United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO
ALLISON D. BURROUGHS, U.S. DISTRICT JUDGE
November 8, 2017, a grand jury returned a twenty-two-count
indictment against Defendant Nicholas A. Boulas
(“Boulas”), charging him with: one count of
corruptly endeavoring to obstruct the Internal Revenue
Service (“IRS”) in violation of 26 U.S.C. §
7212(a) (Count One); four counts of aiding and assisting in
the preparation and presentation of false corporate tax
returns in violation of 26 U.S.C. § 7206(2) (Counts Two
through Five); four counts of aiding and assisting in the
preparation and presentation of false individual tax returns
in violation of 26 U.S.C. § 7206(2) (Counts Six through
Nine); eight counts of aiding and assisting in the
preparation and presentation of false employment tax returns
in violation of 26 U.S.C. § 7206(2) (Counts Ten through
Seventeen); four counts of tax evasion in violation of 26
U.S.C. § 7201 (Counts Eighteen through Twenty-One); and
one count of structuring to evade currency transaction
reports in violation of 31 U.S.C. §§ 5324(a)(3) and
5324(d) and 31 C.F.R. §§ 1010.100, 1010.311, and
1010.313 (Count Twenty-Two). [ECF No. 1 (the
“Indictment”)]. Currently pending before the
Court is Boulas' motion to dismiss Counts One through
Seventeen and Count Twenty-Two of the Indictment. [ECF No.
56]. For the reasons stated below, the motion is DENIED.
Indictment alleges the following facts. Boulas owned and
operated Nick's Painting Services, Inc.
(“NPS”), which employed crews of painters to
provide painting services to residential and commercial
clients in the Boston, Massachusetts area. [ECF No. 1 ¶
2.]. He also owned approximately seven residential rental
properties in the Boston, Massachusetts area from which he
collected rent from the tenants. [Id. ¶ 3]. In
essence, the Indictment charges that Boulas engaged in a
scheme to defraud the IRS and the United States Treasury by
failing to report business and personal income derived from
NPS and the rental properties, paying NPS employees in cash
to avoid payroll taxes, and attempting to obstruct and impede
an IRS criminal investigation into his conduct. [Id.
support of this scheme, Boulas allegedly instructed a
substantial portion of NPS customers to pay for services
using checks payable to Boulas, individually. [Id.
¶ 11]. He then deposited and negotiated those checks
using a series of personal bank accounts that he maintained
at several banks, and he did not disclose the receipts on
NPS's tax returns. [Id.]. In an effort to
conceal these business receipts from the IRS, when Boulas
received customer checks made payable in amounts exceeding
$10, 000, he frequently deposited a portion of each check and
requested payment of the remaining balance in amounts less
than $10, 000 in order to avoid triggering the filing of
currency transaction reports (“CTR”).
[Id. ¶ 13].
about January 13, 2015, IRS Criminal Investigation Division
Special Agents interviewed Boulas at his home and asked him
about certain cash and financial transactions involving his
personal bank accounts. [Id. ¶ 20]. During the
interview, he falsely told the Special Agents that he had
reported all of NPS's income to the IRS. [Id.
¶ 21]. Following the interview, Boulas continued to
conceal income generated by NPS, and filed false corporate
and personal tax returns for the tax year 2014 that
under-reported business receipts and personal income.
[Id. ¶¶ 22-24]. The IRS served NPS with a
summons for production of corporate records on June 3, 2015.
[Id. ¶ 25]. In response, Boulas caused NPS to
produce records that substantially understated gross receipts
for the years requested. [Id. ¶ 26].
November 8, 2017, a grand jury returned the Indictment. [ECF
No. 1]. On August 17, 2018, Boulas moved to dismiss eighteen
of the twenty-two charges against him under Federal Rule of
Criminal Procedure 12(b). [ECF No. 56]. The Government filed
its opposition to the motion on September 7, 2018, and Boulas
filed a reply memorandum on September 17, 2018. [ECF Nos. 62,
STANDARD OF REVIEW
Rule of Criminal Procedure 12(b)(3) allows a defendant to
make a pretrial motion challenging a defective indictment
that fails to state an offense. “An indictment is
legally sufficient if it first, contains the elements of the
offense charged and fairly informs a defendant of the charge
against which he must defend, and, second, enables him to
plead an acquittal or conviction in bar of future
prosecutions for the same offense.” United States
v. Laureano-Perez, 797 F.3d 45, 60 (1st Cir. 2015)
(citations and quotation marks omitted); see also
Fed. R. Crim. P. 7(c). Although an indictment must contain a
“plain, concise and definite written statement of the
essential facts constituting the offense charged, ” and
“should be specific enough to notify the defendant of
the nature of the accusation against him and to apprise the
court of the facts alleged, ” United States v.
Berk, 652 F.3d 132, 137-38 (1st Cir. 2011) (citations
and quotation marks omitted), the government “need not
put forth specific evidence to survive a motion to
dismiss.” United States v. Ngige, 780 F.3d
497, 502 (1st Cir. 2015) (citing United States v.
Stewart, 744 F.3d 17, 21 (1st Cir. 2014)). “When a
defendant seeks dismissal of an indictment, courts take the
facts alleged in the indictment as true, mindful that
‘the question is not whether the government has
presented enough evidence to support the charge, but solely
whether the allegations in the indictment are sufficient to
apprise the defendant of the charged offense.'”
Ngige, 780 F.3d at 502 (quoting United States v.
Savarese, 686 F.3d 1, 7 (1st Cir. 2012)).
Count One: Corruptly Endeavoring to Obstruct the IRS
One of the indictment charges Boulas with “corruptly
endeavor[ing] to obstruct and impede the due administration
of the internal revenue laws” in violation of the
“Omnibus Clause” of 26 U.S.C. § 7212(a) by
the following means:
a. Cashing and depositing checks constituting NPS business
receipts using multiple personal bank accounts maintained at
b. Causing the preparation and filing of false and fraudulent
Forms 1120S for NPS that, among other false items,
significantly under-reported the gross receipts for the
c. Causing the preparation and filing of false and fraudulent
Forms 1040 for himself and his wife that, among other false
items, substantially under-reported total income for each tax
d. Paying NPS employees in cash;
e. · Causing to be filed false and fraudulent Forms
941 that understated the number of NPS employees, the wages
paid to employees, and the payroll taxes that were due;
f. After being questioned by an IRS agent, attempting to
obstruct and impede the IRS's investigation by, ...