UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4227

STEVEN L. HEARD,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4228

STEVEN L. HEARD,

Defendant-Appellant.

Appeals from the United States District Court

for the Northern District of West Virginia, at Clarksburg.

Irene M. Keeley, District Judge.

(CR-96-16)

Submitted: January 30, 1998

Decided: February 23, 1998

Before NIEMEYER, HAMILTON, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

James R. Fox, JORY & SMITH, L.C., Elkins, West Virginia, for

Appellant. William D. Wilmoth, United States Attorney, Robert H.
McWilliams, Jr., Assistant United States Attorney, Wheeling, West

Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Following a jury trial, Steven L. Heard was convicted on four

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

district court sentenced him to thirty-six months imprisonment. Heard

appeals, claiming errors both at trial and sentencing. We find no merit

to his claims. Consequently, we affirm.

Heard was an independent contractor who sold business forms to

local businesses in the Clarksburg, West Virginia, area. A grand jury

indicted Heard on four counts of violating 26 U.S.C.§ 7201, for evading income tax in the years 1989 to 1992. Heard did not deny failing

to pay taxes. His sole defense at trial was that he had an honest but

mistaken belief that the income tax laws did not apply to him.

Heard first contends that the trial court erred in admitting into evidence statements he made reflecting his rejection of the tax laws.

When the government subpoenaed Heard before the grand jury, he

filed a "Non-statutory Abatement." This preprinted form, which

Heard characterizes as being synonymous with a motion to quash the

subpoena, referred to the Clerk of the United States District Court and

the United States Attorney as "Alien Enemy agents of a statutorily

created, [sic] foreign de facto corporation, known as THE UNITED

STATES OF AMERICA." (emphasis in original). Heard filed a

motion in limine to bar introduction of the abatement at trial. The district court ruled that the government could use the abatement only for

two purposes. First, if Heard attempted to claim he did not believe the

tax laws applied to him, the document could be used to show that he

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did not sincerely believe that these laws were inapplicable to him.

Second, the government could use the abatement to cross-examine

Heard's character witnesses if they testified that he was law-abiding,

because the document was relevant to show that Heard rejected the

authority of the United States. We find that the district court did not

exceed its discretion in finding that the abatement was admissible

under Fed. R. Evid. 404(b) to show such things as proof of intent and

the absence of mistake or accident. See United States v. Queen, ___

F.3d ___, ___, 1997 WL 790470, at *3 (4th Cir. Dec. 29, 1997) (No.

96-4085).

Heard argues that by filing the abatement, he was asserting his

Fifth Amendment privilege against self-incrimination and that the

government improperly used this against him during the trial. However, the abatement never was mentioned during the government's

case-in-chief. Instead, defense counsel engaged in a lengthy direct

examination of Heard concerning the document, during which counsel elicited from Heard that he filed the abatement in order to invoke

his Fifth Amendment privilege against incriminating himself before

the grand jury. Because he introduced this testimony himself, any

error which may have resulted is nothing more than invited error and

thus is not reversible. See, e.g., United States v. Neal, 78 F.3d 901,

904 (4th Cir.) (no reversible error where defendant invited error himself by eliciting statements he challenged on appeal), cert. denied, ___

U.S. ___, 65 U.S.L.W. 3260 (U.S. Oct. 7, 1996) (No. 95-9410).

During cross-examination, the government asked Heard about the

abatement but, as directed by the district court in its order denying

Heard's motion in limine, limited its questions to whether he believed

the language of the document, particularly where it called the United

States Attorney an alien enemy agent of a statutorily created foreign

de facto corporation known as the United States. When questioning

Heard's character witnesses, the government also limited its questions

in accordance with the court's order concerning the motion in limine.

Thus, we find no error in the court's admission of this evidence.

Next, Heard challenges the admissibility of two letters in which he

urged two businesses to ignore summonses from Internal Revenue

requesting financial records concerning him. In these letters, Heard

questioned the authority of Internal Revenue and stated that he

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believed the summonses could be ignored because process was illegally served. The mailing of these two letters was charged as specific

acts of tax evasion in Count Four of the indictment. Heard argues that

these letters constitute permissible conduct under 26 U.S.C.A. § 7609

(West 1989 & Supp. 1997), in that he claims that they were legitimate

acts performed to quash the summonses.

Section 7609(b) allows an individual identified in business records

summonsed by Internal Revenue to file a motion to quash the summons and then serve a copy of the motion to quash upon the third

party record keeper. Even if the parties upon whom the summonses

were served could be characterized as third party record keepers,

Heard failed to file a motion to quash the summonses. We find that

Heard's letters do not constitute the type of activity sanctioned under

§ 7609(b).

As the government argues in its brief, Heard's letters were relevant

because they constituted overt acts of tax evasion charged in the

indictment. Moreover, as Heard's key defense was that he was under

the mistaken belief that he did not have to pay taxes, the letters were

relevant evidence for the government to show that Heard rejected,

rather than misunderstood, the tax laws. Thus, the district court did

not exceed its discretion by admitting the letters into evidence. See

Sasaki v. Class, 92 F.3d 232, 241 (4th Cir. 1996).

In five separate instances, a social security number other than

Heard's real one appeared on documents pertaining to him. Specifically, five different social security numbers similar to Heard's true

one, but with two or more numbers transposed, appeared on:

(1) Heard's 1099 forms submitted to Internal Revenue by the company paying Heard's commission; (2) Heard's bank signature card

for his checking account; (3) a utility service application for Heard's

residence; (4) a loan application; and (5) a credit report for Heard.

Heard argues that the introduction into evidence of the five incorrect

social security numbers unfairly prejudiced him because there was no

direct evidence that he was the one who supplied the false numbers.

Because there was no direct evidence showing that Heard supplied

a false social security number to the company paying his commission

in order to evade taxes, the government utilized the five different false

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social security numbers to show through circumstantial evidence that

Heard was the person who provided the false number for the 1099

forms. We find that these social security numbers were admissible

under Fed. R. Evid. 404(b) to show that it was Heard who provided

the false number to his company and to show that he did so intentionally rather than by mistake or accident.

Both in his direct testimony and on cross-examination, Heard

denied responsibility for any of the five false social security numbers.

At sentencing, the district court found this testimony to be both material and false and enhanced Heard's sentence two levels for perjury.

Heard challenges this enhancement.

In order to enhance a defendant's offense level for perjury following an objection on that basis, a district court must review the evidence and "make independent findings necessary to establish a willful

impediment to or obstruction of justice." United States v. Smith, 62

F.3d 641, 647 (4th Cir. 1995) (citing United States v. Dunnigan, 507

U.S. 87 (1993)). When engaging in this review, it is preferable for the

court to address, in a separate finding, each individual element of perjury: (1) false testimony, (2) concerning a material matter, and

(3) made with the intent to deceive. However, if the court's singular

finding encompasses all of these necessary factual predicates, the

enhancement is sufficiently justified. Id. Here, the court's findings at

the sentencing hearing encompass all the necessary factual predicates.

We therefore conclude that the district court did not clearly err by

enhancing Heard's sentence for perjury.

For these reasons, we affirm Heard's conviction and sentence. 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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