Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Tabares

United States District Court, N.D. Georgia, Atlanta Division

May 10, 2017

UNITED STATES OF AMERICA,
v.
CESAR ARBELAEZ TABARES, JUAN CARLOS BAZANTES, Defendants.

          ORDER

          HONORABLE STEVE C. JONES UNITED STATES DISTRICT JUDGE.

         This matter appears before the Court for consideration of a June 3, 2016 Report and Recommendation ("R&R") (Doc. No. [71]), in which The Honorable Janet F. King, United States Magistrate Judge, recommended that Defendants' Motion to Suppress (Doc. No. [28])[1" name="FN1" id="FN1">1] and their Motions to Dismiss various counts (Docs. No. [27], [29]) be denied. Defendants also object to Magistrate Judge King's decisions to deny their Motion for Discovery (Doc. No. [31]) and Motion for a Bill of Particulars (Doc. No. [32]). See Doc. No. [71], pp. 39-48, 90-94. Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Criminal Procedure 59(b)(2), Defendants timely filed their objections. Docs. No. [79');">79');">79');">79], [80');">80]. The Court has read the transcript of the suppression hearing in this case, as it is required to do, and this matter is now ripe for consideration. See United States v. Elsoffer, 644 F.2d 357, 358 (5th Cir. 1981) (per curiam).

         I. BACKGROUND

         Defendants are indicted on 12 counts. Doc. No. [1]. The first count charges that Defendants engaged in a conspiracy to (a) defraud the United States by impeding the lawful government functions of the Internal Revenue Service ("IRS") through evasion of employment taxes and (b) knowingly and willfully submit false certified payroll forms to the Centers for Disease Control and Prevention ("CDC"). Id. pp. 1-2, ¶l. Defendants are officers of IWES Drywall, Inc. ("IWES"), a company that provides dry wall laborers to contractors and subcontractors. Id. p. 2, ¶¶2-4. IWES entered into a contract with M.E., a subcontractor on a federally funded construction project with the CDC, and agreed to supply drywall laborers for the project. Id. p. 3, ¶7.

         The indictment alleges that Defendants maintained a spreadsheet with two categories of workers. Id. ¶8. One set of workers -classified as "W2.REAL" -received one paycheck per pay period, with employment taxes properly withheld, and were reported on Defendants' quarterly employment tax returns. Id. pp. 3-4, ¶¶8-9. The other set of workers -classified as " W2.F.2CHK" - received a paycheck that purportedly withheld employment taxes. Id. p. 4, ¶ 10. However, these workers also simultaneously received a second paycheck in an amount equal to the employment taxes allegedly withheld. Id. The "W2.F.2CHK" workers were not reported on IWES's quarterly employment tax returns filed with the IRS. Id. The Government alleges that "all of the I WES workers on the CDC construction project... were employees of IWES and should have been reported on IWES's quarterly employment tax returns." Id.11. IWES submitted certified payroll forms to M.E., which were transmitted to the CDC, containing the false representation that employment taxes were withheld for all of the IWES workers on the CDC project. Id.12.

         In Counts 2 through 6 Defendants are charged with violations of 26 U.S.C. § 7202 by allegedly failing to collect and pay over employment taxes for the "W2.F.2CHK" workers. Id. pp. 6');">p. 6-7, ¶¶21-22. In Counts 7 through 12 Defendants are charged with violations of 18 U.S.C. § 1001(a)(3) by submitting allegedly false documents to the CDC in the form of certified payrolls indicating that employment taxes were withheld for all IWES workers on the CDC project. Id. pp. 7-8, ¶¶23-24. Defendants' Motions to Dismiss challenge the substantive counts - Counts 2 through 12.

         II. LEGAL STANDARD

         A. Objections to an R&R

         As to the R&R's recommendations that the Court deny the Motions to Dismiss and the Motion to Suppress, the Court must "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). As to the R&R's denial of Defendants' Motion for Discovery and Motion for a Bill of Particulars, Defendants must demonstrate "that the magistrate judge's order is clearly erroneous or contrary to law." 28 U.S.C.A. § 636(b)(1)(A).

         B. Motions to Dismiss an Indictment

         In deciding a Motion to Dismiss charges in an indictment, the Court must determine whether "the factual allegations in the indictment, when viewed in the light most favorable to the government, [are] sufficient to charge the offense[s] as a matter of law." United States v. deVegter, 198 F.3d 1324');">198 F.3d 1324, 1327 (11th Cir. 1999). The focus is on the facts alleged in the indictment itself, not outside facts presented by Defendants or facts that need to be developed at trial. See United States v. Sharpe, 1257');">438 F.3d 1257, 1263 (11th Cir. 2006); United States v. Plummer, 221 F.3d 1298, 1302 n.3 (11th Cir. 2000). An indictment "must be sufficiently specific to inform the defendant of the charge against him and to enable him to plead double jeopardy in any future prosecution for the same offense." United States v. Cole, 755 F.2d 748, 759 (11th Cir. 1985). To clear this bar, the indictment need only include language "set[ting] forth the essential elements of the crime." Id., III. ANALYSIS

         A. Motions to Dismiss the Indictment

         1. Counts 2 through 6

         As noted above, Counts 2 through 6 charge Defendants with violations of 26 U.S.C. § 7202. A conviction under § 7202 requires proof that the defendant: (1) had a duty to collect, account for, or pay over a tax; (2) knew of the duty; and (3) willfully failed to collect, account for, or pay over the tax. United States v. Evangelista,122 F.3d 112, 121 (2d Cir. 1997). In support of their argument that the Court should dismiss Counts 2 through 6, Defendants raise three objections. First, they argue that the indictment does not sufficiently alleged that Defendants had a duty to withhold payroll taxes. Doc. No. [80');">80], pp. 4-6. Second, they contend that their substantive and procedural due process rights were violated because they were not given an opportunity to contest reclassification of their workers in the United States Tax Court ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.