United States v. Aurora Trevino

394 F.3d 771 UNITED STATES of America, Plaintiff-Appellee, v. Aurora TREVINO, Defendant-Appellant. No. 02-10545. United States Court of Appeals, Ninth Circuit. Argued and Submitted February 11, 2004. Filed January 18, 2005. 1 COPYRIGHT MATERIAL OMITTED Anthony P. Capozzi, Fresno, CA, for the defendant-appellant. 2 MacGregor W. Scott, United States Attorney, Jonathan B. Conklin, Assistant U.S. Attorney, Fresno, CA, for the plaintiff-appellee. 3 Appeal from the United States District Court for the Eastern District of California; Robert E. Coyle, District Judge, Presiding. D.C. No. CR-00-05432-1-REC. 4 Before: TASHIMA and CLIFTON, Circuit Judges, and RONALD B. LEIGHTON, * District Judge. 5 LEIGHTON, District Judge. 6 Aurora Trevino appeals her convictions for conspiracy to defraud the United States ( 18 U.S.C. § 371 ) and attempting to evade or defeat a tax ( 26 U.S.C. § 7201 ). The convictions resulted from erroneous tax returns prepared and filed on Trevino's behalf by her accountant, Salvador Archuleta, for the 1989, 1990, 1991, and 1992 tax years. Trevino sought and was denied a new trial in the district court. 7 She appeals, making three arguments: (1) the trial court…

Aurora Trevino appeals her convictions for conspiracy to defraud the United States ( 18 U.S.C. § 371 ) and attempting to evade or defeat a tax ( 26 U.S.C. § 7201 ). The convictions resulted from erroneous tax returns prepared and filed on Trevino’s behalf by her accountant, Salvador Archuleta, for the 1989, 1990, 1991, and 1992 tax years. Trevino sought and was denied a new trial in the district court.

She appeals, making three arguments: (1) the trial court erred in failing to instruct the jury that her good faith belief that her tax returns were proper was a complete defense to the charges against her; (2) the prosecutor engaged in misconduct; and (3) Jury Instruction number 44 impermissibly created a presumption of her knowledge of the contents of her erroneous 1992 tax return.

I.

Since 1985, Aurora Trevino has owned and operated Aurora’s Flowers, selling silk flower arrangements from stores in Dinu-ba and Fresno, California. Since 1989, she has used the accounting services of Salvador Archuleta. In 1993, the IRS began investigating Archuleta, and in his office found versions of Trevino’s 1991 and 1992 tax returns which were different than the returns filed with the IRS for…

concurring in part and dissenting in part:

I concur in all of the majority opinion, except Part II.B. Because I cannot agree with the majority that the admittedly erroneous “presumption” instruction was harmless, I respectfully dissent in part. Because I do not find the error to have been harmless, I also dissent from so much of the court’s judgment as affirms the convictions on Counts One and Three. I agree, however, with the majority that the erroneous instruction was harmless as to Count Two. I therefore concur in the affir-mance of the judgment of conviction on that count.

Defendant was charged with two counts of attempting to evade income taxes, 26 U.S.C. § 7201 , and one count of conspiracy to defraud the government, 18 U.S.C. § 371 , by filing false income tax returns. The 1992 tax evasion count, Count Three, was based on the filing of a false return, which was signed by defendant. 1 The government secured an instruction from the district court that “a return ... signed with the defendant’s name creates a rebut-table presumption that the defendant ... had knowledge of its [the tax return’s] contents.” The government now virtually concedes that the instruction is…