District Judge, Southern District of Mississippi, sitting by designation. *

 Pursuant to Fifth Circuit Rule 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not be published and is not precedent except under the limited circumstances set forth in Fifth

Circuit Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-30567

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

SAMUEL H. THOMAS,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Louisiana, Monroe Division

USDC No. 3:06CR30031-01

Before JONES, Chief Judge, ELROD, Circuit Judge, and GUIROLA, District

Judge.

*

PER CURIAM:**

Following a jury trial, defendant-appellant Samuel H. Thomas was

convicted of two counts of filing a false tax return and one count of tax evasion.

He timely appealed both his convictions and the restitution ordered. We

AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

July 20, 2009

Charles R. Fulbruge III

Clerk
No. 08-30567

2

I. BACKGROUND

Samuel Thomas appeals his conviction on two counts of filing a false tax

return, 26 U.S.C. § 7206(1), and one count of tax evasion, 26 U.S.C. § 7201.

Thomas, a self-described country lawyer in Louisiana, employed an assistant,

Matra Hamilton, and an accountant, Louis Bradley, to manage his accounts.

The false tax return convictions concern his 1999 corporate income tax return,

which reported a gross income of $436,850 (as against actual gross income of

$1,231,681), and his 1999 individual tax return, which reported a taxable income

of $66,575 despite purchases and disbursements of approximately $310,000 that

year. Thomas concedes that his books were not monuments to organization, but

denies that his behavior was criminal.

The evasion conviction stems from Thomas’s failure to make a particular

disclosure during negotiations with the Internal Revenue Service (IRS)

regarding overdue tax liability in excess of $407,000. The negotiations were

initiated on grounds of “doubt as to collectibility,” i.e., Thomas’s inability to pay.

At the time, Thomas’s law firm was engaged in litigating and mediating a case

(“the Wiley matter”) it had taken on a contingency fee basis. Thomas did not

disclose in his negotiations with the IRS the possibility that he might receive

attorney’s fees in the case; following settlement, he received $557,193 for his

work on Wiley.

Bradley, the accountant, was tried with Thomas. Both were acquitted of

conspiracy to file a false tax return, and Bradley was also acquitted on two

counts of aiding and assisting and making and subscribing a false tax return.

The district court denied Thomas’s motion for a judgment of acquittal.

II. DISCUSSION

On appeal, Thomas challenges (1) the sufficiency of the evidence for all

three convictions, (2) the propriety of the deliberate ignorance jury instruction,
No. 08-30567

 Thomas also asserted an inconsistent verdicts argument below, but does not raise it 1

on appeal except to allude to it in a couple pages of his reply brief. It is unclear whether this

claim is even recognized in this circuit, see United States v. Agofsky, 458 F.3d 369, 375 (5th

Cir. 2006) (quoting United States v. Powell, 469 U.S. 57, 69 (1984)), but in any event we deem

it waived here. See United States v. Jackson, 426 F.3d 301, 304 n.2 (5th Cir. 2005) (claims

raised on appeal for the first time in a reply brief are waived); United States v. Thames, 214

F.3d 608, 612 n.3 (5th Cir. 2000) (inadequately briefed claims are waived).

 The elements of the offense are that: (1) a false return was made and signed, (2) the 2

false entry was material, (3) the return contained a written declaration that it was made

under the penalties of perjury, (4) the defendant did not believe that the return was true and

correct when signed, and (5) that the defendant signed willfully and with specific intent to

violate the law. United States v. Bishop, 264 F.3d 535, 552 (5th Cir. 2001).

3

and (3) the restitution ordered. He conceded the third issue at oral argument; 1

accordingly, we consider only the first two.

A. Sufficiency of the Evidence

Thomas timely moved for a judgment of acquittal, thus preserving his

challenge to the sufficiency of the evidence. Accordingly, we review the denial

of that motion de novo. United States v. Harris, 566 F.3d 422, 435 (5th Cir.

2009). “Under this standard, we determine whether a reasonable jury could find

that the evidence establishes the guilt of the defendant beyond a reasonable

doubt.” United States v. Williams, 507 F.3d 905, 908 (5th Cir. 2007). We view

the evidence in the light most favorable to the verdict and draw all reasonable

inferences and credibility choices from the evidence to support the verdict.

Harris, 566 F.3d at 435.

1. Two counts of making and subscribing a false tax return

Thomas was convicted of making and subscribing a false tax return, 26

U.S.C. § 7206(1). He claims that Hamilton, his assistant, dealt with Bradley, 2

and that he was not involved with the preparation of the 1999 corporate and

individual returns. Thomas admits he signed both the returns, but maintains

he did so without reading them and that he hired Hamilton and Bradley so that
No. 08-30567

 The jury was instructed on the defense of good faith reliance on a tax professional. 3

The defense requires (1) full disclosure and (2) good faith reliance. See, e.g., United States v.

Charroux, 3 F.3d 827, 831 (5th Cir. 1993). On appeal, Thomas only alludes to this defense,

and not until his reply brief. The Government concedes that Thomas provided Bradley with

all of his bank statements, but argues that this disclosure was nevertheless incomplete

because Thomas did not provide explanations for the various deposits and expenditures.

One specific incident illuminates, and provides support for, the jury’s decision to find

that Thomas was not truthful with Bradley. Bradley sent over a draft of the 1999 return in

February 2000. Hamilton, Thomas’s assistant, told Bradley that the corporate income was too

high and should be adjusted downward. Bradley complied. The jury could have reasonably

believed that this instruction did not really come from Hamilton, but from Thomas. If the jury

so concluded, it would have meant that Thomas failed to fully disclose financial information,

which would undermine the first prong of this defense. See id.

4

he did not have to worry about his taxes and could avoid liability. The basis of 3

his sufficiency challenge is that any errors were Bradley’s fault, and that any

fault attributable to Thomas was mere negligence.

Considering the significant disparity between the income Thomas reported

on his corporate income tax return and his law practice’s actual income, and

viewing the evidence in the light most favorable to the verdict, the jury was

entitled to disbelieve this excuse. In 1999, Thomas’s law practice had $1,231,681

in gross income versus the $436,850 he reported. The fees Thomas received from

the Wiley case alone exceeded the entire amount of corporate gross income he

reported that year. (Thomas received checks for his work in the Wiley matter

totaling approximately $647,193 in 1999.) In addition, as discussed supra at

note 3, Bradley testified that he sent drafts of the two returns to Thomas’s office

in February 2000 and that Hamilton called and stated that Thomas’s income

was too high on the draft. Bradley testified that he then made some

questionable changes to the return, reducing his income and increasing his

expenses. He further testified (though Thomas disputed) that Thomas reviewed

the tax forms before Bradley submitted them. On this record, the jury was

entitled to credit Bradley’s version of events over Thomas’s.
No. 08-30567

 Thomas claims that the car was a business expense because his wife helped out with 4

his firm. Thomas’s and his wife’s joint individual return lists Thomas’s wife’s occupation as

housewife, not as a firm employee. Even without this purchase, Thomas obviously spent more

on personal items than he reported in individual gross income.

 26 U.S.C. § 7201. The elements of evasion are (1) willfulness, (2) the existence of a

5

tax deficiency, and (3) an affirmative act constituting an evasion or an attempted evasion of

the tax. United States v. Nolen, 472 F.3d 362, 377 (5th Cir. 2006).

5

Regarding Thomas’s individual return, the disparity in gross individual

income reported is striking. He reported $66,575 in personal income in 1999, but

spent approximately $310,000 on personal expenses that year, including

expensive gifts for his wife, a $53,000 Lexus for his wife, $50,000 to buy a 4

certificate of deposit and fund a bank account for his wife, gifts to relatives

exceeding $22,000, a donation to his church for $25,000, a $5,000 campaign

contribution, and other disbursements, including purchases of jewelry, furniture,

and electronics.

After reviewing evidence of these purchases and the circumstances of

Thomas’s filing his tax return, the jury was entitled to reject Thompson’s claim

that he simply never looked at his returns before signing them. Because the jury

apparently concluded that Thompson was at a minimum aware of the gross

income he reported, the jury could also have been justified in concluding that

Thompson knew (or was deliberately ignorant) that this figure was far too low

considering corporate revenue and personal expenditures.

In sum, a rational jury could have concluded beyond a reasonable doubt

that Thomas knew how much money his business was making and that he

misreported that figure willfully and with specific intent to violate the law.

2. Evasion count5

a. Relevant facts

In 1994, Thomas pled guilty to two counts of failing timely to file several

tax returns. On December 7, 1995, he was released from prison and served the
No. 08-30567

6

remainder of his sentence in a halfway house. He still owed the IRS $407,000

for unpaid taxes. At some point, he took on the Wiley matter mentioned above,

a personal injury case in which he represented Draina Wiley in a suit against

Traditional Trucking (his license to practice law had not yet been suspended).

Thomas engaged the help of three other lawyers, and the four of them entered

a contingency fee agreement with Wiley for forty percent of any recovery, which

the lawyers agreed to divide evenly.

The suit was filed on November 5, 1996, and in May 1997, Producers Feed

Company was added as another defendant. On August 20, 1997, Traditional

Trucking agreed to a $900,000 settlement, but at the last minute, attempted to

add an additional term that Producers Feed Company also be released from

liability. Wiley refused and litigated the settlement agreement. On November

21, 1997, the defendant’s suspension from the practice of law began.

On November 23, 1997, Thomas wrote the IRS to explain that his bar

license was being suspended and that he would not be able to make the

payments on his outstanding $407,000 tax liability. He claimed that friends

were willing to lend him $43,000, but only if that would extinguish the entire

liability. This letter began the offer in compromise (OIC) process. On January

14, 1998, a complying OIC was submitted, which included the required Form

656. An additional OIC was submitted on September 10, 1998, with an

addendum on February 25, 1999. As the reason for submitting the OIC, each

form has checked “doubt as to collectibility,” i.e. insufficient assets to pay the

outstanding tax liability of $407,000.

An OIC also requires forms 433-A and 433-B, information statements for

individuals and businesses, respectively. Thomas submitted his 433-A dated

April 8, 1998, which he updated on September 23, 1998. Thomas never signed

this form; Bradley did. The form asks about anticipated increases in income,

and the “no” box is checked. The form also inquires about court proceedings.
No. 08-30567

 It took approximately one year for Thomas to receive payment. The check he received 6

was dated August 31, 1999.

7

The “yes” box is checked, but the IRS agent responsible testified that the only

lawsuit disclosed to him was a suit between Thomas and some family members

over an estate—not the Wiley matter.

Thomas’s 433-B is dated November 25, 1997, and was updated

December 31, 1998. He signed this form, but it is not clear who updated it. (The

updates are penciled-in, and the signature block is initialed.) The form asks for

“additional financial information regarding financial condition.” Thomas merely

states that the firm is current on its tax liabilities.

On August 25, 1998, Wiley prevailed on summary judgment. This ruling

meant the $900,000 settlement agreement with Traditional Trucking, if upheld

on appeal, was enforceable and that Thomas would receive a quarter of the fortypercent contingency fee, or $90,000. However, none of the documents Thomas 6

submitted after August 25, 1998, included any reference to this potential, and

substantial, increase in income. The relevant documents are: (1) the updated

433-B, dated December 31, 1998, (2) the updated 433-A, dated September 23,

1998, (3) the amended OIC, filed September 10, 1998, and (4) the addendum to

the OIC, filed February 25, 1999.

Thomas also never disclosed the possibility of settlement with Producers

Feed Company. On February 11, 1999, Producers Feed Company offered to

settle for $1.5 million, which was rejected. Nevertheless, the OIC addendum,

dated February 25, 1999, did not mention a possible increase in income. The

case went to mediation, and on March 31, 1999, the defendant received $557,193

in attorney’s fees from a settlement with Producers Feed Company. 

Thomas neither updated his OIC or his 433 forms to reflect the

settlements, nor informed the IRS of the settlements in any way. On April 27,

1999, the IRS, unaware of the settlement, accepted Thomas’s offer of
No. 08-30567

8

compromise. The compromise agreement states, “Based upon the taxpayer’s

projected future income, the service [IRS] believes collection of the remaining

liability is in doubt.”

On May 4, 1999, Thomas borrowed money from Cross Keys bank to pay

the $43,000. Just a month earlier he was issued a check for over $550,000 from

the Producers Feed Company settlement.

On December 2, 2002, Thomas answered questions from an IRS agent in

a letter. Among these answers, Thomas denied having any involvement in the

Wiley matter. According to the Government, evidence of Thomas’s involvement

in the suit consisted of (1) paying investigators, (2) representing to Traditional

Trucking in writing that he represented Wiley, and (3) writing to Producers Feed

Company’s counsel regarding a prior meeting and a potential future settlement.

All of this allegedly occurred before Thomas’s license was suspended on

November 21, 1997—two days before he first contacted the IRS regarding an

OIC. Thomas also corresponded with one of Wiley’s other attorneys on

December 18, 1998, and complimented him on his handling of the case.

In these responses, Thomas also claimed that he provided Bradley with

the information for the 433-A. In addition, he claimed that the fees from the

Wiley case were reflected in his returns. Thomas wrote that he answered all

questions truthfully according to his knowledge at the time.

b. Discussion

Thomas’s argument on the evasion conviction is essentially two-fold. First,

he did not sign the 433-A and therefore cannot be liable for any of his attorney’s

misrepresentations. Second, he claims that he did not know the status of the

Wiley case and honestly doubted its outcome. In essence, he claims that he had

no duty to update his initial, truthful disclosures.

The Government disputes these claims. It maintains that even if the

forms themselves were truthful, the disclosures in the December 2, 2002, letter
No. 08-30567

 The Government also disputes Thomas’s contention that he had no duty to update his 7

initial disclosures once circumstances changed, but briefed no argument on that point. We

need not reach this issue, however, because without it there remains sufficient evidence in the

record on which the jury could have found evasion.

9

were untruthful, and therefore acts of evasion. The Government further

contends that obtaining the bank loan was an act of evasion intended to conceal

Thomas’s recent receipt of substantial assets. Finally, the Government argues

that the false tax returns themselves could have been an attempt to hide assets

to avoid paying the outstanding $407,000 liability.

7

The evidence adduced at trial was substantial. Based on the record

evidence, including that recounted above—namely, Thomas’s failure to disclose

the Wiley matter in his 433-A and 433-B, including in the updated versions of

these documents submitted after his client in Wiley prevailed in her fight to

enforce a prior settlement against one party, and after the other party proposed

a settlement that would yield Thomas hundreds of thousands of dollars; the OIC

addendum Thomas submitted after these developments that made no mention

of them; the bank loan he secured, giving the impression that he was short on

cash; and his denial of involvement with the Wiley matter—a reasonable jury

could conclude beyond a reasonable doubt that Thomas committed evasion.

B. Deliberate Ignorance Instruction

1. Standard of review and applicable law

Thomas claims there was insufficient factual basis to justify giving a

deliberate ignorance instruction. Such an instruction is justified where “the

evidence shows (1) subjective awareness of a high probability of the existence of

illegal conduct and (2) purposeful contrivance to avoid learning of the illegal

conduct.” United States v. Nguyen, 493 F.3d 613, 619 (5th Cir. 2007) (internal

quotation marks and citation omitted). Because Thomas objected to this

instruction at trial, this court reviews its propriety for abuse of discretion. Id.
No. 08-30567

10

2. Discussion

As an initial matter, the deliberate ignorance instruction pertains to

“knowledge,” which is not an element of evasion. The instruction, therefore, only

properly pertains to the two counts of filing a false tax return. Thomas’s

argument in his opening brief is cursory. He argues, again, that he hired

Bradley to avoid these problems and therefore did not intend to violate the law.

That motivation and conduct do not negate the justification for giving a

deliberate ignorance instruction under Nguyen. 493 F.3d at 619 (instruction

appropriate where defendant subjectively aware of high probability of illegal

conduct and engaged in purposeful contrivance to avoid learning of the illegal

conduct).

Further, sufficient evidence existed to support the instruction. First, the

evidence supports a “subjective awareness of a high probability of the existence

of illegal conduct.” Id. Thomas had first-hand knowledge that his personal and

corporate gross income exceeded the reported gross income. Regarding corporate

liabilities, Thomas clearly knew of the Wiley case’s settlement and of his fees for

$647,193, an amount exceeding his firm’s reported gross income of $436,850.

Bradley also testified that Thomas told him that Thomas kept a running log of

the financial status of each case; therefore, Thomas had a sense of how much

money his clients owed, which suggests knowledge of his firm’s finances.

Thomas made roughly $310,000 in personal expenditures in 1999. He very likely

knew these purchases and various checks were greater than his reported gross

personal income of $66,575. Moreover, in November 1999, Thomas submitted

a financial statement to Cross Keys bank on which he listed his income as

$200,000. This strongly suggested that Thomas knew both his corporate and

individual gross incomes were larger than those reported—the “subjective

awareness of a high probability of the existence of illegal conduct” that is the

first prerequisite of a deliberate ignorance instruction. Id.
No. 08-30567

11

The evidence also supports finding the second prerequisite, “purposeful

contrivance to avoid learning of the illegal conduct.” Id. Thomas notes in his

own brief his testimony that “he wanted to sign whatever Mr. Bradley placed in

front of him.” Also, Bradley was asked to discontinue sending monthly reports

to Thomas, suggesting deliberate ignorance. Thomas’s uncritical reliance on

Bradley and his assistant, Hamilton, was more than enough evidence to support

a jury instruction for deliberate ignorance regarding the first two counts of filing

a false tax return. The trial court did not abuse its discretion by giving the

instruction. See United States v. Bieganowski, 313 F.3d 264, 290–291 (5th Cir.

2002) (finding no abuse of discretion where a “jury could certainly infer from

th[e] evidence that [defendant] could have been aware of the presence of fraud,

but instead deliberately closed his eyes to it.”).

III. CONCLUSION

For the reasons set forth above, the judgment of the district court is

AFFIRMED as to all counts.