United States v. Brad Fisher

MEMORANDUM

Brad Fisher appeals his conviction for tax evasion under § 7201 of the Internal Revenue Code, 26 U.S.C. § 7201 . We have jurisdiction under 28 U.S.C. § 1291 , and we vacate and remand.

Fisher raises a single issue on appeal, arguing the district court abused its discretion by denying his request to instruct the jury on willful failure to pay taxes under 26 U.S.C. § 7203 as a lesser included offense. “We review a district court’s refusal to instruct on a lesser included offense using a two part test.” United States v. Hernandez, 476 F.3d 791, 797 (9th Cir.2007). “First, ‘the defendant must prove that the offense on which instruction is sought is a lesser-included offense of that charged.’ ” Id. (quoting United States v. Fejes, 232 F.3d 696, 703 (9th Cir.2000)). “This is reviewed de novo.” Id. It is undisputed that § 7203 is a lesser included offense of § 7201. “Second, to warrant a lesser included offense instruction ‘the evidence at trial must be such that a jury could rationally find the defendant guilty of the lesser offense, yet acquit him of the greater.’” Id. at 798 (quoting Schmuck v. United States, 489 U.S. 705 , 716 n. 8, 109 S.Ct. 1443 , 103 L.Ed.2d 734…