FILED
NOT FOR PUBLICATION MAR 10 2010
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. 06-50607
Plaintiff - Appellee, D.C. No. CR-03-01110-MJL
v.
MEMORANDUM *
ROBERT RICHARD EVANS,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, Senior District Judge, Presiding
Argued and Submitted December 7, 2009
Pasadena, California
Before: REINHARDT, TROTT and WARDLAW, Circuit Judges.
Robert Richard Evans was convicted by a jury of (1) willfully attempting to
evade tax in violation of 26 U.S.C. § 7201, (2) willfully aiding and assisting in the
preparation of false income tax returns in violation of 26 U.S.C. § 7206(2), and
(3) conspiring to defraud the United States in violation of 18 U.S.C. § 371, and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
sentenced to a total term of imprisonment of seventy-eight months. He timely
appeals. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We
affirm Evans’s conviction, but vacate and remand for resentencing.
Guilt
Evans first argues that the district court erred in instructing the jury with
respect to his defense that he had a good-faith belief that his conduct was lawful.
See Cheek v. United States, 498 U.S. 192 (1991). Although the court’s instruction
suffered some of the defects identified by us in United States v. Powell, 955 F.2d
1206, 1211-12 (9th Cir. 1992), a searching examination of the record aided by both
counsel demonstrates that Evans’s trial attorney waived his original objection to
the court’s language. United States v. Perez, 116 F.3d 840, 845-46 & n.7 (9th Cir.
1997) (en banc) (by knowingly accepting a flawed jury instruction, counsel waives
any objection thereto). Although the government was slow to bring the issue of
waiver to our attention, we exercise our prerogative to entertain it in this case
because both sides misread the record until after oral argument. Alohacare v.
Hawaii, Dept. of Human Services, 572 F.3d 740, 744-45 (9th Cir. 2009).
In the alternative, assuming that the court’s good faith instruction was
defective, we affirm nevertheless because we conclude that any instructional error
on these facts was harmless beyond a reasonable doubt. In this respect, we reject
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Evans’s assertion that the evidence against him on the disputed issue of willfulness
was insufficient to support the jury’s verdict. Given the evidentiary record, no
reasonable juror could have concluded that he acted as he did in the good faith
belief that his flagrant acts were lawful.
New Trial
We affirm the district court’s denial of Evans’s motion for a new trial. The
additional impeachment evidence against Matich’s credibility—no matter when it
came to light—was insufficient to warrant Evans’s request. Matich was
thoroughly impeached at trial. Moreover, he was only one of several witnesses
who testified against Evans regarding the trusts and the conspiracy. Even if the
jury had completely disregarded Matich’s testimony, the evidence introduced
through other witnesses was more than sufficient to support Evans’s convictions.
Sentencing
A. Calculation of Tax Loss
Evans asserts that the district court erred in its calculation of the amount of
tax loss attributable to his conduct. We disagree. The district court’s factual
determination that the O’Brien Group’s tax loss was foreseeable to Evans is fully
supported by the record. United States v. Bishop, 291 F.3d 1100, 1115 (9th Cir.
2002). See U.S.S.G. §§ 1B1.3(a)(1)(B), 2T1.1 cmt. n.2.
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B. Position of Trust Enhancement
In calculating the Sentencing Guideline range for Evans, the district court
applied a two-level enhancement for abuse of trust under U.S.S.G. § 3B1.3. Evans
argues that this was error because the abuse of trust enhancement can only be
applied when the defendant has abused a position of trust with the victim of his
charged offense conduct.
Because Evans did not raise this argument before the district court, we
review for plain error. See United States v. Rodriguez-Lara, 421 F.3d 932, 948
(9th Cir. 2005).
Section 3B1.3 provides that the enhancement applies if the defendant
“abused a position of public or private trust.” U.S.S.G. § 3B1.3. “To support the
abuse of trust enhancement, ‘a position of trust . . . must be established from the
perspective of the victim.’” United States v. Technic Servs., Inc., 314 F.3d 1031,
1048 (9th Cir. 2002), overruled on other grounds by United States v. Contreras,
___ F.3d ___, No. 08-50126, Slip Op. at 1875, 2010 WL 348004 (9th Cir. Feb. 2,
2010) (en banc) (per curiam) (alteration in original) (citation omitted).
The district court erred in applying the position of trust enhancement
because the victim in this case is the government and Evans was not in a position
of trust from the perspective of the government. Because the application of this
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enhancement was clearly contrary to the law at the time of sentencing, the error
was plain.
Evans argues that the error affected his substantial rights because the error
resulted in the district court’s application of a two-level increase in the offense
level that may not have otherwise been applicable. We agree.
In sentencing Evans, the district court stated that it was granting a downward
departure of six levels, from an offense level of 32 (with a sentencing guideline
range of 121 to 151 months) to an offense level of 26 (with a sentencing guideline
range of 63 to 78 months). The district court cited the factors of Evans’s age (at
the time of sentencing, Evans was seventy years old); the fact that Evans did not
benefit from his criminal activity; the fact that in some cases, some of the people
were complicit; and the fact that O’Brien “was the primary mover in this case.”
The district court then stated that its departure was based on 18 U.S.C. § 3553(a)
factors, and sentenced Evans to 78 months of imprisonment.
Despite the district court’s use of the word “departure,” it appears that the
district court was not departing from the advisory sentencing guidelines range, but
instead was imposing a sentence that varied from the guidelines range based on its
consideration of the § 3553(a) factors. It is not clear from the record whether the
district court granted a six-level variance because it determined that a sentence of
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seventy-eight months was appropriate notwithstanding the guidelines range, or
whether, instead, the district court would have granted a six level variance from the
advisory guidelines range even if the guidelines range had been lower, i.e., if the
position of trust enhancement had not been applied.
Under these circumstances, we hold that the application of the position of
trust enhancement was error, that the error was plain, and that the error affected
Evans’s substantial rights. See United States v. Armstead, 552 F.3d 769, 785 (9th
Cir. 2008) (holding that an error in guideline calculation seriously affected the
defendant’s substantial rights because the starting point for consideration of
§ 3553(a) factors was five months higher than it should have been). We also
conclude that the error seriously affected the fairness, integrity, or public
reputation of judicial proceedings because, had the district court correctly applied
the sentencing guidelines, given Evans’s age and lack of a criminal history, the
district court may have sentenced him to a lesser sentence. In any event, our
remand will give the district judge an opportunity to consider those matters again,
along with the fact that Evans is now 73 years old and has already served almost
three and a half years in prison for his offense.
AFFIRMED; SENTENCE VACATED and REMANDED.
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