FILED
NOT FOR PUBLICATION OCT 22 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-30338
Plaintiff - Appellee, D.C. No. 3:10-cr-5221-BHS
v.
MEMORANDUM*
SHARON DIANE KUKHAHN, AKA
Sharon Stephenson,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted October 11, 2012
Seattle, Washington
Before: KOZINSKI, Chief Judge, TASHIMA and M. SMITH, Circuit Judges.
Defendant-Appellant Sharon Kukhahn appeals her jury conviction and
sentence for one count of conspiracy to defraud the Internal Revenue Service (IRS)
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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in violation of 18 U.S.C. § 371, four counts of income tax evasion in violation of
26 U.S.C. § 7201, and one count of corrupt interference with the administration of
internal revenue laws in violation of 26 U.S.C. § 7212(a). We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
The district court did not err in admitting evidence related to the business
practices of Kukhahn’s alleged co-conspirator because that evidence was relevant
to the existence and scope of the conspiracy. See United States v. Rizk, 660 F.3d
1125, 1131 (9th Cir. 2011). Additionally, the district court did not err in admitting
photographic evidence of the co-conspirator’s office and Kukhahn’s residence
because the photographs were relevant to the charges of conspiracy and tax
evasion. Kukhahn failed to preserve any Rule 403 objection to this evidence, and
its admission does not rise to plain error. See United States v. Gomez-Norena, 908
F.2d 497, 501 n.4 (9th Cir. 1990).
We reject Kukhahn’s contention that the district court erred in admitting
evidence of her tax returns for tax years preceding the prosecuted period. The
evidence of prior tax returns was relevant to Kukhahn’s willfulness, intent, and
absence of mistake. See United States v. Polk, 550 F.2d 566, 568 (9th Cir. 1977).
We also reject Kukhahn’s contention that the district court judge had an obligation
to recuse himself simply because he presided over a prior civil matter in which
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Kukhahn was the defendant. “[O]pinions formed by the judge on the basis of facts
introduced or events occurring in the course of . . . prior proceedings, do not
constitute a basis for a bias or partiality motion unless they display a deep-seated
favoritism or antagonism that would make fair judgment impossible.” United
States v. Liteky, 510 U.S. 540, 555 (1994). The district judge’s condemnation of
Kukhahn’s crime during the sentencing hearing does not constitute evidence of
deep-seated antagonism. See United States v. Monaco, 852 F.2d 1143, 1147 (9th
Cir. 1988).
Finally, the district court did not abuse its discretion by failing to grant a
further downward variance from the Guidelines range because the record reflects
“rational and meaningful consideration” of the 18 U.S.C. § 3553(a) factors. United
States v. Ressam, 679 F.3d 1069, 1089 (9th Cir. 2012) (en banc) (quotes omitted).
Kukhahn’s sentence of 84 months—a sentence well below the Guidelines
range—is “sufficient, but not greater than necessary to accomplish §
3553(a)(2)’s sentencing goals.” Id. (citations and quotes omitted).
AFFIRMED.
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