UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                               No. 97-4464

JIMMY LEE WILLIAMS,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                               No. 97-4603

JIMMY LEE WILLIAMS,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                               No. 97-4776

JIMMY LEE WILLIAMS,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                               No. 97-4777

JIMMY LEE WILLIAMS,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                       No. 97-4809

JIMMY LEE WILLIAMS,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of North Carolina, at Greenville.
James C. Fox, District Judge.
(CR-96-41-F)

Submitted: September 15, 1998

Decided: October 16, 1998

Before WIDENER and WILLIAMS, Circuit Judges, and HALL,
Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Douglas Kingsbery, THARRINGTON & SMITH, Raleigh, North
Carolina, for Appellant. Janice McKenzie Cole, United States Attor-
ney, Anne M. Hayes, Assistant United States Attorney, David J.
Cortes, Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

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OPINION

PER CURIAM:

Jimmy Lee Williams appeals from his conviction for causing or
aiding and abetting in the presentation of false claims upon or against
the United States in violation of 18 U.S.C. #8E8E # 2, 287 (1994) (Appeal
No. 97-4809). Williams contends that the district court erred in direct-
ing a verdict as to whether the forms submitted to the Internal Reve-
nue Service ("IRS") were "claims upon or against the United States,"
and he contends that the indictment was at a fatal variance with the
evidence presented at trial. Finding no error, we affirm Williams'
conviction. Before entry of the judgment and commitment order, Wil-
liams, acting pro se, also noted appeals from the district court's orders
denying his pro se motion for recusal of the district court judge
(Appeal No. 97-4464), denying his pro se motion to set aside the ver-
dict (Appeal No. 97-4603), denying his motion to relieve court
appointed counsel (Appeal No. 97-4776), and denying his motion for
a new trial (Appeal No. 97-4777). On appeal, Williams raises no chal-
lenges to the denial of his prejudgment motions. We therefore affirm
the district court's orders denying his motions for recusal of the dis-
trict court judge, to set aside the verdict, to relieve counsel, and for
a new trial. See Fed. R. App. P. 28(a)(6); Shopco Distrib. Co. v. Com-
manding Gen., 885 F.2d 167, 170 n.3 (4th Cir. 1989).

I.

During the spring of 1993, White's Accounting and Associates of
Jacksonville, North Carolina ("White's"), was an authorized tax prep-
aration service, which offered a refund anticipation loan program pur-
suant to which Bank One loaned money to taxpayers who anticipated
a refund on their federal income taxes. To obtain the loan, taxpayers
would provide pertinent tax information to the tax preparation service,
complete a loan application, and sign a Form 8453 ("U.S. Individual
Income Tax Declaration for Electronic Filing") and a Form 1040A
("U.S. Individual Income Tax Return"). White's then electronically
transmitted the income tax information to the IRS. After the IRS
acknowledged the claim for a refund, White's would issue to the tax-
payer an official cashier's check drawn on Bank One. The check
issued to the taxpayer represented a loan from the bank, secured by

                    3
the assignment of the taxpayer's anticipated tax refund. The bank and
the tax preparation service charged fees for this service; therefore, the
loan amount was less than the anticipated refund amount. Once
approved, the IRS sent the taxpayer's refund check to Bank One to
repay the loan.

Jimmy Lee Williams worked as a "collection point" for White's.
He collected tax information and documents from tax clients,
recorded the relevant information on "interview sheets," and delivered
the materials to White's for processing. Once the IRS approved the
refund, White's printed a check payable to the taxpayer, and Williams
delivered the check to the taxpayer.

Williams, Jeffrey Daniels, and John Haugabrook devised and car-
ried out a scheme by which they submitted to White's Forms W-2 and
Forms 1040 that contained false employment and wage information.
White's then prepared electronic tax returns claiming refunds for the
taxpayers. These returns were sent electronically, and White's also
sent to the IRS by mail a signed Form 8453, which reiterated the rele-
vant tax information and claim for refund, and on which the taxpayer
verified "under penalties of perjury" that the representations on the
electronically filed Form 1040 were "true, correct, and complete."
After the IRS approved the refund claim, White's issued the refund
check drawn on Bank One. Williams delivered the check and, accom-
panied by Daniels, escorted the taxpayer to the bank to cash the
check. The taxpayer would keep a small amount of the money and
give the rest to Williams and Daniels.

II.

Williams argues that the district court erred in directing a verdict
for the government on the issue of whether the Forms 8453 received
by the IRS were "claims upon or against the United States" under 18
U.S.C. § 287. Williams asserts that this was an essential element of
the offense and that the jury should decide the issue. The core of Wil-
liams' argument is that what constitutes a claim is a factual determi-
nation, rather than a legal determination.

To obtain a conviction under § 287, the government was required
to prove that Williams (1) presented or caused to be presented a claim

                     4
on or against the United States, and (2) knew the"claim to be false,
fictitious or fraudulent." United States v. Ewing, 957 F.2d 115, 119
(4th Cir. 1992). The instructions at issue were:

          I would like to possibly help you to clarify a legal issue.
          And I want to instruct you that as a matter of law, a signed
          tax return ultimately filed with the United States on which
          there is a claim for a refund, is a claim against the United
          States, regardless of the nature of the instrument by which
          the claim is ultimately paid, and indeed, regardless of
          whether the claim is ultimately paid at all.

***

          If you find that the Defendant submitted information to
          White's Accounting & Associates knowing and intending
          that White's Accounting & Associates would in turn submit
          a claim based upon such information to the IRS, and that
          White's did submit a claim to the IRS, then you may find
          the first element of this offense satisfied for each such claim
          a signed Form 8453 must have been received by the Internal
          Revenue Service.

Williams contends that these instructions assume, as a matter of
law, that a signed Form 8453 is a claim upon or against the United
States. Rather, Williams asserts that the jury should have been given
the opportunity to consider whether the forms received by the IRS
were "claims upon or against the United States."

The instructions define for the jury what constitutes a "claim"
under § 287. Courts have repeatedly defined as a matter of law what
constitutes a claim against the government.* See United States v.
_________________________________________________________________
*Indeed, Williams sought an instruction which defined a "claim," in
these terms: "as a matter of law, a signed return is a claim." He also
repeatedly sought to admit an Internal Revenue Bulletin that stated that
the IRS does not consider a tax return sent electronically to be filed until
the IRS receives a signed Form 8453, verifying under penalties of per-
jury that the information on the electronically sent Form 1040 was accu-
rate. When these two things happen, Williams' counsel acknowledged
that a claim is made.

                    5
Jackson, 845 F.2d 880, 881 (9th Cir. 1988) (Form TFS 1133 submit-
ted to the Treasury Department is a "claim" under § 287); United
States v. Duncan, 816 F.2d 153, 155 (4th Cir. 1987) ("voucher for
reduction of liability for advanced funds is a `claim' under Section
287"); United States v. Drape, 668 F.2d 22, 25 (1st Cir. 1982) (sign-
ing and filing false tax return to obtain undue refund constitutes a
claim in violation of § 287). Contrary to Williams' assertion, the
instructions do not direct the jury to find the existence of the first ele-
ment of the offense, i.e. that Williams presented a claim upon or
against the United States.

The district court's instructions defining for the jury what consti-
tutes a "claim" under § 287 did not direct a verdict as to whether Wil-
liams had filed a claim. Rather, the instructions merely defined a legal
term. The jury was left to decide the factual components of the first
element of the offense: whether Williams caused returns to be filed
with the IRS, whether the IRS received the returns, whether the
returns were signed, whether the returns contained claims for refunds,
whether the claims for refund were false, and whether Williams knew
the claims were false.

III.

Williams contends that there was a fatal variance in this case
between the indictment, the proof, and the district court's instructions
regarding what constituted a "claim upon or against the United
States." Specifically, he asserts that the indictment alleged that the
claim submitted to the IRS consisted of a Form 1040 and a Form
8453 and that the falsehood was contained on the Form 1040. How-
ever, the proof at trial showed that no Forms 1040 were signed or sub-
mitted to the IRS. Rather, return information taken from Forms
1040A was transmitted to the IRS by White's via wire transmission.
Williams also contends that the proof was at variance with the district
court's instructions because an IRS witness testified that the claim
was the electronically transmitted tax information, but the district
court instructed the jury as a matter of law that a signed Form 8453
was a claim against the government. Williams failed to raise these
issues at trial; therefore, our review is for plain error.

A variance is present when the evidence at trial materially differs
from the allegations in the indictment. See Dunn v. United States, 442

                     6
U.S. 100, 105 (1979); United States v. Kennedy , 32 F.3d 876, 883
(4th Cir. 1994). Acknowledging that the proof at trial cannot mirror
the allegations in the indictment, courts have afforded a reasonable
amount of flexibility to the government and will not find a variance
fatal, so long as the defendant was given notice of the "core of crimi-
nality" sought to be proven at trial. See United States v. Patino, 962
F.2d 263, 266 (2d Cir. 1992); United States v. Heimann, 705 F.2d
662, 666 (2d Cir. 1983). Thus, a variance will be overlooked unless
it affects the defendant's substantial rights and results in actual preju-
dice to him. See Fed. R. Crim. P. 52(a); Kennedy, 32 F.3d at 883;
United States v. Brewer, 1 F.3d 1430, 1437 (4th Cir. 1993).

Because Williams was provided with adequate notice of the
offenses charged to enable him to prepare a defense and because the
indictment was sufficiently particular as to protect him from multiple
prosecution for the same offense, we find the variance asserted by
Williams to be harmless. See Brewer, 1 F.3d at 1437. Moreover, we
find no material variance between the indictment and the proof, or the
instructions and the proof. The indictment alleged that Williams
caused to be filed Forms 1040 and 8453. The IRS custodian of
records testified that the electronically filed tax information was con-
sidered an electronically filed Form 1040. Additionally, the signature
document for the electronically filed Form 1040 is the Form 8453. On
this form, the taxpayer verifies under penalty of perjury that the infor-
mation on the electronically filed form is true, correct, and complete.
We find no material difference between the indictment and the proof,
or between the proof and the jury instructions.

IV.

In conclusion, we affirm the district court's orders denying Wil-
liams' motions for recusal of the district court judge, to set aside the
verdict, to relieve counsel, and for a new trial. We also affirm Wil-
liams' convictions. 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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