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United States v. Johnson

United States Court of Appeals, Eighth Circuit

July 31, 2015

United States of America, Plaintiff - Appellee,
v.
Kimberly Johnson, Defendant - Appellant. United States of America, Plaintiff - Appellee,
v.
Nkosi Gray, Defendant - Appellant

Submitted April 13, 2015

Appeals from United States District Court for the Western District of Missouri - Kansas City.

For United States of America, Plaintiff - Appellee (14-2460): Thomas M. Larson, Daniel M. Nelson, Assistant U.S. Attorney, U.S. Attorney's Office, Kansas City, MO.

Kimberly Johnson, Defendant - Appellant (14-2460), Pro se, Ariton, AL.

For Kimberly Johnson, Defendant - Appellant (14-2460): Melanie Susan Morgan, Morgan & Pilate, Kansas City, MO.

For United States of America, Plaintiff - Appellee (14-2603): Thomas M. Larson, Daniel M. Nelson, Assistant U.S. Attorney, U.S. Attorney's Office, Kansas City, MO.

Nkosi Gray, Defendant - Appellant (14-2603), Pro se, Danbury, CT.

For Nkosi Gray, Defendant - Appellant (14-2603): Lisa G. Nouri, Kansas City, MO.

Before MURPHY, COLLOTON, and KELLY, Circuit Judges.

OPINION

COLLOTON, Circuit Judge.

Following a jury trial, Kimberly Johnson and Nkosi Gray were each convicted of one count of making a false claim for a tax refund, in violation of 18 U.S.C. § 287. The district court[1] sentenced Johnson to 48 months' imprisonment and Gray to 60 months' imprisonment. Johnson appeals, challenging the sufficiency of the evidence supporting her conviction. Gray appeals his sentence, arguing that the district court erred under the advisory sentencing guidelines in calculating the intended amount of loss and in applying an increase for an offense that involves sophisticated means. We affirm.

I.

Johnson and Gray were convicted in relation to a tax fraud scheme run by Gerald Poynter. Poynter's scheme was known as an Original Issue Discount scheme. Original Issue Discount forms (" OID" forms, for short) are tax forms designed to report an individual's interest income derived from investments such as municipal bonds and certificates of deposit. In an OID scheme, filers falsely list large amounts of OID income and corresponding large amounts of withholding. Instead of listing actual OID income, the filers list debt, including credit card debts and mortgages. The filers also falsely represent that a large amount of their OID income was withheld, and they thus claim that they are entitled to large tax refunds.

Poynter promoted the scheme through conference calls and seminars that he held across the country. In December 2008, Johnson attended one of these seminars at a hotel in Atlanta, Georgia, where Poynter gave a presentation outlining the OID process. On February 10, 2009, Johnson signed a contract with Poynter, in which she agreed to serve as one of his " branch managers" or " affiliates." As a branch manager, ...


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