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United States v. Kupfer

United States Court of Appeals, Tenth Circuit

July 7, 2015

UNITED STATES OF AMERICA, Plaintiff -- Appellee,
ELIZABETH D. KUPFER, Defendant -- Appellant

Appeal from the United States District Court for the District of New Mexico. D.C. No. 1:10-CR-03383-WJ-2).

Todd A. Coberly, Santa Fe, New Mexico, for Defendant-Appellant.

Tara C. Neda, Assistant United States Attorney (Damon P. Martinez, United States Attorney, and Laura Fashing, Assistant United States Attorney, on the brief), Office of the United States Attorney, Albuquerque, New Mexico, for Plaintiff-Appellee.

Before BRISCOE, Chief Judge, BALDOCK, and BACHARACH, Circuit Judges.


BACHARACH, Circuit Judge.

Ms. Elizabeth Kupfer and her husband jointly filed federal income taxes for 2004-2006, but failed to report over $790,000 in gross income. The government charged Ms. Kupfer with three counts of tax evasion, one for each tax year. See 26 U.S.C. § 7201. She admitted that she had failed to report a substantial amount of gross income, but denied that her under-reporting was willful. The jury disagreed and found Ms. Kupfer guilty on each of the three counts. Convicted and sentenced to three years in prison, Ms. Kupfer appeals based on three issues.

I. The Three Issues on Appeal and our Conclusions

The first issue involves the jury instructions. The district court instructed the jury that it could find guilt only if the under-reporting had been willful. Ms. Kupfer contends that the court should have gone further, telling the jury that the under-reporting would not have been considered " willful" if it had been merely negligent, inadvertent, accidental, mistaken, or reckless. We conclude that the district court acted within its discretion in declining to give the additional instruction.

The second issue involves a juror's reference to unrelated charges. After the trial ended, Ms. Kupfer submitted an affidavit stating that a juror had commented on other charges during jury deliberations. The district court declined to conduct a hearing or to grant a mistrial. We conclude that these rulings fell within the district court's discretion because the court could reasonably conclude that a hearing was unnecessary and that the improper remarks were harmless.

The third issue involves Ms. Kupfer's sentence. In deciding on the sentence, the district court increased the offense level for obstruction of justice based on Ms. Kupfer's failure to reveal her under-reporting of income. The government concedes error, and we agree that the district court should not have increased the offense level. A defendant does not commit obstruction of justice, for purposes of an increase in the offense level, by failing to disclose her crime.

II. The Jury Instructions

The district court instructed the jury on willfulness, stating that it

o was required for a finding of guilt and
o referred to " the voluntary intent to violate a known legal duty."

R., vol. IV, at 1224. Conceding that this instruction was correct as far as it went, Ms. Kupfer argues that the court should have also included her proposed language on mental states, short of willfulness, that would have required acquittal: negligence, inadvertence, accident, mistake, and recklessness. Id. at 1194. According to Ms. Kupfer, this language was necessary to adequately present the theory of her defense.

We reject this argument because the district court (1) correctly instructed the jury that it could find guilt only if Ms. Kupfer had willfully failed to report the income and (2) correctly defined the term " willfully." Id. at 1224. With this instruction, Ms. Kupfer was able to obtain consideration of her defense theory.

Our scrutiny is limited, for we consider the refusal to give a requested jury instruction under the abuse-of-discretion standard. United States v. Moran, 503 F.3d 1135, 1146 (10th Cir. 2007). In assessing the district court's exercise of discretion, we recognize Ms. Kupfer's right to jury instructions on her defense theory as long as it was supported by the evidence and the law. United States v. Visinaiz, 428 F.3d 1300, 1308 (10th Cir. 2005). For the sake of argument, we can assume evidentiary and legal support for Ms. Kupfer's defense theory. With this assumption, we must determine whether " without [Ms. Kupfer's proposed language], the district court's instructions were erroneous or inadequate." United States v. Wolny, 133 F.3d 758, 765 (10th Cir. 1998). We conclude that the instructions were correct and adequate for consideration of Ms. Kupfer's defense.

In instructing the jury, the court correctly identified the elements of the charge and defined the term " willfully." R., vol. IV, at 1224. Indeed, Ms. Kupfer does not question the correctness of the definition. Instead, she contends the instructions were inadequate for the jury to consider her defense theory. We disagree.

She points out that we have sometimes upheld jury instructions because they included language stating what would have fallen short of willfulness. Defendant's Opening Br. at 17-18 (citing United States v. Bowling, 619 F.3d 1175, 1184 (10th Cir. 2010); United States v. Rothbart, 723 F.2d 752, 754-55 (10th Cir. 1983); United States v. Abramson--Schmeiler, 448 F.App'x 837, 843-44 (10th Cir. 2011) (unpublished)). But there is a difference between the adequacy of instructional language and its necessity. See United States v. Guidry, 199 F.3d 1150, 1156 (10th Cir. 1999) (explaining that our statement in a prior case--that a jury instruction on " willfulness . . . was ...

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