[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
May 15, 2008
No. 07-11312 THOMAS K. KAHN
Non-Argument Calendar CLERK
D. C. Docket No. 06-60062-CR-WPD
UNITED STATES OF AMERICA,
ELLIS JEROME PARKER, SR.,
Appeal from the United States District Court for the Southern District of Florida
(May 15, 2008)
Before CARNES, MARCUS and WILSON, Circuit Judges.
This is Ellis Jerome Parker, Sr.'s appeal of his convictions for conspiring to
procure, prepare, and file false income tax returns in violation of 18 U.S.C. § 371
and assisting in procuring, preparing, and filing false income tax returns in
violation of 26 U.S.C. § 7206(2). Parker also appeals his sixty-month prison
sentence. At trial, Parker represented himself, but he is represented by counsel in
Parker first contends that he did not knowingly, voluntarily, and intelligently
waive his right to counsel. Parker emphasizes that he had no working knowledge
of the rules of procedure or evidence and that the case was complicated.
Whether a defendant "validly waived his right to counsel . . . is a mixed
question of law and fact, which we review de novo. On direct appeal, the
government bears the burden of proving the validity of the waiver." United States
v. Evans, 478 F.3d 1332
, 1340 (11th Cir.) (internal quotation marks and citation
omitted), cert. denied, 128 S. Ct. 257
"A criminal defendant has a constitutional right to represent himself when he
knowingly, voluntarily, and intelligently elects to do so. For a waiver of the Sixth
Amendment right to be valid, the defendant must clearly and unequivocally assert
[his] right of self-representation. Before the court grants the defendant's request,
the court must make the defendant aware of the dangers and disadvantages of
[End Page 2]
self-representation, so that the record will establish that he knows what he is doing
and his decision is made with his eyes open." Id. (internal quotation marks and
citation omitted; alteration in original). "The purpose of a Faretta [v. California,
422 U.S. 806
, 95 S. Ct. 2525
(1975)] inquiry is not to determine the extent of a
defendant's legal knowledge or to determine how good of a trial advocate a
defendant will be." United States v. Kimball, 291 F.3d 726
, 731 (11th Cir. 2002).
The district court is not required to ask or determine whether the defendant
understands any particular rules of evidence or procedure; we need "only to
determine whether [the defendant] understood that rules do exist to govern the
procedure of a trial, the introduction of evidence and the behavior of advocates and
to determine whether [the defendant] understood that he would be bound by those
After Parker unequivocally expressed his desire to represent himself, the
district court gave him the required Faretta warnings and held an evidentiary
hearing on his request to represent himself. At that hearing Parker testified that he
had studied the law at the city law library and had extensively reviewed the facts of
his case and the legal issues involved. He also testified that he held a doctoral
degree, was in good mental health, and did not take any medication. The record
reflects that Parker was aware that rules existed governing the course of the trial
[End Page 3]
and the admission of evidence, and that he knew he would be bound by these rules.
The district court also appointed stand-by counsel to help Parker if the need arose
at trial and he requested assistance. The district court found that Parker knowingly,
voluntarily, and intelligently waived his right to counsel. We agree. The fact that
Parker did not actually know the rules of procedure or evidence does not make his
waiver any less knowing, voluntary, or intelligent under Faretta. See id.
Parker next contends that the district court abused its discretion by
instructing the jury at the start of trial that it would not allow the trial transcript to
be read back to the jury. Parker argues that the district court erred by unilaterally
giving this instruction without consulting with him and offering him a chance to
object to it.
A district court has broad discretion to decide what access, if any, a jury will
have to trial transcripts. See United States v. Delgado, 56 F.3d 1357
, 1370 (11th
Cir. 1995); United States v. Loyd, 743 F.2d 1555
, 1567 (11th Cir. 1984). The
district court did not abuse its discretion by informing the jury that trial transcripts
would not be read back to it. The jury never indicated that it was interested in
having that done, and in any event, Parker does not argue that he was prejudiced by
the district court's instruction. See Fed. R. Crim. P. 52(a). [End Page 4]
Parker also contends that the district court abused its discretion and violated
his rights under the Sixth Amendment's Confrontation Clause by not permitting
him to conduct recross-examination of one witness and by limiting his cross-
examination of another. Parker argues that the government elicited new
information from Esai Ambo on redirect pertaining to whether Parker had
personally falsified tax returns. He also argues that the district court should have
permitted him to further cross-examine Sharon Pierce regarding the nature of their
alleged conspiratorial agreement.
We review the district court's evidentiary rulings only for an abuse of
discretion. United States v. Taylor, 17 F.3d 333
, 340 (11th Cir. 1994). The district
court must, however, exercise its discretion within the boundaries of the Sixth
Amendment. Id. "[O]nce there is sufficient cross-examination to satisfy the Sixth
Amendment's Confrontation Clause, further questioning is within the district
court's discretion." Id. Where, as is the case here, no objection is made at the trial,
we review the district court's rulings only for plain error. United States v.
Arbolaez, 450 F.3d 1283
, 1291 (11th Cir. 2006); see also United States v. Edouard,
485 F.3d 1324
, 1343 (11th Cir.), reh'g and reh'g en banc denied, 254 Fed. Appx.
803 (11th Cir. 2007). We may correct plain error if there is (1) error, (2) that is
[End Page 5]
plain, and (3) that affects substantial rights, but only if (4) the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings.
Arbolaez, 450 F.3d at 1291.
The Confrontation Clause provides that "[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against him."
U.S. Const. Amend. VI. It guarantees criminal defendants an opportunity to
impeach, through cross-examination, the testimony of witnesses for the
prosecution. United States v. Baptista-Rodriguez, 17 F.3d 1354
, 1366 (11th Cir.
1994). "The importance of full cross-examination . . . increases where . . . the
witness is the star government witness or participated in the crimes for which the
defendant is being prosecuted." Taylor, 17 F.3d at 340. "As opposed to
cross-examination, a defendant has no constitutional right to recross-examination.
A defendant nonetheless does have a limited right to recross-examination where a
new matter is brought out on redirect examination." United States v. Ross, 33 F.3d 1507
, 1518 (11th Cir. 1994) (citation omitted). For that reason, allowing redirect
examination on new material but denying cross-examination on the same material
may violate the Confrontation Clause. Id.
The district court did not plainly err in limiting Parker's examinations of
Ambo and Pierce. The "new" information Parker identifies in Ambo's testimony
[End Page 6]
on redirect examination had actually already been elicited during his original direct
examination. As a result, Parker had no right to recross-examine Ambo. See id.
Additionally, the district court was not required to permit Parker to ask Pierce the
same question again where she had already provided a full and clear answer.
Next, Parker contends that the district court should have granted his motion
for a judgment of acquittal because there was no evidence showing a "specific
"˜agreement'" between Parker and others to prepare fraudulent tax returns. Parker
argues that he did not personally prepare the twelve tax returns at issue at trial, that
he did not receive any personal financial benefit from the tax refunds, and that the
government's case was based primarily on the testimony of cooperating co-
We review de novo sufficiency of the evidence claims. United States v.
Anderson, 289 F.3d 1321
, 1325 (11th Cir. 2002). This "standard of review is
stacked in the government's favor." United States v. Moore, 504 F.3d 1345
(11th Cir. 2007); see also United States v. Robertson, 493 F.3d 1322
, 1329 (11th
Cir. 2007) ("We view the evidence in the light most favorable to the government
and resolve all reasonable inferences and credibility evaluations in favor of the
jury's verdict. The evidence need not exclude every reasonable hypothesis of
[End Page 7]
innocence or be wholly inconsistent with every conclusion except that of guilt,
provided that a reasonable trier of fact could find that the evidence established guilt
beyond a reasonable doubt." (internal citations and quotation marks omitted)).
"In order to sustain a conviction under 18 U.S.C. § 371, the government
must show (1) the existence of an agreement to achieve an unlawful objective;
(2) the defendant's knowing and voluntary participation in the conspiracy; and
(3) the commission of an overt act in furtherance of the conspiracy." United States
v. Brenson, 104 F.3d 1267
, 1281""82 (11th Cir. 1997). A defendant is guilty of
violating 26 U.S.C. § 7206(2) where he (1) willfully and knowingly aided or
assisted (2) in the preparation or filing of a federal income tax return (3) that
contained material statements that the defendant knew to be false. 26 U.S.C.
§ 7206(2); see also United States v. Searan, 259 F.3d 434
, 441 (6th Cir. 2001).
"The existence of a conspiratorial agreement may be established through
either direct or circumstantial evidence, such as inferences from the conduct of the
alleged participants. In fact there is rarely any direct evidence of any agreement to
join a conspiracy, and thus, the defendant's assent can be inferred from acts that
furthered the conspiracy's purpose." Brenson, 104 F.3d at 1282 (internal quotation
marks and citations omitted).
Whether cooperating government witnesses who testify against a defendant
[End Page 8]
are telling the truth is a decision for the jury that, once made, we will not disturb.
United States v. Calderon, 127 F.3d 1314
, 1325 (11th Cir. 1997); see also Price v.
Time, Inc., 416 F.3d 1327
, 1345 (11th Cir. 2005) ("Legions of criminal defendants
have been found guilty beyond a reasonable doubt on the testimony of witnesses
who had everything to gain from implicating the defendants in crimes."); United
States v. Lowery, 166 F.3d 1119
, 1123""24 (11th Cir. 1999) (noting that the
testimony of co-conspirators in return for sentencing considerations is a common
place feature of criminal trials that "happens every work day in federal trial courts
around this country"); United States v. Hewitt, 663 F.2d 1381
, 1385 (11th Cir.
1981) (noting that acquittal is not required where "the government's case includes
testimony by "˜an array of scoundrels, liars and brigands'").
The evidence was more than sufficient to sustain Parker's convictions.
Several former clients of Parker's tax preparation service testified that their returns
were prepared based on false and inflated expense information that they did not
provide to Parker and his tax preparers. Ambo, Nanita Edwards, and Pierce all
testified that they: (1) followed Parker's instructions to falsify clients' expenses in
preparing clients' tax returns; (2) used expense lists created by Parker for the same
purpose; (3) observed Parker personally fabricate expense lists; and (4) heard
Parker say that the purpose of this activity was to get as much money for their
[End Page 9]
clients as possible. This evidence was sufficient to allow the jury to infer that
Parker came to an agreement to aid in the preparation and filing of fraudulent tax
returns. See Robertson, 493 F.3d at 1329.
Parker's next contention is that his trial was fundamentally unfair because
the district court permitted testimony about his twenty year long extra-marital
affair with Edwards. Parker argues that this line of questioning was irrelevant and,
even if relevant, was so unfairly prejudicial that it should not have been allowed.
The district court permitted the testimony to demonstrate Edwards' familiarity with
Parker's handwriting and to rebut the testimony of one of Parker's character
We will not reverse a defendant's conviction and order a new trial on the
basis of an evidentiary error unless that error affected the defendant's substantial
rights, which means that the error must have affected the outcome of the
proceedings. See United States v. De La Garza, 516 F.3d 1266
, 1269 (11th Cir.
2008); see also Fed. R. Evid. 103(a).
Evidence is relevant if it has "any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence." Fed. R. Evid. 401. "Although
[End Page 10]
relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice." Fed. R. Evid. 403.
Even if we were to conclude that the district court erred in allowing
testimony concerning Parker's affair with Edwards, he would not be entitled to a
new trial because he has not shown that his substantial rights were affected. There
was overwhelming evidence that Parker conspired with others to prepare and file
false tax returns. In addition to Edwards' identification, Ambo and Pierce also
identified Parker's handwriting and there was a lot of other testimony, which we
have already recounted, to support his conviction.
Parker also contends that he is entitled to a new trial on the ground that the
government's lawyer committed several acts of prosecutorial misconduct.
Generally, we review de novo claims of prosecutorial misconduct, which are a
mixed questions of law and fact. United States v. Eckhardt, 466 F.3d 938
(11th Cir. 2006), cert. denied, 127 S. Ct. 1305
(2007). However, absent a
contemporaneous objection, we review allegations of prosecutorial misconduct
only for plain error. United States v. Newton, 44 F.3d 913
, 920 (11th Cir. 1995).
"In the absence of any controlling precedent, there is no plain error in [a] case."
United States v. Lejarde-Rada, 319 F.3d 1288
, 1291 (11th Cir. 2003). "To find
[End Page 11]
prosecutorial misconduct, a two-pronged test must be met: (1) the remarks must be
improper, and (2) the remarks must prejudicially affect the substantial rights of the
defendant." United States v. Eyster, 948 F.2d 1196
, 1206 (11th Cir. 1991). To
meet the substantial prejudice prong, the improper comments must have "so
infect[ed] the trial with unfairness as make the resulting conviction a denial of due
process." Id. (internal quotation marks omitted). "In order to assess the
prejudicial impact of a prosecutor's statements, we must evaluate them in the
context of the trial as a whole and assess their probable impact on the jury."
United States v. Hernandez, 145 F.3d 1433
, 1438 (11th Cir. 1998). "Because
statements and arguments of counsel are not evidence, improper statements can be
rectified by the district court's instruction to the jury that only the evidence in the
case be considered." United States v. Smith, 918 F.2d 1551
, 1562 (11th Cir.
Parker first argues that the government's attorney engaged in prosecutorial
misconduct during its closing argument when the attorney stated that: (1) there
was nothing to rebut in Parker's closing argument; (2) the government's evidence
hadn't been rebutted; (3) Parker, who had not testified at trial, had lied; (4) the jury
should consider Ambo's testimony to determine whether Ambo or Parker was
[End Page 12]
lying; and (5) Parker had not challenged Pierce's identification of Parker's
handwriting. Parker argues that these comments were improper because the
government bears the burden of proof, and prosecutors may not make arguments
that shift the burden to the defendant.
We disagree. The government's comments that its evidence was not
rebutted did not have the effect of shifting the burden of proof because both the
government and the district court repeatedly reminded the jury that the government
alone bore the burden of proof, and that Parker did not have to prove anything.
See United States v. Paul, 175 F.3d 906
, 912 (11th Cir. 1999).
Parker also argues that the government's comments about how Ambo had
testified and how the government's evidence was uncontradicted, undenied,
unrebutted, undisputed, unchallenged, and uncontroverted improperly highlighted
Parker's decision not to testify at his trial.
The government impermissibly comments on the defendant's failure to
testify where "(1) the statement was manifestly intended to be a comment on the
defendant's failure to testify; or (2) the statement "˜was of such a character that a
jury would naturally and necessarily take it to be a comment on the failure of the
accused to testify.'" United States v. Knowles, 66 F.3d 1146
, 1162""63 (11th Cir. [End Page 13]
1995). "[A] comment by the prosecutor on the failure by defense counsel, as
opposed to the defendant, to counter or explain evidence does not violate a
defendant's Fifth Amendment right not to testify." Hernandez, 145 F.3d at 1439.
Here, Parker was acting as defense counsel, so there was no plain Fifth
Amendment violation in the government's comments on Parker's failure to rebut
its evidence. See Hernandez, 145 F.3d at 1439; Lejarde-Rada, 319 F.3d at 1291.
The government's comments about Parker's failure to rebut its case would not
naturally and necessarily be taken by the jury as a comment on his decision not to
testify. See Knowles, 66 F.3d at 1162""63.
In addition, Parker argues that the government launched an impermissible
character attack on him by calling him a liar and a thief, and by stating that he
hated the IRS and had treated witnesses with contempt. We disagree. The
statements were all based on the evidence, and even if they had been inappropriate,
Parker would not be entitled to a new trial. He did not object to those comments at
the time they were made, and he cannot show prejudice from the remarks because
of the overwhelming evidence of his guilt. See De La Garza, 516 F.3d at 1269.
Parker also argues that the government vouched for the veracity of its own
[End Page 14]
witnesses by discussing how they had met with the government and told the
government the same things they had testified to at trial.
"When reviewing a defendant's "˜vouching' claim, we examine whether
(1) the prosecutor placed the prestige of the government behind the witness by
making explicit personal assurances of the witness's credibility, or (2) the
prosecutor implicitly vouched for the witness's credibility by implying that
evidence not formally presented to the jury supports the witness's testimony."
United States v. Arias-Izquierdo, 449 F.3d 1168
, 1177""78 (11th Cir. 2006).
We conclude that the government did not improperly vouch for its
witnesses. During his closing argument, Parker accused the witnesses of having
rehearsed their testimony so that they would all be a "choir" singing the same tune.
Accordingly, it was not plain error for the district court to allow the government to
rebut this argument by asserting that there was no such rehearsal and that the
witnesses' statements had not changed since they were first interviewed by the
government. See United States v. Smith, 700 F.2d 627
, 634 (11th Cir. 1983).
Parker next contends that the district court improperly instructed the jury
that seeking the truth was their only interest, which invited the jurors to convict on
proof less than that beyond a reasonable doubt. Where there was no objection to a
[End Page 15]
jury instruction at trial, we review only for plain error. United States v. Wright,
392 F.3d 1269
, 1277 (11th Cir. 2004).
With the possible exception of the final sentence regarding seeking the truth,
the district court's instruction was an unquestionably accurate statement of the
government's burden of proof. Because the district court otherwise properly
instructed the jury about reasonable doubt, and even interrupted the government's
closing argument to remind the jury of this standard, we are not persuaded that the
supplemental instruction's admonition to "˜seek the truth' undermined the jury's
understanding of the district court's instruction on reasonable doubt. Even if there
were error, it is not plain.
Parker also contends that, even if the individual effects of the issues we have
already dealt with were insufficient to warrant reversal, their cumulative effect
"[T]he "˜cumulative effect' of multiple errors may so prejudice a defendant's
right to a fair trial that a new trial is required, even if the errors considered
individually are non-reversible." United States v. Thomas, 62 F.3d 1332
(11th Cir. 1995). We address a claim of cumulative error by first considering the
validity of each claim individually, and then examining any errors in the aggregate
[End Page 16]
and the trial as a whole to determine whether the appellant was afforded a
fundamentally fair trial. United States v. Calderon, 127 F.3d 1314
, 1333 (11th Cir.
As we have already explained, we are not convinced that the district court
erred or plainly erred with respect to any of the issues Parker raises. Even if the
district court did err, none of those errors separately or cumulatively necessitate a
new trial given the strength of the evidence against Parker.
Finally, Parkers raises several contentions relating to his sentence. He first
argues that the district court violated the Sixth Amendment by making the findings
of fact necessary to support the application of guidelines enhancements based on
the amount of loss and Parker's role in the offense. Parker acknowledges that this
argument is foreclosed by binding circuit precedent, but he invites us to reconsider
our holding in United States v. Chau, 426 F.3d 1321
(11th Cir. 2005), in light of
Cunningham v. California, 549 U.S. 270
, 127 S. Ct. 856
(2007). In Chau, we
concluded that the "use of extra-verdict enhancements in an advisory guidelines
system is not unconstitutional." Chau, 426 F.3d at 1321 (quoting United States v.
Rodriguez, 398 F.3d 1291
, 1301 (11th Cir. 2005)). We decline Parker's invitation
because we are bound by Chau under our prior panel precedent rule. See Main
[End Page 17]
Drug, Inc. v. Aetna U.S. Healthcare, Inc., 475 F.3d 1228
, 1230 (11th Cir. 2007).
Cunningham does not require us to revisit our earlier decision in Chau because it
concerned a non-advisory sentencing system. See Cunningham, 549 U.S. at
127 S. Ct. at 870.
Parker also argues that the district court clearly erred in determining the
amount of loss for which he was responsible because it failed to reduce the amount
to take into account the taxpayers repayment of the amount of the fraud. Where, as
is the case here, there is a tax loss, a defendant's base offense level under United
States Sentencing Guidelines § 2T1.4 (Nov. 2006) is taken from the tax table found
in U.S.S.G. § 2T4.1. For a tax loss of more than $1,000,000 but less than
$2,500,000, the base offense level is 22. U.S.S.G. § 2T4.1(I). "Tax loss" is
defined in U.S.S.G. § 2T1.1, and if the offense involved a fraudulent or false tax
return the tax loss includes "the total amount of loss that was the object of the
offense," U.S.S.G. § 2T1.1(c)(1). Further, "[t]he tax loss is not reduced by any
payment of the tax subsequent to the commission of the offense." U.S.S.G.
§ 2T1.1(c)(5). The district court did not err by declining to apply a credit in the
amount of the later tax payments by Parker's clients against the tax loss for which
Parker was responsible. The guidelines expressly provide that no such credit is to
be given. U.S.S.G. § 2T1.1(c)(5). [End Page 18]
Parker next argues that the district erred in assessing a four-level aggravating
role enhancement. He contends that the enhancement was erroneous because his
role as an office manager at the business was not sufficient to warrant such an
adjustment, and because co-conspirator Pierce actively prepared fraudulent returns
and received no role adjustment. Parker asserts that this enhancement and the
specific offense enhancement he also received for owning a tax preparation
business double counted the same conduct.
We review for clear error a district court's determination of a defendant's
role in the offense. United States v. Mesa, 247 F.3d 1165
, 1168 (2001). We
review de novo whether there was impermissible double counting under the
Guidelines. United States v. Dudley, 463 F.3d 1221
, 1226 (11th Cir. 2006).
A four-level aggravating role enhancement is to be applied where "the
defendant was an organizer or leader of a criminal activity that involved five or
more participants or was otherwise extensive." U.S.S.G. § 3B1.1(a). A two-level
enhancement is to be applied to an offense level calculated under U.S.S.G. § 2T1.4
where "the defendant was in the business of preparing or assisting in the
preparation of tax returns." U.S.S.G. § 2T1.4(b)(1)(B). "Impermissible double
counting occurs only when one part of the Guidelines is applied to increase a
defendant's punishment on account of a kind of harm that has already been fully
[End Page 19]
accounted for by application of another part of the Guidelines." United States v.
Bracciale, 374 F.3d 998
, 1009 (11th Cir. 2004) (internal quotation marks and
Parker does not challenge the district court's finding with respect to the
number of participants. Instead, he argues that he was not the leader of the
criminal activity. We conclude that the district court did not clearly err in finding
that Parker was an organizer or leader of the conspiracy. Ample evidence showed
that he had organized the tax fraud scheme and led his employees in the operation
of the scheme. Further, there was no impermissible double counting because the
kind of harm punished under the role enhancement provisions of U.S.S.G. § 3B1.1
is not the same kind of harm accounted for under the enhancement in U.S.S.G.
§ 2T1.4(b)(1)(B) for persons who engage in fraudulent tax preparation for profit.
One is directed at those who lead or organize criminal activity and the other at
those who hold themselves out as tax preparers.
[End Page 20]