United States of America v. Oran Tillman Davis

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4621
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ORAN TILLMAN DAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (3:02-cr-00251-RLV-DCK-1)
Submitted: February 24, 2010 Decided: March 10, 2010
Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Aaron E. Michel, Charlotte, North Carolina, for Appellant.
Edward R. Ryan, United States Attorney, David A. Brown,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Oran Tillman Davis appeals his convictions for two
counts of tax evasion, in violation of 26 U.S.C. § 7201 (2006).
Finding no error, we affirm.
Davis first argues that the district court erred in
denying his motion for judgment of acquittal on the ground that
the indictment was not returned within the applicable statute of
limitations. We review de novo the district court’s denial of a
Rule 29 motion for judgment of acquittal. United States v.
Reid, 523 F.3d 310, 317 (4th Cir.), cert. denied, 129 S. Ct. 663
(2008). We also review Davis’s statute of limitations claim de
novo. United States v. Uribe-Rios, 558 F.3d 347, 351 (4th Cir.
2009); see also United States v. Wilson, 118 F.3d 228, 236 (4th
Cir. 1997) (“The government bears the burden of proving that it
began its prosecution within the statute of limitations
period.”).
The applicable statute of limitations in this case is
six years. See 26 U.S.C. § 6531 (2006); Wilson, 118 F.3d at
236. “The limitations period for a violation of [26 U.S.C.]
§ 7201 begins to run on the date of the last affirmative act of
tax evasion.” 118 F.3d at 236. Based on our review of the
record, we find that Davis’s last affirmative act of tax evasion
occurred in March 1997, when he mailed documents misrepresenting
his relationship with Prime Management Group to Agent James.

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Davis was therefore properly indicted within the statute of
limitations.
Davis next argues that the evidence was insufficient
to support the jury’s verdict. “A defendant challenging the
sufficiency of the evidence” faces a “heavy burden.” United
States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997). “[A]n
appellate court’s reversal of a conviction on grounds of
insufficient evidence should be ‘confined to cases where the
prosecution’s failure is clear.’” United States v. Jones, 735
F.2d 785, 791 (4th Cir. 1984) (quoting Burks v. United States,
437 U.S. 1, 17 (1978)). A verdict must be upheld on appeal if
there is substantial evidence in the record to support it.
Glasser v. United States, 315 U.S. 60, 80 (1942). In
determining whether the evidence in the record is substantial,
this court views the evidence in the light most favorable to the
Government, and inquires whether there is evidence that a
reasonable finder of fact could accept as adequate and
sufficient to establish a defendant’s guilt beyond a reasonable
doubt. United States v. Burgos, 94 F.3d 849, 862-63 (4th Cir.
1996). Based on our review of the record, we find that
substantial evidence supported the jury’s verdict.
Finally, Davis argues that the indictment was
defective for failing to set forth the precise amount of taxes
that he sought to evade. Because this claim is raised for the

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first time on appeal, we review for plain error. See United
States v. Cotton, 535 U.S. 625, 631 (2002) (applying plain error
test to claim that the indictment failed to allege element of
charged offense).
Rule 7(c)(1) of the Federal Rules of Criminal
Procedure directs that an indictment “must be a plain, concise
and definite written statement of the essential facts
constituting the offense charged.” To pass constitutional
muster, an indictment must satisfy two requirements: “‘[F]irst,
that it contains the elements of the offense charged and fairly
informs a defendant of the charge against which he must defend,
and second, that it enables him to plead an acquittal or
conviction in bar of future prosecutions for the same offense.’”
United States v. Resendiz-Ponce, 549 U.S. 102, 108 (2007)
(quoting Hamling v. United States, 418 U.S. 87, 117 (1974)
(internal brackets omitted)); see also United States v.
Williams, 152 F.3d 294, 299 (4th Cir. 1998) (“‘One of the
principal purposes of an indictment is to apprise the accused of
the charge or charges against him so he can prepare his
defense.’”) (quoting United States v. Fogel, 901 F.2d 23, 25
(4th Cir. 1990)).
Each count of the indictment in this case stated, in
relevant part, that Davis “knew and believed [his] joint taxable
income for the calendar year was substantially in excess of the

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amount stated, and that an additional tax was due and owing to
the United States.” Because the Government was not required to
allege or prove the precise amount of additional tax due and
owing at trial, see United States v. McKee, 506 F.3d 225, 235-36
(3d Cir. 2007), we find that an exact amount was not required to
be set forth in the indictment. See United States v. Citron,
783 F.2d 307, 315 (2d Cir. 1986) (“The grand jury was not
required to make . . . allegations as to the amounts of tax [a
defendant in a § 7201 case] sought to evade. . . . [S]ince the
indictment need not allege that which is not part of the
government’s required proof, no exact figure need be stated in
the indictment.”).
Accordingly, we affirm Davis’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 argument would not aid the decisional
process.
AFFIRMED

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