NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 24 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-15693
Plaintiff-Appellee, D.C. No.
2:16-cr-00886-JCM
v.
TARA MAZZEO, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted July 13, 2018
San Francisco, California
Before: HAWKINS, BEA, HURWITZ, Circuit Judges.
Tara Mazzeo appeals the district court’s denial of her 28 U.S.C. § 2255
motion to vacate, set aside, or correct her 2013 conviction and sentence for two
counts of making false statements to the Internal Revenue Service, in violation of
18 U.S.C. § 1001. Reviewing de novo, see United States v. Ratigan, 351 F.3d 957,
961 (9th Cir. 2003) (citing United States v. Benboe, 157 F.3d 1181, 1183 (9th Cir.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1998)), we hold that the district court did not err when it found that Mazzeo failed
to demonstrate ineffective assistance of counsel. We therefore affirm.1
To prevail on a claim of ineffective assistance of counsel, Mazzeo must
show both that her counsel’s performance was deficient and that the deficient
performance prejudiced her defense. Strickland v. Washington, 466 U.S. 668,
687–88 (1984). She established neither prong here.
First, it was not objectively unreasonable for Mazzeo’s counsel to allow the
jury to be instructed based on Ninth Circuit model jury instructions. See id. at
687–88 (“When a convicted defendant complains of the ineffectiveness of
counsel’s assistance, the defendant must show that counsel’s representation fell
below an objective standard of reasonableness.”). In evaluating claims for
ineffective assistance of counsel, we ask “whether an attorney’s representation
amounted to incompetence under ‘prevailing professional norms,’ not whether it
deviated from best practices or most common custom.” Harrington v. Richter, 562
U.S. 86, 105 (2011) (emphasis added) (quoting Strickland, 466 U.S. at 690).
Although it may be best practice to lodge objections to jury instructions even when
they are consistent with prevailing law, an attorney’s failure to do so does not
amount to constitutionally deficient performance.
1
Because the parties are familiar with the facts and procedural history of this
case, we need not recount them here.
2
Second, Mazzeo has failed to show prejudice because the jury instruction to
which she now objects was—and still is—consistent with prevailing circuit law.
See United States v. Tatoyan, 474 F.3d 1174, 1182 (9th Cir. 2007) (holding that
“willfully” in 18 U.S.C. § 1001 means only “deliberately and with knowledge”).
To show prejudice, Mazzeo would have to show “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694. In other words, she would have
to prove that, had her attorney lodged an objection, it is reasonably probable the
district court would have instructed the jury that § 1001 requires the government to
prove she acted with knowledge that her conduct was unlawful. Given that such an
instruction would be a misstatement of the law under Tatoyan, it is not reasonably
probable that the district court would have adopted it—indeed, such an instruction
would have been error. See Hunter v. County of Sacramento, 652 F.3d 1225, 1232
(9th Cir. 2011) (stating that a jury instruction’s misstatement of the law is
reversible error unless harmless).
AFFIRMED.
3