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United States v. Stargell

United States Court of Appeals, Ninth Circuit

October 17, 2013

UNITED STATES of America, Plaintiff-Appellee,
v.
Willena STARGELL, Defendant-Appellant.

Argued and Submitted March 7, 2013.

Page 1019

[Copyrighted Material Omitted]

Page 1020

Marisa L.D. Conroy (argued), Encinitas, CA, for Defendant-Appellant.

André Birotte, Jr., United States Attorney; Antoine F. Raphael, Assistant United States Attorney, Chief; Joseph B. Widman, Assistant United States Attorney, Deputy Chief; and Ryan White (argued), Assistant United States Attorney, United States Attorneys' Office, Riverside, CA, for Plaintiff-Appellee.

Appeal from the United States District Court for the Central District of California, Terry J. Hatter, Senior District Judge, Presiding. D.C. No. 5:09-cr-00005-TJH-1.

Before: SIDNEY R. THOMAS, ANDREW D. HURWITZ, Circuit Judges, and RALPH R. BEISTLINE, Chief District Judge.[*]

ORDER

In response to the parties' filings regarding Appellant's Rehearing Petition of August 28, 2013, the opinion filed on August 2, 2013, is hereby WITHDRAWN. Furthermore, Appellant's Motion For

Page 1021

Leave To File Reply To Opposition of October 4, 2013, is hereby DENIED.

OPINION

BEISTLINE, Chief District Judge:

Willena Stargell appeals her convictions of twelve felonies arising out of her work as a tax preparer for various clients.

The superseding indictment charged fraud by wire affecting a financial institution (Counts 1 to 6); aiding and assisting in the preparation of a false return (Counts 7 to 12); fraud by wire (Counts 13 to 15); and aggravated identity theft (Counts 16 to 18). The district court dismissed Counts 6, 12, and 18 on the government's Motion. After the district court granted her Motion For Acquittal on Counts 3, 9, and 15, Stargell was convicted on the remaining charges. She claims that the district court erred by: (1) failing to grant her Motion For Judgment Of Acquittal as to Counts 1, 2, 4, and 5 of the superseding indictment despite the government's failure to prove that the underlying conduct affected a financial institution; (2) permitting convictions on Counts 16 and 17 without excluding the possibility that they were based on conduct that preceded the enactment of 18 U.S.C. § 1028A; (3) allowing Stargell's former attorney to testify at the sentencing hearing; and (4) improperly calculating loss and restitution amounts.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm the convictions and sentences.

I

A

After completing a course on tax preparation and receiving state certification, Stargell began preparing taxes for Liberty Tax Service (" LTS" ) in Moreno Valley, California. LTS terminated Stargell's employment in 2003, and Stargell began her own tax preparation business called Liberty Bell Tax Service (" LBTS" ).

The evidence at trial established that while operating LBTS, Stargell prepared federal income tax returns containing false statements and engaged in schemes to obtain refund anticipation loans (" RAL" ) based on these fraudulent returns. In some instances, the IRS detected the fraud and declined to issue a tax refund, resulting in a loss to the banks that made the loans. The government also proved that Stargell engaged in identity theft by using the names and social security ...


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