UNITED STATES of America v. Thomas L. ROOT, Appellant, 585 F.3d 145

OPINION OF THE COURT HARDIMAN, Circuit Judge. Thomas Root appeals his judgment of conviction for tax evasion and conspiracy to defraud the United States following a jury trial. Although Root challenges the venue of the District Court and the sufficiency of the evidence as to the conspiracy count, the principal question of precedential import on appeal is whether the Government may charge a defendant for evading the assessment of taxes for multiple years in a single count. I. We review the facts in the light most favorable to the Government because the jury found Root guilty of both charges. United States v.

Mornan, 413 F.3d 372, 382 (3d Cir.2005). A. A former attorney, Root began working in the mid-1990s as special projects director at Reading Broadcasting, Inc. (RBI), an independent television station in Reading, Pennsylvania. Root worked closely with RBI’s Presidents — Micheál Parker and Frank McCracken — reviewing contracts, preparing shareholder correspondence and annual reports, and ensuring the company’s compliance with Federal Communications Commission and Equal Employment Opportunity Commission regulations.

Pleased with Root’s work, McCracken rewarded Root with additional commissions from a new client, Master Media Enterprises. The commissions were initially paid through RBI’s payroll and included in Root’s regular salary payments. As a result, taxes on the commissions were withheld and reflected on Root’s W-2 forms. Soon thereafter, however, Root wrote to McCracken requesting that his commissions be paid to KGR New Perspectives (New Perspectives), a limited liability company that Root established in Ohio.

Around the same time, McCracken — • who also was receiving commissions from Master Media sales — requested that his commissions be paid to his own limited liability company (Framco) which Root had formed at McCracken’s request. Between 2001 and 2004, RBI paid New Perspectives $94,077.34 and Framco $509,210.43. Because Root and McCracken had requested that the commissions be paid to their respective limited liability companies, these payments were not reflected on their respective W-2 forms.

In January 2002, RBI’s bookkeeper, Barbara Williamson, asked McCracken and Root whether she should issue Form 1099s to New Perspectives and Framco to account for the commissions paid to those entities. Both men responded that they did not know whether 1099s were necessary when payments were made to limited liability companies, but that they would look into the matter further. When Williamson inquired a second time some weeks later, McCracken told her that she did not need to issue 1099s to those entities. As a result, RBI never notified the IRS of these payments.

At the same time they failed to inform the IRS of the commissions being paid to New Perspectives, Root and his wife Kathy cited the New Perspectives income on a loan application they submitted when refinancing their home mortgage in 2001. The payments made by RBI to New Perspectives were deposited equally into Kathy’s personal account and into a New Perspectives account on which Kathy was the lone signatory. In applying for the loan, the Roots listed as income Thomas Root’s RBI salary as well as $3,000 of monthly income from New Perspectives attributable to Kathy Root.

Because the bank required the couple to produce verification of the listed income, Thomas Root asked McCracken to sign a “Commission Agreement” between RBI and New Perspectives under which RBI would pay New Perspectives a two percent commission on monthly revenues that RBI collected from Master Media in exchange for sales services. Though Kathy Root signed the agreement on behalf of New Perspectives, the services were performed solely by Thomas Root. In addition to the payments from RBI, Root received income from two Ohio attorneys, George Ford and Victor Merullo.

Root performed legal research and writing services for the attorneys and instructed that they pay him through his sole proprietorship, Legal Information Services Associates (LISA). Ford and Merullo paid Root as an independent contractor but did not withhold taxes or issue 1099s to Root. From 2001 to 2003, Root earned $58,041.91 from Ford and $19,573.85 from Merullo. Finally, Root performed services for Micheál Parker unrelated to his work at RBI, including setting up companies in connection with Parker’s many business ventures.

Parker paid Root — either directly or through LISA — a “success fee” or “bonus” for his work and covered his related expenses. Root earned $56,000 from Parker in 2001 and 2002. Parker never issued Root any 1099s in connection with these payments. B. In preparing joint tax returns for himself and his wife for the tax years 2001, 2002, and 2003, Root failed to disclose the commissions he received from RBI or the income received from Ford, Merullo, and Parker. Furthermore, New Perspectives did not file tax returns for those tax years.

Consequently, Root owed taxes in the following amounts: $11,571 in 2001, $19,619 in 2002, and $6,473 in 2003. After New Perspectives was served with a grand jury subpoena in 2004, Root filed amended returns for 2001, 2002, and 2003, which disclosed the payments made to New Perspectives in those years. Root still failed to disclose the income from Ford, Merullo, or Parker, however.

A grand jury indicted Root on one count of conspiracy to defraud the United States in violation of 18 U.S.C. § 371, one count of tax evasion for the years 2000 to 2003 in violation of 26 U.S.C. § 7201, and seven counts of filing a false return in violation of 26 U.S.C. § 7206(1). The conspiracy count alleged that Root and McCracken agreed to defraud the United States by hiding portions of Root’s income from the IRS. Root, who is a resident of Ohio, moved for dismissal of the tax evasion and false return counts, contending that the Eastern District of Pennsylvania was an improper venue to bring those charges.

The Government agreed to dismiss the false return charges and to limit the tax evasion count to the years 2001 to 2003, acknowledging that the alleged evasive acts relating to 2000 occurred exclusively in Ohio. After the Government made those concessions, the District Court determined that venue was proper with regard to the remaining counts and the case proceeded to trial. The jury convicted Root of both tax evasion and conspiracy. Following the verdict, Root moved for judgment of acquittal or, alternatively, for a new trial. The District Court denied both motions. II.

Root first argues that his conviction for tax evasion should be vacated and dismissed because it alleged multiple years of evasion in a single count and was therefore duplicitous. “Duplicity is the improper joining of distinct and separate offenses in a single count.” United States v. Haddy, 134 F.3d 542, 548 (3d Cir.1998). Whether an indictment is duplicitous is a question of law subject to de novo review. Id. at 547. A. To determine whether a count is duplicitous, we must ascertain the allowable unit of prosecution to decide whether the indictment properly charges a violation of the pertinent statute.

Id. at 548. To do so, we inquire into Congressional intent by examining the language of the statute. Id. The tax evasion statute provides: Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall ... be guilty of a felony and, upon conviction thereof, shall be fined not more than $100,000 ..., or imprisoned not more than 5 years, or both.... 26 U.S.C. §

Section 7201 is silent regarding whether each tax year must be charged separately or whether multiple years can be combined in one count. That question was considered in United States v. Shorter, 809 F.2d 54 (D.C.Cir.1987), where the Government charged the defendant with one felony count of tax evasion that covered twelve tax years. During the relevant time period, the defendant had conducted all of his personal and professional business in cash, avoided the acquisition of attachable assets, and failed to record receipts and disbursements. See id. at 57.

The defendant argued that trying him for all twelve years in one count was duplicitous. Id. at 56. The Court of Appeals for the District of Columbia Circuit disagreed, holding that “tax evasion covering several years may be charged in a single count as a course of conduct ... where the underlying basis of the indictment is an allegedly consistent, long-term pattern of conduct directed at the evasion of taxes for [those] years.” Id.

The court held that the defendant’s activities constituted a continuous course of conduct, and each affirmative act of evasion was intended to evade payment of all taxes owed or anticipated at the time. Id. The court also observed that

section 7201 does not directly address whether it is possible to charge a continuing scheme to evade taxes for several years. Rather, the statute merely makes it a felony for any person to “willfully attempt[ ] in any manner to evade or defeat any tax imposed by this title or the payment thereof.” Id. at 57 (quoting 26 U.S.C. § 7201). This broad language, the court concluded, supported a finding that a multi-year tax evasion count “may fairly be read to charge but a single scheme and is therefore not duplicitous.” Id. This Court followed Shorter in United States v.

Pollen, 978 F.2d 78 (3d Cir.1992), where we upheld the Government’s charge of four counts of tax evasion, each of which covered the same seven-year period. In each count, the Government alleged a distinct affirmative act: the illegal transfer of hundreds of thousands of dollars in successive attempts to evade payment of taxes over seven years. Id. at 86. We stated that while “it is logical ... to charge attempts to evade the assessment of taxes for distinct years in separate counts,” id. at 87, “it is also permissible under

section 7201 to charge tax evasion covering several years in a single count as a ‘course of conduct’ in circumstances ‘where the underlying basis of the indictment is an allegedly consistent, long-term pattern of conduct directed at the evasion of taxes for these years,’ ” id. at 84 (quoting Shorter, 809 F.2d at 58). We noted the breadth of the statutory language, finding that “[t]he plain language of this

section ... evinces the congressional intent to allow distinct, significant, affirmative acts of tax evasion to constitute separate

section 7201 offenses,” regardless of whether the evasion was carried out over a single year or multiple years. Id. at 86. Additionally, we stated that “nothing in

section 7201’s legislative history requires us to conclude that Congress intended to limit this provision’s unit of prosecution to an individual tax year” and “the scant legislative history of this provision simply does not address the question of its allowable unit of prosecution.” Id. at 86 n. 14 (citing H.R. Rep. Nos. 83-1337 and 83-2543 (1954), reprinted in 1954 U.S.C.C.A.N. 4137, 4572; 5280, 5343).

Relying largely on Shorter and Pollen, the District Court upheld the Government’s inclusion of multiple years of evasion in a single count, finding that Root’s actions constituted a “continuous course of conduct.” Shorter, 809 F.2d at 57.

These actions included: diverting commission payments from RBI for the years 2001 to 2003 through New Perspectives without declaring them as income; funneling his legal research payments from Ford and Merullo for the years 2001 to 2003 through LISA without declaring them as income; avoiding the issuance of 1099s to New Perspectives or LISA; and failing to declare as income any payments from Parker for the years 2001 or 2002.

The court determined that these actions — taken over the course of three years — represent the sort of “consistent, long-term pattern of conduct directed at the evasion of taxes” found in Shorter and Pollen. B. Root does not dispute that Shorter and Pollen approve of multi-year tax evasion prosecutions.

Instead, he attempts to distinguish those cases by drawing a line between prosecutions under 26 U.S.C. § 7201 for evasion of tax assessment, which involve efforts to shield taxable income to prevent the IRS from determining one’s tax liability, and evasion of tax payment, which concern conduct designed to place assets out of reach to prevent the IRS from settling one’s tax liability. See Sansone v. United States, 380 U.S. 343, 354, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965); United States v. McGill, 964 F.2d 222, 230 (3d Cir.1992).

Here, the Government alleges evasion of assessment, arguing that Root failed to disclose certain income in an effort to decrease his tax liability. By contrast, Shorter and Pollen were evasion of payment cases because they involved efforts to shield assets from recovery by the IRS once the defendants’ tax liabilities were calculated. Root argues that unlike evasion of payment cases, in evasion of assessment cases, the Government must treat each tax year as the basis for a separate count.

In a dictum in Pollen, we acknowledged that evasion of assessment and evasion of payment cases may be treated differently under § 7201, noting that the practice of combining years “is particularly appropriate in a case charging tax evasion committed through the evasion of payment.” 978 F.2d at 87. This is because “a defendant attempting to evade payment of taxes may ... engage in transactions designed to conceal assets from the IRS in an attempt to evade the payment of taxes due for a number of years.” Id.

By contrast, we explained, “[i]n cases charging evasion of the assessment of tax, the alleged fraudulent action of a defendant often directly affects assessment for a particular tax year. Consequently, it is logical in that type of case to charge attempts to evade the assessment of taxes for distinct years in separate counts.” Id. The Fifth Circuit has similarly remarked: “Because our income tax system is on an annual basis, failure to report income must be charged for a specific year.” United States v. Boulet, 577 F.2d 1165, 1167 (5th Cir.1978).

Root’s argument also is supported by the Department of Justice’s Criminal Tax Manual for 2008, which cites “two distinct manners” by which one can violate § 7201: Because income taxes are an annual event, an alleged evasion of assessment must relate to a specific year and it must be shown that the income upon which the tax was evaded was received in that year. Consequently, in most evasion of assessment cases, each tax year charged stands alone as a separate offense.

Thus, a charge that a taxpayer attempted to evade and defeat taxes for the years 1990, 1991, and 1992 would constitute three separate counts in an indictment. Evasion of payment, on the other hand, often involves single acts which are intended to evade the payment of several years of tax due the government. Thus, in evasion of payment cases, it is sometimes permissible to charge multiple years of tax due and owing in one count. United States Department of Justice Tax Division Criminal Tax Manual 2008, § 8.07[2] (internal citations omitted).

The Manual cites both Shorter and Pollen as examples of cases where courts approved of multi-year evasion of payment prosecutions. Notwithstanding the Manual’s guidance — and the analogous nature of the hypothetical posed therein' — -we find it neither controlling nor persuasive. As a preliminary matter, the Manual lacks legal authority. The Manual, which was published by the Assistant Attorney General for the Department of Justice’s Tax Division, contains a disclaimer which accurately notes: “This Manual provides only internal Department of Justice guidance.

It is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal. Nor are any limitations hereby placed on otherwise lawful litigative prerogatives of the Department of Justice.” Additionally, the distinctions drawn in the Manual do not follow from the statutory language, which penalizes “[a]ny person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof.” 26 U.S.C. §

Section 7201 neither distinguishes between evasion of assessment and evasion of payment, nor suggests that one type of evasion should be treated differently than the other for purposes of determining the unit of prosecution. Instead, the statute focuses on a defendant’s acts — his willful attempts to evade or defeat any tax “in any manner” — rather than concentrating on the year or years when such conduct occurred. As we explained in Pollen: “The language of

section 7201 is straightforward: it prohibits “willful attempts in any manner to evade or defeat any tax.’ It proscribes ‘attempts’ to evade or defeat any tax and thus speaks in terms of the act of evasion, as well as the taxes evaded.” 978 F.2d at 86; see also Spies v. United States, 317 U.S. 492, 499, 63 S.Ct. 364, 87 L.Ed. 418 (1943) (analyzing predecessor tax evasion statute) (“Congress did not define or limit the methods by which a willful attempt to defeat and evade might be accomplished and perhaps did not define lest its effort to do so result in some unexpected limitation.”).

As in Pollen, our inquiry here concerns Root’s conduct, regardless of the length of time over which his acts took place. Federal Rule of Criminal Procedure 7(e)(1) allows a single count to allege “that the defendant committed [the offense] by one or more specified means.” Fed.R.Crim.P. 7(c)(1) (emphasis added). It is true, of course, that taxes are assessed on an annual basis; in that sense, Root willfully evaded his 2001 federal tax assessment, his 2002 assessment, and his 2003 assessment.

However, as the District Court found, each year’s evasion resulted from the same conduct: a multi-year scheme in which he tunneled money through a limited liability company and a sole proprietorship to hide money from the IRS. The Government alleged evasion of assessment of the same sources of income for all three tax years: the commission payments to New Perspectives and the legal work performed for Ford and Merullo, as well as payments received from Parker in 2001 and 2002.

Furthermore, Pollen’s dictum does not foreclose an evasion of assessment prosecution relating to multiple years; it merely observes that an evasion of assessment “often” affects the assessment of a single year’s income. In this case, however, Root’s evasive acts affected the assessment income for multiple years. Accordingly, we decline Root’s invitation to treat evasion of assessment cases differently than evasion of payment cases and we hold that the reasoning of Pollen extends to evasion of assessment prosecutions as well.

Though the Government could have brought three separate counts for this single pattern of events spanning three years,

section 7201 does not require that it do so. C. Our inquiry in the present case is not limited simply to consideration of whether the text of

section 7201 permits the Government to charge Root’s conduct in a single count. Rather, we next examine the concerns traditionally associated with charging “in one count what could be several independent charges” and conclude that they are not implicated in this case. Shorter, 809 F.2d at 58 n. 1.

The purposes of the prohibition against duplicity include: (1) avoiding the uncertainty of whether a general verdict of guilty conceals a finding of guilty as to one crime and a finding of not guilty as to another; (2) avoiding the risk that the jurors may not have been unanimous as to any one of the crimes charged; (3) assuring the defendant adequate notice; (4) providing the basis for appropriate sentencing; and (5) protecting against double jeopardy in a subsequent prosecution. Id.; United States v. Margiotta, 646 F.2d 729, 732-33 (2d Cir.1981).

An assessment of such policy considerations is critical to any duplicity analysis, for fundamental fairness and due process of law may prohibit combining what could be several independent charges into a single count, even if the text of a particular statute allows it. See Shorter, 809 F.2d at 58 n. 1 (“in determining whether fairness requires dismissal of an indictment which includes in one count what could be several independent charges, the Court must measure that indictment against the purposes of the prohibition against duplicity.”).

These concerns are absent in this case because Root’s evasive conduct was consistent during the three-year time period. Because Root was engaged in a “continuous course of conduct,” the evidence relating to each year is identical and it would be logically inconsistent for the jury to find Root guilty in light of his 2001 conduct, but not guilty based upon the same conduct in 2002 and 2003. Root implies that the Government lumped the years together to meet

section 7201’s requirement of a “substantial tax deficiency.” See United States v. McKee, 506 F.3d 225, 235-36 (3d Cir.2007). The record demonstrates Root evaded the assessment of more than $50,000 of income in each of the years in question. While we have not yet spoken on what specific dollar amount constitutes a “substantial” deficiency, our sister circuits have established a fairly low threshold. See United States v. Davenport, 824 F.2d 1511, 1516-17 (7th Cir.1987) ($3,358.68 in taxes evaded sufficient to support taxpayer’s conviction); United States v.

Gross, 286 F.2d 59, 60-61 (2d Cir.1961) (unreported income in the amount of two $2,500 payments deemed “substantial”); United States v. Nunan, 236 F.2d 576, 585 (2d Cir.1956) (“[A] few thousand dollars of omissions of taxable income may in a given case warrant criminal prosecution.”). Accordingly, Root’s evasion — even when considered in single-year increments — was “substantial.” Moreover, Root cannot point to any valid sentencing concern.

Instead of being convicted for three single-year counts of tax evasion, Root was convicted on one three-year count. “In such circumstances, duplicity may actually inure to a defendant’s benefit by limiting the maximum penalties he might face if he were charged and convicted on separate counts for what amounts to a single scheme.” United States v.

Olmeda, 461 F.3d 271, 281 (2d Cir.2006) (internal quotations omitted) (assessing practice of charging two illegal ammunition possessions in a single count). “If the doctrine of duplicity is to be more than an exercise in mere formalism, it must be invoked only when an indictment affects the policy considerations” that underlie that doctrine. United States v. Murray, 618 F.2d 892, 897 (2d Cir.1980).

The identification of these considerations suggests that a single count of an indictment should not be found impermissibly duplicitous whenever it contains several allegations that could have been stated as separate offenses, but only when the failure to do so risks unfairness to the defendant. See Cohen v. United States, 378 F.2d 751, 754 (9th Cir.1967); see also United States v. Sturdivant, 244 F.3d 71, 75 n. 3 (2d Cir.2001) (noting that duplicitous charging is impermissible only if it prejudices defendant).

That risk is slight in a case like this where the alleged wrong is a single scheme to defraud that can be proven by evidence relating to similar conduct over a period of years. In sum, because the statutory language does not prohibit the Government’s decision to charge Root for multiple years in one count and because analysis of the concerns traditionally associated with duplicitous charges demonstrates that Root was not prejudiced by that decision, we hold that the Government’s charge was not impermissibly duplicitous.

Accordingly, we will affirm the District Court’s denial of Root’s motion for judgment of acquittal. III. Root next argues that the District Court lacked venue as to the tax evasion count and that his case should have been brought in Ohio, where he resides. We review a District Court’s denial of a motion to change venue for abuse of discretion. U.S. v. Inigo, 925 F.2d 641, 654 (3d Cir.1991). The Government bears the burden of proving venue by a preponderance of the evidence and venue must be proper for each count of the indictment. United States v. Perez, 280 F.3d 318, 328-30 (3d Cir.2002).

Proper venue in criminal trials is more than just a procedural requirement; it is a constitutionally guaranteed safeguard. United States v. Baxter, 884 F.2d 734, 736 (3d Cir.1989). The Constitution states: “The Trial of all Crimes ... shall be held in the State where said Crimes shall have been committed.... ” U.S. Const, art. Ill, § 2, cl. 3. Furthermore, the Sixth Amendment provides: “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed ...U.S. Const. amend. VI (emphasis added).

In addition to the constitutional requirements, Rule 18 of the Federal Rules of Criminal Procedure provides: “Unless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed.” Fed.R.Crim.P. 18. We have held that Congress has the power to lay out the elements of a crime to permit prosecution in one or any of the districts in which the crucial elements are performed. Perez, 280 F.3d at 329.

Root argues that his constitutional and statutory rights were violated because he was prosecuted in the Eastern District of Pennsylvania instead of the Northern District of Ohio, where most of the activity in this case took place. For instance, Root filed his tax returns, earned his LISA income, received his income from Parker, and performed much of his services for RBI in the state of Ohio. As Root acknowledges, however, some of his illegal activities occurred within the Eastern District of Pennsylvania.

RBI is headquartered in Reading and the Commission Agreement between RBI and New Perspectives was found at RBI’s offices there. Additionally, Root often traveled to Reading in connection with his job. Given Root’s contacts with the Eastern District of Pennsylvania, we find that venue was proper there. Tax evasion is a continuing offense under 18 U.S.C. § 3237(a), United States v.

Barker, 556 F.3d 682, 689 (8th Cir.2009), and Congress has provided that an offense against the United States that spans multiple districts “may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.” 18 U.S.C. § 3237(a). The locality of a crime for the purpose of venue extends “over the whole area through which force propelled by an offender operates.” United States v. Johnson, 323 U.S. 273, 275, 65 S.Ct. 249, 89 L.Ed. 236 (1944).

As we have noted, Root was responsible for a “consistent, long-term pattern of conduct” which spanned numerous years and took place in multiple states and districts. Although Root’s taxes were mailed from another jurisdiction, he does not dispute that “a few of [the acts leading to the evasion] occurred in the Eastern District of Pennsylvania.” Consequently, venue was proper there under 18 U.S.C. § 3237(a). Root argues that “[a]ll charges could have been brought by the Government in Ohio.” This argument, while true, is of no moment.

Even though a substantial portion of Root’s acts were committed in the Northern District of Ohio and he may have preferred that he had been charged there, nothing required the Government to charge Root where a majority of the acts took place. While Root is correct in noting that the Supreme Court has not recognized pendent jurisdiction in criminal cases, see United States v. Cabrales, 524 U.S. 1, 6-7, 118 S.Ct. 1772, 141 L.Ed.2d 1 (1998), his appeal does not implicate pendent jurisdiction; the allegations of tax evasion were brought in a single count which, as determined in

Part II supra, was not duplicitous. Furthermore, the jury was specifically instructed that, “[f]or you to return a guilty verdict, the government must convince you that some act in furtherance of the crime charged ... took place here in the Eastern District of Pennsylvania.” The jury so found. Accordingly, Root was subject to trial in the Eastern District of Pennsylvania and the District Court did not abuse its discretion when it denied his motion to dismiss for improper venue. IV.

Finally, Root argues that his conspiracy conviction — which alleged that Root and McCracken agreed to impede the lawful function of the IRS in the assessment and collection of Root’s income taxes — should be vacated because the Government presented insufficient evidence to prove a conspiracy to defraud the government. Root must overcome a “very heavy burden” to overturn the jury’s verdict for insufficiency of the evidence. United States v. Dent, 149 F.3d 180, 187 (3d Cir.1998).

We will sustain his conviction if, viewing the evidence in the light most favorable to the Government, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Voigt, 89 F.3d 1050, 1080 (3d Cir.1996) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

To establish a conspiracy to defraud the United States in violation of 18 U.S.C. § 371, the Government must prove beyond a reasonable doubt: (1) an agreement to defraud the United States; (2) an overt act by one of the conspirators in furtherance of the conspiracy; and (3) an intent on the part of the conspirators to agree as well as to defraud the United States. McKee, 506 F.3d at 238. Root argues that the Government cannot meet its burden with regard to the first prong because it cannot prove an agreement between Root and McCracken to defraud the United States.

Root argues that to prove that he and McCracken conspired to defraud the United States, the Government must prove not only that Root himself evaded taxes, but also that McCracken did so as well. This argument overstates the Government’s burden. Root relies heavily on United States v. Adkinson, 158 F.3d 1147 (11th Cir.1998), in which the Court of Appeals for the Eleventh Circuit reversed the convictions of four defendants in the absence of “evidence of an agreement by all for each to evade his income taxes.” 158 F.3d at 1154. Adkinson is factually distinguishable, however.

In that case, in addition to asserting a conspiracy, the Government alleged that each of the three defendants had failed to file tax returns or filed a false return. Id. at 1154 n. 15. Therefore, the court required “evidence of an agreement by all for each to evade his income taxes.” This stray language should not be interpreted to require that all tax-related conspiracies require that each conspirator file a false return.

In Root’s case, the Government need only prove that he and McCracken agreed to impede the lawful functions of the IRS in some manner and that one of the two men took some overt act in furtherance of that goal. In the present case, the Government asserts that Root and McCracken conspired to defraud the United States with respect to Root’s taxes; there is no need for the Government to prove that the men also conspired with regard to McCracken’s taxes as well.

If they also conspired to defraud the IRS with respect to McCracken’s taxes — which is not alleged in this case — that would be an entirely different conspiracy and could have been charged separately. Root also argues that the Government did not prove that Root and McCracken had any agreement.

Though there is no direct evidence of an agreement in this case, an agreement to defraud the United States “can be proven circumstantially based upon reasonable inferenees drawn from actions and statements of the conspirators or from the circumstances surrounding the scheme.” McKee, 506 F.3d at 238; see also United States v. Smith, 294 F.3d 473, 478 (3d Cir.2002) (finding that a reasonable juror could certainly conclude that a tacit agreement exists amongst a group of people when they engage in “so many unusual acts”); United States v.

Barr, 963 F.2d 641, 650 (3d Cir.1992) (“It is well settled that a written or spoken agreement among alleged co-conspirators is unnecessary; rather, indirect evidence of [a] mere tacit understanding will suffice.”). When the Government relies on circumstantial evidence to establish a tax conspiracy, “the circumstances must be such as to warrant a jury’s finding that the alleged conspirators had some common design with unity of purpose to impede the IRS.” McKee, 506 F.3d at 240.

The evidence must be sufficient to show that impeding the IRS was one of the conspiracy’s objects, and not merely a foreseeable consequence or collateral effect. United States v. Gricco, 277 F.3d 339, 348 (3d Cir.2002). The Government presented ample circumstantial evidence to support the jury’s finding that Root and McCracken had an agreement to defraud the IRS with regard to Root’s taxes.

Root was not an uneducated citizen caught up in the complexities of the tax code; he was an experienced businessman and former lawyer who had knowledge of tax issues and familiarity with creating limited liability companies and proprietorships. Viewing the evidence in the light most favorable to the verdict, a reasonable juror could conclude that Root’s requests to have his commissions and other payments directed to New Perspectives and LISA were intended to avoid paying income taxes on that income.

Indeed, shortly after Root requested in writing that McCracken assign his commission payments to New Perspectives, McCracken directed RBI’s bookkeeper, Barbara Williamson, to send Root’s payments to New Perspectives and his own payments to a limited liability company that Root had created for him. A reasonable juror could infer that the men had discussed the benefits of diverting payments to a limited liability company and that McCracken decided to follow Root’s example.

Furthermore, Williamson testified that she had a discussion with both McCracken and Root regarding whether 1099s should be issued to their respective limited liability companies with regard to those payments. The men said they would look into the matter, but McCracken later told Williamson that she need not fill out such forms. Though Williamson could not recall whether Root participated in the second conversation, a reasonable juror could infer that Root and McCracken agreed to misinform Williamson in an attempt to conceal Root’s income.

Finally, at Root’s request, McCracken signed a “Commission Agreement” diverting Root’s commissions to New Perspectives. Root’s wife Kathy signed that agreement on behalf of New Perspectives, even though Thomas Root performed all of the services meriting those payments. The Commission Agreement was later found at RBI in a folder marked “Framco,” allowing a reasonable juror to connect McCracken’s limited liability company with Root’s limited liability company. Accordingly, we hold that the evidence was sufficient to support Root’s conspiracy conviction. V.

For the foregoing reasons, we find no error by the District Court and will affirm Root’s judgment of conviction. . New Perspectives was owned 85% by Kathy Root and 15% by Thomas Root. . The District Court had jurisdiction pursuant to 18 U.S.C. § 3231 and we have jurisdiction pursuant to 28 U.S.C. § 1291. . The Government erroneously argues that Root was charged with evading both the assessment and payment of his taxes.

Though the indictment charged that Root "evaded the payment of more than $40,000 in federal income taxes,” the reason Root evaded that payment was that he shielded aspects of his income from being assessed in the first place. Under the Government's definition, every evasion of assessment would also be an evasion of payment because the evasion of assessment would logically lead to a shortfall in tax payment. Therefore, we reject the Government's characterization of the evasion in this case. .

Our concurring colleague asserts that this case is not of precedential import because the resolution of the issue we decide today was foretold by Pollen. But Pollen concerned an evasion of payment and this case concerns an evasion of assessment. Moreover, to the extent that Pollen addressed only the issue of "multiplicitous” and not “duplicitous” charges, our decision today makes clear that the reasoning of Pollen extends to both charging scenarios. See Concurrence at 159 n. 7 ("As the issue in Pollen was whether the indictment was 'multiplicitous,' we did not directly address duplicity as we do here.”). .

For the same reason, Root’s reliance on United States v. Smith, 335 F.2d 898 (7th Cir.1964), asks too much. In that case, the government brought separate counts alleging that the defendant evaded his taxes in 1951, 1952, and 1953. The defendant claimed a due process violation with regard to the 1951 count and sought dismissal of his entire case as a result.

The Seventh Circuit disagreed: "We agree that the three counts might be said to pertain to a 'continuing course of illegal conduct,' in the sense that the intention was to avoid taxes so long as payoffs continued, but in a criminal tax evasion case each year stands alone, and the failure to pay taxes in each of the years involved constitutes a separate offense.” Id. at 900-01. Root argues that Smith requires that the appropriate unit of prosecution must be one year.

But Smith indicates only that the 1952 and 1953 charges can exist independent of the 1951 charge, even if those charges were part of a larger pattern of activity that also included the 1951 count which was under challenge. This supports the notion that charges for separate years may be brought separately, not that they must be brought separately. . The concurrence correctly notes that inflation diminishes the real value of money over time. See Concurrence at 168-69.

Thus, the "$3,358.68 of taxes held to be substantial evasion for the tax year 1980 in Davenport ... is equivalent to $7,218.72 in 2001, the first year for which Root is charged.” Id. at 168— 69 (analyzing Davenport, 824 F.2d at 1516—17). This inflationary impact, the concurrence argues, undermines the significance of several of the older cases we cite to support our conclusion that

section 7201's requirement of a "substantial” tax deficiency does not set a high bar for the Government. Id. In the present case, however, Root’s individual tax deficiency amounted to $11,571 in 2001, $19,619 in 2002, and $6,473 in 2003. Therefore, even after accounting for the effect of inflation, Root’s tax deficiency for the years 2001 and 2002 would still far exceed the low level found to be “substantial” in Davenport. Further, Root’s tax deficiency of $6,473 for 2003 would be just $745.72 less than the 2001 equivalent of the tax deficiency that the Seventh Circuit found to be substantial in Davenport.