* This order is not binding precedent, except underthe doctrines of law of

the case, res judicata, and collateral estoppel. T he court generally disfavors the citation of orders; nevertheless, an order may be c ited under the terms and conditions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate reco rd, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered su bmitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### April 14, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 05-3047

v. (D. of Kan.) IVAN G. CARNEY,

Defendant-Appellant. (D.C. No. 04-CR-10023-MLB)

ORDER AND JUDGMENT *

Before TACHA , Chief Judge, HARTZ , and TYMKOVICH , Circuit Judges. **

A jury found Defendant-Appellant Ivan Carney guilty of two counts of tax evasion. At sentencing, he moved for a new trial o n the basis of newly discovered evidence. The district court took the t estimony of two witnesses proffered by Carney, found them to lack credibility , and went on to sentence him to 21-months in prison. Since filing the appeal in this case, Carney’s attorney has-2-

concluded the appeal raises only frivolous claims a nd moves to withdraw as counsel pursuant to Anders v. California , 386 U.S. 738 (1967). Having reviewed the record, we GRANT counsel’s request to withdraw and DISMISS the appeal. Background In 1997, the Internal Revenue Service (IRS) selecte d Carney’s 1994 income tax return for examination. Carney did not cooperate with investigators, and subsequently his 1995 return was added to the audit , and a criminal investigation began. IRS records reflect that Carney did not fil e income tax returns for 1997 through 2003. On July 29, 2004, Carney was charged with two count s of tax evasion. At that time, he sought his Individual Master File (IM F) from the IRS. However, because of the criminal investigation, his request under the Freedom of Information Act (FOIA) was delayed. He was tried o n September 28, 2004, and a jury convicted him on both counts. Although Carney did not get the IMF in time for tri al, he did receive a coded version by the date of his sentencing hearing . Relying on this document, Carney argued that he did not have to pay taxes and asked the court to vacate his conviction and grant him a new trial based on the I MF. At sentencing, Carney offered testimony from John Turner, a former IRS re venue officer, who testified that the code MFR-01 meant that Carney was not requ ired to file a 1040 tax form.-3-

Patrick Lynch, a lay witness who analyzed IMFs as ahobby, also testified that the code meant Form 1040 was not required. The governm ent called Leah Switzgood, an IRS employee who testified that MFR referred to a mailing that would be sent based on the prior year’s return. Although the court did not directly respond to Carn ey’s request for a new trial, it implicitly rejected the request by imposi ng sentence and entering the judgment. Moreover, in a written order, the court made clear how it viewed Carney’s evidence: Defendant’s argument has centered around an entry i n the [IMF], which reads “MFR-01.” . . . The court totally rejects the testimony of Turner and Lynch as without foundation and plainly incredi ble. The court also rejects defendant’s interpretation of the contents of his Individual Master File entries to the effect that the IRS has determined that he is not required to file returns or pay taxes. Although it tooktwo hearings and several hours to get to the point, the court cr edits Leah Switzgood’s testimony that MFR stands for “mail filing requirem ents” and identifies the type of tax package the IRS annually mails to ataxpayer based on a preceding year’s returns. (Vol. I, Doc. 115, Pg. 2–3.) Accordingly, the court sentenced Carney to concurrent terms of 21 months on each count, a $50, 000 fine, and three years supervised release. Analysis Carney’s attorney informs us that he sees no legiti mate grounds for appeal and, therefore, asks to withdraw as counsel. In Anders v. California , 386 U.S. 738 (1967), the Supreme Court set forth the procedu re that an appointed attorney-4-

must follow if he seeks to withdraw from an appeal based on his conclusion that the appeal has no merit: [I]f counsel finds his [client’s] case to be wholly frivolous, after a conscientious examination of it, he should so advis e the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel’s b rief should be furnished the indigent and time allowed him to rais e any points that he chooses. Id. at 744. Counsel represents that on September 1, 20 05, he sent a copy of his brief to Carney. Carney has not raised any additio nal points. Ultimately, however, we—not counsel—“decide whetherthe case is wholly frivolous” after our own “full examination of all t he proceedings.” Id. In this case we are satisfied that Carney cannot raise any nonfrivolous argument on appeal. The only apparent basis for an appeal is t he argument that Carney is entitled to a new trial wherein he could offer evid ence that he was not required to pay taxes during the years charged in the indictmen t. “A motion for new trial based on newly discovered evidence is not favorably regarded and should be granted only with great caution.” United States v. Trujillo , 136 F.3d 1388, 1394 (10th Cir. 1998) (internal quotation marks and citation omitted). Accordingly, we review such a motion for abuse of discretion. Id. To prevail on such a motion, the newly discovered evidence must be “(1) more tha n impeaching or cumulative, (2) material to the issues involved, (3) such that it would probably produce an-5-

acquittal, and (4) such that it could not have been discovered with reasonable diligence and produced at trial.” Id. Counsel acknowledges a legitimate argument can be m ade that the evidence in this case satisfies three of these four requirem ents. However, because of the requirement that the evidence “would probably produ ce an acquittal,” we agree with counsel that the IMF would not warrant a new t rial. It is true that had the issue gone to a jury, the jury would have been enti tled to weigh the credibility of Turner and Lynch’s testimony against Switzgood’s te stimony. However, in considering the impact of this testimony, the distr ict court properly considered the witnesses’ credibility. Having “totally reject[ed] ” Carney’s evidence “as without foundation and plainly incredible,” the district co urt was not obligated to grant him a new trial to test this evidence that was so p atently unreliable. Accordingly, we conclude that the district court di d not abuse its discretion in denying Carney’s motion for new trial.
CONCLUSION For these reasons, we GRANT the motion to withdraw and DISMISS the appeal. Entered for the Court Timothy M. Tymkovich Circuit Judge