United States v. Kennith Defoor

MEMORANDUM *

Kennith Defoor appeals from his conviction for conspiring to defraud the United States and filing false claims against the United States through a fraudulent income tax return scheme in violation óf 18 U.S.C. §§ 2 , 286, 287. Defoor did not raise any of the issues he presses in this appeal in the district court; accordingly, wé review each issue for plain error; See United States v. Hilgers, 560 F.3d 944, 946 (9th Cir.2009). We have jurisdiction under 28 U.S.C. § 1291 , and we-affirm.

1. Defoor argues that the district court plainly erred by allowing the government to elicit testimony from IRS Agents Shelly Bare and -Patrick Bauer that he filed “false” tax, returns.

a. First, Defoor contends that, by testifying that" Defoor filed “false” tax returns, Agents Bare and Bauer impermissibly “testified to the legal conclusion” at issue in the case (ie., whether the claims Defoor filed were “false”) in, violation of Federal Rules of Evidence 701, 702, 704, and 403. Athough Federal Rule of Evidence 704(a) specifically provides that “[a]n opinion is hot objectionable just because it embraces an ultimate issue,” Fed.R.Evid. 704(a), it “does not lower the bar[ ] so as to…

concurring:

I concur in the memorandum disposition, but write separately because I believe that the question whether § 287 permits an ignorance of the law defense 1 in this case is more complicated than the disposition suggests. In United States v. Fier-ros, we recognized that in certain kinds of cases “a defense of ignorance of law is permitted even though it is not specifically written into the criminal statute.” 692 F.2d 1291, 1294 (9th Cir.1982). We explained that one such type of cáse is a prosecution “under [a] complex regulatory seheme[ ] that ha[s] the potential of snaring unwitting violators.” Id. at 1295 . We illustrated the need for allowing a mistake of law defense in those cases using the example of tax law, which “raises problems' of great complexity” and in which “innocent errors are numerous.” Id. (internal quotation omitted); see also Cheek v. United States, 498 U.S. 192 , 111 S.Ct. 604 , 112 L.Ed.2d 617 (1991) (recognizing an ignorance of the law defense implicit in a criminal tax statute); United States v. Bishop, 412 U.S. 346 , 93 S.Ct. 2008 , 36 L.Ed.2d 941 (1973) (same).

Defoor was convicted of tax related malfeasance, but § 287 also covers a wide variety…

FILED

NOT FOR PUBLICATION

AUG 31 2015

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 14-10479

Plaintiff - Appellee, D.C. No. 3:10 cr-08216- DGC

v.

MEMORANDUM*

KENNITH LEE DEFOOR,

Defendant - Appellant.

Appeal from the United States District Court for the District of Arizona David G. Campbell, District Judge, Presiding

Argued and Submitted August 13, 2015 San Francisco, California

Before: REINHARDT, TASHIMA, and CALLAHAN, Circuit Judges.

Kennith Defoor appeals from his conviction for conspiring to defraud the

United States and filing false claims against the United States through a fraudulent

income tax return scheme in violation of 18 U.S.C. §§ 2, 286, 287. Defoor did not

raise any of the issues he presses in this appeal in the district court; accordingly, we

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. review each issue for plain error. See United States v. Hilgers, 560 F.3d 944, 946

(9th Cir. 2009). We have jurisdiction under 28 U.S.C. §…