No. 13-4282
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:
Decided:
PER CURIAM:
Appellant
James
Bowers
Johnson
(Appellant)
was
Code
impeding,
or
(IRC);
one
endeavoring
count
to
of
corruptly
obstruct
or
obstructing
impede,
the
or
due
three
counts
of
willfully
failing
to
file
income
tax
On appeal, Appellant
to
pay
child
support.
Appellant
also
argues
the
to
the
did
not
broaden
the
bases
for
Appellant
Corrupt
with
violations
Endeavor
to
of
the
Obstruct,
IRC.
Impede,
Count
and
One
Impair
titled,
the
Due
violating
26
U.S.C.
7212(a)
of
the
IRC.
J.A.
14. 1
and
received
capital
over
$1
gains.
million
Between
in
gross
2000
and
receipts,
2007,
but
The remaining
Revenue
Service
(IRS).
In
this
vein,
the
conceal
his
income
and
assets
and
avoid
paying
taxes.
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.
Appellants sole defense at trial was that he did not
act
with
the
requisite
mens
rea
to
be
found
guilty
of
the requirement to file tax returns in 2005, 2006, and 2007, and
failed
to
do
so.
During
his
opening
statement,
Appellants
only three:
These
On
the
second
day
of
trial,
Appellants
counsel
It goes to --
(At sidebar.)
[APPELLANTS
COUNSEL]:
I
anything to add, Your Honor.
THE COURT:
dont
have
Im sorry?
[APPELLANTS
COUNSEL]:
I
dont
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
305-07.
After
questioning
the
Governments
witness
--
notary-in-fact
--
the
Government
then
moved
for
the
Appellants
or
1997,
Prosperity
banking,
he
Group,
government,
which
series
discussed
anything
that
of
tapes
from
Congress,
deals
with
revolution,
a
Global
historical
Taxation
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.
eventually
topics
began
where
Id.
Appellant
attending
he
met
further
educational
like
minded
testified
seminars
of
individuals
he
similar
and
began
the
IRC
has
been
misapplied
under
the
Constitution.
Therefore,
Appellant
testified
the
close
of
he
J.A.
believe[ed]
the
Id. at 509.
evidence,
the
district
court
no
objection
below
to
the
On
April
11,
2013,
the
district
court
sentenced
36 months on
appealed,
alleging
the
district
court
Appellant
abused
its
violated
the
Fifth
Amendment
by
constructively
amending
2014).
reviewing
an
evidentiary
ruling
under
that
11
irrational.
omitted).
evidence
Id.
(internal
quotation
marks
and
alterations
on
appeal,
we
view
the
district
courts
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.
States v. Whitfield, 695 F.3d 288, 306 (4th Cir. 2012).
United
[I]n
reversal
regardless
of
preservation.
Id.
at
309
171
F.3d
195,
203
(4th
Cir.
1999)
(Thus,
first
contends
the
district
court
when
Appellants
it
admitted
objection.
this
Appellant
prejudicial
further
evidence
contends
that
over
this
Appellants Br. 6.
to
the
admission
of
only
one
of
these
exhibits,
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
support.
obligations
generally,
including
paying
child
addressing
the
merits
of
Appellants
apparent
from
the
context.
Fed.
R.
Evid.
103(a)(1).
F.3d
742,
751
(4th
2011)
(emphasis
supplied).
Government
305.
Appellants
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 persons character in order to show that on a particular
occasion the person acted in accordance with the character.
Fed. R. Evid. 404(b)(1).
Accordingly,
Government
we
will
Exhibit
view
40-1
Appellants
pursuant
to
Rule
an
403
abuse
objection
of
to
discretion
under
the
plain
error
standard.
Given
the
lack
of
any
years,
supplied).
or
Counts
both.
Two
26
through
U.S.C.
Four
7212(a)
charged
(emphasis
Appellant
with
Thus,
the
Government
was
required
See 26 U.S.C.
to
prove
that
by
person
acting
acts
with
corruptly
the
15
within
intent
to
the
secure
meaning
an
of
unlawful
United States v.
Willfulness, in the
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 Courts order directing him to
appear
and
explain
why
he
had
not
made
the
requisite
child
federal
Appellant.
government
its
lack
of
jurisdiction
over
Exhibit 40-1,
which
and
were
as
well
as
substantially
Government
similar
to
Exhibits
Government
40-2
and
40-3,
Exhibit
40-1,
The
of
an
obligation,
makes
it
more
probable
that
of
Rule
403
objection.
Because
we
conclude
that
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
Palacioss 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
admission
of
character
evidence.
Rule
404(b)
provides:
17
R.
Evid.
admissible
for
opportunity,
absence
404(b)(1).
of
another
intent,
mistake,
However,
such
purpose,
such
preparation,
plan,
or
lack
of
evidence
as
may
proving
knowledge,
accident.
be
motive,
identity,
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 Appellants substantial
rights.
(1993).
See
The
United
States
correction
v.
of
Olano,
plain
507
U.S.
error
lies
725,
732-35
within
our
fairness,
integrity
or
public
reputation
of
judicial
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
18
categories.
Under a plain error review, however, it is clear that
the
district
framework.
court
courts
analysis
satisfies
this
analytical
satisfies
the
first
and
second
criteria
because
the
Appellant
unreliable.
criterion.
does
Therefore,
The
fourth
not
we
are
factor
argue
left
that
with
reflects
the
evidence
only
that
the
the
is
fourth
proffered
to
irrational
behavior,
19
and
this
risk
is
disproportionate
to
the
probative
value
of
the
offered
evidence.
omitted).
J.A. 307.
we
hold
there
was
no
error
here,
let
next
contends
the
district
court
violated
The
Fifth
Amendment
to
to
answer
for
capital,
or
the
United
States
No person shall be
otherwise
infamous
crime,
Const.
guarantees
amend.
that
V.
The
criminal
Fifth
defendant
F.3d
195,
omitted).
203
(4th
Cir.
1999)
Amendment
will
be
necessarily
tried
only
on
quotation
marks
to
the
beyond
jury,
those
or
both,
charged
20
broadens
in
the
the
bases
indictment,
for
a
constructive
amendment
variance
occurs.
--
--
sometimes
Id.
To
referred
to
constitute
as
fatal
constructive
offense
charged,
such
that
the
defendant
is
actually
intent
to
impede,
not
successful
impediment,
is
and
Impair
Revenue Code.
the
J.A. 14.
Due
Administration
Of
the
Internal
Id. at 16.
21
Count
Id. at 583.
contends
One
of
the
the
trial
indictment
court
when
it
constructively
informed
jurors
he
merely
endeavored
to
obstruct
or
impede
the
IRS.
or
instructions
impede
the
improperly
IRS,
and
broadened
the
the
trial
basis
courts
of
jury
conviction
out that even if the indictment were given the strict reading
promoted
by
Appellant,
the
jury
was
entitled
to
convict
necessarily
included
in
the
offense
charged;
(1) an
(2)
an
the
district
courts
instructions
did
not
indictment.
See
Randall,
171
F.3d
at
203.
The
indictment
due
administration
courts
instruction
change
the
defendant
charged
in
on
elements
is
the
the
of
actually
the
of
IRC.
definition
the
offense
convicted
of
indictment.
even
entitled
to
i.e.,
if
we
convict
attempt,
endeavoring.
were
to
we
crime
such
other
695
district
did
not
that
the
than
F.3d
at
that
309
find
of
the
endeavor
Whitfield,
Appellant
which
of
charged,
a
Therefore,
otherwise,
conclude
the
lesser-included
is
the
jury
was
offense,
equivalent
of
Pursuant
to
the
foregoing,
the
judgment
of
the
district court is
AFFIRMED.
23