Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Yurek

United States District Court, D. Colorado

July 27, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
1. DARYL FRANCIS YUREK 2. WENDY MARIE YUREK Defendants.

          ORDER STATING REASONS AS TO COURT'S ORAL DENIAL IN PART OF DEFENDANTS' JOINT MOTION TO STRIKE IRRELEVANT AND PREJUDICIAL SURPLUSAGE FROM INDICTMENT

          William J. Martínez, United States District Judge

         This matter is before the Court on the Defendants' Joint Motion to Strike Irrelevant and Prejudicial Surplusage From Indictment. (ECF No. 160 (Defendants' “Motion”).) The Court deferred ruling on this Motion before trial. (ECF No. 179.) On July 27, 2017, following the close of all evidence, the Court orally granted the motion in limited part, only to the extent of striking Paragraph 16.z. from the Indictment as presented to the jury, while denying the Motion in all other respects. The Court hereby enters this written Order stating its reasons for that disposition.

         I. LEGAL STANDARD

         Federal Rule of Criminal Procedure 7(d) provides, “Upon the defendant's motion, the court may strike surplusage from [an] indictment or information.” The advisory committee's note to Rule 7(d) elaborates, that this Rule is designed to provide “a means of protecting the defendant against immaterial or irrelevant allegations in an indictment . . . which may . . . be prejudicial.” Fed. R. Crim. P. 7 advisory committee's note. In the Tenth Circuit, a court “may strike from an indictment allegations which are both independent of and unnecessary to the offense on which a conviction ultimately rests.” United States v. Brooks, 438 F.3d 1231, 1237 (10th Cir. 2006). Conversely, “[l]anguage in the indictment . . . describing the essential elements of the crime alleged is not surplusage and cannot be stricken under Rule 7(d).” United States v. Collins, 920 F.2d 619, 631 (10th Cir. 1990).

         II. ANALYSIS

         As to Counts 1 and 2 charged against them, Defendants argue that certain language and paragraphs of the Indictment are not legally relevant to any element of the crimes charged or to any issue in dispute and should be stricken as prejudicial.

         A. Count One: Tax Evasion

         Count One charges Defendants with tax evasion in violation of 26 U.S.C. § 7201. Under this statute, “[t]o obtain a conviction, the government must prove three elements, namely [1] the existence of a tax deficiency, [2] an affirmative act constituting an evasion or attempted evasion of the tax, and [3] willfulness.” United States v. Boisseau, 841 F.3d 1122, 1125 (10th Cir. 2016).

         This statute addresses “the offense of willfully attempting to evade or defeat the assessment of a tax as well as the offense of willfully attempting to evade or defeat the payment of a tax.” Sansone v. United States, 380 U.S. 343, 354 (1965) (emphasis added). This case presents the latter form of the offense, that is, attempting to evade the payment of a tax, after it had been assessed. Specifically, the Indictment alleges that the affirmative acts of evasion allegedly violating § 7201 began with an Offer in Compromise that Defendants submitted to the Internal Revenue Service (“IRS”) in 2006, with respect to then-existing tax liabilities, primarily arising from tax years 1999 and 2004. (ECF No. 1 ¶ 16.a.)

         1. Relevance of Alleged Conduct to Charge of Tax Evasion

         As to numerous of the Government's specific allegations, Defendants argue that even if true, these acts could not possibly constitute an affirmative or positive act designed to evade taxes, and are therefore legally irrelevant to the charge of tax evasion.

         Defendants first contest several paragraphs of the Indictment alleging various acts related to the Government's theory that Defendants purchased the loft condominium in which they lived using their son as a “straw buyer” or nominee owner, as well as paragraphs alleging Defendants directed their affiliated business entities (including Bolder Venture Partners and Veracity Credit Consultants) to pay mortgage and condominium fee payments for the loft and certain of Defendants' personal expenses. (See ECF No. 160 at 5-10; see also, e.g., ECF No. ¶¶ 16.c.-g., h., v.-z.)[1]

         The Court concludes that Defendants' argument regarding the charge of tax evasion misconstrues the Government's theory of the case, and construes the controlling case law too narrowly. Defendants argue, as to each of the challenged paragraphs of the Indictment, that even if the alleged fact is true and/or the alleged action occurred, it could not constitute an affirmative act of evasion. For example, Defendants argue that the alleged act of assigning their contract to purchase their residence to their son in 2006 did no more than “openly transferred the contractual right to purchase” to their son and “could have no effect . . . on the payment of [Defendants'] outstanding tax liabilities from 1999 and 2004. (ECF No. 160 at 6.) The Defendants therefore argue that the alleged conduct could not possibly constitute an affirmative act of willful tax evasion, as prohibited under § 7201.

         Defendants' argument mis-states the Government's theory of prosecution and seeks to apply the law too narrowly. While neither the statute nor controlling precedent has precisely defined or limited what constitutes an “affirmative act, ” of tax evasion, it is clear that a broad range of conduct may constitute affirmative acts under § 7201. United States v. Boisseau, 841 F.3d 1122, 1125 (10th Cir. 2016)); accord United States v. Conley, 826 F.2d 551, 558 (7th Cir. 1987) (“It cannot be expected that all tax payment evaders approach their problem in the same way. They have demonstrated a certain misguided freedom to use their own devices as they deem best to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.