U. S. v. SCHROEDER, U.S. App. LEXIS 19393 (6th Cir. 2012)
Thomas Schroeder appealed his conviction for conspiring to impede the Internal Revenue Service ("IRS"), in violation of 18 U.S.C. § 371. Defendant's conviction stemmed from his involvement in the National Center for Public Education and Prevention ("NCPEp") and with Dr. Robert Felner ("Felner"), his co-conspirator.
Schroeder was the executive director of NCPEp, which was designed to be an Illinois non-profit corporation providing examinations and surveys for school systems around the country. Felner was a dean at the University of Louisville, who was employed by NCPEp and helped organize its creation.
On February 2, 2010, Defendant was charged with mail fraud (Count 1), conspiracy to launder money (Count 2), and conspiracy to impair or impede the IRS (Count 3). Felner was also charged with these crimes, and several other counts. Felner pled guilty, but Defendant chose to proceed to trial. After a three-week jury trial, Defendant was convicted of conspiring to impair or impede the IRS, but acquitted on the other charges. He was sentenced to 46 months imprisonment.
The court held that there was sufficient evidence that defendant and the co-conspirator conspired to use a non-profit corporation to conceal income from the IRS. The most pertinent evidence was the improper handling of the co-conspirator's 1099 forms. The government did not constructively amend the indictment because, even if there was a variance, the variance did not modify the elements of the charge, and there was clearly no confusion regarding the crime defendant was charged with and had to defend.
The district court did not err in denying defendant's proposed jury instruction regarding good faith because it was substantially covered by the instructions that were given. The court further ruled that the district court did not err when it held that the co-conspirator's tax loss was foreseeable to defendant and, therefore, attributable to him at sentencing. Defendant was not entitled to a downward departure under U.S. Sentencing Guidelines Manual § 3B1.2 because he did not play a minor role in the conspiracy.
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