1 Pursuant to 5 TH C IR

. 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opinion should not be published and is not precedent except under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 5 TH C IR . R. 47.5.4. UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 00-30894

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JOHN I. BICKHAM, SR.

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Louisiana

(99-CR-90)

June 28, 2001

Before SMITH, DUHÉ and WIENER, Circuit Judges.

PER CURIAM: 1

John I. Bickham, Sr. (“Bickham”) appeals his conviction and

sentence for tax evasion alleging five errors. We affirm.

BACKGROUND

Bickham was majority shareholder in and operated Petroleum

Catalyst, Inc. (“PCI”), a Louisiana corporation. PCI paid Bickham

a monthly sa lary plus commissions on sales. Bickham had PCI pay

his commissions to another corporation he controlled, Gulf Catalyst2

Investments, Inc. (“GCI”), rather than to Bickham personally.

In 1985, the Louisiana Secreta ry of State revoked GCI’s

articles of incorporation and authority to do business for failing

to file an annual report. After the revocation, Bickham continued

to maintain a bank account in GCI’s nam e. Bickham deposited his

PCI commission checks into this account, often wrote checks to

“cash” on the a ccount, and used its funds to restore his RollsRoyce, repair his Porsche, customize his Suburban, repair his boat,

purchase stereo equipment, and vacation at a health spa. Bickham

accurately characterized GCI as a “paper company.” GCI kept no

business records, had neither an office nor a telephone number, and

never submitted invoices to PCI. Except for Bickham’s commission

payments, PCI never paid anyone without first receiving an invoice.

Bickham did not report any of his commissions PCI paid to GCI

in 1992, 1993, and 1994 as his income on his tax returns for those

years. GCI filed no returns. A jury convicted Bickham of

willfully attempting to evade taxes for 1992-94. The District

Court sentenced him to twenty-seven months’ incarceration.

STANDARD OF REVIEW

Beca use Bickham did not object to the District Court’s jury

instructions at trial, we review the instructions the court gave

for plain error. United States v. Lankford

, 196 F.3d 563, 575 (5th

Cir. 1999), cert denied

, 120 S. Ct. 1984 (2000). We review the

court’s dec ision not to give instructions that Bickham requested3

for abuse of discretion. U nited States v. Jobe

, 101 F.3d 1046,

1059 (5th Cir. 1996). We review the sufficiency of the indictment

de novo

. U nited States v. Cabrera-Teran

, 168 F.3d 141, 143 (5th

Cir. 1999). We review the District Court’s factual findings at

sentencing for clear error and its l egal interpretations of the

sentencing guidelines de novo

. U nited States v. Lyckman

, 235 F.3d

234, 237 (5th Cir. 2000). We do not review a claim of ineffective

assistance of counsel on direct appeal “unless the district court

has first addressed it or unless the record is sufficiently

developed to allow [us] to evaluate the claim on its merits.”

United States v. Villegas-Rodriguez , 171 F.3d 224, 230 (5th Cir.

1999).

ANALYSIS

I. The Jury Instruction the District Court Gave

Bickham argues that the District Court’s jury instruction was

plainly erroneous. The elements of tax evasion are willfulness,

existence of a tax deficiency, and an affirmative act constituting

an attempted evasion of the tax. United States v. Townsend , 31

F.3d 262, 266 (5th Cir. 1994). Bickham argues that the instruction

the District Cou rt gave failed to advise the jury that it had to

find that Bickham committed an affirmative evasive act in order to

convict him.

The District Court instructed the jury tha t to convict

Bickham, it had to find beyond a reasonable doubt:

First, that the defendant owed substantially more tax than he4

reported on his 1992, 1993, and 1994 income tax returns because he

intentionally under reported his adjusted gross income;

Second, that when the defendant filed those income tax returns

he knew that he owed substantially more taxes to the government

than he reported; and

Third, that when Bickham filed his 1992, 1993, and 1994 income

tax returns, he did so with the purpose of evading payment of taxes

to the government.

The government correctly argues that because the filing of a

false return that understates the taxpayer’s income is an

affirmative act of evasion, see

, for example

, United States v.

Skalicky

, 615 F.2 d 1117, 1120 (5th Cir. 1980) (“The requisite

af firmative act can be found in the filing of false returns for

each year in the indictment”), the District C ourt’s instruction

sufficiently stated the elements of the offense.

II. The Jury Instruction the District Court Did Not Give

Bickham contends that the District Court abused its discretion

by rejecting two jury instructions he requested. The first read:

John Bickham, Sr., has been charged with failing to pay his

personal income tax. GCI, Inc., was a viable business entity.

The commiss ions or consulting fees paid to GCI were taxable

income of GCI and not John Bickham, Sr. If you find that GCI,

and not John Bickham, Sr., should have paid taxes on that

income, then you should find John Bickham, Sr., not guilty.

Bickham’s second requested instruction advised the jury that

if it found that GCI “is organized and established for a purpose

that is the equivalent of a business activity

. . . , the5

corporatio n remains a separate taxable entity. As a separate

taxable entity, it would be subject to corporate income tax on its

income, and that income would not be included in the owner’s

income.” That is, Bickham effectively requested that the District

Court instruct the jury to find him not guilty if GCI “is organized

and established for a purpose that is the equivalent of a business

activity.”

We will “not overturn the defendant[’s] conviction on the

ground that the district court omitted [his] instruction from its

jury charge unless ‘that instruction is legally correct, represents

a theory of defe nse with basis in the record which would lead to

acquittal, and

. . . that theory is not effectively presented

elsewhere in the charge.’” U nited States v. Duvall

, 846 F.2d 442,

447 (5th Cir. 1987) (citations omitted).

Bickham’s first proposed instruction has no basis in the

record and is not legally correct. It has no basis in the record

because

– in Bickham’s word’s – GCI was a “paper company,” not a

“viable business entity.” The instruction is legally incorrect

because the amounts paid to GCI were Bickham’s taxable income, not

GCI’s. The second instruction was imp roper because nothing

suggests that GCI was organized or operated for any legitimate

business purpose during the years in question.

III. The Indictment

Bickham argues that the indictment failed to alle ge all the

elements of tax evasion. An indictment under 26 U.S.C. § 7201 must6

allege the elements of tax evasion described above: willfulness,

existence of a tax deficiency, and an affirmative act constituting

an attempted evasion of the tax. U nited States v. Townsend

, 31

F.3d 262, 266 (5th Cir. 1994). Bickham argues that the indictment

alleged only willful non-reporting of income, not an affirmative

attempted tax-evasive act. B ickham also argues that the indictment

did not allege a tax deficiency.

We re view indictments with “maximum liberality,” s ee United

States v. Ramirez , 233 F.3d 318, 323 (5th Cir. 2000). While the

indictment did not use the phrase “tax deficiency,” each count of

the indictment stated that Bickham “did willfully attempt to evade

and defeat a large part of the income tax due and owing by him.”

Because “an additional tax due and owing” constitutes a tax

deficiency, the indictment sufficiently stated that element of the

crime of attempted evasio n. S ee United States v. Schafer

, 580

F.2d 774, 777 (5th Cir. 1978). The indictment also alleges an

affirmative act of evasion. Affirmative acts of evasion include

the filing of a false return and, more generally, acts that are

likely to mislead or conceal. S ee Skalicky

, 615 F.2d at 1120;

Spies v. United States , 317 U.S. 492, 499 (1943). Since the

indictment alleged that Bickham willfully attempted to evade income

tax “by filing and causing to be filed

. . . a false and fraudulent

U.S. Individual Income Tax Return,” the indictment suf ficiently

alleged the required evasive act.

IV. Sophisticated Concealment7

Bickham argues that the Distri ct Court erroneously enhanced

his sentence on account of his so phisticated concealment of his

crime. U.S.S.G. § 2T1.1(b)(2) instructs courts to increase an

offender’s base offense level by two levels if the offense involved

sophisticated concealment. The commentary to the Guidelines, which

is authoritative , identifies “hiding assets or transactions, or

both, through the use of fictitious entities, corporate shells, or

offshore bank accounts” as examples of sophisticated concealment.

See United States v. Stinson , 508 U.S. 36, 38 (1993).

Since Bickham hid assets and transactions through the use of

a corporate shell, GCI, the District Court did not err in enhancing

his sentence.

V. Ineffective Assistance of Counsel

Bickham argues that his counsel was unconstitutionally

ineffective at sentencing. We do not review an ineffective

assis tance claim on appeal “unless the district court has first

addressed it or unless the record is sufficiently developed to

allow [the Court] to evaluat e the claim on its merits.” U nited

States v. Villegas-Rodriguez

, 17 1 F.3d 224, 230 (5th Cir. 1999).

Bickham did not raise in the district court the ineffective

assistance at sentencing claim. Bickham, however, did before

sentencing file an affidavit complaining of counsel’s

representation at trial. The District Court conducted a colloquy

with Bickham at a short hearing sometime before his sentencing

concerning the quality of his trial representation. After hearing8

Bickham’s account of his counsel, the District Court concluded that

Bickham had received “very competent representation.” The court

then granted Bickham’s counsel extra time to prepare objections to

the Pre-Sentence Report and postponed his sentencing by a month.

Id. At sentencing, Bickham did not again raise the issue of

ineffective assistance of counsel.

While the District Court knew of Bickh am’s dissatisfaction

with his counsel’s performance at trial, the court did not address

Bickham’s claim tha t his counsel was ineffective at sentencing.

Accordingly, we decline to consider this claim on this direct

appeal.

AFFIRMED.