                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                   May 17, 2004

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 03-41491
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

DON FREDERICK SCHUTT,

                                      Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                   for the Eastern District of Texas
                        USDC No. 4:01-CR-90-ALL
                          --------------------

Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Don Frederick Schutt appeals from his conviction following a

jury trial on two counts of failing to file income tax returns

for the years 1995 and 1996, in violation of 26 U.S.C. § 7203.

Schutt argues that the evidence was insufficient to prove that he

willfully failed to file his tax returns because, based on his

own research of the tax laws, he did not believe he was liable to

pay taxes.     Because Schutt did not move for judgment of acquittal

at trial, we review to determine whether there was a miscarriage

     *
        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that this opinion should not be published and is not precedent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.
                             No. 03-41491
                                  -2-

of justice.     United States v. Delgado, 256 F.3d 264, 274 (5th

Cir. 2001).   A miscarriage of justice exists "only if the record

is devoid of evidence pointing to guilt" or "the evidence on a

key element of the offense was so tenuous that a conviction would

be shocking."     United States v. Laury, 49 F.3d 145, 151 (5th Cir.

1995)(internal quotations and citation omitted).     After reviewing

the record, we conclude that the evidence was sufficient for the

jury to find that Schutt was aware of his duty to file tax

returns and willfully failed to do so.      See United States v.

Shivers, 788 F.2d 1046, 1048-49 (5th Cir. 1986); see also Cheek

v. United States, 498 U.S. 192, 201 (1991).

     Schutt also argues that the magistrate judge erroneously

excluded from evidence documents that he used to form his beliefs

about the federal tax system.    Schutt was permitted to testify

about the documents upon he which relied, to read the contents of

the documents to the jury, and to explain the effect of the

documents on his beliefs.    There was no abuse of discretion in

the court's exclusion of the documents from evidence.      See United

States v. Stafford, 983 F.2d 25, 27-28 (5th Cir. 1993); United

States v. Barnett, 945 F.2d 1296, 1301 (5th Cir. 1991); United

States v. Flitcraft, 803 F.2d 184, 186 (5th Cir. 1986).

     AFFIRMED.
