                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4282



UNITED STATES OF AMERICA,

                 Plaintiff – Appellee,

           v.

JAMES BOWERS JOHNSON,

                 Defendant – Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg.   Norman K. Moon, Senior
District Judge. (6:12-cr-00015-NKM-1)


Argued:   March 19, 2014                      Decided:   May 12, 2014


Before MOTZ, KING, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Paul Graham Beers, GLENN, FELDMANN, DARBY & GOODLATTE,
Roanoke, Virginia, for Appellant.  Katie Bagley, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.      ON
BRIEF: Kathryn Keneally, Assistant Attorney General, Frank P.
Cihlar, Chief, Criminal Appeals & Tax Enforcement Policy
Section, Gregory Victor Davis, Tax Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; Timothy J. Heaphy,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

              Appellant      James      Bowers      Johnson       (“Appellant”)      was

convicted by a jury of four counts of violating the Internal

Revenue   Code      (“IRC”);     one    count     of    corruptly    obstructing      or

impeding,      or    endeavoring        to     obstruct     or     impede,    the    due

administration of the IRC, in violation of 26 U.S.C. § 7212(a),

and   three    counts       of   willfully        failing    to    file    income    tax

returns, in violation of 26 U.S.C. § 7203.                    On appeal, Appellant

argues the district court abused its discretion by admitting

evidence of other bad acts, that is, evidence that he evaded his

obligation     to    pay    child    support.          Appellant    also   argues    the

district court violated the Fifth Amendment by constructively

amending Count One of the indictment.

            First, because the challenged evidence was relevant to

Appellant’s mental state, we hold that the district court did

not abuse its discretion in admitting it and did not commit

plain error otherwise.               Second, because the district court’s

instructions        to     the   jury    did      not    broaden     the     bases   for

conviction beyond those charged in the indictment, we hold that

the district court did not constructively amend the indictment.

Therefore, we affirm the judgment of the district court.

                                             I.

            On April 5, 2012, a federal grand jury in the Western

District of Virginia returned a four-count indictment charging

                                             3
Appellant       with   violations      of    the     IRC.         Count    One   titled,

“Corrupt       Endeavor     to    Obstruct,     Impede,      and     Impair      the    Due

Administration of the Internal Revenue Code,” charged Appellant

with       violating   26   U.S.C.    § 7212(a)       of    the    IRC.       J.A.      14. 1

Specifically, Count One of the indictment charged, in part:

                    Beginning in or about January 2001 and
               continuing thereafter up to at least May of
               2010, in the Western Judicial District of
               Virginia and elsewhere, JAMES BOWERS JOHNSON
               did corruptly obstruct and impede [sic] to
               obstruct and impede the due administration
               of the Internal Revenue Code by: submitting
               alleged financial instruments to the United
               States Department of Treasury; using bogus
               trusts and other nominees; failing to file
               income tax returns; creating nominees to
               obscure ownership in, control of, and income
               from the assets, including business income
               and rental receipts; and engaging in conduct
               the likely effect of which was to mislead
               and to conceal, including the acts detailed
               below.

Id. at 16-17.          As further detailed in Count One, from 2000

through at least 2009, Appellant was self-employed and resided

in Winchester, Virginia.             Appellant received gross income from

several sources, including the sale of prepaid telephone cards,

rental receipts,          and    capital    gains.      Between      2000     and      2007,

Appellant       received     over    $1     million    in    gross        receipts,     but

despite exceeding the filing threshold for each of those years,


       1
       Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.



                                            4
he did not file individual income tax returns.                        The remaining

three counts of the indictment charged Appellant with willfully

failing to file income tax returns for tax years 2005, 2006, and

2007, in violation of 26 U.S.C. § 7203.

              Appellant’s jury trial spanned four days from January

15-18, 2013.          Relatively few material facts were in dispute.

The Government’s theory was that Appellant acted willfully and

in bad faith to enrich himself by concealing income from the

Internal      Revenue        Service       (“IRS”).           In   this    vein,    the

Government’s witnesses testified that Appellant established and

used entities, such as limited liability companies and trusts,

to    conceal    his       income    and    assets      and   avoid   paying   taxes.

According to these witnesses, Appellant directed tenants of his

rental properties and customers of his phone card business to

make payments to him with money orders issued to his various

entities.       Additionally, the Government presented evidence that

Appellant utilized a “warehouse bank,” a commercial bank account

called    MYICIS      in     which    customers’        deposits    are    commingled.

Because the money orders were issued in the name of MYICIS, the

funds could not be traced to Appellant.

              Appellant’s sole defense at trial was that he did not

act    with     the    requisite       mens       rea   to    be   found   guilty    of

obstructing the IRC or willfully failing to file tax returns,

even though he conceded that he had sufficient income to trigger

                                              5
the requirement to file tax returns in 2005, 2006, and 2007, and

failed     to    do   so.   During   his       opening   statement,   Appellant’s

counsel told the jury that Appellant was a well-educated, family

man, who believed in good faith, after much research on the

issue, that the tax system was voluntary and did not apply to

him.

                Throughout its case in chief, the Government entered

numerous exhibits into evidence.                    Appellant takes issue with

only three:           Government Exhibits 40-1, 2 40-2, 3 40-3. 4            These

exhibits each contained letters sent from Appellant to various

state agencies articulating his reasons for not paying child

support.         On   the   second   day       of   trial,   Appellant’s   counsel

       2
        Government Exhibit 40-1 is a letter titled, “Letter
Rogatory Under Seal of County Notary-at-Large, Return of
Defective Process by Foreign State in the Nature of a Solemn
Affirmation of a Sovereign Man in the presence of Yahweh,” dated
September 24, 2009, sent from Appellant to the Winchester
Juvenile and Domestic Relations District Court.
       3
       Government Exhibit 40-2 contained several documents mailed
from Appellant to the Virginia Department of Social Services.
The documents included a copy of a money order dated June 11,
2009, purporting to pay $4,500.00 to the Virginia Division of
Child Support Enforcement.    The letter accompanying the money
order indicated that it would be processed by the IRS and the
funds were to be withdrawn from the United States Treasury Trust
Account in Appellant’s name.
       4
       Government Exhibit 40-3 contained two notices sent from
Appellant in August and September, 2009, to the Virginia
Department of Social Services.        Appellant threatened suit
because his money order, shown in Government Exhibit 40-2, was
not used to satisfy his child support debt.



                                           6
objected to the introduction of Government Exhibit 40-1.     The

following colloquy occurred:

          [GOVERNMENT COUNSEL]:  Your Honor, I move
          into evidence Government’s Exhibit 40-1,
          which is an official record from the court
          in Winchester.

          [APPELLANT’S COUNSEL]: I object to the
          relevance, Your Honor.     I’m not sure how
          this is relevant to the tax matter at hand.

          [GOVERNMENT COUNSEL]:     The relevance, in
          opening statement it was brought up in
          regards to Mr. Johnson’s focus on not paying
          income taxes, what -- he has used these
          types of documents in other instances to
          avoid his legal obligation, including child
          support, which this document establishes.

          [APPELLANT’S    COUNSEL]:        The   legal
          obligations he’s charged with failing to
          comply with are his tax obligations, not any
          child support obligations.    So I think the
          relevance, if any, is sort of minimal.

          [GOVERNMENT COUNSEL]:     It goes to --

          THE COURT:   Why don’t we come around?

          (At sidebar.)

          [APPELLANT’S   COUNSEL]:     I      don’t   have
          anything to add, Your Honor.

          THE COURT:   I’m sorry?

          [APPELLANT’S   COUNSEL]:     I  don’t   have
          anything to add. It is just that, you know,
          these child support matters, the bankruptcy
          matters, I think they are sort of far afield
          from the issue at hand, which is whether he
          failed to file tax returns or corruptly
          impeded the IRS in collecting taxes.       I
          mean, it is more of the same stuff, but it
          is --

                                    7
             THE COURT: Well, I know, but he has excused
             his tax thing that he has this firm belief
             that he went through all of this to avoid
             taxes.   And if he is doing it to avoid all
             of his debts, it would tend to show that it
             wasn’t necessarily he was trying to avoid
             taxes. It would seem it is just sort of --
             it would just show a pattern of greed, that
             he didn’t pay anybody.

             [APPELLANT’S COUNSEL]: If it shows that --

             THE COURT: Okay. So I’m going to allow it.
             I mean, I -- I mean, I think, you know, it
             is the kind of evidence -- the prejudice
             could outweigh the probative value, but I
             think it is very probative here where we
             have heard this opening statement of what a
             wonderful caring person this is and that,
             you know, it is just -- his problem is just
             with taxes. It doesn’t seem to be that. It
             is just ‘I don’t pay anybody.’ So -- but I
             think -- so I think the probative value
             outweighs the prejudice.

J.A.    305-07.      After    questioning       the     Government’s       witness    --

Appellant’s house guest who signed the exhibits as a “witness”

or     “notary-in-fact”      --   the     Government       then   moved      for     the

admission of Government Exhibits 40-2 and 40-3.                           Appellant’s

counsel did not object to the admission of these two exhibits.

             The only evidence presented in Appellant’s defense was

his own testimony.           Appellant testified that sometime in late

1996    or   1997,   he    purchased      a    series    of   tapes       from   Global

Prosperity        Group,     which      discussed       “Congress,        revolution,

banking,     government,      anything        that    deals   with    a    historical

context for understanding . . . what we are doing.                           Taxation

                                          8
obviously, was one of them.”                   J.A. 493.      According to Appellant,

these tapes did not necessarily state, “You are not required [to

pay taxes],” but the tapes provided information on the role of

government, i.e. “the roles and the powers of taxation that [the

government]            has.”      Id.          Appellant      further      testified      he

eventually            began    attending       educational      seminars     of     similar

topics       where       he     met     like     minded      individuals      and    began

affiliating with tax protesting groups such as Save-A-Patriot

Fellowship and We the People Congress.

                 Appellant testified that through his involvement with

these organizations and his own research, he came to believe

that       the    IRC     has    been    misapplied         under    the   Constitution.

Appellant reasoned that the Sixteenth Amendment, giving Congress

the authority to impose an income tax, does not apply to him

because he was “outside of the jurisdiction of the U.S. as far

as not living or working in the U.S.” and “wages are not income

as far as [his] understanding of the federal tax code.”                                  J.A.

508-09.          Therefore,       Appellant         testified   he    “believe[ed]       the

system is . . . a voluntary system.”                    Id. at 509.

                 At     the     close    of     evidence,       the     district      court

instructed the jury as to Count One: 5


       5
       Appellant’s counsel raised                      no   objection      below    to   the
following jury instructions.



                                                9
               Count One of the indictment charges the
          defendant with violating section 7212(a) of
          the Internal Revenue Code -- section 7212(a)
          of the Internal Revenue Code which provides,
          in pertinent part, as follows:     Title 26,
          United States Code, Section 7212(a) states
          in pertinent part that, “whoever corruptly
          obstructs   or   impedes   or  endeavors  to
          obstruct or impede the due administration of
          this title” shall be guilty of an offense
          against the United States.

               In order to sustain its burden of proof
          for   the  crime   of  obstructing  the  due
          administration of the Internal Revenue Code
          as alleged in Count One of the indictment,
          the government must prove the following
          elements beyond a reasonable doubt:

               One, that during the time period stated
          in the indictment the Internal Revenue
          Service tried to ascertain, assess, compute,
          and collect federal income taxes, federal
          employment taxes, and penalties for the
          defendant;

               Two, that the defendant knew that the
          Internal Revenue Service was attempting to
          duly administer the Internal Revenue Code;
          and

               Three,    that   the   defendant   then
          corruptly obstructed, impeded, or endeavored
          to obstruct or impede the due administration
          of the Internal Revenue Code as detailed in
          the indictment. . . .

               An endeavor is any effort or any act or
          attempt to effectuate an arrangement or to
          try   to  do   something,  the   natural  and
          probable   consequences   of   which   is  to
          obstruct or impede the due administration of
          the Internal Revenue laws.

J.A. 581-83.   On January 18, 2013, the jury convicted Appellant

on all four counts as alleged in the indictment.

                               10
            On    April    11,    2013,        the    district   court     sentenced

Appellant to a total of 48 months imprisonment:                        36 months on

Count One and 12 months on each of Counts Two through Four, to

be served concurrently with each other and consecutively to the

term imposed on Count One.             Additionally, the district court

held Appellant in criminal contempt for his disruptive conduct

during the sentencing hearing. 6 The court tacked on 30 days of

imprisonment for Appellant’s contempt, to run consecutively to

the rest of his sentence.

            Judgment was entered on April 15, 2013.                        Appellant

timely     appealed,      alleging    the        district      court    abused    its

discretion by admitting evidence of Appellant’s other bad acts

and    violated    the    Fifth   Amendment          by   constructively    amending

Count One of the indictment.

                                      II.

            We generally review evidentiary rulings for abuse of

discretion.       See United States v. Hassan, 742 F.3d 104, 130 (4th

Cir.   2014).      “In    reviewing   an       evidentiary     ruling    under   that

standard, we will only overturn a ruling that is arbitrary and


       6
       For example, when asked to sit down by a marshal in the
courtroom, Appellant exclaimed, “[u]nhand me sir.   There’s no
reason to grab me like that.” J.A. 1815. The court responded,
“He didn’t grab you. I asked you to sit down.” Id. Appellant
then stated to the court, “I said, sir, I asked you to be
recused. And I fired you.” Id.



                                          11
irrational.”       Id.    (internal   quotation         marks    and    alterations

omitted).     However, when a party fails to object at trial to

evidence    challenged     on   appeal,     we   view    the    district     court’s

admission of that evidence for plain error.                     See United States

v. Perkins, 470 F.3d 150, 155 (4th Cir. 2006); see also Fed. R.

Crim. P. 52(b).

            “We review de novo the legal question of whether there

has been a constructive amendment of an indictment.”                         United

States v. Whitfield, 695 F.3d 288, 306 (4th Cir. 2012).                       “[I]n

this circuit constructive amendments are erroneous per se and

require    reversal      regardless   of     preservation.”            Id.   at   309

(internal quotation marks omitted); see also United States v.

Randall,     171   F.3d     195,    203     (4th   Cir.        1999)    (“Thus,    a

constructive amendment violates the Fifth Amendment right to be

indicted by a grand jury, is error per se, and must be corrected

on appeal even when the defendant did not preserve the issue by

objection.” (emphasis in original)).

                                      III.

                                       A.

                           Evidentiary Challenges

            Appellant       first     contends          the      district      court

erroneously admitted evidence that he evaded his obligation to

pay child support, that is, Government Exhibits 40-1, 40-2, and

40-3.      According to Appellant, the district court abused its

                                       12
discretion per Rules 403 and 404(b) of the Federal Rules of

Evidence    when     it    admitted     this       prejudicial        evidence   over

Appellant’s      objection.      Appellant        further    contends     that    this

“error was far from harmless.”           Appellant’s Br. 6.

            The Government argues that the district court properly

admitted the exhibits.          According to the Government, Appellant

objected    to    the     admission    of    only    one    of   these     exhibits,

Government Exhibit 40-1, and only pursuant to relevance, and did

not object at all to the admission of Government Exhibits 40-2

and 40-3.        The Government further contends the district court

did not abuse its discretion or commit plain error in admitting

the exhibits, which were relevant to the issue of Appellant’s

intent.     Per the Government’s view, the documents demonstrated

that Appellant did not hold a good faith belief that he was not

subject to the tax laws, but rather he sought to avoid meeting

his   financial      obligations      generally,      including        paying    child

support.    Additionally, the Government argues Appellant fails to

establish that admitting the documents was plain error under

Federal Rule of Evidence 404(b).

                                        1.

            Before        addressing        the     merits       of      Appellant’s

evidentiary challenges, we must first determine the appropriate

lens through which to view them.                  Pursuant to Rule 103 of the

Federal Rules of Evidence, in order to preserve a claim of error

                                        13
for the admission of evidence, a party must “timely object[] or

move[] to strike” and “state[] the specific ground, unless it

was   apparent      from   the   context.”      Fed.   R.   Evid.   103(a)(1).

Therefore, in order to be subject to an abuse of discretion

review, “[a]n objection to the admission of evidence must be

both specific and timely.”           United States v. Cabrera-Beltran,

660   F.3d     742,    751   (4th    Cir.     2011)    (emphasis    supplied).

Appellant’s only specific and timely objection was to relevance

under Rule 403 with respect to a single exhibit:                    Government

Exhibit 40-1.         He did not object at all to the admission of

Government Exhibits 40-2 and 40-3.

             When making the objection to Government Exhibit 40-1,

Appellant’s counsel stated, “I object to the relevance, Your

Honor.   I'm not sure how this is relevant to the tax matter at

hand.”       J.A.   305.     Appellant’s     counsel   never   stated,   as   he

argues now, that the objection was also made pursuant to Rule

404(b)’s prohibition of crimes, wrongs, and other acts used “to

prove a person’s character in order to show that on a particular

occasion the person acted in accordance with the character.”

Fed. R. Evid. 404(b)(1).            Although counsel need not cite the

particular rule upon which an objection is based, the objection

must be of sufficient specificity to afford the district court

and the Government the opportunity to respond to the alleged

error below.        Appellant’s objection fell below this standard.

                                      14
Accordingly,       we    will    view    Appellant’s          Rule   403       objection      to

Government       Exhibit      40-1     pursuant       to    an    abuse    of    discretion

standard and his Rule 404(b) challenge to Government Exhibit 40-

1   under   the     plain      error     standard.          Given    the       lack    of   any

objection at all below to Government Exhibits 40-2 and 40-3, the

admission of that evidence will be reviewed for plain error.

                                            2.
             Appellant was charged with four violations of the IRC.

Count One charged Appellant with violating 26 U.S.C. § 7212(a).

Section 7212(a) of the IRC provides that “[w]hoever corruptly

. . . obstructs or impedes, or endeavors to obstruct or impede,

the due administration of this title, shall, upon conviction

thereof, be fined not more than $5,000, or imprisoned not more

than   3    years,       or     both.”          26    U.S.C.      § 7212(a)          (emphasis

supplied).         Counts       Two    through       Four    charged      Appellant         with

violating 26 U.S.C. § 7203.                That statute states that a person

who willfully fails to file a return who is required to do so is

subject to the imposition of a fine not exceeding $25,000, and

to a term of imprisonment of up to one year.                               See 26 U.S.C.

§ 7203.          Thus,   the     Government          was    required      to    prove       that

Appellant acted “corruptly” (as to Count One) and “willfully”

(as to Counts Two through Four).

             A     person       acts     corruptly          within     the      meaning       of

§ 7212(a)    by     acting      “with     the    intent      to    secure       an    unlawful

                                            15
benefit either for oneself or for another.”                          United States v.

Wilson, 118 F.3d 228, 234 (4th Cir. 1997).                       Willfulness, in the

context of § 7203, means the “‘voluntary, intentional violation

of a known legal duty.’”               United States v. Rogers, 18 F.3d 265,

267 n.4 (4th Cir. 1994) (quoting Cheek v. United States, 498

U.S. 192, 201 (1991)).

            According to the Government, Government Exhibit 40-1,

a letter from Appellant responding to the Winchester Juvenile

and Domestic Relations District Court’s order directing him to

appear    and     explain   why    he    had     not   made   the     requisite    child

support payments, was filled with nonsensical statements about

the     federal    government      and     its     lack     of    jurisdiction     over

Appellant.        Therefore, the Government reasons that Government

Exhibit 40-1,       as   well     as    Government      Exhibits      40-2   and   40-3,

which    were     substantially        similar    to   Government       Exhibit    40-1,

were relevant and admissible as probative of Appellant’s mental

state and intent, i.e. his corruptness and willfulness.                              The

district court agreed, and we conclude the district court did

not abuse its discretion.

             As the Government points out, the fact that Appellant

made the same arguments to other agencies as an excuse for non-

payment     of     an    obligation,       makes       it     more     probable     that

Appellant’s asserted beliefs about the applicability of the tax

laws were not sincerely held, but that instead, Appellant merely

                                           16
wielded whatever claims he thought would be useful in an effort

to avoid paying his legal obligations, tax or otherwise.

              Therefore, we conclude the district court’s admission

of Government Exhibit 40-1 was not an abuse of discretion in the

face    of    a   Rule   403   objection.      Because    we   conclude    that

Government Exhibits 40-2 and 40-3 were sufficiently similar to

Government Exhibit 40-1, it is unnecessary to also conduct a

plain error review in this regard.            See, e.g., United States v.

Palacios, 677 F.3d 234, 245 n.6 (4th Cir. 2012) (“Our review of

the record indicates that Palacios objected to some, but not

all, of this testimony at trial. . . . Because we conclude that

Palacios’s arguments fail [under an abuse of discretion review]

even assuming he preserved an objection to every statement, we

do    not    distinguish   between   the    statements   to    which   Palacios

objected and those he did not.”).

                                      3.

              Appellant also challenges the child support evidence,

i.e., Government Exhibits 40-1, 40-2, and 40-3, pursuant to Rule

404(b) claiming the evidence fell short of the requirements for

the    admission    of   character   evidence.     Rule    404(b)      provides:

“Evidence of a crime, wrong, or other act is not admissible to

prove a person’s character in order to show that on a particular




                                      17
occasion the person acted in accordance with the character.” 7

Fed.       R.    Evid.       404(b)(1).          However,         such    evidence      “may    be

admissible            for     another     purpose,          such     as    proving       motive,

opportunity,           intent,       preparation,          plan,     knowledge,        identity,

absence         of    mistake,       or   lack     of     accident.”         Fed.      R.    Evid.

404(b)(2).

                 As noted, because Appellant failed to lodge a Rule

404(b) objection below, we review for plain error.                                    To reverse

for plain error, we must find that there was an error, that the

error is plain, and that it affected Appellant’s substantial

rights.          See        United   States      v.      Olano,    507    U.S.   725,       732-35

(1993).              “The    correction       of        plain   error     lies    within       our

discretion, which we may exercise if the error seriously affects

the    fairness,             integrity     or      public       reputation       of     judicial

proceedings, or the defendant is actually innocent.”                                        United

States v. Keita, 742 F.3d 184, 189 (4th Cir. 2014) (internal

quotation marks and alterations omitted).

                 We have held that prior bad acts are admissible under

Rule 404(b) when the following criteria are met:

                 (1) The evidence must be relevant to an
                 issue, such as an element of an offense, and

       7
       “Rule 404(b) was amended in December 2011 . . . . Thus,
the appropriate rule for the appeal is the current version of
Rule 404(b).” United States v. Williams, 740 F.3d 308, 314 n.5
(4th Cir. 2014).



                                                   18
             must not be offered to establish the general
             character of the defendant. In this regard,
             the more similar the prior act is (in terms
             of physical similarity or mental state) to
             the act being proved, the more relevant it
             becomes.   (2) The act must be necessary in
             the sense that it is probative of an
             essential   claim  or   an element   of  the
             offense. (3) The evidence must be reliable.
             And (4) the evidence’s probative value must
             not be substantially outweighed by confusion
             or unfair prejudice in the sense that it
             tends to subordinate reason to emotion in
             the fact finding process.

United States v. Williams, 740 F.3d 308, 314 (4th Cir. 2014)

(quoting United States v. Queen, 132 F.3d 991, 997 (4th Cir.

1997)).     According to Appellant, the evidence fails in all four

categories.

             Under a plain error review, however, it is clear that

the     district      court’s       analysis         satisfies       this       analytical

framework.        The relevancy analysis conducted by the district

court     satisfies       the   first       and    second    criteria       because    the

evidence was probative of an element of the crime charged, that

is, of Appellant’s state of mind -- his corrupt and willful

intent.       Appellant         does    not        argue    that    the     evidence    is

unreliable.         Therefore,         we    are    left    with    only     the   fourth

criterion.         “The    fourth      factor       reflects      that    the   proffered

404(b) evidence must satisfy Rule 403.                      Unfair prejudice exists

when there is a genuine risk that the emotions of a jury will be

excited      to      irrational             behavior,       and     this        risk   is


                                              19
disproportionate         to        the     probative          value       of      the     offered

evidence.”       Williams, 740 F.3d at 314 (internal quotation marks

omitted).       Here, the district court specifically concluded, “I

think the probative value outweighs the prejudice.”                                     J.A. 307.

Upon review, we cannot conclude that the district court erred in

this determination.

              Accordingly,         we     hold    there      was     no    error       here,     let

alone plain error.

                                                 B.

                             Fifth Amendment Challenge

              Appellant       next       contends      the    district          court    violated

the Fifth Amendment by constructively amending Count One of the

indictment.            The    Fifth        Amendment          to     the        United     States

Constitution, provides in relevant part:                             “No person shall be

held    to    answer    for    a     capital,         or   otherwise           infamous    crime,

unless on a presentment or indictment of a Grand Jury . . . .”

U.S.    Const.       amend.        V.       The       Fifth        Amendment          necessarily

“guarantees      that    a    criminal          defendant      will       be    tried     only    on

charges in a grand jury indictment.”                         United States v. Randall,

171    F.3d   195,     203    (4th       Cir.    1999)     (internal           quotation    marks

omitted).       “When the government, through its presentation of

evidence and/or its argument, or the district court, through its

instructions      to    the    jury,        or    both,       broadens          the    bases     for

conviction       beyond        those        charged          in     the        indictment,         a

                                                 20
constructive     amendment   --     sometimes     referred    to       as   a   fatal

variance    --   occurs.”        Id.      “To    constitute       a    constructive

amendment, the incongruity must in fact change the elements of

the   offense    charged,    such       that    the   defendant       is    actually

convicted of a crime other than that charged in the indictment.”

United States v. Whitfield, 695 F.3d 288, 309 (4th Cir. 2012)

(internal quotation marks omitted).

            Count One of the indictment charged Appellant with a

violation of 26 U.S.C. § 7212(a).               Section 7212(a) criminalizes

both successful and unsuccessful attempts to impede the IRS.

See United States v. Bostian, 59 F.3d 474, 479 (4th Cir. 1995)

(“[O]nly    intent    to    impede,      not    successful    impediment,         is

necessary for § 7212(a) to be violated.”).

            Tracking the language of the statute charged, Count

One of the indictment was titled “Corrupt Endeavor To Obstruct,

Impede,    and   Impair    the    Due    Administration      Of       the   Internal

Revenue Code.”       J.A. 14.      However, the body of the indictment

charged that Appellant “did corruptly obstruct and impede [sic]

to obstruct and impede the due administration of the Internal

Revenue Code.” 8     Id. at 16.         The district court instructed the

jury on the meaning of the word “endeavor,” defining it as “any


      8
       According to the Government, this was a typographical
error as the indictment was meant to mirror the statute.



                                         21
effort or any act or attempt to effectuate an arrangement or to

try to do something, the natural and probable consequences of

which is to obstruct or impede the due administration of the

Internal Revenue laws.”           Id. at 583.

            Appellant       contends         the        trial   court      constructively

amended    Count    One    of   the    indictment          when    it    informed         jurors

Appellant could be found guilty of violating 26 U.S.C. § 7212(a)

if   he   merely    “endeavored”            to    obstruct       or     impede      the    IRS.

According to Appellant, he was not charged with “endeavoring” to

obstruct    or     impede       the    IRS,        and    the     trial    court’s         jury

instructions       improperly         broadened          the    basis     of     conviction

alleged in Count One.           The Government, however, correctly points

out that even if the indictment were given the strict reading

promoted    by     Appellant,         the        jury    was    entitled       to     convict

Appellant of a lesser-included offense, i.e., attempt, which is

the equivalent of “endeavoring.”                   See Fed. R. Crim. P. 31(c) (“A

defendant may be found guilty of any of the following:                                (1) an

offense    necessarily      included         in    the     offense      charged;      (2)     an

attempt to commit the offense charged; or (3) an attempt to

commit an offense necessarily included in the offense charged,

if the attempt is an offense in its own right.”).

            Because       the    district         court’s       instructions         did    not

broaden the bases for conviction beyond those charged in the

indictment, the district court did not constructively amend the

                                             22
indictment.         See    Randall,         171    F.3d        at       203.     The     indictment

plainly charged Appellant with a violation of § 7212(a), which

criminalizes both intent to impede and successful impediment of

the   due   administration         of       the    IRC.            Therefore,      the    district

court’s     instruction      on    the       definition             of    “endeavor”       did   not

“change     the    elements       of    the       offense          charged,       such    that   the

defendant     is    actually       convicted          of       a    crime       other    than    that

charged     in     the    indictment.”                Whitfield,           695     F.3d    at    309

(internal quotation marks omitted).                        Moreover, as the Government

submits,     even    if    we     were      to     find        otherwise,         the     jury   was

entitled     to    convict       Appellant         of      a       lesser-included        offense,

i.e.,     attempt,        which        we    conclude              is     the     equivalent      of

“endeavoring.”       See Fed. R. Crim. P. 31(c).

                                              IV.
             Pursuant       to     the       foregoing,             the        judgment    of    the

district court is

                                                                                          AFFIRMED.




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