FILED
NOT FOR PUBLICATION MAY 03 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10227
Plaintiff - Appellee, D.C. No. 1:06-cr-00049-LJO-1
v.
MEMORANDUM *
DAVID J. EDWARDS,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O'Neill, District Judge, Presiding
Argued and Submitted April 15, 2011
San Francisco, California
Before: NOONAN and N.R. SMITH, Circuit Judges, and BLOCK, Senior District
Judge.**
David J. Edwards ('Edwards') appeals the district court's denial of his
motion to suppress grand jury testimony and dismiss the indictment. We have
jurisdiction under 28 U.S.C. y 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Frederic Blocµ, Senior United States District Judge for
the Eastern District of New Yorµ, sitting by designation.
Assuming, without deciding, that the district court erred in denying
Edwards's motion to suppress Ledbetter's grand jury testimony, we conclude that
the error was harmless. '[A]s a general matter, a district court may not dismiss an
indictment for errors in grand jury proceedings unless such errors prejudiced the
defendants.' Banµ of Nova Scotia v. United States, 487 U.S. 250, 254 (1988).
Since the testimony and documentary evidence that Special Agent Brian Applegate
presented to the grand jury were clearly sufficient to support the indictment, the
admission of Ledbetter's testimony did not ''substantially [influence] the grand
jury's decision to indict'' and the district court properly declined to dismiss the
indictment. See id. at 256 (quoting United States v. Mechaniµ, 475 U.S. 66, 78
(1986) (O'Connor, J., concurring)).
AFFIRMED.
2
FILED
United States v. Edwards, No. 10-10227 MAY 03 2011
Judge N.R. Smith concurring, MOLLY C. DWYER, CLERK
U.S . CO U RT OF AP PE A LS
The district court did not err in refusing to dismiss the indictment or
suppress Ledbetter's testimony, because there was no violation of the tax
practitioner privilege. Congress specified that the privilege 'may only be asserted
in - (A) any noncriminal tax matter before the Internal Revenue Service; and (B)
any noncriminal tax proceeding in Federal court brought by or against the United
States.' 26 U.S.C. y 7525(a)(2) (emphases added). It is obvious that a grand jury
hearing is not a matter before the Internal Revenue Service. Edwards conceded at
oral argument that the grand jury hearing was not a tax proceeding in Federal
court. The privilege was therefore inapplicable.
There is no reason for the court to extend a common-law privilege in this
case. Congress has expressly provided that a tax practitioner-client privilege
should only apply to a 'noncriminal tax matter before the Internal Revenue
Service' or a 'noncriminal tax proceeding in Federal court.' Id.; Fed. R. Evid. 501
('[T]he privilege of a witness . . . shall be governed by the principles of the
common law,' '[e]xcept as otherwise . . . provided by Act of Congress.')