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Sixth Circuit Affirms Refusal to Reopen Return Preparer’s Case

JUN. 14, 2021

United States v. Thomas L. Mercer

DATED JUN. 14, 2021
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United States v. Thomas L. Mercer

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
THOMAS L. MERCER,
Defendant-Appellant.

NOT RECOMMENDED FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN

ORDER

Before: SUTTON, Chief Judge; CLAY and NALBANDIAN, Circuit Judges.

Thomas L. Mercer, a former federal prisoner proceeding pro se, appeals the district court's order denying his motion to reopen his criminal case and reduce his restitution. This case has been referred to a panel of the court that, upon examination, unanimously agrees that oral argument is not needed. See Fed. R. App. P. 34(a).

In 2007, Mercer, a former tax preparer, pleaded guilty to twenty-three counts of aiding and abetting the filing of false tax returns, in violation of 26 U.S.C. § 7206(2), and seven counts of obstruction of the due administration of the internal revenue laws, in violation of 26 U.S.C. § 7212(a). The district court sentenced him to 86 months of imprisonment, to be followed by one year of supervised release. He was also ordered to pay $331,487 in restitution. After being allowed to self-report to prison, Mercer absconded, and his direct appeal was dismissed under the fugitive-disentitlement doctrine. United States v. Mercer, No. 08-1013 (6th Cir. Dec. 11, 2008) (order).

After Mercer's arrest and imprisonment, he moved to vacate his sentence under 28 U.S.C. § 2255, and the district court denied the motion. We denied him a certificate of appealability. Mercer v. United States, No. 10-1848 (6th Cir. Mar. 24, 2011) (order). He then filed multiple unsuccessful attacks on his convictions and sentence. In 2014, Mercer filed a motion to reduce the amount of his restitution, claiming that the Internal Revenue Service (IRS) had received payments from other sources that should have been used to offset his restitution obligation. The district court denied the motion. On appeal, we noted that under 18 U.S.C. § 3664(j)(2) his restitution should be reduced by the amount recovered by the IRS from the taxpayers for whom he had filed false tax returns, but we affirmed the denial of the motion because Mercer had not provided “any support for his allegation” that those taxpayers had paid the amount assessed by the IRS. United States v. Mercer, No. 15-1086 (6th Cir. Jan. 8, 2016) (order). Mercer continued to litigate his claim that his restitution should be reduced, both in his criminal case and civilly.

Mercer eventually filed a second motion to reopen his criminal case. In it, he claimed that all of the taxpayers involved in his tax-fraud scheme had been assessed by the IRS and therefore that his restitution should be reduced to account for the funds recovered by the IRS, pursuant to § 3664(j)(2). The district court denied the motion because Mercer had provided no “evidentiary basis” to support his claim that the taxpayers had paid their tax obligations. On appeal, we found that the district court had not abused its discretion because Mercer had not provided any evidentiary support for his allegations. During that appeal, Mercer submitted some evidence to this court that one of his former clients involved in the tax-fraud scheme had paid part of the assessments levied against her by the IRS, but we declined to review the evidence for the first time on appeal. United States v. Mercer, No. 19-2163 (6th Cir. Apr. 28, 2020) (order).

Based on the aforementioned new evidence, Mercer immediately filed another motion to reopen his criminal case and have his restitution reduced. The government acknowledged in response that the new evidence submitted by Mercer showed that one of his clients, Willie Mae Matthews, had paid the IRS a total of $4,953.00 in assessments, and thus that Mercer's restitution obligation should be reduced by that amount. The district court agreed and therefore reduced Mercer's restitution obligations from $331,487 to $326,534.

Mercer now appeals that determination, arguing that other former clients involved in his tax-fraud scheme must be paying off their assessments and thus entitling him to further reductions, that his restitution obligation should be reduced by the amount of money assessed against the clients involved in his scheme and not just the amount that has actually been recovered, and that the district court did not take into account the money he has himself paid off on his restitution obligation. He therefore asks this court to order the government to determine which of his former clients have or have not been assessed, to order the IRS to stop deducting payments from his social security checks, and to refund all of his restitution payments. The government responds that Mercer has still not presented any evidence that any of his debt to the IRS has been paid off by other parties except for the payments made by Matthews and that the district court did not abuse its discretion by declining to reduce his restitution obligation beyond the amount for which Mercer presented actual evidence.

We review for an abuse of discretion a district court's denial of a defendant's motion to reduce restitution. See United States v. Bogart, 576 F.3d 565, 569 (6th Cir. 2009); see also United States v. May, 500 F. App'x 458, 461 (6th Cir. 2012) (citing Bogart in the context of a § 3664(j)(2)(B) post-judgment motion to deem restitution paid). We stated in our evaluation of Mercer's first motion to reduce restitution:

Under § 3664(j)(2), “[a]ny amount paid to a victim under an order of restitution shall be reduced by any amount later recovered as compensatory damages for the same loss by the victim” in a federal or state “civil proceeding.” Although the language of the statute refers only to amounts recouped in civil proceedings, courts have held that a victim may not recover criminal restitution exceeding the amount of the loss. See, e.g., United States v. Williams, 612 F.3d 500, 510 (6th Cir. 2010); United States v. Nucci, 364 F.3d 419, 423 (2d Cir. 2004); United States v. Stanley, 309 F.3d 611, 613 (9th Cir. 2002). Thus, the amount of restitution owed to the IRS must be reduced by amounts recovered from taxpayers. United States v. Smith, 398 F. App'x 938, 942 (4th Cir. 2010).

Mercer, No. 15-1086, slip op. at pp. 2-3. Nonetheless, once the sentencing court has determined the amount of restitution, the defendant bears the burden of proving any offset. United States v. Sizemore, 850 F.3d 821, 828 (6th Cir. 2017).

As we explained in our previous orders, Mercer's conclusory statements are insufficient to support a reduction in his restitution obligation, and he must therefore provide evidentiary support to satisfy his burden of showing that portions of his restitution obligation have been paid off by other parties. Other than the documentation from Matthews, he has not done so. The government acknowledges in its response brief that the IRS has probably sought recoveries for overpayments of refunds to other clients of Mercer who were involved in his tax-fraud scheme, but merely alleging that such assessments have probably taken place does not mean that all of his restitution obligations have actually been paid off by other parties. And Mercer has not shown that he cannot obtain that information. Neither has he shown thus far that the IRS has received a double recovery on the total debt. Despite arguments to the contrary, Mercer has not shown that mere assessments by the IRS, rather than actual recoveries, are sufficient to offset his restitution, or that the district court is required to reduce his restitution obligation every time that he makes a payment. Accordingly, the district court did not abuse its discretion by reducing his restitution obligation only by the amount supported by the presented evidence.

For the reasons discussed above, we AFFIRM the district court's order.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

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