                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 07-4991



UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.


MAX A. HARNED,

                 Defendant - Appellant.



                              No. 07-4995



UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.


REGIS E. HARNED,

                 Defendant - Appellant.



Appeals from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (1:06-cr-00015-IMK-1; 1:06-cr-00015-IMK-2)


Submitted:   April 16, 2008                 Decided:   May 21, 2008
Before GREGORY and DUNCAN, Circuit Judges, and WILKINS, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Robert Alan Jones, Las Vegas, Nevada, for Appellants. Sharon L.
Potter, United States Attorney, Robert H. McWilliams, Jr., Betsy C.
Jividen, Assistant United States Attorneys, Wheeling, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

          In these consolidated appeals, Dr. Max A. Harned and his

wife, Regis E. Harned, appeal their convictions and sentences for

conspiracy to defraud the United States, in violation of 18 U.S.C.

§ 371 (2000), and four counts of attempting to evade taxes, in

violation of 18 U.S.C. § 2 (2000) and 26 U.S.C. § 7201 (2000).          The

Harneds claim the district court abused its discretion by not

permitting them to admit into evidence amended tax returns.             The

Harneds also claim the testimony of two IRS agents was improper

overview testimony and was insufficient to support the convictions

for the substantive counts.      In addition, the Harneds claim the

prosecutor    made   improper   remarks    during   closing   and   asked

irrelevant questions to two of their expert witnesses. Lastly, the

Harneds claim the district court erred in computing the tax loss in

determining the base offense level.        Finding no error, we affirm.

          Decisions    regarding    the    admission   or   exclusion   of

evidence are left to the sound discretion of the trial court and

will not be reversed absent an abuse of that discretion.            United

States v. Russell, 971 F.2d 1098, 1104 (4th Cir. 1992).          Relevant

evidence is generally admissible.      Fed. R. Evid. 402.     Evidence is

relevant if it has “any tendency to make the existence of any fact

that is of consequence to the determination of the action more or

less probable than it would be without the evidence.”            Fed. R.

Evid. 401.


                                   - 3 -
      Evidence of payment may be such that it merely shows a
      change of heart or an attempt to vitiate a crime. On the
      other hand, payment may be made or offered to be made
      under such circumstances as to warrant an inference of
      good faith and lack of evil intent. Such latter evidence
      is admissible in an income tax evasion case to support
      the contention that there was at no time any intent to
      evade payment of taxes.       Whether such evidence is
      admissible depends upon the facts and circumstances of
      each case.

Hayes v. United States, 227 F.2d 540, 543 (10th Cir. 1955).

             Although amended returns may indeed be relevant on the

issue of whether a defendant acted willfully when he filed false

tax returns, see Turner v. United States, 222 F.2d 926, 933 (4th

Cir. 1955), we find, based on the circumstances, the district court

did not abuse its discretion by not allowing the admission of the

amended returns.     We also find no error in the court’s decision not

allowing other post-filing conduct that supposedly went to the

issue of willfulness.

             In order to establish a violation of 26 U.S.C.A. § 7201

(2000), the Government must prove the defendant acted willfully and

committed an affirmative act that constituted an attempted evasion

of tax payments and, as a result, a substantial tax deficiency

existed.     United States v. Wilson, 118 F.3d 228, 236 (4th Cir.

1997).     A defendant challenging the sufficiency of the evidence

faces a heavy burden.        United States v. Beidler, 110 F.3d 1064,

1067 (4th Cir. 1997).         “[A]n appellate court’s reversal of a

conviction on grounds of insufficient evidence should be confined

to   cases   where   the   prosecution’s   failure   is   clear.”   United

                                   - 4 -
States v. Jones, 735 F.2d 785, 791 (4th Cir. 1984).              A verdict must

be upheld on appeal if there is substantial evidence in the record

to support it.       Glasser v. United States, 315 U.S. 60, 80 (1942).

In determining whether the evidence in the record is substantial,

we view the evidence in the light most favorable to the Government,

and inquire as to whether there is evidence that a reasonable

finder of fact could accept as adequate and sufficient to establish

a defendant’s guilt beyond a reasonable doubt.                United States v.

Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc).

           We find no error in the summary testimony provided by the

two IRS agents.      See Fed. R. Evid. 1006.         Their testimony was based

upon extensive and detailed document review. They did not offer an

opinion   as    to   culpability      or    assume   the   credibility    of   any

subsequent witnesses.

           We     further      find   substantial     evidence   supports      the

convictions.     In addition to the IRS agents’ findings with respect

to the document review, there was also substantial evidence showing

the Harneds acted willfully and that there was a substantial tax

deficiency as a result of their conduct.

           With      respect     to   the    prosecutor’s    closing     argument

comments regarding whether a defense witness provided misleading

testimony, we find no plain error.*            We also find no error in the


     *
      The Harneds did not object to that part of the closing
argument.   Thus, our review is only for plain error. United
States v. Olano, 507 U.S. 725, 732 (1993).

                                       - 5 -
prosecutor’s questions to the defense witnesses with respect to the

payment they received for their services to the Harneds.               These

types of questions may be relevant to bias.        See United States v.

Edwardo-Franco, 885 F.2d 1002, 1009 (2d Cir. 1989); see also United

States v. Leja, 568 F.2d 493, 499 (6th Cir. 1977).

          We   further   find   the   district   court   did   not    err   in

determining the base offense level.       In considering the district

court’s application of the Guidelines, this court reviews factual

findings for clear error and legal conclusions de novo.               United

States v. Allen, 446 F.3d 522, 527 (4th Cir. 2006).            We find the

district court properly addressed each objection to the base

offense level and affirm that decision based on the district

court’s reasoning.

          Accordingly, we affirm the convictions and sentences. 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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