UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 96-4062

JOHN E. HARTMANN, III,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, District Judge.
(CR-95-76)

Submitted: May 3, 1996

Decided: May 24, 1996

Before ERVIN and WILKINS, Circuit Judges, and BUTZNER,
Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Jon M. Babineau, DOYLE & BABINEAU, P.L.L.C., Norfolk, Vir-
ginia, for Appellant. Helen F. Fahey, United States Attorney, John C.
McDougal, Special Assistant United States Attorney, Richmond, Vir-
ginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

John E. Hartmann, III, appeals from the district court's order
affirming the magistrate judge's judgment and commitment order
imposing sentence after the jury's verdict that Hartmann willfully
failed to file income tax returns in violation of 26 U.S.C.A. § 7203
(West Supp. 1996), for the 1990, 1991, and 1992 tax years. Finding
that the evidence at trial was sufficient to support the jury's verdict,
we affirm.

To sustain Hartmann's conviction for willful failure to file tax
returns, the government had to prove that Hartmann (1) was required
to file a return; (2) failed to file a return; and (3) that the failure to
file was willful. 26 U.S.C.A. § 7203); see Cheek v. United States, 498
U.S. 192, 201 (1991); United States v. Ostendorff, 371 F.2d 729, 730
(4th Cir.), cert. denied, 386 U.S. 982 (1967). Hartmann has admitted
that he had a duty to file and that he did not file returns for the years
1990, 1991, and 1992. The only issue to be resolved on appeal is
whether sufficient evidence supports the jury's conclusion that Hart-
mann's failure to file was willful.

Hartmann contends that a willful failure to file requires the govern-
ment to prove bad faith or an evil motive. See United States v.
Murdock, 290 U.S. 389, 394-95 (1933). However, the Supreme Court
defined "willful" under § 7203 as the"voluntary, intentional violation
of a known legal duty." Cheek, 498 U.S. at 201; United States v.
Pomponio, 429 U.S. 10, 12 (1976).

We find that, viewed in the light most favorable to the government,
the evidence presented during Hartmann's trial was sufficient to
prove that he voluntarily and intentionally violated his known legal
duty to make and file tax returns for the years 1990, 1991, and 1992.
See Glasser v. United States, 315 U.S. 60, 80 (1942); United States

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v. Giunta, 925 F.2d 758, 764 (4th Cir. 1991). The government pres-
ented evidence that Hartmann did not file federal tax returns from
1973 through 1980, or from 1985 through 1992, nor did Hartmann
file state tax returns since before 1980. This pattern of failing to file
returns supports an inference of willfulness. See Ostendorff, 371 F.2d
at 731; United States v. Taylor, 305 F.2d 183, 185 (4th Cir.), cert.
denied, 371 U.S. 894 (1962).

Further, the government presented evidence that, throughout this
time, Hartmann regularly received income and earnings statements--
Forms W-2 and 1099--which served to remind him of the require-
ment that he file tax returns. Additionally, during his opening state-
ment, Hartmann admitted that he knew that he had to file tax returns.

Hartmann's stated reasons for not filing tax returns--(1) that the
tax laws were so complex that he did not know how to file; (2) that
his finances and records were such a mess that he could not file a
return; and (3) that he feared the consequences of making a mistake
--are negated by the fact that Hartmann filed a tax return for the 1984
tax year, which was accepted by the IRS. That return reported income
and expenses for essentially the same business that Hartmann was
operating in 1990, 1991, and 1992.

Moreover, Hartmann's false exculpatory statements to the IRS
agent concerning the amount of his 1992 income and his false state-
ment that in lieu of a tax return, he sent the IRS three or four pay-
ments a year to be credited to his account, when he could only locate
two canceled checks, also support the jury's conclusion that Hart-
mann willfully failed to file returns. See United States v. Callanan,
450 F.2d 145, 150 (4th Cir. 1971). Finally, although Hartmann
asserted that he sent letters to the IRS requesting assistance in filing
his tax returns, he failed to present any evidence of these letters.

In conclusion, we find that the evidence was sufficient to support
Hartmann's conviction for willful failure to file tax returns. There-
fore, we affirm the district court's order affirming Hartmann's convic-
tion. We dispense with oral argument because the facts and legal

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contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.

AFFIRMED

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