                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 14 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    15-10138

                Plaintiff-Appellee,             D.C. No.
                                                2:09-cr-00022-MMD-GWF-1
 v.

ALAN L. RODRIGUES,                              MEMORANDUM*

                Defendant-Appellant.

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

                             Submitted June 6, 2017**
                               Pasadena, California

Before: GRABER, SACK,*** and MURGUIA, Circuit Judges.

      Defendant Alan Rodrigues appeals his convictions for (1) conspiracy to

defraud the United States by impairing and impeding the Internal Revenue Service



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Robert D. Sack, United States Circuit Judge for the
Court of Appeals for the Second Circuit, sitting by designation.
(“IRS”), in violation of 18 U.S.C. § 371; (2) mail fraud, in violation of 18 U.S.C.

§ 1341; and (3) aiding in the preparation of materially false income tax returns, in

violation of 26 U.S.C. § 7206(2). Rodrigues argues that the district court erred in

denying his motion for judgment of acquittal under Federal Rule of Criminal

Procedure 29. He also argues that the district court erred in denying his motion for

a new trial under Rule 33(a). We have jurisdiction pursuant to 28 U.S.C. § 1291,

and we affirm.

      We review de novo a defendant’s challenge to the sufficiency of the

evidence where, as here, the challenge was properly raised before the district court.

United States v. Pearson, 391 F.3d 1072, 1075 (9th Cir. 2004). There is sufficient

evidence to support a conviction if, viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 319 (1979); United States v. Tomsha-Miguel, 766 F.3d 1041, 1045

(9th Cir. 2014). The district court’s denial of a defendant’s motion for a new trial is

reviewed for an abuse of discretion. United States v. King, 660 F.3d 1071, 1076

(9th Cir. 2011). A motion for a new trial “should be granted only in exceptional

cases in which the evidence preponderates heavily against the verdict.” United

States v. Rush, 749 F.2d 1369, 1371 (9th Cir. 1984) (internal quotation marks

omitted).


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      To prove that Rodrigues aided in the preparation of false income tax returns,

the government must establish that Rodrigues acted “willfully,” that is, that

Rodrigues “acted with specific intent to defraud the government in the enforcement

of its tax laws.” United States v. Salerno, 902 F.2d 1429, 1432 (9th Cir. 1990).

Similarly, to prevail on the mail fraud claim, the government must prove that

Rodrigues had the “specific intent to defraud.” United States v. French, 748 F.3d

922, 935 (9th Cir. 2014). “It is settled law that intent to defraud may be established

by circumstantial evidence.” United States v. Rogers, 321 F.3d 1226, 1230 (9th

Cir. 2003).

      1.      Rodrigues argues that the government failed to prove beyond a

reasonable doubt that he lacked a good-faith belief that his conduct related to the

National Audit Defense Network’s (“NADN”) sale of Tax Break 2000 (“Tax

Break”) was lawful. However, the government presented sufficient evidence for a

rational jury to find beyond a reasonable doubt that Rodrigues acted willfully and

with the specific intent to defraud the IRS through his role in NADN’s promotion

and sale of Tax Break. The testimony of Daniel Porter, Robert Stovall, and Joseph

Tigani established that Rodrigues knew that Tax Break, as marketed and sold, was

a tax product offered to improperly take advantage of the disability access tax

credit, and that the Tax Break program lacked economic substance. Further,

testimony from Tax Break purchaser Rocky Gannon revealed that Rodrigues


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personally assured Gannon that he would not have to pay back the promissory note

he executed in purchasing Tax Break, which strongly suggests that Rodrigues

knew the Tax Break notes were a sham. Additionally, the memorandum delivered

to Rodrigues from NADN’s technical department not only warned Rodrigues that

the Tax Break program would not survive a challenge by the IRS because it lacked

economic substance, it also expressly warned that NADN and its employees

involved in the sale of Tax Break could be subjected to criminal penalties. From

this evidence, a rational juror could find beyond a reasonable doubt that Rodrigues

acted willfully and with the specific intent to defraud the IRS through his

participation in NADN’s promotion and sale of Tax Break. See United States v.

Crooks, 804 F.2d 1441, 1448 (9th Cir. 1986) (concluding that evidence of intent to

defraud the United States and willfulness were sufficiently established where the

defendant knew the scheme he promoted involved transactions devoid of economic

substance); see also United States v. Schulman, 817 F.2d 1355, 1359 (9th Cir.

1987) (“[T]he law is well settled that sham transactions are illegal.”); United States

v. Clardy, 612 F.2d 1139 (9th Cir. 1980) (affirming conviction under 28 U.S.C.

§ 7206 for “sham” tax deductions).

      2.     Although Rodrigues does not dispute that NADN’s sale of Tax Break

constituted a conspiracy to defraud the United States, he argues that the government

failed to meet its burden of proving that he became a member of this conspiracy.


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“Once the existence of a conspiracy is established, evidence establishing beyond a

reasonable doubt a connection of a defendant with the conspiracy, even though the

connection is slight, is sufficient to convict him with knowing participation.” United

States v. Lane, 765 F.2d 1376, 1381 (9th Cir. 1985).

      A reasonable juror could conclude that the evidence of Rodrigues’ knowledge

that Tax Break was a sham, coupled with the specific steps Rodrigues took to

promote and sell Tax Break through NADN, showed that Rodrigues knowingly and

voluntarily became a participant in the conspiracy. The evidence established that,

once NADN started selling Tax Break, Rodrigues supervised its sale, including

approving the sales scripts touting the tax benefits of the program. The evidence also

showed that Rodrigues was knowingly involved in issuing false Forms 1099 to give

the impression that the Tax Break websites were earning income, when in fact the

websites lacked economic substance. This evidence came from Porter’s testimony,

as well as the documentary evidence showing that Rodrigues acted as the resident

agent of G&J Eagle Enterprises, Inc., a shell company purporting to provide the

income claimed by the false Forms 1099.

      3.     The district court did not abuse its discretion in denying the motion

for a new trial on the ground that the jury verdict was against the weight of the

evidence. The district court permissibly concluded that Porter, the government’s

primary witness, was credible, and substantial evidence in the record other than


                                          5
Porter’s testimony supports the jury’s finding that Rodrigues had the required

knowledge and criminal intent. See United States v. Alston, 974 F.2d 1206, 1211

(9th Cir. 1982) (stating that, in deciding a motion for a new trial, the district court

is permitted to “weigh the evidence and in so doing evaluate for itself the

credibility of the witnesses” (internal quotation marks omitted)).

      AFFIRMED.




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