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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 91-8547
___________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
SUE N. ROBINSON,
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court
for the Western District of Texas
____________________________________________________
(September 24, 1992)
Before REYNALDO G. GARZA, DAVIS, and BARKSDALE, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Sue Robinson appeals her conviction on two counts of tax
evasion. She also challenges her sentence on the ground that the
trial judge improperly enhanced her sentence based on her Korean
national origin. We affirm.
I.
Sue Robinson operated a massage parlor in Austin, Texas, from
1980 to 1986. During 1984 and 1985, Robinson deposited some of the
business's cash receipts into her personal bank accounts. As a
result, her 1984 and 1985 income tax returns, which her accountant
prepared from Robinson's records, substantially underreported her
business income. Neither Robinson nor her husband signed the Form
1040 she filed in 1984. Robinson and her accountant signed the

1985 return, but her husband did not. In 1986, Robinson gave false
1099 Forms to two of her employees, who used those forms to file
false tax returns.
The government charged Robinson with willfully attempting to
evade income tax for 1984, in violation of 26 U.S.C. § 7201 ("Count
I"); filing a false 1985 income tax return, in violation of 26
U.S.C. § 7206(1) ("Count II"); and two counts of aiding and
assisting in the preparation of a false income tax return in
violation of 26 U.S.C. § 7206(2) ("Counts III and IV"). After a
full trial, the jury convicted Robinson on all four counts. The
court denied Robinson's motion for acquittal on Counts I and II and
sentenced her to a total of eight years of imprisonment, five years
probation, and a $25,000 fine.
Robinson challenges her conviction on Counts I and II on the
ground that the government failed to prove the allegations in the
indictment and that a material variance exists between the
indictment and the proof at trial. According to Robinson, Count I
of the indictment is flawed because it describes her unsigned 1984
Form 1040 as a "return." Likewise, Robinson challenges Count II
because it refers to her 1985 Form 1040, which her husband did not
sign, as a "joint" return. Robinson also contends that the judge
gave her an enhanced sentence because she is Korean-American. We
consider each of these arguments below.
II.
A.
Count I of the indictment charges that Sue Robinson "did
willfully attempt to evade and defeat a large part of the income
2

tax due and owing by her and her spouse . . . for the calendar year
1984, . . . by causing to be filed, a false and fraudulent joint
U.S. Individual Income Tax Return, Form 1040 . . . ." Robinson
argues that, because neither she nor her husband signed the 1984
form, it is not a "return" and, therefore, the government failed to
prove its case.
The elements of the crime of tax evasion under 26 U.S.C. §
72011 are (1) willfulness, (2) a tax deficiency, and (3) an
affirmative act of evasion or attempted evasion of the tax.
Sansone v. United States, 380 U.S. 343, 351 (1965). The
"affirmative act" of evasion can be "any conduct, the likely effect
of which would be to mislead or to conceal." Spies v. United
States, 317 U.S. 492, 499 (1943). That conduct may, but need not,
include filing a false tax return. Filing unsigned "false
documents which purport[] to be income tax returns" may also
constitute an attempt to evade taxation. Gariepy v. United States,
220 F.2d 252, 259 (6th Cir.), cert. denied, 350 U.S. 825 (1955).
See also Moore v. United States, 254 F.2d 213 (5th Cir.) (holding
that an unsigned tax return form was sufficient evidence to support
a conviction for tax evasion), cert. denied, 357 U.S. 926 (1958);
Montgomery v. United States, 203 F.2d 887 (5th Cir. 1953) (same).2
1 Section 7201 provides, in relevant part:
Any person who willfully attempts in any manner to
evade or defeat any tax imposed by this title or the
payment thereof shall, in addition to other penalties
provided by law, be guilty of a felony and, upon
conviction thereof, shall be fined not more than
$100,000 . . . or imprisoned not more than 5 years, or
both, together with the costs of prosecution.
2 Robinson suggests that Gariepy, Moore, and Montgomery are
inapplicable because, she argues, tax returns did not have to be
3

The filing of a "return" is not an element of the crime of tax
evasion: "'[t]he real character of the offense lies, not in the
failure to file a return, or in the filing of a false return, but
rather in the attempt to defraud the government by evading the
tax.'" Gariepy, 220 F.2d at 259 (quoting Emmich v. United States,
298 F. 5, 9 (6th Cir.), cert. denied, 266 U.S. 608 (1924)).
Robinson argues that the government did not prove its case,
because it failed to prove the allegations in the indictment
describing her unsigned 1984 Form 1040 as a "return." We disagree.
We have held that when an indictment alleges non-essential facts,
the government need not prove them in order to sustain a
conviction: "the Government need not prove all facts charged in
the indictment as long as it proves other facts charged in the
indictment which do satisfy the essential elements of the crime."
United States v. England, 480 F.2d 1266, 1269 (5th Cir.), cert.
denied, 414 U.S. 1041 (1973). See also United States v. Hughes,
766 F.2d 875, 879 (5th Cir. 1985). In this case, because the
filing of a return is not an element of the crime of tax evasion,
the charge in the indictment that Robinson filed a false "return"
is mere surplusage. The government did not have to prove that the
false Form 1040 was a "return" in order to show an affirmative act
verified by signature until 1954. Robinson's premise is false.
Under earlier tax laws, taxpayers were required to sign their
returns under oath. The verification requirement (currently 26
U.S.C. § 6065) was introduced in 1942 to replace the cumbersome
process of signing returns under oath before a notary public.
Revenue Act of 1942, Pub. L. No. 77-753, sec. 136(a), § 51(a), 56
Stat. 798, 836. The purpose of verification, therefore, was not
to impose additional burdens on taxpayers, but instead to
simplify the filing process. S. Rep. No. 685, 81st Cong., 1st
Sess., pt. II, § 4 (1949), reprinted in 1949 U.S.C.C.A.N. 1876,
1878-79.
4

of evasion.3
Moreover, we find no support for Robinson's claim that the
variance between the allegations in the indictment and the proof
was a material variance. A variance is material if it prejudices
the defendant's "substantial rights," either by surprising the
defendant at trial or by placing the defendant at risk of double
jeopardy. Berger v. United States, 295 U.S. 78, 82 (1935); United
States v. Richerson, 833 F.2d 1147, 1155 (5th Cir. 1987). In
contrast, a variance is immaterial if it does not "impair the
defendant's ability to defend himself through failing to identify
the nature of the charge." United States v. Eaton, 501 F.2d 77, 79
(5th Cir. 1974). See also United States v. Arlt, 567 F.2d 1295,
1298 (5th Cir.) (no prejudice, and thus no material variance, when
an indictment alleged that defendant made false statements on a W-4
form, but defendant actually used a different form), cert. denied,
436 U.S. 911 (1978).
Robinson does not suggest how she was surprised or prejudiced
by the evidence of her unsigned return. According to a government
agent's testimony, she acknowledged that she filed the unsigned
1984 Form 1040. In sum, Robinson had notice of the charges against
her and of the particular evidence that supported those charges.
She was tried for the crime specified in the indictment and thus is
at no risk of double jeopardy. See United States v. Bursten, 453
F.2d 605, 607-08 (5th Cir. 1971), cert. denied, 409 U.S. 843
3 Robinson cites several cases from various tax contexts
that hold that an unsigned Form 1040 is not a "return." Because
the filing of a "return" is not an element of the crime, we need
not address that issue.
5

(1972). We conclude that the variance was immaterial.
B.
Robinson also contends that the government's proof failed to
establish her guilt of Count II of the indictment. Count II
charges her with violating 26 U.S.C. § 7206(1) by willfully
subscribing "a joint U.S. Individual Income Tax Return, Form 1040,
for the calendar year 1985, which . . . she did not believe to be
true and correct as to every material matter." Although Robinson
signed the 1985 Form 1040, which purported to be a joint return,
her husband did not. Robinson argues that because her husband did
not sign the return, it is not a "joint" return and, therefore, the
government failed to prove the allegations in the indictment.
To sustain a conviction under § 7206(1),4 the government must
prove that a defendant (1) made and subscribed a return, statement,
or other document under penalty of perjury; (2) knew that the
document was not true and correct as to a material matter; and (3)
acted willfully. United States v. Bishop, 412 U.S. 346, 347
(1973); Hoover v. United States, 358 F.2d 87, 88 (5th Cir.), cert.
denied, 385 U.S. 822 (1966). It is not an element of the crime
that the subscribed document be a "joint" return.
4 Section 7206 provides, in part:
Any person who--
(1) Willfully makes and subscribes any return,
statement, or other document, which contains or is
verified by a written declaration that it is made under
the penalties of perjury, and which he does not believe
to be true and correct as to every material matter . .
.
. . .
shall be guilty of a felony and, upon conviction
thereof,
shall be fined not more than $100,000 . . . or
imprisoned not more than three years, or both,
together with the costs of prosecution.
6

Robinson's 1985 tax return may well qualify as a "joint"
return.5 If so, there is no variance. But we need not decide how
to characterize the return, because the variance, if any, is not a
material one. Robinson did sign the 1985 return at issue in Count
II. That return was marked "married filing jointly" and included
her husband's name, social security number, income, and W-2 form.
The indictment's description of the Form 1040 as a "joint" return
did not prejudice or surprise Robinson in any way. The Second
Circuit reached the same result in United States v. Kuntz, 259 F.2d
871, 872 (2d Cir. 1958): "the erroneous reference in the
indictment to joint returns filed by the defendant in the years in
question does not constitute a fatal variance." Thus, we conclude
that any variance between Count II of the indictment and the proof
at trial was immaterial.
III.
Robinson also challenges the sentence the trial court imposed
in this pre-Guidelines case. Robinson contends that the trial
judge gave her an enhanced sentence based on her Korean national
origin, in violation of her Fifth Amendment rights. To support
this claim, Robinson points to the following excerpts from the
judge's remarks during the sentencing proceedings:
I'm also in sentencing considering all of the
information which has been brought to the attention of
the court at this hearing this morning. And although I
5 A return signed by only one spouse nevertheless qualifies
as a joint return if the parties intended to file jointly.
Estate of Upshaw v. Commissioner, 416 F.2d 737, 742-43 (7th Cir.
1969), cert. denied, 397 U.S. 962 (1970); Shea v. Commissioner,
780 F.2d 561, 567 (6th Cir. 1986); Carrick v. Commissioner, No.
15288-87, 62 T.C.M. (CCH) 938, 1991 WL 194057, at *4 (T.C. Oct.
2, 1991).
7

cannot personally say that I have suffered through the
same experiences that she has in life--tell her that--I
can assume that someone who comes from a background like
she has come from, background of poverty and some
deprivation, would appreciate the freedoms and liberties
that we have in this country more than I would having
been born here and having grown up accepting those
liberties and freedoms.
And that someone who comes from the background of a
citizen of Korea and the governmental history of that
country would certainly know and appreciate that freedom
and liberty is not free, that it costs the citizens
something.
And it's the court's view that no one in this
country has or should have a free ride, that is, to
benefit by the freedoms and liberties we have and not pay
for them to some extent.
After reviewing the context of those remarks, we cannot agree
that the judge sentenced Robinson more severely based on her
nationality. Robinson's attorney initially brought Robinson's
national origin to the court's attention by asking the judge to
consider her Korean background as a mitigating factor.6 As his
6 Before the court sentenced Robinson, her attorney stated:
The thing is is that this woman, who was orphaned on
the streets in Seoul as a child, grew up in the street. And
she was brought to this country by a G.I. She was brought
here literally out of the rice field.
And this overwhelming wealth here is something that
perhaps can be numbing and awe inspiring for someone who had
to make and do as they could just to eat.
When she grew up, it was just after the Korean war, and
Korea was filled with nothing but chaos and worse. I would
ask that Your Honor take those considerations into his
sentence.
. . .And I'm suggesting to you that, No. 1, when you grow up
in a country that doesn't even have an individual income tax
or tradition of income tax, as Korea is, and you're brought
to this country poor, and you see that you can make money--
and she did make a lot of money--that perhaps there's some
mitigating factors there in this thing in that she didn't
have the opportunity to be inculcated as we were with
anything other than having no parents and the street as her
guide.
8

remarks make clear, the trial judge responded to that request and
refused to give her more lenient treatment on the basis of her
nationality. The record belies Robinson's argument that the judge
"enhanced" her sentence for that reason.
AFFIRMED.
9