CONVICTION UPHELD FOR PREPARING FRAUDULENT RETURNS.

                   UNITED STATES COURT OF APPEALS

[2] Defendant who was convicted of mail fraud and aiding in the preparation of false federal tax returns, JA at 235, contends his conviction must be set aside by reason of several errors. We reject his contentions.

[3] Defendant contends the court erred in its charge to the jury when it spoke of the "government['s] conten[tion] that it was reasonably foreseeable that the mails would be used in the mailing of the fraudulent tax returns." JA at 214, Blue at 16. Defendant, who did not object at trial, contends this effectively instructed the jury that the tax returns were fraudulent, which was a key disputed issue in the trial. Blue at 16-20. We disagree. The court clearly instructed the jury on the Government's obligation to prove that the returns were fraudulent. It was clear in context that this reference was to the Government's contention. Nor is there merit to defendant's contention that the judge was obligated to explain the defendant's theory. See United States v. Taylor, 562 F.2d 1345, 1364 (2d Cir.), cert. denied, 432 U.S. 909 (1977).

[4] Defendant contends Counts 36 through 39 were not proved because the Dinatos, whose returns were the subject of the counts, did not testify. Defendant contends this left open whether the information on the return was false, and if so, whether the information came from the defendant or the taxpayers. Blue at 26, 27. The evidence, however, established that the named charity, which the defendant repeatedly used as a subject of fraudulent claims for deductions based on charitable gifts, did not receive the gifts claimed and that the defendant repeatedly fabricated charitable donations by his clients to this charity. TR at 1212-21. The jury could properly infer from this evidence that the returns prepared by the defendant for the Dinatos were similarly fraudulent and that the false information came from the defendant and not from the Dinatos.

[5] There is no merit to the contention that the court violated the defendant's confrontation rights by disallowing cross examination concerning a witness's more-than-ten-year-old convictions for reckless endangerment and burglary. This ruling was within the trial judge's discretion. See United States v. Sasso, 59 F.3d 341, 347, 348 (2d Cir. 1995).

[6] Nor was it error to include a copy of the indictment in the jurors' notebooks when jurors were instructed that the indictment was not evidence.