Araujo

MEMORANDUM **

Maria Lilia Araujo (“Araujo”) appeals her jury conviction and sentence on five counts of federal tax evasion under 26 U.S.C. § 7201 . The district court had jurisdiction pursuant to 18 U.S.C. § 3231 , and we have jurisdiction over Araujo’s timely appeal under 28 U.S.C. § 1291 . We affirm. Because the parties are familiar with the factual and procedural history of this case, we do not recount it here.

The essential elements of federal tax evasion under 26 U.S.C. § 7201 are: “(1) the existence of a tax deficiency; (2) willfulness; and (3) an affirmative act constituting an evasion or attempted evasion of the tax.” United States v. Marashi 913 F.2d 724, 735 (9th Cir.1990) (internal quotation marks and citation omitted). On appeal, Araujo presents two arguments, challenging the sufficiency of the government’s evidence of her willfulness and the existence of a tax deficiency. 1 Sufficient evidence exists to support a conviction if, “viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Wright, 215 F.3d 1020, 1025 (9th Cir.), cert.…

Senior Circuit Judge,

Dissenting.

I respectfully dissent. The portion of the indictment containing counts 13-17 challenged on this appeal is set forth in full as follows:

*25 The Grand Jury further charges T H A T MARIA LILIA ARAUJO, aka Lüy Araujo, defendant herein, on or about the dates listed below, in the County of Tulare, State and Eastern District of California, did wilfully attempt to evade and defeat a large part of the tax due and owing by the individuals named below to the United States of America, for the tax years listed below, by diverting the payments of said federal taxes, in the appropriate amounts listed below, to the United States of America by depositing the taxpayers’ personal checks intended to be applied for the payment of federal taxes into her business bank account or converting them to cash:

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All in violation of Title 26, United States Code, Section 7201 . A TRUE BILL. Counts 13 through 17 involved estimated tax payments in the amount of $3,000 each, not final payment of taxes due. The evidence showed that for each of these counts, Jesse Ortega gave defendant Araujo one lump sum check, made out to either Araujo or her company, Servimex,…