evdokimow’s payment of his tax liability in its 

entirety, the government then indicated to the jury that Evdokimow still owed it money. 

In essence, the government was permitted to do what the defendant could not—look to 

what happened (or did not happen) after the defendant had received notice of the 
12

investigation. It then went even further by falsely implying that he had not paid his taxes. 

As Evdokimow aptly puts it, he “was caught in the perfect storm of these two related trial 

errors.” (Appellant’s Reply Brief at 25.) 

Accordingly, I would vacate Evdokimow’s conviction and remand for a new trial.