Keller Tank Services II, Inc. v Commissioner of Internal Revenue

Keller appealed the order affirming levy of a penalty for failure to report a transaction. The panel affirmed. It first held the appeal was not moot because the parallel deficiency proceeding rustled in collateral estopel which is not a basis for mootness, the stipulations in the deficiency proceedings were limited to that proceeding not the penalty proceeding at issue here and the challenges here go beyond whether the transaction here was a “listed transaction” which had to be disclosed. It held that 26 USC 6330(c)(2)(B) which bars challenges to liability at the levy stage when the taxpayer had an opportunity to dispute the liability was ambiguous as it was unclear from the text whether administrative opportunities were covered and that Chevron deference was owed Commissioner’s interpretation of the phase to include administrative hearings as that interpretation is reasonable as it is not precluded by the text and fits within the whole scheme of notifications and levies particularly as only baring liability challenges at the levy stage when a prior judicial determination was made would undermine congressional intent to encourage use of the informal internal appeals process. It rejected Keller’s counterarguments holding the limitation did not diminish any court’s jurisdiction and there are no internal inconsistences in the interpretation.

United States v Russian

Russian appealed the denial of his motion to suppress evidence from two cell phones and his sentence. The panel firmed the denial and remanded for resentencing. The panel first extended circuit precedent on computer searches to cell phone searches and concluded the warrant here was invalid as it did not facially authorize the search of the two cell phones which were already in police custody nor specify what could be seized. However, for two independent reasons, the panel held the denial was correct. First, as the searching officer’s reliance on the warrant was objectively reasonable as he had identified the cell phones and the data to be seized in the application, the application and affidavit were signed by the issuing magistrate, the search was limited to the data mentioned in the application and the officer attempted to follow the law throughout the process and thus there was no misconduct to deter. Second, the panel held any error was harmless as two of four convictions were supported by evidence completely unrelated to the cell phone data and the other two were supported by overwhelming evidence unrelated to the cell phone data. It reamed for resentencing as the guideline range was based in part on a prior conviction too old to include and another part of eth sentence exceed the statutory maximum.

United States v Wright

Wright appealed his conspiracy and bank fraud convictions and restitution order. The panel affirmed. It held there was no error in the conspiracy jury instruction as it required a finding that Wright agreed to commit bank fraud and the next instruction identified intent to defraud as an element. It held Wright waived any argument about how the judge answered a question from the jury by failing to argue plain error on appeal. It held there was no error in denying Wright’s new trial motion as the impeachment evidence not turned over was immaterial given the witness’s admission to stealing money from the bank and lying under oath about it. It finally held that Wright waived any challenge to the restitution amount by failing to object at the sentencing hearing.