United States v. Rakow, 072808 FED9, 07-50247

Docket Nº:07-50247
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RONALD LEON RAKOW, Defendant - Appellant.
Judge Panel:Before: FERNANDEZ, RYMER, and KLEINFELD, Circuit Judges.
Case Date:July 28, 2008
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

UNITED STATES OF AMERICA, Plaintiff - Appellee,


RONALD LEON RAKOW, Defendant - Appellant.

No. 07-50247

United States Court of Appeals, Ninth Circuit

July 28, 2008


Argued and Submitted July 16, 2008 Pasadena, California

Appeal from the United States District Court for the Central District of California Margaret M. Morrow, District Judge, Presiding D.C. No. CR-04-01563-MMM-1

Before: FERNANDEZ, RYMER, and KLEINFELD, Circuit Judges.


Ronald L. Rakow appeals his conviction for tax evasion. 26 U.S.C. § 7201. We affirm.

(1) Rakow asserts that because evidence of his failure to disclose loans to the Internal Revenue Service was admitted, there was constructive amendment of the indictment, or at least a variance. See United States v. Adamson, 291 F.3d 606, 614–15 (9th Cir. 2002). We disagree. There was no plain error.1 His claim that the jury could not have founded its verdict on most of the overt acts set forth in the indictment because it acquitted him of other counts associated with those acts must fail. At most, that would indicate a non-cognizable inconsistency. See United States v. Powell, 469 U.S. 57, 62–65, 105 S.Ct. 471, 475–77, 83 L.Ed.2d 461 (1984); United States v. Franco, 136 F.3d 622, 630 (9th Cir. 1998); United States v. Hart, 963 F.2d 1278, 1281–82 (9th Cir. 1992). Also, the mere fact that evidence is of a wrongdoing not specifically set forth in the indictment does not preclude its admission. See United States v. Bhagat, 436 F.3d 1140, 1146 (9th Cir. 2006). In addition, the evidence in question was admissible to undercut Rakow’s assertion that he had acted in good faith and was forthcoming. Finally, there was ample evidence (other than the loan evidence) to convict Rakow of tax evasion. There was no constructive amendment. Similarly, there was no material variance. See id. at 1146–47.

(2) Rakow next asserts that his privilege against self incrimination and his due process rights were violated when testimony he gave at a bankruptcy examination was admitted against him. See U.S. Const. amend. V. Again, we disagree . The record makes it apparent that Rakow, who was represented by counsel, was well aware of the privilege and chose not to assert it in the bankruptcy proceeding. Thus, he waived it. See United States v. Kordel, 397 U.S. 1, 7–10, 90 S.Ct. 763, 767–68, 25 L.Ed.2d 1 (1970); United...

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