940 F.2d 669 (9th Cir. 1991), 89-35827, Swayze v. U.S.

Docket Nº:89-35827.
Citation:940 F.2d 669
Party Name:Darlene SWAYZE, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
Case Date:July 11, 1991
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 669

940 F.2d 669 (9th Cir. 1991)

Darlene SWAYZE, Plaintiff-Appellant,


UNITED STATES of America, Defendant-Appellee.

No. 89-35827.

United States Court of Appeals, Ninth Circuit

July 11, 1991

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Decided July 24, 1991.

Appeal from the United States District Court for the District of Oregon, No. CV-82-1459-BU; James M. Burns, District Judge, Presiding.





Appellant Darlene Swayze, a professional tax preparer, brought an action under 28 U.S.C. § 1346 for a refund of penalties assessed for the negligent preparation of her clients' family trust tax returns pursuant to § 6694(a) of the Internal Revenue Code of 1986. A jury found in favor of the government and Swayze appealed. We have jurisdiction under 28 U.S.C. § 1291. We affirm.


Swayze contends that the district court abused its discretion in admitting into evidence a decision of the United States Tax Court affirming the imposition of a negligence penalty against Swayze for her reliance in the preparation of her personal income tax returns on a family trust tax evasion scheme. The government offered the opinion to rebut Swayze's claim that she had exercised due diligence in preparing the family trust tax returns at issue in her refund action.

As Swayze rightly points out, prior civil judgments are generally considered inadmissible hearsay. See J. Weinstein & M. Berger, 4 Weinstein's Evidence ¶ 803(22)[01] (1990). To evade this rule, the government refers us to Greycas, Inc. v. Proud, 826 F.2d 1560 (7th Cir.1987), cert. denied, 484 U.S. 1043 (1988), where the Seventh Circuit expressed doubt as to whether the rule should apply to bar admission of a prior state court judgment offered solely for its evidentiary effect. The plaintiff and district court in Greycas relied on a prior state court declaration that the plaintiff's lien on certain property was subordinate to other creditors as evidence of the amount of damages the plaintiff suffered as a result of the defendant's negligent misrepresentations. Id. at 1567. Greycas is distinguishable for several reasons. First, rather than holding that the rule against the admission of a prior civil judgment was inapplicable, the court merely expressed doubt about its application. Second, the court recognized that any exception to that rule would apply only in a bench trial, whereas in this case, the evidence was presented to a jury. Finally, in Greycas, the prior civil judgment was used merely for evidentiary effect, whereas here the government sought to introduce the Tax Court opinion as substantive proof of Swayze's negligence. We thus conclude that the opinion was inadmissible hearsay.

The government argues in the alternative that even if the Tax Court opinion was inadmissible, Swayze waived her objections to its admission under the rule of curative admissibility or the "opening the door" doctrine. The rule of curative admissibility provides that if one party introduces inadmissible evidence, her opponent may, in the court's discretion, introduce otherwise inadmissible evidence on the same issue to remove any unfair prejudice that might otherwise result. See United States v. Whitworth, 856 F.2d 1268, 1285 (9th Cir.1988), cert. denied, 489 U.S. 1084 (1989); Teague v. United States, 268 F.2d 925, 927 (9th Cir.1959). The "opening the door" rule, sometimes referred to as the "invited error" doctrine, provides that a party may present otherwise inadmissible evidence to correct a false impression left by the defendant's testimony, see United States v. Beltran-Rios, 878 F.2d 1208, 1212 (9th Cir.1989); United States v. Segall, 833 F.2d 144, 148 (9th Cir.1987); United States v. Doe, 656 F.2d 411, 412 (9th Cir.1981), or to pursue an otherwise improper line of inquiry that the defendant initiated either in his opening statement or on direct examination, see United States v. Segal, 852 F.2d 1152, 1155-56 (9th Cir.1988); Burgess v. Premier Corp., 727 F.2d 826, 835 (9th Cir.1984); United States v. Giese, 597 F.2d 1170, 1188-91 (9th Cir.), cert. denied, 444 U.S. 979 (1979).

Neither doctrine is applicable here. Swayze did not introduce inadmissible evidence that would entitle the government to respond in kind. Cf....

To continue reading