United States v. Maria Larkin

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 13, 2019
• Docket: 18-10040
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 13 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10040

Plaintiff-Appellee, D.C. No. 2:12-cr-00319-JCM-GWF-1 v.

MARIA LARKIN, AKA Maria Bella- MEMORANDUM* Larkin,

Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding

Submitted June 6, 2019** Portland, Oregon

Before: MURGUIA and HURWITZ, Circuit Judges, and GAITAN,*** District Judge.

Maria Larkin was convicted of failing to pay tax penalties assessed by the

* 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). *** The Honorable Fernando J. Gaitan, Jr., United States District Judge for the Western District of Missouri, sitting by designation. Internal Revenue Service (“IRS”) in violation of 26 U.S.C. § 7201. She was

sentenced to 12 months and 1 day of imprisonment. Larkin appeals several

evidentiary rulings made by the district court before and during trial. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm in part and remand in part with

instructions for the district court to conform the written judgment to the oral

pronouncement of sentence.

1. This Court reviews a district court’s decision to exclude expert

testimony for an abuse of discretion. United States v. Morales, 108 F.3d 1031,

1035 (9th Cir. 1997) (en banc). The district court did not err in excluding the

testimony of four expert witnesses proffered by Larkin: (1) Michael Flakus, a

former IRS manager; (2) Dr. Robert Hunter, a psychologist; (3) Michael Rosten, a

CPA; and (4) Dr. Anthony Lucas, a professor of hotel administration.

Flakus was proffered to testify that restructuring a business facing tax

problems is an accepted practice, if done correctly—that is, by appraising the value

of any assets transferred to the new business and making arrangements to pay over

to the IRS the value of the assets. However, Larkin never took any of these steps

when restructuring her business. Furthermore, many other witnesses, including

several IRS officers, also testified that restructuring a business is an acceptable

practice, if done properly. Therefore, Flakus’s testimony was irrelevant and

cumulative. See Hamling v. United States, 418 U.S. 87, 127 (1974) (trial court has

2 considerable latitude to reject even relevant evidence if considered to be

cumulative).

Larkin proffered that the rest of her experts would testify as to her excessive

gambling, which Dr. Hunter attributed to a gambling disorder. However, the fact

that Larkin has a gambling disorder does not tend to demonstrate that she lacked

the intent to evade paying her tax penalties. See United States v. Scholl, 166 F.3d

964, 971 (9th Cir. 1999). There was also substantial evidence introduced at trial

regarding Larkin’s gambling activities, rendering further testimony by Larkin’s

experts on the matter cumulative. See Fed. R. Evid. 403.

Even if the district court erred in excluding Larkin’s experts, any error was

harmless because there was overwhelming evidence of Larkin’s willful intent to

evade paying her tax penalties. See United States v. Smith, 638 F.2d 131, 134 (9th

Cir. 1981) (where evidence of guilt is overwhelming erroneous exclusion of

evidence is harmless).

2. “Whether limitations on cross-examination are so severe as to amount

to a violation of the confrontation clause is a question of law reviewed de novo.”

United States v. Vargas, 933 F.2d 701, 704 (9th Cir. 1991). Unpreserved

confrontation clause objections are reviewed only for plain error. United States v.

Macias, 789 F.3d 1011, 1017 (9th Cir. 2015).

The district court did not err in limiting Larkin’s cross-examination of three

3 government witnesses. Once John Filippello, one of Larkin’s tax advisors, testified

that the IRS had accused him of misconduct on “a couple of occasions,” the jury

had sufficient evidence from which to evaluate Filippello’s biases and motivations.

See United States v. Bonanno, 852 F.2d 434, 439 (9th Cir. 1988) (“[O]nce cross-

examination reveals sufficient information with which to appraise a witness’s

possible bias and motives, confrontation [clause] demands are satisfied.”).

Prohibiting Larkin from cross-examining IRS Officer Lavinia Brown by

referring repeatedly to IRS history transcripts that were already in the record also

did not constitute error because such evidence was cumulative. See United States v.

Gomez, 846 F.2d 557, 559 (9th Cir. 1988) (“The court has considerable discretion

to limit cross-examination in order to . . . avoid cumulative evidence.”). Likewise,

the district court properly precluded further cross-examination of Kathy Artuso,

Larkin’s personal host at the Palace Station Casino, regarding two email exchanges

between her and Larkin, as there was already extensive evidence in the record

regarding Larkin’s gambling activities. See id.

3. Contrary to Larkin’s argument, the district court also did not commit

reversible error by allowing IRS Officer Luis Tejada to testify at trial on behalf of

the government. Larkin fails to articulate how the verdict would have been

different had she been given notice that Tejada would testify as an expert. See

United States v. Figueroa-Lopez, 125 F.3d 1241, 1247 (9th Cir. 1997) (“[A]

4 violation of Rule 16 does not itself require reversal, or even exclusion of the

affected testimony. [Defendant] must demonstrate prejudice to substantial rights to

justify reversal for violations of discovery rules.”) (citations omitted).

4. The district court’s failure to give an instruction on a good faith

defense does not warrant a new trial in this case either. Larkin does not dispute that

the district court properly instructed the jury as to “willfulness” under 26 U.S.C. §

7201. See United States v. Shipsey, 363 F.3d 962, 967 (9th Cir. 2004) (“Our case

law is well settled that a criminal defendant has ‘no right’ to any good faith

instruction when the jury has been adequately instructed with regard to the intent

required to be found guilty of the crime charged . . . .”) (emphasis in original)

(collecting cases).

5. Remand is required because the written judgment conflicts with the

oral pronouncement of sentence. United States v. Hicks, 997 F.2d 594, 597 (9th

Cir. 1993) (when there is conflict between the oral pronouncement and written

judgment, the oral pronouncement controls). The district court imposed the

following condition of supervised release at sentencing, but omitted it from the

judgment:

The probation officer may conduct a search under this condition only when reasonable suspicion exists that you have violated a condition of supervision and that the areas to be searched contain evidence of this violation. Any search must be conducted at a reasonable time and in a reasonable manner.

5 On remand, the district court should include this condition in the judgment.1

AFFIRMED in part; REMANDED in part with instructions.

1 Because we conclude that no new trial is warranted, this panel declines to address Larkin’s request to define a “defendant’s case-in-chief” under Federal Rule of Criminal Procedure 16(b)(1)(A).