United States v. Defoor, 083115 FED9, 14-10479

• Party Name: UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KENNITH LEE DEFOOR, Defendant-Appellant.
• Judge Panel: Before: REINHARDT, TASHIMA, and CALLAHAN, Circuit Judges. REINHARDT, Circuit Judge, concurring:
• Case Date: August 31, 2015
• Court: United States Courts of Appeals, U.S. Court of Appeals — Ninth Circuit

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

KENNITH LEE DEFOOR, Defendant-Appellant.

No. 14-10479

United States Court of Appeals, Ninth Circuit

August 31, 2015

NOT FOR PUBLICATION

Submitted August 13, 2015 San Francisco, California

Appeal from the United States District Court for the District of Arizona, No. 3:10 cr-08216- DGC David G. Campbell, District Judge, Presiding

Before: REINHARDT, TASHIMA, and CALLAHAN, Circuit Judges.

MEMORANDUM ^[*]

Kennith Defoor appeals from his conviction for conspiring to defraud the United States and filing false claims against the United States through a fraudulent income tax return scheme in violation of 18 U.S.C. §§ 2, 286, 287. Defoor did not raise any of the issues he presses in this appeal in the district court; accordingly, we review each issue for plain error. See United States v. Hilgers, 560 F.3d 944, 946 (9th Cir. 2009). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. Defoor argues that the district court plainly erred by allowing the government to elicit testimony from IRS Agents Shelly Bare and Patrick Bauer that he filed "false" tax returns.

a. First, Defoor contends that, by testifying that Defoor filed "false" tax returns, Agents Bare and Bauer impermissibly "testified to the legal conclusion" at issue in the case (i.e., whether the claims Defoor filed were "false") in violation of Federal Rules of Evidence 701, 702, 704, and 403. Although Federal Rule of Evidence 704(a) specifically provides that "[a]n opinion is not objectionable just because it embraces an ultimate issue, " Fed.R.Evid. 704(a), it "does not lower the bar[] so as to admit all opinions." Fed.R.Evid. 704 advisory committee's notes. Rules 701 and 702 require opinions to "be helpful to the trier of fact, " and Rule 403 "provides for exclusion of evidence which wastes time." Fed.R.Evid. 704 advisory committee's notes. Together, these rules prevent a witness from giving "an opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of law." Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1016 (9th Cir. 2004) (citation omitted).

Although determining whether an opinion is a "legal conclusion" can be a difficult task, our case-law helps guide this inquiry. In United States v. Hearst, 563 F.2d 1331 (9th Cir. 1977) (per curiam), we concluded that it was permissible for experts to testify that the defendant had "voluntarily rob[bed] a bank" and "act[ed] under fear of death or grave bodily harm" because "[t]he average lay[person] would understand those terms and ascribe to them essentially the same meaning intended by the expert witness." Id. at 1351. Similarly, in this case, it is clear that, when Agents Bare and Bauer testified that Defoor's claims were "false, " they were using the term in a manner that the "average lay[person] would understand." Id. Defoor has not identified, nor have we found, any authority suggesting that the term "false" has a specialized meaning in the law that is different from what the term means in the vernacular. Moreover, nothing in the record suggests that, when Agents Bare and Bauer testified that the claims were "false, " they intended the term to mean anything other than what it does in common parlance. Accordingly, the district court did not commit plain error by allowing Agents Bare and Bauer to testify that the claims Defoor filed were "false."

b. Defoor further argues that, by permitting Agent Bare to testify that the claims he filed were "false, " the district court "allow[ed] the government to commit ambush by expert, " because her testimony went beyond the scope of the United States' pretrial notice of expert testimony, in violation of Federal Rule of Criminal Procedure 16(a)(1)(G). This argument has little merit: at least two years before trial, the government notified Defoor that Agent Bare would "opine that the income tax returns prepared by defendants and turned over in discovery are inaccurate and that defendants' claims for tax refunds have no basis in U.S. income tax law."

Defoor contends that this notice was insufficient: according to Defoor, this notice failed to inform him that Agent Bare would "testify using the exact terminology from the statute regarding the very question that the jury must resolve in this case, namely whether these returns constituted false claims." Defoor's argument rests on his assertion that the term "false" is different from the term "inaccurate." We reject this distinction: the two terms are synonyms. See Merriam-Webster's Thesaurus, "False, " http://www.merriam-webster.com/thesaurus/false (last visited August 17, 2015) (identifying "inaccurate" as a synonym for "false"). Accordingly, the district court did not commit plain error in violation of Rule 16 by allowing Agent Bare to testify that the claims Defoor filed were "false."

c. Defoor also argues that the district court plainly erred by permitting Agent Bauer, a "case agent, " to testify as an expert. This argument is premised on Defoor's contention that, by testifying that the claims Defoor filed were "false, " Agent Bauer offered an "expert" opinion. However, at least in this case, testifying that a claim was "false" required no specialized expertise: as discussed above, when Agent Bauer testified that Defoor's claims were "false, " he used the term in a manner that the "average lay[person] would understand." Hearst, 563 F.2d at 1351. Accordingly, the district court did not commit plain error by allowing Agent Bauer to testify that the claims Defoor filed were "false."

2. Next, Defoor argues that the trial court erred by "unilaterally investigating and resolving a juror's report of potential jury tampering" – a phone call received by Juror Number 9 or her husband during trial¹ – without holding an evidentiary hearing or applying the presumption of prejudice required by Remmer v. United States, 347 U.S. 227 (1954).

The Remmer presumption does not attach to every allegation of jury tampering or misconduct. Rather, a court must "first determine whether a defendant has made a prima facie showing that the intrusion had . . . an adverse effect on the deliberations." United States v. Henley, 238 F.3d 1111, 1115 (9th Cir. 2001) (citation omitted); accord United States v. Rutherford, 371 F.3d 634, 643 (9th Cir. 2004) (noting that Remmer does not apply in cases involving instances of "more prosaic kinds of jury misconduct" (citation omitted)). This "adverse effect standard is a low one: Unless the district court finds that this showing is entirely frivolous or wholly implausible, it must order a Remmer hearing to explore the degree of the intrusion and likely prejudice suffered by the defendant." Henley, 238 F.3d at 1115 (citation omitted).

Here, Defoor fails to meet even this "low" threshhold. It is "wholly implausible" for Defoor to suggest that the phone call received by Juror Number 9 (or her husband) had an "adverse effect" on the jury deliberations. The caller simply asked Juror Number 9 (or her husband) if she (or he) owed money to the IRS and, upon questioning by Juror Number 9 (or her husband), hung up. This single question cannot plausibly be interpreted as even an indirect attempt to coerce or otherwise distract Juror Number 9 from her duties as a juror. Moreover, nothing in the record supports the...