United States v. Harned ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4991
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MAX A. HARNED,
Defendant - Appellant.
No. 07-4995
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
REGIS E. HARNED,
Defendant - Appellant.
Appeals from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (1:06-cr-00015-IMK-1; 1:06-cr-00015-IMK-2)
Submitted: April 16, 2008 Decided: May 21, 2008
Before GREGORY and DUNCAN, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Robert Alan Jones, Las Vegas, Nevada, for Appellants. Sharon L.
Potter, United States Attorney, Robert H. McWilliams, Jr., Betsy C.
Jividen, Assistant United States Attorneys, Wheeling, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these consolidated appeals, Dr. Max A. Harned and his
wife, Regis E. Harned, appeal their convictions and sentences for
conspiracy to defraud the United States, in violation of 18 U.S.C.
§ 371 (2000), and four counts of attempting to evade taxes, in
violation of 18 U.S.C. § 2 (2000) and 26 U.S.C. § 7201 (2000). The
Harneds claim the district court abused its discretion by not
permitting them to admit into evidence amended tax returns. The
Harneds also claim the testimony of two IRS agents was improper
overview testimony and was insufficient to support the convictions
for the substantive counts. In addition, the Harneds claim the
prosecutor made improper remarks during closing and asked
irrelevant questions to two of their expert witnesses. Lastly, the
Harneds claim the district court erred in computing the tax loss in
determining the base offense level. Finding no error, we affirm.
Decisions regarding the admission or exclusion of
evidence are left to the sound discretion of the trial court and
will not be reversed absent an abuse of that discretion. United
States v. Russell, 971 F.2d 1098, 1104 (4th Cir. 1992). Relevant
evidence is generally admissible. Fed. R. Evid. 402. Evidence is
relevant if it has “any tendency to make the existence of any fact
that is of consequence to the determination of the action more or
less probable than it would be without the evidence.” Fed. R.
Evid. 401.
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Evidence of payment may be such that it merely shows a
change of heart or an attempt to vitiate a crime. On the
other hand, payment may be made or offered to be made
under such circumstances as to warrant an inference of
good faith and lack of evil intent. Such latter evidence
is admissible in an income tax evasion case to support
the contention that there was at no time any intent to
evade payment of taxes. Whether such evidence is
admissible depends upon the facts and circumstances of
each case.
Hayes v. United States, 227 F.2d 540, 543 (10th Cir. 1955).
Although amended returns may indeed be relevant on the
issue of whether a defendant acted willfully when he filed false
tax returns, see Turner v. United States, 222 F.2d 926, 933 (4th
Cir. 1955), we find, based on the circumstances, the district court
did not abuse its discretion by not allowing the admission of the
amended returns. We also find no error in the court’s decision not
allowing other post-filing conduct that supposedly went to the
issue of willfulness.
In order to establish a violation of 26 U.S.C.A. § 7201
(2000), the Government must prove the defendant acted willfully and
committed an affirmative act that constituted an attempted evasion
of tax payments and, as a result, a substantial tax deficiency
existed. United States v. Wilson, 118 F.3d 228, 236 (4th Cir.
1997). A defendant challenging the sufficiency of the evidence
faces a heavy burden. United States v. Beidler, 110 F.3d 1064,
1067 (4th Cir. 1997). “[A]n appellate court’s reversal of a
conviction on grounds of insufficient evidence should be confined
to cases where the prosecution’s failure is clear.” United
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States v. Jones, 735 F.2d 785, 791 (4th Cir. 1984). A verdict must
be upheld on appeal if there is substantial evidence in the record
to support it. Glasser v. United States, 315 U.S. 60, 80 (1942).
In determining whether the evidence in the record is substantial,
we view the evidence in the light most favorable to the Government,
and inquire as to whether there is evidence that a reasonable
finder of fact could accept as adequate and sufficient to establish
a defendant’s guilt beyond a reasonable doubt. United States v.
Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc).
We find no error in the summary testimony provided by the
two IRS agents. See Fed. R. Evid. 1006. Their testimony was based
upon extensive and detailed document review. They did not offer an
opinion as to culpability or assume the credibility of any
subsequent witnesses.
We further find substantial evidence supports the
convictions. In addition to the IRS agents’ findings with respect
to the document review, there was also substantial evidence showing
the Harneds acted willfully and that there was a substantial tax
deficiency as a result of their conduct.
With respect to the prosecutor’s closing argument
comments regarding whether a defense witness provided misleading
testimony, we find no plain error.* We also find no error in the
*
The Harneds did not object to that part of the closing
argument. Thus, our review is only for plain error. United
States v. Olano, 507 U.S. 725, 732 (1993).
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prosecutor’s questions to the defense witnesses with respect to the
payment they received for their services to the Harneds. These
types of questions may be relevant to bias. See United States v.
Edwardo-Franco, 885 F.2d 1002, 1009 (2d Cir. 1989); see also United
States v. Leja, 568 F.2d 493, 499 (6th Cir. 1977).
We further find the district court did not err in
determining the base offense level. In considering the district
court’s application of the Guidelines, this court reviews factual
findings for clear error and legal conclusions de novo. United
States v. Allen, 446 F.3d 522, 527 (4th Cir. 2006). We find the
district court properly addressed each objection to the base
offense level and affirm that decision based on the district
court’s reasoning.
Accordingly, we affirm the convictions and sentences. 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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