                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           MAR 2 2000
                                    TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
 vs.                                                     No. 99-6234
                                                    (D.C. No. 98-CR-21-R)
 BRENDA KAY SCARBERRY, also                              (W.D. Okla.)
 known as Brenda Raymond, also
 known as Brenda Jordan,

           Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges. **


       Brenda Scarberry appeals from her conviction of two counts of making and

subscribing to false tax returns, 26 U.S.C. § 7206(1) & 18 U.S.C. § 2 and one

count of aiding and assisting in the preparation of false tax returns in violation of

26 U.S.C. § 7206(2). She was sentenced to 15 months imprisonment to be


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
followed by two years of supervised release.

      On appeal, Ms. Scarberry contends that (1) the evidence is insufficient to

support the convictions; (2) the revenue agent testified as to the law; (3) the

district court erred in excluding the testimony of another ex-wife of Tony

Scarberry, Jr.; (4) the jury was not instructed as to the defense’s theory of the

case; and (5) her motion to suppress was denied in error. Our jurisdiction arises

under 28 U.S.C. §1291 and we affirm.



                                     Background

      Ms. Scarberry was married to Tony Scarberry, Jr., from 1990 until 1996.

During their marriage, the Scarberrys filed joint tax returns, including for the

1994 tax year. In 1994 Ms. Scarberry, using her maiden name of Brenda Jordan,

filed a joint return with Tony Scarberry, Jr. claiming business losses associated

with Mr. Scarberry’s part-time employment as a carpet installer (count 2). Ms.

Scarberry also filed a 1994 joint return with Craig Raymond, her current

husband, claiming an incorrect marital status (count 3). Ms. Scarberry prepared

tax returns for compensation, including one for Monte Hamman, reporting a

$6,710 farm loss (count 8).




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                                        Discussion

A. Sufficiency of the Evidence

       We review a sufficiency of the evidence claim de novo, viewing the

evidence and its reasonable inferences in the light most favorable to the

government. The issue is whether a rational jury could have found the elements

of the offense beyond a reasonable doubt.       See United States v. McSwain , 197

F.3d 472, 477 (10th Cir. 1999). To establish a violation of § 7206(1), the

government was required to prove that Ms. Scarberry (1) made and subscribed a

return, (2) the return contained a written declaration that it was being signed

subject to the penalties of perjury, (3) she did not believe the return to be true

and correct as to every material matter contained in the indictment, and (4) she

acted willfully in filing the return.   See United States v. Winchell , 129 F.3d

1093, 1095-96 (10th Cir. 1997). To establish a violation of § 7206(2), the

government was required to prove that Ms. Scarberry (1) aided or assisted or

otherwise caused the preparation and presentation of a return, (2) the return was

false or fraudulent as to a material matter, and (3) she acted wilfully.   See United

States v. Aramony , 88 F.3d 1369, 1382 (4th Cir. 1996).

       Ms. Scarberry argues that the government failed to prove she acted wilfully

regarding the three counts of conviction, that the filing status of taxpayer is not

material as a matter of law, and that venue was improper on count 3. Willfulness


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is the voluntary, intentional violation of a known legal duty.   See Cheek v.

United States , 498 U.S. 192, 201 (1991);     United States v. Guidry , 199 F.3d 1150,

1156 (10th Cir. 1999). Making false entries or documents or invoices may be

circumstantial evidence of willfullness.     See Guidry , 199 F.3d at 1157.

       1. Count 2--1994 Jordan/Scarberry Return

       In challenging the proof of wilfulness, Ms. Scarberry argues that she

cannot be presumed to have known that the information was false and that her

husband theoretically may have been able to claim expenses in driving to a part-

time work site. However, we reject this challenge after considering Mr.

Scarberry’s testimony as to his non-involvement with the preparation of the

return and the nature of his part-time work. When she prepared the return, Ms.

Scarberry had been married to him for over four years. The jury could reasonably

infer that she knew he worked full-time as a sheet metal worker, and only

occasionally as a carpet installer, the business for which a loss of $11,160 was

claimed. Additionally, Ms. Scarberry almost certainly knew her husband did not

own the carpet installation business, but only worked as a helper, and thus was

not entitled to business loss deductions. Mr. and Ms. Scarberry were separated at

the time she completed the tax forms; according to his testimony, he provided no

information or documentation concerning any of the items that comprise the

business expenses claimed,     see Tr. at 437-41; he merely picked up the completed


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form to sign.

      2. Count 3--1994 Jordan/Raymond Return

      Ms. Scarberry, again using her maiden name of Brenda Jordan, also filed a

1994 income tax return with Craig Raymond, with the filing status of “married

filing jointly.” Given the obviousness of one’s marital status in these

circumstances, the jury certainly could infer that her conduct was willful. Ms.

Scarberry also contends that the government failed to prove that the filing status,

here, “married filing jointly,” was material. Material information under §

7206(1) is that information necessary to enable the correct determination of tax

liability. See United States v. Clifton , 127 F.3d 969, 970 (10th Cir. 1997). She

argues that the government offered no evidence to show that the false filing

status had affected the tax calculation.

      Ms. Scarberry understates the record when she suggests that the revenue

agent stated that all discrepencies are material. Aplt. Br. at 27. The revenue

agent specifically testified that filing status affects tax rates, dependency status

for children, and computation of the earned income credit. Tr. at 446-47. A

reasonable jury could certainly conclude that incorrect filing status is material.

      Ms. Scarberry also contends that venue for this count was improper.

Venue for the trial of a defendant charged with violating 26 U.S.C. §7206(1) is

proper in the district where the return was made and subscribed. Ms. Scarberry


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claims that the government did not prove that the return was made or subscribed

in the Western District of Oklahoma.

      Ms. Scarberry waived this claim by failing to object to venue at trial or

requesting an instruction on venue.    See United States v. Miller , 111 F.3d 747,

750 (10th Cir. 1997). Additionally, she signed the return on March 20, 1995, and

record evidence suggests that she was residing in Oklahoma at that time.     See Tr.

at 140. Allowing this count to be heard in the Western District of Oklahoma was

not plain error.

      3. Count 8--1993 Monty Hamman Return

      Ms. Scarberry’s claim of insufficient evidence on this count is similarly

unpersuasive. She assisted in the preparation of a 1993 income tax return for

Monte Hamman that falsely claimed a $6,710 farming loss on a cattle ranch.

Testimony at trial indicated that Mr. Hamman was a truck driver rather than a

rancher and did not have the education or reading ability to understand what was

claimed on his return. He merely signed where he was told. Additional

testimony established that the only documentation he gave Ms. Scarberry was his

W-2 form, and he never mentioned having a cattle ranch. A reasonable jury

could believe that any false information was attributable to Ms. Scarberry and

that her conduct was willful. Courts have sustained § 7206(2) convictions on

similar facts. See United States v. Conlin , 551 F.2d 534, 536 (2d Cir. 1977);


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United States v. Miller , 529 F.2d 1125, 1127, 1129 (9th Cir. 1976);    Amos v.

United States , 496 F.2d 1269, 1271, 1273-74 (8th Cir. 1974).

B. Expert Testimony on Materiality

       For the first time on appeal, Ms. Scarberry objects to the testimony of the

revenue agent. He testified that certain line items the government claimed were

false were material to computation of tax liability. Ms. Scarberry argues that the

agent was impermissibly allowed to define the law of the case. She bases her

argument on Specht v. Jensen , 853 F.2d 805 (10th Cir. 1988) (en banc),       cert.

denied , 488 U.S. 1008 (1989), where the court held that a legal expert could not

testify as to the ultimate legal issues in the case.

       Because she raises this issue for the first time on appeal, we review for

plain error only.   See United States v. Deters , 184 F.3d 1253, 1258 (10th Cir.

1999). No such error occurred here; the revenue agent’s testimony merely

assisted the jury in understanding the facts in evidence; in no way did it supplant

the function of the court to define the law and the jury to apply it.

C. Exclusion of Ex-Wife’s Testimony

       Ms. Scarberry alleges that the district court erred in excluding the

testimony of Linda Prestwich, an ex-wife of Tony Scarberry, Jr. Ms. Scarberry

argued that Mr. Scarberry had a proclivity to force people to sign false returns

when he would benefit. According to the offer of proof, Mr. Scarberry forced


                                           -7-
Ms. Prestwich to sign a false 1989 joint return when she was married to someone

else. Tr. at 557. We review the exclusion of evidence for an abuse of discretion.

See United States v. Beers , 189 F.3d 1297, 1300 (10th Cir. 1999). While there

was other evidence that Mr. Scarberry forced Ms. Scarberry into the tax

preparation business and took the proceeds, there simply was no foundation that

Ms. Scarberry was forced by Mr. Scarberry to file the returns comprising the

counts of conviction. The trial judge did not abuse his discretion.

D. Refusal to Instruct on Theory of Defense

       Ms. Scarberry requested a type of duress instruction, claiming that she was

not capable of acting willfully and with the requisite intent because of the abuse

she had suffered at the hands of her ex-husband.      1
                                                          We review a district court’s

decision to deny a particular instruction for an abuse of discretion.       See Davoll v.

Webb , 194 F.3d 1116, 1131 (10th Cir. 1999).

       A defendant is entitled to an instruction on her theory of defense if the

instruction is a correct statement of law and supported by sufficient evidence.

See United States v. Bindley , 157 F.3d 1235, 1241 (10th Cir. 1998). In this case,

Ms. Scarberry did not show “‘(1) an immediate threat of death or serious bodily

injury, (2) a well-grounded fear that the threat will be carried out, and (3) no



       The transcript of the jury instructions conference indicates that counsel
       1

tendered the instruction, and that the court denied it. However, the exact form of
the requested instruction does not appear in the record.

                                            -8-
reasonable opportunity to escape the threatened harm.’”         United States v.

Merchant , 992 F.2d 1091, 1096 (10th Cir. 1993) (citation omitted). While some

evidence may have indicated that Ms. Scarberry was threatened by Mr. Scarberry

in connection with her tax return activities, it is too far removed from

establishing duress in the preparation and signing of the returns described in the

indictment.

E. Motion to Suppress Evidence

       Ms. Scarberry argues that her mother was tricked into turning over a box of

papers when a revenue agent told her that he was authorized by Ms. Scarberry to

collect the box.   See United States v. Tweel , 550 F.2d 297, 299 (5th Cir. 1977).

“A consensual search is unreasonable under the Fourth Amendment or violative

of due process under the Fifth Amendment if the consent was induced by fraud,

deceit, trickery, or misrepresentation by the revenue agent.”       United States v.

Peters , 153 F.3d 445, 451 (7th Cir. 1998). The burden is on a defendant to prove

agent misconduct by clear and convincing evidence.         See United States v. Powell ,

835 F.2d 1095, 1098 (5th Cir. 1988).

       The district court declined to suppress evidence from the box after hearing

the testimony of both Ms. Scarberry’s mother and the revenue agent, finding that

the agent “did not make the statement that he had the permission of the

Defendant and that these documents were turned over voluntarily by the


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Defendant’s mother and not based upon any representations about the willingness

of the Defendant to have them turned over.” Tr. at 345-46. Having carefully

reviewed the record, we hold that the trial court’s findings are not clearly

erroneous.

      AFFIRMED.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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