Evans

MEMORANDUM

Robert Richard Evans was convicted by a jury of (1) willfully attempting to evade tax in violation of 26 U.S.C. § 7201 , (2) willfully aiding and assisting in the preparation of false income tax returns in violation of 26 U.S.C. § 7206 (2), and (3) conspiring to defraud the United States in violation of 18 U.S.C. § 371 , and sentenced to a total term of imprisonment of seventy-eight months. He timely appeals. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742 . We affirm Evans’s conviction, but vacate and remand for re-sentencing.

Guilt

Evans first argues that the district court • erred in instructing the jury with respect to his defense that he had a good-faith belief that his conduct was lawful. See Cheek v. United States, 498 U.S. 192 , 111 S.Ct. 604 , 112 L.Ed.2d 617 (1991). Although the court’s instruction suffered some of the defects identified by us in United States v. Powell, 955 F.2d 1206, 1211-12 (9th Cir.1992), a searching examination of the record aided by both counsel demonstrates that Evans’s trial attorney waived his original objection to the court’s language. United States v. Perez, 116 F.3d 840 , 845-46 & n. 7 (9th Cir.1997) (en banc)…