FILED
NOT FOR PUBLICATION
OCT 16 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10191
Plaintiff-Appellee, D.C. No. 3:11-cr-00530-VC-2
v.
MEMORANDUM*
JESSICA LYNN SODERLING,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 16-10309
Plaintiff-Appellee, D.C. No. 3:11-cr-00530-VC-1
v.
JAY SCOTT SODERLING,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Vince Chhabria, District Judge, Presiding
Argued and Submitted September 11, 2017
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: SCHROEDER and TALLMAN, Circuit Judges, and WHALEY,** District
Judge.
Jay Scott Soderling and Jessica Lynn Soderling appeal their convictions for
conspiring to defraud the United States, in violation of 18 U.S.C. § 371. Mr.
Sodering also appeals his conviction for tax evasion, in violation of 26 U.S.C. §
7201. We affirm.
1. The absence of jury instructions requiring the jury to find one overt act for
the conspiracy charge and one affirmative act for the tax evasion charge within the
statute of limitations period does not constitute plain error. Defense counsel did
not raise either issue with the instructions before the district court. See United
States v. Kessi, 868 F.2d 1097, 1102 (9th Cir. 1989) (Federal Rule of Criminal
Procedure 30(d) requires a “specific objection” that is “formal, timely, and
distinctly stated”). As a result, “there is no error for an appellate court to
correct—and certainly no plain error.” Musacchio v. United States, 136 S. Ct. 709,
718 (2016).
We decline to address the Soderlings’ related claim of ineffective assistance
of counsel on direct appeal because the record is insufficiently developed. See
**
The Honorable Robert H. Whaley, United States District Judge for the
Eastern District of Washington, sitting by designation.
2
United States v. Jeronimo, 398 F.3d 1149, 1155–56 (9th Cir. 2005), overruled on
other grounds by United States v. Jacobo Castillo, 496 F.3d 947, 957 (9th Cir.
2007) (en banc).1
2. Sufficient evidence supported the conspiracy conviction. While there was
no direct evidence that Mrs. Soderling knew of Mr. Soderling’s tax liabilities,
“[t]he existence of a conspiratorial agreement or common purpose may be inferred
from the evidence.” United States v. Krasovich, 819 F.2d 253, 255 (9th Cir. 1987).
The Soderlings’ conduct, including Mrs. Soderling opening a second personal bank
account to receive and manage funds for her husband’s business immediately after
a levy on the corporate account, “would be reasonably explainable only in terms of
motivation to evade taxation.” Ingram v. United States, 360 U.S. 672, 679 (1959).
Sufficient evidence also supports the tax evasion conviction, as during the
limitations period, Mr. Soderling made a large number of personal purchases using
corporate money, which is powerful evidence of tax evasion. Similarly, the
evidence showed the requisite “deceit, craft or trickery, or . . . means that are
dishonest.” Hammerschmidt v. United States, 265 U.S. 182, 188 (1924). Proof of
dishonest means is necessary to convict under 18 U.S.C. § 371, but “[n]either the
1
For the same reason, we do not address the Soderlings’ claim of cumulative
error on direct appeal because this claim is based on only two claimed errors, one
of which is the ineffective assistance claim.
3
conspiracy’s goal nor the means used to achieve it need to be independently
illegal.” United States v. Caldwell, 989 F.2d 1056, 1059 (9th Cir. 1993), overruled
on other grounds by Neder v. United States, 527 U.S. 1, 8-9 (1999). Given the
actions discussed above, the jury could have reasonably found that the Soderlings
engaged in dishonest means beyond a reasonable doubt.
3. There was no plain error due to alleged prosecutorial misconduct at closing
argument. In assessing prosecutorial misconduct, “the issue is whether, considered
in the context of the entire trial, that conduct appears likely to have affected the
jury’s discharge of its duty to judge the evidence fairly.” United States v.
Henderson, 241 F.3d 638, 652 (9th Cir. 2000) (citation omitted). Here, the
prosecutor said that the Soderlings were married at a “key moment” to show that
Mrs. Soderling knew of Mr. Soderling’s tax liabilities, but the Soderlings were not
married at that time. However, this single misstatement did not affect the
Soderlings’ substantial rights. Evidence at trial demonstrated that Mrs. Soderling
was already strongly connected to Mr. Soderling both personally and
professionally by the time of the meeting. Moreover, Mrs. Soderling’s counsel at
closing argument correctly stated that the meeting was “shortly before their
marriage.” Cf. United States v. Flores, 802 F.3d 1028, 1037 (9th Cir. 2015).
AFFIRMED.
4