     Case: 14-10105      Document: 00512961575         Page: 1    Date Filed: 03/09/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                    No. 14-10105                                 FILED
                                  Summary Calendar                           March 9, 2015
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

EDGAR A. LOCKETT, JR.,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 2:13-CR-12


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Edgar A. Lockett, Jr. was convicted by a jury of six counts of income tax
evasion. He appeals his conviction, raising five issues.
       First, Lockett contends that the district court erred by overruling his
objections to the admission of government exhibits 1-1 through 1-22 and the
testimony of Ramon Hernandez, an IRS records custodian, relating to those
exhibits. We review the district court’s evidentiary ruling for an abuse of


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                   No. 14-10105

discretion. See United States v. Lopez-Moreno, 420 F.3d 420, 434 (5th Cir.
2005).
         Government exhibits 1-1 through 1-22 consisted of certified account
transcripts from Lockett’s IRS account for years 1989 through 2010. The
account transcripts were printouts derived from Lockett’s Individual Master
File (IMF) with the IRS, a permanent computerized record of Lockett’s IRS
account which itself was not introduced into evidence. Lockett argues that the
account transcripts were inadmissible because they were produced for
purposes of litigation and contained information that was not present in the
IMF.
         “Under [Federal Rule of Evidence] 803(8), records, including computer
records, made by a public agency are admissible, regardless of whether they
would otherwise be excluded as hearsay.” Lopez-Moreno, 420 F.3d at 436. “The
relevant inquiry under Rule 803(8) is whether the information was recorded by
a public official as part of a routine procedure in a non-adversarial setting.”
United States v. Puente, 826 F.2d 1415, 1418 (5th Cir. 1987).
         Hernandez’s testimony established that the account transcripts reflected
information that was previously recorded in Lockett’s IMF in the course of the
IRS’s regular, ongoing collection of data about Lockett. Accordingly, the fact
that the information was later retrieved and printed out for Lockett’s trial in
the form of the account transcripts does not disqualify the information under
Rule 803(8). See id. Furthermore, the account transcripts were not rendered
inadmissible because they differed slightly in format from the IMF by
containing automatically decoded literal terms in addition to the numerical
codes used in the IMF. See United States v. Sanders, 749 F.2d 195, 197–99
(5th Cir. 1984). Lockett has not shown an abuse of discretion regarding this
issue.



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                                     No. 14-10105

      Lockett next challenges the admission of Government exhibits 1-43 and
1-44, which were IRS notices of deficiency pertaining to years 2000 through
2005. Lockett argues that the notices were not certified, as required for self-
authenticating documents under Federal Rule of Evidence 902, and that the
Government failed to authenticate the notices through proof that they were
actually mailed to his last known address, as required for the notices to be
effective under the Internal Revenue Code, 26 U.S.C. §§ 6212 and 6213. Plain
error review applies to this argument because Lockett did not raise it in the
district court. See United States v. Baker, 538 F.3d 324, 331 (5th Cir. 2008). 1
      Although exhibits 1-43 and 1-44 were not self-authenticating, the
standard for authentication is not burdensome and merely requires evidence
that is sufficient to support a finding that the item in question is what its
proponent claims it to be. United States v. Jackson, 636 F.3d 687, 693 (5th Cir.
2011); see FED. R. EVID. 901(a). “A proponent may authenticate a document
with circumstantial evidence, including the document’s own distinctive
characteristics and the circumstances surrounding its discovery.” Jackson,
636 F.3d at 693 (internal quotation marks and citation omitted).
       Lockett has not demonstrated an abuse of discretion, much less plain
error, regarding the authentication of exhibits 1-43 and 1-44. Hernandez
testified that the exhibits appeared to be original, real IRS notices of deficiency
based on his training regarding such notices, and Timothy Quinn, the IRS case
agent for Lockett’s case, testified that the notices were created by a revenue
agent from information in the revenue agent’s file. The notices also utilized
IRS forms and contained figures that were corroborated by the account
transcripts in Government exhibits 1-12 through 1-17, which were certified as



      1 Lockett did object to these exhibits’ admission, but only on hearsay grounds, which
he does not pursue on appeal.


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official IRS records. Accordingly, there was sufficient evidence to authenticate
exhibits 1-43 and 1-44. Further, Lockett’s contention that the notices were
sent to the wrong address is unavailing, as Lockett himself testified that the
notices contained his correct mailing addresses.
      Third, Lockett argues that the district court erred in denying his motion
for a judgment of acquittal on Count 1, which charged income tax evasion for
years 2000 through 2005. Lockett contends that there was insufficient proof
that he had a tax deficiency during those years. See United States v. Miller,
588 F.3d 897, 907 (5th Cir. 2009) (recognizing that existence of a tax deficiency
is one of the three elements of income tax evasion).
      The district court’s denial of Lockett’s motion for a judgment of acquittal
is reviewed de novo. See United States v. Xu, 599 F.3d 452, 453 (5th Cir. 2010).
The relevant question is “‘whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’” Id. (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
      The account transcripts and notices of deficiency in government exhibits
1-12 through 1-17 and 1-43 through 1-44 indicated that Lockett had a tax
deficiency for 2000 through 2005, and Lockett’s own testimony showed that he
had income but did not pay income tax for those years. Based on that evidence,
a reasonable factfinder could have found beyond a reasonable doubt that
Lockett had a tax deficiency in 2000 through 2005. See id. at 453. Lockett’s
challenge to the denial of his motion for a judgment of acquittal on Count 1 is
unavailing.
      Fourth, Lockett argues that the district court erred in refusing his
proposed instruction distinguishing between acts of omission that would not
support a felony conviction for income tax evasion and acts of commission that



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would.   We review the district court’s exclusion of Lockett’s requested
instruction “under an abuse of discretion standard, affording the trial court
substantial latitude in describing the law to the jurors.” United States v. Rios,
636 F.3d 168, 171 (5th Cir. 2011) (internal quotation marks and citation
omitted). Reversal based on a district court’s refusal to give a jury instruction
“is not warranted unless the proposed instruction (1) is substantially correct,
(2) is not substantively covered in the jury charge, and (3) pertains to an
important issue in the trial, such that failure to give it seriously impairs the
presentation of an effective defense.” United States v. Heard, 709 F.3d 413,
427 (5th Cir.) (internal quotation marks and citation omitted), cert. denied, 134
S. Ct. 470 (2013).
      The district court instructed the jury on the specific affirmative acts the
government was required to prove beyond a reasonable doubt in order to
convict Lockett of income tax evasion. Thus, the jury charge made clear that
acts of omission were insufficient to satisfy the government’s burden. Because
Lockett’s requested instruction was substantively covered by the jury charge,
he has not shown an abuse of discretion regarding this issue. See id. While
Lockett further asserts that the jury could have misinterpreted language in
the indictment as allowing a conviction for income tax evasion based on an act
of omission, his assertion is insufficient to rebut the presumption that jurors
understand and follow their instructions. See United States v. Patino-Prado,
533 F.3d 304, 313 (5th Cir. 2008).
      Finally, Lockett argues that the district court’s jury instruction on the
definition of reasonable doubt was constitutionally deficient. According to
Lockett, the district court should have instructed the jury that reasonable
doubt equated to “near certainty,” a notion set forth in his requested jury
instructions. The district court’s instruction on reasonable doubt tracked this



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circuit’s pattern instruction, which this court has previously upheld in the face
of a similar challenge. See United States v. Jones, 663 F.2d 567, 571 (5th Cir.
1981).   As Lockett concedes, his argument is foreclosed by this court’s
precedent. See id.
      The judgment of the district court is AFFIRMED.




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