                                NOT FOR PUBLICATION                      FILED
                     UNITED STATES COURT OF APPEALS                       JUN 5 2017
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                                FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                         No.   15-30388

        Plaintiff - Appellee,                     D.C. No. 6:11-cr-60131-AA-1
   v.

RONALD D. JOLING,
                                                  MEMORANDUM*
        Defendant - Appellant.



UNITED STATES OF AMERICA,                         No.   15-30389

        Plaintiff - Appellee,                     D.C. No. 6:11-cr-60131-AA-2
   v.

DOROTHEA J. JOLING,

        Defendant - Appellant.


                   On Appeal from the United States District Court
                             for the District of Oregon
                      Ann L. Aiken, District Judge, Presiding

                                 Submitted May 11, 2017**
                                    Portland, Oregon


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes that this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: BYBEE and HURWITZ, Circuit Judges, and ZOUHARY,*** District Judge.




      Ronald and Dorothea Joling, a married couple, were charged with various tax-

related offenses stemming from their failure to pay income taxes since the mid-

1990s. Ronald Joling’s primary defense was that he did not act willfully because he

believed in good faith he was not required to pay taxes. Dorothea Joling argued in

addition that she did not act willfully because, according to her religion, she was

obligated to obey her husband.

      The jury was not convinced. It convicted Ronald Joling of one count of

conspiracy to defraud the United States, one count of tax evasion, and two counts of

filing a false tax return. Dorothea Joling was convicted of one count of conspiracy

to defraud the United States.

      The Jolings both challenge three of the district court’s evidentiary rulings, as

well as the district judge’s failure to recuse herself in light of the $10 billion lien the

Jolings filed against her. In addition, Ronald Joling argues his sentence was

substantively unreasonable in light of shorter sentences given to defendants




      ***
            The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.

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convicted of similar offenses, and Dorothea Joling challenges the sufficiency of the

evidence supporting her conviction. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

      1. The district court did not err by admitting Government Exhibit 181, titled

“The Truth About Frivolous Tax Arguments.” The Jolings argue Exhibit 181 was

irrelevant because it was dated after the relevant conduct in this case had occurred—

thus, Ronald Joling could not have considered the document during the relevant time

period. Reviewing the district court’s evidentiary ruling for abuse of discretion, see

United States v. Kahre, 737 F.3d 554, 565 (9th Cir. 2013), we find none. In light of

Ronald Joling’s testimony, both the district court and the jury could have reasonably

concluded that Ronald Joling read a document during the relevant time period that

was substantially similar, if not identical, to Exhibit 181. Thus, Exhibit 181’s

relevance to the issues is apparent. See United States v. Matthies, 319 F. App’x 554,

557 (9th Cir. 2009).

      2. The district court did not abuse its discretion by excluding Defense Exhibit

319, titled “Appointment of de jure Grand Jury Marshals by the de jure Grand Jury.”

As the district court correctly concluded, Exhibit 319 was minimally relevant to the

Jolings’ defense, and its probity was outweighed by the potential for confusing or

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distracting the jury.

      3. The district court similarly did not abuse its discretion by excluding

transcripts of telephone calls with the Jolings’ daughter. Those transcripts, like the

bogus grand jury order in Exhibit 319, were at best minimally relevant to the Jolings’

defense. Whether the Jolings attempted to obtain their daughter’s release from

prison against her wishes has little to do with whether they believed in good faith

they were complying with federal tax laws. In any event, both Ronald Joling and

his daughter testified about the substance of the conversations at issue.

      4. Because the Jolings did not move to recuse the district judge, her decision

not to recuse herself is reviewed for plain error. See United States v. Holland, 519

F.3d 909, 911 (9th Cir. 2008). Two federal statutes govern recusal: 28 U.S.C. § 144

and 28 U.S.C. § 455. The standard under each is the same: “whether a reasonable

person with knowledge of all the facts would conclude that the judge’s impartiality

might reasonably be questioned.” United States v. Studley, 783 F.2d 934, 939 (9th

Cir. 1986) (quoting Mayes v. Leipziger, 729 F.2d 605, 607 (9th Cir. 1984)).

      This Court has previously held that “[a] judge is not disqualified by a litigant’s

suit or threatened suit against him.” Id. at 940. Here, the district judge’s impartiality

could not reasonably be questioned simply because of the Jolings’ absurd $10 billion

                                           4
lien.

        5. Ronald Joling’s 97-month prison sentence, which was at the high end of

the applicable 78–97 month Guidelines range, was substantively reasonable. The

district court appropriately considered the section 3553(a) factors, and did not

commit “a clear error of judgment in the conclusion it reached.” United States v.

Christensen, 828 F.3d 763, 820 (9th Cir. 2015) (quoting United States v. Ressam,

679 F.3d 1069, 1087 (9th Cir. 2012) (en banc)).

        The argument that Ronald Joling’s sentence is substantively unreasonable

because lighter sentences were given to other defendants who committed similar

crimes lacks merit. A district court is “not required to conform the sentence to those

imposed in similar cases.” Kahre, 737 F.3d at 583 (9th Cir. 2013) (quoting United

States v. Burgum, 633 F.3d 810, 813–14 (9th Cir 2011)).

        6. The evidence was sufficient to convict Dorothea Joling. We review de

novo her contention that there was insufficient evidence to establish that she acted

willfully, “assess[ing] the evidence in the light most favorable to the prosecution,

determining whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” United States v. Rosales-Aguilar,

818 F.3d 965, 970–71 (9th Cir. 2016) (quoting United States v. Stewart, 420 F.3d

                                          5
1007, 1014–15 (9th Cir. 2005)).

      Willfulness is the “voluntary, intentional violation of a known legal duty.”

United States v. Powell, 955 F.2d 1206, 1210 (9th Cir. 1991) (quoting Cheek v.

United States, 498 U.S. 192, 201 (1991)). “It is a state of mind of the taxpayer

wherein he is fully aware of the existence of a tax obligation to the Government

which he seeks to avoid.” United States v. Conforte, 624 F.2d 869, 875 (9th Cir.

1980). The Supreme Court has provided a non-exclusive list of circumstances from

which a jury may infer willfulness, including “concealment of assets . . . and any

conduct, the likely effect of which would be to mislead or to conceal.” Spies v.

United States, 317 U.S. 492, 499 (1943).

      The jury heard evidence that Dorothea Joling directly participated in: (1) filing

false non-resident tax returns, (2) filing a fraudulent bankruptcy to frustrate an IRS

bank levy, (3) opening and maintaining an account with a “warehouse bank” to

conceal assets, (4) sending the IRS bogus money orders, and (5) retaliating against

a county recorder who refused to remove a federal tax lien. There was thus ample

evidence from which the jury could find willfulness.

      Evidence suggesting Dorothea Joling felt obligated to follow her husband’s

instructions does not require a finding that she lacked willfulness. Reliance on others

                                           6
“in tax evasion cases is not a complete defense, but only a circumstance indicating

good faith which the trier of fact is allowed to consider on the issue of willfulness.”

Conforte, 624 F.2d at 876. Viewing the evidence in the light most favorable to the

prosecution, a rational jury could conclude Dorothea Joling was more than an

involuntary participant.

   AFFIRMED.




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