United States v. Margaret Parker , 358 F. App'x 524 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 21, 2009
No. 09-40333
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
THOMAS B PARKER; MARGARET A PARKER,
Defendants-Appellants
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:08-CR-99-1
Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Thomas B. Parker and Margaret A. Parker appeal their convictions for tax
fraud and for failing to file tax returns, and for aiding and abetting each other
in the same, in violation of 26 U.S.C. §§ 7203 and 7206(1). Thomas Parker
argues that the evidence was not sufficient to support his conviction for tax
fraud. Because Thomas Parker did not renew his motion for acquittal at the
close of all the evidence, this court reviews the evidence only for a manifest
*
Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
No. 09-40333
miscarriage of justice, looking to whether the record is devoid of evidence of
guilt. See United States v. Green, 293 F.3d 886, 895 (5th Cir. 2002).
To support a conviction for filing a false tax return under § 7206(1),
evidence must be sufficient to show that: (1) the defendant wilfully made and
subscribed to a materially false tax return; (2) the return contained a written
declaration that it was made under penalties of perjury; and (3) the defendant
did not believe that the return was true as to every material matter. United
States v. Clayton, 506 F.3d 405, 410 (5th Cir. 2007).
Parker argues only that he did not “willfully” defraud the Government.
Because Parker does not challenge the sufficiency of the evidence to support the
other § 7206(1) criteria, this court need not address the same. See Greenlaw v.
United States, 128 S. Ct. 2559, 2564 (2008). Parker does not elaborate on what
constituted his “legitimate confusion.” Moreover, his argument ignores that a
certified public accountant, using Parker’s computerized accounting records for
his business, informed Parker that he owed taxes. Parker acknowledged his tax
liability by entering into an installment plan with the IRS to pay the tax. Thus,
the record is not devoid of evidence that Parker had knowledge that he should
have reported more income than he did when he filed amended 1040-X returns
and that he was therefore guilty of tax fraud. See United States v. Bishop, 412
U.S. 346, 360 (1973).
To establish a violation of § 7203, the Government had to prove (1) that
Parker was required to file a return; (2) that he failed to file a return; and
(3) that the failure to file a return was willful. See Clayton, 506 F.3d at 408.
Parker again argues only that the Government failed to prove that he “willfully”
failed to file tax returns because he had a “reasonable belief that he was not
liable to file a tax return.” Parker points to nothing to support his assertion that
his belief was reasonable. Moreover, evidence from multiple sources indicated
that the Parkers’ business earned substantial income for the years in question.
Therefore, any purported belief that he was not required to file an income tax
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No. 09-40333
return was not reasonable. The record is not devoid of evidence that Thomas
Parker was guilty of failing to file tax returns for the years 2002 through 2006.
Margaret Parker argues that the district court committed reversible error
when it admitted Bonnie Edwards’s documents titled “Summary of Taxpayer
Contact” because the summaries were hearsay evidence. The Government
argues, among other things, that its exhibits 18A and 18B were not hearsay
because they were not offered for the truth of the matter asserted therein.
Exhibit 18B contained only the statements of Bonnie Edwards and is,
therefore, not hearsay. See F ED. R. E VID. 801(c). To the extent that Exhibit 18A
quoted from a memorandum by the Parkers that was previously delivered to
Edwards and was ostensibly offered to prove Margaret Parker’s complicity in tax
fraud, it is hearsay. See id.The exhibit, however, falls under the hearsay exception for business
records. Although Edwards had retired by the time of trial, her notes were made
on IRS Form 9297, which is titled “Summary of Taxpayer Contact.” That the
notes were made on an IRS form indicates that it was the regular practice of the
IRS to make such a record. See F ED. R. E VID. 803(6). Furthermore, Edwards
testified that the IRS required her to keep such records. Edwards recognized the
records and knew they were from her office. See United States v. Box, 50 F.3d
345, 356 (5th Cir. 1995). Edwards was therefore a qualified witness, and she
sufficiently authenticated Exhibit 18A such that it falls under the exception to
hearsay enunciated in Rule 803(6). F ED. R. E VID. 803(6); Box, 50 F.3d at 356.
The district court did not abuse its discretion in allowing Exhibit 18A into
evidence. See United States v. Franklin, 561 F.3d 398, 404 (5th Cir.), cert.
denied, 129 S. Ct. 2848 (2009).
AFFIRMED.
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