United States of America v. Angelina Martinez

* Chief District Judge of the Eastern District of Texas,
sitting by designation.
** Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 92-8043
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANGELINA MARTINEZ,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(EP 91 CR 152 (H))
_________________________________________________________________
July 30, 1993
Before KING and JOLLY, Circuit Judges, and PARKER,* District
Judge.
PER CURIAM:**
On November 15, 1991, Angelina Martinez, an agent for the
Internal Revenue Service (IRS), was found guilty in federal
district court of the following offenses: wilfully filing
falsified federal income tax returns for two consecutive years;

-- 1 of 14 --

2
conspiring to impede the lawful functions of the IRS by creating
a false writing and record; and wilfully creating a fraudulent
writing with the intent of submitting it to the IRS. Martinez's
co-defendant, Elmer Whitehead, Jr., was also charged with the
final two offenses, but was acquitted by the jury on both counts.
The district court initially sentenced Martinez to concurrent
three-year terms for each count, then suspended the sentence and
placed her on concurrent five-year terms of probation. Martinez
appeals from her convictions and sentence. We affirm in part,
reverse in part, and remand for reconsideration of the sentence.
I. Factual and Procedural Background
In June of 1987, IRS revenue agent Angelina Martinez was
informed by the IRS that an audit was being conducted of her 1985
income tax return. Approximately one month later, Martinez met
with another IRS agent, who had been appointed to review her
return. At the time of the meeting, Martinez informed the agent
that she had made errors on the return; specifically, she
admitted that she had made mistakes in her calculations involving
a rental property that she and a partner owned jointly. Within a
short period of time, the IRS notified Martinez that they planned
to audit her 1986 income tax return in addition to the 1985
return. According to government testimony, Martinez then filed
an amended income tax return for 1986; according to Martinez, she
had filed the amended return before she knew that her 1986 return
was to be audited. On both the 1985 return and the original 1986
return, the IRS found that Martinez had overstated or falsified

-- 2 of 14 --

3
various itemized deductions and expenses.
One of the many disputed aspects of Martinez's returns
involved alleged interest payments to her mother, Josefina
Abeyta. Both the 1985 and the 1986 returns indicated that
Martinez had paid $4,800 (a total of $9,600) to Abeyta for
interest on money Abeyta had loaned her to help pay for college
tuition. Martinez submitted an affidavit, allegedly sworn by
Abeyta, which confirmed that Martinez had in fact paid the
interest. The affidavit was dated July 10, 1987, after Martinez
had been notified of the audit of her 1985 return, and was
notarized by Martinez's co-defendant, Elmer Whitehead. There is
some dispute as to the authenticity of the document. At the
outset of the investigation, Whitehead could not recall ever
having met Abeyta; nonetheless, both he and Martinez testified at
trial that Abeyta had been present when the document was
notarized. Moreover, a handwriting expert testified for the
government at trial that Abeyta's signature was in Martinez's
handwriting. Martinez later testified that she had signed her
mother's name because her mother was legally blind; however, an
IRS agent who obtained a sample of Abeyta's handwriting during
the investigation of Martinez testified that Abeyta had no
difficulty with the series of signatures requested of her.
On October 16, 1991, Martinez was indicted on four counts:
wilfully filing false federal income tax returns in both 1985 and
1986, in violation of 26 U.S.C. § 7206(1); conspiring with
Whitehead to submit a false notarized document with intent to

-- 3 of 14 --

4
defraud, in violation of 18 U.S.C. § 371; and knowingly and
wilfully creating a false writing and record, together with
Whitehead, in violation of 18 U.S.C. § 1001. Following a jury
trial, Martinez was convicted of each of the charges. Whitehead
was acquitted on all counts. The district court placed Martinez
on concurrent five-year terms of probation on each of the counts
against her and fined her $5,000 with an additional $200 special
assessment. Martinez timely appealed from her convictions and
sentence.
II. Discussion
A. Sufficiency of Evidence, Convictions for Falsified Returns
Martinez argues that the evidence presented at trial was
insufficient to sustain her convictions for falsifying her 1985
and 1986 tax returns in violation of 26 U.S.C. § 7206. In
reviewing a challenge to the sufficiency of the evidence, we
determine whether a rational trier of fact could have found that
the evidence established guilt beyond a reasonable doubt. See
United States v. Ivey, 949 F.2d 759, 766 (5th Cir. 1991), cert.
denied, 113 S.Ct. 64 (1992); United States v. Hatch, 926 F.2d
387, 392 (5th Cir. 1991), cert. denied, 111 S.Ct. 2239 (1991).
Moreover, "we view all the evidence and any inferences that may
be drawn from it in the light most favorable to the government."
Ivey, 949 F.2d at 766.
Under this standard, we must reject Martinez's argument.
The relevant section of 26 U.S.C. § 7206 makes it a felony to
willfully mak[e] and subscrib[e] any return, statement,
or other document, which contains or is verified by a

-- 4 of 14 --

5
written declaration that it is made under the penalties
of perjury, and which [the defendant] does not believe
to be true and correct as to every material matter . .
. .
26 U.S.C.A. § 7206(1) (West 1986). There is ample evidence in
the record to support the conclusion that Martinez had willfully
filed false returns. At trial IRS agents testified that on her
1985 return, Martinez overstated or falsified itemized deductions
by more than $8,000. They also alleged that Martinez overstated
expenses on a rental property by more than $4,000. Martinez
herself admitted from the outset that she calculated the rental
expenses incorrectly. Testimony at trial indicated that when she
was asked why she did not amend her return when she discovered
her mistake, she explained in part that she "just wasn't
satisfied with the system." The 1986 return had similar,
although larger, errors. Again Martinez admitted to a number of
the errors. When asked, again, why she did not file an amended
return when she discovered that her estimates were incorrect, she
responded that she did not have the money to pay the additional
taxes that she knew she would owe.
Given Martinez's own admissions, the jury had ample basis to
determine that she submitted incorrect information to the IRS on
her return. The jury next had to find that Martinez submitted
the incorrect information wilfully. Taken in the light most
favorable to the government, the fact that Martinez herself had
been employed as an IRS agent for a number of years supported a
reasonable juror in the belief that mistakes on her own income
tax returns were made knowingly and wilfully, as opposed to

-- 5 of 14 --

6
carelessly. Her statements of dissatisfaction with the system
and disinclination to pay when she was short of funds further
support the conclusion that her mistakes were intentional rather
than careless. We accordingly reject the argument that the
evidence was insufficient to support her convictions under 26
U.S.C. § 7206.
B. Sufficiency of Evidence, Conviction for Conspiracy
Martinez also argues that the evidence was insufficient to
sustain her conviction for conspiring with Whitehead to create a
false writing and record under 18 U.S.C. §§ 371 and 1001. She
contends that her innocence is reflected by the fact that
Whitehead was acquitted of the conspiracy charge. She
distinguishes cases like United States v. Zuniga-Salinas, 952
F.2d 876 (5th Cir. 1992), which have held that an inconsistent
verdict does not bar conviction, on the grounds that Whitehead's
acquittal could have resulted only from an insufficiency of the
evidence to establish the existence of a conspiracy.
In Zuniga-Salinas, this court, sitting en banc, specifically
held that the conviction of one co-conspirator is not barred by
an inconsistent verdict in which all other co-conspirators are
acquitted. Zuniga-Salinas, 952 F.2d at 878. We based our
holding both on the possibility of mistake, compromise, or lenity
by the jury and on the availability of sufficiency of the
evidence reviews for the convicted defendant. Id. In other
words, an inconsistent verdict can stand if it resulted from such
factors as mistake, compromise, or lenity on the part of the

-- 6 of 14 --

7
jury, but not if there is insufficient evidence to support the
conviction.
However, under the strict standard for reviewing a challenge
to the sufficiency of the evidence claims, see supra Part II.A.,
we find that there was sufficient evidence to support Martinez's
conviction for conspiracy. In order to convict Martinez, the
jury had to find, first, the existence of an agreement between
her and Whitehead to
knowingly and wilfully . . . make a false writing and
record, a State of Texas notarized statement which
recited that during 1985 Josefina M. Abeyta received
$4,800 in interest from Angelina Martinez, dated July
10, 1987, knowing the same to be falsely made and
fraudulent, with intent to defraud . . . .
The jurors also had to find an overt act by either Martinez or
Whitehead in furtherance of the conspiracy. See United States v.
Romero, 600 F.2d 1104, 1106 (5th Cir. 1979), cert. denied, 444
U.S. 1077 (1980).
If we view the record in the light most favorable to the
government, a reasonable jury in this case could have found that
the evidence established beyond a reasonable doubt the existence
of an agreement to make a false writing and an overt act. First,
the evidence is such that a reasonable jury could find that the
affidavit was false in either or both of two respects: (1)
Abeyta did not receive the interest in question; and (2) Abeyta
did not sign the affidavit in Whitehead's presence, contrary to
what the affidavit represents. A jury could certainly find that
Whitehead knew of the latter falsity. Numerous contradictory
statements by Whitehead about the notarization support that

-- 7 of 14 --

8
determination. According to Whitehead's own testimony, when the
IRS first questioned him about the incident, he denied ever
having notarized a document by Abeyta. He then recalled the
notarization but stated that he had seen Abeyta sign the document
herself. By the time of the trial he asserted that Abeyta had
been present at the notarization but that the document had been
signed before he arrived. Further testimony at trial indicated
that Whitehead changed his story after speaking to Martinez, who
telephoned him when she learned that she was being audited.
Finally, Whitehead testified that he had read the affidavit and
that he understood that the purpose of the affidavit would be to
substantiate an interest deduction on an income tax return. The
above evidence, combined with testimony that Martinez and
Whitehead were both business associates and dance partners
outside of their work together at the IRS, is sufficient to have
convinced a reasonable jury of the existence of an agreement
between them to create a false document with intent to submit it
to the IRS. Martinez's actual submission of the document to the
IRS provided undisputed evidence of an overt act in furtherance
of an agreement, if one were found. We therefore affirm her
conviction on this count.
C. Inconsistency, Indictment Charge and Jury Instruction
Martinez further argues that the district court's jury
instruction on the false writing charge against her constituted a
constructive amendment of the indictment and was accordingly
fatal error. She notes that Count Four of the indictment alleged

-- 8 of 14 --

9
that she
knowingly and wilfully did make a false writing and
record, that is, a State of Texas notarized statement
dated July 10, 1987, which recited that during 1985
Josefina M. Abeyta received $4,800 in interest from
ANGELINA MARTINEZ, knowing the same to be falsely made
and fraudulent, as the defendant well knew, in that
Josefina M. Abeyta was not present and that this
writing and record would be presented by Angelina
Martinez to the Internal Revenue Service . . . .
(emphasis added)
She contrasts this with the language of the jury instruction,
which charged that to find her guilty of making a false writing
and record, the jury must find:
First: That the Defendant made or caused to be made a
false writing, that is, a notarized statement dated
July 10, 1987, for the purpose of submitting it to the
Internal Revenue Service, which statement purported to
bear the signature of Josefina M. Abeyta;
Second: That the Defendant knew at the time that the
writing was false in that it did not bear the signature
of Josefina M. Abeyta; . . . . (emphasis added)
She argues that this instruction changed the character of the
falseness of the writing. In other words, the grand jury alleged
that the document was false "in that Josefina Abeyta was not
present," whereas the jury was instructed that the document was
false in that it "purported" to bear the signature of Josefina
Abeyta when in fact she had not signed it. Martinez thus
contends that the district court in its instruction impermissibly
modified an essential element of the charge against her, allowing
the jury the potential of convicting her of an offense differing
from the one with which she had been charged.
It is well established that an indictment's charges, once
established, can only be broadened by the grand jury itself.

-- 9 of 14 --

10
See Stirone v. United States, 361 U.S. 212, 215-16 (1959); United
States v. Young, 730 F.2d 221, 223 (5th Cir. 1984). The
amendment need not be formal; a "constructive" amendment is
sufficient to create fatal error if the effect of a court's
actions is to alter the indictment's charges in such a way as to
create uncertainty over whether the defendant was convicted
solely on the charges made in the indictment that the grand jury
returned. Stirone, 361 U.S. at 217. This court has a clearly
developed standard for determining when a constructive amendment
has been effected:
Stirone requires that courts distinguish between
constructive amendments of the indictment, which are
reversible per se, and variances between the indictment
and proof, which are evaluated under the harmless error
doctrine. The accepted test is that a constructive
amendment of the indictment occurs when the jury is
permitted to convict the defendant upon a factual basis
that effectively modifies an essential element of the
offense charged. In such cases, reversal is automatic,
because the defendant may have been convicted on a
ground not charged in the indictment. If, on the other
hand, the variation between proof and indictment does
not effectively modify an essential element of the
offense charged, "the trial court's refusal to restrict
the jury charge to the words of the indictment is
merely another of the flaws in trial that mar its
perfection but do not prejudice the defendant."
United States v. Young, 730 F.2d at 223 (citations omitted)
(quoting United States v. Ylda, 653 F.2d 912, 914 (5th Cir. 1981)
(emphasis added); see also United States v. Green, 964 F.2d 365,
373 (5th Cir. 1992), cert. denied, 113 S. Ct. 984 (1993); United
States v. Baytank (Houston), Inc., 934 F.2d 599, 610 (5th Cir.
1991); United States v. Moree, 897 F.2d 1329, 1334 (5th Cir.
1990).

-- 10 of 14 --

11
We have applied this standard fairly strictly. For
instance, in United States v. Salinas, 601 F.2d 1279 (5th Cir.
1979) (Salinas I), the indictment charged two defendants with
wilfully misapplying bank funds with intent to defraud when they
served as directors of a bank. The district court charged the
jury that in order to convict the defendants, they had to find
that a given defendant was "an officer, director, agent, or
employee of the bank" at the time of the offense. This language
was consistent with the broader language of the statute under
which the defendants were indicted. Id. at 1287. We held that
this instruction constituted a constructive amendment of the
indictment, as it "modified an essential element of the . . .
offense charged;" and we reversed the defendants' convictions.
Id. at 1290. Similarly, on the appeal of the remand of Salinas
I, this court held that the district court committed fatal error
when it instructed the jury to convict the defendant if they
found that he had aided and abetted "a principal" in misapplying
bank funds with intent to defraud, rather than specifically with
aiding and abetting his friend Lewis Woodul in that crime, as
charged in the indictment. United States v. Salinas, 654 F.2d
319, 322-23 (5th Cir. 1981). Moreover, in Young, this court
suggested that a district court would commit fatal error if it
were to allow the jury to convict a defendant of receiving one
kind of firearm when the indictment had charged him or her with
receiving a different kind of firearm. Young, 730 F.2d at 224.
In light of this precedent, we find that the district

-- 11 of 14 --

2 Martinez was convicted under 18 U.S.C. § 1001, which
reads:
Whoever, in any matter within the jurisdiction of any
department or agency of the United States knowingly and
willfully falsifies, conceals or covers up by any
trick, scheme, or device a material fact, or makes any
false, fictitious or fraudulent statements or
representations, or makes or uses any false writing or
document knowing the same to contain any false,
fictitious or fraudulent statement or entry, shall be
fined not more than $10,000 or imprisoned not more than
five years, or both.
12
court's jury instruction in the case at hand constituted a
constructive amendment of the indictment. The indictment charged
Martinez with wilfully submitting to the IRS with intent to
defraud a document which was false "in that Josefina M. Abeyta
was not present" at the time that it was notarized. The jury
instruction, however, allowed the jury to convict Martinez if
they believed that the document was false "in that it did not
bear the signature of Josefina M. Abeyta," regardless of whether
Abeyta was present when the document was notarized. The
instruction thus permitted the jury to convict Martinez on a
factual basis that effectively modified an essential element of
the false writing charge against her.2 We accordingly reverse
Martinez's conviction under 18 U.S.C. § 1001 for the creation of
a false document.
D. Refused Jury Instruction
Finally, Martinez argues that the district court erred when
it refused her proposed jury instruction regarding the charges
against her of falsifying income tax returns in violation of 26

-- 12 of 14 --

13
U.S.C. § 7206. She requested that the district court submit to
the jury an instruction which read,
"Wilfully" means that the defendant acted with the
intent to violate a known legal duty. Proof of
wilfulness is essential to support a conviction under
26 U.S.C. § 7206(1) and neither a careless disregard
nor gross negligence in signing a tax return will
suffice.
The district court instead submitted the following instruction:
"Wilfully" means with intent to violate a known legal
duty. For you to find the Defendant Angelina Martinez
guilty of this crime as charged . . . you must be
convinced that the Government has proved each of the
following beyond a reasonable doubt: . . . [t]hat the
Defendant made the statement on purpose, and not as a
result of accident, negligence, or inadvertence.
Martinez contends that the district court's instruction worked to
her detriment because it replaces "gross negligence" with
"negligence." She argues that throughout the trial she had
sought to prove to the jury that she had acted inadvertently or
with gross negligence, rather than wilfully. She contends that
the jury very well could have believed that her conduct
was grossly negligent, but absent [her] requested
instruction . . . [she] probably could have been
convicted . . . based upon the jury believing that
conduct of gross negligence satisfied the legal
definition of wilfulness. (emphasis in original)
We review a district court's refusal to submit a proposed
jury instruction for abuse of discretion. United States v.
Rochester, 898 F.2d 971, 978 (5th Cir. 1990). The district court
is afforded wide latitude in the formulation of instructions, and
this court will not find an abuse of discretion if the
instructions "fairly and adequately cover the issues presented by
the case." Id., (citing United States v. Mollier, 853 F.2d 1169

-- 13 of 14 --

14
(5th Cir. 1988)). In the case at hand, the district court
followed clearly established law in its choice of instruction.
This court has consistently held that in the context of
falsification of income tax returns, "wilful" means the
intentional violation of a known legal duty. See United States
v. Buford, 889 F.2d 1406, 1409 (5th Cir. 1989); United States v.
Burton, 737 F.2d 439, 441 (5th Cir. 1984); see also United States
v. Pomponio, 429 U.S. 10 (1976). The district court's
instruction included this language and thus adequately and fairly
covered the issue of wilfulness. In light of the inclusion of
this language, the difference between "careless disregard [o]r
gross negligence," as proposed by Martinez, and "accident,
negligence, or inadvertence," as submitted by the district court,
is insufficient to constitute abuse of discretion. We
accordingly reject Martinez's argument.
III. Conclusion
For the foregoing reasons, we AFFIRM Martinez's convictions
for falsifying her income tax returns and for conspiracy and
REVERSE her conviction for creation of a false writing in
violation of 18 U.S.C. § 1001. We REMAND for re-sentencing in
accordance with our holding.

-- 14 of 14 --