for the Fourth Circuit for the Fourth Circuit for the Fourth Circuit United States… v. Edward Louis Kotmair

UNPUBLISHED UNPUBLISHED UNPUBLISHED UNPUBLISHED
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT FOR THE FOURTH CIRCUIT FOR THE FOURTH CIRCUIT FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4139
EDWARD LOUIS KOTMAIR,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CR-97-123-BO)
Submitted: March 30, 2001
Decided: April 19, 2001
Before NIEMEYER, TRAXLER, and GREGORY, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL COUNSEL COUNSEL COUNSEL
Gregory J. Ramage, LAW OFFICE OF GREGORY RAMAGE,
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.
_________________________________________________________________

-- 1 of 4 --

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION OPINION OPINION OPINION
PER CURIAM:
Edward Louis Kotmair was charged with willful failure to file tax
returns for the years 1990, 1991, and 1992, in violation of 26
U.S.C.A. § 7203 (West Supp. 2000). Kotmair stipulated that he did
not file tax returns for those years and that he had income in excess
of the exemption amount. The only issue at trial was whether Kot-
mair's failure to file was willful. Following his convictions and sen-
tence, Kotmair appeals. We affirm.
Kotmair first argues that counsel was ineffective for failing to call
his father as a defense witness and that the district court erred in
denying his motion for a new trial on this basis. Because Kotmair
failed to present argument supporting his challenge to the court's
denial of his motion for a new trial, it is waived on appeal. See Fed.
R. App. P. 28(a)(6); Edwards v. City of Goldsboro, 178 F.3d 231, 241
n.6 (4th Cir. 1999).
As for Kotmair's challenge to counsel's failure to call his father as
a witness, because the record on appeal does not conclusively demon-
strate ineffective assistance of counsel, we do not now address this
issue. See United States v. Richardson, 195 F.3d 192, 198 (4th Cir.
1999), cert. denied, 528 U.S. 1096 (2000). Rather, Kotmair may raise
this claim in the district court in a 28 U.S.C.A.§ 2255 (West Supp.
2000) motion, if he so chooses.
Kotmair next challenges the sufficiency of the evidence to support
his convictions. Kotmair stipulated that he did not file tax returns for
1990, 1991, and 1992, and that his income exceeded the exemption
amounts. The only issue before the jury was whether Kotmair's fail-
ure to file was willful. See Cheek v. United States, 498 U.S. 192, 201-
02 (1991). The trial evidence, viewed in the light most favorable to
the government, Glasser v. United States, 315 U.S. 60, 80 (1942),
2

-- 2 of 4 --

showed that Kotmair had large amounts of income for the years in
question, he failed to keep business records, he conducted business
largely on a cash basis, he attempted to hide income and assets by
requiring payments in amounts less than $10,000, he belonged to a
tax protest organization, namely Save a Patriot Fellowship, he was
notified by the IRS of his duty to file a return, and his father--founder
of Save a Patriot--went to jail for his failure to file. This evidence
was sufficient for the jury to infer that Kotmair's failure to file was
willful. See Spies v. United States, 317 U.S. 492, 499-500 (1943)
(finding that inference of willfulness may arise from attempts to con-
ceal income or assets, failure to keep books or records, and conduct-
ing business largely on cash basis); United States v. Turano, 802 F.2d
10, 12 (1st Cir. 1986) (inference of willfulness from tax protest activi-
ties); United States v. Shivers, 788 F.2d 1046, 1048 (5th Cir. 1986)
(inference of willfulness from disregard of notices informing of duty
to file); United States v. Ostendorff, 371 F.2d 729, 731 (4th Cir. 1967)
(allowing inference of willfulness from pattern of failure to file). We
find that, taking the evidence in the light most favorable to the gov-
ernment, any rational juror could have found Kotmair guilty beyond
a reasonable doubt. Glasser, 315 U.S. at 80; United States v.
Saunders, 886 F.2d 56, 60 (4th Cir. 1989) (holding that in resolving
sufficiency of evidence, appeals court does not weigh evidence or
review credibility of witnesses).
Kotmair next argues that the district court clearly erred in deter-
mining that the amount of tax loss exceeded $350,000. He asserts that
applying the tax loss computation rules in U.S. Sentencing Guidelines
Manual § 2T1.2(a) (1992), for the years 1990, 1991, and 1992, yields
a tax loss of $166,889.21. In computing the tax loss, however, Kot-
mair failed to include all relevant conduct. The tax loss computation
should include losses suffered by the federal and state governments
in the years of conviction as well as other years in which the defen-
dant's failure to file was "part of the same course of conduct or com-
mon scheme or plan," unless clearly unrelated. USSG § 2T1.2,
comment. (n.3); see United States v. Bove, 155 F.3d 44, 47 (2d Cir.
1998); United States v. Powell, 124 F.3d 655, 663-65 (5th Cir. 1997).
We find that the district court properly considered losses from years
other than the years of conviction and losses to the states in comput-
ing the tax loss attributable to Kotmair, and therefore did not clearly
err in adopting the recommendation in the presentence report that the
3

-- 3 of 4 --

total tax loss exceeded $350,000. See United States v. Daughtrey, 874
F.2d 213, 217 (4th Cir. 1989).
The final issue Kotmair raises is whether the district court clearly
erred in enhancing Kotmair's offense level by two for the use of
sophisticated means to impede the discovery of the nature or extent
of his offense. "Sophisticated means" includes"conduct that is more
complex or demonstrates greater intricacy or planning than a routine
tax evasion case." USSG § 2T1.2, comment. (n.2). The district court
applied the enhancement after noting that Kotmair engaged in struc-
turing and laundering of his income to prevent the creation of cur-
rency transaction reports. Because Kotmair failed to offer any
evidence to refute the findings in the presentence report, there was no
clear error by the district court in adopting these findings. See United
States v. Love, 134 F.3d 595, 606 (4th Cir. 1998); United States v.
Terry, 916 F.2d 157, 162 (4th Cir. 1990).
In conclusion, we affirm Kotmair's convictions and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
4

-- 4 of 4 --