United States v. Alena Aleykina

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 24, 2020
• Docket: 18-10420
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION SEP 24 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10420

Plaintiff-Appellee, D.C. No. 2:16-cr-00142-JAM-1 v.

ALENA ALEYKINA, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding

Argued and Submitted September 14, 2020 San Francisco, California

Before: SCHROEDER, W. FLETCHER, and VANDYKE, Circuit Judges.

Alena Aleykina, a former Internal Revenue Service (“IRS”) Special Agent

who investigated criminal tax fraud, appeals her jury trial convictions for filing false

tax returns, stealing government money, and obstructing justice. We affirm the

district court judgment in its entirety.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. We review de novo the denial of a motion for acquittal brought under Federal

Rule of Criminal Procedure 29. United States v. Johnson, 357 F.3d 980, 983 (9th

Cir. 2004). “[A]fter viewing the evidence in the light most favorable to the

prosecution,” we determine whether “any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” United States v. Nevils,

598 F.3d 1158, 1163–64 (9th Cir. 2010) (internal quotation marks & citation

omitted). “The admissibility of lay opinion testimony under Rule 701 is committed

to the sound discretion of the trial judge and his decision will be overturned only if

it constitutes a clear abuse of discretion.” United States v. Gadson, 763 F.3d 1189,

1209 (9th Cir. 2014) (internal quotation marks & citation omitted). “We review the

district court’s decision to admit expert testimony for abuse of discretion.” Id. at

1202.

First, Aleykina claims that she did not violate 18 U.S.C. § 1519—which,

among other things, prohibits obstruction of justice by destroying evidence—

because forensic experts successfully recovered some of the files she deleted on her

IRS laptop.1 This argument fails because Aleykina succeeded in destroying some of

the files on the laptop. And even if she had failed in her attempt to destroy all the

files, in her attempt to do so she still altered evidence, which 18 U.S.C. § 1519 also

prohibits, and which the government also charged along with destruction.

1 Because the parties are familiar with the facts, we will not recite them here except as necessary.

2 Second, Aleykina challenges the district court’s decision to limit her

husband’s testimony about her demeanor and behavior. Her briefing is unclear as to

why she argues her husband should have been allowed to testify more about her

demeanor and behavior. She appears to claim that her husband’s testimony would

undercut the government’s ability to prove mens rea or criminal intent. But the

testimony that her husband would have given—including such things as his

observations of Aleykina “planting fruit trees randomly in the back yard; purchasing

spare kitchen appliances for no apparent reason; placing clean clothes on a pile in

the middle of the room; keeping clothes, half-eaten food, and paperwork in her car;

and frequently and randomly changing residences”—is not incompatible with the

ability to form the requisite mens rea or criminal intent for the crimes Aleykina was

charged with. Indeed, there was ample evidence properly before the jury that

Aleykina was capable of forming the required criminal intent, including that she was

still performing her duties as an IRS Special Agent investigating criminal tax fraud,

and filing her own (false) tax returns, as well as her husband’s.

Even if the district court had erred in limiting Aleykina’s husband’s testimony

related to his observations of her behavior and demeanor, the error would be

harmless because there is no reasonable probability that the jury’s verdict would

have changed if the excluded testimony had been offered. See United States v.

Edwards, 235 F.3d 1173, 1178–79 (9th Cir. 2000). This is especially true given that

3 Aleykina’s husband was not prevented from testifying that Aleykina “just wasn’t

herself,” was “having trouble,” and may have “had postpartum or something.”

And even assuming the additional testimony about her behavior had some

minimal probative value, the district court still acted within its broad discretion

under the Federal Rules of Evidence by sustaining the government’s objection and

excluding this portion of the husband’s testimony as substantially more confusing

and prejudicial than probative. See FED. R. EVID. 403.

Lastly, Aleykina challenges the IRS expert’s opinion testimony that her legal

separation from her husband was not valid for federal tax purposes. She alleges that

the expert testified outside of his expertise, usurped the jury’s role, and made an

improper legal conclusion. None of these challenges have merit.

The expert did not opine that Aleykina’s separation was not valid as a matter

of California law. Rather, he was offering his opinion that the separation—valid or

not as a matter of state law—was obtained and used for invalid purposes from a

federal tax standpoint. He opined that for federal tax purposes—such as head of

household filing status—the separation was invalid based on all of the evidence that

he reviewed. The expert pointed out that the evidence showed that Aleykina listed

a false address in procuring her separation order, continued to live with her husband

after her alleged separation, had another child with her husband, referred to her

husband as her husband in emails, and held health insurance with her husband. Even

4 if the district court improperly allowed the expert to opine about Aleykina’s

separation during his testimony, the evidence that the expert relied on, and that the

jury would have heard anyway, would lead a reasonable juror to reach the same

conclusion.

AFFIRMED.