United States Court of Appeals

For the Eighth Circuit

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No. 12-3436

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Gene Jirak

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the Northern District of Iowa, Waterloo

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 Submitted: May 17, 2013

 Filed: August 28, 2013

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Before SHEPHERD, BEAM, and MELLOY, Circuit Judges.

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BEAM, Circuit Judge.

Gene Jirak was convicted on five counts: (1) making a false claim for a tax

refund on January 9, 2009; (2) making a false claim for a tax refund on March 27,

2009; (3) uttering a forged treasury check on March 9, 2009; (4) mail fraud in January

2009; and (5) aggravated identity theft on January 9, 2009. He appeals his conviction
on multiple grounds. Having jurisdiction under 28 U.S.C. § 1291, we affirm the

district court on the substantive matters, but remand with instructionsthat the district

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court modify its written judgment to conform to its oral pronouncement of the special

condition of supervised release. 

I. BACKGROUND

During the time relevant to this action, from 2005 to 2009, Jirak resided in

Winneshiek County, Iowa, and was employed as a factory worker, earning between

$32,000 and $35,000 per year. Jirak was married to Jean Jirak, now known as Jean

Kingery ("Kingery"), until the two separated in November 2008, and divorced in July

2009. Together the couple's income amounted to approximately $42,000 per year. 

Between 2006 and 2008, they prepared joint tax returns using a tax preparer, Wayne

Miller. On the Jirak's 2005, 2006 and 2007 tax returns, the couple did not report

having earned taxable income from investments with financial institutions, nor did

they claim financial institutions withheld any income tax on their behalf. 

On January 9, 2009, Jirak filed a Form 1040X to amend the 2005 federal joint 2

tax return ("amended 2005 return" or "2005 amendment"). The amended 2005 return

appeared to be filed on behalf of Jirak and Kingery, asthe return contained Kingery's

name, social security number and her forged signature. Five 1099-OID Forms were 3

The Honorable Linda R. Reade, Chief Judge, United States District Court for

1

the Northern District of Iowa. 

Form1040X is used to report changes and corrections to a filed return. Treas.

2

Reg. § 301.6402-3.

A1099-OID Form "is used by issuers of debt obligations that have original 3

issue discount to report," Fed. Tax Coordinator ¶ S-3073 (2d ed. 2013), which "is a

reportable form of taxable interest based on the difference between the maturity and

issuance prices of a debt instrument." United States v. Marty, No. CIV S-09-0600,

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attached to the amended 2005 return, purportedly issued by four separate financial

institutions, indicating that each of the named financial institutions withheld income

tax due on various investments owned by or financial obligations owed by Jirak. 

Based on these five forms, Jirak claimed a refund in the amount of $56,999. Jirak did

not file a similar amendment with the State of Iowa. Kingery did not have knowledge

of the 2005 amendment and testified that she did not give Jirak permission to use her

name, social security number or signature.

On March 6, 2009, the Internal Revenue Service ("IRS"), failing to recognize

the nature of Jirak's return, issued a refund check in the amount of $69,139.07 (the

amount of the requested refund plusinterest). Upon receiving the check, Jirak forged

Kingery's signature and, on March 10, 2009, deposited it in a joint savings account

at Viking State Bank and Trust ("VSB"). VSB placed a hold on the check, despite

Jirak's protest. 

In March 2009, Kingery received a letter from the IRS alerting her to the 2005

amendment. Kingery called Jirak and inquired about the refund, to which he

responded it was none of her business and it did not concern her. Kingery also called

the Marine Credit Union, where she knew Jirak held an account, and requested that,

if Jirak deposited a refund check with her signature, it should not be cashed because

she did not sign the instrument. Kingery, again, phoned Jirak, who, at this point,

admitted he had already signed the check and deposited it at VSB. Kingery

confirmed with a VSB employee that Jirak deposited a treasury check, and after

viewing the check, Kingery signed an affidavit indicating that she did not sign it. 

VSB did not deposit the check to Jirak's account and returned it to the IRS. 

2009 WL 2365556, at *3 (E.D. Cal. July 29, 2009); see also Trial Tr. vol. 1 at 25

(Internal Revenue Service employee witness stating that the 1099-OID Form is used

to report the difference between the price for which a debt instrument is issued and

its stated redemption price at maturity). 

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As a result of Kingery's phone call with Marine Credit Union, Marine Credit

later informed Kingery that Jirak attempted to deposit a State of Iowa tax refund

check, made payable to Kingery. The state check, from the 2007 tax year, was

automatically issued as a federal offset, unrelated to the 2005 amendment, and was

sent to Kingery's former address where Jirak was living in March 2009. After

reviewing the check, Kingery signed an affidavit confirming that her signature was

forged.

As these events transpired, on February 14, 2009, Jirak met with Miller to

prepare his 2008 tax return. Jirak's W-2 Form indicated his income was $34,878 and,

during this meeting, Jirak did not provide Miller with any 1099-OID Forms, nor did

he indicate any other taxable income. Miller prepared and signed a federal tax return

that stated Jirak owed approximately $1,150 in taxes and a state return that showed

Jirak would receive a small refund. Jirak left Miller's office with the fully executed

state and federal returns, ready to be mailed. 

On March 27, 2009, Jirak electronically filed his 2008 federal taxes. Miller

testified that the paperwork filed was not the federal return he prepared. The 2008

tax return claimed three financial institutions withheld income tax due on Jirak's

alleged investments. Jirak reported his taxable interest was $72,289, and his reported

wages amounted to $34,878, entitling Jirak to a $53,787 refund. Jirak did not claim

the same on his 2008 state tax return, and filed the state return prepared by Miller. 

After being alerted of the nature ofJirak's 2005 amended return, the IRS did not issue

a 2008 refund. 

On January 23, 2012, following Jirak's indictment, his counsel filed a motion

seeking to determine Jirak's competency, which the court granted. But, due to Jirak's

lack of cooperation, the doctor was unable to offer a conclusion. Then, on February

21, 2012, the government also requested a competency evaluation and the evaluator

concluded Jirak had average intellectual functioning, with nomental disease or defect

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that rendered him unable to understand that nature and consequences of his trial. 

Jirak filed numerous pro se motions during the pretrial stage of his case. Specifically,

on May 1, 2012, Jirak filed a motion to dismiss his appointed counsel, which the

court granted on May 15, 2012. However, the court-appointed counsel continued as

standby counsel during the pendency of the case. 

Trial was scheduled to begin on June 18, 2012. On that day, during a pretrial

conference, Jirak notified the district court that he wanted standby counsel to

represent him at trial. The court continued the case until the next day and appointed

counsel as Jirak requested. The jury found Jirak guilty on all counts. On July 5,

2012, Jirak filed a motion for judgment of acquittal, asserting that the government

failed to present sufficient evidence to establish the elements of the crimes charged,

which the court denied. On July 27, 2012, Jirak again requested the district court

terminate his counsel. The court granted his motion and, again, counsel continued

in a standby capacity. On October 11, 2012, the court sentenced Jirak, proceeding

pro se, to a 45-month term of imprisonment and a three-year term of supervised

release. Now represented by appointed counsel, Jirak appeals. 

II. DISCUSSION

A. Sufficiency of the Evidence

Jirak challenges the sufficiency of the evidence as to all counts of his

conviction. We review the sufficiency of the evidence de novo, construing the

evidence in the light most favorable to the verdict and will only overturn the

conviction if no reasonable jury could find Jirak guilty beyond a reasonable doubt. 

United States v. Quevedo, 654 F.3d 819, 822 (8th Cir. 2011). First, Jirak asserts that

the government did not offer sufficient evidence to prove he made a false claim on

January 9, 2009, and on March 27, 2009, in violation of 18 U.S.C. § 287 (counts one

and two). To prove such a violation, the government must show, as the jury was

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instructed, that (1) Jirak made and presented to the United States Treasury

Department and the IRS a claim against the United States; (2) the claim was false,

fictitious or fraudulent; (3) Jirak knew the claim was false, fictitious or fraudulent;

and (4) that the claim was material to the United States Treasury Department and the

IRS. United States v. Refert, 519 F.3d 752, 757 (8th Cir. 2008); see also 18 U.S.C.

§ 287; Manual of Model Criminal Jury Instructions for the District Courts of the

Eighth Circuit § 6.18.287 (2013). The jury instructions also explained: 

A claim is "false" or "fictitious" if any part of it is untrue when made,

and then known to be untrue by the person making it or causing it to be

made. A claim is "fraudulent" if any part of it is known to be untrue,

and made or caused to be made with the intent to deceive the

governmental agency to which it is submitted.

Jury Instruction No. 13. 

The evidence indicates that Jirak presented two false, fictitious, or fraudulent

claims against the IRS. Testimony from representatives of the financial institutions

listed on the OID Forms indicated that Jirak did not have any interest-earning

accounts at those institutions; none of the financial institutions withheld the amounts

indicated on the forms; and none of the institutions prepared the OID Forms. Thus,

there wassufficient evidence for a reasonable jury to find the first two elements of the

§ 287 claims.

Jirak focuses his argument on appeal concerning counts one and two on the

third element, whether he knew the claims were false, fictitious, or fraudulent. 

Knowledge may be shown by circumstantial evidence alone and it turns, in large part,

on the credibility of the witnesses, which is "peculiarly within the province of the

factfinder." United States v. Erdman, 953 F.2d 387, 390 (8th Cir. 1992). The record

supports the jury's finding that Jirak knew the claims made on the 2005 amendment

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and the 2008 return were, at the very least, false or fictitious. Kingery testified that,

in previous years, Jirak participated in meetings with the tax preparer to file their joint

returns and knew they had no investments earning the alleged taxable income. Jirak

also signed and filed prior tax returns without claiming any similar investment

income. Even more telling, Jirak did not claim similar investments on his 2005 and

2008 state returns. With regard to Jirak's 2008 return, Miller completed a state and

federal return for Jirak, but Jirak did not file that completed federal return. Rather,

Jirak submitted a different, electronic return that contained the OID Forms. Finally,

Jirak's initial reluctance to tell Kingery of the amended 2005 return is indicative of

his knowledge. Taken together, these facts are sufficient to support the jury's finding

that Jirak knew the claims were false or fictitious.

Finally, with regard to materiality, a false claim is material if it has a tendency

to induce the government to act. United States v. Adler, 623 F.2d 1287, 1291 (8th

Cir. 1980). The evidence shows that, based on the 2005 amendment, the IRS did in

fact issue a refund, supporting the materiality of the claim. Because the 2008 tax

return made claims similar to those on the 2005 amendment, it isreasonable for a jury

to conclude that the false claims were of the type that would induce the government

to act. Thus, there was sufficient evidence for a reasonable jury to find that the

claims were material, and therefore, find Jirak guilty of the § 287 counts. 

Next, Jirak challenges the sufficiency of the evidence as to the intent element

on the remaining three charges–uttering a false treasury check, mail fraud, and

aggravated identitytheft–asserting that the government failed to prove thatJirak acted

with an intent to defraud. Jirak essentially argues that the "jury failed to consider

. . . [that] Jirak took the check . . . issued by the IRS and attempted to deposit [it] in

an account still jointly held by his wife." On appeal, however, we do not weigh the

credibility of evidence. United States v. Louper-Morris, 672 F.3d 539, 555 (8th Cir.

2012). 

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With regard to count three, uttering a false treasury check in violation of 18

U.S.C. § 510(a)(2), there was sufficient evidence for a reasonable jury to conclude

Jirak acted with an intent to defraud when he attempted to deposit the check issued

by the United States Treasury Department in the amount of $69,139.07 after forging

Kingery's signature. See United States v. Jaynes, 75 F.3d 1493, 1499 (10th Cir. 4

1996) ("An intent to defraud the United States may be shown by an act which the

actor knows will interfere with the government'sregular payment of funds to a lawful

recipient." (quotation omitted)). As discussed above, Jirak presented the amended tax

return using Kingery's name and social security number without her knowledge or

permission. Once Jirak received the treasury check, he did not consult Kingery and

forged her signature. See id. ("Signing a check in a name other than one's real name

tends to establish fraudulent intent."). Further, when Kingery inquired about the

amended return, Jirak told her it was none of her business and that it did not concern

her. 

Likewise, the evidence was sufficient for a reasonable jury to find Jirak guilty

of count four, mail fraud in violation of 18 U.S.C. § 1341. Jirak asserts that the

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government was required to show Jirak made "a scheme to defraud another out of

money, in this case [Kingery], and used the mail to carry out the scheme." Jirak

believes that because he attempted to deposit the money in an account that he owned

Uttering a false treasury check requiresthe government to prove (1) that Jirak 4

passed a United States Treasury check; (2) that the check bore a forged or falsely

made endorsement; (3) that Jirak passed the check with the intent to defraud; and (4)

thatJirak acted knowingly and willfully. United States v. Rosario, 118 F.3d 160, 163

(3d Cir. 1997). 

Mail fraud requires the government to prove "(1) a scheme to defraud by 5

means of material false representations or promises, (2) intent to defraud[,] (3)

reasonable foreseeability that the mail would be used, and (4) the mail was used in

furtherance of some essential step in the scheme." United States v. Parker, 364 F.3d

934, 943 (8th Cir. 2004).

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jointly with Kingery, he lacked the necessary intent to defraud. Jirak misplaces the

victim of his fraud here–the victim of Jirak's scheme was the government, not

Kingery. Rather, sufficient evidence established, as the government was required to

prove, that Jirak violated § 1341 when he sent, through the mail, the amended 2005

return, which falsely represented the tax refund amount. See DeMier v. United

States, 616 F.2d 366, 369 (8th Cir. 1980) ("It is enough if [the defendant is] actuated

by an intention to defraud the persons to whom the false statements are made."

(alteration in original and quotation omitted)). Based on the evidence that Jirak

completed and filed a 2005 tax return, but chose to later amend it, misrepresenting the

types of income received from fictitious investments, there was sufficient evidence

for a reasonable jury to infer that Jirak acted with an intent to defraud. United States

v. Behr, 33 F.3d 1033, 1035 (8th Cir. 1994) ("Direct evidence of intent . . . is not

required; the requisite intent may be inferred from all the facts and circumstances

. . . . ). 

 

Finally, asrelated to count five, aggravated identity theft, Jirak's argument that

the evidence did not establish an "intent to defraud" likewise fails because the

government was not required to prove an "intent to defraud" on this count. United

States v. Hines, 472 F.3d 1038, 1039 (8th Cir. 2007) (per curiam) ("To support a

conviction for aggravated identity theft, the government must prove that the

defendant (1) knowingly used (2) the 'means of identification' of another person (3)

without lawful authority (4) during and in relation to a violation of 42 U.S.C. §

408(a)(7)(B) (misuse of a social security number)."). After reviewing the record

evidence, we conclude there was sufficient evidence for a reasonable jury to find

Jirak guilty of aggravated identity theft. 

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B. Motion in Limine

Prior to trial, the government filed three motions in limine, and relevant here,

the third motion sought to bar admission of evidence of "alleged reliance on the tax

advice [Jirak] received." On appeal, Jirak challenges the district court's decision to

grant the third motion in limine, asserting that his intent in offering such evidence

was to show that he made the relevant filings in good faith. Jirak attempted to offer

evidence illustrating the advice he received from a purported tax service company

known as Liberty Tree. The district court excluded the evidence, reasoning that it

was irrelevant under Federal Rule of Evidence 402 because it was so unreasonable

it could not support a good faith reliance defense and that the evidence was

inadmissible pursuant to Rule 403 because it presented a danger of confusing the

issues for the jury, would cause undue delay and a waste of time. "We review the

district court's evidentiary rulings, including its ruling on motions in limine, for an

abuse of discretion." United States v. Parish, 606 F.3d 480, 486 (8th Cir. 2010).

Jirak insists that a defendant in a criminal tax trial "must be permitted to

present evidence showing what he believed the law to be at the time of his alleged

criminal conduct." Jirak contends Cheek v. United States, 498 U.S. 192 (1991),

advances his argument. Cheek, however, is distinguishable fromthis case. In Cheek,

the petitioner was charged with six counts of willfully failing to file federal income

tax returns in violation of 26 U.S.C. § 7203 and three counts of willfully attempting 

to evade income taxes in violation of 26 U.S.C. § 7201. 498 U.S. at 194. The

petitioner's defense in Cheek was that he sincerely believed that the tax laws were

unconstitutionally enforced, thus he acted without the required willfulness. Id. at

196. The Supreme Court recognized that Cheek turned on the definition of

willfulness in 26 U.S.C. §§ 7201 and 7203. Id. at 194. The Court concluded that

willfulness required proof of "voluntary, intentional violation of a known legal duty." 

Id. at 201. The Court further clarified that willfulness requires that the defendant is

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aware of the duty, but that the defendant cannot be aware of the duty where there is

a good faith misunderstanding, regardless of whether or not that misunderstanding

is objectively reasonable. Id. at 202. The Court did, however, distinguish a

defendant's good faith belief that he was acting within the law from a defense based

on the defendant's views that the tax laws are unconstitutional or otherwise invalid,

the latter of which does not support a good faith defense. Id. at 205-06. 

Unlike the crimes charged in Cheek, 18 U.S.C. § 287 does not require

"willfulness." As the Court in Cheek noted, "[t]he general rule that ignorance of the

law or a mistake of law is no defense to criminal prosecution is deeply rooted in the

American legal system," and Congress can soften the impact of this common law

presumption by making "specific intent to violate the law an element" of the crime. 

498 U.S. at 199-200. Congress has not done so here. Thus Cheek does not persuade

us to conclude that evidence of a good faith belief defense is relevant. See United

States v. Hildebrandt, 961 F.2d 116, 118-19 (8th Cir. 1992) (concluding Cheek did

not mandate a good faith defense instruction because its holding was premised on the

complexity of the tax laws, and the defendant in Hildebrandt was convicted under a

statute similar to § 287–18 U.S.C. § 1001).

Moreover, Jirak asserts that he should have been allowed to present the

evidence that he relied on LibertyTree because "[g]ood faith reliance on an expert tax

preparer may be a defense to a tax evasion charge, but only if the taxpayer makes

complete disclosure of all the relevant facts." United States v. Meyer, 808 F.2d 1304,

1306 (8th Cir. 1987) (citation omitted). Jirak, however, was not charged with tax

evasion nor even charged under the Internal Revenue Code. But even assuming,

without holding, that reliance on an expert tax preparer is a valid defense to the § 287

claims here, the district court did not abuse its discretion in excluding the evidence

as unreasonable, because the advice received was not from an expert tax preparer, as

it was not from an attorney or an accountant. McGraw v. C.I.R., 384 F.3d 965, 973

(8th Cir. 2004) ("Good faith reliance on expert advice of a tax preparer (i.e., an

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attorney or accountant) may be a defense . . . ."). Nor did Jirak offer evidence

indicating he gave the purported expert complete disclosure, asrequired. Meyer, 808

F.2d at 1306 (noting the defense is only available if the taxpayer made complete

disclosure of all of the relevant facts). The evidence offered did not establish the

elements of the defense, and thus the district court did not abuse its discretion here. 

See United States v. Luker, 395 F.3d 830, 833 (8th Cir. 2005) (upholding the grant

of a motion in limine to exclude evidence intended by the defendant to establish a

defense, where the defendant's proffered evidence failed to satisfy the necessary

prerequisites of the defense).

C. Motions to Continue 

Jirak assertsthat the court abused its discretion in denying his multiple motions

to continue the trial because it failed to adequately consider the fact that he was

proceeding pro se, and, thus, he did not have adequate time to prepare the case. We

review a district court's denial of a request for continuance for an abuse of discretion

and will only reverse if the moving party was prejudiced by the denial. United States

v. Cotroneo, 89 F.3d 510, 514 (8th Cir. 1996). "District courts are afforded broad

discretion when ruling on requests for continuances," but "[c]ontinuances generally

are not favored and should be granted only when the party requesting one has shown

a compelling reason." Id. 

Jirak was initially indicted on November 16, 2011, and proceeded with

appointed counsel until May 15, 2012. After thatJirak moved to continue twice, both

of which were denied. Jirak had over one month to prepare for trial, however, which

wassufficient time in this case. Further, on appeal, Jirak does not offer any argument

as to how he was prejudiced by the denial, and we see none. Because his appointed

counsel remained as standby counsel while Jirak proceeded pro se, counsel was

adequately informed and able to represent Jirak at trial. Thus, the district court did

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not abuse its broad discretion here. See United States v. Thurmon, 368 F.3d 848, 852

(8th Cir. 2004) (noting the district court did not abuse its discretion because the

appellant failed to show he suffered prejudice).

D. Special Condition of Supervised Release

Finally, Jirak assertsthat the sentencing court abused its discretion in imposing

a "total ban" on his contact with his children as a condition of supervised release. 

Generally, we review "the imposition of special conditions for abuse of discretion,

but when a defendant has failed to properly object to the imposition of the condition

at the sentencing hearing," we review for plain error. United States v. Roberts, 687

F.3d 1096, 1100 (8th Cir. 2012). The parties disagree on our standard of review, but

we need not decide which standard applies here, asthe result isthe same under either

standard. See United States v. Camp, 410 F.3d 1042, 1044 (8th Cir. 2005). 

As the government acknowledges, the sentencing court did not impose a "total

ban" on Jirak's contact with his children, but there is a discrepancy between the oral

pronouncement of the condition of supervised release and the written judgment. At

sentencing, the court imposed a special condition stating, "you are to have no contact

during your term of imprisonment or your term of supervised release with [Kingery]

and her family members in person or by a third-party." The written judgment,

however, stated that Jirak "shall have no contact during [his] term of imprisonment

or [his] term ofsupervision with [Kingery] and their family members, in person or by

a third party." Because of this discrepancy, Jirak reads the condition of supervised

release as implementing a total ban on his contact with his children. 

The transcript of the sentencing hearing indicates that the court did not intend

to impose such a ban, but rather intended to ban Jirak's contact with Kingery. The

court noted that Jirak would "have to work through another family member and have

that family member be the intermediary between [his] ex-wife and [himself] to

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arrange visitation with [his] children" and went on to state that "the Probation Office

will work with [Jirak] in helping [him] set up a mechanism by which [he] can arrange

to have visitation with [his] children." Given this colloquy, and because where an

"oral pronouncement and written judgment conflict, the oral sentence controls," we

remand with instructions to amend the written judgment to conform to the oral

pronouncement ofspecial condition two. United States v. Morais, 670 F.3d 889, 895

(8th Cir.), cert. denied, 133 S. Ct. 311 (2012). 

III. CONCLUSION

The judgment of the district court is affirmed, but we remand with instructions

that the district court modify its written judgment to conform to its oral

pronouncement of special condition two of supervised release. 

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