United States v. Goode ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4400
HOWARD C. GOODE,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CR-99-334)
Submitted: November 9, 2000
Decided: December 18, 2000
Before WILKINSON, Chief Judge, and WIDENER and
MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Steven D. Goodwin, GOODWIN, SUTTON & DUVAL, Richmond,
Virginia, for Appellant. Helen F. Fahey, United States Attorney, John
C. McDougal, Special Assistant United States Attorney, Richmond,
Virginia, for Appellee.
2 UNITED STATES v. GOODE
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
After a jury trial, Howard C. Goode, a certified public accountant
who prepared tax returns for individuals and corporations, was found
guilty of four counts of willfully failing to file income tax returns for
the years 1992, 1993, 1994, and 1995, in violation of 26 U.S.C.
§ 7203 (1994). On appeal, Goode challenges the district court’s
impartiality, and the court’s rulings refusing to allow Goode to intro-
duce evidence of the effect of certain case law on his state of mind,
not granting Goode’s instruction regarding "willfulness," and grant-
ing, over objection, instructions seven and nine. Goode also contends
that the evidence was insufficient to support his conviction. We
affirm.
Our review of the trial transcript shows that the district court’s
interruptions of Goode’s testimony were to rule on the relevancy of
certain evidence, to cut off lengthy nonresponsive answers, and to
avoid repetitive testimony. There was no abuse of discretion by the
district court in exerting a reasonable amount of control over the con-
duct of the trial and the "presentation of evidence in order to ensure
the effective determination of the truth, [and] to avoid needless waste
of time in the presentation of a case." United States v. Castner, 50
F.3d 1267, 1272 (4th Cir. 1995) (quoting Fed. R. Evid. 611(a)).
Goode also asserts that the district court was biased, based on state-
ments concerning tax protestors. However, these comments were
made outside the presence of the jury and could not have influenced
the verdict. Goode’s last challenge to the court’s impartiality
addresses the court’s reference to Goode’s exhibits as "not the law."
We find that such reference in a limiting instruction was appropriate
to inform the jury that the exhibits were admitted only for the purpose
of showing Goode’s state of mind and that the contents of the exhibits
did not provide the law applicable to this case. We find no plain error
in this statement. See Castner, 50 F.3d at 1277.
UNITED STATES v. GOODE 3
Next, Goode challenges the district court’s decision to exclude, as
irrelevant, Goode’s testimony about the effect of Pollock v. Farmers’
Loan & Trust Co., 157 U.S. 429 (1895),* on his understanding of the
income tax system. The court initially ruled that the Pollock case was
irrelevant and refused to allow Goode to read from the case. How-
ever, the case and several others were admitted as exhibits and Goode
was able to describe his understanding of direct and indirect taxes, the
Pollock case, and the other cases and how they shaped his belief that
he did not have to file a tax return. We find that Goode has failed to
show that his substantial rights were adversely affected by any plain
error in the court’s ruling. See United States v. Brewer, 1 F.3d 1430,
1434-35 (4th Cir. 1993).
Goode also contends that the district court erred in refusing to give
his proposed instruction regarding "willfulness." Because the instruc-
tions given were substantially similar to the requested instructions, we
find no abuse of discretion. See United States v. Patterson, 150 F.3d
382, 388 (4th Cir. 1998), cert. denied, 525 U.S. 1086 (1999); United
States v. Whittington, 26 F.3d 456, 462 (4th Cir. 1994) (providing
standard).
Goode argues that the district court erred in instructing the jury that
Goode’s claims that he is not a person subject to federal income taxes,
that the tax laws do not extend to residents of Virginia, and that
income from a business need not be reported on a federal income tax
return are not valid as a matter of law. He contends that there was no
evidence at trial that he asserted any of these arguments. Our review
of the transcript shows that this instruction was supported by the evi-
dence. Accordingly, there was no abuse of discretion by the district
court in giving the challenged instruction. See Whittington, 26 F.3d
at 462.
Goode also asserts a challenge to jury instruction number nine.
However, because Goode failed to specify the error he alleges in this
instruction, he has waived appellate review of this instruction. See
Tucker v. Waddell, 83 F.3d 688, 690 n.1 (4th Cir. 1996) (failing to
present argument in appellate brief waives appellate review); 11126
*Pollock predated the Sixteenth Amendment and was expressly over-
ruled by South Carolina v. Baker, 485 U.S. 505 (1988).
4 UNITED STATES v. GOODE
Baltimore Blvd., Inc. v. Prince George’s County, 58 F.3d 988, 993 n.7
(4th Cir. 1995).
Lastly, Goode contends that the evidence was insufficient to sup-
port his conviction. The evidence, viewed in the light most favorable
to the government, see Glasser v. United States, 315 U.S. 60, 80
(1942), was that Goode earned $85,000 to $125,000 per year from
1992 to 1995. Despite having filed returns for many years prior to
1992, in that year Goode decided not to file. Because he had filed for
a number of years and because he was a CPA, familiar with the filing
requirements, we find that the evidence was sufficient to prove a
known duty to file and the failure to file. See 26 U.S.C. § 7203;
United States v. Foster, 789 F.2d 457, 460 (7th Cir. 1986). The
remaining element is that the failure to file was willful. Goode was
a CPA, who earned his living by preparing tax returns for others.
Although he asserted that his research led him to a good faith belief
that he did not need to file, Goode did not share this conclusion with
his clients. Also, Goode led the purchaser of his CPA practice to
believe that he had filed returns, when he knew he had not. Based on
this evidence, we find that there was sufficient evidence from which
the jury could find that Goode’s failure to file was willful.
In conclusion, we affirm Goode’s convictions.
AFFIRMED