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. 1

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…