Filed: May 12, 2014
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4282 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. JAMES BOWERS JOHNSON, Defendant – Appellant. Appeal from the United States District Court for the Western District of Virginia, at Lynchburg. Norman K. Moon, Senior District Judge. (6:12-cr-00015-NKM-1) Argued: March 19, 2014 Decided: May 12, 2014 Before MOTZ, KING, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. ARGUED: Paul Graham Beers, GLEN
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4282 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. JAMES BOWERS JOHNSON, Defendant – Appellant. Appeal from the United States District Court for the Western District of Virginia, at Lynchburg. Norman K. Moon, Senior District Judge. (6:12-cr-00015-NKM-1) Argued: March 19, 2014 Decided: May 12, 2014 Before MOTZ, KING, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. ARGUED: Paul Graham Beers, GLENN..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4282
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JAMES BOWERS JOHNSON,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg. Norman K. Moon, Senior
District Judge. (6:12-cr-00015-NKM-1)
Argued: March 19, 2014 Decided: May 12, 2014
Before MOTZ, KING, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Paul Graham Beers, GLENN, FELDMANN, DARBY & GOODLATTE,
Roanoke, Virginia, for Appellant. Katie Bagley, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON
BRIEF: Kathryn Keneally, Assistant Attorney General, Frank P.
Cihlar, Chief, Criminal Appeals & Tax Enforcement Policy
Section, Gregory Victor Davis, Tax Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; Timothy J. Heaphy,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Appellant James Bowers Johnson (“Appellant”) was
convicted by a jury of four counts of violating the Internal
Revenue Code (“IRC”); one count of corruptly obstructing or
impeding, or endeavoring to obstruct or impede, the due
administration of the IRC, in violation of 26 U.S.C. § 7212(a),
and three counts of willfully failing to file income tax
returns, in violation of 26 U.S.C. § 7203. On appeal, Appellant
argues the district court abused its discretion by admitting
evidence of other bad acts, that is, evidence that he evaded his
obligation to pay child support. Appellant also argues the
district court violated the Fifth Amendment by constructively
amending Count One of the indictment.
First, because the challenged evidence was relevant to
Appellant’s mental state, we hold that the district court did
not abuse its discretion in admitting it and did not commit
plain error otherwise. Second, because the district court’s
instructions to the jury did not broaden the bases for
conviction beyond those charged in the indictment, we hold that
the district court did not constructively amend the indictment.
Therefore, we affirm the judgment of the district court.
I.
On April 5, 2012, a federal grand jury in the Western
District of Virginia returned a four-count indictment charging
3
Appellant with violations of the IRC. Count One titled,
“Corrupt Endeavor to Obstruct, Impede, and Impair the Due
Administration of the Internal Revenue Code,” charged Appellant
with violating 26 U.S.C. § 7212(a) of the IRC. J.A. 14. 1
Specifically, Count One of the indictment charged, in part:
Beginning in or about January 2001 and
continuing thereafter up to at least May of
2010, in the Western Judicial District of
Virginia and elsewhere, JAMES BOWERS JOHNSON
did corruptly obstruct and impede [sic] to
obstruct and impede the due administration
of the Internal Revenue Code by: submitting
alleged financial instruments to the United
States Department of Treasury; using bogus
trusts and other nominees; failing to file
income tax returns; creating nominees to
obscure ownership in, control of, and income
from the assets, including business income
and rental receipts; and engaging in conduct
the likely effect of which was to mislead
and to conceal, including the acts detailed
below.
Id. at 16-17. As further detailed in Count One, from 2000
through at least 2009, Appellant was self-employed and resided
in Winchester, Virginia. Appellant received gross income from
several sources, including the sale of prepaid telephone cards,
rental receipts, and capital gains. Between 2000 and 2007,
Appellant received over $1 million in gross receipts, but
despite exceeding the filing threshold for each of those years,
1
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
4
he did not file individual income tax returns. The remaining
three counts of the indictment charged Appellant with willfully
failing to file income tax returns for tax years 2005, 2006, and
2007, in violation of 26 U.S.C. § 7203.
Appellant’s jury trial spanned four days from January
15-18, 2013. Relatively few material facts were in dispute.
The Government’s theory was that Appellant acted willfully and
in bad faith to enrich himself by concealing income from the
Internal Revenue Service (“IRS”). In this vein, the
Government’s witnesses testified that Appellant established and
used entities, such as limited liability companies and trusts,
to conceal his income and assets and avoid paying taxes.
According to these witnesses, Appellant directed tenants of his
rental properties and customers of his phone card business to
make payments to him with money orders issued to his various
entities. Additionally, the Government presented evidence that
Appellant utilized a “warehouse bank,” a commercial bank account
called MYICIS in which customers’ deposits are commingled.
Because the money orders were issued in the name of MYICIS, the
funds could not be traced to Appellant.
Appellant’s sole defense at trial was that he did not
act with the requisite mens rea to be found guilty of
obstructing the IRC or willfully failing to file tax returns,
even though he conceded that he had sufficient income to trigger
5
the requirement to file tax returns in 2005, 2006, and 2007, and
failed to do so. During his opening statement, Appellant’s
counsel told the jury that Appellant was a well-educated, family
man, who believed in good faith, after much research on the
issue, that the tax system was voluntary and did not apply to
him.
Throughout its case in chief, the Government entered
numerous exhibits into evidence. Appellant takes issue with
only three: Government Exhibits 40-1, 2 40-2, 3 40-3. 4 These
exhibits each contained letters sent from Appellant to various
state agencies articulating his reasons for not paying child
support. On the second day of trial, Appellant’s counsel
2
Government Exhibit 40-1 is a letter titled, “Letter
Rogatory Under Seal of County Notary-at-Large, Return of
Defective Process by Foreign State in the Nature of a Solemn
Affirmation of a Sovereign Man in the presence of Yahweh,” dated
September 24, 2009, sent from Appellant to the Winchester
Juvenile and Domestic Relations District Court.
3
Government Exhibit 40-2 contained several documents mailed
from Appellant to the Virginia Department of Social Services.
The documents included a copy of a money order dated June 11,
2009, purporting to pay $4,500.00 to the Virginia Division of
Child Support Enforcement. The letter accompanying the money
order indicated that it would be processed by the IRS and the
funds were to be withdrawn from the United States Treasury Trust
Account in Appellant’s name.
4
Government Exhibit 40-3 contained two notices sent from
Appellant in August and September, 2009, to the Virginia
Department of Social Services. Appellant threatened suit
because his money order, shown in Government Exhibit 40-2, was
not used to satisfy his child support debt.
6
objected to the introduction of Government Exhibit 40-1. The
following colloquy occurred:
[GOVERNMENT COUNSEL]: Your Honor, I move
into evidence Government’s Exhibit 40-1,
which is an official record from the court
in Winchester.
[APPELLANT’S COUNSEL]: I object to the
relevance, Your Honor. I’m not sure how
this is relevant to the tax matter at hand.
[GOVERNMENT COUNSEL]: The relevance, in
opening statement it was brought up in
regards to Mr. Johnson’s focus on not paying
income taxes, what -- he has used these
types of documents in other instances to
avoid his legal obligation, including child
support, which this document establishes.
[APPELLANT’S COUNSEL]: The legal
obligations he’s charged with failing to
comply with are his tax obligations, not any
child support obligations. So I think the
relevance, if any, is sort of minimal.
[GOVERNMENT COUNSEL]: It goes to --
THE COURT: Why don’t we come around?
(At sidebar.)
[APPELLANT’S COUNSEL]: I don’t have
anything to add, Your Honor.
THE COURT: I’m sorry?
[APPELLANT’S COUNSEL]: I don’t have
anything to add. It is just that, you know,
these child support matters, the bankruptcy
matters, I think they are sort of far afield
from the issue at hand, which is whether he
failed to file tax returns or corruptly
impeded the IRS in collecting taxes. I
mean, it is more of the same stuff, but it
is --
7
THE COURT: Well, I know, but he has excused
his tax thing that he has this firm belief
that he went through all of this to avoid
taxes. And if he is doing it to avoid all
of his debts, it would tend to show that it
wasn’t necessarily he was trying to avoid
taxes. It would seem it is just sort of --
it would just show a pattern of greed, that
he didn’t pay anybody.
[APPELLANT’S COUNSEL]: If it shows that --
THE COURT: Okay. So I’m going to allow it.
I mean, I -- I mean, I think, you know, it
is the kind of evidence -- the prejudice
could outweigh the probative value, but I
think it is very probative here where we
have heard this opening statement of what a
wonderful caring person this is and that,
you know, it is just -- his problem is just
with taxes. It doesn’t seem to be that. It
is just ‘I don’t pay anybody.’ So -- but I
think -- so I think the probative value
outweighs the prejudice.
J.A. 305-07. After questioning the Government’s witness --
Appellant’s house guest who signed the exhibits as a “witness”
or “notary-in-fact” -- the Government then moved for the
admission of Government Exhibits 40-2 and 40-3. Appellant’s
counsel did not object to the admission of these two exhibits.
The only evidence presented in Appellant’s defense was
his own testimony. Appellant testified that sometime in late
1996 or 1997, he purchased a series of tapes from Global
Prosperity Group, which discussed “Congress, revolution,
banking, government, anything that deals with a historical
context for understanding . . . what we are doing. Taxation
8
obviously, was one of them.” J.A. 493. According to Appellant,
these tapes did not necessarily state, “You are not required [to
pay taxes],” but the tapes provided information on the role of
government, i.e. “the roles and the powers of taxation that [the
government] has.” Id. Appellant further testified he
eventually began attending educational seminars of similar
topics where he met like minded individuals and began
affiliating with tax protesting groups such as Save-A-Patriot
Fellowship and We the People Congress.
Appellant testified that through his involvement with
these organizations and his own research, he came to believe
that the IRC has been misapplied under the Constitution.
Appellant reasoned that the Sixteenth Amendment, giving Congress
the authority to impose an income tax, does not apply to him
because he was “outside of the jurisdiction of the U.S. as far
as not living or working in the U.S.” and “wages are not income
as far as [his] understanding of the federal tax code.” J.A.
508-09. Therefore, Appellant testified he “believe[ed] the
system is . . . a voluntary system.” Id. at 509.
At the close of evidence, the district court
instructed the jury as to Count One: 5
5
Appellant’s counsel raised no objection below to the
following jury instructions.
9
Count One of the indictment charges the
defendant with violating section 7212(a) of
the Internal Revenue Code -- section 7212(a)
of the Internal Revenue Code which provides,
in pertinent part, as follows: Title 26,
United States Code, Section 7212(a) states
in pertinent part that, “whoever corruptly
obstructs or impedes or endeavors to
obstruct or impede the due administration of
this title” shall be guilty of an offense
against the United States.
In order to sustain its burden of proof
for the crime of obstructing the due
administration of the Internal Revenue Code
as alleged in Count One of the indictment,
the government must prove the following
elements beyond a reasonable doubt:
One, that during the time period stated
in the indictment the Internal Revenue
Service tried to ascertain, assess, compute,
and collect federal income taxes, federal
employment taxes, and penalties for the
defendant;
Two, that the defendant knew that the
Internal Revenue Service was attempting to
duly administer the Internal Revenue Code;
and
Three, that the defendant then
corruptly obstructed, impeded, or endeavored
to obstruct or impede the due administration
of the Internal Revenue Code as detailed in
the indictment. . . .
An endeavor is any effort or any act or
attempt to effectuate an arrangement or to
try to do something, the natural and
probable consequences of which is to
obstruct or impede the due administration of
the Internal Revenue laws.
J.A. 581-83. On January 18, 2013, the jury convicted Appellant
on all four counts as alleged in the indictment.
10
On April 11, 2013, the district court sentenced
Appellant to a total of 48 months imprisonment: 36 months on
Count One and 12 months on each of Counts Two through Four, to
be served concurrently with each other and consecutively to the
term imposed on Count One. Additionally, the district court
held Appellant in criminal contempt for his disruptive conduct
during the sentencing hearing. 6 The court tacked on 30 days of
imprisonment for Appellant’s contempt, to run consecutively to
the rest of his sentence.
Judgment was entered on April 15, 2013. Appellant
timely appealed, alleging the district court abused its
discretion by admitting evidence of Appellant’s other bad acts
and violated the Fifth Amendment by constructively amending
Count One of the indictment.
II.
We generally review evidentiary rulings for abuse of
discretion. See United States v. Hassan, 742 F.3d 104, 130 (4th
Cir. 2014). “In reviewing an evidentiary ruling under that
standard, we will only overturn a ruling that is arbitrary and
6
For example, when asked to sit down by a marshal in the
courtroom, Appellant exclaimed, “[u]nhand me sir. There’s no
reason to grab me like that.” J.A. 1815. The court responded,
“He didn’t grab you. I asked you to sit down.” Id. Appellant
then stated to the court, “I said, sir, I asked you to be
recused. And I fired you.”
Id.
11
irrational.”
Id. (internal quotation marks and alterations
omitted). However, when a party fails to object at trial to
evidence challenged on appeal, we view the district court’s
admission of that evidence for plain error. See United States
v. Perkins,
470 F.3d 150, 155 (4th Cir. 2006); see also Fed. R.
Crim. P. 52(b).
“We review de novo the legal question of whether there
has been a constructive amendment of an indictment.” United
States v. Whitfield, 695 F.3d 288, 306 (4th Cir. 2012). “[I]n
this circuit constructive amendments are erroneous per se and
require reversal regardless of preservation.”
Id. at 309
(internal quotation marks omitted); see also United States v.
Randall,
171 F.3d 195, 203 (4th Cir. 1999) (“Thus, a
constructive amendment violates the Fifth Amendment right to be
indicted by a grand jury, is error per se, and must be corrected
on appeal even when the defendant did not preserve the issue by
objection.” (emphasis in original)).
III.
A.
Evidentiary Challenges
Appellant first contends the district court
erroneously admitted evidence that he evaded his obligation to
pay child support, that is, Government Exhibits 40-1, 40-2, and
40-3. According to Appellant, the district court abused its
12
discretion per Rules 403 and 404(b) of the Federal Rules of
Evidence when it admitted this prejudicial evidence over
Appellant’s objection. Appellant further contends that this
“error was far from harmless.” Appellant’s Br. 6.
The Government argues that the district court properly
admitted the exhibits. According to the Government, Appellant
objected to the admission of only one of these exhibits,
Government Exhibit 40-1, and only pursuant to relevance, and did
not object at all to the admission of Government Exhibits 40-2
and 40-3. The Government further contends the district court
did not abuse its discretion or commit plain error in admitting
the exhibits, which were relevant to the issue of Appellant’s
intent. Per the Government’s view, the documents demonstrated
that Appellant did not hold a good faith belief that he was not
subject to the tax laws, but rather he sought to avoid meeting
his financial obligations generally, including paying child
support. Additionally, the Government argues Appellant fails to
establish that admitting the documents was plain error under
Federal Rule of Evidence 404(b).
1.
Before addressing the merits of Appellant’s
evidentiary challenges, we must first determine the appropriate
lens through which to view them. Pursuant to Rule 103 of the
Federal Rules of Evidence, in order to preserve a claim of error
13
for the admission of evidence, a party must “timely object[] or
move[] to strike” and “state[] the specific ground, unless it
was apparent from the context.” Fed. R. Evid. 103(a)(1).
Therefore, in order to be subject to an abuse of discretion
review, “[a]n objection to the admission of evidence must be
both specific and timely.” United States v. Cabrera-Beltran,
660 F.3d 742, 751 (4th Cir. 2011) (emphasis supplied).
Appellant’s only specific and timely objection was to relevance
under Rule 403 with respect to a single exhibit: Government
Exhibit 40-1. He did not object at all to the admission of
Government Exhibits 40-2 and 40-3.
When making the objection to Government Exhibit 40-1,
Appellant’s counsel stated, “I object to the relevance, Your
Honor. I'm not sure how this is relevant to the tax matter at
hand.” J.A. 305. Appellant’s counsel never stated, as he
argues now, that the objection was also made pursuant to Rule
404(b)’s prohibition of crimes, wrongs, and other acts used “to
prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character.”
Fed. R. Evid. 404(b)(1). Although counsel need not cite the
particular rule upon which an objection is based, the objection
must be of sufficient specificity to afford the district court
and the Government the opportunity to respond to the alleged
error below. Appellant’s objection fell below this standard.
14
Accordingly, we will view Appellant’s Rule 403 objection to
Government Exhibit 40-1 pursuant to an abuse of discretion
standard and his Rule 404(b) challenge to Government Exhibit 40-
1 under the plain error standard. Given the lack of any
objection at all below to Government Exhibits 40-2 and 40-3, the
admission of that evidence will be reviewed for plain error.
2.
Appellant was charged with four violations of the IRC.
Count One charged Appellant with violating 26 U.S.C. § 7212(a).
Section 7212(a) of the IRC provides that “[w]hoever corruptly
. . . obstructs or impedes, or endeavors to obstruct or impede,
the due administration of this title, shall, upon conviction
thereof, be fined not more than $5,000, or imprisoned not more
than 3 years, or both.” 26 U.S.C. § 7212(a) (emphasis
supplied). Counts Two through Four charged Appellant with
violating 26 U.S.C. § 7203. That statute states that a person
who willfully fails to file a return who is required to do so is
subject to the imposition of a fine not exceeding $25,000, and
to a term of imprisonment of up to one year. See 26 U.S.C.
§ 7203. Thus, the Government was required to prove that
Appellant acted “corruptly” (as to Count One) and “willfully”
(as to Counts Two through Four).
A person acts corruptly within the meaning of
§ 7212(a) by acting “with the intent to secure an unlawful
15
benefit either for oneself or for another.” United States v.
Wilson, 118 F.3d 228, 234 (4th Cir. 1997). Willfulness, in the
context of § 7203, means the “‘voluntary, intentional violation
of a known legal duty.’” United States v. Rogers,
18 F.3d 265,
267 n.4 (4th Cir. 1994) (quoting Cheek v. United States,
498
U.S. 192, 201 (1991)).
According to the Government, Government Exhibit 40-1,
a letter from Appellant responding to the Winchester Juvenile
and Domestic Relations District Court’s order directing him to
appear and explain why he had not made the requisite child
support payments, was filled with nonsensical statements about
the federal government and its lack of jurisdiction over
Appellant. Therefore, the Government reasons that Government
Exhibit 40-1, as well as Government Exhibits 40-2 and 40-3,
which were substantially similar to Government Exhibit 40-1,
were relevant and admissible as probative of Appellant’s mental
state and intent, i.e. his corruptness and willfulness. The
district court agreed, and we conclude the district court did
not abuse its discretion.
As the Government points out, the fact that Appellant
made the same arguments to other agencies as an excuse for non-
payment of an obligation, makes it more probable that
Appellant’s asserted beliefs about the applicability of the tax
laws were not sincerely held, but that instead, Appellant merely
16
wielded whatever claims he thought would be useful in an effort
to avoid paying his legal obligations, tax or otherwise.
Therefore, we conclude the district court’s admission
of Government Exhibit 40-1 was not an abuse of discretion in the
face of a Rule 403 objection. Because we conclude that
Government Exhibits 40-2 and 40-3 were sufficiently similar to
Government Exhibit 40-1, it is unnecessary to also conduct a
plain error review in this regard. See, e.g., United States v.
Palacios, 677 F.3d 234, 245 n.6 (4th Cir. 2012) (“Our review of
the record indicates that Palacios objected to some, but not
all, of this testimony at trial. . . . Because we conclude that
Palacios’s arguments fail [under an abuse of discretion review]
even assuming he preserved an objection to every statement, we
do not distinguish between the statements to which Palacios
objected and those he did not.”).
3.
Appellant also challenges the child support evidence,
i.e., Government Exhibits 40-1, 40-2, and 40-3, pursuant to Rule
404(b) claiming the evidence fell short of the requirements for
the admission of character evidence. Rule 404(b) provides:
“Evidence of a crime, wrong, or other act is not admissible to
prove a person’s character in order to show that on a particular
17
occasion the person acted in accordance with the character.” 7
Fed. R. Evid. 404(b)(1). However, such evidence “may be
admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” Fed. R. Evid.
404(b)(2).
As noted, because Appellant failed to lodge a Rule
404(b) objection below, we review for plain error. To reverse
for plain error, we must find that there was an error, that the
error is plain, and that it affected Appellant’s substantial
rights. See United States v. Olano, 507 U.S. 725, 732-35
(1993). “The correction of plain error lies within our
discretion, which we may exercise if the error seriously affects
the fairness, integrity or public reputation of judicial
proceedings, or the defendant is actually innocent.” United
States v. Keita,
742 F.3d 184, 189 (4th Cir. 2014) (internal
quotation marks and alterations omitted).
We have held that prior bad acts are admissible under
Rule 404(b) when the following criteria are met:
(1) The evidence must be relevant to an
issue, such as an element of an offense, and
7
“Rule 404(b) was amended in December 2011 . . . . Thus,
the appropriate rule for the appeal is the current version of
Rule 404(b).” United States v. Williams, 740 F.3d 308, 314 n.5
(4th Cir. 2014).
18
must not be offered to establish the general
character of the defendant. In this regard,
the more similar the prior act is (in terms
of physical similarity or mental state) to
the act being proved, the more relevant it
becomes. (2) The act must be necessary in
the sense that it is probative of an
essential claim or an element of the
offense. (3) The evidence must be reliable.
And (4) the evidence’s probative value must
not be substantially outweighed by confusion
or unfair prejudice in the sense that it
tends to subordinate reason to emotion in
the fact finding process.
United States v. Williams, 740 F.3d 308, 314 (4th Cir. 2014)
(quoting United States v. Queen,
132 F.3d 991, 997 (4th Cir.
1997)). According to Appellant, the evidence fails in all four
categories.
Under a plain error review, however, it is clear that
the district court’s analysis satisfies this analytical
framework. The relevancy analysis conducted by the district
court satisfies the first and second criteria because the
evidence was probative of an element of the crime charged, that
is, of Appellant’s state of mind -- his corrupt and willful
intent. Appellant does not argue that the evidence is
unreliable. Therefore, we are left with only the fourth
criterion. “The fourth factor reflects that the proffered
404(b) evidence must satisfy Rule 403. Unfair prejudice exists
when there is a genuine risk that the emotions of a jury will be
excited to irrational behavior, and this risk is
19
disproportionate to the probative value of the offered
evidence.” Williams, 740 F.3d at 314 (internal quotation marks
omitted). Here, the district court specifically concluded, “I
think the probative value outweighs the prejudice.” J.A. 307.
Upon review, we cannot conclude that the district court erred in
this determination.
Accordingly, we hold there was no error here, let
alone plain error.
B.
Fifth Amendment Challenge
Appellant next contends the district court violated
the Fifth Amendment by constructively amending Count One of the
indictment. The Fifth Amendment to the United States
Constitution, provides in relevant part: “No person shall be
held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a Grand Jury . . . .”
U.S. Const. amend. V. The Fifth Amendment necessarily
“guarantees that a criminal defendant will be tried only on
charges in a grand jury indictment.” United States v. Randall,
171 F.3d 195, 203 (4th Cir. 1999) (internal quotation marks
omitted). “When the government, through its presentation of
evidence and/or its argument, or the district court, through its
instructions to the jury, or both, broadens the bases for
conviction beyond those charged in the indictment, a
20
constructive amendment -- sometimes referred to as a fatal
variance -- occurs.” Id. “To constitute a constructive
amendment, the incongruity must in fact change the elements of
the offense charged, such that the defendant is actually
convicted of a crime other than that charged in the indictment.”
United States v. Whitfield,
695 F.3d 288, 309 (4th Cir. 2012)
(internal quotation marks omitted).
Count One of the indictment charged Appellant with a
violation of 26 U.S.C. § 7212(a). Section 7212(a) criminalizes
both successful and unsuccessful attempts to impede the IRS.
See United States v. Bostian, 59 F.3d 474, 479 (4th Cir. 1995)
(“[O]nly intent to impede, not successful impediment, is
necessary for § 7212(a) to be violated.”).
Tracking the language of the statute charged, Count
One of the indictment was titled “Corrupt Endeavor To Obstruct,
Impede, and Impair the Due Administration Of the Internal
Revenue Code.” J.A. 14. However, the body of the indictment
charged that Appellant “did corruptly obstruct and impede [sic]
to obstruct and impede the due administration of the Internal
Revenue Code.” 8 Id. at 16. The district court instructed the
jury on the meaning of the word “endeavor,” defining it as “any
8
According to the Government, this was a typographical
error as the indictment was meant to mirror the statute.
21
effort or any act or attempt to effectuate an arrangement or to
try to do something, the natural and probable consequences of
which is to obstruct or impede the due administration of the
Internal Revenue laws.” Id. at 583.
Appellant contends the trial court constructively
amended Count One of the indictment when it informed jurors
Appellant could be found guilty of violating 26 U.S.C. § 7212(a)
if he merely “endeavored” to obstruct or impede the IRS.
According to Appellant, he was not charged with “endeavoring” to
obstruct or impede the IRS, and the trial court’s jury
instructions improperly broadened the basis of conviction
alleged in Count One. The Government, however, correctly points
out that even if the indictment were given the strict reading
promoted by Appellant, the jury was entitled to convict
Appellant of a lesser-included offense, i.e., attempt, which is
the equivalent of “endeavoring.” See Fed. R. Crim. P. 31(c) (“A
defendant may be found guilty of any of the following: (1) an
offense necessarily included in the offense charged; (2) an
attempt to commit the offense charged; or (3) an attempt to
commit an offense necessarily included in the offense charged,
if the attempt is an offense in its own right.”).
Because the district court’s instructions did not
broaden the bases for conviction beyond those charged in the
indictment, the district court did not constructively amend the
22
indictment. See Randall, 171 F.3d at 203. The indictment
plainly charged Appellant with a violation of § 7212(a), which
criminalizes both intent to impede and successful impediment of
the due administration of the IRC. Therefore, the district
court’s instruction on the definition of “endeavor” did not
“change the elements of the offense charged, such that the
defendant is actually convicted of a crime other than that
charged in the indictment.”
Whitfield, 695 F.3d at 309
(internal quotation marks omitted). Moreover, as the Government
submits, even if we were to find otherwise, the jury was
entitled to convict Appellant of a lesser-included offense,
i.e., attempt, which we conclude is the equivalent of
“endeavoring.” See Fed. R. Crim. P. 31(c).
IV.
Pursuant to the foregoing, the judgment of the
district court is
AFFIRMED.
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