United States of America v. Carter White Rae

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0202n.06
No. 15-1483
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CARTER WHITE RAE,
Defendant-Appellant.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN
BEFORE: SUHRHEINRICH, McKEAGUE, and DONALD, Circuit Judges.
SUHRHEINRICH, Circuit Judge.
Defendant Carter White Rae (Rae) appeals the district court’s refusal to give a good faith
jury instruction during his trial for criminal tax evasion and the court’s imposition of a
sophisticated means enhancement to his sentence for tax evasion. We affirm.
I.
Rae, a dentist, owned and operated a dental practice in Rose City, Michigan. The trial
record established that Rae filed income tax returns with the State of Michigan and the United
States for decades, but never paid the amount owed, apparently because he believed that he was
not obligated to pay income taxes. Rae signed the returns, while refuting them in lengthy,
pleading-like correspondences outlining his views.1
1Most of these letters were not made part of the evidence before the jury.

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The record also established, and Rae does not dispute, that he was repeatedly informed
that his theories on income and taxes were legally incorrect by judicial officers and government
agencies. For example, the government introduced the report and recommendation of a
magistrate judge rejecting on the merits Rae’s petition to quash an Internal Revenue Service
summons and the district court’s order adopting it. The government also presented the transcript
of a colloquy between Rae and a bankruptcy judge during Rae’s Chapter 13 bankruptcy hearing
in 1997 discussing Rae’s gross income and expenses. In addition, the government also offered
numerous correspondences from both the Internal Revenue Service (IRS) and the State of
Michigan Treasury Department. These included notices of IRS levy, IRS past due reminder
notices, a Publication 2106, entitled “Why do I have to pay taxes?”, and final assessments or tax
bills from the Michigan Department of Treasury.
Rae did not have either W-2s or Forms 1099 issued to himself by the dental practice. He
also did not withhold any taxes from the paychecks he wrote to himself, though he made the
required withholdings from the wages he paid to his employees.
Rae hid his income in various ways. He operated his dental practice under the name and
EIN (employment identification number) of the former owner of the dental practice, R.J. Miriani,
DDS, P.C., despite a contractual obligation to change the name of the practice. Rae also used
Miriani’s name and EIN on a business bank account and credit card account for the dental
practice. He closed his personal bank account and used the business bank account and dental
practice credit card, cash, and money orders to pay his personal expenses. Thus, state tax levies
mailed to a local bank for accounts in Rae’s name were returned to the state because the bank did
not have an account for Rae. To prevent the IRS from levying against dental insurance payments

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owed to him, Rae arranged to have the payments made to his patients, who would then pay him
for his services.
Rae did not own any real property in his own name, renting his office and living spaces,
thereby preventing the government from placing liens against his interests. Rae’s wife, on the
other hand, owned a home in Utah in her own name. A dental hygienist, she was on the payroll
of the dental practice. She was paid weekly, although she lived in another state and worked only
occasionally in the practice.
Based on Rae’s disclosures on his tax returns, as of November 3, 2014, he owed the
federal government $465,668.26, and the State of Michigan $83,630.75, for a total of
$549,299.01 for tax years 1999 to 2011.
Rae was charged with one count of evading his federal income tax obligation from 2001
to 2011, in violation of 26 U.S.C. § 7201 (Count 1); using the mail in furtherance of his scheme
to defraud the United States and the State of Michigan, in violation of 18 U.S.C. § 1341 (Count
2); and willfully providing materially false information to the IRS by claiming that regular
payments made to his wife were payroll expenses, in violation of 18 U.S.C. §§ 1001 and 1002.
Prior to trial and again at the close of the government’s case, Rae requested a good faith jury
instruction based on Cheek v. United States, 498 U.S. 192, 203 (1991) (holding that an honest
but mistaken, even unreasonable, view of tax laws negates willfulness).2 The district court
denied Rae’s request. The jury convicted Rae on all three counts.
Over Rae’s objection, the district court increased Rae’s base offense level by two levels
because it found that the offense involved sophisticated means. See U.S. Sentencing Guidelines
Manual § 2T1.1(b)(2). This yielded a total offense level of 22. Coupled with a criminal history
2 Rae also filed a Motion to Dismiss Counts in which he argued that Counts 1 and 2 should be dismissed because he
was not a “person” for purposes of the tax evasion statute, § 7201. The district court denied the motion along with
Rae’s request for a good faith instruction.

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category I, the resulting advisory guidelines range was 41 to 51 months’ imprisonment. Rae was
sentenced to serve concurrent custodial sentences on all counts of 45 months’ imprisonment and
ordered to pay restitution totaling $549,299.01 to the United States and the State of Michigan.
Rae makes two arguments on appeal.
II.
A.
First, Rae alleges that the district court erred by failing to give a good faith jury
instruction regarding the tax evasion charge in Count 1, based on his belief that he was not
required under the Internal Revenue Code to pay income taxes. Rae contends that the record
supported a good faith defense. Challenges to a district court’s decision not to give a requested
jury instruction are reviewed under an abuse of discretion standard rather than de novo. United
States v. Blood, 435 F.3d 612, 623 (6th Cir. 2006). “An omission, or an incomplete instruction,
is less likely to be prejudicial than a misstatement of the law.” Henderson v. Kibbe, 431 U.S.
145, 155 (1977). When reviewing a district court’s decision not to give a jury instruction, we
must reverse only if we find that the proposed instruction is correct, not substantially covered by
the actual jury charge, and “so important that failure to give it substantially impairs defendant’s
defense.” United States v. Sassak, 881 F.2d 276, 279 (6th Cir. 1989).
The district court instructed the jury that as to Count 1, tax evasion in violation of § 7201,
the government was required to prove that: (1) Rae owed the income tax, (2) Rae committed an
affirmative act constituting an evasion or an attempt to evade or defeat his tax obligation, and
(3) that in evading or attempting to evade or defeat his tax obligation, Rae acted willfully. The
district court defined “willfully” as follows:

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An act or failure to act is willful. For purposes of tax evasion . . . it is voluntary,
intentional violation of a known legal duty rather than the result of an accident,
mistake or negligence. (Emphasis added.)
The district court effectively and correctly instructed the jury as to willfulness, which “in
this context simply means a voluntary, intentional violation of a known legal duty.” United
States v. Pomponio, 429 U.S. 10, 12 (1976) (per curiam) (explaining the statutory definition of
willfulness in the Internal Revenue Code); see also United States v. Damra, 621 F.3d 474, 502
(6th Cir. 2010) (holding that the district court “effectively and correctly” instructed the jury on
willfulness element by matching the language used in Pomponio). Because “the good faith-
requirement is effectively bundled into the willfulness instruction,” no separate instruction
regarding good faith is required. Damra, 621 F.3d at 502; see also Sassak, 881 F.2d at 280
(holding that substance of proposed good faith belief instruction was fully covered by willfulness
instruction given). Thus, a jury’s finding of willfulness under this definition “‘would necessarily
negate any possibility’ that the defendant acted in good faith.” Damra, 621 F.3d at 502-03
(quoting United States v. Tarwater, 308 F.3d 494, 510 (6th Cir. 2002)). As the Supreme Court
explained in Cheek, “one cannot be aware that the law imposes a duty upon him and yet be
ignorant of it, misunderstand the law, or believe the duty does not exist.” Cheek, 498 U.S. at
201; see also id., at 205 (rejecting constitutional as-applied challenge under the Pomponio line of
cases because such claims “reveal full knowledge of the provisions at issue and a studied
conclusion, however, wrong,” and not from “innocent mistakes caused by the complexity of the
Internal Revenue Code”).
Contrary to Rae’s assertion, Cheek does not require a separate good faith instruction.
Rather, Cheek merely held that the trial court in that case erred in instructing the jury that good
faith was measured by an objective rather than a subjective standard, and that an unreasonable

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belief did not negate willfulness. See Cheek, 498 U.S. at 202 (“Characterizing a particular belief
as not objectively reasonable transforms the inquiry into a legal one and would prevent the jury
from considering it.”) In short, the district court did not abuse its discretion by declining to
provide an additional good faith instruction.
Rae alleges that his “various correspondence through the years” to the IRS and State of
Michigan as well as his failure to respond to district court order directing him to comply with the
IRS summons “show that he had a history of disbelief as to what he was told by government
officials and agencies, supporting the position of his good faith belief that he did not have to pay
the taxes.” Reply Br. at 1. He claims that the jury instruction given was “not sufficient for the
jury to adequately consider Dr. Rae’s intent as displayed through his good faith defense in this
case.” Reply Br. at 3. But, as noted, the Supreme Court and this court have held that an
instruction like the one given by the district court in this case is sufficient because it incorporates
the concept of subjective good faith belief.
Furthermore, as the district court held, an additional instruction was not warranted on this
record. Rae did not testify, and he did not offer any evidence at trial. And, in both opening
statements and closing arguments, Rae’s attorney told the jury that Rae’s “theory of defense”
was that he researched the law and “drew conclusions” that he was not subject to taxes, and that
“even if eccentric, he held the belief in good faith.” In short, Rae’s argument is without merit,
because the proposed good faith instruction was substantially covered by the instruction given
and its omission did not substantially impair the defense. See Sassak, 881 F.2d at 279.

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B.
Rae also contends that the district court erred in applying a two-point enhancement for
using “sophisticated means” to hide his tax-evasive conduct. “A determination of whether
conduct constitutes ‘sophisticated means’ is a question of fact[.]” United States v. Kraig,
99 F.3d 1361, 1371 (6th Cir. 1996). We review the district court’s factual conclusions for clear
error. United States v. Middleton, 246 F.3d 825, 847-48 (6th Cir. 2001).
The Guidelines direct that two points be added to a defendant’s base offense level in a tax
fraud case “[i]f sophisticated means were used to impede discovery of the existence or extent of
the offense.” U.S.S.G. § 2T1.1(b)(2). The commentary to that section provides the following:
For the purposes of subsection (b)(2), “sophisticated means” means especially
complex or especially intricate offense conduct pertaining to the execution or
concealment of an offense. Conduct such as hiding assets or transactions or both,
through the use of fictitious entities, corporate shells, or offshore financial
accounts ordinarily indicates sophisticated means.
Id. at cmt. n.5. These examples are not exclusive. United States v. Clear, 112 F. App’x
429, 431 (6th Cir. 2004).
Rae contends that the district court erroneously based the enhancement on Rae’s use of
the prior owner’s EIN, which is perfectly legal and common where a stock purchase occurred.
Rae mischaracterizes the record. The district court recognized that regardless of its legality,
Rae’s use of the former owner’s EIN was relevant to the question of Rae’s use of sophisticated
means to evade his taxes. At trial, the district court remarked that Rae’s use of Miriani’s EIN
was “[a]n interesting debatable point,” but not relevant because Rae’s “use of the EIN, so far as
the evidence is reflected, was simply as a vehicle, an alternative vehicle to the EIN that had been
procured by the doctor as a way of avoiding collection by the service.” At sentencing the district

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court explained that the continued use of the former owner’s identification number “was
precisely for the point of attempting to reflect to the government the fact that the tax liability was
that of the . . . former owner. It was a mechanism I would categorize as intricate in nature to
misidentifying the income with the associated taxpayer.” The district court also provided a
second basis for the enhancement: –the manner in which Rae diverted dental insurance payments
owed to him so that the IRS could not place a lien on them. Both bases support the
enhancement. Cf. Clear, 112 F. App’x at 431 (holding that the defendant’s depositing of checks
in a warehouse bank and using family members to cash checks were sophisticated means).
Contrary to his suggestion, Rae does not resemble the defendant in Kraig. The Kraig
defendant did not receive a sophisticated means enhancement because he was not personally
involved in establishing Swiss bank accounts and shell corporations that facilitated a complex
conspiracy to evade taxes. Kraig, 99 F.3 at 1371. Instead, Rae is like the defendant in United
States v. Pierce, who received the enhancement because he gave his employer false information,
used several mailing addresses to impede discovery of his tax evasion, charged excessive
withholding deductions so as not to alert the IRS, and had his wife file misleading returns. See
United States v. Pierce, 17 F.3d 146, 151 (6th Cir. 1994) (remarking that “[t]his was not a case
of an individual who simply lied on a 1040 form”). Rae’s actions—using the former owner’s
EIN and arranging for dental insurance payment to be made indirectly—similarly demonstrate a
level of planning designed to avoid paying taxes that exceeds routine tax evasion. The district
court did not clearly err in finding that these activities constituted sophisticated means.
III.
For the foregoing reasons, we AFFIRM the judgment of the district court.

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