Rutherford

MEMORANDUM **

In this case, we again address an appeal by Martin and Nanja Rutherford from their convictions under 26 U.S.C. §§ 7203 *590 and 7206(1) for tax evasion. We now affirm their convictions.

I.

Following a sixteen-day trial, the Rutherfords were convicted of one count of willfully failing to file an income tax return, see 26 U.S.C. § 7203 , and one count of willfully making a false income tax return, see 26 U.S.C. § 7206 (1). The district court denied their motion for a new trial, and the Rutherfords appealed. In addition to other claims not relevant to the appeal now before us, the Rutherfords contended that they had been denied their right to a trial by fair and impartial jurors under the Sixth Amendment. They alleged that “the jury was prejudiced because a large number of IRS and government agents sat directly behind the prosecution table throughout the trial and glared at them, intimidating them, and causing some of the jurors to fear that if they acquitted the Rutherfords, the IRS might retaliate against them.” United States v. Rutherford, 371 F.3d 634, 635 (9th Cir.2004).

In a previous decision, we held that the district court had applied the wrong legal…