                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-5204


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

THOMAS ARRONA JOHNSON,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.    Deborah K. Chasanow, Chief District
Judge. (8:10-cr-00102-DKC-1)


Submitted:   January 12, 2012             Decided:   February 9, 2012


Before KING, AGEE, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Sean P. Vitrano, HAZLEHURST VITRANO LLC, Hunt Valley, Maryland,
for Appellant. Rod J. Rosenstein, United States Attorney, Adam
K. Ake, Assistant United States Attorney, Greenbelt, Maryland,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Thomas Arrona Johnson was convicted by a jury of one

count    of   conspiring    to    defraud    the    Internal     Revenue   Service

(“IRS”) by preparing and filing, and assisting others to prepare

and file, false income tax returns in violation of 18 U.S.C.

§ 286 (2006) and eight counts of presenting false claims to the

IRS in violation of 18 U.S.C. § 287 (2006).                  On appeal, Johnson

challenges his convictions under 18 U.S.C. § 287, arguing that

the district court erred in instructing the jury and that there

is insufficient evidence to support a guilty verdict on three

counts of conviction.          For the following reasons, we affirm.

              Johnson first contends that the district court failed

to specifically instruct the jury that the making and presenting

of   false    claims   under     § 287   must      have   been   “willful.”       As

Johnson concedes, the jury instructions may only be reviewed by

this    court   for    plain     error   because     he   did    not   request    an

instruction or object to those that were given.                    Fed. R. Crim.

P. 30(d); United States v. Nicolaou, 180 F.3d 565, 569 (4th Cir.

1999).     Under the plain error standard, Johnson must show:                    (1)

there was error; (2) the error was plain; and (3) the error

affected his substantial rights.                United States v. Olano, 507

U.S. 725, 732-34 (1993).           “This court reviews jury instructions

in their entirety and as part of the whole trial" to determine

"whether      the   court   adequately       instructed      the   jury    on    the

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elements of the offense and the accused's defenses."                                      United

States v. Bostian, 59 F.3d 474, 480 (4th Cir. 1995) (citations

omitted).

            The   statute       of   conviction              proscribes        the   making    of

false claims to a department or agency of the United States.                                   18

U.S.C. § 287.       Our review of the record leads us to conclude

that the district court did not plainly err in instructing the

jury as to the elements of the offense or available defenses.

See, e.g., United States v. Bolden, 325 F.3d 471, 494 (4th Cir.

2003)    (“we   must     uphold      a   conviction               [under   §     287]    if   the

evidence    shows      the    submission        of       a       false   claim    and    if   the

defendant acted with knowledge that the claim was false and with

a consciousness that he was either doing something which was

wrong, or which violated the law”) (quotation marks and internal

punctuation omitted); United States v. Blecker, 657 F.2d 629

(4th Cir. 1981) (“the government met its burden of proof in this

case by showing that the defendants submitted invoices . . .

with    knowledge   of       their   falsity         .       .    .”);   United      States    v.

Catton,    89   F.3d    387,    392      (7th    Cir.            1996)   (§ 287      “does    not

explicitly require proof of willfulness . . .”).

            Johnson      next     argues        that         the     Government         did   not

present sufficient evidence to uphold the jury’s verdicts of

guilt on three counts of making a false claim — each related to



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a separate taxpayer — under § 287. *                       This court will affirm the

verdict   if      it     is   supported         by    “substantial         evidence”       when

viewing     the    evidence         in    the       light      most     favorable    to     the

Government.        United States v. King, 628 F.3d 693, 700 (4th Cir.

2011).      “Substantial evidence” is evidence that a reasonable

factfinder could accept as adequate to support a conclusion of

guilty beyond a reasonable doubt.                    Id.

            The jury found Johnson guilty of conspiring to defraud

an agency of the United States under 18 U.S.C. § 286.                               Under the

Pinkerton      doctrine,       “a        person      [is]      liable     for   substantive

offenses committed by a co-conspirator when their commission is

reasonably foreseeable and in furtherance of the conspiracy.”

United States v. Ashley, 606 F.3d 135, 142-43 (4th Cir.) (citing

Pinkerton v. United States, 328 U.S. 640, 647 (1946)), cert.

denied, 131 S. Ct. 428 (2010).

            Evidence at trial showed that Johnson was part of the

conspiracy,       that    Johnson         was     aware     of    and    involved     in    the

scheme,     that       Johnson      was     aware         of     and    involved     in     the

preparation and filing of individual tax returns, and that the

tax returns were a primary component of the scheme.                                   It was

therefore reasonably foreseeable that Williams would prepare and


     *
       Johnson does not contend on appeal that his co-conspirator
did not actually commit these offenses.



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submit additional tax returns.             Further, those returns were in

furtherance of the overall conspiracy.            Johnson’s lack of active

participation    in    the    filing       of   the   specific      returns    he

challenges on appeal is irrelevant where he was a willing member

of the conspiracy and the submission of the noted returns was

both foreseeable and in furtherance of the conspiracy.

           We   therefore     affirm   the      judgment    of   the    district

court.   Because Johnson is represented by counsel on appeal, we

deny his motion for leave to file a pro se supplemental brief.

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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