Preview
NO. 17-DCV-243655
DAVID H. HAMILTON, AS TRUSTEE IN THE DISTRICT COURT
OF T. H. TRUST
Plaintiff and Counter-Defendant,
Vv.
ROBERT G. PATE AND JUDY K. PATE § 434TH JUDICIAL DISTRICT
Defendants and Counter-Plaintiffs §
§
Vv. §
§
GEORGE M. BISHOP
Cross-Defendant, § OF FORT BEND COUNTY, TEXAS
MOTION FOR CONTEMPT
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COME Defendants, Robert G. Pate and Judy K. Pate, Movants herein, and request
that George M. Bishop be found and held in Contempt of Court. In support thereof, Movants
would show the Court the following:
George M. Bishop is a Counter-Defendant herein. Defendant Bishop was disbarred in
2003 after being suspended from the practice of law in 2002,! ? resulting from his conviction for
' See BODA Actions, 66 Tex. Bar.J. 735. Copy attached as Exhibit A.
? See disciplinary record of Defendant Bishop as reflected on his State Bar of Texas web profile, a copy of which is
attached as Exhibit B.
two counts of federal income tax evasion and one count of filing a false tax return.? Although
having been disbarred as an attorney in 2003, it appears that Defendant Bishop may have
subsequently been reinstated as a member of the bar. Reputation evidence suggests that Bishop
continued to practice law even during the period of his disbarment.‘ Defendant Bishop
previously appeared in this case as an attorney for the Plaintiff, David H. Hamilton, Trustee of
T.H. Trust.
I.
On March 2, 2020, a hearing was held in this Court on the Pates' Motion for
Disqualification of Bishop to represent the Plaintiff, which the court granted. On March 4, 2020,
the court signed its order disqualifying Bishop and further ordered as follows:
IT IS FURTHER ORDERED that George M. Bishop shail promptly provide the
Court and opposing counsel with appropriate contact information, including
address, telephone number and email address for either 1) his successor
counsel; or 2) his resulting pro se client, David H Hamilton, Trustee of TH
Trust.
I.
Thereafter, Defendant Bishop filed his petition for writ of mandamus to the Court of
Appeals for the First District of Texas in Case Number 01—20-004400-CV, wherein he asked
the appellate court to vacate the trial court's order that granted the motion to disqualify counsel.
3 United States of America v. George Meredith Bishop III, 260 4F3d 535 (Fifth Circuit 2001). Defendant Bishop
was sentenced to 18 months in prison for each count. Copy attached as Exhibit C.
* A Prime Example of What’s Wrong with the Texas Legal Profession, Laws in Texas, July 27, 2006.
Downloaded on February 20, 2021 from www.texaspubliccorruption.ru/. Copy attached as Exhibit D.
On July 21, 2020, the appellate court issued its opinion denying the petition for writ of
mandamus.
Iv.
Thereafter, Defendant Bishop filed his petition for writ of mandamus to the Supreme
Court of Texas in Case Number 20 — 0601, wherein he asked the Supreme Court to vacate the
trial court's order that granted the motion to disqualify counsel. On November 2, 2020, the
Supreme Court of Texas issued its opinion denying the petition for writ of mandamus.
Vv.
Meanwhile, on April 30, 2018, the Honorable Brenda Kennedy, Judge of the 21st judicial
District Court in Washington County, Texas, entered a Modified Judgment of Partially Probated
Suspension in Cause Number 36282, styled Commission for Lawyer Discipline vs. George M.
Bishop III, wherein Defendant Bishop was suspended from the practice of law for the one year
period beginning May 1, 2018 and given a suspended probation for one year beginning May 1,
2019.5 A copy of the Judgment is attached hereto as Exhibit E.
The Washington County Judgment provided as follows:
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED, that
Respondent, George M. Bishop Ill, on or before May 1, 2018, shall notify each
of his current clients and opposing counsel in writing of this suspension.
Defendant Bishop failed and refused to comply with this requirement, as evidenced by
the fact that the undersigned attorney received no such notification.
5 Modified Judgment of Partially Probated Suspension Cause No. 36282; Commission for
Lawyer Discipline v. George M. Bishop, Ill, In 21* Judicial District Court of Washington
County, Texas. Copy attached as Exhibit E.
The Judgment further provided as follows:
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Respondent
shall, on or before May I, 2018, notify in writing each and every justice of the
peace, judge, magistrate and chief justice of each and every court in which
Respondent has any matter pending of the terms of this judgment, the style and
cause number of the pending matter(s), and the name(s), address(es) and
telephone number(s) of the client(s) Respondent is representing in the Court.
Vi.
Defendant Bishop failed and refused to comply with these requirements as evidenced by
the fact that (1) this Court's records contain no evidence of notification of said judgment by
Defendant Bishop, and further (2) the records of the First Court of Appeals contains no record of
notification of said judgment in Cause No. 01-20-004400, wherein Defendant Bishop had
applied for a writ of mandamus and asked the appellate court to vacate this Court's order that had
granted a motion to disqualify counsel in this case.
VI.
Defendant Bishop has failed to comply with the Court's order by failing to promptly
provide the Court and opposing counsel with appropriate contact information, including address,
telephone number and email address for either 1) his successor counsel; or 2) his resulting pro se
client, David H Hamilton, Trustee of TH Trust.
VIL.
No successor counsel has appeared herein nor has contact information been provided
for either successor council nor the Plaintiff, George H. Hamilton, Trustee of the TH Trust.
Ix.
By failing to provide an address for either successor counsel or for defendant Bishop's
resulting pro se client, David H. Hamilton, Trustee of TH Trust, Defendant Bishop has made it
impossible for the Pates and their undersigned attorney to properly give notice of filings in this
case to plaintiff David H. Hamilton, Trustee of TH trust, resulting in delay of this case and the
necessity to file this motion.
x
The undersigned attorney has made reasonable efforts to locate David H. Hamilton,
Trustee of TH Trust, but it appears that all known addresses for said person in Kissimmee,
Florida are incorrect. The undersigned attorney further believes that the address shown in the
certificate of service below for David H. Hamilton is the most recent address on the records of
the agency of the State of Texas which issues driver's licenses and has used that address for
giving notice as to this motion and a previously filed Motion for Summary Judgment, but has
been unable to verify that such address is actually a valid address for David H Hamilton.
XI.
George M. Bishop should be held in contempt of court for his failure to comply with the
order of the court which has been affirmed by both the First Court of Appeals and the Supreme
Court of Texas.
XII.
Attorney's fees and costs in the amount of $10,000.00 should be granted to Defendants.
WHEREFORE, PREMISES CONSIDERED, Defendants request that the Court hold
Defendant George M. Bishop in contempt of Court, order compliance in all respects to the
Court's order, for reasonable attorney's fees for preparing and presenting this motion, and for
such other and further relief as may be suitable in law or in equity.
Respectfully submitted,
UE HOLOWAYSIONES LAW FIRM PLLC
}
by Cty
Russell C. Jones C
Sep AM.
Texas Bar No. 10954300 /
Email: rjones@jonesattomneys.com
407 Julie Rivers Drive
Sugar Land, TX 77478
Tel. (281) 242-8100
Fax. (281) 242-7474
Attorney for Defendants
Robert G. Pate and Judy K. Pate
CERTIFICATE OF SERVICE
I certify that on February 2- [. 2021 a true and correct copy of Defendant's Motion for
Contempt was served to each person listed below by the method indicated.
George M. Bishop, Pro Se
4191 P.M. 1155 South
Chappell Hill, Texas 77426
Electronically through the Electronic Filing Manager
David H. Hamilton, individually and as Trustee of T. H. Trust, pro se
11635 Royal Oaks Trace
Houston, TX 77082-2851
VIA CERTIFIED MAIL #
RETURN RECEIPT REQUESTED AND U.S. FIRST CLASS MAIL
Ch bl Cpee ~
Russell C. Jones
VERIFICATION
STATE OF TEXAS
COUNTY OF FORT BEND §
BEFORE ME, the undersigned authority, personally appeared Russell C. Jones, who, on
oath, stated that the statements made in the foregoing Motion for Contempt are true and correct
Cita Russell C. Jones
Y
SUBSCRIBED AND SWORN TO BEFORE ME on this the 2 t day of
—
Uw 2021, to certify which witness my hand and seal of office
at
dade lV. ban,
My BRENDA K FREY Notary Public, State of Texas
tary Public, State of Texas
Comm. Expires 05-23-2022
“ats Notary 1D 459838-6
EXHIBIT “A”
Motion for Contempt
September 2003
66 Tex. Bar. J. 735
BODA ACTIONS
On April 24, the Board of Disciplinary Appeals entered an agreed judgment of public
reprimand against Richard Todd Hopes, 50, of Houston.
On June 6, the Board of Disciplinary Appeals entered an agreed judgment of public
reprimand against Michael S. Fawer, 67, of Covington La.
On July 21, The Board of Disciplinary Appeals signed a judgment of disbarment
against Chester Lash Thornton, 53, of Houston.
On July 24, the Board of Disciplinary Appeals entered an agreed judgment of active
suspension against Edward P. Bolding, 67, of Tucson, Ariz.
On June 24, the Board of Disciplinary Appeals entered an agreed judgment of public
reprimand against Rebert P. Morrison, 50, of Seattle, Wash.
On July 21, the Board of Disciplinary Appeals affirmed the judgment of probated
suspension against William D. Beard, 43, of McKinney.
On July 21, the Board of Disciplinary Appeals signed a judgment of disbarment
against Bernardo Eureste, 60 of Houston.
On July 21, the Board of Disciplinary Appeals reversed and dismissed with prejudice
the judgment of fully-probated suspension, entered by an evidentiary panel of the
District 1-A Grievance Committee against Billy D. Hullum, 64 of Fort Worth.
On July 18, the Board of Disciplinary Appeals signed a final judgment of disbarment
against George M. Bishop ITI, 61, of Houston.
On July 18, the Board of Disciplinary Appeals signed a final judgment of disbarment
against Ramon A. Villafranca, 63, of Laredo.
RESIGNATION
On May 9, the Supreme Court of Texas accepted the resignation, in lieu of discipline
of Mark A. Quigley, 55 of Everett, Wash.
DISBARMENTS
On May 22, J. Michael Boswell, 50 of Houston was disbarred by the District 4-D
Grievance Committee.
On April 2, Sonya E. Lucas, 47, of Houston was disbarred by the District 4-C
Grievance Committee.
On April 15, William H. Pippen, 68, of Houston was disbarred by the District 4-I
Grievance Committee.
Ss PEN: S
On Feb. 18, W. Richard Focrum ILI, 48, of Lubbock received a two-year, partially-
probated suspension effective April 1, 2003 from the District 16-A Grievance
Committee.
On March 7, Edward Henry Green, 49, of Houston received a four-year suspension
effective Fed. 1, 2002 from the District 4-J Grievance Committee.
On April 24, Julie-Ann Hager, 49, of Round Rock received a two-year, partially-
probated suspension effective May 1, 2003, with the first year actively served and the
remainder probated from the District 9-A Grievance Committee.
On Feb. 21, Douglas W. Henager, 59, of Waco received a four-year, partially-probated
suspension effective March 1, 2003, with the first two years actively served and the
remainder probated from the District 8-B Grievance Committee.
On Nov. 19, Robert Lynn Huddleston, 57, of Brownwood received a three-year,
partially-probated suspension effective Feb. 1, 2003, with the first 18 months actively
served and the remainder probated from the District 16-A Grievance Committee.
On May 2, John L. Hudson Jr., 52, of Houston received a three-year, partially
probated suspension effective May 1, 2003, with the first three months actively served
and the remainder probated from the District 4~-C Grievance Committee.
On April 15, David Wayne Kirk, 59, of Corpus Christi received a 13-month, partially-
probated suspension effective April 15, 2003, with the first month actively served and
the remainder probated from the District 11-A Grievance Committee.
On April 22, Gerald R. Lopez, 62 of Odessa received a four-year, fully-probated
suspension effective May 1, 2003 from the 161st District Court of Ector County.
On April 15, James R. Marlen, 37, of Dallas received a two-year, fully-probated
suspension effective May 1, 2003 from the District 6-A Grievance Committee.
On March 31, William B. Portis, Jr., 71, of Houston received a two-year, fully-
probated suspension effective April 1, 2003 from the 295' District Court of Harris
County.
On March 28, Patricia A. Rudder, 51, of Fort Worth received an 18-month suspension
effective March 10, 2003 from 17'4 District Court of Tarrant County.
On May 6, Garry L. Washington, 50, of Houston received a ten-year suspension
effective May 7, 2003 from the 189" District Court of Harris County.
PUBLIC REPRIMANDS
On March 17, Glenn J. Deadman, 46, of San Antonio accepted a public reprimand
from the 224" District Court of Bexar County.
On March 21, David C. Fleming-Hughes, 50, of Austin accepted a public reprimand
from the District 9-A Grievance Committee.
On April 2, Richard Alan Mintz, 51, of Houston accepted a public reprimand from
the District 5-A Grievance Committee.
On March 6, Steven C. Simmons, 49, of Houston accepted a public reprimand from
the District 4-D Grievance Committee.
On April 16, Louis J. Bodnar, 58, of Mesquite accepted a public reprimand from the
District 17-A Grievance Committee.
On April 14, John W. Hennessey, 81, of Corpus Christi accepted a public reprimand
from the 148" District Court of Nueces County.
On April 10, John Steven Mostyn, 32, of Houston accepted a public reprimand from
the District 4-J Grievance Committee.
EXHIBIT “B”
Motion for Contempt
This lawyer was disciplined by a state licensing authority.
° Disbarment issued in TX, 2003
updated on 03/21/2011
This is the most serious penalty for a lawyer. If this attorney is currently practicing law,
you should contact the Texas State Bar to understand the reasons for this disbarment
interlocutory Suspension issued in TX, 2000
updated on 06/04/2018
Interlocutory suspension means an attorney lost his or her license to practice while
appealing an unrelated, but serious, criminal conviction. If the conviction is upheld
the attorney will be disbarred.
Partially Probated Suspension issued in TX, 2018
updated on 06/05/2018
Partially probated suspension means an attorney lost his or her license to practice
law for a period of time. When the attorney returns to practice he or she will be on
probation, meaning the State monitors the attorney's activities for a period of time in
hopes that he or she will not repeat the behavior
interlocutory Suspension issued in TX, 2000
updated on 01/23/2019
Interlocutory suspension means an attorney lost his or her license to practice while
appealing an unrelated, but serious, criminal conviction. If the conviction is upheld
the attorney will be disbarred.
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EXHIBIT “C”
Motion for Contempt
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20282
UNITED STATES OF AMERICA
Plaintiff-Appellee
~Vs-
GEORGE MEREDITH BISHOP, III
Defendant-Appellant
Appeals from the United States District Court
for the Southern District of Texas
August 29, 2001
Before HIGGINBOTHAM and BENAVIDES, Circuit Judges, and LITTLE, District Judge.”
LITTLE, District Judge:
Today we consider George M. Bishop III’s appeal of three convictions centered upon income
tax and reporting violations. The first and third counts involve attempted tax evasion, ' in the 1991
“Chief Judge F.A. Little, Jr. of the Western District of Louisiana, sitting by designation.
'26 U.S.C. § 7201.
and 1994 tax years, respectively. The second count relates to knowingly filing a false income tax
return, under penalty of perjury, for 1991.? Finding no reversible error, we affirm each conviction.
I
The operative facts are not in serious dispute. During all times material to counts one, two
and three, Bishop was the sole proprietor of George M. Bishop and Associates (GMBA), a law firm
in Houston, Texas. In 1994, the Internal Revenue Service (IRS) initiated an audit of Bishop’s
account, because he did not file federal income tax returns for the years 1989, 1990, and 1991
Bishop explained the delay was caused by tensions in his marriage, leading to his divorce in 1991.
Under the pressure of the audit and with the assistance of his accountants, Bishop filed the missing
returns in August 1994, September 1994, and December 1994, respectively.
The audit continued because IRS employees suspected Bishop understated his income. In
September 1995, Mark E. Locus, the IRS agent in charge of the case, received an anonymous letter
suggesting that Bishop omitted a substantial fee he received in April 1991 from Harold Scharold, a
client in a breach of contract suit. A review of Bishop’s records showed that, on 5 April 1991,
Scharold paid a $933,333.33 legal fee. The check was payable to GMBA, but was deposited in
Bishop’s personal account at Dean Witter. Joye Wilson, Bishop’s bookkeeper, initially recorded the
amount as fee income in the GMBA general ledger, in accordance with the normal office procedure.
At Bishop’s instruction, Wilson reversed the first ledger entry by debiting the account. GMBA’s
monthly profit and loss statements therefore did not reflect receipt of the fee.
Bishop did not report the fee either. His 1991 tax return stated that his gross income from
the practice of law was $988,599.00. IRS agent Kay Campbell, Locus’ successor, determined that
726 U.S.C. § 7206.
at most, Bishop reported $352,945.81 out of the $933,333.33 fee he received from Scharold. The
$352,945.81 included $140,000 which is the sum Bishop paid to his ex-wife and advised his
accountant to add to his reported income, and $212,945.89 that Campbell could not attribute to other
sources. Campbell also found that Bishop may have failed to report other income of $150,344.77,
the total of amounts added to the GMBA general ledger during the last four months of the year but
not included on Bishop’s return.
Additionally, in August 1991, Bishop received a $183,666.67 fee plus $28,513.42 in litigation
expenses, for representing the Cash children in a legal malpractice suit. Both sums were paid into
Bishop’s trust account. Bishop should have reported the $183,666.67 as income. During the week
after receiving the money, however, he withdrew $111,120.59 from the trust account and deposited
it in two personal accounts. He did not report any portion of this money as income. Accordingly,
his total unreported income for 1991 was at least $841,822.80. Campbell recalculated Bishop’s taxes
for the year, making appropriate adjustments in Bishop’s favor as well as adding the unreported
income. Bishop’s return reported a tax of $107,973.00, but according to Campbell, he actually owed
$358,002.00. There was an underpayment in excess of $250,000.
Campbell also reviewed Bishop’s return and records for 1994, Bishop filed his 1994 return
in April 1995, reporting gross income from the practice of law of $676,262. In a matter settled
during the year, Bishop received a $575,000 fee. One of the opposing lawyers paid Bishop a
$400,000 portion of the fee. Bishop requested that the lawyer wire transfer the money to Bishop’s
personal account at Chappell Hill Bank. The lawyer refused to wire transfer the money, but did send
the check directly to Chappell Hill Bank. Consequently, the payment was not recorded in the GMBA
>This figure includes $10,247.00 in self employment tax. The rest is income tax.
3
general ledger. Upon receipt of a Form 1099 regarding the $400,000 payment, Pat Schulmeier,
Bishop’s new bookkeeper, informed Bishop’s accountant of receipt of only $196,006.74 out of the
$400,000, for reasons that remain unclear.* A $10,000 check, which was a part of the $575,000 fee
but from a different source, also was deposited at Chappell Hill Bank and omitted from Bishop’s
return. As a result, Bishop failed to report $179,532.41 to $213,993.26 of fee income received in
1994,°
In October 1996, Bishop amended his 1994 return in an attempt to correct the problem,
increasing his gross income from the practice of law by $400,000, resulting in a total of $1,076,262.
He also adjusted his deductions, and paid appropriate additional taxes. Later, Bishop discovered that
$196,006.74 of the $400,000 had in fact been included in the initial return and filed a second amended
return in July 1998. Now Bishop’s reported gross income from the practice of law was $890,255.°
Inlight of Campbell’s findings, and Bishop’s efforts to conceal his income and spending habits
from IRS agents and his own accountants, a fraud investigation and criminal prosecution began. On
24 March 1999, a grand jury returned a three count indictment against Bishop. After a seventeen day
trial, the jury convicted Bishop on all three counts. Subsequently, Bishop discovered that one of the
jurors, Jodi Tharp, had been less than candid concerning her prior experiences with the law.
Specifically, Tharp was charged with third degree felony embezzlement in 1997. Over the course of
eight months, Tharp stole $42,250 from the bank where she worked. She pled guilty in Texas state
4$196,006.74 may have been the portion of the $400,000 remaining after Bishop repaid a loan and sent
$100,000 to his ex-wife.
“The checks for the remaining portion of the $575,000 fee were reported properly. Campbell could not
determine the source of $34,460.85 of Bishop’s reported 1994 income. Accordingly, there is a slight possibility that
the amount was attributable to the two checks deposited at Chappell Hill Bank.
‘Apparently no adjustment was made with regard to the omitted $10,000 check.
4
court, and adjudication of the matter was deferred for ten years. At the time of Bishop’s trial, she
was paying a fine and restitution in installments, and was under community supervision, which is
equivalent to probation.
On a juror questionnaire, Tharp responded “no” to the questions “Have you ever been
convicted ofa state or federal crime punishable by imprisonment for more than one year?” and “Have
you ever been charged criminally other than with a traffic ticket?” During voir dire, she did not raise
her hand in response to several questions as to whether she had ever been involved in a criminal
matter, as an accused, witness, or victim. Nor did she respond when the judge gave the jurors an
opportunity to raise their hands if they had anything to add regarding the previous questions.
After Tharp’s criminal history was revealed, Bishop moved for a new trial. The district court
held an evidentiary hearing and determined that Tharp was statutorily disqualified from serving on
a jury, but denied Bishop’s motion because he failed to demonstrate that Tharp was biased and that
he suffered as a result of that bias. Bishop appeals this ruling and asserts that the district court made
several other reversible errors before, during, and after the trial. We address each point raised, some
in more detail than others.
IL
Bishop contends that counts one and three of the indictment are defective because they omit
the tax deficiency and knowledge elements of tax evasion, and that count two contains no allegation
he acted willfully in filing a false return. An indictment must allege each element of the charged
offense, in order to insure that the grand jury finds probable cause that the defendant committed each
element, to prevent double jeopardy, and to provide notice to the accused. See United States v.
Cabrera-Teran, 168 F.3d 141, 143 & n.5 (Sth Cir. 1999). We consider the sufficiency of the
indictment de novo. See id. at 143.
A
The crime of tax evasion as defined in 26 U.S.C. § 7201 has three essential elements: (1) the
existence of a tax deficiency; (2) willfulness; and (3) an affirmative act constituting evasion or
attempted evasion of the tax. See United States v. Townsend, 31 F.3d 262, 266 (Sth Cir. 1994)
(citing Sansone v. United States, 380 U.S. 343, 351, 85 S. Ct. 1004, 1010, 13 L. Ed. 2d 882, 888
(1965)).
After describing the results of the audit in detail, count one of the indictment boldly alleges
the following:
[Bishop] did knowingly and willfully attempt to evade and defeat a substantial income
tax due and owing by him. . . by: failing to timely file an income tax return on or
about October 15, 1992, causing false and misleading books and records to be
created, providing incomplete or misleading information to his tax preparer,
concealing information likelyto alert the IRS Revenue Agents to unreported income,
and other affirmative acts of evasion.
Count three describes the misreporting of the fees deposited at the Chappell Hill Bank and states that
Bishop “did willfully attempt to evade and defeat a substantial income tax due and owing by
him. . . by preparing and causing to be prepared, and by signing and causing to be signed, a false and
fraudulent United States Individual Income Tax Return—Form 1040.”
Both count one and count three explicitly charge that a tax deficiency existed, that Bishop’s
acts were willful, and that he committed affirmative acts constituting evasion or attempted evasion.
All elements were presented to the grand jury. Bishop argues that the indictment fails to
acknowledge certain items that would offset any deficiency. This argument has no merit. The non-
existence of credits, refunds, and other payments may affect the extent of any deficiency, but is not
a specific element of tax evasion. There is no need to list each potentially offsetting item in the
indictment. Counts one and three throughly describe the omission of large fees received in 1991 and
1994, respectively, the filing of the returns, and the related investigation. There is no question as to
the nature of the charges. Counts one and three are legally sufficient.
B
A person commits the felony of filing a false tax return in violation of 26 U.S.C. § 7206(1)
when he “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.” 26 U.S.C. § 7206(1). Count two of
the indictment reads as follows:
[Bishop] did willfully make and subscribe a United States Individual Income Tax
Return—Form 1040, which was verified by a written declaration that it was made
under the penalties of perjury and was filed with a Revenue Agent. . . which 1991
income tax return [Bishop] did not believe to be true and correct as to every material
matter in that the said federal income tax return reported Schedule C Gross Receipts
of $988,599.00, whereas, [Bishop] then and there well knew and believed, that
[Bishop’s] 1991 Schedule C Gross Receipts were false, that is, that the Schedule C
Gross Receipts were actually in excess of $1.5 million during 1991.
. The
Bishop was charged with “willfully” filing a tax return that he “believed” to be “false.”
indictment not only tracked the language of the statute, but also explicitly stated that Bishop knew
the return was false but nonetheless chose to file it. Count two specifies that Bishop’s Schedule C
gross receipts for 1991 were understated, and additional discussion of the 1991 return appears in
other portions of the indictment. No element of the crime was omitted. Count two of the indictment
is also legally sufficient.
Til.
Bishop challenges several of the district court’s evidentiary rulings. We review these for
abuse of discretion but affirm so long as any error is harmless. See United States v. Taylor, 210 F.3d
311, 314 (Sth Cir. 2000); United States v. Skipper, 74 F.3d 608, 612 (Sth Cir. 1996). In order to
obtain a reversal, the complaining party must demonstrate that the district court’s ruling caused him
substantial prejudice. See United States v. Izydore, 167 F.3d 213, 218 (Sth Cir. 1999).
A.
Both the government and the defendant introduced summary evidence. Bishop argues that
Robert Simpson, an IRS agent who acted solely as the government’s summary witness and not as an
expert, testified to matters of which he had no personal knowledge, testified to the contents ofletters
that were hearsay, and gave his opinion on a variety of issues. Bishop also contends that the district
court should not have admitted charts summarizing and clarifying the government witnesses’ analysis,
because the documents were misleading and confusing, and were not tempered by appropriate jury
instructions.
The use of summary testimony and documents is governed by Rule 1006 of the Federal Rules
of Evidence, which is broadly interpreted. See Taylor, 210 F.3d at 315; United States v. Winn, 948
F.2d 145, 158 (5th Cir. 1991). Rule 1006 allows admission of summaries when (1) the evidence
previously admitted is voluminous, and (2) review by the jury would be inconvenient. See Taylor,
210 F.3d at 315; United States v. Stephens, 779 F.2d 232, 239 (Sth Cir. 1985). A summary may
include only evidence favoring one party, so long as the witness does not represent to the jury that
he is summarizing all the evidence in the case. See Flemister v. United States, 260 F.2d 513, 517 (Sth
Cir. 1958).
Summary evidence must have an adequate foundation in evidence that is already admitted,
and should be accompanied by a cautionary jury instruction. See United States v. Means, 695 F.2d
811, 817 (Sth Cir. 1983). Full cross-examination and admonitions to the jury minimize the risk of
prejudice. See United States v. Castillo, 77 F.3d 1480, 1500 (Sth Cir. 1996); United States v.
Jennings, 742 F.2d 436, 442 (5th Cir. 1984). We previously approved a cautionary instruction that
“summaries do not, of themselves, constitute evidence in the case but only purport to summarize the
documented and detailed evidence already submitted,” and an instruction that a witness’s summary
“is not the evidence, the evidence is the documents themselves that he has been referring to.” United
States v. Lavergne, 805 F.2d 517, 521-22 (5th Cir. 1986) (quoting United States v. Diez, 515 F.2d
892, 905 (Sth Cir. 1975)).
Summary charts in particular are admissible when (1) they are based on competent evidence
already before the jury, (2) the primary evidence used to construct the charts is available to the other
side for comparison so that the correctness of the summary may be tested, (3) the chart preparer is
available for cross-examination, and (4) the jury is properly instructed concerning use of the charts.
See United States v. Goodwin, 470 F.2d 893, 899 (Sth Cir. 1972); McDonnell v. United States, 343
F.2d 785, 789 (Sth Cir. 1965). Summaries may accompany the jury to the jury room. See Winn, 948
F.2d at 158-59.
We first note that it was appropriate to use summary evidence in this case. The trial
consumed seventeen days of technical testimony and scores of exhibits were presented. Bishop
argues that Simpson, a summary witness, testified to matters beyond the scope ofa summary, but the
government correctly explains that the bulk of Simpson’s testimony was a recitation of facts already
in the record. An exception is Simpson’s expression of the opinion that several people harbored ill
will toward Bishop, but this comment was a response to Bishop’s lawyer’s question as to whether
Simpson concurred in Locus’ belief that the tip about the undisclosed Scharold fee came from
Bishop’s ex-wife. The only other opinion that Simpson expressed was that the government’s case
was correct, but this was acceptable because he summarized only the evidence favorable to the
government. Simpson spoke only of evidence already in the record, and, on direct and cross
examination, he fully expressed the limited basis of his testimony. We see no error in allowing
Simpson to speak.
Campbell and Simpson based their summary charts on testimony and documentary evidence
presented to the jury and available to the defense before trial. Both witnesses underwent extensive
cross-examination.” Bishop argues that the charts should have been excluded because they did not
include evidence elicited from government witnesses during cross-examination. This contention fails
for the reason given above, that is, that a summary need not address all of the evidence. Bishop also
protests that the charts were flawed because they did not list various items that arguably reduced his
tax liability. Whether offsets were available was disputed at trial, and therefore, evidence regarding
them was in the record and available to the jury, regardless of whether it appeared on the charts.
Summaries admitted under Rule 1006 may go to the jury room. There was no abuse of discretion
in admitting the summary testimony and exhibits.
The jury instructions regarding the summary evidence were sufficient:
Charts and summaries were shown to you in order to make the other evidence
more meaningful and to aid you in considering the evidence. They are no better than
the testimony and the documents upon which they are based, and are not themselves
"Moreover, at trial, Bishop did not object to admission of many of Campbell’s summaries, so review is limited
toa determination as to whether a clear error occurred. See United States v, Cantu, 167 F.3d 198, 204 (Sth Cir. 1999).
10
independent evidence. Therefore, you are to give no greater consideration of these
schedules and summaries than you would give to the evidence upon which they are
based.
It is for you to determine the accuracy of the summary charts. You are
entitled to consider the charts, schedules, and summaries if you find that they are of
assistance to you in analyzing the evidence and understanding the evidence.
This instruction covered both the summary testimony and charts, and properly advises the jury that
the information underlying the summaries, not the summaries themselves, is evidence, although the
summaries may be a useful aid. The instruction was correct and submission to the jury was not an
abuse of discretion.
B
The district court should not have admitted IRS agents Campbell and Locus’ notes regarding
meetings they had with Bishop. Personal notes made by an investigator such as an IRS agent are not
ordinarily admissible because they are hearsay. See Fed. R. Evid. 801(c), 803(8)(B). Rule
801(d)(1)(B) provides an exception when the notes are offered to “rebut an express or implied charge
against the declaring of recent fabrication or improper influence or motive.” United States v. Pena,
949 F.2d 751, 757 (Sth Cir. 1991) (quoting Fed. R. Evid. 801(d)(1)(B)).
Bishop’s lawyers implied that Locus made mistakes or lied while testifying, but it does not
appear that his supposed fabrications were recent or made with an improper motive. The cross
examination of Campbell was an attempt to refresh her recollection rather than an effort to imply that
her earlier testimony was false. Rule 801(d)(1)(B) cannot be construed to allow the admission of
what would otherwise be hearsay every time a law enforcement officer’s credibility or memory is
challenged; otherwise, cross-examination would always transform hearsay notes into admissible
evidence. The error, however, was harmless, as the content of the notes was throughly discussed on
ll
both direct and cross examination. Admitting the notes themselves added little to the weight of the
evidence in the case.
Cc
Bishop submits that the district court erred when it excluded testimony regarding statements
made by the defendant’s former bookkeeper, Pat Schulmeier, and by the defendant himself. Actually,
the statements were hearsay and were not admissible. ““Hearsay’ is a statement other than one made
by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” Fed. R. Evid. 801(c). Hearsay is not admissible unless an exception applies as
provided by the Federal Rules of Evidence, other rules adopted by the Supreme Court, or statute.
See Fed. R. Evid. 802. Bishop argues that Schulmeier’s statements, and his own, may be admitted
“statement[s] of the declarant’s then existing state of mind, emotion, sensation, or physical
condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not
including a statement of memory or belief to prove the fact remembered or believed.” Fed. R. Evid.
803(3).
Schulmeier was Bishop’s bookkeeper from 1991 to 1997. She died in February 1998. At
trial, Bishop sought to introduce testimony that during 1996, Schulmeier met with Marc Grossberg,
Bishop’s tax lawyer, and Terri Raybourne, Bishop’s legal assistant. The testimony proffered through
Grossberg was that Schulmeier said she knew Bishop received a $400,000 fee in 1994, that it was
her fault it was omitted from the books used to prepare his tax returns, and that she did not know
why she failed to record the fee.
Bishop offered Schulmeier’s statements in order to prove the truth of their content, that is,
to show it was not his fault that all or a portion of the $400,000 fee was not reported to the IRS.
12
Schulmeier’s tendered statement was not an explanation of her current state of mind, but rather was
a recitation of her memories of what she did and thought at an earlier date. The district court
properly excluded the testimony regarding her statements.
Bishop asserts that his own statements to Grossberg are subject to the same exception to the
hearsay exclusion. Grossberg testified that Bishop hired him in 1996 to assist with a 1996 civil audit,
but was not allowed to say that Bishop said he did not expect the scope of the matter to be any
greater, that is, he did not expect he would face criminal charges. The district court properly
excluded this testimony. Bishop’s statements to Grossberg did not reflect his then current feelings
or plans, but rather were self-serving assertions that he did not have the requisite intent for the crime
now charged.
IV.
Bishop moved for a directed verdict at the close of the government’s case in chief and again
prior to submission of the matter to the jury. He also sought post conviction relief. As to counts one
and three, he continues to assert there was not sufficient evidence that a tax deficiency existed, that
he acted willfully, or that he committed an affirmative act of evasion. He also argues that there was
not sufficient evidence of willfulness in support of count two.
We review the evidence in a light most favorable to the government and make all reasonable
inferences and credibility choices in support of the jury’s verdict. See United States v. Moreno, 185
F.3d 465, 471 (Sth Cir. 1999); United States v. Chesson, 933 F.2d 298, 303 (Sth Cir. 1991); United
States v. Kim, 884 F.2d 189, 192 (Sth Cir. 1989). If any rational trier of fact could have found proof
of the essential elements of the crime beyond a reasonable doubt, the verdict will stand. See Kim, 884
F.2d at 192. “The evidence need not exclude every reasonable hypothesis of innocence or be wholly
13
inconsistent with every conclusion except that of guilt, and the jury is free to choose among
reasonable constructions of the evidence.” United States v. Bermea, 30 F.3d 1539, 1551 (5th Cir.
1994).
A
To support a conviction for attempted tax evasion, as alleged in counts one and three, the
government must prove beyond a reasonable doubt that there was a tax deficiency, an affirmative act
constituting an attempt to evade or defeat the tax, and willfulness. See Sansone, 380 U.S. at 351, 85
S. Ct. at 1010, 13 L. Ed. 2d at 888. A deficiency is the amount by which the tax imposed by statute
exceeds the sum of (1) the amount of tax shown on the return, (2) plus the amount of any previously
assessed deficiency, (3) minus any rebate previously received. See 26 U.S.C. § 6211; United States
v, Wright, 211 F.3d 233, 236 (Sth Cir. 2000); Chesson, 933 F.2d at 303-04.8 The government must
demonstrate the existence of a deficiency beyond a reasonable doubt, but need not prove the extent
of the deficiency with mathematical certainty. See Chesson, 933 F.2d at 304. There is no deficiency
in the absence ofa showing that the government is actually due a tax in excess of that reported. See
Willingham v. United States, 289 F.2d 283, 285 (Sth Cir. 1961). Therefore, undeclared deductions,
credits, losses carried over from prior years, and so on, should be considered when calculating the
‘Contrary to Bishop’s suggestion, the five items he identifies were not “rebates” reducing the extent of any
deficiency which would otherwise exist, Rebates are not credits, refunds, or other payment made by the taxpayer, but
rather are payments the IRS makes to a taxpayer “on the ground that the income tax imposed. . . is less than the excess
of (1) the amount shown as the tax by the taxpayer upon the return increased by the amount previously assessed (or
collected without assessment) as a deficiency over (2) the amount of rebates previously made.” Treas. Reg. § 301.6211-
1(f). For example, a refund made because too much tax was withheld at the source is not a rebate, but a refund made
because the IRS determined taxpayer’s return overstated the tax due is a rebate. See id. Moreover, the existence of
a rebate will actually increase the extent of deficiency, not decrease it according to the formula above, as the taxpayer
returns the credit now known to be unwarranted. See Miles Prod. Co. v. CIR, 987 F.2d 273, 276-77 & n.3 (Sth Cir.
1993); United States v. Wilkes, 946 F.2d 1143, 1149 (Sth Cir. 1991).
14
deficiency. See Sansone, 380 U.S. at 353, 85 S. Ct. at 1011, 13 L. Ed. 2d at 888; Wright, 211 F.3d
at 236-37; United States v. Fogg, 652 F.2d 551, 555 (Sth Cir. 1981); Willingham, 289 F.2d at 285.
Under 26 U.S.C. § 7201, willfulness is “a voluntary, intentional violation of a known legal
duty.” Kim, 884 F.2d at 192. Evidence is usually circumstantial as direct proof is rarely available.
See id. A wide range of conduct can support a finding of willful attempt to evade taxation, for
instance: keeping a double set of books, making false entries or alterations, creating false invoices
or documents, destroying books or records, concealing assets or covering up sources of income,
handling one’s affairs to avoid making the records normally accompanying transactions ofa particular
kind, any conduct likely to mislead or conceal, holding assets in others’ names, providing false
explanations, giving inconsistent statements to government agents, failing to report a substantial
amount of income, a consistent pattern of underreporting large amounts of income, or spending large
amounts of cash that cannot be reconciled with the amount of reported income. See Chesson, 933
F.2d at 304; Kim, 884 F.2d at 192; United States v. Calles, 482 F.2d 1155, 1159-60 (Sth Cir.1973).
1
At trial it was established that Bishop owed a tax for 1991, even giving due regard for all
appropriate credits. Bishop identifies five items he asserts offset any underpayment attributable to
his failure to report the fees he received in 1991. He first explains he made a “payment of $75,000
to the IRS in 1988 when he had a net loss that has not been shown as a credit elsewhere.” This was
a payment of employment taxes, he received an appropriate deduction, and the payment has no
further role in his income tax liability? Second, Bishop asserts he made a $38,360 overpayment in
*Locus t
Preview
NO. 17-DCV-243655 DAVID H. HAMILTON, AS TRUSTEE IN THE DISTRICT COURT OF T. H. TRUST Plaintiff and Counter-Defendant, Vv. ROBERT G. PATE AND JUDY K. PATE § 434TH JUDICIAL DISTRICT Defendants and Counter-Plaintiffs § § Vv. § § GEORGE M. BISHOP Cross-Defendant, § OF FORT BEND COUNTY, TEXAS MOTION FOR CONTEMPT TO THE HONORABLE JUDGE OF SAID COURT: NOW COME Defendants, Robert G. Pate and Judy K. Pate, Movants herein, and request that George M. Bishop be found and held in Contempt of Court. In support thereof, Movants would show the Court the following: George M. Bishop is a Counter-Defendant herein. Defendant Bishop was disbarred in 2003 after being suspended from the practice of law in 2002,! ? resulting from his conviction for ' See BODA Actions, 66 Tex. Bar.J. 735. Copy attached as Exhibit A. ? See disciplinary record of Defendant Bishop as reflected on his State Bar of Texas web profile, a copy of which is attached as Exhibit B. two counts of federal income tax evasion and one count of filing a false tax return.? Although having been disbarred as an attorney in 2003, it appears that Defendant Bishop may have subsequently been reinstated as a member of the bar. Reputation evidence suggests that Bishop continued to practice law even during the period of his disbarment.‘ Defendant Bishop previously appeared in this case as an attorney for the Plaintiff, David H. Hamilton, Trustee of T.H. Trust. I. On March 2, 2020, a hearing was held in this Court on the Pates' Motion for Disqualification of Bishop to represent the Plaintiff, which the court granted. On March 4, 2020, the court signed its order disqualifying Bishop and further ordered as follows: IT IS FURTHER ORDERED that George M. Bishop shail promptly provide the Court and opposing counsel with appropriate contact information, including address, telephone number and email address for either 1) his successor counsel; or 2) his resulting pro se client, David H Hamilton, Trustee of TH Trust. I. Thereafter, Defendant Bishop filed his petition for writ of mandamus to the Court of Appeals for the First District of Texas in Case Number 01—20-004400-CV, wherein he asked the appellate court to vacate the trial court's order that granted the motion to disqualify counsel. 3 United States of America v. George Meredith Bishop III, 260 4F3d 535 (Fifth Circuit 2001). Defendant Bishop was sentenced to 18 months in prison for each count. Copy attached as Exhibit C. * A Prime Example of What’s Wrong with the Texas Legal Profession, Laws in Texas, July 27, 2006. Downloaded on February 20, 2021 from www.texaspubliccorruption.ru/. Copy attached as Exhibit D. On July 21, 2020, the appellate court issued its opinion denying the petition for writ of mandamus. Iv. Thereafter, Defendant Bishop filed his petition for writ of mandamus to the Supreme Court of Texas in Case Number 20 — 0601, wherein he asked the Supreme Court to vacate the trial court's order that granted the motion to disqualify counsel. On November 2, 2020, the Supreme Court of Texas issued its opinion denying the petition for writ of mandamus. Vv. Meanwhile, on April 30, 2018, the Honorable Brenda Kennedy, Judge of the 21st judicial District Court in Washington County, Texas, entered a Modified Judgment of Partially Probated Suspension in Cause Number 36282, styled Commission for Lawyer Discipline vs. George M. Bishop III, wherein Defendant Bishop was suspended from the practice of law for the one year period beginning May 1, 2018 and given a suspended probation for one year beginning May 1, 2019.5 A copy of the Judgment is attached hereto as Exhibit E. The Washington County Judgment provided as follows: IT IS FURTHER ORDERED, ADJUDGED, AND DECREED, that Respondent, George M. Bishop Ill, on or before May 1, 2018, shall notify each of his current clients and opposing counsel in writing of this suspension. Defendant Bishop failed and refused to comply with this requirement, as evidenced by the fact that the undersigned attorney received no such notification. 5 Modified Judgment of Partially Probated Suspension Cause No. 36282; Commission for Lawyer Discipline v. George M. Bishop, Ill, In 21* Judicial District Court of Washington County, Texas. Copy attached as Exhibit E. The Judgment further provided as follows: IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Respondent shall, on or before May I, 2018, notify in writing each and every justice of the peace, judge, magistrate and chief justice of each and every court in which Respondent has any matter pending of the terms of this judgment, the style and cause number of the pending matter(s), and the name(s), address(es) and telephone number(s) of the client(s) Respondent is representing in the Court. Vi. Defendant Bishop failed and refused to comply with these requirements as evidenced by the fact that (1) this Court's records contain no evidence of notification of said judgment by Defendant Bishop, and further (2) the records of the First Court of Appeals contains no record of notification of said judgment in Cause No. 01-20-004400, wherein Defendant Bishop had applied for a writ of mandamus and asked the appellate court to vacate this Court's order that had granted a motion to disqualify counsel in this case. VI. Defendant Bishop has failed to comply with the Court's order by failing to promptly provide the Court and opposing counsel with appropriate contact information, including address, telephone number and email address for either 1) his successor counsel; or 2) his resulting pro se client, David H Hamilton, Trustee of TH Trust. VIL. No successor counsel has appeared herein nor has contact information been provided for either successor council nor the Plaintiff, George H. Hamilton, Trustee of the TH Trust. Ix. By failing to provide an address for either successor counsel or for defendant Bishop's resulting pro se client, David H. Hamilton, Trustee of TH Trust, Defendant Bishop has made it impossible for the Pates and their undersigned attorney to properly give notice of filings in this case to plaintiff David H. Hamilton, Trustee of TH trust, resulting in delay of this case and the necessity to file this motion. x The undersigned attorney has made reasonable efforts to locate David H. Hamilton, Trustee of TH Trust, but it appears that all known addresses for said person in Kissimmee, Florida are incorrect. The undersigned attorney further believes that the address shown in the certificate of service below for David H. Hamilton is the most recent address on the records of the agency of the State of Texas which issues driver's licenses and has used that address for giving notice as to this motion and a previously filed Motion for Summary Judgment, but has been unable to verify that such address is actually a valid address for David H Hamilton. XI. George M. Bishop should be held in contempt of court for his failure to comply with the order of the court which has been affirmed by both the First Court of Appeals and the Supreme Court of Texas. XII. Attorney's fees and costs in the amount of $10,000.00 should be granted to Defendants. WHEREFORE, PREMISES CONSIDERED, Defendants request that the Court hold Defendant George M. Bishop in contempt of Court, order compliance in all respects to the Court's order, for reasonable attorney's fees for preparing and presenting this motion, and for such other and further relief as may be suitable in law or in equity. Respectfully submitted, UE HOLOWAYSIONES LAW FIRM PLLC } by Cty Russell C. Jones C Sep AM. Texas Bar No. 10954300 / Email: rjones@jonesattomneys.com 407 Julie Rivers Drive Sugar Land, TX 77478 Tel. (281) 242-8100 Fax. (281) 242-7474 Attorney for Defendants Robert G. Pate and Judy K. Pate CERTIFICATE OF SERVICE I certify that on February 2- [. 2021 a true and correct copy of Defendant's Motion for Contempt was served to each person listed below by the method indicated. George M. Bishop, Pro Se 4191 P.M. 1155 South Chappell Hill, Texas 77426 Electronically through the Electronic Filing Manager David H. Hamilton, individually and as Trustee of T. H. Trust, pro se 11635 Royal Oaks Trace Houston, TX 77082-2851 VIA CERTIFIED MAIL # RETURN RECEIPT REQUESTED AND U.S. FIRST CLASS MAIL Ch bl Cpee ~ Russell C. Jones VERIFICATION STATE OF TEXAS COUNTY OF FORT BEND § BEFORE ME, the undersigned authority, personally appeared Russell C. Jones, who, on oath, stated that the statements made in the foregoing Motion for Contempt are true and correct Cita Russell C. Jones Y SUBSCRIBED AND SWORN TO BEFORE ME on this the 2 t day of — Uw 2021, to certify which witness my hand and seal of office at dade lV. ban, My BRENDA K FREY Notary Public, State of Texas tary Public, State of Texas Comm. Expires 05-23-2022 “ats Notary 1D 459838-6 EXHIBIT “A” Motion for Contempt September 2003 66 Tex. Bar. J. 735 BODA ACTIONS On April 24, the Board of Disciplinary Appeals entered an agreed judgment of public reprimand against Richard Todd Hopes, 50, of Houston. On June 6, the Board of Disciplinary Appeals entered an agreed judgment of public reprimand against Michael S. Fawer, 67, of Covington La. On July 21, The Board of Disciplinary Appeals signed a judgment of disbarment against Chester Lash Thornton, 53, of Houston. On July 24, the Board of Disciplinary Appeals entered an agreed judgment of active suspension against Edward P. Bolding, 67, of Tucson, Ariz. On June 24, the Board of Disciplinary Appeals entered an agreed judgment of public reprimand against Rebert P. Morrison, 50, of Seattle, Wash. On July 21, the Board of Disciplinary Appeals affirmed the judgment of probated suspension against William D. Beard, 43, of McKinney. On July 21, the Board of Disciplinary Appeals signed a judgment of disbarment against Bernardo Eureste, 60 of Houston. On July 21, the Board of Disciplinary Appeals reversed and dismissed with prejudice the judgment of fully-probated suspension, entered by an evidentiary panel of the District 1-A Grievance Committee against Billy D. Hullum, 64 of Fort Worth. On July 18, the Board of Disciplinary Appeals signed a final judgment of disbarment against George M. Bishop ITI, 61, of Houston. On July 18, the Board of Disciplinary Appeals signed a final judgment of disbarment against Ramon A. Villafranca, 63, of Laredo. RESIGNATION On May 9, the Supreme Court of Texas accepted the resignation, in lieu of discipline of Mark A. Quigley, 55 of Everett, Wash. DISBARMENTS On May 22, J. Michael Boswell, 50 of Houston was disbarred by the District 4-D Grievance Committee. On April 2, Sonya E. Lucas, 47, of Houston was disbarred by the District 4-C Grievance Committee. On April 15, William H. Pippen, 68, of Houston was disbarred by the District 4-I Grievance Committee. Ss PEN: S On Feb. 18, W. Richard Focrum ILI, 48, of Lubbock received a two-year, partially- probated suspension effective April 1, 2003 from the District 16-A Grievance Committee. On March 7, Edward Henry Green, 49, of Houston received a four-year suspension effective Fed. 1, 2002 from the District 4-J Grievance Committee. On April 24, Julie-Ann Hager, 49, of Round Rock received a two-year, partially- probated suspension effective May 1, 2003, with the first year actively served and the remainder probated from the District 9-A Grievance Committee. On Feb. 21, Douglas W. Henager, 59, of Waco received a four-year, partially-probated suspension effective March 1, 2003, with the first two years actively served and the remainder probated from the District 8-B Grievance Committee. On Nov. 19, Robert Lynn Huddleston, 57, of Brownwood received a three-year, partially-probated suspension effective Feb. 1, 2003, with the first 18 months actively served and the remainder probated from the District 16-A Grievance Committee. On May 2, John L. Hudson Jr., 52, of Houston received a three-year, partially probated suspension effective May 1, 2003, with the first three months actively served and the remainder probated from the District 4~-C Grievance Committee. On April 15, David Wayne Kirk, 59, of Corpus Christi received a 13-month, partially- probated suspension effective April 15, 2003, with the first month actively served and the remainder probated from the District 11-A Grievance Committee. On April 22, Gerald R. Lopez, 62 of Odessa received a four-year, fully-probated suspension effective May 1, 2003 from the 161st District Court of Ector County. On April 15, James R. Marlen, 37, of Dallas received a two-year, fully-probated suspension effective May 1, 2003 from the District 6-A Grievance Committee. On March 31, William B. Portis, Jr., 71, of Houston received a two-year, fully- probated suspension effective April 1, 2003 from the 295' District Court of Harris County. On March 28, Patricia A. Rudder, 51, of Fort Worth received an 18-month suspension effective March 10, 2003 from 17'4 District Court of Tarrant County. On May 6, Garry L. Washington, 50, of Houston received a ten-year suspension effective May 7, 2003 from the 189" District Court of Harris County. PUBLIC REPRIMANDS On March 17, Glenn J. Deadman, 46, of San Antonio accepted a public reprimand from the 224" District Court of Bexar County. On March 21, David C. Fleming-Hughes, 50, of Austin accepted a public reprimand from the District 9-A Grievance Committee. On April 2, Richard Alan Mintz, 51, of Houston accepted a public reprimand from the District 5-A Grievance Committee. On March 6, Steven C. Simmons, 49, of Houston accepted a public reprimand from the District 4-D Grievance Committee. On April 16, Louis J. Bodnar, 58, of Mesquite accepted a public reprimand from the District 17-A Grievance Committee. On April 14, John W. Hennessey, 81, of Corpus Christi accepted a public reprimand from the 148" District Court of Nueces County. On April 10, John Steven Mostyn, 32, of Houston accepted a public reprimand from the District 4-J Grievance Committee. EXHIBIT “B” Motion for Contempt This lawyer was disciplined by a state licensing authority. ° Disbarment issued in TX, 2003 updated on 03/21/2011 This is the most serious penalty for a lawyer. If this attorney is currently practicing law, you should contact the Texas State Bar to understand the reasons for this disbarment interlocutory Suspension issued in TX, 2000 updated on 06/04/2018 Interlocutory suspension means an attorney lost his or her license to practice while appealing an unrelated, but serious, criminal conviction. If the conviction is upheld the attorney will be disbarred. Partially Probated Suspension issued in TX, 2018 updated on 06/05/2018 Partially probated suspension means an attorney lost his or her license to practice law for a period of time. When the attorney returns to practice he or she will be on probation, meaning the State monitors the attorney's activities for a period of time in hopes that he or she will not repeat the behavior interlocutory Suspension issued in TX, 2000 updated on 01/23/2019 Interlocutory suspension means an attorney lost his or her license to practice while appealing an unrelated, but serious, criminal conviction. If the conviction is upheld the attorney will be disbarred. AVVO CONTRIBUTIONS Legal answers 0 Legal guides 0 EDUCATION School name Degree Gradual University of Texas School of Law JD - Juris Doctor N/A Show full resume Reviews things happening on EXHIBIT “C” Motion for Contempt IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 00-20282 UNITED STATES OF AMERICA Plaintiff-Appellee ~Vs- GEORGE MEREDITH BISHOP, III Defendant-Appellant Appeals from the United States District Court for the Southern District of Texas August 29, 2001 Before HIGGINBOTHAM and BENAVIDES, Circuit Judges, and LITTLE, District Judge.” LITTLE, District Judge: Today we consider George M. Bishop III’s appeal of three convictions centered upon income tax and reporting violations. The first and third counts involve attempted tax evasion, ' in the 1991 “Chief Judge F.A. Little, Jr. of the Western District of Louisiana, sitting by designation. '26 U.S.C. § 7201. and 1994 tax years, respectively. The second count relates to knowingly filing a false income tax return, under penalty of perjury, for 1991.? Finding no reversible error, we affirm each conviction. I The operative facts are not in serious dispute. During all times material to counts one, two and three, Bishop was the sole proprietor of George M. Bishop and Associates (GMBA), a law firm in Houston, Texas. In 1994, the Internal Revenue Service (IRS) initiated an audit of Bishop’s account, because he did not file federal income tax returns for the years 1989, 1990, and 1991 Bishop explained the delay was caused by tensions in his marriage, leading to his divorce in 1991. Under the pressure of the audit and with the assistance of his accountants, Bishop filed the missing returns in August 1994, September 1994, and December 1994, respectively. The audit continued because IRS employees suspected Bishop understated his income. In September 1995, Mark E. Locus, the IRS agent in charge of the case, received an anonymous letter suggesting that Bishop omitted a substantial fee he received in April 1991 from Harold Scharold, a client in a breach of contract suit. A review of Bishop’s records showed that, on 5 April 1991, Scharold paid a $933,333.33 legal fee. The check was payable to GMBA, but was deposited in Bishop’s personal account at Dean Witter. Joye Wilson, Bishop’s bookkeeper, initially recorded the amount as fee income in the GMBA general ledger, in accordance with the normal office procedure. At Bishop’s instruction, Wilson reversed the first ledger entry by debiting the account. GMBA’s monthly profit and loss statements therefore did not reflect receipt of the fee. Bishop did not report the fee either. His 1991 tax return stated that his gross income from the practice of law was $988,599.00. IRS agent Kay Campbell, Locus’ successor, determined that 726 U.S.C. § 7206. at most, Bishop reported $352,945.81 out of the $933,333.33 fee he received from Scharold. The $352,945.81 included $140,000 which is the sum Bishop paid to his ex-wife and advised his accountant to add to his reported income, and $212,945.89 that Campbell could not attribute to other sources. Campbell also found that Bishop may have failed to report other income of $150,344.77, the total of amounts added to the GMBA general ledger during the last four months of the year but not included on Bishop’s return. Additionally, in August 1991, Bishop received a $183,666.67 fee plus $28,513.42 in litigation expenses, for representing the Cash children in a legal malpractice suit. Both sums were paid into Bishop’s trust account. Bishop should have reported the $183,666.67 as income. During the week after receiving the money, however, he withdrew $111,120.59 from the trust account and deposited it in two personal accounts. He did not report any portion of this money as income. Accordingly, his total unreported income for 1991 was at least $841,822.80. Campbell recalculated Bishop’s taxes for the year, making appropriate adjustments in Bishop’s favor as well as adding the unreported income. Bishop’s return reported a tax of $107,973.00, but according to Campbell, he actually owed $358,002.00. There was an underpayment in excess of $250,000. Campbell also reviewed Bishop’s return and records for 1994, Bishop filed his 1994 return in April 1995, reporting gross income from the practice of law of $676,262. In a matter settled during the year, Bishop received a $575,000 fee. One of the opposing lawyers paid Bishop a $400,000 portion of the fee. Bishop requested that the lawyer wire transfer the money to Bishop’s personal account at Chappell Hill Bank. The lawyer refused to wire transfer the money, but did send the check directly to Chappell Hill Bank. Consequently, the payment was not recorded in the GMBA >This figure includes $10,247.00 in self employment tax. The rest is income tax. 3 general ledger. Upon receipt of a Form 1099 regarding the $400,000 payment, Pat Schulmeier, Bishop’s new bookkeeper, informed Bishop’s accountant of receipt of only $196,006.74 out of the $400,000, for reasons that remain unclear.* A $10,000 check, which was a part of the $575,000 fee but from a different source, also was deposited at Chappell Hill Bank and omitted from Bishop’s return. As a result, Bishop failed to report $179,532.41 to $213,993.26 of fee income received in 1994,° In October 1996, Bishop amended his 1994 return in an attempt to correct the problem, increasing his gross income from the practice of law by $400,000, resulting in a total of $1,076,262. He also adjusted his deductions, and paid appropriate additional taxes. Later, Bishop discovered that $196,006.74 of the $400,000 had in fact been included in the initial return and filed a second amended return in July 1998. Now Bishop’s reported gross income from the practice of law was $890,255.° Inlight of Campbell’s findings, and Bishop’s efforts to conceal his income and spending habits from IRS agents and his own accountants, a fraud investigation and criminal prosecution began. On 24 March 1999, a grand jury returned a three count indictment against Bishop. After a seventeen day trial, the jury convicted Bishop on all three counts. Subsequently, Bishop discovered that one of the jurors, Jodi Tharp, had been less than candid concerning her prior experiences with the law. Specifically, Tharp was charged with third degree felony embezzlement in 1997. Over the course of eight months, Tharp stole $42,250 from the bank where she worked. She pled guilty in Texas state 4$196,006.74 may have been the portion of the $400,000 remaining after Bishop repaid a loan and sent $100,000 to his ex-wife. “The checks for the remaining portion of the $575,000 fee were reported properly. Campbell could not determine the source of $34,460.85 of Bishop’s reported 1994 income. Accordingly, there is a slight possibility that the amount was attributable to the two checks deposited at Chappell Hill Bank. ‘Apparently no adjustment was made with regard to the omitted $10,000 check. 4 court, and adjudication of the matter was deferred for ten years. At the time of Bishop’s trial, she was paying a fine and restitution in installments, and was under community supervision, which is equivalent to probation. On a juror questionnaire, Tharp responded “no” to the questions “Have you ever been convicted ofa state or federal crime punishable by imprisonment for more than one year?” and “Have you ever been charged criminally other than with a traffic ticket?” During voir dire, she did not raise her hand in response to several questions as to whether she had ever been involved in a criminal matter, as an accused, witness, or victim. Nor did she respond when the judge gave the jurors an opportunity to raise their hands if they had anything to add regarding the previous questions. After Tharp’s criminal history was revealed, Bishop moved for a new trial. The district court held an evidentiary hearing and determined that Tharp was statutorily disqualified from serving on a jury, but denied Bishop’s motion because he failed to demonstrate that Tharp was biased and that he suffered as a result of that bias. Bishop appeals this ruling and asserts that the district court made several other reversible errors before, during, and after the trial. We address each point raised, some in more detail than others. IL Bishop contends that counts one and three of the indictment are defective because they omit the tax deficiency and knowledge elements of tax evasion, and that count two contains no allegation he acted willfully in filing a false return. An indictment must allege each element of the charged offense, in order to insure that the grand jury finds probable cause that the defendant committed each element, to prevent double jeopardy, and to provide notice to the accused. See United States v. Cabrera-Teran, 168 F.3d 141, 143 & n.5 (Sth Cir. 1999). We consider the sufficiency of the indictment de novo. See id. at 143. A The crime of tax evasion as defined in 26 U.S.C. § 7201 has three essential elements: (1) the existence of a tax deficiency; (2) willfulness; and (3) an affirmative act constituting evasion or attempted evasion of the tax. See United States v. Townsend, 31 F.3d 262, 266 (Sth Cir. 1994) (citing Sansone v. United States, 380 U.S. 343, 351, 85 S. Ct. 1004, 1010, 13 L. Ed. 2d 882, 888 (1965)). After describing the results of the audit in detail, count one of the indictment boldly alleges the following: [Bishop] did knowingly and willfully attempt to evade and defeat a substantial income tax due and owing by him. . . by: failing to timely file an income tax return on or about October 15, 1992, causing false and misleading books and records to be created, providing incomplete or misleading information to his tax preparer, concealing information likelyto alert the IRS Revenue Agents to unreported income, and other affirmative acts of evasion. Count three describes the misreporting of the fees deposited at the Chappell Hill Bank and states that Bishop “did willfully attempt to evade and defeat a substantial income tax due and owing by him. . . by preparing and causing to be prepared, and by signing and causing to be signed, a false and fraudulent United States Individual Income Tax Return—Form 1040.” Both count one and count three explicitly charge that a tax deficiency existed, that Bishop’s acts were willful, and that he committed affirmative acts constituting evasion or attempted evasion. All elements were presented to the grand jury. Bishop argues that the indictment fails to acknowledge certain items that would offset any deficiency. This argument has no merit. The non- existence of credits, refunds, and other payments may affect the extent of any deficiency, but is not a specific element of tax evasion. There is no need to list each potentially offsetting item in the indictment. Counts one and three throughly describe the omission of large fees received in 1991 and 1994, respectively, the filing of the returns, and the related investigation. There is no question as to the nature of the charges. Counts one and three are legally sufficient. B A person commits the felony of filing a false tax return in violation of 26 U.S.C. § 7206(1) when he “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.” 26 U.S.C. § 7206(1). Count two of the indictment reads as follows: [Bishop] did willfully make and subscribe a United States Individual Income Tax Return—Form 1040, which was verified by a written declaration that it was made under the penalties of perjury and was filed with a Revenue Agent. . . which 1991 income tax return [Bishop] did not believe to be true and correct as to every material matter in that the said federal income tax return reported Schedule C Gross Receipts of $988,599.00, whereas, [Bishop] then and there well knew and believed, that [Bishop’s] 1991 Schedule C Gross Receipts were false, that is, that the Schedule C Gross Receipts were actually in excess of $1.5 million during 1991. . The Bishop was charged with “willfully” filing a tax return that he “believed” to be “false.” indictment not only tracked the language of the statute, but also explicitly stated that Bishop knew the return was false but nonetheless chose to file it. Count two specifies that Bishop’s Schedule C gross receipts for 1991 were understated, and additional discussion of the 1991 return appears in other portions of the indictment. No element of the crime was omitted. Count two of the indictment is also legally sufficient. Til. Bishop challenges several of the district court’s evidentiary rulings. We review these for abuse of discretion but affirm so long as any error is harmless. See United States v. Taylor, 210 F.3d 311, 314 (Sth Cir. 2000); United States v. Skipper, 74 F.3d 608, 612 (Sth Cir. 1996). In order to obtain a reversal, the complaining party must demonstrate that the district court’s ruling caused him substantial prejudice. See United States v. Izydore, 167 F.3d 213, 218 (Sth Cir. 1999). A. Both the government and the defendant introduced summary evidence. Bishop argues that Robert Simpson, an IRS agent who acted solely as the government’s summary witness and not as an expert, testified to matters of which he had no personal knowledge, testified to the contents ofletters that were hearsay, and gave his opinion on a variety of issues. Bishop also contends that the district court should not have admitted charts summarizing and clarifying the government witnesses’ analysis, because the documents were misleading and confusing, and were not tempered by appropriate jury instructions. The use of summary testimony and documents is governed by Rule 1006 of the Federal Rules of Evidence, which is broadly interpreted. See Taylor, 210 F.3d at 315; United States v. Winn, 948 F.2d 145, 158 (5th Cir. 1991). Rule 1006 allows admission of summaries when (1) the evidence previously admitted is voluminous, and (2) review by the jury would be inconvenient. See Taylor, 210 F.3d at 315; United States v. Stephens, 779 F.2d 232, 239 (Sth Cir. 1985). A summary may include only evidence favoring one party, so long as the witness does not represent to the jury that he is summarizing all the evidence in the case. See Flemister v. United States, 260 F.2d 513, 517 (Sth Cir. 1958). Summary evidence must have an adequate foundation in evidence that is already admitted, and should be accompanied by a cautionary jury instruction. See United States v. Means, 695 F.2d 811, 817 (Sth Cir. 1983). Full cross-examination and admonitions to the jury minimize the risk of prejudice. See United States v. Castillo, 77 F.3d 1480, 1500 (Sth Cir. 1996); United States v. Jennings, 742 F.2d 436, 442 (5th Cir. 1984). We previously approved a cautionary instruction that “summaries do not, of themselves, constitute evidence in the case but only purport to summarize the documented and detailed evidence already submitted,” and an instruction that a witness’s summary “is not the evidence, the evidence is the documents themselves that he has been referring to.” United States v. Lavergne, 805 F.2d 517, 521-22 (5th Cir. 1986) (quoting United States v. Diez, 515 F.2d 892, 905 (Sth Cir. 1975)). Summary charts in particular are admissible when (1) they are based on competent evidence already before the jury, (2) the primary evidence used to construct the charts is available to the other side for comparison so that the correctness of the summary may be tested, (3) the chart preparer is available for cross-examination, and (4) the jury is properly instructed concerning use of the charts. See United States v. Goodwin, 470 F.2d 893, 899 (Sth Cir. 1972); McDonnell v. United States, 343 F.2d 785, 789 (Sth Cir. 1965). Summaries may accompany the jury to the jury room. See Winn, 948 F.2d at 158-59. We first note that it was appropriate to use summary evidence in this case. The trial consumed seventeen days of technical testimony and scores of exhibits were presented. Bishop argues that Simpson, a summary witness, testified to matters beyond the scope ofa summary, but the government correctly explains that the bulk of Simpson’s testimony was a recitation of facts already in the record. An exception is Simpson’s expression of the opinion that several people harbored ill will toward Bishop, but this comment was a response to Bishop’s lawyer’s question as to whether Simpson concurred in Locus’ belief that the tip about the undisclosed Scharold fee came from Bishop’s ex-wife. The only other opinion that Simpson expressed was that the government’s case was correct, but this was acceptable because he summarized only the evidence favorable to the government. Simpson spoke only of evidence already in the record, and, on direct and cross examination, he fully expressed the limited basis of his testimony. We see no error in allowing Simpson to speak. Campbell and Simpson based their summary charts on testimony and documentary evidence presented to the jury and available to the defense before trial. Both witnesses underwent extensive cross-examination.” Bishop argues that the charts should have been excluded because they did not include evidence elicited from government witnesses during cross-examination. This contention fails for the reason given above, that is, that a summary need not address all of the evidence. Bishop also protests that the charts were flawed because they did not list various items that arguably reduced his tax liability. Whether offsets were available was disputed at trial, and therefore, evidence regarding them was in the record and available to the jury, regardless of whether it appeared on the charts. Summaries admitted under Rule 1006 may go to the jury room. There was no abuse of discretion in admitting the summary testimony and exhibits. The jury instructions regarding the summary evidence were sufficient: Charts and summaries were shown to you in order to make the other evidence more meaningful and to aid you in considering the evidence. They are no better than the testimony and the documents upon which they are based, and are not themselves "Moreover, at trial, Bishop did not object to admission of many of Campbell’s summaries, so review is limited toa determination as to whether a clear error occurred. See United States v, Cantu, 167 F.3d 198, 204 (Sth Cir. 1999). 10 independent evidence. Therefore, you are to give no greater consideration of these schedules and summaries than you would give to the evidence upon which they are based. It is for you to determine the accuracy of the summary charts. You are entitled to consider the charts, schedules, and summaries if you find that they are of assistance to you in analyzing the evidence and understanding the evidence. This instruction covered both the summary testimony and charts, and properly advises the jury that the information underlying the summaries, not the summaries themselves, is evidence, although the summaries may be a useful aid. The instruction was correct and submission to the jury was not an abuse of discretion. B The district court should not have admitted IRS agents Campbell and Locus’ notes regarding meetings they had with Bishop. Personal notes made by an investigator such as an IRS agent are not ordinarily admissible because they are hearsay. See Fed. R. Evid. 801(c), 803(8)(B). Rule 801(d)(1)(B) provides an exception when the notes are offered to “rebut an express or implied charge against the declaring of recent fabrication or improper influence or motive.” United States v. Pena, 949 F.2d 751, 757 (Sth Cir. 1991) (quoting Fed. R. Evid. 801(d)(1)(B)). Bishop’s lawyers implied that Locus made mistakes or lied while testifying, but it does not appear that his supposed fabrications were recent or made with an improper motive. The cross examination of Campbell was an attempt to refresh her recollection rather than an effort to imply that her earlier testimony was false. Rule 801(d)(1)(B) cannot be construed to allow the admission of what would otherwise be hearsay every time a law enforcement officer’s credibility or memory is challenged; otherwise, cross-examination would always transform hearsay notes into admissible evidence. The error, however, was harmless, as the content of the notes was throughly discussed on ll both direct and cross examination. Admitting the notes themselves added little to the weight of the evidence in the case. Cc Bishop submits that the district court erred when it excluded testimony regarding statements made by the defendant’s former bookkeeper, Pat Schulmeier, and by the defendant himself. Actually, the statements were hearsay and were not admissible. ““Hearsay’ is a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed. R. Evid. 801(c). Hearsay is not admissible unless an exception applies as provided by the Federal Rules of Evidence, other rules adopted by the Supreme Court, or statute. See Fed. R. Evid. 802. Bishop argues that Schulmeier’s statements, and his own, may be admitted “statement[s] of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed.” Fed. R. Evid. 803(3). Schulmeier was Bishop’s bookkeeper from 1991 to 1997. She died in February 1998. At trial, Bishop sought to introduce testimony that during 1996, Schulmeier met with Marc Grossberg, Bishop’s tax lawyer, and Terri Raybourne, Bishop’s legal assistant. The testimony proffered through Grossberg was that Schulmeier said she knew Bishop received a $400,000 fee in 1994, that it was her fault it was omitted from the books used to prepare his tax returns, and that she did not know why she failed to record the fee. Bishop offered Schulmeier’s statements in order to prove the truth of their content, that is, to show it was not his fault that all or a portion of the $400,000 fee was not reported to the IRS. 12 Schulmeier’s tendered statement was not an explanation of her current state of mind, but rather was a recitation of her memories of what she did and thought at an earlier date. The district court properly excluded the testimony regarding her statements. Bishop asserts that his own statements to Grossberg are subject to the same exception to the hearsay exclusion. Grossberg testified that Bishop hired him in 1996 to assist with a 1996 civil audit, but was not allowed to say that Bishop said he did not expect the scope of the matter to be any greater, that is, he did not expect he would face criminal charges. The district court properly excluded this testimony. Bishop’s statements to Grossberg did not reflect his then current feelings or plans, but rather were self-serving assertions that he did not have the requisite intent for the crime now charged. IV. Bishop moved for a directed verdict at the close of the government’s case in chief and again prior to submission of the matter to the jury. He also sought post conviction relief. As to counts one and three, he continues to assert there was not sufficient evidence that a tax deficiency existed, that he acted willfully, or that he committed an affirmative act of evasion. He also argues that there was not sufficient evidence of willfulness in support of count two. We review the evidence in a light most favorable to the government and make all reasonable inferences and credibility choices in support of the jury’s verdict. See United States v. Moreno, 185 F.3d 465, 471 (Sth Cir. 1999); United States v. Chesson, 933 F.2d 298, 303 (Sth Cir. 1991); United States v. Kim, 884 F.2d 189, 192 (Sth Cir. 1989). If any rational trier of fact could have found proof of the essential elements of the crime beyond a reasonable doubt, the verdict will stand. See Kim, 884 F.2d at 192. “The evidence need not exclude every reasonable hypothesis of innocence or be wholly 13 inconsistent with every conclusion except that of guilt, and the jury is free to choose among reasonable constructions of the evidence.” United States v. Bermea, 30 F.3d 1539, 1551 (5th Cir. 1994). A To support a conviction for attempted tax evasion, as alleged in counts one and three, the government must prove beyond a reasonable doubt that there was a tax deficiency, an affirmative act constituting an attempt to evade or defeat the tax, and willfulness. See Sansone, 380 U.S. at 351, 85 S. Ct. at 1010, 13 L. Ed. 2d at 888. A deficiency is the amount by which the tax imposed by statute exceeds the sum of (1) the amount of tax shown on the return, (2) plus the amount of any previously assessed deficiency, (3) minus any rebate previously received. See 26 U.S.C. § 6211; United States v, Wright, 211 F.3d 233, 236 (Sth Cir. 2000); Chesson, 933 F.2d at 303-04.8 The government must demonstrate the existence of a deficiency beyond a reasonable doubt, but need not prove the extent of the deficiency with mathematical certainty. See Chesson, 933 F.2d at 304. There is no deficiency in the absence ofa showing that the government is actually due a tax in excess of that reported. See Willingham v. United States, 289 F.2d 283, 285 (Sth Cir. 1961). Therefore, undeclared deductions, credits, losses carried over from prior years, and so on, should be considered when calculating the ‘Contrary to Bishop’s suggestion, the five items he identifies were not “rebates” reducing the extent of any deficiency which would otherwise exist, Rebates are not credits, refunds, or other payment made by the taxpayer, but rather are payments the IRS makes to a taxpayer “on the ground that the income tax imposed. . . is less than the excess of (1) the amount shown as the tax by the taxpayer upon the return increased by the amount previously assessed (or collected without assessment) as a deficiency over (2) the amount of rebates previously made.” Treas. Reg. § 301.6211- 1(f). For example, a refund made because too much tax was withheld at the source is not a rebate, but a refund made because the IRS determined taxpayer’s return overstated the tax due is a rebate. See id. Moreover, the existence of a rebate will actually increase the extent of deficiency, not decrease it according to the formula above, as the taxpayer returns the credit now known to be unwarranted. See Miles Prod. Co. v. CIR, 987 F.2d 273, 276-77 & n.3 (Sth Cir. 1993); United States v. Wilkes, 946 F.2d 1143, 1149 (Sth Cir. 1991). 14 deficiency. See Sansone, 380 U.S. at 353, 85 S. Ct. at 1011, 13 L. Ed. 2d at 888; Wright, 211 F.3d at 236-37; United States v. Fogg, 652 F.2d 551, 555 (Sth Cir. 1981); Willingham, 289 F.2d at 285. Under 26 U.S.C. § 7201, willfulness is “a voluntary, intentional violation of a known legal duty.” Kim, 884 F.2d at 192. Evidence is usually circumstantial as direct proof is rarely available. See id. A wide range of conduct can support a finding of willful attempt to evade taxation, for instance: keeping a double set of books, making false entries or alterations, creating false invoices or documents, destroying books or records, concealing assets or covering up sources of income, handling one’s affairs to avoid making the records normally accompanying transactions ofa particular kind, any conduct likely to mislead or conceal, holding assets in others’ names, providing false explanations, giving inconsistent statements to government agents, failing to report a substantial amount of income, a consistent pattern of underreporting large amounts of income, or spending large amounts of cash that cannot be reconciled with the amount of reported income. See Chesson, 933 F.2d at 304; Kim, 884 F.2d at 192; United States v. Calles, 482 F.2d 1155, 1159-60 (Sth Cir.1973). 1 At trial it was established that Bishop owed a tax for 1991, even giving due regard for all appropriate credits. Bishop identifies five items he asserts offset any underpayment attributable to his failure to report the fees he received in 1991. He first explains he made a “payment of $75,000 to the IRS in 1988 when he had a net loss that has not been shown as a credit elsewhere.” This was a payment of employment taxes, he received an appropriate deduction, and the payment has no further role in his income tax liability? Second, Bishop asserts he made a $38,360 overpayment in *Locus t