                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 20 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10012

              Plaintiff - Appellee,              D.C. No. 2:09-cr-00056-MMD-
                                                 RJJ-1
  v.

IAN CHRISTOPHERSON,                              MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Nevada
                     Miranda Du, District Judge, Presiding

                      Argued and Submitted March 12, 2014
                           San Francisco, California

Before: FARRIS and REINHARDT, Circuit Judges, and HUCK, Senior District
Judge.**

       The Defendant, Ian Christopherson, was convicted of income tax evasion

and employment tax evasion, 26 U.S.C. § 7201, after a jury trial. The conviction

was based on his usage of a bank account in Montana to operate his law firm, the

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Paul C. Huck, Senior District Judge for the U.S.
District Court for Southern Florida, sitting by designation.
existence of which he failed to disclose to the IRS even after the Agency began to

levy his other assets. Before the verdict, the defense proposed a jury instruction on

the crime’s mens rea element of “willfulness”:

      In determining…intent or lack of criminal intent you may consider
      whether his actions of using the First Citizen’s Industrial Consultant’s
      bank account was for the purpose of remaining in business to be able to
      pay his taxes, rather than to evade the payment of tax.

Although imprecise, this proposed instruction was discussed by both the defense

counsel and the prosecutor with the court, and all parties recognized it to be a claim

of a good faith misunderstanding of the law that would negate the mens rea for the

crime. Essentially, the defense had argued—and hoped to instruct the jury—that

Christopherson was unaware that his usage of the second bank account would be

considered unlawful tax evasion. The district court rejected the instruction, not as a

matter of law but because of an insufficient evidentiary foundation.

      The appeal argues only that Christopherson was entitled to this jury

instruction on his good faith misunderstanding of the law. We have jurisdiction

under 28 U.S.C. § 1291.

      A defendant is normally “entitled” to a jury instruction that presents an

aspect of his theory of the case, so long as (1) an evidentiary foundation supports

it, (2) the law supports it, and (3) it is not adequately covered by the rest of the



                                            2
instructions when viewed in their entirety. United States v. Thomas, 612 F.3d 1107,

1120 (9th Cir. 2010).

      The question has been decided in this Circuit in United States v. Hardy, 941

F.2d 893 (9th Cir. 1991). Hardy contained sparse reasoning, but it squarely

addressed the issue. While courts may not instruct that ignorance and good faith

misunderstanding claims cannot be considered by the jury, they need not

affirmatively instruct that such claims must be considered. This rule accords with

other circuits that have addressed the question. See United States v. Kokenis, 662

F.3d 919, 930 (7th Cir. 2011); United States v. Damra, 621 F.3d 474, 502 (6th Cir.

2010); United States v. Simkanin, 420 F.3d 397, 411 (5th Cir. 2005).

      Even if Christopherson’s proposed good faith misunderstanding of law

instruction had a sufficient evidentiary and legal foundation, it was within the

district court’s discretion to refuse it. This theory was adequately covered by the

instruction on willfulness.

      AFFIRMED.




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