United States v. Selgas ( 2022 )


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  • Case: 21-10651    Document: 00516445918        Page: 1   Date Filed: 08/24/2022
    United States Court of Appeals
    for the Fifth Circuit                       United States Court of Appeals
    Fifth Circuit
    FILED
    August 24, 2022
    No. 21-10651                    Lyle W. Cayce
    Clerk
    United States of America,
    Plaintiff—Appellee,
    versus
    John O. Green,
    Defendant—Appellant,
    consolidated with
    _____________
    No. 21-10672
    _____________
    United States of America,
    Plaintiff—Appellee,
    versus
    Thomas D. Selgas,
    Defendant—Appellant.
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 3:18-CR-356
    Case: 21-10651        Document: 00516445918               Page: 2      Date Filed: 08/24/2022
    No. 21-10651
    c/w No. 21-10672
    Before Higginbotham, Dennis, and Graves, Circuit Judges.
    James L. Dennis, Circuit Judge:
    Appellants Thomas Selgas (“Selgas”) and John Green (“Green”)
    were convicted by a jury of conspiracy to defraud the Internal Revenue
    Service (“IRS”) by interfering with its lawful functions. See 
    18 U.S.C. § 371
    .
    Selgas was also convicted of evasion of payment of taxes. See 
    26 U.S.C. § 7201
    . On appeal, Selgas and Green both challenge the sufficiency of the
    evidence supporting their convictions and raise challenges to a number of
    jury instructions. Selgas also argues that his indictment was constructively
    amended, that he received ineffective assistance of counsel, and that the
    district court should have granted him a continuance. We AFFIRM.
    I.
    Selgas and his wife Michelle were partners in a company called
    MyMail, Ltd. 1 MyMail sued alleged patent infringers, which resulted in $11
    million in settlement proceeds in 2005, of which MyMail received $6.8
    million after attorney fees. In February 2006, MyMail’s CPA filed tax forms
    reporting that Michelle Selgas received $1.559 million in ordinary business
    income and $1.091 million in distributions from MyMail, and Selgas received
    $117,187 in business income and a $82,000 distribution.
    In late 2005, the Selgases had MyMail send $1 million by wire transfer
    to Dillon Gage, a precious metals dealer in Texas with whom Selgas had an
    account, and, as instructed by Selgas, Dillon Gage used the money to buy
    7,090 quarter-ounce $10 Gold Eagle coins for Selgas. While the Gold Eagle
    coins have a nominal $10 face value, the actual value of the coins is much
    higher and is based on the price of gold.
    1
    As we must, we present the facts in the light most favorable to the guilty verdict.
    See United States v. Oti, 
    872 F.3d 678
    , 685 n.1 (5th Cir. 2017).
    2
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    In April 2006, Selgas and Green—his lawyer—orchestrated an effort,
    along with MyMail partner Bob Derby, to amend MyMail’s tax forms “based
    on the current laws of a constitutional $.” According to Selgas and Green,
    “Federal Reserve Notes are valueless pieces of paper” and “lawful money”
    is instead measured by the “constitutional value” of a dollar, which is 371 ¼
    grains of silver.   The practical effect of employing this theory was to
    significantly underreport the amount of income that MyMail and the
    Selgases actually received. However, it is well-established that discounting
    the face value of money, i.e. Federal Reserve Notes, received as income based
    on the theory that the value of a dollar is tied to a specific weight of gold or
    silver “is not a legal method” of reducing taxes owed. Mathes v. Comm’r of
    Internal Revenue, 
    576 F.2d 70
    , 71 (5th Cir. 1978). “Congress has made the
    Federal Reserve note the measure of value in our monetary system . . . and
    has defined Federal Reserve notes as legal tender for taxes . . . . Taxpayers’
    attempt to devalue the Federal Reserve notes they received as income is,
    therefore, not lawful under the laws of the United States.” 
    Id.
     (internal
    citations and footnote omitted).
    MyMail’s CPA refused to amend the tax returns in line with Selgas
    and Green’s so-called “constitutional dollar” or “lawful dollar” theory
    because the CPA thought it was “not a sustainable position before the IRS.”
    Selgas and Green found another accountant to amend the forms. MyMail’s
    amended tax form reported gross receipts for MyMail of $729,846 instead of
    $6.8 million; a distribution of $117,079 to Michelle Selgas instead of $1.091
    million; and a distribution of $8,798 to Selgas instead of $82,000.
    In 2006, Selgas filed a “Statement to the Internal Revenue Service,”
    drafted by Green, for tax year 2005 instead of an income tax return. The
    Statement included an explanation of the “lawful dollar” theory; reported
    that the Selgases received $178,640 in “lawful dollars” but denied that this
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    was “income”; and reported the Selgases’ expenses in Federal Reserve Note
    dollars. By using the discredited “lawful dollar” theory, the Statement
    significantly understated the Selgases’ actual income. Unlike a tax return,
    the Statement was not signed under penalty of perjury, although it purported
    to include a declaration pursuant to 
    28 U.S.C. § 1746
    , which provides a
    method for making unsworn declarations. At trial, an IRS witness testified
    that the 2005 Statement was not a valid tax return.
    In due course, the IRS audited MyMail’s 2005 taxes and disallowed
    the amended return that incorporated the “lawful dollar” theory. MyMail
    unsuccessfully challenged the adjustment in district court, and this court
    affirmed on appeal, stating that “courts have long held such arguments” as
    Selgas and Green’s theory “are frivolous.” MyMail Ltd. v. Comm’r of I.R.S.,
    498 F. App’x 388 (5th Cir. 2012) (citing Mathes, 
    576 F.2d at
    70–71; Juilliard
    v. Greenman (The Legal Tender Cases), 
    110 U.S. 421
    , 448 (1884)).
    Owing unpaid taxes for 1997–2002 and 2005, the Selgases engaged in
    a pattern of behavior that concealed their income and assets from IRS
    collection efforts.2 For example, the Selgases did not keep money in bank
    accounts in their own names. Instead, from 2007 through at least 2017, the
    Selgases deposited more than $857,000 into Green’s client trust accounts,
    and Green paid the Selgases’ expenses and credit card bills out of his trust
    accounts. In 2008, the Selgases sold their home in Garland, Texas and
    2
    Selgas and Michelle previously litigated their 1997–2002 tax liabilities in Tax
    Court and were represented by Green. The Tax Court ruled for the IRS. Selgas appealed
    the decision regarding his 2002 taxes to this court, which affirmed. Selgas v. Comm’r of
    Internal Revenue, 
    475 F.3d 697
     (5th Cir. 2007). After the Tax Court ruled against them,
    Green referred the Selgases to an accountant to prepare belated tax returns for those years.
    The new returns not only showed no taxes due, but also requested refunds. The IRS
    initially processed the returns, but later adjusted them to conform with the Tax Court
    rulings that the Selgases had unpaid tax liability.
    4
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    bought a new home in Athens, Texas, paying the $385,000 purchase price
    with 1,667 $10 Gold Eagle coins. Green represented the Selgases in both
    transactions. The buyer of the Garland home refused to pay in gold coins, so
    Selgas and Green had the title company send the buyer’s payment directly to
    Dillon Gage to be converted into gold coin. They also attempted to get the
    Athens house assessed for property taxes purposes based on the purported
    “constitutional lawful money” dollar price of $16,670 instead of the actual
    purchase price. In 2012, Selgas sold the Athens house for $8,400 “lawful
    money” to a trust controlled by a family member.
    In May 2014, IRS Revenue Officer Jonathan Daniel was assigned to
    collect the Selgases’ tax deficiencies. After running into difficulty contacting
    the Selgases, Daniel contacted Green at the post office box listed on the
    Selgases’ IRS power of attorney form. Neither Selgas nor Green responded
    to multiple letters Daniel sent. In January 2015, Daniel found retirement
    accounts for the Selgases funded with gold coins, but Selgas withdrew the
    coins from the accounts before Daniel could seize them. Daniel contacted
    Green again in July 2015 to request financial information. This time, Green
    responded that the Selgases had already paid their taxes and requested
    additional information from Daniel, but otherwise did not respond to
    Daniel’s requests. Daniel eventually located the Athens residence (an initial
    search of property records was unsuccessful because the title had been
    transferred to the trust), and he contacted Selgas and Green to advise them
    that it would be seized. Daniel did not learn that the Selgases putt money in
    Green’s trust accounts, and he was ultimately never able to collect any money
    to satisfy the Selgases’ tax debt.
    In July 2018, a grand jury charged Selgas and Green with conspiracy
    to defraud the United States by impeding and obstructing the IRS in violation
    of 
    18 U.S.C. § 371
     (Count One). Selgas was also charged with income tax
    5
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    evasion for years 1998–2002 and 2005, in violation of 
    26 U.S.C. § 7201
    (Count Two).3 At the final pre-trial conference on January 6, 2020—the day
    before jury selection was set to begin—Selgas made an oral motion to substi-
    tute counsel Charles McFarland for counsel Franklyn Mickelsen and sought
    a six-to-eight-week continuance so that McFarland could prepare for trial.
    The district court denied the motion for continuance, but allowed McFarland
    to act as lead counsel with Mickelsen assisting. After an eight-day jury trial,
    Selgas and Green were found guilty as charged.
    II.
    Because Selgas and Green preserved their sufficiency-of-the-evidence
    challenges by moving for a judgment of acquittal, our review is de novo. Fed.
    R. Crim. P. 29(a); United States v. Frye, 
    489 F.3d 201
    , 207 (5th Cir. 2007).
    This court will uphold the jury’s verdict if a rational trier of fact could
    conclude from the evidence that the elements of the offense were established
    beyond a reasonable doubt. Jackson v. Virginia, 
    443 U.S. 307
    , 319 (1979). We
    review the evidence, both direct and circumstantial, as well as all reasonable
    inferences from that evidence, in the light most favorable to the verdict. 
    Id.
    In doing so, we do not reweigh the evidence or assess the credibility of
    witnesses, as this is the responsibility of the jury. 
    Id.
    Constructive amendment claims are typically reviewed de novo, United
    States v. Jara-Favela, 
    686 F.3d 289
    , 299 (5th Cir. 2012), and challenges to
    jury instructions are reviewed for abuse of discretion and are subject to
    harmless error review, United States v. Johnson, 
    990 F.3d 392
    , 398 (5th Cir.
    2021). However, objections not raised before the trial court are reviewed for
    3
    Michelle Selgas was also charged in Count One with conspiracy and in Count
    Three with income tax evasion. The district court granted a judgment of acquittal to
    Michelle prior to submission of the case to the jury.
    6
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    plain error. Puckett v. United States, 
    556 U.S. 129
    , 134–35 (2009). If (1) there
    is an “error,” (2) that is “clear or obvious,” and (3) that error “affected the
    appellant’s substantial rights,” then (4) we have discretion to remedy the
    error if it “seriously affects the fairness, integrity or public reputation of
    judicial proceedings.” 
    Id. at 135
    .
    “Denial of a continuance is within the discretion of the trial judge and
    will not be reversed absent a clear abuse of discretion.” United States v. Silva,
    
    611 F.2d 78
    , 79 (5th Cir. 1980) (citation omitted).
    III.
    Selgas and Green raise six issues on appeal. Both Selgas and Green
    claim that the evidence was insufficient to support their conspiracy-to-
    defraud convictions and challenge the district court’s failure to give certain
    jury instructions. Selgas also claims that the evidence was insufficient to
    sustain his tax evasion conviction; challenges the district court’s denial of his
    request for a continuance; claims that the district court constructively
    amended the indictment’s tax evasion count; and claims that he received
    ineffective assistance of counsel. We consider each issue in turn and reject
    them all.
    A.
    First, Selgas asserts that the district court erred by denying his eve-of-
    trial request for a continuance. Selgas claims that the lack of a continuance
    prevented his new co-counsel from preparing for trial, and thus effectively
    denied him the right to counsel of his choice. We disagree.
    “Generally, a district court’s refusal to continue a case to
    accommodate an attorney brought in at the last minute is not an abuse of
    discretion.” United States v. Pollani, 
    146 F.3d 269
    , 272 (5th Cir. 1998)
    (citations omitted). When deciding motions to substitute counsel, “trial
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    courts have ‘wide latitude in balancing the right to counsel of choice against
    the needs of fairness and against the demands of its calendar.’” United States
    v. Neba, 
    901 F.3d 260
    , 265 (5th Cir. 2018) (quoting United States v. Gonzalez-
    Lopez, 
    548 U.S. 140
    , 152 (2006)). Considerations of fairness include “(1)
    whether a continuance would be required; (2) whether the party’s concerns
    were based on anything of a factual nature; (3) whether the party requested
    substitution of counsel late in the case; and (4) whether a continuance could
    compromise the availability of key witnesses.” 
    Id.
     (internal quotation marks
    and citations omitted).
    Selgas moved to substitute counsel and sought a six-to-eight-week
    continuance on the day before trial. The district court denied the motion for
    a continuance, but permitted substitute counsel McFarland to represent
    Selgas and act as lead counsel, with Mickelsen assisting. The district court
    explained that it was “balancing the right of counsel of choice against the
    needs of fairness and the demands of the Court’s calendar.” It noted that
    other parties in the case opposed the continuance, that the parties had already
    subpoenaed witnesses who might not be available post-continuance, that
    other civil and criminal matters were pending on the court’s docket, that the
    substitution of counsel was based on “a strategy issue” and not a factual
    matter, and that Selgas requested the substitution and continuance late in the
    case, on the day before trial.     This was a reasonable balancing of the
    competing interests identified in Neba. The district court’s denial of Selgas’s
    last-minute continuance request was not an abuse of discretion, and Selgas
    was not denied the counsel of his choice.
    B.
    Next, Selgas argues that the district court’s jury instruction on the
    elements of income tax evasion under 
    26 U.S.C. § 7201
     constructively
    amended the indictment. Although Selgas asserted in his opening brief that
    8
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    our review is de novo, our review is for plain error because Selgas did not
    object to the jury instructions in the district court until his Rule 33 motion for
    a new trial and thus did not preserve the issue for appeal. See United States
    v. Chaker, 
    820 F.3d 204
    , 213 (5th Cir. 2016) (reviewing unpreserved claim
    for plain error); United States v. Gevorgyan, 
    886 F.3d 450
    , 457 (5th Cir. 2018)
    (reviewing issue first raised in new trial motion for plain error).
    Because Selgas failed to meaningfully address all four prongs of plain-
    error review either in his opening brief or in reply, his constructive
    amendment challenge fails. Even if we were to find an error that was clear or
    obvious, Selgas has not shown that any error affected his substantial rights or
    that we should exercise our discretion to correct any such error. See United
    States v. Broussard, 
    669 F.3d 537
    , 553 (5th Cir. 2012) (“To affect the
    defendant’s substantial rights, the defendant must demonstrate that the error
    affected the outcome of the district court proceedings.”); United States v.
    Escalante-Reyes, 
    689 F.3d 415
    , 425 (5th Cir. 2012) (“Additionally, we do not
    view the fourth prong as automatic if the other three prongs are met.”);
    United States v. Phillips, 
    477 F.3d 215
    , 221–23 (5th Cir. 2007) (rejecting
    constructive amendment challenge on plain-error review for failure to show
    effect on substantial rights).
    C.
    Next, Selgas and Green challenge the sufficiency of the evidence
    supporting their conspiracy-to-defraud convictions. To convict a defendant
    of conspiracy to defraud the United States in violation of 
    18 U.S.C. § 371
    , the
    Government is required to prove beyond a reasonable doubt: “(1) an
    agreement between two or more persons to pursue an unlawful objective;
    (2) the defendant’s knowledge of the unlawful objective and voluntary
    agreement to join the conspiracy; and (3) an overt act by one or more of the
    members of the conspiracy in furtherance of the objective of the conspiracy.”
    9
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    United States v. Peterson, 
    244 F.3d 385
    , 389 (5th Cir. 2001) (citation omitted).
    Appellants claim that the Government failed to prove all three elements, but
    their argument is largely premised on an unfounded theory about what it
    means to interfere with the lawful government functions of the IRS.
    Section 371 criminalizes two types of conspiracies against the United
    States, making it a felony “either to commit any [substantive] offense against
    the United States, or to defraud the United States[.]” 
    18 U.S.C. § 371
    (emphasis added).     “To conspire to defraud the United States means
    primarily to cheat the government out of property or money, but it also means
    to interfere with or obstruct one of its lawful governmental functions by
    deceit, craft or trickery, or at least by means that are dishonest.”
    Hammerschmidt v. United States, 
    265 U.S. 182
    , 188 (1924). The unlawful
    objective of Selgas and Green’s conspiracy was to defraud the United States
    “by impeding, impairing, obstructing or defeating the lawful function of the
    Internal Revenue Service in the ascertainment, computation, assessment, or
    collection of income taxes.”
    Selgas and Green raise essentially identical arguments, relying on
    language in Hammerschmidt and United States v. Haga, 
    821 F.2d 1036
     (5th
    Cir. 1987). In Hammerschmidt, the Court stated that “a mere open defiance
    of the governmental purpose to enforce a law by urging persons subject to it
    to disobey it” does not fall within the scope of the statute. 
    265 U.S. at 188
    .
    Similarly, in Haga, our court stated that a conspiracy to defraud “requires a
    showing of more than completely external interference with the working of a
    governmental program or disregard for federal laws,” and that “the essence
    of the conspiracy must at least involve a showing of more than inadvertent
    contact with a governmental agency or incidental infringement of
    government regulations.” 
    821 F.2d at 1041
    .
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    Both Selgas and Green claim that they did not interfere with the IRS’s
    lawful functions because the Government did not prove that the IRS followed
    administrative procedures concerning the assessment and collection of
    taxes—in other words, that the IRS’s tax assessment and tax collection effort
    as to Selgas were not “lawful.” Specifically, they claim that Selgas paid his
    taxes for tax years 1998–2002 and that he had no tax deficiency for 2005
    because the IRS had not followed certain administrative and statutory
    procedures, and therefore they did not interfere with the IRS’s lawful
    functions. Green also seems to argue that the IRS acted outside of its
    delegated authority altogether.
    Appellants’ arguments lack merit. First, to the extent that appellants
    appear to argue at times that the Government had to prove that a lawful
    government function was actually interfered with or obstructed, such an
    argument is contrary to black-letter law that “[t]he central feature of a
    conspiracy is the agreement,” not whether the object of the agreement was
    achieved. United States v. Sanders, 
    952 F.3d 263
    , 274 (5th Cir. 2020); see
    Unites States v. Booty, 
    621 F.2d 1291
    , 1297 (5th Cir. 1980) (“Possibility of
    success is not a requisite element of a criminal conspiracy under 
    18 U.S.C. § 371
    ”).
    More importantly, however, appellants’ suggestion that the object of
    the conspiracy was nothing more than “mere external interference” with the
    IRS is belied by evidence that the object was to actually interfere. Viewed in
    the light most favorable to the verdict, the evidence at trial showed that
    Selgas and Green conspired to, inter alia, amend MyMail’s tax return in
    order to misrepresent and underreport its income; submit Statements that
    similarly misrepresented and underreported Selgas’s income; and conceal
    Selgas’s money and assets from IRS collection efforts through the use of
    Green’s trust accounts and by transferring Selgas’s house to a trust
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    controlled by a relative. In other words, Selgas and Green did not merely
    advocate for their tax theories or protest the IRS’s policies and efforts, but
    instead conspired to put their theories into practice with the goal of directly
    impacting the IRS’s “ascertainment, computation, assessment, or collection
    of income taxes.”4
    Contrary to Selgas and Green’s arguments, the IRS’s compliance with
    its own administrative procedures is not relevant to whether the “object” or
    “essence” of the defendants’ conspiracy was to interfere with its lawful
    functions; proof of an administratively-determined tax deficiency is not an
    element of the offense; and the Government does not need to specify or prove
    in a minutely-detailed fashion that interference with a particular statute or
    procedure was the goal of the conspiracy, but can instead define the object of
    interference at a higher level of generality. See United States v. Clark, 
    139 F.3d 485
    , 489 (5th Cir. 1998) (defining “lawful function of the IRS” as
    “collecting taxes”).
    Reviewing the evidence in the light most favorable to the verdict, a
    rational juror could have found that the elements of § 371 were established
    beyond a reasonable doubt. The existence of an agreement, as well as a
    4
    Any reliance on United States v. Porter, 
    591 F.2d 1048
     (5th Cir. 1979), is
    unavailing, as the case is clearly distinguishable. Porter concerned an alleged scheme to
    defraud Medicare. 
    Id. at 1050-52
    . This court reversed defendants’ conspiracy-to-defraud
    convictions because their scheme interfered with no laws or regulations whatsoever: the
    Government alleged that the doctors involved in the scheme were prohibited from
    receiving certain fees, but, when pressed by the court, could identify no law or regulations
    that in fact prohibited such a fee arrangement. 
    Id. at 1057
    . Instead of interfering with a
    lawful government function, the Government claimed vaguely that “it was defrauded of its
    right to have the Medicare program conducted honestly and fairly.” 
    Id. at 1056
    . Here, by
    contrast, the Government alleged that Selgas and Green conspired to interfere with “the
    ascertainment, computation, assessment, or collection of income taxes,” which are clearly
    lawful government functions.
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    defendant’s knowledge of its objective and intent to join, can be established
    by circumstantial evidence alone. Sanders, 952 F.3d at 273; United States v.
    Schmick, 
    904 F.2d 936
    , 941 (5th Cir. 1990). “For the evidence to sustain the
    conviction, it is not necessary that the evidence show an express or formal
    agreement; evidence of ‘a tacit understanding is sufficient.’” United States
    v. Aubin, 
    87 F.3d 141
    , 145 (5th Cir. 1996) (quoting Iannelli v. United States,
    
    420 U.S. 770
    , 777 n.10 (1975)).          “The actions and the surrounding
    circumstances must be incriminating enough to warrant a finding that the
    Government proved the existence of an agreement beyond a reasonable
    doubt.” United States v. Ganji, 
    880 F.3d 760
    , 768 (5th Cir. 2018) .
    The evidence at trial showed that Green represented Selgas before the
    Tax Court such that both men knew that the Tax Court had ruled that Selgas
    had unpaid tax liability; Green testified that he knew about Selgas’s
    “extensive battle with the IRS” from the outset of their relationship and that
    Selgas introduced him to the “lawful dollar” theory; Green helped Selgas
    prepare and file the Statements that underreported his income using the
    unsupportable “lawful dollar” theory; the two worked together to convince
    MyMail to amend its Form 1065 in line with their theory; both knowing that
    Selgas owed taxes, Selgas put his money into Green’s trust accounts instead
    of using bank accounts in his own name; and Green paid Selgas’s living
    expenses out of the trust accounts. From this evidence, a rational jury could
    have found beyond a reasonable doubt that Selgas and Green had an
    agreement to defraud the IRS and that each had knowledge of the
    conspiracy’s object as well as intent to join in it.
    “An overt act is an act performed to effect the object of a conspiracy
    . . . . Though the act need not be of a criminal nature, it must be done in
    furtherance of the object of the conspiracy.” United States v. Pomranz, 
    43 F.3d 156
    , 160 (5th Cir. 1995). The evidence of overt acts at trial was
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    voluminous, and included, inter alia, bank records documenting dozens of
    deposits and withdrawals of Selgas’s money into and out of Green’s
    accounts; emails between Selgas, Green, and MyMail partners about
    amending the Form 1065; Statements prepared by Green that misreported
    Selgas’s income based on the discredited “lawful dollar” theory; and
    evidence of Green’s efforts to frustrate IRS Agent Daniel’s attempts to
    collect Selgas’s outstanding tax liabilities. From this evidence a rational jury
    could find that an overt act was performed in furtherance of the object of the
    conspiracy.
    D.
    Next, Selgas challenges the sufficiency of the evidence supporting his
    conviction for tax evasion. Title 
    26 U.S.C. § 7201
     penalizes “[a]ny person
    who willfully attempts in any manner to evade or defeat any tax imposed by
    this title or the payment thereof.” “The elements of tax evasion are:
    (1) willfulness; (2) existence of a tax deficiency; and (3) an affirmative act
    constituting an evasion or attempted evasion of the tax.” United States v.
    Bolton, 
    908 F.3d 75
    , 89 (5th Cir. 2018) (cleaned up). Selgas claims that the
    Government failed to prove any of the three elements. We disagree.
    Selgas mainly focuses on the tax deficiency element, which is also
    referred to in the caselaw as a “tax due and owing.” See United States v.
    Schafer, 
    580 F.2d 774
    , 777 (5th Cir. 1978). Selgas argues first that he in fact
    owed no taxes for 1998-2002, and that the jury was convinced otherwise
    “[t]hrough the use of false information/evidence.” Selgas in effect urges this
    court to reweigh the evidence, which we will not do, as it is contrary to the
    standard of review. Jackson, 
    443 U.S. at 319
    . Instead, viewing the evidence
    in the light most favorable to the verdict, we conclude that a rational jury
    could have found that Selgas owed taxes for the relevant years. For example,
    the jury saw IRS records showing unpaid tax liability.
    14
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    No. 21-10651
    c/w No. 21-10672
    As to his 2005 tax liability, Selgas argues that he did not have a “tax
    deficiency” as a matter of law because the Government did not prove that
    the IRS followed “statutory provisions” related to the assessment of taxes. 5
    The Government contends that Selgas’s argument is “meritless.” Similar
    to Selgas, the defendant in United States v. Nolen maintained that “a formal
    administrative tax assessment” was necessary to prove evasion of payment
    under § 7201. 
    472 F.3d 362
    , 378 (5th Cir. 2006). Our court, without need to
    settle the matter definitively because the case was resolved on other grounds,
    nonetheless concluded that “the weight of authority favors [the] view that an
    assessment is not required to prove attempted evasion of payment under
    § 7201.” Id. at 379–80 (quoting United States v. Farnsworth, 
    456 F.3d 394
    ,
    403 (3d Cir. 2006)).
    We agree with Nolen and are persuaded that the weight of authority
    establishes that a formal assessment is one piece of evidence that may prove
    the existence of a tax deficiency or a tax due and owing, but is not a
    requirement. See Farnsworth, 
    456 F.3d at
    401–03 (collecting cases); United
    States v. Silkman, 
    156 F.3d 833
    , 837 (8th Cir. 1998) (rejecting “theory that
    proof of a valid assessment is essential” and explaining that “while an
    assessment may be used to prove a tax deficiency . . . an assessment is not a
    necessary element of a payment evasion charge”); United States v. Daniel,
    
    956 F.2d 540
    , 542 (6th Cir. 1992) (rejecting argument that “in order to
    prosecute and convict under section 7201, the Internal Revenue Service must
    make an assessment of taxes owed and make a demand for payment” so long
    as existence of tax deficiency is proven); United States v. Voorhies, 
    658 F.2d 5
    The jury was instructed that “to prove that [Selgas] attempted to evade the
    payment of a tax, the Government does not need to prove that the IRS formally assessed,
    or determined, the amount of tax due and owing.” On appeal, Selgas does not challenge
    that portion of the jury instructions.
    15
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    710, 714 (9th Cir. 1981) (rejecting argument that “existence of a tax
    deficiency” for purposes of § 7201 requires a “final administrative
    determination of tax liability” and explaining that a “deficiency arises by
    operation of law” because tax is due and owed on date return must be filed
    regardless of availability of subsequent administrative procedures); United
    States v. Hogan, 
    861 F.2d 312
    , 315–16 (1st Cir. 1988) (holding that “no formal
    assessment was necessary” where a “tax due and owing” was established);
    United States v. Dack, 
    747 F.2d 1172
    , 1174–75 (7th Cir. 1984) (explaining that
    “tax assessment proceedings are civil in nature and are not normally a
    prerequisite to criminal liability” such that proof of “validly assessed tax” is
    only required “when the crime charged is one of evading the payment of
    taxes that have been assessed in civil proceedings” as a matter of fact (emphasis
    added)).
    Selgas’s argument to the contrary is premised on a misunderstanding
    of language in a Seventh Circuit case, United States v. England, that “there is
    no real distinction to be drawn between a ‘tax due and owing’ and a tax validly
    assessed.” 
    347 F.2d 425
    , 430 & n.10 (7th Cir. 1965). The defendant in
    England had been convicted of evading the assessment of income taxes some
    years prior to being charged with evading the payment of those assessed taxes.
    
    Id.
     at 427–28. Based on the previous evasion-of-assessment conviction, the
    district court instructed the jury that the previous tax assessments were valid
    as a matter of law. 
    Id.
     at 429–30. Equating “a tax validly assessed” with the
    “tax due and owing” element of tax evasion, the Seventh Circuit reversed
    because the existence of a tax due and owing is a matter of fact that must be
    found by a jury. 
    Id.
     at 430 & n.10. Viewed in context, the language from
    England that Selgas relies on does not bear the weight that he places upon it
    because it refers to the particulars of that case, not a general rule to be applied
    in all tax evasion cases. The Seventh Circuit itself has stated as much,
    16
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    No. 21-10651
    c/w No. 21-10672
    subsequently holding in United States v. Dack that “England did not define a
    valid tax assessment as a necessary element of tax evasion in every case,” but
    rather “stands only for the proposition that where, under a peculiar set of
    facts, a valid tax assessment is a necessary element, the court cannot instruct
    the jury to find that element as a matter of law.” 
    747 F.2d at 1174
    .
    In this case, the existence of a “tax deficiency” or a “tax due and
    owing” was properly given to the jury, and, regarding the 2005 tax year, we
    conclude that the evidence was sufficient for a reasonable jury to find that
    Selgas had tax due and owing. Viewed in the light most favorable to the
    verdict, the evidence showed that Selgas received more than $1 million in
    income from MyMail in 2005; that he did not file a valid tax return and
    instead filed a Statement that misreported receipt of $178,640 in “lawful
    dollars” but denied that this was “income”; and that he did not pay the tax
    on his substantial unreported income. This evidence was clearly sufficient
    for the jury to find the existence of a tax deficiency beyond a reasonable
    doubt.
    Turning to the other elements, willfulness is “a voluntary, intentional
    violation of a known legal duty.” United States v. Kim, 
    884 F.2d 189
    , 192 (5th
    Cir. 1989). Evidence of willfulness “is ordinarily circumstantial, since direct
    proof is often unavailable.” 
    Id.
     (citation omitted). “Circumstantial evidence
    in this context may consist of . . . ‘any conduct, the likely effect of which
    would be to mislead or to conceal.’” 
    Id.
     (quoting Spies v. United States, 
    317 U.S. 492
    , 499 (1943)) (internal citations omitted); see also United States v.
    Herrera, 
    559 F.3d 296
    , 300–02 (5th Cir. 2009) (holding that jury could infer
    willfulness from acts of concealment, including transferring money to
    another’s bank account and putting property in another’s name via quitclaim
    deed). And an affirmative act of tax evasion can be “any conduct, the likely
    effect of which would be to mislead or to conceal,” so long as “the tax-
    17
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    No. 21-10651
    c/w No. 21-10672
    evasion motive plays any part in such conduct.” Spies, 
    317 U.S. at 499
    . “By
    way of illustration,” such conduct includes, as relevant here, “concealment
    of assets or covering up sources of income, [and] handling of one’s affairs to
    avoid making the records usual in transactions of the kind.” 
    Id.
    Viewed in the light most favorable to the verdict, the evidence showed
    that Selgas failed to report a substantial amount of income; influenced
    MyMail to amend its tax return to underreport how much income it
    distributed to the Selgases; converted at least $1 million of income into gold
    coins; purchased a house with gold coins and transferred it to a trust
    controlled by a relative; and hid his income in Green’s trust accounts and
    used the concealed funds to pay his living expenses for at least a decade,
    including during the years that IRS Agent Daniel was contacting Selgas and
    Green, as Selgas’s IRS power-of-attorney, in an attempt to collect Selgas’s
    unpaid tax liabilities. Based on the forgoing evidence, a reasonable jury could
    find beyond a reasonable doubt both willfulness and an affirmative act of
    evasion.
    E.
    Next, both appellants assert that the district court plainly erred in not
    giving certain jury instructions. Both correctly concede that review is for
    plain error. See United States v. Dupre, 
    117 F.3d 810
    , 816 (5th Cir. 1997)
    (“[P]roposed [jury] instructions do not preserve error on appeal, absent an
    objection specific to the counts at issue.”). Selgas submitted thirty jury
    instructions. However, at the charge conference neither Selgas nor Green
    requested any of the instructions be given or objected to their exclusion. On
    appeal, Selgas argues that the district court erred in failing to give submitted
    instructions 9–13, 26, and 28. Green argues the same regarding instructions
    6, 10–13, and 26. All of appellants’ challenges to the jury instructions fail.
    18
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    No. 21-10651
    c/w No. 21-10672
    “A jury instruction must: (1) correctly state the law, (2) clearly
    instruct the jurors, and (3) be factually supportable.” United States v. Fairley,
    
    880 F.3d 198
    , 208 (5th Cir. 2018) (citation omitted). “Trial judges have
    substantial latitude in tailoring their instructions if they fairly and adequately
    cover the issues presented in the case,” and failure to give a requested
    instruction is error “only when the failure to give a requested instruction
    serves to prevent the jury from considering the defendant’s defense.” United
    States v. Masat, 
    948 F.2d 923
    , 928 (5th Cir. 1991). “Error in a charge is plain
    only when, considering the entire charge and evidence presented against the
    defendant, there is a likelihood of a grave miscarriage of justice.” United
    States v. McClatchy, 
    249 F.3d 348
    , 357 (5th Cir. 2001) (internal quotation
    marks and citation omitted). “Jury instruction error ‘does not amount to
    plain error unless it could have meant the difference between acquittal and
    conviction.’” Fairley, 880 F.3d at 208 (quoting McClatchy, 
    249 F.3d at 357
    ).
    To begin, we note that appellants’ briefing includes many conclusory
    statements and fails to meaningfully address all four components of plain
    error review as to all challenged jury instructions. To the extent their
    arguments are not forfeited for inadequate briefing, however, Selgas and
    Green have failed to show plain error. Even if we were to assume that
    appellants’ proposed instructions were correct statements of the law (which
    the Government contests), neither appellant has shown that failure to give
    the instructions constitutes an error that was clear or obvious, or that any
    error affected their substantial rights or “seriously affect[ed] the fairness,
    integrity or public reputation of judicial proceedings” such that we should
    exercise our discretion to remedy the error. Puckett, 
    556 U.S. at 135
    ; see also
    United States v. Stockman, 
    947 F.3d 253
    , 260 (5th Cir. 2020) (explaining that
    “controlling authority on point” or “closely analogous precedent” is needed
    to show “clear or obvious” error).
    19
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    First, Selgas’s and Green’s briefing regarding instructions 9-13 and
    Green’s briefing regarding instruction 26 wholly fail to address all four
    components of plain error, and are rejected without further comment. Next,
    Selgas’s argument that the omission of instruction 26 (his proposed
    definition of a “Beard return”6) and instruction 28 (his proposed definition
    of a “tax deficiency”) “blinded the jury to Selgas’s defense” that he was
    “rel[ying] on the law and the IRS’s legal duties” and “incapacitate[d] the
    jury from determining whether [he] had a good faith defense that he was
    complying with the law” also fails. Selgas has not shown that failure to give
    either instruction was clear or obvious error that affected his substantial
    rights. And, contrary to his argument, Selgas in fact presented his good faith
    defense to the jury, and the jury was properly instructed on the definition of
    “good faith,” told that “good faith” was “a complete defense to the
    charges” because it was inconsistent with the mental state of willfulness, and
    told that it was the Government’s burden to prove that defendants acted with
    the requisite mental state.
    Finally, Green argues that failure to give instruction 6, which
    purported to define “What a Conspiracy to Defraud Is and Is Not,” impaired
    his “Haga defense.” The district court’s instructions on the conspiracy
    6
    Selgas argues that his 2005 Statement was a “Beard return” that self-assessed his
    tax liability. See Beard v. Commissioner, 
    82 T.C. 766
    , 777–79 (1984). “In Beard v. Comm’r.,
    the United States Tax Court also examined the question of when a document may be said
    to constitute a valid tax return for statute-of-limitations purposes. The Beard court held
    that, in order for a document to be considered a return, ‘there must be sufficient data to
    calculate tax liability; . . . the document must purport to be a return; . . . there must be an
    honest and reasonable attempt to satisfy the requirements of the tax law; and . . . the
    taxpayer must execute the return under penalties of perjury.’” United States v. Davis, 
    603 F.3d 303
    , 306–07 (5th Cir. 2010) (quoting Beard, 82 T.C. at 777) (internal citation omitted).
    Selgas’s Statement was not a “reasonable attempt to satisfy the requirements of the tax
    law,” and the IRS contested that it was executed under penalty of perjury.
    20
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    No. 21-10651
    c/w No. 21-10672
    count were based on the Fifth Circuit pattern jury instruction and correctly
    stated the law. See United States v. Cessa, 
    856 F.3d 370
    , 376 (5th Cir. 2017)
    (explaining that district court does not err in using pattern instruction which
    correctly states the law). Green cites no controlling authority requiring his
    preferred instruction to be given and therefore cannot show a clear or obvious
    error. See Stockman, 947 F.3d at 260. And he fails to explain how the absence
    of his proposed instruction prevented him from presenting his defense or
    otherwise affected his substantial rights, or why we should exercise our
    discretion under prong four. Green has not shown plain error.
    F.
    Last, we consider Selgas’s claim that he received ineffective
    assistance of counsel in violation of his Sixth Amendment rights. This claim
    faces two hurdles on direct appeal. First, Selgas did not raise it until his
    motion to reconsider the district court’s denial of his Rule 33 motion for a
    new trial. Claims of ineffective assistance are reviewed de novo. However,
    arguments raised for the first time in a motion for reconsideration are
    reviewed on direct appeal for plain error.7 Second, we usually do not consider
    IAC claims on direct review: “This court will consider [IAC] claims on
    7
    In his opening brief to this court, Selgas asserts that he is entitled to de novo review
    because his IAC claim was brought to the district court’s attention “in his Rule 33 and Rule
    29 motions.” This is not so. As the district court correctly noted in its order denying
    Selgas’s motion for reconsideration, and as our review of the record confirms, the IAC
    claim was not included in the initial Rule 29 or Rule 33 motions, but rather was first raised
    in the motion for reconsideration. In his reply brief, Selgas again misrepresents the record,
    asserting that his IAC claim was presented to the district court “twice,” both in his motion
    for reconsideration and in his supporting brief. As the motion and brief were submitted to
    the district court at the same time and in conjunction with each other, it is misleading to
    claim that the issue was presented “twice.” Such material misrepresentations are not
    appreciated, and we admonish counsel to act with the utmost candor in future appearances
    before this court or any court.
    21
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    direct appeal only in ‘rare cases’ in which the record allows a reviewing court
    to ‘fairly evaluate the merits of the claim.’” United States v. Aguilar, 
    503 F.3d 431
    , 436 (5th Cir. 2007) (quoting United States v. Partida, 
    385 F.3d 548
    ,
    568 (5th Cir. 2004)). Typically, “a § 2255 motion is the preferred method
    for raising a claim of ineffective assistance of counsel.” United States v.
    Gordon, 
    346 F.3d 135
    , 136 (5th Cir. 2003) (citing Massaro v. United States, 
    538 U.S. 500
     (2003)). We cannot consider Selgas’s IAC claim on direct appeal
    because the record does not fairly allow for an evaluation of the merits, and
    thus deny it without prejudice to Selgas raising his claim on collateral review.
    See United States v. Isgar, 
    739 F.3d 829
    , 841 (5th Cir. 2014).
    IV.
    For the forgoing reasons, Selgas’s and Green’s convictions and
    sentences are AFFIRMED.
    22