                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            DEC 14 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-10396

              Plaintiff - Appellee,              D.C. No. 4:11-cr-00523-YGR-1

  v.
                                                 MEMORANDUM*
HUGH LESLIE BARAS,

              Defendant - Appellant.


                  Appeal from the United States District Court
                     for the Northern District of California
                Yvonne Gonzalez Rogers, District Judge, Presiding

                     Argued and Submitted December 8, 2015
                            San Francisco, California

Before: PAEZ, CLIFTON, and OWENS, Circuit Judges.

       Hugh Baras appeals his jury conviction and sentence for theft of

Government property, in violation of 18 U.S.C. § 641, and five counts of tax

evasion, in violation of 26 U.S.C. § 7201. We affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The district court did not violate Baras’s right to present a defense and did

not abuse its discretion by excluding evidence of Baras’s belated tax payments.

Baras’s defense was only limited in that he could not attempt to prove his

medication-induced diminished capacity defense through evidence of belated

payment of taxes. Evidence of late tax payments made while awaiting prosecution

is irrelevant. United States v. Pang, 362 F.3d 1187, 1194 (9th Cir. 2004). Were

the rule otherwise, tax evaders could attempt to “avoid criminal prosecution simply

by paying up after being caught.” Id. Excluding evidence under Fed. R. Evid.

403, in this instance evidence regarding belated payment of taxes, is permitted to

avoid a risk of confusing the issues and confusing the jury. See Holmes v. South

Carolina, 547 U.S. 319, 326 (2006).

      Although the facts in the current case are not identical to the facts in Pang or

other cases relied upon by the district court, Baras has not established that the

factual differences justify a contrary result. Evidence of late tax payments is not

particularly probative that Baras’s prior failure was the result of medication.

      The Government did not commit prejudicial misconduct by offering new

arguments in rebuttal. By arguing that Baras’s home was still in disrepair, the

Government was responding to Baras’s defense that his mental capacity had been

temporarily affected by medications. The argument regarding Baras’s opportunity


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to avoid taxes was included in opening statements when the Government discussed

Baras’s receipt of W-2 forms by his employers.

      The jury instructions encompassed Baras’s mental disorder defense. “[I]t is

not reversible error to reject a defendant’s proposed instruction . . . if other

instructions, in their entirety, adequately cover that defense theory.” United States

v. Mason, 902 F.2d 1434, 1438 (9th Cir. 1990), overruled on other grounds by

Dixon v. United States, 548 U.S. 1 (2006). The instructions stated that the jury

could acquit if it found that Baras suffered from diminished capacity as a result of

prescription drugs. An added reference to Baras’s alleged mental disorder would

not have meaningfully furthered this defense because the mental disorder defense

was based on Baras’s use of medications.

      We find highly troubling the treatment by the U.S. Attorney’s Office of the

contacts and attempted contacts by a juror with an assistant U.S. Attorney. We are

surprised both that the assistant U.S. attorney who was the target of the contacts

did not promptly notify his superiors or those in the office responsible for the

prosecution of this case, and that those responsible did not promptly notify the

district court and defense counsel. A delay of six weeks is especially hard to

understand, and we advise the office that it would be prudent to treat any such

episode in the future differently. Nonetheless, we agree with the assessment of the


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district court that Baras was not prejudiced and that a new trial was not required.

Juror misconduct has been held to warrant reversal in cases involving “extended

external influences on jurors or confirmed juror bias,” neither of which is present

here. Henry v. Ryan, 720 F.3d 1073, 1086 (9th Cir. 2013) (emphasis in original).

While the juror did disobey the court’s instruction to refrain from communicating

with anyone, the juror’s communications were fairly found to have been innocuous

and unrelated to the merits of the case.

        The evidence at trial did not constructively amend the indictment, nor did it

improperly vary from the allegations in the indictment. The indictment did not

specify a particular theory of tax evasion. In any event, the evidence of Baras’s

failure to report the coin sales was properly introduced as probative of his intent,

not as an independent basis for his conviction.

        The district court correctly declined to group the two sets of offenses against

the IRS and the Social Security Administration, under U.S.S.G. § 3D1.2, because

the offenses represented two separate and distinct harms. They also involved

distinctly different conduct. Although both the IRS and the SSA are part of the

federal government, they are separate agencies and were victimized in different

ways.




                                            4
      The district court did not err in holding that Baras’s payments did not

require an acceptance of responsibility reduction. Whether Baras accepted

responsibility for his crime was a factual finding that this court reviews for clear

error. United States v. Garrido, 596 F.3d 613, 617 (9th Cir. 2010). There was no

clear error here. Baras disputed his guilt and did not demonstrate contrition.

      The district court did not err in ordering forfeiture of funds. Criminal

forfeiture is separate from restitution, which serves an entirely different purpose.

Accordingly, this court has held that “defendants may be required to pay restitution

and forfeit the same amounts.” United States v. Newman, 659 F.3d 1235, 1241

(9th Cir. 2011) (quotation omitted). This is especially true in cases in which “a

defendant is convicted of a crime that provides for forfeiture as part of the

penalty.” United States v. Carter, 742 F.3d 440, 446 (9th Cir. 2014).

      AFFIRMED.




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