UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4066

JERRY L. MARTIN,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4067

SADIE I. MARTIN,

Defendant-Appellant.

Appeals from the United States District Court

for the Eastern District of Virginia, at Richmond.

James R. Spencer, District Judge.

(CR-96-72)

Submitted: August 26, 1997

Decided: September 29, 1997

Before HALL and MOTZ, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

Aubrey F. Hammond, Jr., Richmond, Virginia; Steven D. Goodwin,

Richmond, Virginia, for Appellants. Helen F. Fahey, United States

Attorney, John C. McDougal, Special Assistant United States Attorney, Richmond, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

A jury convicted Jerry L. Martin and Sadie I. Martin of six counts

of income tax evasion in violation of 26 U.S.C.§ 7201 (1994), for the

tax years 1985 to 1989 and 1991. The district court sentenced the

Martins to eighteen months imprisonment and three years of supervised release. They noted a timely appeal and counsel for each filed

a formal joint brief pursuant to Anders v. California, 386 U.S. 738

(1967), in which they certified that there were no meritorious issues

for appeal. Nonetheless, counsel presented two issues for our consideration: whether the district court erred in denying a motion for judgment of acquittal and whether the district court erred in finding that

the Martins had engaged in obstruction of justice. The Martins filed

a supplemental brief. For the following reasons, we affirm.

During all years material to this case, the Martins were husband

and wife. Mr. Martin was employed as an independent insurance

agent selling insurance policies for various insurance companies on

a commission basis. The Martins filed income tax returns for the 1985

through 1990 tax years. They were audited for the years 1985 through

1987, and their tax liability for these years was determined by a consent order filed in the United States Tax Court by the Internal Revenue Service (the Service) and the Martins.

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The Service commenced an additional audit for the 1988 and 1989

tax years. The Service determined the Martins' tax liability for these

years and the Martins did not timely challenge this determination in

the Tax Court. During this same period, the Martins' 1991 tax return

came due and, after filing for two extensions, the Martins failed to file

a return for that year and subsequent years. The Service determined

the Martins' 1991 tax liability by considering all identifiable income

and expense items traceable to them. The Martins do not object to the

amount of taxes sought by the Service.

The evidence at trial demonstrated that after the Service issued a

Notice of Tax Levy on the Martins for the unpaid taxes, they

attempted to hide their income in a number of ways. They closed their

bank account; Mr. Martin thereafter cashed all his insurance commissions at check-cashing establishments up to the date of sentencing.

The Martins also transferred jointly owned property to their daughter.

Additionally, the Martins directed that the proceeds from the sale of

a rental property be divided into four checks; they passed at least

some of the proceeds through the bank accounts of others, making

tracing of these proceeds difficult. Finally, Mr. Martin asked his

insurance companies to make his commission checks payable to a

company that had no record of filing tax returns.

In their defense, the Martins asserted that they believed in good

faith that they were not subject to the tax laws because, inter alia, the

United States was not a legal entity, and the statutes at issue were not

codified.

Defense counsel raise two issues on appeal. The first is whether the

district court erred in denying the Martins' Fed. R. Crim. P. 29 motion

for a judgment of acquittal. To sustain a conviction the evidence,

when viewed in the light most favorable to the government, must be

sufficient for a rational trier of fact to have found the essential elements of the crime beyond a reasonable doubt. See Glasser v. United

States, 315 U.S. 60, 80 (1942); United States v. Tresvant, 677 F.2d

1018, 1021 (4th Cir. 1982). The Government is entitled to all reasonable inferences from the facts established. Tresvant, 677 F.2d at 1021.

In order to demonstrate a violation of § 7201, the Government must

prove willfulness, a substantial tax deficiency, and an affirmative act

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constituting attempted tax evasion. United States v. Goodyear, 649

F.2d 226, 227-28 (4th Cir. 1981). The jury may infer a "willful

attempt" from "any conduct having the likely effect of misleading or

concealing." Id. at 228. "Willfulness" is the "voluntary, intentional

violation of a known legal duty." Cheek v. United States, 498 U.S.

192, 201 (1991). A defendant can negate his awareness of a known

legal duty by demonstrating that he believed that his conduct did not

violate the law; this belief does not have to be objectively reasonable

but it does have to have a good faith basis. Id .

The Government presented evidence that after the Martins received

a notice of tax levy from the Service they closed their bank account,

transferred property of substantial value to others, and took other

steps to avoid detection of income. From this evidence a rational jury

could conclude that the Martins' conduct was willful. Thus, this evidence is sufficient to support their convictions. We note that in convicting the Martins, the jury apparently did not credit their testimony

that they had a good faith belief that the federal income tax laws did

not apply to them. A jury's credibility determinations will not be disturbed on appeal. See United States v. Saunders , 886 F.2d 56 (4th Cir.

1989).

The remaining claim raised by counsel is that the district court

erred in finding that the Martins had engaged in obstruction of justice.

Although the presentence report recommended an enhancement of the

Martins' base offense levels for obstruction of justice, the record

reveals that the district court sustained the Martins' objection to this

enhancement. Thus, this claim is baseless.

The Martins raise several additional claims in their supplemental

brief. They contend that their misunderstanding of the tax laws, which

assertedly negated their wilfulness, was justified because § 7201 was

never codified for enactment into "positive law." In fact, § 7201 has

been codified. See 26 U.S.C. § 7201 (1994).

They next allege that the Government used false information in the

Service's "`Individual Master File'" to show a violation of 28 U.S.C.

§§ 1291, 1294(1) (1994). These statutes delineate our jurisdiction;

they do not proscribe criminal offenses. Moreover, the Martins have

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not demonstrated that the Government relied on any false information

to support their convictions.

The Martins also contend that the district court abused its discretion by denying their motion for discovery because the Government

failed to disclose exculpatory material contained in the "Individual

Master File." See Brady v. Maryland, 373 U.S. 83 (1963). However,

the Martins failed to establish the existence of the alleged exculpatory

evidence; they merely make a conclusory allegation that the file states

that they owe no taxes.

Further, the Martins assert that they did not obstruct justice. As discussed above, the district court did not enhance their base offense

levels for obstruction of justice. Finally, the Martins contend that they

were sentenced in violation of the Ex Post Facto Clause because their

convictions were based on conduct that occurred between 1985 and

1987, and yet they were assertedly not sentenced in accordance with

the pre-guideline law in effect at that time. This claim is meritless

because their criminal conduct continued well after November 1,

1987 when the Sentencing Guidelines became effective. See United

States v. Meitinger, 901 F.2d 27, 28 (4th Cir. 1990).

Accordingly, we affirm the Martins' convictions and sentences.

This court requires that counsel inform his client, in writing, of his

right to petition the Supreme Court of the United States for further

review. If his clients request that a petition be filed, but counsel

believes that such a petition would be frivolous, then counsel may

move in this court for leave to withdraw from representation. Counsel's motion must state that a copy thereof was served on his clients.

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 in the decisional process.

AFFIRMED

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