US v. Oran Davis

Filing 920100310

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4621

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ORAN TILLMAN DAVIS, Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Richard L. Voorhees, District Judge. (3:02-cr-00251-RLV-DCK-1)

Submitted:

February 24, 2010

Decided:

March 10, 2010

Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Aaron E. Michel, Charlotte, North Carolina, for Appellant. Edward R. Ryan, United States Attorney, David A. Brown, Assistant United States Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Oran Tillman Davis appeals his convictions for two

counts of tax evasion, in violation of 26 U.S.C. § 7201 (2006). Finding no error, we affirm. Davis first argues that the district court erred in denying his motion for judgment of acquittal on the ground that the indictment was not returned within the applicable statute of limitations. We review de novo the district court's denial of a United States v.

Rule 29 motion for judgment of acquittal.

Reid, 523 F.3d 310, 317 (4th Cir.), cert. denied, 129 S. Ct. 663 (2008). novo. We also review Davis's statute of limitations claim de United States v. Uribe-Rios, 558 F.3d 347, 351 (4th Cir.

2009); see also United States v. Wilson, 118 F.3d 228, 236 (4th Cir. 1997) ("The government bears the burden of proving that it began its prosecution within the statute of limitations

period."). The applicable statute of limitations in this case is six years. 236. See 26 U.S.C. § 6531 (2006); Wilson, 118 F.3d at

"The limitations period for a violation of [26 U.S.C.]

§ 7201 begins to run on the date of the last affirmative act of tax evasion." 118 F.3d at 236. Based on our review of the

record, we find that Davis's last affirmative act of tax evasion occurred in March 1997, when he mailed documents misrepresenting his relationship with Prime Management Group to Agent James. 2

Davis

was

therefore

properly

indicted

within

the

statute

of

limitations. Davis next argues that the evidence was insufficient to support the jury's verdict. "A defendant challenging the United "[A]n of

sufficiency of the evidence" faces a "heavy burden." States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997). appellate court's reversal of a conviction on

grounds

insufficient evidence should be `confined to cases where the prosecution's failure is clear.'" United States v. Jones, 735

F.2d 785, 791 (4th Cir. 1984) (quoting Burks v. United States, 437 U.S. 1, 17 (1978)). there is substantial v. United A verdict must be upheld on appeal if in the U.S. record 60, 80 to support (1942). it. In

evidence States,

Glasser

315

determining whether the evidence in the record is substantial, this court views the evidence in the light most favorable to the Government, reasonable and inquires of whether could there is evidence as that a and

finder

fact

accept

adequate

sufficient to establish a defendant's guilt beyond a reasonable doubt. 1996). United States v. Burgos, 94 F.3d 849, 862-63 (4th Cir. Based on our review of the record, we find that

substantial evidence supported the jury's verdict. Finally, Davis argues that the indictment was

defective for failing to set forth the precise amount of taxes that he sought to evade. Because this claim is raised for the 3

first time on appeal, we review for plain error.

See United

States v. Cotton, 535 U.S. 625, 631 (2002) (applying plain error test to claim that the indictment failed to allege element of charged offense). Rule 7(c)(1) of the Federal Rules of Criminal

Procedure directs that an indictment "must be a plain, concise and definite written the offense statement charged." of the To essential facts

constituting

pass

constitutional "`[F]irst,

muster, an indictment must satisfy two requirements:

that it contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and second, that it enables him to plead an acquittal or

conviction in bar of future prosecutions for the same offense.'" United States v. Resendiz-Ponce, v. United 549 418 U.S. U.S. 102, 87, 108 117 (2007) (1974) v. the

(quoting (internal Williams,

Hamling

States, see (4th

brackets 152 F.3d

omitted)); 294, 299

also Cir.

United

States of

1998)

("`One

principal purposes of an indictment is to apprise the accused of the charge or charges against him so he can prepare his

defense.'") (quoting United States v. Fogel, 901 F.2d 23, 25 (4th Cir. 1990)). Each count of the indictment in this case stated, in relevant part, that Davis "knew and believed [his] joint taxable income for the calendar year was substantially in excess of the 4

amount stated, and that an additional tax was due and owing to the United States." Because the Government was not required to

allege or prove the precise amount of additional tax due and owing at trial, see United States v. McKee, 506 F.3d 225, 235-36 (3d Cir. 2007), we find that an exact amount was not required to be set forth in the indictment. 783 F.2d 307, 315 (2d Cir. See United States v. Citron, ("The grand jury was not

1986)

required to make . . . allegations as to the amounts of tax [a defendant in a § 7201 case] sought to evade. . . . [S]ince the indictment need not allege that which is not part of the

government's required proof, no exact figure need be stated in the indictment."). Accordingly, sentence. legal before we affirm Davis's convictions and

We dispense with oral argument because the facts and are and adequately argument presented not in the the materials decisional

contentions the court

would

aid

process. AFFIRMED

5