United States v. Aurora Trevino

419 F.3d 896 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. Amended August 16, 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 LEIGHTON, * District Judge. 5 Opinion by Judge LEIGHTON; Partial Concurrence and Partial Dissent by Judge TASHIMA. 6 ORDER AMENDING OPINION AND DENYING PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC AND AMENDED OPINION 7 LEIGHTON, District Judge. ORDER 8 The opinion and partially dissenting opinion, filed January 18, 2005, and reported at 394 F.3d 771 , are withdrawn and replaced by the amended opinion and amended partially dissenting opinion filed concurrently with this order. With the amended opinion…

concurring in part and dissenting in part:

I concur in all of the majority opinion, except Part II.3. 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…

Opinion by Judge LEIGHTON; Partial Concurrence and Partial Dissent by Judge TASHIMA.

ORDER AMENDING OPINION AND DENYING PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC AND AMENDED OPINION

ORDER

The opinion and partially dissenting opinion, filed January 18, 2005, and report *899 ed at 394 F.3d 771 , are withdrawn and replaced by the amended opinion and amended partially dissenting opinion filed concurrently with this order. With the amended opinion and amended partially dissenting opinion, the panel has voted to deny the petition for panel rehearing, with Judge Tashima voting to grant it. Judge Clifton has voted to deny the petition for rehearing en banc and Judges Tashima and Leighton so recommend.

The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on en banc rehearing. See Fed. R.App. P. 35(f).

The petition for panel rehearing and petition for rehearing en banc are denied.

OPINION

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…