UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-5021

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

HINTON HUFF, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Norfolk. Henry Coke Morgan, Jr., 

Senior District Judge. (2:08-cr-00225-HCM-FBS-1)

Submitted: July 14, 2010 Decided: July 28, 2010

Before KING, GREGORY, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

A. Aaron Aldridge, Lebanon, Ohio, for Appellant. Neil H. 

MacBride, United States Attorney, Alan M. Salsbury, Assistant 

United States Attorney, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Following a three-day jury trial, Hinton Huff, Jr., 

was found guilty of twenty-nine counts of willfully aiding and 

assisting in the preparation of false tax returns, in violation 

of 26 U.S.C. § 7206(2) (2006). Huff was sentenced to fifteen 

months’ imprisonment. For the reasons that follow, we affirm 

the district court’s judgment.

I. Sufficiency of the Government’s Evidence

Huff first asserts the Government presented 

insufficient evidence of his guilt, because it did not prove 

that he acted with another culpable participant. This argument 

fails under the express language of the statute of conviction, 

which imputes criminal liability to a tax preparer who prepares 

a false return, regardless of whether the taxpayer knows of or 

consents to the falsity. See 26 U.S.C. § 7206(2). This was 

precisely the case here. To avoid this conclusion, Huff relies 

on United States v. Searan, 259 F.3d 434 (6th Cir. 2001). 

However, the issue in Searan was whether an assistant to a tax 

preparer is criminally liable under § 7206(2). See Searan, 259 

F.3d at 443-46. Thus, the Searan court’s discussion of another 

actor’s criminal liability is irrelevant given the facts of this 

case. 
3

Huff next argues the Government failed to prove that 

he acted willfully, because the Government did not present 

evidence of his motive. We disagree. Under United States v. 

Pomponio, 429 U.S. 10, 12 (1976), a tax violation is “willful” 

if it is “a voluntary, intentional violation of a known legal 

duty,” and the Government need not prove “any motive other than 

an intentional violation of” that duty. Huff further argues 

that, because the Government did not prove a tax loss, it failed 

to show that Huff acted willfully. In addition to being legally 

irrelevant, this assertion is factually inaccurate, because an 

IRS agent testified that the falsified returns resulted in an 

aggregate tax loss of over $78,000. 

Finally, we reject Huff’s contention that there was 

insufficient evidence to prove that he personally prepared the 

tax returns that were the subject of his indictment. The 

evidence at trial established that, in a pre-trial interview 

with an IRS agent, Huff admitted preparing the returns. 

Moreover, each of the witnesses testified that Huff prepared 

their taxes; the tax returns were signed by Huff; and two 

defense witnesses testified that Huff was the sole tax preparer 

in the office. This evidence was more than sufficient to 

support the jury’s verdicts. 
4

II. Sufficiency of the Indictment

Huff argues his convictions should be reversed because 

the indictment failed to specify the criminal acts alleged or 

the items on each return that were falsely claimed. Although a 

criminal defendant may challenge the sufficiency of his 

indictment at any time, because Huff raises the issue for the 

first time on appeal, we liberally construe the indictment, “and 

every intendment is then indulged in support of . . . 

sufficiency.” United States v. Williams, 152 F.3d 294, 298 (4th 

Cir. 1998) (alteration in original) (internal quotation marks 

omitted). 

To withstand a vagueness challenge, an indictment must 

“contain[] the elements of the offense charged and fairly 

inform[] a defendant of the charge against which he must 

defend, . . . enabl[ing] him to plead an acquittal or conviction 

in bar of future prosecutions for the same offense.” United 

States v. Smith, 441 F.3d 254, 260-61 (4th Cir. 2006) (internal 

quotation marks omitted). An indictment that mirrors the 

language of the statutory charge and includes facts specific to 

the defendant’s actions is constitutionally adequate. See

Hamling v. United States, 418 U.S. 87, 117 (1974). 

The indictment here satisfies these requirements. In 

addition to mirroring the statutory language of 26 U.S.C. 

§ 7206(2), the indictment also included a chart that delineated 
5

the particular tax return that formed the basis for each count, 

the “falsely claimed item” on that return and its corresponding 

“falsely claimed amount,” the date the return was filed, and the 

taxpayer for whom it was prepared. The Government was under no 

obligation to provide a line-by-line recitation of all the 

falsifications within each allegedly falsified item.1

 

III. Prosecutorial Misconduct

Huff next argues his convictions should be reversed 

because the Assistant United States Attorney (“AUSA”) improperly 

vouched for the credibility of the Government’s witnesses, and 

misstated the law pertaining to immunity agreements and the uses 

of Tax Form Schedule C. Because Huff did not object on these 

bases at trial, this court’s review is for plain error. See

United States v. Baptiste, 596 F.3d 214, 226 (4th Cir. 2010). 

To establish plain error, Huff must demonstrate there was error, 

it was plain, and that it affected his substantial rights. 

United States v. Alerre, 430 F.3d 681, 689 (4th Cir. 2005). 

Even if Huff satisfies this difficult burden, this court will 

 1 We also reject Huff’s contention that the indictment was 

flawed because it did not particularize the date each return was 

prepared. “Where a particular date is not a substantive element 

of the crime charged, strict chronological specificity or 

accuracy is not required.” Smith, 441 F.3d at 261 (internal 

quotation marks omitted). The particular date of the offense is 

simply not an element of § 7206(2).
6

not notice the error unless it “seriously affects the fairness, 

integrity or public reputation of judicial proceedings.” 

Puckett v. United States, 129 S. Ct. 1423, 1429 (2009) (internal 

quotation marks and alteration omitted). 

“Vouching generally occurs when the prosecutor’s 

actions are such that a jury could reasonably believe that the 

prosecutor was indicating a personal belief in the credibility 

of the witness.” United States v. Johnson, 587 F.3d 625, 632 

(4th Cir. 2009) (internal quotation marks omitted), cert. 

denied, 130 S. Ct. 2128 (2010). We have carefully reviewed the 

AUSA’s opening and closing statements and find nothing therein 

constitutes impermissible vouching. We further conclude the 

AUSA did not misstate the law relevant to immunity agreements or 

the use of Tax Form Schedule C as relevant to this case. 

IV. Reasonableness of Huff’s Sentence

Post-Booker,2

 2 United States v. Booker, 543 U.S. 220 (2005).

this court reviews a sentence for 

reasonableness, applying an abuse of discretion standard. Gall 

v. United States, 552 U.S. 38, 51 (2007); see also United States 

v. Layton, 564 F.3d 330, 335 (4th Cir.), cert. denied, 130 S. 

Ct. 290 (2009). This review requires appellate consideration of 

both the procedural and substantive reasonableness of a 
7

sentence. Gall, 552 U.S. at 51. In determining procedural 

reasonableness, this court considers whether the district court 

properly calculated the defendant’s advisory Guidelines range, 

considered the 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2010)

factors, analyzed any arguments presented by the parties, and 

sufficiently explained the selected sentence. Gall, 552 U.S. at 

51. If the court finds “no significant procedural error,” it 

next assesses the substantive reasonableness of the sentence, 

taking “‘into account the totality of the circumstances, 

including the extent of any variance from the Guidelines 

range.’” United States v. Morace, 594 F.3d 340, 345-46 (4th 

Cir. 2010) (quoting Gall, 552 U.S. at 51).

Huff first asserts the district court violated due 

process by prohibiting his wife from making a statement prior to 

the court pronouncing sentence. We disagree. The district 

court allowed Huff to present whatever evidence he deemed 

appropriate, and Huff availed himself of this opportunity, 

calling one witness. After hearing argument on sentencing, Huff 

asked the court to permit his wife to make a statement. At that 

point, evidence was closed, and we hold the court was well 

within its province to decline Huff’s request. See United 

States v. Janati, 374 F.3d 263, 273 (4th Cir. 2004) (describing 

the district court’s discretion in managing things such as 
8

courtroom procedures and admission of evidence as “particularly 

broad”). 

Huff also argues the district court’s failure to 

consider the § 3553(a) sentencing factors renders his sentence 

procedurally and substantively unreasonable. Such a claim is 

more appropriately considered as a challenge to the procedural 

reasonableness of Huff’s sentence. See United States v. Lynn, 

592 F.3d 572, 575-76 (4th Cir. 2010). Counsel’s reliance on 

several § 3553(a) sentencing factors to support a downward 

variance preserved this issue for appellate review. Id. at 578. 

Accordingly, our review is for an abuse of discretion. Id. at 

581. 

The district court did not abuse its discretion in 

sentencing Huff. In granting counsel’s request for a downward 

variance, the district court expressly adopted the primary (and 

strongest) reason counsel advanced to support the variance. 

Although we recognize that the court did not address, on the 

record, each and every other reason set forth by counsel, we 

conclude this does not render Huff’s sentence procedurally 

flawed. See United States v. Boulware, 604 F.3d 832, 838-39 

(4th Cir. 2010). 

We further conclude that Huff’s variance sentence was 

substantively reasonable. Considering the totality of the 

circumstances surrounding Huff’s crimes and his virtually non-
9

existent criminal history, the district court properly exercised 

its discretion to vary downward from the Guidelines range by 

approximately 29%, and amply justified that variance. See

United States v. Seay, 553 F.3d 732, 742 (4th Cir.) (finding 

variance sentence that was a 68% increase above the Guidelines 

range reasonable, because the court had adequately explained the 

reasons for the variance), cert. denied, 130 S. Ct. 127 (2009). 

 

V. Ineffective Assistance of Counsel

Finally, Huff asserts his attorney provided 

ineffective representation during his trial. Unless an 

attorney’s ineffectiveness is conclusively apparent on the face 

of the record, ineffective assistance claims are not generally 

addressed on direct appeal. United States v. Benton, 523 F.3d 

424, 435 (4th Cir.), cert. denied, 129 S. Ct. 490 (2008); United 

States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999) 

(providing standard and noting that ineffective assistance of 

counsel claims generally should be raised by motion under 28 

U.S.C.A. § 2255 (West Supp. 2010)). The record in this case 

falls far short of this exacting standard. 

VI. Conclusion

For the foregoing reasons, we affirm Huff’s 

convictions and sentence. Further, we deny as moot the pending 
10

motions to expedite review and for bond pending appeal. 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