US v. James Johnson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 6:12-cr-00015-NKM-1 Copies to all parties and the district court/agency. [999354010].. [13-4282]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4282

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JAMES BOWERS JOHNSON,
Defendant – Appellant.

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:

March 19, 2014

Decided:

May 12, 2014

Before MOTZ, KING, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Paul Graham Beers, GLENN, FELDMANN, DARBY & GOODLATTE,
Roanoke, Virginia, for Appellant.
Katie Bagley, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
ON
BRIEF: Kathryn Keneally, Assistant Attorney General, Frank P.
Cihlar, Chief, Criminal Appeals & Tax Enforcement Policy
Section, Gregory Victor Davis, Tax Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; Timothy J. Heaphy,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Roanoke, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Appellant

James

Bowers

Johnson

(“Appellant”)

was

convicted by a jury of four counts of violating the Internal
Revenue

Code

impeding,

or

(“IRC”);

one

endeavoring

count
to

of

corruptly

obstruct

or

obstructing

impede,

the

or
due

administration of the IRC, in violation of 26 U.S.C. § 7212(a),
and

three

counts

of

willfully

failing

returns, in violation of 26 U.S.C. § 7203.

to

file

income

tax

On appeal, Appellant

argues the district court abused its discretion by admitting
evidence of other bad acts, that is, evidence that he evaded his
obligation

to

pay

child

support.

Appellant

also

argues

the

district court violated the Fifth Amendment by constructively
amending Count One of the indictment.
First, because the challenged evidence was relevant to
Appellant’s mental state, we hold that the district court did
not abuse its discretion in admitting it and did not commit
plain error otherwise.
instructions

to

the

Second, because the district court’s
jury

did

not

broaden

the

bases

for

conviction beyond those charged in the indictment, we hold that
the district court did not constructively amend the indictment.
Therefore, we affirm the judgment of the district court.
I.
On April 5, 2012, a federal grand jury in the Western
District of Virginia returned a four-count indictment charging
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Appellant
“Corrupt

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with

violations

Endeavor

to

of

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the

Obstruct,

IRC.

Impede,

Count
and

One

Impair

titled,
the

Due

Administration of the Internal Revenue Code,” charged Appellant
with

violating

26

U.S.C.

§ 7212(a)

of

the

IRC.

J.A.

14. 1

Specifically, Count One of the indictment charged, in part:
Beginning in or about January 2001 and
continuing thereafter up to at least May of
2010, in the Western Judicial District of
Virginia and elsewhere, JAMES BOWERS JOHNSON
did corruptly obstruct and impede [sic] to
obstruct and impede the due administration
of the Internal Revenue Code by: submitting
alleged financial instruments to the United
States Department of Treasury; using bogus
trusts and other nominees; failing to file
income tax returns; creating nominees to
obscure ownership in, control of, and income
from the assets, including business income
and rental receipts; and engaging in conduct
the likely effect of which was to mislead
and to conceal, including the acts detailed
below.
Id. at 16-17.

As further detailed in Count One, from 2000

through at least 2009, Appellant was self-employed and resided
in Winchester, Virginia.

Appellant received gross income from

several sources, including the sale of prepaid telephone cards,
rental receipts,
Appellant

and

received

capital

over

$1

gains.
million

Between
in

gross

2000

and

receipts,

2007,
but

despite exceeding the filing threshold for each of those years,

1

Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.

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he did not file individual income tax returns.

The remaining

three counts of the indictment charged Appellant with willfully
failing to file income tax returns for tax years 2005, 2006, and
2007, in violation of 26 U.S.C. § 7203.
Appellant’s jury trial spanned four days from January
15-18, 2013.

Relatively few material facts were in dispute.

The Government’s theory was that Appellant acted willfully and
in bad faith to enrich himself by concealing income from the
Internal

Revenue

Service

(“IRS”).

In

this

vein,

the

Government’s witnesses testified that Appellant established and
used entities, such as limited liability companies and trusts,
to

conceal

his

income

and

assets

and

avoid

paying

taxes.

According to these witnesses, Appellant directed tenants of his
rental properties and customers of his phone card business to
make payments to him with money orders issued to his various
entities.

Additionally, the Government presented evidence that

Appellant utilized a “warehouse bank,” a commercial bank account
called

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.
Appellant’s sole defense at trial was that he did not
act

with

the

requisite

mens

rea

to

be

found

guilty

of

obstructing the IRC or willfully failing to file tax returns,
even though he conceded that he had sufficient income to trigger
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the requirement to file tax returns in 2005, 2006, and 2007, and
failed

to

do

so.

During

his

opening

statement,

Appellant’s

counsel told the jury that Appellant was a well-educated, family
man, who believed in good faith, after much research on the
issue, that the tax system was voluntary and did not apply to
him.
Throughout its case in chief, the Government entered
numerous exhibits into evidence.

Appellant takes issue with

Government Exhibits 40-1, 2 40-2, 3 40-3. 4

only three:

These

exhibits each contained letters sent from Appellant to various
state agencies articulating his reasons for not paying child
support.

On

the

second

day

of

trial,

Appellant’s

counsel

2

Government Exhibit 40-1 is a letter titled, “Letter
Rogatory Under Seal of County Notary-at-Large, Return of
Defective Process by Foreign State in the Nature of a Solemn
Affirmation of a Sovereign Man in the presence of Yahweh,” dated
September 24, 2009, sent from Appellant to the Winchester
Juvenile and Domestic Relations District Court.
3

Government Exhibit 40-2 contained several documents mailed
from Appellant to the Virginia Department of Social Services.
The documents included a copy of a money order dated June 11,
2009, purporting to pay $4,500.00 to the Virginia Division of
Child Support Enforcement.
The letter accompanying the money
order indicated that it would be processed by the IRS and the
funds were to be withdrawn from the United States Treasury Trust
Account in Appellant’s name.
4

Government Exhibit 40-3 contained two notices sent from
Appellant in August and September, 2009, to the Virginia
Department of Social Services.
Appellant threatened suit
because his money order, shown in Government Exhibit 40-2, was
not used to satisfy his child support debt.

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objected to the introduction of Government Exhibit 40-1.
following colloquy occurred:
[GOVERNMENT COUNSEL]:
Your Honor, I move
into evidence Government’s Exhibit 40-1,
which is an official record from the court
in Winchester.
[APPELLANT’S COUNSEL]: I object to the
relevance, Your Honor.
I’m not sure how
this is relevant to the tax matter at hand.
[GOVERNMENT COUNSEL]:
The relevance, in
opening statement it was brought up in
regards to Mr. Johnson’s focus on not paying
income taxes, what -- he has used these
types of documents in other instances to
avoid his legal obligation, including child
support, which this document establishes.
[APPELLANT’S
COUNSEL]:
The
legal
obligations he’s charged with failing to
comply with are his tax obligations, not any
child support obligations.
So I think the
relevance, if any, is sort of minimal.
[GOVERNMENT COUNSEL]:
THE COURT:

It goes to --

Why don’t we come around?

(At sidebar.)
[APPELLANT’S
COUNSEL]:
I
anything to add, Your Honor.
THE COURT:

don’t

have

I’m sorry?

[APPELLANT’S
COUNSEL]:
I
don’t
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

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THE COURT: Well, I know, but he has excused
his tax thing that he has this firm belief
that he went through all of this to avoid
taxes.
And if he is doing it to avoid all
of his debts, it would tend to show that it
wasn’t necessarily he was trying to avoid
taxes. It would seem it is just sort of -it would just show a pattern of greed, that
he didn’t pay anybody.
[APPELLANT’S COUNSEL]: If it shows that -THE COURT: Okay. So I’m going to allow it.
I mean, I -- I mean, I think, you know, it
is the kind of evidence -- the prejudice
could outweigh the probative value, but I
think it is very probative here where we
have heard this opening statement of what a
wonderful caring person this is and that,
you know, it is just -- his problem is just
with taxes. It doesn’t seem to be that. It
is just ‘I don’t pay anybody.’ So -- but I
think -- so I think the probative value
outweighs the prejudice.
J.A.

305-07.

After

questioning

the

Government’s

witness

--

Appellant’s house guest who signed the exhibits as a “witness”
or

“notary-in-fact”

--

the

Government

then

moved

admission of Government Exhibits 40-2 and 40-3.

for

the

Appellant’s

counsel did not object to the admission of these two exhibits.
The only evidence presented in Appellant’s defense was
his own testimony.
1996

or

1997,

Prosperity
banking,

he

Appellant testified that sometime in late
purchased

Group,
government,

which

a

series

discussed

anything

that

of

tapes

from

“Congress,
deals

with

revolution,
a

context for understanding . . . what we are doing.
8

Global

historical
Taxation

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obviously, was one of them.”

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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

affiliating with tax protesting groups such as Save-A-Patriot
Fellowship and We the People Congress.
Appellant testified that through his involvement with
these organizations and his own research, he came to believe
that

the

IRC

has

been

misapplied

under

the

Constitution.

Appellant reasoned that the Sixteenth Amendment, giving Congress
the authority to impose an income tax, does not apply to him
because he was “outside of the jurisdiction of the U.S. as far
as not living or working in the U.S.” and “wages are not income
as far as [his] understanding of the federal tax code.”
508-09.

Therefore,

Appellant

testified

system is . . . a voluntary system.”
At

the

close

of

he

J.A.

“believe[ed]

the

Id. at 509.

evidence,

the

district

court

instructed the jury as to Count One: 5

5

Appellant’s counsel raised
following jury instructions.

9

no

objection

below

to

the

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Count One of the indictment charges the
defendant with violating section 7212(a) of
the Internal Revenue Code -- section 7212(a)
of the Internal Revenue Code which provides,
in pertinent part, as follows:
Title 26,
United States Code, Section 7212(a) states
in pertinent part that, “whoever corruptly
obstructs
or
impedes
or
endeavors
to
obstruct or impede the due administration of
this title” shall be guilty of an offense
against the United States.
In order to sustain its burden of proof
for
the
crime
of
obstructing
the
due
administration of the Internal Revenue Code
as alleged in Count One of the indictment,
the government must prove the following
elements beyond a reasonable doubt:
One, that during the time period stated
in the indictment the Internal Revenue
Service tried to ascertain, assess, compute,
and collect federal income taxes, federal
employment taxes, and penalties for the
defendant;
Two, that the defendant knew that the
Internal Revenue Service was attempting to
duly administer the Internal Revenue Code;
and
Three,
that
the
defendant
then
corruptly obstructed, impeded, or endeavored
to obstruct or impede the due administration
of the Internal Revenue Code as detailed in
the indictment. . . .
An endeavor is any effort or any act or
attempt to effectuate an arrangement or to
try
to
do
something,
the
natural
and
probable
consequences
of
which
is
to
obstruct or impede the due administration of
the Internal Revenue laws.
J.A. 581-83.

On January 18, 2013, the jury convicted Appellant

on all four counts as alleged in the indictment.
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On

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April

11,

2013,

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the

district

court

Appellant to a total of 48 months imprisonment:

sentenced

36 months on

Count One and 12 months on each of Counts Two through Four, to
be served concurrently with each other and consecutively to the
term imposed on Count One.

Additionally, the district court

held Appellant in criminal contempt for his disruptive conduct
during the sentencing hearing. 6 The court tacked on 30 days of
imprisonment for Appellant’s contempt, to run consecutively to
the rest of his sentence.
Judgment was entered on April 15, 2013.
timely

appealed,

alleging

the

district

court

Appellant
abused

its

discretion by admitting evidence of Appellant’s other bad acts
and

violated

the

Fifth

Amendment

by

constructively

amending

Count One of the indictment.
II.
We generally review evidentiary rulings for abuse of
discretion.
Cir.

2014).

See United States v. Hassan, 742 F.3d 104, 130 (4th
“In

reviewing

an

evidentiary

ruling

under

that

standard, we will only overturn a ruling that is arbitrary and

6

For example, when asked to sit down by a marshal in the
courtroom, Appellant exclaimed, “[u]nhand me sir.
There’s no
reason to grab me like that.” J.A. 1815. The court responded,
“He didn’t grab you. I asked you to sit down.” Id. Appellant
then stated to the court, “I said, sir, I asked you to be
recused. And I fired you.” Id.

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irrational.”
omitted).
evidence

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Id.

(internal

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quotation

marks

and

alterations

However, when a party fails to object at trial to
challenged

on

appeal,

we

view

the

admission of that evidence for plain error.

district

court’s

See United States

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

this circuit constructive amendments are erroneous per se and
require

reversal

regardless

of

preservation.”

Id.

at

309

(internal quotation marks omitted); see also United States v.
Randall,

171

F.3d

195,

203

(4th

Cir.

1999)

(“Thus,

a

constructive amendment violates the Fifth Amendment right to be
indicted by a grand jury, is error per se, and must be corrected
on appeal even when the defendant did not preserve the issue by
objection.” (emphasis in original)).
III.
A.
Evidentiary Challenges
Appellant

first

contends

the

district

court

erroneously admitted evidence that he evaded his obligation to
pay child support, that is, Government Exhibits 40-1, 40-2, and
40-3.

According to Appellant, the district court abused its
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discretion per Rules 403 and 404(b) of the Federal Rules of
Evidence

when

Appellant’s

it

admitted

objection.

this

Appellant

“error was far from harmless.”

prejudicial
further

evidence

contends

that

over
this

Appellant’s Br. 6.

The Government argues that the district court properly
admitted the exhibits.
objected

to

the

According to the Government, Appellant

admission

of

only

one

of

these

exhibits,

Government Exhibit 40-1, and only pursuant to relevance, and did
not object at all to the admission of Government Exhibits 40-2
and 40-3.

The Government further contends the district court

did not abuse its discretion or commit plain error in admitting
the exhibits, which were relevant to the issue of Appellant’s
intent.

Per the Government’s view, the documents demonstrated

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

Additionally, the Government argues Appellant fails to

establish that admitting the documents was plain error under
Federal Rule of Evidence 404(b).
1.
Before

addressing

the

merits

of

Appellant’s

evidentiary challenges, we must first determine the appropriate
lens through which to view them.

Pursuant to Rule 103 of the

Federal Rules of Evidence, in order to preserve a claim of error
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for the admission of evidence, a party must “timely object[] or
move[] to strike” and “state[] the specific ground, unless it
was

apparent

from

the

context.”

Fed.

R.

Evid.

103(a)(1).

Therefore, in order to be subject to an abuse of discretion
review, “[a]n objection to the admission of evidence must be
both specific and timely.”
660

F.3d

742,

751

(4th

United States v. Cabrera-Beltran,
Cir.

2011)

(emphasis

supplied).

Appellant’s only specific and timely objection was to relevance
under Rule 403 with respect to a single exhibit:
Exhibit 40-1.

Government

He did not object at all to the admission of

Government Exhibits 40-2 and 40-3.
When making the objection to Government Exhibit 40-1,
Appellant’s counsel stated, “I object to the relevance, Your
Honor.
hand.”

I'm not sure how this is relevant to the tax matter at
J.A.

305.

Appellant’s

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 person’s character in order to show that on a particular
occasion the person acted in accordance with the character.”
Fed. R. Evid. 404(b)(1).

Although counsel need not cite the

particular rule upon which an objection is based, the objection
must be of sufficient specificity to afford the district court
and the Government the opportunity to respond to the alleged
error below.

Appellant’s objection fell below this standard.
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Accordingly,
Government

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we

will

Exhibit

view

40-1

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Appellant’s

pursuant

to

Rule
an

403

abuse

objection
of

to

discretion

standard and his Rule 404(b) challenge to Government Exhibit 401

under

the

plain

error

standard.

Given

the

lack

of

any

objection at all below to Government Exhibits 40-2 and 40-3, the
admission of that evidence will be reviewed for plain error.
2.
Appellant was charged with four violations of the IRC.
Count One charged Appellant with violating 26 U.S.C. § 7212(a).
Section 7212(a) of the IRC provides that “[w]hoever corruptly
. . . obstructs or impedes, or endeavors to obstruct or impede,
the due administration of this title, shall, upon conviction
thereof, be fined not more than $5,000, or imprisoned not more
than

3

years,

supplied).

or

Counts

both.”
Two

26

through

violating 26 U.S.C. § 7203.

U.S.C.
Four

§ 7212(a)

charged

(emphasis

Appellant

with

That statute states that a person

who willfully fails to file a return who is required to do so is
subject to the imposition of a fine not exceeding $25,000, and
to a term of imprisonment of up to one year.
§ 7203.

Thus,

the

Government

was

required

See 26 U.S.C.
to

prove

that

Appellant acted “corruptly” (as to Count One) and “willfully”
(as to Counts Two through Four).
A
§ 7212(a)

by

person
acting

acts
“with

corruptly
the
15

within

intent

to

the

secure

meaning
an

of

unlawful

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benefit either for oneself or for another.”
Wilson, 118 F.3d 228, 234 (4th Cir. 1997).

United States v.
Willfulness, in the

context of § 7203, means the “‘voluntary, intentional violation
of a known legal duty.’”

United States v. Rogers, 18 F.3d 265,

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 Court’s order directing him to
appear

and

explain

why

he

had

not

made

the

requisite

child

support payments, was filled with nonsensical statements about
the

federal

Appellant.

government

its

lack

of

jurisdiction

over

Therefore, the Government reasons that Government

Exhibit 40-1,
which

and

were

as

well

as

substantially

Government
similar

to

Exhibits
Government

40-2

and

40-3,

Exhibit

40-1,

were relevant and admissible as probative of Appellant’s mental
state and intent, i.e. his corruptness and willfulness.

The

district court agreed, and we conclude the district court did
not abuse its discretion.
As the Government points out, the fact that Appellant
made the same arguments to other agencies as an excuse for nonpayment

of

an

obligation,

makes

it

more

probable

that

Appellant’s asserted beliefs about the applicability of the tax
laws were not sincerely held, but that instead, Appellant merely
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wielded whatever claims he thought would be useful in an effort
to avoid paying his legal obligations, tax or otherwise.
Therefore, we conclude the district court’s admission
of Government Exhibit 40-1 was not an abuse of discretion in the
face

of

a

Rule

403

objection.

Because

we

conclude

that

Government Exhibits 40-2 and 40-3 were sufficiently similar to
Government Exhibit 40-1, it is unnecessary to also conduct a
plain error review in this regard.

See, e.g., United States v.

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
Palacios’s 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

objected and those he did not.”).
3.
Appellant also challenges the child support evidence,
i.e., Government Exhibits 40-1, 40-2, and 40-3, pursuant to Rule
404(b) claiming the evidence fell short of the requirements for
the

admission

of

character

evidence.

Rule

404(b)

provides:

“Evidence of a crime, wrong, or other act is not admissible to
prove a person’s character in order to show that on a particular

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occasion the person acted in accordance with the character.” 7
Fed.

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 Appellant’s substantial
rights.
(1993).

See
“The

United

States

correction

v.
of

Olano,
plain

507

U.S.

error

lies

725,

732-35

within

our

discretion, which we may exercise if the error seriously affects
the

fairness,

integrity

or

public

reputation

of

proceedings, or the defendant is actually innocent.”

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

“Rule 404(b) was amended in December 2011 . . . . Thus,
the appropriate rule for the appeal is the current version of
Rule 404(b).” United States v. Williams, 740 F.3d 308, 314 n.5
(4th Cir. 2014).

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must not be offered to establish the general
character of the defendant. In this regard,
the more similar the prior act is (in terms
of physical similarity or mental state) to
the act being proved, the more relevant it
becomes.
(2) The act must be necessary in
the sense that it is probative of an
essential
claim
or
an
element
of
the
offense. (3) The evidence must be reliable.
And (4) the evidence’s probative value must
not be substantially outweighed by confusion
or unfair prejudice in the sense that it
tends to subordinate reason to emotion in
the fact finding process.
United States v. Williams, 740 F.3d 308, 314 (4th Cir. 2014)
(quoting United States v. Queen, 132 F.3d 991, 997 (4th Cir.
1997)).

According to Appellant, the evidence fails in all four

categories.
Under a plain error review, however, it is clear that
the

district

framework.
court

court’s

analysis

satisfies

this

analytical

The relevancy analysis conducted by the district

satisfies

the

first

and

second

criteria

because

the

evidence was probative of an element of the crime charged, that
is, of Appellant’s state of mind -- his corrupt and willful
intent.

Appellant

unreliable.
criterion.

does

Therefore,
“The

fourth

not
we

are

factor

argue
left

that
with

reflects

404(b) evidence must satisfy Rule 403.

the

evidence

only

that

the

the

is

fourth

proffered

Unfair prejudice exists

when there is a genuine risk that the emotions of a jury will be
excited

to

irrational

behavior,

19

and

this

risk

is

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disproportionate

to

the

Pg: 20 of 23

probative

value

of

the

offered

evidence.”

Williams, 740 F.3d at 314 (internal quotation marks

omitted).

Here, the district court specifically concluded, “I

think the probative value outweighs the prejudice.”

J.A. 307.

Upon review, we cannot conclude that the district court erred in
this determination.
Accordingly,

we

hold

there

was

no

error

here,

let

alone plain error.
B.
Fifth Amendment Challenge
Appellant

next

contends

the

district

court

violated

the Fifth Amendment by constructively amending Count One of the
indictment.

The

Fifth

Amendment

to

Constitution, provides in relevant part:
held

to

answer

for

a

capital,

or

the

United

States

“No person shall be

otherwise

infamous

crime,

unless on a presentment or indictment of a Grand Jury . . . .”
U.S.

Const.

“guarantees

amend.
that

a

V.

The

criminal

Fifth

defendant

charges in a grand jury indictment.”
171

F.3d

195,

omitted).

203

(4th

Cir.

1999)

Amendment
will

be

necessarily

tried

only

on

United States v. Randall,
(internal

quotation

marks

“When the government, through its presentation of

evidence and/or its argument, or the district court, through its
instructions
conviction

to

the

beyond

jury,
those

or

both,

charged
20

broadens
in

the

the

bases

indictment,

for
a

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constructive

amendment

variance

occurs.”

--

--

Pg: 21 of 23

sometimes

Id.

“To

referred

to

constitute

a

as

a

fatal

constructive

amendment, the incongruity must in fact change the elements of
the

offense

charged,

such

that

the

defendant

is

actually

convicted of a crime other than that charged in the indictment.”
United States v. Whitfield, 695 F.3d 288, 309 (4th Cir. 2012)
(internal quotation marks omitted).
Count One of the indictment charged Appellant with a
violation of 26 U.S.C. § 7212(a).

Section 7212(a) criminalizes

both successful and unsuccessful attempts to impede the IRS.
See United States v. Bostian, 59 F.3d 474, 479 (4th Cir. 1995)
(“[O]nly

intent

to

impede,

not

successful

impediment,

is

necessary for § 7212(a) to be violated.”).
Tracking the language of the statute charged, Count
One of the indictment was titled “Corrupt Endeavor To Obstruct,
Impede,

and

Impair

Revenue Code.”

the

J.A. 14.

Due

Administration

Of

the

Internal

However, the body of the indictment

charged that Appellant “did corruptly obstruct and impede [sic]
to obstruct and impede the due administration of the Internal
Revenue Code.” 8

Id. at 16.

The district court instructed the

jury on the meaning of the word “endeavor,” defining it as “any

8

According to the Government, this was a typographical
error as the indictment was meant to mirror the statute.

21

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effort or any act or attempt to effectuate an arrangement or to
try to do something, the natural and probable consequences of
which is to obstruct or impede the due administration of the
Internal Revenue laws.”
Appellant
amended

Count

Id. at 583.

contends

One

of

the

the

trial

indictment

court

when

it

constructively
informed

jurors

Appellant could be found guilty of violating 26 U.S.C. § 7212(a)
if

he

merely

“endeavored”

to

obstruct

or

impede

the

IRS.

According to Appellant, he was not charged with “endeavoring” to
obstruct

or

instructions

impede

the

improperly

alleged in Count One.

IRS,

and

broadened

the
the

trial
basis

court’s
of

jury

conviction

The Government, however, correctly points

out that even if the indictment were given the strict reading
promoted

by

Appellant,

the

jury

was

entitled

to

convict

Appellant of a lesser-included offense, i.e., attempt, which is
the equivalent of “endeavoring.”

See Fed. R. Crim. P. 31(c) (“A

defendant may be found guilty of any of the following:
offense

necessarily

included

in

the

offense

charged;

(1) an
(2)

an

attempt to commit the offense charged; or (3) an attempt to
commit an offense necessarily included in the offense charged,
if the attempt is an offense in its own right.”).
Because

the

district

court’s

instructions

did

not

broaden the bases for conviction beyond those charged in the
indictment, the district court did not constructively amend the
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indictment.

See

Randall,

171

Pg: 23 of 23

F.3d

at

203.

The

indictment

plainly charged Appellant with a violation of § 7212(a), which
criminalizes both intent to impede and successful impediment of
the

due

administration

court’s

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

695

did

not

that

such

other

district

the

than

F.3d

at

that
309

Moreover, as the Government

find
of

the

“endeavor”

Whitfield,

Appellant

which

of

charged,
a

(internal quotation marks omitted).
submits,

Therefore,

otherwise,

a

conclude

the

lesser-included
is

the

jury

was

offense,

equivalent

of

See Fed. R. Crim. P. 31(c).
IV.

Pursuant

to

the

foregoing,

the

judgment

of

the

district court is
AFFIRMED.

23