UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5204
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THOMAS ARRONA JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, Chief District
Judge. (8:10-cr-00102-DKC-1)
Submitted: January 12, 2012 Decided: February 9, 2012
Before KING, AGEE, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Sean P. Vitrano, HAZLEHURST VITRANO LLC, Hunt Valley, Maryland,
for Appellant. Rod J. Rosenstein, United States Attorney, Adam
K. Ake, Assistant United States Attorney, Greenbelt, Maryland,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas Arrona Johnson was convicted by a jury of one
count of conspiring to defraud the Internal Revenue Service
(“IRS”) by preparing and filing, and assisting others to prepare
and file, false income tax returns in violation of 18 U.S.C.
§ 286 (2006) and eight counts of presenting false claims to the
IRS in violation of 18 U.S.C. § 287 (2006). On appeal, Johnson
challenges his convictions under 18 U.S.C. § 287, arguing that
the district court erred in instructing the jury and that there
is insufficient evidence to support a guilty verdict on three
counts of conviction. For the following reasons, we affirm.
Johnson first contends that the district court failed
to specifically instruct the jury that the making and presenting
of false claims under § 287 must have been “willful.” As
Johnson concedes, the jury instructions may only be reviewed by
this court for plain error because he did not request an
instruction or object to those that were given. Fed. R. Crim.
P. 30(d); United States v. Nicolaou, 180 F.3d 565, 569 (4th Cir.
1999). Under the plain error standard, Johnson must show: (1)
there was error; (2) the error was plain; and (3) the error
affected his substantial rights. United States v. Olano, 507
U.S. 725, 732-34 (1993). “This court reviews jury instructions
in their entirety and as part of the whole trial" to determine
"whether the court adequately instructed the jury on the
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elements of the offense and the accused's defenses." United
States v. Bostian, 59 F.3d 474, 480 (4th Cir. 1995) (citations
omitted).
The statute of conviction proscribes the making of
false claims to a department or agency of the United States. 18
U.S.C. § 287. Our review of the record leads us to conclude
that the district court did not plainly err in instructing the
jury as to the elements of the offense or available defenses.
See, e.g., United States v. Bolden, 325 F.3d 471, 494 (4th Cir.
2003) (“we must uphold a conviction [under § 287] if the
evidence shows the submission of a false claim and if the
defendant acted with knowledge that the claim was false and with
a consciousness that he was either doing something which was
wrong, or which violated the law”) (quotation marks and internal
punctuation omitted); United States v. Blecker, 657 F.2d 629
(4th Cir. 1981) (“the government met its burden of proof in this
case by showing that the defendants submitted invoices . . .
with knowledge of their falsity . . .”); United States v.
Catton, 89 F.3d 387, 392 (7th Cir. 1996) (§ 287 “does not
explicitly require proof of willfulness . . .”).
Johnson next argues that the Government did not
present sufficient evidence to uphold the jury’s verdicts of
guilt on three counts of making a false claim — each related to
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a separate taxpayer — under § 287. * This court will affirm the
verdict if it is supported by “substantial evidence” when
viewing the evidence in the light most favorable to the
Government. United States v. King, 628 F.3d 693, 700 (4th Cir.
2011). “Substantial evidence” is evidence that a reasonable
factfinder could accept as adequate to support a conclusion of
guilty beyond a reasonable doubt. Id.
The jury found Johnson guilty of conspiring to defraud
an agency of the United States under 18 U.S.C. § 286. Under the
Pinkerton doctrine, “a person [is] liable for substantive
offenses committed by a co-conspirator when their commission is
reasonably foreseeable and in furtherance of the conspiracy.”
United States v. Ashley, 606 F.3d 135, 142-43 (4th Cir.) (citing
Pinkerton v. United States, 328 U.S. 640, 647 (1946)), cert.
denied, 131 S. Ct. 428 (2010).
Evidence at trial showed that Johnson was part of the
conspiracy, that Johnson was aware of and involved in the
scheme, that Johnson was aware of and involved in the
preparation and filing of individual tax returns, and that the
tax returns were a primary component of the scheme. It was
therefore reasonably foreseeable that Williams would prepare and
*
Johnson does not contend on appeal that his co-conspirator
did not actually commit these offenses.
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submit additional tax returns. Further, those returns were in
furtherance of the overall conspiracy. Johnson’s lack of active
participation in the filing of the specific returns he
challenges on appeal is irrelevant where he was a willing member
of the conspiracy and the submission of the noted returns was
both foreseeable and in furtherance of the conspiracy.
We therefore affirm the judgment of the district
court. Because Johnson is represented by counsel on appeal, we
deny his motion for leave to file a pro se supplemental brief.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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