United States v. Maria Larkin ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 13 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10040
Plaintiff-Appellee, D.C. No.
2:12-cr-00319-JCM-GWF-1
v.
MARIA LARKIN, AKA Maria Bella- MEMORANDUM*
Larkin,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted June 6, 2019**
Portland, Oregon
Before: MURGUIA and HURWITZ, Circuit Judges, and GAITAN,*** District
Judge.
Maria Larkin was convicted of failing to pay tax penalties assessed by the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Fernando J. Gaitan, Jr., United States District Judge
for the Western District of Missouri, sitting by designation.
Internal Revenue Service (“IRS”) in violation of 26 U.S.C. § 7201. She was
sentenced to 12 months and 1 day of imprisonment. Larkin appeals several
evidentiary rulings made by the district court before and during trial. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm in part and remand in part with
instructions for the district court to conform the written judgment to the oral
pronouncement of sentence.
1. This Court reviews a district court’s decision to exclude expert
testimony for an abuse of discretion. United States v. Morales, 108 F.3d 1031,
1035 (9th Cir. 1997) (en banc). The district court did not err in excluding the
testimony of four expert witnesses proffered by Larkin: (1) Michael Flakus, a
former IRS manager; (2) Dr. Robert Hunter, a psychologist; (3) Michael Rosten, a
CPA; and (4) Dr. Anthony Lucas, a professor of hotel administration.
Flakus was proffered to testify that restructuring a business facing tax
problems is an accepted practice, if done correctly—that is, by appraising the value
of any assets transferred to the new business and making arrangements to pay over
to the IRS the value of the assets. However, Larkin never took any of these steps
when restructuring her business. Furthermore, many other witnesses, including
several IRS officers, also testified that restructuring a business is an acceptable
practice, if done properly. Therefore, Flakus’s testimony was irrelevant and
cumulative. See Hamling v. United States, 418 U.S. 87, 127 (1974) (trial court has
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considerable latitude to reject even relevant evidence if considered to be
cumulative).
Larkin proffered that the rest of her experts would testify as to her excessive
gambling, which Dr. Hunter attributed to a gambling disorder. However, the fact
that Larkin has a gambling disorder does not tend to demonstrate that she lacked
the intent to evade paying her tax penalties. See United States v. Scholl, 166 F.3d
964, 971 (9th Cir. 1999). There was also substantial evidence introduced at trial
regarding Larkin’s gambling activities, rendering further testimony by Larkin’s
experts on the matter cumulative. See Fed. R. Evid. 403.
Even if the district court erred in excluding Larkin’s experts, any error was
harmless because there was overwhelming evidence of Larkin’s willful intent to
evade paying her tax penalties. See United States v. Smith, 638 F.2d 131, 134 (9th
Cir. 1981) (where evidence of guilt is overwhelming erroneous exclusion of
evidence is harmless).
2. “Whether limitations on cross-examination are so severe as to amount
to a violation of the confrontation clause is a question of law reviewed de novo.”
United States v. Vargas, 933 F.2d 701, 704 (9th Cir. 1991). Unpreserved
confrontation clause objections are reviewed only for plain error. United States v.
Macias, 789 F.3d 1011, 1017 (9th Cir. 2015).
The district court did not err in limiting Larkin’s cross-examination of three
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government witnesses. Once John Filippello, one of Larkin’s tax advisors, testified
that the IRS had accused him of misconduct on “a couple of occasions,” the jury
had sufficient evidence from which to evaluate Filippello’s biases and motivations.
See United States v. Bonanno, 852 F.2d 434, 439 (9th Cir. 1988) (“[O]nce cross-
examination reveals sufficient information with which to appraise a witness’s
possible bias and motives, confrontation [clause] demands are satisfied.”).
Prohibiting Larkin from cross-examining IRS Officer Lavinia Brown by
referring repeatedly to IRS history transcripts that were already in the record also
did not constitute error because such evidence was cumulative. See United States v.
Gomez, 846 F.2d 557, 559 (9th Cir. 1988) (“The court has considerable discretion
to limit cross-examination in order to . . . avoid cumulative evidence.”). Likewise,
the district court properly precluded further cross-examination of Kathy Artuso,
Larkin’s personal host at the Palace Station Casino, regarding two email exchanges
between her and Larkin, as there was already extensive evidence in the record
regarding Larkin’s gambling activities. See id.
3. Contrary to Larkin’s argument, the district court also did not commit
reversible error by allowing IRS Officer Luis Tejada to testify at trial on behalf of
the government. Larkin fails to articulate how the verdict would have been
different had she been given notice that Tejada would testify as an expert. See
United States v. Figueroa-Lopez, 125 F.3d 1241, 1247 (9th Cir. 1997) (“[A]
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violation of Rule 16 does not itself require reversal, or even exclusion of the
affected testimony. [Defendant] must demonstrate prejudice to substantial rights to
justify reversal for violations of discovery rules.”) (citations omitted).
4. The district court’s failure to give an instruction on a good faith
defense does not warrant a new trial in this case either. Larkin does not dispute that
the district court properly instructed the jury as to “willfulness” under 26 U.S.C. §
7201. See United States v. Shipsey, 363 F.3d 962, 967 (9th Cir. 2004) (“Our case
law is well settled that a criminal defendant has ‘no right’ to any good faith
instruction when the jury has been adequately instructed with regard to the intent
required to be found guilty of the crime charged . . . .”) (emphasis in original)
(collecting cases).
5. Remand is required because the written judgment conflicts with the
oral pronouncement of sentence. United States v. Hicks, 997 F.2d 594, 597 (9th
Cir. 1993) (when there is conflict between the oral pronouncement and written
judgment, the oral pronouncement controls). The district court imposed the
following condition of supervised release at sentencing, but omitted it from the
judgment:
The probation officer may conduct a search under this condition only
when reasonable suspicion exists that you have violated a condition of
supervision and that the areas to be searched contain evidence of this
violation. Any search must be conducted at a reasonable time and in a
reasonable manner.
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On remand, the district court should include this condition in the judgment.1
AFFIRMED in part; REMANDED in part with instructions.
1
Because we conclude that no new trial is warranted, this panel declines to
address Larkin’s request to define a “defendant’s case-in-chief” under Federal Rule
of Criminal Procedure 16(b)(1)(A).
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