United States v. Schutt , 96 F. App'x 260 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 17, 2004
Charles R. Fulbruge III
Clerk
No. 03-41491
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DON FREDERICK SCHUTT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:01-CR-90-ALL
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Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
Don Frederick Schutt appeals from his conviction following a
jury trial on two counts of failing to file income tax returns
for the years 1995 and 1996, in violation of 26 U.S.C. § 7203.
Schutt argues that the evidence was insufficient to prove that he
willfully failed to file his tax returns because, based on his
own research of the tax laws, he did not believe he was liable to
pay taxes. Because Schutt did not move for judgment of acquittal
at trial, we review to determine whether there was a miscarriage
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 03-41491
-2-
of justice. United States v. Delgado, 256 F.3d 264, 274 (5th
Cir. 2001). A miscarriage of justice exists "only if the record
is devoid of evidence pointing to guilt" or "the evidence on a
key element of the offense was so tenuous that a conviction would
be shocking." United States v. Laury, 49 F.3d 145, 151 (5th Cir.
1995)(internal quotations and citation omitted). After reviewing
the record, we conclude that the evidence was sufficient for the
jury to find that Schutt was aware of his duty to file tax
returns and willfully failed to do so. See United States v.
Shivers, 788 F.2d 1046, 1048-49 (5th Cir. 1986); see also Cheek
v. United States, 498 U.S. 192, 201 (1991).
Schutt also argues that the magistrate judge erroneously
excluded from evidence documents that he used to form his beliefs
about the federal tax system. Schutt was permitted to testify
about the documents upon he which relied, to read the contents of
the documents to the jury, and to explain the effect of the
documents on his beliefs. There was no abuse of discretion in
the court's exclusion of the documents from evidence. See United
States v. Stafford, 983 F.2d 25, 27-28 (5th Cir. 1993); United
States v. Barnett, 945 F.2d 1296, 1301 (5th Cir. 1991); United
States v. Flitcraft, 803 F.2d 184, 186 (5th Cir. 1986).
AFFIRMED.