889 F.2d 1085
UNITED STATES of America, Plaintiff-Appellee,
Lloyd C. PAYNE, Defendant-Appellant.
United States Court of Appeals, Fourth Circuit.
Submitted Sept. 14, 1989.
Decided Nov. 7, 1989.
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Thomas G. Ross, Ross & Powell, on brief for appellant.
Breckinridge L. Willcox, United States Attorney, Gregory Welsh and William K. Meyer, Assistant United States Attorneys, on brief for appellee.
Before K.K. HALL, CHAPMAN, and WILKINS, Circuit Judges.
Lloyd C. Payne appeals from his conviction of two counts of tax evasion in violation of 26 U.S.C.A. Sec. 7201 (West 1989) for the tax years 1983 and 1984 and two counts of filing a false and fraudulent tax return in violation of 26 U.S.C.A. Sec. 7206(1) (West 1989) for those same years. On appeal Payne argues that the district court erred in refusing to instruct the jury on Payne's "reliance on advice" defense, that his convictions for filing a false and fraudulent return are lesser included offenses of tax evasion, that the search warrant was overbroad, that the district court erred in admitting evidence surrounding his prior conviction of possession with intent to distribute marijuana, and that the district court erred in refusing to admit Payne's 1986 and 1987 tax returns into evidence.
Payne is correct that under the circumstances here the filing of a false and fraudulent return is a lesser included offense of tax evasion. United States v. Lodwick, 410 F.2d 1202 (8th Cir.), cert. denied, 396 U.S. 841 (1969). See also United States v. Snyder, 766 F.2d 167 (4th Cir.1985). Therefore, we vacate Payne's conviction of two counts of filing a false and fraudulent return and remand to the district court for correction of the judgment and commitment order.
We have considered the remaining issues raised in the briefs and find Payne's contentions meritless. Therefore, we affirm Payne's conviction of two counts of tax evasion. 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. Fed.R.App.P. 34(a)(3); Loc.R. 34(a).
AFFIRMED in part;
VACATED in part; and
REMANDED in part.