093292P.pdf   07/21/2011  United States  v.  Francis McLain
   U.S. Court of Appeals Case No:  09-3292
   U.S. District Court for the District of Minnesota - St. Paul   
   [PUBLISHED] [Shepherd, Author, with Smith and Arnold, Circuit Judges]
   Criminal case - criminal law and sentencing. Evidence of defendant's
   compliance with Minnesota state tax law was relevant in his prosecution
   for failing to account for and pay employment taxes under 26 U.S.C. Sec.
   7202 as it went to willfulness and because defendant's beliefs regarding
   the status of his employees was a central issue at trial; jury instructions
   concerning the elements of a Section 7202 offense were not erroneous;
   evidence was sufficient to support defendant's conviction; with respect to
   defendant's sentencing, he could have violated Section 7206(2) by
   counseling others to file false tax returns even if they never filed a return;
   however, the section cannot be violated if a false return is never prepared,
   and the district court made no findings as to whether the other persons
   prepared returns that were false or fraudulent as to a material matter; as a
   result, the matter must be remanded for recalculation, based on the
   existing record, of the amount of loss.