FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS Hon. William G. Young, U.S. District Judge
Schneider for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Andrew E. Lelling, United States Attorney, was on brief, for
Howard, Chief Judge, Thompson and Barron, Circuit Judges.
THOMPSON, Circuit Judge.
Takesian is a certified-public-accountant-turned-tax-cheat.
Or so a jury essentially concluded in convicting him of four
counts of filing false tax returns, see 26 U.S.C.
§ 7206(1), and one count of attempting to obstruct the
internal-revenue laws, see 26 U.S.C. § 7212(a).
A district judge at sentencing hit him with concurrent prison
terms of 24 months on each count, 12 months of supervised
release following the end of his incarceration, a special
assessment of $100 on each count, a $10, 000 fine, and
restitution totaling $286, 433. None too happy with these
results, Takesian argues here that the judge thrice erred:
first, by letting prosecutors impeach him with his 2006
conviction for making a false statement; second, by failing
to tell the jury that to convict on the obstruction count,
prosecutors had to prove that he obstructed a particular
tax-related proceeding that he knew about or could reasonably
foresee; and third, by ordering restitution beyond what the
jury found the government's tax loss to be. Disagreeing
with him, we affirm.
is a barebones summary of the relevant facts, presented in as
balanced a manner as possible. See, e.g., United
States v. Rodríguez-Soler, 773 F.3d 289, 290 (1st
government's witnesses (primarily law-enforcement
agents), plus the documentary evidence, provided the
with his father, Michael (we use his first name not out of
disrespect, but to avoid confusing references to persons with
the same last name), Takesian formed a company in 2002 called
Takesian & Company (from now on, "T & C") -
an S corporation for federal-tax purposes. For an S
corporation, profits and losses flow through to the
shareholders and must be reported on their personal tax
returns. The annual amount of profit or loss to a given
shareholder is reflected in a form known as a "Form
K-1," which the S corporation files with the Internal
Revenue Service (familiarly known as the "IRS") and
the shareholders use to prepare their personal returns.
Initially, Takesian held a 25% ownership share and Michael
held a 75% share. But from 2007 through 2015 (when T & C
dissolved), Michael was the sole owner. Takesian, though,
served as T & C's president and treasurer, handling T
& C's day-to-day operations.
early years, T & C did tax work for a number of clients.
But that changed in 2007, when the father-son duo started
working almost full time for Michael Galatis, doing
bookkeeping and accounting jobs for Galatis and At Home VNA
(Galatis's visiting-nurse company). From 2008 to 2011,
Galatis and At Home VNA paid T & C about $2 million,
which ended up being deposited in T & C's bank
accounts. Takesian had access to T & C's accounts
during that same period, however. And he put close to $1
million of this money to his own use, through checks, cash
withdrawals, and credit-card payments. A few examples: he
used the money to pay for his rent and to underwrite an
investment in a food truck, as well as to support his wife
(from whom he was separated) and a woman he was romantically
involved with (she was studying to be a massage therapist).
did not timely file his personal tax returns for tax years
2008-2010. From July 2011 through early 2012, however, he
filed personal tax returns for tax years 2008-2011 for
himself and his wife. He signed each return, attesting -
under penalty of perjury - that they were "true,
correct, and complete." None of the returns reflected
the money from T & C that he had put to his personal use.
For instance, the 2008 return did not report any income from
T & C - it showed only $12, 766 in wages from Cerebral
Palsy of Massachusetts and about $10, 000 in gross receipts
for a consulting business called "Greg C. Takesian,
CPA." Yet during that year, he took $159, 044.99 from T
& C's accounts for personal purposes.
of a healthcare-fraud investigation of At Home VNA (which
received Medicaid and Medicare funds), federal agents
executed a search warrant at At Home VNA's offices in
December 2011. During the search, the agents ran into
Takesian, who was working in an office in the same suite. And
he voluntarily said that he did accounting work for At Home
VNA and Galatis. He also voluntarily gave the agents 26 boxes
of warrant-related documents.
in 2012, the IRS began investigating T & C and Takesian.
But the healthcare-fraud investigation continued too. And in
April 2013, as part of the healthcare-fraud probe, a federal
grand jury subpoenaed T & C's documents memorializing
T & C's income, expenses, and debts for 2006 through
2011, including copies of corporate tax returns and loans
receivable (loans receivable is an account in a lender's
general ledger showing the current balance of all loans owed
to it). About a month later, in May 2013, Takesian
personally delivered documents to the U.S. Attorney's
Office in Boston, Massachusetts. He tried to talk with the
prosecutor on the case. But the prosecutor said that he would
only speak to Takesian with Takesian's attorney present.
Takesian then said that he had brought "everything . . .
related" to At Home VNA and Galatis. He also said that
he had brought copies of T & C's tax returns for tax
years 2008-2011 - returns (the government later learned) that
he had printed out a day earlier but had never filed.
August 2013, Lauren Youngquist - an agent with the IRS's
criminal investigation division involved with the At-Home-VNA
case - interviewed Takesian. She said that she was not
investigating him, however. Actually, she never told him that
he was under investigation at all. But she did ask him about
his and T & C's tax returns.
forward a bit to March 2014. Agents interviewed Michael about
T & C's tax filings and operations, as well as
Takesian's role at T & C. Michael confirmed that
Takesian had given him "K-1 information" to prepare
his (Michael's) tax returns. Agents told Michael that
Takesian had not yet filed T & C's tax returns, which
surprised Michael because Takesian had given him info from
the K-1 forms associated with those returns and Michael had
relied on the info for his own taxes. Agents also gave
Michael a subpoena directing him to appear and testify before
a federal grand jury in April 2014.
months after this interview, in July or August 2014, Takesian
filed T & C's corporate returns for tax years
2008-2011. Among the differences between those returns and
the unfiled returns he had previously given the government,
two stand out: (1) the filed returns reflected tens of
thousands of dollars of unspecified "loans" to an
unidentified T & C "officer," unsupported by
any documents in the T & C files that he had provided
earlier (identifying these amounts as loans meant they did
not need to be counted as income by the loan's
recipient); and (2) the filed returns included K-1 forms that
did not match the unfiled ones.
around this time, Takesian filed amended personal returns for
tax years 2008-2011. These returns identified additional
income and new deductions. But despite the additional income,
the amounts reported there did not account for all of the T
& C money that he took for his personal use. And some of
the new deductions seemed off. To take just one example, in
some of the amended returns he claimed over $100, 000 in
losses through theft or fraud, but court records from a civil
suit involving him indicated that he had earlier pegged the
loss at $43, 000.
course, Takesian tested the prosecutors' case through his
lawyer's cross-examination of their witnesses. For
instance, on cross-examination, defense counsel elicited
testimony from IRS agent Youngquist that while she recalled
asking Takesian questions in August 2013 about T &
C's "tax returns and his personal tax returns,"
she could not "remember if [she] had the actual tax
returns in front of [her]" - and she agreed that if she
did not have his returns right then and there, she "most
likely" would not "have . . . asked him
questions" about his returns.
on the evidence it had amassed, and focusing on tax years
2008-2011, the prosecution contended that Takesian's
failure to accurately disclose his income from T & C and
to correctly calculate his deductions resulted in an
estimated tax underpayment of $286, 433.
to counter the government's narrative, Michael and
Takesian essentially testified as follows:
said that he let Takesian "borrow" money from T
& C to "invest." "I didn't care what
he did with it," Michael added, "except that
[Takesian] knew he had to pay the money back."
because of their father-son relationship, they did not do
"anything formal as far as signing notes, and so
forth," but instead relied on a "gentlemen's
agreement" - though Michael admitted that he did not
tell the grand jury about the loans. Turning to the T & C
credit cards, Michael said that he let Takesian use them,
with no strings attached.
the stand in his own defense, Takesian said that Michael had
told him that he could use T & C's funds and credit
cards as he "saw fit," as long as he did not deduct
personal expenses on T & C's returns. He also said
that he did not report the money his father had loaned him
because loan proceeds do not qualify as income to the
borrower. He said as well that he did not report various
personal payments he had made (to his wife and girlfriend,
for the food truck, etc.) because he had used the
loan proceeds to make them - and loan proceeds, he repeated,
are "non-taxable." Plus he said that he had drafted
T & C's final returns and his amended returns the way
he did because he had changed how T & C's returns
would be structured, moving certain income and losses from T
& C to himself and Michael - which he did after talking
with Michael. And he said that the government "never
told" him that the IRS had targeted him for
investigation and that he never received a subpoena requiring
him to produce his tax returns.
government's cross-examination of Takesian established
several points. For example, when asked if "Youngquist
asked . . . you questions about [T & C] and your tax
returns?" he responded, "Yes, brief questions about
[T & C] and my tax returns" - though he then said
that she "had no tax returns" and "didn't
ask me anything about that." He did admit that T &
C's unfiled returns did not mention the loan reflected in
the later return - though he claimed that the loan came not
from T & C but from Michael and was included in the filed
T & C return for record-keeping purposes. He also said
that about a month after agents interviewed Michael in March
2014, a prosecutor "threatened" to "get"
him and his father. "So with all this going on,"
the government asked, "is it your testimony that you had
no idea that you are somehow [the] subject of a federal
investigation at this time?" - to which Takesian
indicated that he knew he and T & C were under
investigation too, though he believed (based on the questions
asked of him) that the investigation centered on whether he
and Michael "were overpaid or . . . laundering money . .
. for Galatis"; "it was never about [his] tax
returns," he added.
Summations and Judge's Instructions
closing argument, the government (among other things)
criticized Takesian's theory of the case.
"Takesian," the government argued,
a CPA . . . for 25 years, . . . submitted fraudulent and
false income tax returns to the IRS, concealing close to a
million dollars in income . . . from the IRS. . . . When he
got caught and the IRS . . . started asking questions, . . .
he doubled down on those lies, and instead of trying to make
things right and filing corrected amended returns, he created
fictitious loans that came out of nowhere[;] he created
fraudulent deductions that tenfold increased the amount of
money to account for all the spending he had been doing for
that Takesian used T & C's "bank account . . .
like his own personal piggy bank" and that he knew
"how much money . . . he ha[d] spent," the
government argued that he also knew that he was "under
investigation," pointing to the "subpoenas";
"the draft filings he delivered to the U.S.
Attorney's Office"; and "the amended filings he
made," which "included the fraudulent and
fictitious loans and the fraudulent and inaccurate deductions
that are out of whack with reality."
closing, defense counsel argued (among other points) that
Michael had "loaned" Takesian about $1 million. On
the obstruction issue, counsel argued that prosecutors had
not proved "the exact and precise date that . . .
Takesian was actually placed on notice that his personal tax
returns . . . were being investigated[.]"
"[T]hey've alluded to a date," counsel said,
there may be evidence of what that date may or could have
been, but where is the individual that took the stand and
said 'I' . . . in fact told . . . Takesian, on a
certain date at a certain place at a certain time, that his
personal tax returns were being investigated?
an answer to his own question, counsel said "there was
no witness," adding as well that the prosecution had
"the burden . . . to establish that."
government's rebuttal closing asked the jury (as relevant
here) to reject "the idea that [Takesian] had no idea
that he was under investigation" and to find that he
acted as he did because "he got caught" and
"was trying to trick the IRS." "[F]or you to
believe that there was a loan in this case," the
government argued, "a loan that wiped out hundreds of
thousands of dollars in income, you have to believe . . .
Greg Takesian," a person convicted "in 2006 . . .
of a felony offense of making a false statement, . . . and
you can consider that evidence in evaluating his
judge instructed the jury (in pertinent part) that the
government had to prove that Takesian "willfully"
filed "false" federal tax returns - which means
"he did it voluntarily, he intended the violation of a
known legal duty." The judge explained that "the
law does permit you to make a good faith amendment" to
the returns. But, the judge said,
[t]he government claims they were not. [It] claim[s] that
this business about a loan from the father, Michael, to the
son, Greg, that's all after the fact, that's all made
up . . . once . . . Greg Takesian came to understand that the
Internal Revenue people were investigating him and the
propriety of his returns.
on the obstruction charge, the judge instructed that the
government had to prove
[t]hat . . . Takesian . . . did something in an effort to
obstruct or impede the due administration of the Internal
Revenue laws in the manner charged, and the manner charged is
this business about a loan - not just the filing of ...