United States v. Cubby Williams

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 16, 2021
• Docket: 19-50375
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 16 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-50375

Plaintiff-Appellee, D.C. No. 2:19-cr-00280-PA-1

v. MEMORANDUM* CUBBY WAYNE WILLIAMS,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding

Submitted June 11, 2021** Pasadena, California

Before: MURGUIA, BADE, and LEE, Circuit Judges.

Defendant Cubby Wayne Williams appeals his 2019 jury conviction on

twenty-six counts related to the preparation of false tax returns under

26 U.S.C. § 7206. Williams contends that the district court erred in excluding expert

and lay testimony on a traumatic brain injury he suffered in 1992. Williams also

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). contends that the district court imposed an unconstitutional supervised release

condition. Because the parties are familiar with the facts, we do not recite them here.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part, reverse in part,

and remand.

1. Williams argues that the district court erred in excluding the testimony

of Dr. Jeffrey Wertheimer, a clinical neuropsychologist. Williams sought to present

Dr. Wertheimer’s testimony to refute the government’s theory that Williams

intentionally violated tax laws.1 “We review for abuse of discretion the district

court’s decision whether to exclude expert testimony.” United States v. Morales,

108 F.3d 1031, 1035 (9th Cir. 1997) (en banc). The district court has “wide latitude

in admitting or excluding psychiatric testimony on the question of a defendant’s

incapacity to form specific intent,” United States v. Twine, 853 F.2d 676, 679 n.1

(9th Cir. 1988) (citation omitted), and its factual findings will not be reversed unless

they are “illogical, implausible, or without support in inferences that may be drawn

from facts in the record,” United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir.

2009) (en banc).

The district court did not abuse its discretion in excluding Dr. Wertheimer’s

1 To convict under 26 U.S.C. § 7206(1) or (2), the government must prove that the defendant acted “willfully”—that the defendant knew federal tax law imposed a duty on him, and that he intentionally violated that duty. See Cheek v. United States, 498 U.S. 192, 201–03 (1991).

2 proffered testimony as unhelpful under Federal Rule of Evidence 702, and

potentially misleading or confusing under Federal Rule of Evidence 403. Williams

failed to establish that Dr. Wertheimer’s proffered testimony on Williams’s

cognitive deficit and behavioral disturbance would have aided the jury in resolving

whether, due to his brain injury, Williams was able to form the necessary mens rea

for the charges he faced. In other words, Williams failed to establish that Dr.

Wertheimer’s opinions were connected to Williams’s ability to act willfully in this

case. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591 (1993) (noting

that an expert’s testimony must be “sufficiently tied to the facts of the case that it

will aid the jury in resolving a factual dispute.”); see also Lust v. Merrell Dow

Pharms, Inc., 89 F.3d 594, 598 (9th Cir. 1996) (“It is the proponent of the expert

who has the burden of proving admissibility.”).

2. Williams also argues that the district court erred in excluding his sister’s

lay testimony. Williams’s sister sought to testify that Williams suffered a traumatic

brain injury in an accident in 1992, “he never returned to normal after the accident,”

and his memory was “worse than before the accident.” Vague testimony that

Williams was forgetful or that he never returned to normal would not have aided the

jury in determining whether he acted willfully—the central issue at trial. See Fed.

R. Evid. 701. What is more, the district court correctly determined that the probative

value of this testimony was substantially outweighed by the danger of undue

3 prejudice, wasting the time of the jury, and confusing the issues under Federal Rule

of Evidence 403. See United States v. Hankey, 203 F.3d 1160, 1167 (9th Cir. 2000)

(“A district court’s decision to exclude . . . evidence under [Federal Rule of

Evidence] 403 is reviewed with considerable deference”) (internal quotation marks

and citation omitted). We therefore conclude that the district court did not abuse its

discretion in excluding this testimony for the same reasons it excluded Dr.

Wertheimer’s testimony. See United States v. Whittemore, 776 F.3d 1074, 1077 (9th

Cir. 2015) (“We review evidentiary rulings for abuse of discretion and any

underlying factual determinations for clear error.”).

3. The parties agree that the district court committed a plain sentencing

error in imposing standard condition 14, which we invalidated as unconstitutionally

vague. See United States v. Magdirila, 962 F.3d 1152, 1158–59 (9th Cir. 2020). We

therefore vacate the sentence in part, and remand for the limited purpose of allowing

the district court “to craft a supervised release condition that accords with

[Williams’s] criminal history.” Id. at 1159. “On remand, the district court may wish

to consider the language in United States Sentencing Guideline Manual §

5D1.3(c)(12).” Id.

AFFIRMED in part, REVERSED in part, and REMANDED.