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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-40333

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

THOMAS B PARKER; MARGARET A PARKER,

Defendants-Appellants

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 1:08-CR-99-1

Before GARZA, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

Thomas B. Parker and Margaret A. Parker appeal their convictions for tax

fraud and for failing to file tax returns, and for aiding and abetting each other

in the same, in violation of 26 U.S.C. §§ 7203 and 7206(1). Thomas Parker

argues that the evidence was not sufficient to support his conviction for tax

fraud. Because Thomas Parker did not renew his motion for acquittal at the

close of all the evidence, this court reviews the evidence only for a manifest

United States Court of Appeals

Fifth Circuit

F I L E D

December 21, 2009

Charles R. Fulbruge III

Clerk
No. 09-40333

2

miscarriage of justice, looking to whether the record is devoid of evidence of

guilt. See United States v. Green, 293 F.3d 886, 895 (5th Cir. 2002).

To support a conviction for filing a false tax return under § 7206(1),

evidence must be sufficient to show that: (1) the defendant wilfully made and

subscribed to a materially false tax return; (2) the return contained a written

declaration that it was made under penalties of perjury; and (3) the defendant

did not believe that the return was true as to every material matter. United

States v. Clayton, 506 F.3d 405, 410 (5th Cir. 2007). 

Parker argues only that he did not “willfully” defraud the Government.

Because Parker does not challenge the sufficiency of the evidence to support the

other § 7206(1) criteria, this court need not address the same. See Greenlaw v.

United States, 128 S. Ct. 2559, 2564 (2008). Parker does not elaborate on what

constituted his “legitimate confusion.” Moreover, his argument ignores that a

certified public accountant, using Parker’s computerized accounting records for

his business, informed Parker that he owed taxes. Parker acknowledged his tax

liability by entering into an installment plan with the IRS to pay the tax. Thus,

the record is not devoid of evidence that Parker had knowledge that he should

have reported more income than he did when he filed amended 1040-X returns

and that he was therefore guilty of tax fraud. See United States v. Bishop, 412

U.S. 346, 360 (1973).

To establish a violation of § 7203, the Government had to prove (1) that

Parker was required to file a return; (2) that he failed to file a return; and

(3) that the failure to file a return was willful. See Clayton, 506 F.3d at 408.

Parker again argues only that the Government failed to prove that he “willfully”

failed to file tax returns because he had a “reasonable belief that he was not

liable to file a tax return.” Parker points to nothing to support his assertion that

his belief was reasonable. Moreover, evidence from multiple sources indicated

that the Parkers’ business earned substantial income for the years in question.

Therefore, any purported belief that he was not required to file an income tax
No. 09-40333

3

return was not reasonable. The record is not devoid of evidence that Thomas

Parker was guilty of failing to file tax returns for the years 2002 through 2006.

Margaret Parker argues that the district court committed reversible error

when it admitted Bonnie Edwards’s documents titled “Summary of Taxpayer

Contact” because the summaries were hearsay evidence. The Government

argues, among other things, that its exhibits 18A and 18B were not hearsay

because they were not offered for the truth of the matter asserted therein.

Exhibit 18B contained only the statements of Bonnie Edwards and is,

therefore, not hearsay. See FED. R. EVID. 801(c). To the extent that Exhibit 18A

quoted from a memorandum by the Parkers that was previously delivered to

Edwards and was ostensibly offered to prove Margaret Parker’s complicity in tax

fraud, it is hearsay. See id. 

The exhibit, however, falls under the hearsay exception for business

records. Although Edwards had retired by the time of trial, her notes were made

on IRS Form 9297, which is titled “Summary of Taxpayer Contact.” That the

notes were made on an IRS form indicates that it was the regular practice of the

IRS to make such a record. See FED. R. EVID. 803(6). Furthermore, Edwards

testified that the IRS required her to keep such records. Edwards recognized the

records and knew they were from her office. See United States v. Box, 50 F.3d

345, 356 (5th Cir. 1995). Edwards was therefore a qualified witness, and she

sufficiently authenticated Exhibit 18A such that it falls under the exception to

hearsay enunciated in Rule 803(6). FED. R. EVID. 803(6); Box, 50 F.3d at 356.

The district court did not abuse its discretion in allowing Exhibit 18A into

evidence. See United States v. Franklin, 561 F.3d 398, 404 (5th Cir.), cert.

denied, 129 S. Ct. 2848 (2009). 

AFFIRMED.