Brodmerkle

MEMORANDUM ***

Ronald John Brodmerkle (“Brodmer-kle”) appeals his misdemeanor conviction for willful failure to file a federal income tax return for 2002, in violation of 26 U.S.C. § 7203 . We affirm the jury’s verdict and Brodmerkle’s conviction.

Brodmerkle’s arguments that the district court’s failed to adequately instruct the jury on the definition of “cost of goods” are not persuasive. Because Brodmerkle did not object to the gross income jury instruction or request an instruction pertaining to the cost of goods sold, we review only for plain error. United States v. Klinger, 128 F.3d 705, 710 (1997). Here, the gross income instruction allowed the jury to consider all evidence submitted by the parties in determining Brodmerkle’s gross income in 2002. Brodmerkle was able to assert his theory of defense that additional incurred costs, beyond those the government presented, should be included in the cost of goods sold thereby reducing his income. Brodmerkle, however, failed to substantiate many of his claimed costs. There is no indication in the record that the jury failed to consider any of the evidence of Brodmerkle’s costs during its deliberations, and the instructions did…