Reversal And Dismissal For Prosecutor’s Improper Argument And Insufficient Evidence

The United States Court of Appeals for the District of Columbia Circuit affirmed the conviction of a mother tried with her son in a tax fraud conspiracy case.

The son’s conviction was vacated and the case against him was dismissed. 

Upon consideration of the weakness of the evidence offered against Andre and its centrality to the issue of his mens rea, we conclude that the prosecutor’s blatant misstatements of key evidence during closing arguments, in the absence of any steps to mitigate the resulting prejudice, require reversal of Andre’s convictions. Further, we conclude that the evidence against Andre was insufficient and consequently he is not subject to retrial. Finally, finding no such prejudice from the closing arguments as to Sherri, and concluding her evidentiary challenges are unpersuasive, we affirm Sherri’s convictions but remand her case for resentencing and for consideration of her claims of ineffective assistance of counsel.

As to the son

Examination of the prosecutor’s closing arguments reveals multiple misstatements of this evidence and, given the gaps in the government’s evidentiary case, their prejudicial effect is readily apparent. For instance, the prosecutor told the jury that Andre personally designated the bank account into which tax preparation fees were deposited in 2013 and that Andre and Sherri made a “staggering amount of money” but failed to report such income in their individual tax returns. Trial Tr. 170 (Jan. 28, 2015). Even assuming that the first point is not false, because Andre’s designation of the bank account might be viewed as a reasonable inference from the TaxWise evidence, there is no evidentiary basis for the second, nor does the government point to any on appeal. The evidence of earnings and income reporting related only to Sherri’s receipt of fees and failure to accurately report her individual income to the IRS. There was no comparable evidence as to Andre. Not only was there no direct evidence Andre received fees for preparing and filing false returns, much less in “staggering amounts,” as the prosecutor told the jury, Trial Tr. 170 (Jan. 28, 2015), there was no evidence Andre under-reported his individual income on his tax returns. Lumping Andre together with Sherri in this manner was clearly prejudicial to Andre. The prosecutor also misleadingly minimized Sherri’s role in completing Jaycox’s 2012 return, telling the jury that Sherri only “came over to make sure it was okay, or something to that effect,” id. at 88, when Jaycox testified that Sherri “finalize[d]” his taxes and “finished everything else out” on his 2012 return. Trial Tr. 47, 80 (Jan. 22, 2015 (am)). 

But not for mother

In his final statement during rebuttal closing argument to the jury, the prosecutor told the jury that “Sherri Davis is not going to stop until somebody tells her to stop. Your job is to tell her to stop.” Trial Tr. 177 (Jan. 28, 2015). Because Sherri raised her objection that this statement constituted prosecutorial misconduct in moving for a new trial, our review is for abuse of discretion, see United States v. Vega, 826 F.3d 514, 529 (D.C. Cir. 2016), and we find none.

the evidence against Sherri was overwhelming, see supra Part I, and Sherri understandably does not challenge her convictions on the ground of insufficient evidence, see Reply Br. 28. Further, the prosecutor’s errant statement neither bolstered nor discredited any witness testimony, nor concerned a critical issue for which there was no evidence.

The court rejected an asserted Brady violation but remanded claims of ineffective assistance of counsel

Sherri contends that she was denied the effective assistance of counsel because trial counsel failed (1) to introduce into evidence the undercover videotapes of LaDonna preparing false tax returns for IRS agents; (2) to introduce a Facebook post by a taxpayer witness referencing business endeavors that purportedly suggest the claimed expenses on his returns were not false or, at least, that Sherri was unaware they were false; and (3) to request a mistrial following the prosecutor’s closing argument and to consult with her about making that request. Because the record does not conclusively demonstrate that Sherri is not entitled to relief, “further factual development” is necessary. United States v. Fareri, 712 F.3d 593, 595 (D.C. Cir. 2013). Although trial counsel moved for a new trial on the ground that the prosecutor’s argument was prejudicial and we affirm the district court’s denial of the motion, the district court should address Sherri’s third objection as well because our review was limited to determining whether the district court abused its discretion, not whether Sherri has demonstrated denial of her Sixth Amendment right to effective counsel.

NBC4 covered the conviction. (Mike Frisch)