Sigerseth

MEMORANDUM **

Sigerseth appeals his 63-month sentence for conspiracy to defraud the United States, 18 U.S.C. § 371 , and attempted tax evasion, 26 U.S.C. § 7201 . Although Sigerseth was tried and convicted along with Avila, he was sentenced separately and their appeals are currently unconsolidated.

The district court did not commit plain error by failing to instruct the jury that the government had the burden of disproving Sigerseth’s Cheek defense beyond a reasonable doubt. The district court correctly instructed the jury that tax evasion under 26 U.S.C. § 7201 includes the element of willfulness, that the government has the burden of proving each element beyond a reasonable doubt, and that willfulness is negated by the existence of a good-faith mistake of law. See Cheek v. United States, 498 U.S. 192, 201 , 111 S.Ct. 604 , 112 L.Ed.2d 617 (1991). Because a Cheek defense is not an affirmative defense like self-defense, a separate instruction regarding the burden of proof was not necessary. Cf. United States v. Sanchez-Lima, 161 F.3d 545, 549 (9th Cir.1998).

The district court did not err in instructing the jury that a valid tax assessment is not a prerequisite for tax…