IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-10105

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

EDGAR A. LOCKETT, JR.,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 2:13-CR-12

Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Edgar A. Lockett, Jr. was convicted by a jury of six counts of income tax 

evasion. He appeals his conviction, raising five issues.

First, Lockett contends that the district court erred by overruling his 

objections to the admission of government exhibits 1-1 through 1-22 and the 

testimony of Ramon Hernandez, an IRS records custodian, relating to those 

exhibits. We review the district court’s evidentiary ruling for an abuse of 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

March 9, 2015

Lyle W. Cayce

Clerk

 

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discretion. See United States v. Lopez-Moreno, 420 F.3d 420, 434 (5th Cir. 

2005).

Government exhibits 1-1 through 1-22 consisted of certified account 

transcripts from Lockett’s IRS account for years 1989 through 2010. The 

account transcripts were printouts derived from Lockett’s Individual Master 

File (IMF) with the IRS, a permanent computerized record of Lockett’s IRS 

account which itself was not introduced into evidence. Lockett argues that the 

account transcripts were inadmissible because they were produced for 

purposes of litigation and contained information that was not present in the 

IMF.

“Under [Federal Rule of Evidence] 803(8), records, including computer 

records, made by a public agency are admissible, regardless of whether they 

would otherwise be excluded as hearsay.” Lopez-Moreno, 420 F.3d at 436. “The 

relevant inquiry under Rule 803(8) is whether the information was recorded by 

a public official as part of a routine procedure in a non-adversarial setting.” 

United States v. Puente, 826 F.2d 1415, 1418 (5th Cir. 1987).

Hernandez’s testimony established that the account transcripts reflected 

information that was previously recorded in Lockett’s IMF in the course of the 

IRS’s regular, ongoing collection of data about Lockett. Accordingly, the fact 

that the information was later retrieved and printed out for Lockett’s trial in 

the form of the account transcripts does not disqualify the information under 

Rule 803(8). See id. Furthermore, the account transcripts were not rendered 

inadmissible because they differed slightly in format from the IMF by 

containing automatically decoded literal terms in addition to the numerical 

codes used in the IMF. See United States v. Sanders, 749 F.2d 195, 197–99 

(5th Cir. 1984). Lockett has not shown an abuse of discretion regarding this 

issue.

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Lockett next challenges the admission of Government exhibits 1-43 and 

1-44, which were IRS notices of deficiency pertaining to years 2000 through 

2005. Lockett argues that the notices were not certified, as required for selfauthenticating documents under Federal Rule of Evidence 902, and that the 

Government failed to authenticate the notices through proof that they were 

actually mailed to his last known address, as required for the notices to be 

effective under the Internal Revenue Code, 26 U.S.C. §§ 6212 and 6213. Plain 

error review applies to this argument because Lockett did not raise it in the 

district court. See United States v. Baker, 538 F.3d 324, 331 (5th Cir. 2008).1

Although exhibits 1-43 and 1-44 were not self-authenticating, the 

standard for authentication is not burdensome and merely requires evidence 

that is sufficient to support a finding that the item in question is what its 

proponent claims it to be. United States v. Jackson, 636 F.3d 687, 693 (5th Cir. 

2011); see FED. R. EVID. 901(a). “A proponent may authenticate a document 

with circumstantial evidence, including the document’s own distinctive 

characteristics and the circumstances surrounding its discovery.” Jackson,

636 F.3d at 693 (internal quotation marks and citation omitted).

Lockett has not demonstrated an abuse of discretion, much less plain 

error, regarding the authentication of exhibits 1-43 and 1-44. Hernandez 

testified that the exhibits appeared to be original, real IRS notices of deficiency 

based on his training regarding such notices, and Timothy Quinn, the IRS case 

agent for Lockett’s case, testified that the notices were created by a revenue 

agent from information in the revenue agent’s file. The notices also utilized 

IRS forms and contained figures that were corroborated by the account 

transcripts in Government exhibits 1-12 through 1-17, which were certified as 

1 Lockett did object to these exhibits’ admission, but only on hearsay grounds, which

he does not pursue on appeal.

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official IRS records. Accordingly, there was sufficient evidence to authenticate 

exhibits 1-43 and 1-44. Further, Lockett’s contention that the notices were 

sent to the wrong address is unavailing, as Lockett himself testified that the 

notices contained his correct mailing addresses.

Third, Lockett argues that the district court erred in denying his motion 

for a judgment of acquittal on Count 1, which charged income tax evasion for 

years 2000 through 2005. Lockett contends that there was insufficient proof 

that he had a tax deficiency during those years. See United States v. Miller, 

588 F.3d 897, 907 (5th Cir. 2009) (recognizing that existence of a tax deficiency 

is one of the three elements of income tax evasion).

The district court’s denial of Lockett’s motion for a judgment of acquittal 

is reviewed de novo. See United States v. Xu, 599 F.3d 452, 453 (5th Cir. 2010). 

The relevant question is “‘whether, after viewing the evidence in the light most 

favorable to the prosecution, any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt.’” Id. (quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

The account transcripts and notices of deficiency in government exhibits 

1-12 through 1-17 and 1-43 through 1-44 indicated that Lockett had a tax 

deficiency for 2000 through 2005, and Lockett’s own testimony showed that he 

had income but did not pay income tax for those years. Based on that evidence, 

a reasonable factfinder could have found beyond a reasonable doubt that 

Lockett had a tax deficiency in 2000 through 2005. See id. at 453. Lockett’s 

challenge to the denial of his motion for a judgment of acquittal on Count 1 is 

unavailing.

Fourth, Lockett argues that the district court erred in refusing his 

proposed instruction distinguishing between acts of omission that would not 

support a felony conviction for income tax evasion and acts of commission that 

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would. We review the district court’s exclusion of Lockett’s requested 

instruction “under an abuse of discretion standard, affording the trial court 

substantial latitude in describing the law to the jurors.” United States v. Rios, 

636 F.3d 168, 171 (5th Cir. 2011) (internal quotation marks and citation 

omitted). Reversal based on a district court’s refusal to give a jury instruction 

“is not warranted unless the proposed instruction (1) is substantially correct, 

(2) is not substantively covered in the jury charge, and (3) pertains to an 

important issue in the trial, such that failure to give it seriously impairs the 

presentation of an effective defense.” United States v. Heard, 709 F.3d 413, 

427 (5th Cir.) (internal quotation marks and citation omitted), cert. denied, 134 

S. Ct. 470 (2013).

The district court instructed the jury on the specific affirmative acts the 

government was required to prove beyond a reasonable doubt in order to 

convict Lockett of income tax evasion. Thus, the jury charge made clear that 

acts of omission were insufficient to satisfy the government’s burden. Because 

Lockett’s requested instruction was substantively covered by the jury charge, 

he has not shown an abuse of discretion regarding this issue. See id. While 

Lockett further asserts that the jury could have misinterpreted language in 

the indictment as allowing a conviction for income tax evasion based on an act 

of omission, his assertion is insufficient to rebut the presumption that jurors 

understand and follow their instructions. See United States v. Patino-Prado, 

533 F.3d 304, 313 (5th Cir. 2008).

Finally, Lockett argues that the district court’s jury instruction on the 

definition of reasonable doubt was constitutionally deficient. According to 

Lockett, the district court should have instructed the jury that reasonable 

doubt equated to “near certainty,” a notion set forth in his requested jury 

instructions. The district court’s instruction on reasonable doubt tracked this 

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circuit’s pattern instruction, which this court has previously upheld in the face 

of a similar challenge. See United States v. Jones, 663 F.2d 567, 571 (5th Cir. 

1981). As Lockett concedes, his argument is foreclosed by this court’s 

precedent. See id.

The judgment of the district court is AFFIRMED.

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