United States v. Parker , 272 F. App'x 289 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5238
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BEVERLY M. PARKER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (2:05-cr-00019-F-ALL)
Submitted: February 27, 2008 Decided: April 8, 2008
Before WILLIAMS, Chief Judge, SHEDD, Circuit Judge, and William L.
OSTEEN, Jr., United States District Judge for the Middle District
of North Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
Joe Alfred Izen, Jr., Bellaire, Texas, for Appellant. George E. B.
Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-
Parker, Assistant United States Attorneys, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A federal grand jury in the Eastern District of North Carolina
charged Beverly M. Parker in a four-count indictment with making
false statements on her U.S. Individual Income Tax Return Form 1040
for the tax years 1998 and 1999, in violation of 26 U.S.C.A. §
7206(1) (West 2002 & Supp. 2007) (Counts One and Two), and with
attempting to evade income taxes for the tax years 2000 and 2001,
in violation of 26 U.S.C.A. § 7201 (West 2002 & Supp. 2007) (Counts
Three and Four). Following a trial, a jury convicted Parker of all
four counts in the indictment. The district court sentenced Parker
to 36-month terms of imprisonment on Counts One and Two and 51-
month terms of imprisonment on Counts Three and Four, all to be
served concurrently. Parker timely appealed, challenging her
convictions and sentences on all four counts. We have jurisdiction
pursuant to 28 U.S.C.A. § 1291 (West 2006) and 18 U.S.C.A. §
3742(a) (West 2000 & Supp. 2006). Finding no error, we affirm.
I.
Counts One and Two of the indictment against Parker stemmed
from her filing 1040 forms for the tax years 1998 and 1999.
Parker’s 1040 forms for those years showed zero gross income and
zero taxes due even though Parker had a total taxable income, after
deductions, of $66,994 in 1998 and $54,183 in 1999. Counts Three
and Four stemmed from Parker’s failure to file any tax returns for
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the tax years 2000 and 2001 even though she received a total
taxable income of $78,589 in 2000 and $110,862 in 2001.
Parker took several steps to hide her assets from the
Government, most of which involved the use of her business venture,
North Point Management. For instance, Parker opened a business
account for North Point Management using her son’s social security
number and deposited receipts for property management services into
that account. She also transferred one of her personal bank
accounts into her daughter’s name and deposited checks written on
the North Point Management accounts and other funds into that
account. In addition, she used funds from the North Point
Management bank account for personal expenses including payments on
her and her husband’s personal credit cards, her mortgage, and her
children’s cars.
II.
On appeal, Parker principally contends that the district court
erred in denying her motion for judgment of acquittal on Counts One
and Two, which charged her with providing false information on tax
return forms, because the Government failed to establish that the
forms she submitted to the IRS were in fact tax returns.1 In this
1
Parker argues that the 1040 forms she filed were not
“returns” because the IRS deemed them frivolous and did not process
them. We have previously held that in order for a document to be
considered a tax “return,” it must “(1) purport to be a return; (2)
be executed under penalty of perjury; (3) contain sufficient data
3
regard, Parker challenges the sufficiency of the evidence
supporting her convictions. We, of course, must sustain the jury
verdict if there is substantial evidence, taking the view most
favorable to the Government, to support it. Glasser v. United
States, 315 U.S. 60, 80 (1942).
Contrary to Parker’s argument, the Government was not required
to prove that the 1040 forms filed by Parker qualified as tax
returns. Counts One and Two charged Parker with “willfully
mak[ing] and subscrib[ing] a U.S. Individual Income Tax Return Form
1040” for the tax years 1998 and 1999 respectively “which she did
not believe to be true and correct as to every material matter,”
(J.A. at 18-19 (emphasis added)), -- violations of 26 U.S.C.A. §
7206(1). Section 7206(1) prohibits “[a]ny person” from “willfully
mak[ing] and subscrib[ing] any return, statement, or other
document, which contains or is verified by a written declaration
that it is made under the penalties of perjury, and which he does
not believe to be true and correct as to every material matter.”
26 U.S.C.A. § 7206(1) (emphasis added). Even if we assume that
Parker’s tax return forms are not “returns” within the meaning of
§ 7206(1), those forms are plainly still “other document[s]” within
the meaning of the statute. Thus, it is irrelevant whether they
also meet the legal definition of a tax return.
to allow calculation of tax; and (4) represent an honest and
reasonable attempt to satisfy the requirements of the tax laws.”
In re Moroney, 352 F.3d 902, 905 (4th Cir. 2003).
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Given this conclusion, substantial evidence supports Parker’s
convictions on Counts One and Two. The evidence demonstrates that
(1) Parker submitted 1040 tax forms for the tax years 1998 and 1999
showing zero income; (2) she signed the forms under penalty of
perjury; and (3) she in fact received significant income in those
years. Because the 1040 forms showing no income were false
statements under § 7206(1), substantial evidence supports Parker’s
convictions on Counts One and Two.2
III.
Parker raises numerous other challenges to both her conviction
and her sentence. Our review of the record and consideration of
her arguments confirm that these challenges are without merit.3 We
2
Substantial evidence also supports Parker’s convictions on
Counts Three and Four, which charged Parker with income tax evasion
for tax years 2000 and 2001. The record demonstrates that Parker
did not file tax returns for those years even though she had
significant taxable income.
3
For instance, Parker argues that the district court erred
when it determined that personal jurisdiction existed over her
because rights to U.S. citizenship under the Fourteenth Amendment
must be “claimed” and did not automatically attach by virtue of her
birth in West Virginia. This argument is obviously frivolous.
Moreover, although we cannot determine whether Parker herself
or her counsel, Joe Alfred Izen, Jr., is the source of Parker’s
frivolous arguments, we note that we are not the first circuit to
be faced with frivolous claims presented by Mr. Izen. See Johnson
v. Comm’r, 289 F.3d 452, 457 (7th Cir. 2002) (issuing an order “to
show cause why [Joe Alfred Izen, Jr.] should not be sanctioned for
his antics” in a “frivolous” appeal before the Seventh Circuit).
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therefore affirm the judgment of the district court. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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