U.S.
v. ROSS, Cite as 108 AFTR 2d 2011-XXXX, 07/11/2011
UNITED STATES OF
AMERICA, Plaintiff - Appellee, v. LEI LAVARIAS ROSS, Defendant - Appellant.
Case Information:
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Court Name:
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UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT,
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Docket No.:
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No.
10-10354; D.C. No. 1:08-cr-00223-DAE-2; No. 10-10359; D.C. No.
1:08-cr-00223-DAE-1,
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Date Decided:
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07/11/2011Argued
and Submitted June 13, 2011 Honolulu, Hawaii.
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Prior History:
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Disposition:
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HEADNOTE
Reference(s):
OPINION
Appeal from the United States District Court for the District of
Hawaii David A. Ezra, District Judge, Presiding
Before: ALARCÓN, WARDLAW, and N.R. SMITH, Circuit Judges.
Judge:
NOT FOR PUBLICATION
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 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 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 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 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
[89 AFTR 2d 2002-2745] (9th Cir. 2002)).
291 F.3d 1100, 1111
[89 AFTR 2d 2002-2745] (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 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.
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
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.
This disposition is not appropriate for publication
and is not precedent except as provided by 9th Cir. R. 36-3.
www.irstaxattorney.com 888-712-7690
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