FILED
NOT FOR PUBLICATION JUL 11 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10354
Plaintiff - Appellee, D.C. No. 1:08-cr-00223-DAE-2
v.
MEMORANDUM *
LEI LAVARIAS ROSS,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 10-10359
Plaintiff - Appellee, D.C. No. 1:08-cr-00223-DAE-1
v.
DAVID OPOLLO ROSS,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Hawaii
David A. Ezra, District Judge, Presiding
Argued and Submitted June 13, 2011
Honolulu, Hawaii
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: ALARCÓN, WARDLAW, and N.R. SMITH, Circuit Judges.
On April 21, 2008, a grand jury returned an indictment against David Ross
and Lei Ross charging them both with one count of conspiracy to defraud the
United States, 18 U.S.C. § 371, and separate counts of income tax evasion for each
of the tax years from 1998 through 2002, 26 U.S.C. § 7201. At the conclusion of
their 11-day joint trial in the United States District Court for the District of Hawaii,
the Rosses were convicted of all counts. They appeal from their judgments of
conviction. Their primary contention on appeal is that the district court erred in
denying their motion for new trial without holding an evidentiary hearing on the
question of whether David Ross’s trial counsel, Alan Richey, had an actual conflict
that adversely affected his performance at trial. They also challenge other
evidentiary rulings and the failure to sever Lei Ross’s trial from her husband’s.
We affirm.
I
The Rosses do not challenge the sufficiency of the evidence to support their
convictions. Rather, they argue that the district court erred in denying their motion
for new trial, which asserted that Richey, whom the Rosses had retained in mid-
2003 to represent them before the IRS on civil tax matters, had an actual conflict of
2
interest that deprived them of their Sixth Amendment right to effective assistance
of counsel.
A new trial may be granted “if the interest of justice so requires.” Fed. R.
Crim. P. 33(a). We review a district court’s denial of a motion for new trial, and
its decision not to hold an evidentiary hearing before ruling on a motion for new
trial, for an abuse of discretion. United States v. Montes, 628 F.3d 1183, 1187 (9th
Cir. 2011). “A district court abuses its discretion if it reaches a result that is
‘illogical, implausible, or without support in inferences that may be drawn from
facts in the record.’” Id. (quoting United States v. Hinkson, 585 F.3d 1247, 1251
(9th Cir. 2009) (en banc)).
“In order to prevail on an ineffective assistance of counsel claim based on
[a] conflict of interest, a defendant must show that ‘an actual conflict of interest
adversely affected his lawyer’s performance.’” United States v. Miskinis, 966 F.2d
1263, 1268 (9th Cir. 1992) (quoting Cuyler v. Sullivan, 446 U.S. 335, 350 (1980)).
“The customary procedure for challenging the effectiveness of defense counsel in a
federal criminal trial is by collateral attack on the conviction under 28 U.S.C. §
2255.” United States v. Birges, 723 F.2d 666, 670 (9th Cir. 1984); see also United
States v. Molina, 934 F.2d 1440, 1446 (9th Cir. 1991) (“We prefer appellants to
raise such claims in a habeas proceeding because it permits the district judge first
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to decide whether the claim has merit, and second, if it does, to develop a record as
to what counsel did, why it was done, and what, if any, prejudice resulted.”).
In United States v. Hanoum, 33 F.3d 1128 (9th Cir. 1994), we reviewed a
new trial motion based on newly discovered evidence giving rise to an ineffective
assistance of counsel claim. Id. at 1129. We stated that evidence properly
considered in the context of a new trial motion is evidence that “relates to the
elements of the crime charged,” explaining that
[t]he fact that Hanoum’s attorney allegedly failed to do anything to
prepare a case is material to whether he was effective or not, but not to
whether Hanoum is innocent or guilty of the crimes charged . . . .
Additionally, evidence of ineffectiveness will seldom if ever indicate
that a new trial would probably produce an acquittal. The same
problem occurs: it is the underlying evidence suppressed or not
presented by the attorney, not the attorney’s ineffectiveness, that
might produce the acquittal.
Id. at 1130-31. We declined, however, to reach the merits of Hanoum’s conflict of
interest claim, which consisted of “mere allegations” that had not been developed
at a hearing. Id. at 1131-32.
The record before the district court was not sufficient to establish the precise
nature and timing of any tax advice Richey gave the Rosses, and the district court
was not obliged to conduct an evidentiary hearing to develop the record on that
point. Such evidence would be material as to whether Richey rendered ineffective
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assistance of counsel and not as to whether the Rosses are guilty of willfully
conspiring to defraud the government. Stated otherwise, the Rosses’ conflict of
interest claim does not demonstrate that the prosecution failed to present evidence
sufficient to persuade a rational trier of fact of their guilt. Accordingly, we are
persuaded that the district court did not abuse its discretion in denying the Rosses’
new trial motion. A collateral attack pursuant to 28 U.S.C. § 2255 represents an
appropriate procedural device to challenge the effectiveness of Richey’s
representation and also provides an adequate remedy for the Rosses’ conflict of
interest claim. See Miskinis, 966 F.2d at 1269 (“We emphasize that there is no
fixed rule against determining the ineffectiveness question on direct appeal where
the record so permits. Rather, the decision to defer resolution of an ineffective
assistance of counsel claim is a discretionary one and depends upon the contents of
the record in a particular case.”).
II
The Rosses also challenge evidentiary rulings that the district court made
during the trial. “A district court’s ruling excluding testimony is reviewed for
abuse of discretion.” United States v. Moran, 493 F.3d 1002, 1012 (9th Cir. 2007).
A district court abuses its discretion when its evidentiary rulings are “based on ‘an
erroneous view of the law or a clearly erroneous assessment of facts.’” United
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States v. Nguyen, 465 F.3d 1128, 1130 (9th Cir. 2006) (quoting United States v.
Morales, 108 F.3d 1031, 1035 (9th Cir. 1997)). “Reversal is required if it is ‘more
probable than not’ that error affected the verdict.” United States v. Alvarez, 358
F.3d 1194, 1205 (9th Cir. 2004) (quoting United States v. Rohrer, 708 F.2d 429,
432 (9th Cir. 1983)).
A
David Ross argues that the district court erred in excluding as hearsay his
testimony about tax advice he received from various advisors. We have explained
in prior opinions that, in criminal tax cases, a defendant’s testimony about the tax
advice on which he relied is not inadmissible as hearsay when it is offered to
support a defense that the defendant relied in good faith on the advice of qualified
experts. See Moran, 493 F.3d at 1013 (“[T]he defendant ‘has the right to tell the
court his own version of the tax advice on which he claim[s] to have relied.’ Such
testimony does not constitute hearsay when not offered for the truth of the matter
stated.”) (quoting United States v. Bishop, 291 F.3d 1100, 1111 (9th Cir. 2002)).
Although the district court erred as a matter of law in ruling that testimony
reporting the tax advice was “hearsay,” it did not prevent David Ross from
testifying about the advice he received from others as long as he framed it in terms
of what he “understood” or learned from those advisors. Additionally, the district
6
court admitted the trial testimony of two of David Ross’s advisors and hundreds of
pages of documents setting forth the advice the Rosses received and claimed to
have relied upon. The district court’s rulings did not prevent the jury from
considering the evidence in support of the Rosses’ good faith reliance defense.
Accordingly, the district court’s error in ruling that testimony about advice from a
tax advisor is hearsay was harmless error.
B
The Rosses argue that the district court erred in excluding evidence of their
reliance on advice they received from Richey. Rule 403 of the Federal Rules of
Evidence provides that “[a]lthough relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.” Fed. R.
Evid. 403. An exception to the general rule that a district court’s decision to
exclude evidence at trial is reviewed for an abuse of discretion exists “when the
district court excludes evidence under Federal Rule of Evidence 403 but does not
engage in explicit balancing.” United States v. Leo Sure Chief, 438 F.3d 920, 925
(9th Cir. 2006). In such cases, the district court’s determination is reviewed de
novo. Id.
7
Although the district court did not expressly rely on Rule 403, its ruling
reflects a determination that the relevance of the proffered evidence was
outweighed by the potential for prejudice that could flow from creating an
opportunity for the Government to call Richey as a rebuttal witness. Evidence of
reliance on erroneous advice from Richey would not have negated a rational trier
of fact’s determination of willfulness in the years before the Rosses hired Richey:
the years from 1998 through 2003. Any reliance on advice from Richey would
have been relevant only to a portion of the single conspiracy count, which covered
the period from 1998 through the time of the grand jury indictment in 2008.1
Accordingly, we conclude that the district court did not err in excluding the
proffered evidence.2
III
1
We express no view regarding whether evidence of Richey’s advice should
have been admitted regarding the sufficiency of the evidence as to the conspiracy
count. That issue can be addressed on habeas corpus review, if such relief is
requested. In United States v. Barron, 172 F.3d 1153 (9th Cir. 1999), we stated
that under the “broad and flexible power” conferred by § 2255, a district court may
set aside an inmate’s conviction. Id. at 1160 (internal quotation marks omitted)
(quoting United States v. Handa, 122 F.3d 690, 691 (9th Cir. 1997)).
2
Lei Ross also argues that, as a result of the district court’s ruling on the joint
proffer of evidence, she “was denied her Sixth Amendment right to present a
defense and her Fifth and Sixth Amendment rights to due process.” Because we
conclude that the district court’s ruling did not constitute error, we do not reach Lei
Ross’s arguments that the error rose to the level of a constitutional violation.
8
Lei Ross contends that the trial court erred by failing to sever her trial from
her husband’s on the basis of an alleged conflict of interest with David Ross’s trial
counsel. She also argues that her own trial counsel rendered ineffective assistance
by failing to make a timely motion for severance. We review claims that are not
raised below for plain error. United States v. Nevils, 598 F.3d 1158, 1170 (9th Cir.
2010).
The district court was not obliged, sua sponte, to sever Lei Ross’s trial from
her husband’s. Additionally, in light of the absence of reference to any facts in the
trial record that relate to the basis for the decision of Lei Ross’s counsel not to
move to sever, a collateral attack on the conviction, pursuant to 28 U.S.C. § 2255,
is the appropriate forum for Lei Ross to pursue her ineffective assistance of
counsel claim.
AFFIRMED.
9