UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 96-4785

VERN ODELL CRAWFORD,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia at Harrisonburg.
Jackson L. Kiser, Senior District Judge.
(CR-95-70108)

Argued: June 3, 1997

Decided: August 29, 1997

Before HALL and MICHAEL, Circuit Judges, and
TILLEY, United States District Judge for the
Middle District of North Carolina, sitting by designation.

_________________________________________________________________

Affirmed and remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Barry Ray Taylor, SCIALDONE & ASSOCIATES, Vir-
ginia Beach, Virginia, for Appellant. Michael Emile Karam, Tax
Division, UNITED STATES DEPARTMENT OF JUSTICE, Wash-
ington, D.C., for Appellee. ON BRIEF: Claude M. Scialdone, G.
Paul Martin, Third Year Law Student, SCIALDONE & ASSO-
CIATES, Virginia Beach, Virginia, for Appellant. Loretta C. Argrett,
Assistant Attorney General, Robert E. Lindsay, Alan Hechtkopf, Rob-
ert P. Crouch, Jr., United States Attorney, Tax Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Vern Odell Crawford was convicted of two counts of willful failure
to file a federal tax return in violation of 26 U.S.C. § 7203 and one
count of obstruction of justice in violation of 18 U.S.C. § 1503. He
appeals those convictions on several bases. Finding no reversible
error, we affirm but will remand so that the district court may con-
sider the motion for a new trial which was filed after this appeal was
noticed.

I.

During 1989-90, Appellant Vern Odell Crawford operated a variety
of businesses in Elkton, Virginia. These businesses included a grocery
store and gasoline station, an automobile wrecker service, a used car
and truck business, and a cattle and horse farm. He also owned sev-
eral rental properties in the area. Crawford paid all of his employees
in cash and transacted much of his business in cash. Up until May
1992, he did not deduct social security or taxes from his employees'
pay.

Crawford filed timely tax returns from 1979 to 1983. Beginning in
1984, however, he either failed to file or filed late returns. For the
years 1987, 1991, 1992, 1993 and 1994, Crawford filed no tax
returns. He filed late returns from 1984 through 1986. For 1988 and
the prosecution years, 1989 and 1990, Crawford did not have his

                    2
returns prepared until May 18-19, 1992 and did not file them until
May 22, 1992 (postmarked on May 19, 1992).

On May 18, 1992, Jack Higginbotham, a special agent for the IRS,
contacted Crawford to tell him that he needed to talk to Crawford
about his tax liability for the years 1988 through 1991. That evening
Crawford went to his accountant's home and told his accountant that
he needed to file the returns for those years. The two, along with
Crawford's wife, prepared the returns throughout the night and mailed
them, along with payment checks, on May 19, 1992 before Crawford
met with Mr. Higginbotham.

The investigation continued and a grand jury proceeding was held
in December 1992. The night before that hearing, Patricia Gail Little-
ton, an employee of the Crawfords and a paid informant for the state
police, went to Crawford's home. She testified that he instructed her
how to answer questions to the grand jury and made a statement
which she interpreted as a threat should she not comply. Another wit-
ness, Tina Marie Shifflett, the girlfriend of Crawford's son, testified
that Crawford told Littleton to go and tell the truth. After Littleton
testified before the grand jury, Crawford came to see her and asked
her what questions the grand jury had asked. Littleton also testified
that Crawford said that he would get a transcript of her testimony and
would know what she said.

Another former employee, Diane Meadows, testified at trial that
she was approached by Crawford and his family after she left his
employ. She was asked whether government agents had been to see
her. She responded that they had, that she had told them about her
wages ($4.00 an hour) and the method in which she was paid (cash)
while she worked for Crawford. She also told Crawford that the
agents showed her a paper she had signed while working for him stat-
ing that she would be responsible for her own taxes. She testified
Crawford responded that "someone had crossed him by them having
that paper."

II.

A.

Crawford first argues that there is insufficient evidence to sustain
his convictions for failure to file federal tax returns and for obstruc-

                     3
tion of justice. "In reviewing the sufficiency of the evidence to sup-
port a conviction, the relevant question is `whether, viewing the
evidence in the light most favorable to the government, any rational
trier of fact could have found the defendant guilty beyond a reason-
able doubt.'" United States v. Saunders, 

, 60 (4th Cir.
1989) (citations omitted).

1. Failure to file

Crawford was prosecuted under 26 U.S.C. § 7203 which makes it
a crime to "willfully fail to pay[ ] such estimated tax or tax, [or] make
such return . . . at the time or times required by law." To prove a vio-
lation of § 7203, the Government must show that the defendant was
(1) required to file a return; (2) failed to file the return; and (3) that
the failure to file was a willful failure. United States v. Ostendorff,

, 730 (4th Cir.), cert. denied, 

 (1967). The
Supreme Court has determined that wilfulness under the statute
means "voluntary, intentional violation of a known legal duty." Cheek
v. United States, 

, 201 (1991).

Crawford contends that there is insufficient evidence to sustain his
conviction because he filed his tax returns for 1989 and 1990 after an
IRS agent contacted him to set up an appointment to discuss his tax
liability for those years but before the agent informed him that the
investigation was criminal in nature. In support of his contention,
Crawford states that he is functionally illiterate and that he is totally
dependent on others for his bookkeeping, reporting and filing activi-
ties. He states that he was not aware that he had failed to file and
thought that he had filed. Further, Crawford cites section (20)(122)
¶ 2 from the IRS manual in support of his position. That provision
states:

           Compliance is achieved when a taxpayer makes a diligent
           effort to meet the requirement of the law. The law requires
           that the taxpayer take affirmative action to meet his/her
           requirements. Sometimes, the taxpayer takes sufficient
           action to meet the requirements but, because of some
           unforeseen intervening event, is unable to do so. Affirmative
           action recognizes that the obligation to meet the requirement

                     4
          is ongoing and requires that the taxpayer continue to attempt
          to meet the requirements, even though late.

Even if this provision could be read to support Crawford's position,
the manual does not confer any substantive rights on taxpayers but is
instead only an internal statement of penalty policy and philosophy.
See, e.g., Unites States v. Caceras, 

 (1979); United
States v. Groder, 

, 142 (4th Cir. 1987). In addition,
delinquent filing of a return does not relieve a tax payer of criminal
liability. United States v. Ming, 

, 1005 (7th Cir.), cert.
denied, 

 (1972); United States v. McCormick, 

, 868 (2nd Cir. 1933), cert. denied, 

 (1934). Craw-
ford filed his tax returns on time from 1979-83 and he filed late or
not at all from 1984-94. Evidence that a defendant has filed delin-
quent tax forms before or no tax forms at all can be evidence of will-
fulness. See, e.g., United States v. Greenlee, 

, 903 (3rd
Cir.), cert. denied, 

 (1975); United States v. Farris, 

, 229 (7th Cir.), cert denied, 

 (1975); United
States v. Upton, 

, 433 (8th Cir. 1986). There was suffi-
cient evidence to sustain a conviction based on a§ 7203 violation.

2. Obstruction of Justice

Crawford challenges the sufficiency of the evidence to support his
conviction for obstruction of justice under 18 U.S.C. § 1503. The
three elements of that crime are (1) that a judicial proceeding was
pending; (2) that the defendant had knowledge of the judicial pro-
ceeding; and (3) that the defendant acted corruptly, that is, with the
intent to influence, obstruct, or impede that proceeding in its due
administration of justice. United States v. Grubb, 

 (4th
Cir. 1993). The Government's evidence consisted of testimony from
Patricia Gail Littleton that Crawford instructed her how to answer
questions before the grand jury. Further, Littleton testified that Craw-
ford made the statement that "if he found out who went up there and
told things on him, he would have them taken care of," which Little-
ton interpreted as a threat of bodily harm. Crawford claims that Little-
ton's testimony was internally inconsistent and that it was
contradicted by the testimony of Tina Marie Shifflett. This is basi-
cally an attack on the credibility of Littleton and"assessing the credi-
bility of witnesses is within the province of the jury." United States

                    5
v. Johnson, 

, 979 (4th Cir. 1995). Generally, unless there
is a serious deficiency in the evidence, "this court is bound by the
credibility determinations of the jury." United States v. Saunders, 

, 60 (4th Cir. 1989). A review of the testimony reveals that
any inconsistencies in Ms. Littleton's testimony are not serious in
nature and are such that the jury could certainly choose to believe her
testimony over Tina Marie Shifflett's testimony.

B.

Crawford alleges that the failure to disclose information about Lit-
tleton's status as a paid informant for the local police violated the
Brady rule and violated the Joint Discovery and Inspection Order
reached by the parties and entered by the trial court. Before trial,
Crawford's counsel allegedly asked the Assistant U.S. Attorney
whether Patricia Gail Littleton had any agreements with the govern-
ment or the local police. The Assistant U.S. Attorney allegedly
replied that there were none. In fact, Ms. Littleton had been paid
almost $1400 over two years to be an informant for the Rockingham
County Sheriff's Department. The Virginia State Police provided the
funding for the payments and compiled a file documenting the meet-
ings with Littleton. This arrangement was first revealed to Crawford's
counsel during Littleton's direct examination. The trial court allowed
a fifteen minute recess to give Crawford's counsel time to review the
documents and also allowed Crawford to recall Littleton as an adverse
defense witness. Crawford's attorney did not indicate to the court that
he needed additional time to review the documents but moved for a
mistrial on the basis that the Government committed a Brady viola-
tion and therefore deprived Crawford of due process. The trial court
denied the motion. "A district court's refusal to grant a mistrial will
be reversed only for an abuse of discretion." United States v. Guay,

, 552 (4th Cir. 1997).

The Brady rule requires that the prosecution disclose exculpatory
evidence and information which could be used to impeach Govern-
ment witnesses if the information is material. Information is material
if, with the disclosure, there would have been a"`reasonable probabil-
ity' of a different result." Kyles v. Whitley , 

, 1566
(1995). The Supreme Court has further stated that

                    6
          [t]he question is not whether the defendant would more
          likely than not have received a different verdict with the evi-
          dence, but whether in its absence he received a fair trial,
          understood as a trial resulting in a verdict worthy of confi-
          dence. A "reasonable probability" of a different result is
          accordingly shown when the Government's evidentiary sup-
          pression "undermines confidence in the outcome of the
          trial."

Id. (citations omitted). When disclosure has come late in the game,
this Court has stated that "[n]o due process violation occurs as long
as Brady material is disclosed to a defendant in time for its effective
use at trial." United States v. Smith Grading and Paving, Inc., 

, 532 (4th Cir.), cert. denied, 

 (1985). In this
case, Crawford's attorney was able to cross-examine Littleton on her
status as a paid informant and was able to recall her as an adverse
defense witness later in the trial. Although, the information about her
status as a paid informant was brought out and Crawford was able to
use the information in closing argument, he argues that he was (1)
deprived of the opportunity to further investigate Littleton's back-
ground for impeachment material; (2) denied the opportunity to
explore an entrapment defense; (3) denied the opportunity to explore
illegal search and seizure arguments; and (4) was unable to use the
information in opening statement. Crawford, however, must show that
at least one of these avenues, if he had been allowed to explore it,
would have resulted in a reasonable probability of a different out-
come. He has made no such showing.

Crawford also asserts for the first time on appeal that the failure to
reveal that Littleton had a serious drinking problem in the past, had
been charged with crimes several times, had convictions in the Vir-
ginia court system, and had failed to report income from Crawford on
her federal tax forms, was a Brady violation. The information con-
cerning Littleton's drinking habits and her tax filing situation were
brought out on cross-examination. At trial, Crawford did not object
to the Government's failure to disclose the information regarding
these topics. He has therefore failed to preserve this argument.

Failure to disclose the prior criminal convictions and charges is
likewise not a Brady violation. According to the documents submitted

                    7
in the Joint Appendix, each of the charges involved automobile viola-
tions and, therefore, did not relate to credibility in such a way as to
"undermine confidence in the outcome of the trial."

C.

Crawford claims that the trial judge's failure to give the jury an
instruction on Littleton's status as a paid informant was an abuse of
discretion. At trial, Crawford neither requested such an instruction nor
objected when none was given. Therefore, he can not be heard to
complain unless the failure to give such an instruction is plain error
under Rule 52(b) of the Federal Rules of Civil Procedure. The trial
court's failure to give such an instruction, sua sponte, in this case is
not plain error. See, e.g., United States v. Bosch, 

,
1247-48 (9th Cir. 1990) (finding that the failure to give a paid infor-
mation instruction, sua sponte, is not plain error); United States v.
Cook, 

, 252 (7th Cir. 1996) (stating that the decision of
whether to give such an instruction, even in the face of a request from
counsel, is discretionary with the trial judge).

D.

1. Prosecutorial delay

Crawford alleges that he has been prejudiced by the pre-indictment
delay in this case. Because the delay occurred before Crawford
became the "accused," the Sixth Amendment does not apply. United
States v. Marion, 

 (1971). However,"the Due Process
Clause of the Fifth Amendment would require dismissal of the indict-
ment if it were shown at trial that the pre-indictment delay in this case
caused substantial prejudice to [appellant's] rights to a fair trial and
that the delay was an intentional device to gain tactical advantage
over the accused." Id. at 324.

The trial court held a hearing on prosecutorial delay out of the pres-
ence of the jury. At the hearing, the agent responsible for the investi-
gation during 1993-95 testified that the case spent much time during
those years being reviewed by various individuals within the IRS and
the Justice Department in order to determine the best theory of prose-

                     8
cution. He stated that by 1993 he had about 90% to 95% of the infor-
mation actually used in this prosecution but, at that time, the
investigation was targeted toward making a tax evasion or false return
case. Much of the information needed to prosecute such a case was
not received until after 1993, with some bank records not subpoenaed
until six months to a year preceding the trial. The trial judge deter-
mined that the defense had shown neither substantial prejudice or
improper prosecutorial motive for the delay and we agree.

2. Jencks Act violation

The Jencks Act provides, in pertinent part,

          [w]henever any statement is delivered to a defendant pursu-
          ant to this section, the court in its discretion . .. may recess
          proceedings in the trial for such a time as it may determine
          to be reasonably required for the examination of such state-
          ment by said defendant and his preparation for its use in the
          trial.

18 U.S.C. § 3500(c). In this case, 92 pages of material concerning Lit-
tleton's position as an informant for the local police was given to
Crawford's attorney when Littleton took the stand. Crawford moved
for a mistrial based on the government's failure to provide this mate-
rial earlier and the trial court denied this motion (discussed, supra,
Part II.B.). Instead, the court recessed the proceedings for fifteen min-
utes to give counsel an opportunity to review the documents. Craw-
ford made no objection that the time given was insufficient when the
proceedings resumed. In addition, the court allowed Crawford to
recall Littleton later in the trial as an adverse defense witness.

Crawford did not make a contemporaneous objection that the fif-
teen minute recess was insufficient to allow proper review of the
material. Because of the failure to object, we review this matter for
plain error under Rule 52(b). We find no plain error here. Although
the fifteen minute recess may not have been entirely sufficient, the
trial court allowed the witness to be recalled as an adverse defense
witness later in the trial. Any prejudice resulting from the short length
of the recess was certainly removed by Crawford's opportunity to
recall the witness at a later time.

                     9
3. Trial judge's questions

Crawford claims that the trial judge abused his discretion in ques-
tioning a key defense witness, Tina Marie Shifflett. Shifflett is the
witness who contradicted Littleton's testimony concerning what
Crawford told Littleton the night before she was to testify before the
grand jury. During Shifflett's testimony, the trial judge asked her ten
questions.* Crawford contends that these questions reveal a bias
_________________________________________________________________
*The following are the questions and answers (not all occurred in one
exchange):

          COURT:Now, why did it take you from the end of`89 to
          1992 to come up with the 1989 records?

          SHIFFLETT:Well, we had several businesses and I just got
          behind.

          COURT:Well, that's about three years.

          SHIFFLETT:Yeah.

          COURT:Were you behind three years on your record
          keeping?

          SHIFFLETT:I guess you could say that, yes.

          COURT:What efforts were made to help you become cur-
          rent?

          SHIFFLETT:Well I called the accountant, Doug, to help me
          several times, but I never got no reply.

          COURT:Did you go to Mr. Odell [sic] and say I can't
          handle this, get somebody else to do it?

          SHIFFLETT:No.

          COURT:What training have you has in bookkeeping, Ms.
          Shifflett?

          SHIFFLETT:None.

          COURT:Well, how to you hold yourself out to be a book-
          keeper if you've has no training?

          SHIFFLETT:I don't call myself a bookkeeper.

          COURT:Well, what do you call yourself?

          SHIFFLETT:I'm just trying to help them out.

          COURT:If they asked you to translate Chinese into

                    10
against the witness and that the last question "If they [the Crawfords]
asked you to translate Chinese into English, would you try to do
that?" was the most prejudicial.

This Court has stated that "if the trial judge's behavior whether in
commenting or in interrogating witnesses during trial reaches such a
level of prejudice `that it denied any or all the appellants a fair, as dis-
tinguished from a perfect, trial,' a new trial is required." United States
v. Parodi, 

, 776 (4th Cir. 1983) (citations omitted). In
view of Ms. Shifflett's answers to the Court's earlier questions, we do
not believe the final question was prejudicial.

E.

After the trial, Crawford discovered that Littleton had allegedly
attempted to get at least four people to commit perjury regarding the
circumstances of an accident which resulted in a driving while intoxi-
cated charge against her. Based on this evidence, Crawford contends
that he should be granted a new trial.

First, the government states that this issue has been presented to,
and not yet resolved by, the trial court. Therefore, the government
asserts that this issue is not properly before this Court. We agree and
will, therefore, remand to the district court for consideration of this
issue.

The timing of the motion for a new trial presents a jurisdictional
question which we must resolve in determining whether other issues
are properly before us. Federal Rule of Criminal Procedure 33 pro-
vides, in pertinent part, "[a] motion for a new trial based on the
ground of newly discovered evidence may be made only before or
within two years after final judgment, but if an appeal is pending the
court may grant the motion only on remand of the case." Federal Rule
_________________________________________________________________

          English, would you try to do that?

          SHIFFLETT:If it would help them, yes.

(J.A. 360-61, 366).

                      11
of Appellate Procedure 4(b) provides that motions based on newly
discovered evidence which are filed before or within 10 days after
entry of judgment render notices of appeal ineffective. Federal Rule
of Criminal Procedure 45 provides that computation of time for a
period under 10 days is calculated by starting with the day following
the event and then counting forward, excluding weekends and holi-
days. Federal Rule of Appellate Procedure 26 provides that, when
computing periods under 7 days, weekends and holidays are excluded
but that, when computing longer periods, those days are included. The
motion for a new trial in this case was entered 12 calendar days after
the entry of judgment. In this instance, we compute time for filing
according to the rule in Federal Rules of Appellate Procedure. There-
fore, the motion was filed outside of the ten day window provided in
Rule 4(b) and this court has jurisdiction to consider the appeal.

F.

Crawford alleges that the district court imposed a fine of $100,000
without properly considering the factors enumerated in 18 U.S.C.
§ 3572(a). Section 3572(a) states that the sentencing court, in deter-
mining whether to impose a fine, the amount of the fine, and the tim-
ing and the method of payment, shall consider (1) the defendant's
income, earning capacity, and financial resources; (2) the burden
which will be imposed on the defendant and any dependents; (3) any
pecuniary loss inflicted on others by the offense; (4) whether restitu-
tion is ordered and the amount of the restitution; (5) the need to
deprive the defendant of illegally obtained gains from the offense; (6)
the expected costs to the government of confinement and supervision;
(7) whether the defendant can pass the cost of the fine onto others;
and (8) if the defendant is an organization, the size of the organization
and the efforts taken by the organization to discipline any agent
responsible for the offense. This Court has stated that failure of the
district court to enter factual findings on these factors can so inhibit
appellate review as to warrant that the sentence be vacated and the
case remanded so that such findings can be made. United States v.
Harvey, 

 (4th Cir. 1989). In this case, the district judge
found that Crawford had the ability to pay the fine (J.A. 591). In addi-
tion, the district court adopted the findings in the pre-sentence report
[PSR]. The PSR set out IRS estimated income for the defendant for
1984 through 1990. It also stated that Crawford and his family owned

                     12
property worth approximately one million dollars. Factual findings set
out in a PSR and adopted by the district court may be sufficient for
sentencing purposes. United States v. Castner , 

, 1277
(4th Cir. 1995). Furthermore, Crawford did not object to the imposi-
tion or calculation of the fine at sentencing. Therefore, he has waived
review absent plain error. Id. This Court has affirmed fines under
§ 3572(a) when the district court adopted factual findings in a PSR
which were sufficient to support the § 3572(a) factors and the defense
failed to object. See, e.g., id.; United States v. Taylor, 

(4th Cir. 1993).

III.

For the reasons stated above, we affirm the judgment of the district
court and remand the case so that the district court may consider the
motion for a new trial.

AFFIRMED AND REMANDED

                    13