United States District Court, D. Arizona
G. Campbell United States District Judge
a multi-day jury trial, Defendant was found guilty of seven
counts of willfully evading taxes for the years 2004 through
2010, and two counts of willful failure to file tax returns
for the years 2009 and 2010. Doc. 101. Defendant was
acquitted on five counts of willfully filing false tax
returns. Id. Defendant now moves for a judgment of
acquittal under Federal Rule of Criminal Procedure 29(c), and
the issues are fully briefed. Docs. 110, 118, 124. For the
reasons that follow, the Court will deny Defendant’s
Sufficiency of the Evidence.
argues that the government failed to present sufficient
evidence to prove that he willfully violated the tax laws. In
determining the sufficiency of the evidence, the Court must
view the evidence in the light most favorable to the
government and deny the motion if any rational trier of fact
could have found the elements of the crime beyond a
reasonable doubt. United States v. Atalig, 502 F.3d
1063, 1066 (9th Cir. 2007). The Court must also consider all
reasonable inferences that can be drawn from the evidence.
United States v. Shea, 493 F.3d 1110, 1114 (9th Cir.
support of his motion, Defendant relies on a polygraph
examination he took before trial. Doc. 110 at
But Defendant did not seek to admit the examination in
evidence during trial, and the Court therefore cannot rely on
it in assessing whether the government presented sufficient
evidence to sustain the verdict. In addition, polygraph
results are clearly inadmissible in a criminal case. See
United States v. Alvirez, __ F.3d __, 2016 WL 4073312,
at *7 (9th Cir. Aug. 1, 2016) (“In this circuit, it is
well-established that a polygraph examination may not be
admitted to prove the veracity of statements made during the
examination.”) (citing United States v. Bowen,
857 F.2d 1337, 1341 (9th Cir. 1988)). Defendant appears to
concede the inadmissibility of this evidence in his reply.
See Doc. 124 at 4.
argues that the Court should consider his proffer to the
government and his insistence on going to trial rather than
accepting a misdemeanor plea offer. The Court ruled before
trial, however, that Defendant’s plea negotiations, and
his reasons for rejecting the government’s offer, were
not admissible. Doc. 75. In light of this ruling, which the
Court continues to view as correct, Defendant cannot rely on
his plea negotiations as a basis for his Rule 29 motion.
also argues that he (a) testified at length about the basis
for his belief that citizens who earn income in the United
States are not subject to income taxes, presenting detailed
exhibits and video clips in support of his belief; (b)
presented expert opinion that Defendant is susceptible to
conspiracy theories and was forthcoming in his interview with
the expert; and (c) presented the testimony of his former
accountant that Defendant is very familiar with the tax laws
and did not try to evade taxes. Although it is true that all
of this evidence was presented at trial, the question
presented by this motion is not whether the jury correctly
weighed the evidence. The question is whether the government
presented enough evidence for a rational jury to find that
Defendant willfully violated the tax laws. Atalig,
502 F.3d at 1066. The Court concludes that the government
presented ample evidence to support such a finding. That
evidence includes the following:
• Defendant filed tax returns for some 20 years before
the events at issue in this case; he stopped filing returns
and paying taxes about the time he started earning
• Defendant continued to prepare income tax returns for
his mother throughout the period when he was filing no
returns for himself.
• Defendant, a medical doctor and anesthesiologist,
earned millions of dollars from Forest Country Anesthesia
(“FCA”) during the years in question, and failed
to report any of it on individual income tax returns.
• Defendant created an entity called “GSC 00
Club” and arranged for his earnings from FCA to be paid
to the Club rather than to him or his professional
corporation. Defendant claimed that the Club was potentially
going to be a health club, but admitted that it engaged in no
health club activities.
• Defendant controlled all of the funds that flowed into
and out of the Club, and used them for his personal benefit.
He paid for his house, vehicles, groceries, cleaning
services, and similar expenses with funds from the Club. The
jury could have concluded that Defendant would not have
funneled his income through the Club if he truly felt he was
not subject to federal income taxes.
• Defendant never filed a tax return on behalf of the
Club, nor did the Club pay employment, Medicare, or social
security taxes for Defendant.
• Defendant regularly withdrew large sums of cash from
the money he received from FCA. Defendant testified that he
used the cash for gambling and dating, but the jury could
have found that he regularly withdrew the cash to ...