UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4464

JIMMY LEE WILLIAMS,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4603

JIMMY LEE WILLIAMS,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4776

JIMMY LEE WILLIAMS,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4777

JIMMY LEE WILLIAMS,

Defendant-Appellant.
UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4809

JIMMY LEE WILLIAMS,

Defendant-Appellant.

Appeals from the United States District Court

for the Eastern District of North Carolina, at Greenville.

James C. Fox, District Judge.

(CR-96-41-F)

Submitted: September 15, 1998

Decided: October 16, 1998

Before WIDENER and WILLIAMS, Circuit Judges, and HALL,

Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Douglas Kingsbery, THARRINGTON & SMITH, Raleigh, North

Carolina, for Appellant. Janice McKenzie Cole, United States Attorney, Anne M. Hayes, Assistant United States Attorney, David J.

Cortes, Assistant United States Attorney, Raleigh, North Carolina, for

Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

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OPINION

PER CURIAM:

Jimmy Lee Williams appeals from his conviction for causing or

aiding and abetting in the presentation of false claims upon or against

the United States in violation of 18 U.S.C. #8E8E # 2, 287 (1994) (Appeal

No. 97-4809). Williams contends that the district court erred in directing a verdict as to whether the forms submitted to the Internal Revenue Service ("IRS") were "claims upon or against the United States,"

and he contends that the indictment was at a fatal variance with the

evidence presented at trial. Finding no error, we affirm Williams'

conviction. Before entry of the judgment and commitment order, Williams, acting pro se, also noted appeals from the district court's orders

denying his pro se motion for recusal of the district court judge

(Appeal No. 97-4464), denying his pro se motion to set aside the verdict (Appeal No. 97-4603), denying his motion to relieve court

appointed counsel (Appeal No. 97-4776), and denying his motion for

a new trial (Appeal No. 97-4777). On appeal, Williams raises no challenges to the denial of his prejudgment motions. We therefore affirm

the district court's orders denying his motions for recusal of the district court judge, to set aside the verdict, to relieve counsel, and for

a new trial. See Fed. R. App. P. 28(a)(6); Shopco Distrib. Co. v. Commanding Gen., 885 F.2d 167, 170 n.3 (4th Cir. 1989).

I.

During the spring of 1993, White's Accounting and Associates of

Jacksonville, North Carolina ("White's"), was an authorized tax preparation service, which offered a refund anticipation loan program pursuant to which Bank One loaned money to taxpayers who anticipated

a refund on their federal income taxes. To obtain the loan, taxpayers

would provide pertinent tax information to the tax preparation service,

complete a loan application, and sign a Form 8453 ("U.S. Individual

Income Tax Declaration for Electronic Filing") and a Form 1040A

("U.S. Individual Income Tax Return"). White's then electronically

transmitted the income tax information to the IRS. After the IRS

acknowledged the claim for a refund, White's would issue to the taxpayer an official cashier's check drawn on Bank One. The check

issued to the taxpayer represented a loan from the bank, secured by

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the assignment of the taxpayer's anticipated tax refund. The bank and

the tax preparation service charged fees for this service; therefore, the

loan amount was less than the anticipated refund amount. Once

approved, the IRS sent the taxpayer's refund check to Bank One to

repay the loan.

Jimmy Lee Williams worked as a "collection point" for White's.

He collected tax information and documents from tax clients,

recorded the relevant information on "interview sheets," and delivered

the materials to White's for processing. Once the IRS approved the

refund, White's printed a check payable to the taxpayer, and Williams

delivered the check to the taxpayer.

Williams, Jeffrey Daniels, and John Haugabrook devised and carried out a scheme by which they submitted to White's Forms W-2 and

Forms 1040 that contained false employment and wage information.

White's then prepared electronic tax returns claiming refunds for the

taxpayers. These returns were sent electronically, and White's also

sent to the IRS by mail a signed Form 8453, which reiterated the relevant tax information and claim for refund, and on which the taxpayer

verified "under penalties of perjury" that the representations on the

electronically filed Form 1040 were "true, correct, and complete."

After the IRS approved the refund claim, White's issued the refund

check drawn on Bank One. Williams delivered the check and, accompanied by Daniels, escorted the taxpayer to the bank to cash the

check. The taxpayer would keep a small amount of the money and

give the rest to Williams and Daniels.

II.

Williams argues that the district court erred in directing a verdict

for the government on the issue of whether the Forms 8453 received

by the IRS were "claims upon or against the United States" under 18

U.S.C. § 287. Williams asserts that this was an essential element of

the offense and that the jury should decide the issue. The core of Williams' argument is that what constitutes a claim is a factual determination, rather than a legal determination.

To obtain a conviction under § 287, the government was required

to prove that Williams (1) presented or caused to be presented a claim

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on or against the United States, and (2) knew the"claim to be false,

fictitious or fraudulent." United States v. Ewing, 957 F.2d 115, 119

(4th Cir. 1992). The instructions at issue were:

I would like to possibly help you to clarify a legal issue.

And I want to instruct you that as a matter of law, a signed

tax return ultimately filed with the United States on which

there is a claim for a refund, is a claim against the United

States, regardless of the nature of the instrument by which

the claim is ultimately paid, and indeed, regardless of

whether the claim is ultimately paid at all.

* * *

If you find that the Defendant submitted information to

White's Accounting & Associates knowing and intending

that White's Accounting & Associates would in turn submit

a claim based upon such information to the IRS, and that

White's did submit a claim to the IRS, then you may find

the first element of this offense satisfied for each such claim

a signed Form 8453 must have been received by the Internal

Revenue Service.

Williams contends that these instructions assume, as a matter of

law, that a signed Form 8453 is a claim upon or against the United

States. Rather, Williams asserts that the jury should have been given

the opportunity to consider whether the forms received by the IRS

were "claims upon or against the United States."

The instructions define for the jury what constitutes a "claim"

under § 287. Courts have repeatedly defined as a matter of law what

constitutes a claim against the government.* See United States v.

_________________________________________________________________

*Indeed, Williams sought an instruction which defined a "claim," in

these terms: "as a matter of law, a signed return is a claim." He also

repeatedly sought to admit an Internal Revenue Bulletin that stated that

the IRS does not consider a tax return sent electronically to be filed until

the IRS receives a signed Form 8453, verifying under penalties of perjury that the information on the electronically sent Form 1040 was accurate. When these two things happen, Williams' counsel acknowledged

that a claim is made.

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Jackson, 845 F.2d 880, 881 (9th Cir. 1988) (Form TFS 1133 submitted to the Treasury Department is a "claim" under § 287); United

States v. Duncan, 816 F.2d 153, 155 (4th Cir. 1987) ("voucher for

reduction of liability for advanced funds is a `claim' under Section

287"); United States v. Drape, 668 F.2d 22, 25 (1st Cir. 1982) (signing and filing false tax return to obtain undue refund constitutes a

claim in violation of § 287). Contrary to Williams' assertion, the

instructions do not direct the jury to find the existence of the first element of the offense, i.e. that Williams presented a claim upon or

against the United States.

The district court's instructions defining for the jury what constitutes a "claim" under § 287 did not direct a verdict as to whether Williams had filed a claim. Rather, the instructions merely defined a legal

term. The jury was left to decide the factual components of the first

element of the offense: whether Williams caused returns to be filed

with the IRS, whether the IRS received the returns, whether the

returns were signed, whether the returns contained claims for refunds,

whether the claims for refund were false, and whether Williams knew

the claims were false.

III.

Williams contends that there was a fatal variance in this case

between the indictment, the proof, and the district court's instructions

regarding what constituted a "claim upon or against the United

States." Specifically, he asserts that the indictment alleged that the

claim submitted to the IRS consisted of a Form 1040 and a Form

8453 and that the falsehood was contained on the Form 1040. However, the proof at trial showed that no Forms 1040 were signed or submitted to the IRS. Rather, return information taken from Forms

1040A was transmitted to the IRS by White's via wire transmission.

Williams also contends that the proof was at variance with the district

court's instructions because an IRS witness testified that the claim

was the electronically transmitted tax information, but the district

court instructed the jury as a matter of law that a signed Form 8453

was a claim against the government. Williams failed to raise these

issues at trial; therefore, our review is for plain error.

A variance is present when the evidence at trial materially differs

from the allegations in the indictment. See Dunn v. United States, 442

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U.S. 100, 105 (1979); United States v. Kennedy , 32 F.3d 876, 883

(4th Cir. 1994). Acknowledging that the proof at trial cannot mirror

the allegations in the indictment, courts have afforded a reasonable

amount of flexibility to the government and will not find a variance

fatal, so long as the defendant was given notice of the "core of criminality" sought to be proven at trial. See United States v. Patino, 962

F.2d 263, 266 (2d Cir. 1992); United States v. Heimann, 705 F.2d

662, 666 (2d Cir. 1983). Thus, a variance will be overlooked unless

it affects the defendant's substantial rights and results in actual prejudice to him. See Fed. R. Crim. P. 52(a); Kennedy, 32 F.3d at 883;

United States v. Brewer, 1 F.3d 1430, 1437 (4th Cir. 1993).

Because Williams was provided with adequate notice of the

offenses charged to enable him to prepare a defense and because the

indictment was sufficiently particular as to protect him from multiple

prosecution for the same offense, we find the variance asserted by

Williams to be harmless. See Brewer, 1 F.3d at 1437. Moreover, we

find no material variance between the indictment and the proof, or the

instructions and the proof. The indictment alleged that Williams

caused to be filed Forms 1040 and 8453. The IRS custodian of

records testified that the electronically filed tax information was considered an electronically filed Form 1040. Additionally, the signature

document for the electronically filed Form 1040 is the Form 8453. On

this form, the taxpayer verifies under penalty of perjury that the information on the electronically filed form is true, correct, and complete.

We find no material difference between the indictment and the proof,

or between the proof and the jury instructions.

IV.

In conclusion, we affirm the district court's orders denying Williams' motions for recusal of the district court judge, to set aside the

verdict, to relieve counsel, and for a new trial. We also affirm Williams' convictions. 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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