                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4703



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


CHARLES E. VAUGHN,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins.  Irene M. Keeley, Chief
District Judge. (2:04-cr-00014-IMK-JS)


Submitted:   October 17, 2007          Decided:     November 15, 2007


Before NIEMEYER, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Joel F. Hansen, HANSEN & HANSEN, L.L.C., Las Vegas, Nevada, for
Appellant. Sharon L. Potter, United States Attorney, Robert H.
McWilliams, Jr., Sherry L. Muncy, Assistant United States
Attorneys, Wheeling, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Charles E. Vaughn was convicted by a jury of criminal tax

evasion, 26 U.S.C. § 7201 (2000), and sentenced to fifty-one months

imprisonment.     He appeals, claiming that the district court denied

him the opportunity to present a “good faith” defense and the right

to challenge the accuracy of the underlying deficiency.            He also

challenges the district court’s ruling that a formal assessment is

not an element of tax evasion.       Finally, Vaughn alleges that the

prosecution engaged in overreaching and misconduct by indicting or

threatening to indict two defense witnesses.      For the reasons that

follow, we affirm.

            After reaching a settlement with the Internal Revenue

Service in tax court, Vaughn owes approximately $30,248.00 in

federal incomes taxes for the 1993 tax year.                Shortly after

agreeing to settle, Vaughn submitted an offer in compromise,

offering to settle his outstanding tax liability for $400.          On the

accompanying form Vaughn listed two businesses he had previously

operated,   his   income   as   “commission,”   and   one   bank   account

containing $125.      He also wrote “NA” on the question regarding

ownership or interest in any type of real property, and answered

“No” to the question asking if he was a participant or beneficiary

of any trust, estate, or profit sharing venture.

            Vaughn was subsequently indicted for willfully attempting

to evade payment of his income tax when it was discovered that he


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had substantial assets he had failed to disclose to the IRS.            At

trial,    the   Government   introduced   evidence   establishing    that,

beginning in 1999, Vaughn had transferred his income and assets to

two companies (“Lifestyles, LLC,” and “Falcon Asset Management

Company”), neither of which were disclosed on the forms submitted

to the IRS, and which had a combined net worth of $332,013.

Between April 1999 and October 2004, Vaughn received a total of

$588,759 in cash on sales of real property through Lifestyles, LLC.

From 1999 through 2002, $314,607.77 of Vaughn’s personal living

expenses were paid by the two companies he fully owned.             At the

time of trial, Vaughn, through his companies, controlled at least

eight properties, three of which were on the market for a total of

$950,000.       Finally, the government introduced evidence to show

that, contrary to the $125 that Vaughn claimed he had in the bank,

the companies he controlled had accounts containing approximately

$32,000 in cash.      Based on this evidence, the jury found Vaughn

guilty.     The district court sentenced him to fifty-one months

imprisonment.      Vaughn timely appeals.

            Vaughn argues, first, that the district court denied him

the ability to present his good faith defense.           Vaughn’s “good

faith” argument rested on his assertion that the underlying tax

court decision was inaccurate.      Our review of the record discloses

that the district court did allow defense counsel to introduce

evidence concerning Vaughn’s audit history and to argue the facts


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about those audits in his closing argument in order to attack the

willfulness element.    Moreover, Vaughn testified extensively and

was allowed to explain his doubts as to his liability for the tax

at issue.    Although he argues that he was nevertheless prevented

from introducing evidence with respect to his good faith defense,

Vaughn failed to identify what specific evidence was allegedly

improperly excluded nor did he make a proffer in the district court

after given the opportunity to do so.

            Next, Vaughn argues that the district court erred in

preventing him from attacking the “accuracy” of the tax court

decision.   The tax court’s decision was based on the agreement of

the parties.   We agree with the district court that Vaughn may not

challenge that decision in a later criminal proceeding.

            Vaughn also argues that the district court erred in

ruling that a valid assessment is not a necessary element of

criminal tax evasion.    Section 7201 states that “any person who

willfully attempts in any manner to evade or defeat any tax imposed

by this title or the payment thereof shall, in addition to other

penalties provided by law, be guilty of a felony.”        26 U.S.C.

§ 7201.   The statute does not limit its application to taxes that

have been assessed.    Here, the district court properly instructed

the jury that, to find Vaughn guilty of tax evasion, the government

was required to prove three elements beyond a reasonable doubt:

(1) that Vaughn owed a substantial income tax liability; (2) that


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he attempted in any manner to evade or defeat the payment of that

tax; and (3) that he did so willfully.        United States v. Wilkins,

385 F.2d 465, 472 (4th Cir. 1967).       Because a formal assessment is

not required to prove tax evasion, see, e.g., United States v.

Silkman, 156 F.3d 833, 835 (8th Cir.1998), the district court

properly ruled that the Government did not need to prove that a

valid assessment had been issued.

            Finally, Vaughn asserts that he was “denied any witnesses

to support his defense” because, on the day before trial, the

prosecution informed him that one of his witnesses was about to be

indicted.    That witness, Booker Walton, then invoked his Fifth

Amendment privilege and refused to testify on Vaughn’s behalf.

Vaughn argues that the district court erred in refusing to grant

him immunity.

            A district court is without authority to confer immunity

on a witness sua sponte.     See United States v. Klauber, 611 F.2d

512, 517 (4th Cir. 1979).    Rather, the decision of whether to grant

immunity is within the sole discretion of the prosecution.             See,

e.g., 18 U.S.C. § 6003(b) (“A United States attorney may, with

approval of the Attorney General . . . request an order [of

immunity from the district court].”); United States v. Karas, 624

F.2d 500, 505 (4th Cir. 1980).       While a district court may, in very

limited   circumstances,    compel    the   prosecution   to   grant   such

immunity, a “‘defendant bears a heavy burden when seeking to have


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the   district   court   compel    the   grant   of    immunity.’”      United

States v. Mitchell, 886 F.2d 667, 669 (4th Cir. 1989) (quoting

United States v. Gravely, 840 F.2d 1156, 1160 (4th Cir. 1988)).

This court has held that “a district court is without authority to

issue such an order unless a defendant has made (1) ‘a decisive

showing of prosecutorial misconduct or overreaching and (2) the

proffered evidence would be material, exculpatory and unavailable

from all other sources.’”         United States v. Washington, 398 F.3d

306 (4th Cir. 2005) (quoting United States v. Abbas, 74 F.3d 506,

512   (4th   Cir.   1996)).   We     agree   with     the   district   court’s

conclusion that Vaughn failed to make the requisite showing.

             We therefore affirm Vaughn’s conviction.            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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