United States v. Defoor

• Decision Date: 31 August 2015
• Docket Number: No. 14-10479,14-10479
• Parties: UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KENNITH LEE DEFOOR, Defendant - Appellant.
• Court: 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 FOR THE NINTH CIRCUIT

Argued and Submitted: August 13, 2015

August 31, 2015

NOT FOR PUBLICATION

D.C. No. 3:10 cr-08216- DGC

MEMORANDUM^*

Appeal from the United States District Court for the District of Arizona

David G. Campbell, District Judge, Presiding

Argued and Submitted August 13, 2015 San Francisco, California

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

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, wereview 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 theUnited 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 jurymisconduct" (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 inference that the call intimidated, distracted, or affected Juror Number 9's peace of mind during jury deliberations. To the contrary, the record allays any such concerns: Juror Number 9 testified that the call would not affect her "ability to be a fair and impartial juror to both sides." Similarly, Juror Number 8 - the only other juror that the record reflects knew about the call and its contents - testified that he or she would be "able to retain a fair and open mind and not be influenced by the fact that this coincidence occurred." Both jurors further testified that the call leftthem without "any lingering concern" that it "might actually be associated with the real Internal Revenue Service."

The phone call and the trial are connected only because they are tangentially related to the same subject. This attenuated link, by itself, is not enough to require application of the Remmer presumption. See Smith v. Phillips, 455 U.S. 209, 217 (1982) ("[I]t is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote."). Accordingly, the district court did not commit plain error by failing to attach the Remmer presumption to the alleged incident of jury tampering.²

3. Finally, Defoor argues that three of the district court's jury instructions were plainly erroneous.

a. First, Defoor argues that the district court's § 287 instruction was plainly erroneous. To sustain a conviction under § 287, the "government must prove that the defendant (1) presented a claim against the United States and (2) knew such claim to be false." United States v. Atalig, 502 F.3d 1063, 1067 (9th Cir. 2007). The district court's § 287 instruction was entirely consistent with this precedent.Nonetheless, Defoor argues that it was erroneous for two reasons. First, he argues that the instruction was incorrect because it did not "require[] the jury to find that the claims were consciously inaccurate, nor that Mr. Defoor knew them to be false at the time he made them." This argument is belied by the instruction itself, which required the jury to find that Defoor "knew the claim[s] w[ere] false."

Second, Defoor argues that the instructions were erroneous because they "did not require the jury to conclude that the defendant acted with a consciousness that he was doing something wrong or that violated the law." This argument has little merit: it is axiomatic that "ignorance of the law or a mistake of law is no defense to criminal prosecution." United States v. Liu, 731 F.3d 982, 989 (9th Cir. 2013) (quoting Cheek v. United States, 498 U.S. 192, 199 (1991)). Although we...