Appellant Claudette Atkins was found guilty of one count of conspiracy to defraud the United States Department of Treasury and its agency, the Internal Revenue Service, by obtaining and aiding to obtain the payment of false, fictitious and fraudulent claims, a violation of 18 U.S.C. § 286, and guilty of four counts of making and presenting false, fictitious and fraudulent claims to the United States Department of Treasury, a violation of 18 U.S.C. § 287. Her co-Defendant, Sarah Harris, was also found guilty of one count of conspiracy to defraud the government by obtaining payment through false claims, and guilty of five counts of making and presenting false claims to the United States Department of Treasury. Atkins was sentenced to 21 months.
Atkins raises the following issues on appeal: 1) whether it was proper for the district court
The facts of this case reveal that Atkins and Harris entered into a conspiracy to defraud the Internal Revenue Service (the "IRS") through use of the IRS's electronic tax return network. Atkins or Harris would recruit someone, usually a neighbor, friend, or family member, to pose as a taxpayer. Then, either Atkins or Harris would take the person down to the Johnson Real Estate Office where Atkins worked. At the office, either Atkins or Harris would create fraudulent W-2's for the person on a typewriter in the office. All of the W-2's listed the Fish'N'Such, a company owned by Harris that burned to the ground in 1991, as the employer. Atkins or Harris would then drive the person down to a local H & R Block office where a tax return would be prepared and electronically filed. Since the person was "entitled" to a refund, an application for a Rapid Refund Loan would also be submitted. A few days later, after the loan check arrived at the H & R Block office, Atkins or Harris would drive the person down to the H & R Block office to pick up their check. The check would then be picked up and endorsed over to Harris. The person filing the return received between one-hundred and three-hundred dollars.
A. Offense Level
Atkins first argues that a preponderance of the evidence only supports a 2 level increase in her base offense level, not the 5 level increase recommended by the probation office and accepted by the district court. See U.S.S.G. § 2F1.1(b)(1). In so arguing, Atkins admits that a preponderance of the evidence links her to four of the fraudulent tax returns, i.e., the returns filed by LaTasha Nelson, LaRhonda Nelson, Stanley Johnson, and Pernal Mozee. Atkins disputes, however, whether the evidence links her to the other twenty-six returns which were filed. Based on the evidence presented at trial, the district court concluded that all thirty returns were filed in furtherance of the conspiracy. As a result, the district court attributed all thirty returns (for a total of $57,902) to Atkins.
We review a sentencing court's factual findings for clear error and will reverse the sentencing court if, and only if, we are "left with the definite and firm conviction that the sentencing court erred." United States v. Garrido, 995 F.2d 808, 812 (8th Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 331, 126 L.Ed.2d 276 (1993). Atkins can only be linked to the thirty returns (for sentencing purposes) if the filing of the returns were "reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity, that occurred during the commission of the offense...." U.S.S.G. § 1B1.3(a)(1)(B).
Accordingly, we affirm the district court's finding that all thirty returns should be attributed to Atkins.
B. Downward Departure
Atkins next argues that the district court should have granted her motion for a downward departure since, according to Atkins, her crime was a single act of aberrant behavior. Pointing to certain statements made by the district court during sentencing, Atkins further argues that the district court would have departed downward but for the district court's mistaken belief that it lacked the authority to depart. In response, and construing these same statements, the government argues that the district court's refusal to depart was based on the facts of the case which show that Atkins' crime was not a single act of aberrant behavior.
We can only review a district court's refusal to depart downward if the district court mistakenly believed that it lacked the authority to depart. United States v. Bieri, 21 F.3d 811, 817 (8th Cir.1994); United States v. Parham, 16 F.3d 844, 847 (8th Cir.1994); United States v. Hall, 7 F.3d 1394, 1396 (8th Cir.1993); United States v. Evidente, 894 F.2d 1000, 1005 (8th Cir.), cert. denied, 495 U.S. 922, 110 S.Ct. 1956, 109 L.Ed.2d 318 (1990). In this case, we conclude that the district court was aware of its authority to depart, but refused to depart based on the facts of the case.
Specifically, the following statements by the district court demonstrate to us that the district court's refusal to depart was based on a consideration of the facts of the case which showed that Atkins' crime was non-spontaneous and pre-planned:
Sent.Tr. at 10.
Even if we accepted Atkins' argument that the district court believed it had no authority to depart, the conclusion that the district court erred does not follow since Atkins' crime was not a single act of aberrant
In this case, as we have previously stated, the evidence showed that Atkins recruited others to file fraudulent tax returns; Atkins gave instructions on how to file the fraudulent returns; Atkins obtained personal information from the individuals; Atkins prepared fraudulent W-2 forms; and Atkins went with at least two of the individuals when they filed their false returns. In short, the evidence showed that Atkins was an active participant in a conspiracy that spanned a two-month period and that Atkins committed a number of non-spontaneous and preplanned acts throughout the course of the conspiracy. Given the length of the conspiracy and the large number of pre-planned acts which were committed by Atkins, we conclude that Atkins' crime was not a single act of aberrant behavior. See Garlich, 951 F.2d at 164 ("Garlich's actions in planning and executing the financing scheme over a one-year period were not `spontaneous and seemingly thoughtless.'"); United States v. Marcello, 13 F.3d 752, 761 (3rd Cir.1994) (scheme that required the defendant to pre-plan the deposit of $9,000 each day over a one-week period of time was not aberrant behavior).
Accordingly, we conclude that we have no jurisdictional authority to review the district court's refusal to depart downward since the district court's refusal to depart was an exercise of discretion. We further conclude that, even if we were to reach the issue, the district court did not err, as a matter of law, in refusing to depart.
C. Batson Challenge
Atkins, a black female, next argues that the government deliberately struck blacks from the jury pool in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). More specifically, Atkins argues that the Government did not offer a racially-neutral reason for striking two of the three blacks in the jury pool, namely Juror # 3 and Juror # 4.
We begin our review by noting the proper course of action to be followed after a defendant raises a Batson challenge:
United States v. Brooks, 2 F.3d 838, 840 (8th Cir.1993).
In this case, we are satisfied that the district court did not clearly err in allowing the government to strike Juror # 3 and Juror
We are likewise convinced that the district court did not err in allowing the government to strike Juror # 4. We have consistently allowed the government to use employment status as a valid, race-neutral proxy for juror selection, so long as the government exercises its challenges in a consistent manner. See, e.g., United States v. Johnson, 905 F.2d 222 (8th Cir.), cert. denied, 498 U.S. 924, 111 S.Ct. 304, 112 L.Ed.2d 257 (1990) (employees of the Division of Family Services could be struck since the employees might be overly sympathetic to the defendant); United States v. Miller, 939 F.2d 605, 607-09 (8th Cir.1991) (school teachers could be struck since they tend to be more forgiving and sympathetic). Here, besides striking Juror # 4, the government struck a number of jurors who worked for, or who had friends or relatives who worked for, the local, state or federal government.
Accordingly, we AFFIRM the conviction and the sentence of Appellant Claudette Atkins.