United States v. Lewis Guess , 472 F. App'x 546 ( 2012 )

FILED
NOT FOR PUBLICATION MAR 21 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50589
Plaintiff - Appellee, D.C. No. 3:08-cr-04341-JM-1
v.
MEMORANDUM*
LEWIS DONALD GUESS,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, Senior District Judge, Presiding
Argued and Submitted February 16, 2012
Pasadena, California
Before: FARRIS and W. FLETCHER, Circuit Judges, and HELLERSTEIN,
Senior District Judge.**
Lewis Donald Guess (“Appellant”) appeals his conviction on two counts of
willfully filing a false tax return in violation of 26 U.S.C. § 7206(1). Appellant
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Alvin K. Hellerstein, Senior District Judge for the U.S.
District Court for Southern New York, sitting by designation.
challenges the sufficiency of the evidence supporting the conviction and the
preclusion of the testimony of a defense witness who indicated that he would
refuse to answer certain cross-examination questions. We assume familiarity with
the record. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.
The conviction results from a charitable deduction claimed by Appellant on
his 2001 and 2002 federal income tax returns. Appellant claimed that on
December 31, 2001, he contributed shares of stock in a closely-held corporation
that he controlled (Xelan Insurance Services, Inc.), which he valued at $800,000, to
a 501(c)(3) organization that he also controlled (Xelan Foundation). The district
court found, following a bench trial, that the claimed donation had not occurred
and that Appellant willfully filed tax returns stating the contrary.
At trial, Appellant proposed to call David Jacquot, the general counsel for
certain of Appellant’s entities, as a witness to testify in support of Appellant’s
contentions as to the claimed donation. After reviewing the questions proposed to
be addressed to Jacquot, the district court determined that Jacquot could not testify
because he intended to invoke his Fifth Amendment privilege with respect to
certain cross-examination questions, for he was himself under indictment.
A challenge to the sufficiency of the evidence supporting a criminal
conviction requires us to determine if, “viewing the evidence in the light most
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favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,
443 U.S. 307, 319 (1979) (emphasis in original); United States v. Nevils, 598 F.3d
1158, 1163-64 (9th Cir. 2010) (en banc). The essential elements of willfully filing
a false tax return in violation of 26 U.S.C. § 7206(1) are: (1) the defendant made
and subscribed a tax return that was incorrect as to a material fact; (2) the tax
return subscribed by the defendant contained a written declaration that it was made
under the penalties of perjury; (3) the defendant did not believe the tax return to be
true and correct as to every material matter; and (4) the defendant falsely
subscribed to the tax return willfully, with the specific intent to violate the law.
Kawashima v. Holder, 615 F.3d 1043, 1054-55 (9th Cir. 2010). Viewed in the
light most favorable to the government, the evidence submitted at trial was
sufficient to permit a rational trier of fact to conclude beyond a reasonable doubt
that Appellant willfully filled two false tax returns in violation of 26 U.S.C. §
7206(1).
A challenge to the district court’s preclusion of the testimony of a defense
witness is reviewed for abuse of discretion. United States v. Klinger, 128 F.3d
705, 709 (9th Cir. 1997). This Court “permit[s] the exclusion of a defense
witness’s testimony when the witness has refused on cross-examination to respond
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to questions on non-collateral matters.” Denham v. Deeds, 954 F.2d 1501, 1504
(9th Cir. 1992). “In deciding whether the testimony of a particular witness should
be excluded because that witness will refuse to answer ‘non-collateral’ questions, a
district court must ordinarily determine whether a witness will invoke his Fifth
Amendment privilege in response to specific questions.” Klinger, 128 F.3d at 709(internal quotation marks omitted).
The district court reviewed the proposed questions to be asked of Jacquot.
Jacquot’s counsel stated that he intended to invoke Jacquot’s Fifth Amendment
privilege such that Jacquot would not answer certain cross-examination questions,
including questions regarding his involvement with, and compensation received
from, certain of Appellant’s entities. The district court found that, given the
specific allegations against Appellant and Jacquot’s alleged involvement therein,
these questions were on non-collateral matters and thus did not abuse its discretion
in not allowing Jacquot to testify.
AFFIRMED.
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