United States v. Malcolm Birdsong

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 6, 2020
• Docket: 19-35078
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 6 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-35078

Plaintiff-Appellee, D.C. No. 9:17-cv-00072-DWM

v. MEMORANDUM* MALCOLM WAYNE BIRDSONG; M. W. BIRDSONG; WAYNES' GROUP,

Defendants-Appellants,

and

MISSOULA COUNTY; ENOCH INVESTMENTS LLC,

Defendants.

Appeal from the United States District Court for the District of Montana Donald W. Molloy, District Judge, Presiding

Submitted May 4, 2020** Portland, Oregon

Before: SCHROEDER, WATFORD, and HURWITZ, Circuit Judges.

* 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). Malcolm Wayne Birdsong and Waynes’ Group, Birdsong’s controlled

corporation (collectively “Birdsong”), appeal from a district court judgment in favor

of the government in this suit about unpaid income taxes. Birdsong challenges the

denial of a motion to exclude evidence and the grant of summary judgment for the

government. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

1. The district court did not abuse its discretion in refusing to exclude

evidence that a notice of tax deficiency was sent to Birdsong by certified mail. See

Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1105–06 (9th Cir.

2001) (stating standard of review). The government’s untimely supplemental

disclosure of a copy of the certified mail envelope was harmless.1 See Fed. R. Civ.

P. 37(c)(1). The government had previously produced another copy of an envelope

sent to Birdsong’s last known address. See R & R Sails, Inc. v. Ins. Co. of Pa., 673

F.3d 1240, 1247–48 (9th Cir. 2012) (approving consideration of “the surprise to the

party against whom the evidence would be offered”). And, the district court granted

Birdsong an extension of time to inspect the supplemental disclosure and respond to

the government’s summary judgment motion. See id. at 1248 (approving

consideration of “the possibility that a continuance would cure prejudice to the

opposing party”). The court also noted that the delay in disclosure was brief and

1 Because the government provided a description of the document “by category and location,” it was not required to produce a copy of the envelope with its initial disclosures. See Fed. R. Civ. P. 26(a)(1)(A)(ii).

2 would result in minimal disruption to the court’s schedule.

2. The district court did not err in granting summary judgment in favor of

the government. Because the district court properly considered the certified

envelope mailed to Birdsong’s last known address, the government met its burden

of establishing that notice was sent to the taxpayer. See 26 U.S.C. § 6212(a), (b)(1);

Elings v. Comm’r, 324 F.3d 1110, 1112 & n.5 (9th Cir. 2003). Birdsong proffered

no evidence to the contrary.

AFFIRMED.