                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-4621


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ORAN TILLMAN DAVIS,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (3:02-cr-00251-RLV-DCK-1)


Submitted:   February 24, 2010            Decided:   March 10, 2010


Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Aaron E. Michel, Charlotte, North Carolina, for Appellant.
Edward R. Ryan, United States Attorney, David A. Brown,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Oran    Tillman   Davis   appeals   his   convictions   for   two

counts of tax evasion, in violation of 26 U.S.C. § 7201 (2006).

Finding no error, we affirm.

            Davis first argues that the district court erred in

denying his motion for judgment of acquittal on the ground that

the indictment was not returned within the applicable statute of

limitations.       We review de novo the district court’s denial of a

Rule 29 motion for judgment of acquittal.                 United States v.

Reid, 523 F.3d 310, 317 (4th Cir.), cert. denied, 129 S. Ct. 663

(2008).    We also review Davis’s statute of limitations claim de

novo.     United States v. Uribe-Rios, 558 F.3d 347, 351 (4th Cir.

2009); see also United States v. Wilson, 118 F.3d 228, 236 (4th

Cir. 1997) (“The government bears the burden of proving that it

began     its   prosecution    within     the   statute    of   limitations

period.”).

            The applicable statute of limitations in this case is

six years.      See 26 U.S.C. § 6531 (2006); Wilson, 118 F.3d at

236.    “The limitations period for a violation of [26 U.S.C.]

§ 7201 begins to run on the date of the last affirmative act of

tax evasion.”        118 F.3d at 236.      Based on our review of the

record, we find that Davis’s last affirmative act of tax evasion

occurred in March 1997, when he mailed documents misrepresenting

his relationship with Prime Management Group to Agent James.

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Davis    was       therefore    properly       indicted         within       the    statute     of

limitations.

               Davis next argues that the evidence was insufficient

to support the jury’s verdict.                          “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 States v. Jones, 735

F.2d 785, 791 (4th Cir. 1984) (quoting Burks v. United States,

437 U.S. 1, 17 (1978)).                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,

this court views the evidence in the light most favorable to the

Government,         and    inquires     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, 862-63 (4th Cir.

1996).         Based      on   our    review       of    the     record,      we     find     that

substantial evidence supported the jury’s verdict.

               Finally,        Davis      argues         that     the        indictment        was

defective for failing to set forth the precise amount of taxes

that he sought to evade.                Because this claim is raised for the

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first time on appeal, we review for plain error.                                        See United

States v. Cotton, 535 U.S. 625, 631 (2002) (applying plain error

test to claim that the indictment failed to allege element of

charged offense).

            Rule     7(c)(1)          of     the     Federal          Rules        of     Criminal

Procedure directs that an indictment “must be a plain, concise

and   definite       written          statement          of        the      essential        facts

constituting       the     offense         charged.”           To     pass       constitutional

muster, an indictment must satisfy two requirements:                                    “‘[F]irst,

that it contains the elements of the offense charged and fairly

informs a defendant of the charge against which he must defend,

and   second,      that     it    enables      him       to    plead        an    acquittal       or

conviction in bar of future prosecutions for the same offense.’”

United   States      v.     Resendiz-Ponce,            549         U.S.    102,     108     (2007)

(quoting    Hamling       v.     United      States,      418       U.S.     87,    117     (1974)

(internal      brackets          omitted));        see        also        United        States   v.

Williams,    152     F.3d      294,    299     (4th      Cir.       1998)        (“‘One    of    the

principal purposes of an indictment is to apprise the accused of

the   charge    or       charges      against      him        so     he    can     prepare       his

defense.’”) (quoting United States v. Fogel, 901 F.2d 23, 25

(4th Cir. 1990)).

            Each count of the indictment in this case stated, in

relevant part, that Davis “knew and believed [his] joint taxable

income for the calendar year was substantially in excess of the

                                               4
amount stated, and that an additional tax was due and owing to

the United States.”           Because the Government was not required to

allege or prove the precise amount of additional tax due and

owing at trial, see United States v. McKee, 506 F.3d 225, 235-36

(3d Cir. 2007), we find that an exact amount was not required to

be set forth in the indictment.                    See United States v. Citron,

783   F.2d   307,     315     (2d    Cir.   1986)    (“The     grand     jury    was   not

required to make . . . allegations as to the amounts of tax [a

defendant in a § 7201 case] sought to evade. . . . [S]ince the

indictment     need     not       allege    that    which    is    not    part    of   the

government’s required proof, no exact figure need be stated in

the indictment.”).

             Accordingly,           we     affirm    Davis’s        convictions        and

sentence.      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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