                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 11 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-10354

              Plaintiff - Appellee,              D.C. No. 1:08-cr-00223-DAE-2

  v.
                                                 MEMORANDUM *
LEI LAVARIAS ROSS,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 10-10359

              Plaintiff - Appellee,              D.C. No. 1:08-cr-00223-DAE-1

  v.

DAVID OPOLLO ROSS,

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Hawaii
                     David A. Ezra, District Judge, Presiding

                        Argued and Submitted June 13, 2011
                                Honolulu, Hawaii

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: ALARCÓN, WARDLAW, and N.R. SMITH, Circuit Judges.

      On April 21, 2008, a grand jury returned an indictment against David Ross

and Lei Ross charging them both with one count of conspiracy to defraud the

United States, 18 U.S.C. § 371, and separate counts of income tax evasion for each

of the tax years from 1998 through 2002, 26 U.S.C. § 7201. At the conclusion of

their 11-day joint trial in the United States District Court for the District of Hawaii,

the Rosses were convicted of all counts. They appeal from their judgments of

conviction. Their primary contention on appeal is that the district court erred in

denying their motion for new trial without holding an evidentiary hearing on the

question of whether David Ross’s trial counsel, Alan Richey, had an actual conflict

that adversely affected his performance at trial. They also challenge other

evidentiary rulings and the failure to sever Lei Ross’s trial from her husband’s.

We affirm.

                                            I

      The Rosses do not challenge the sufficiency of the evidence to support their

convictions. Rather, they argue that the district court erred in denying their motion

for new trial, which asserted that Richey, whom the Rosses had retained in mid-

2003 to represent them before the IRS on civil tax matters, had an actual conflict of




                                           2
interest that deprived them of their Sixth Amendment right to effective assistance

of counsel.

       A new trial may be granted “if the interest of justice so requires.” Fed. R.

Crim. P. 33(a). We review a district court’s denial of a motion for new trial, and

its decision not to hold an evidentiary hearing before ruling on a motion for new

trial, for an abuse of discretion. United States v. Montes, 628 F.3d 1183, 1187 (9th

Cir. 2011). “A district court abuses its discretion if it reaches a result that is

‘illogical, implausible, or without support in inferences that may be drawn from

facts in the record.’” Id. (quoting United States v. Hinkson, 585 F.3d 1247, 1251

(9th Cir. 2009) (en banc)).

       “In order to prevail on an ineffective assistance of counsel claim based on

[a] conflict of interest, a defendant must show that ‘an actual conflict of interest

adversely affected his lawyer’s performance.’” United States v. Miskinis, 966 F.2d

1263, 1268 (9th Cir. 1992) (quoting Cuyler v. Sullivan, 446 U.S. 335, 350 (1980)).

“The customary procedure for challenging the effectiveness of defense counsel in a

federal criminal trial is by collateral attack on the conviction under 28 U.S.C. §

2255.” United States v. Birges, 723 F.2d 666, 670 (9th Cir. 1984); see also United

States v. Molina, 934 F.2d 1440, 1446 (9th Cir. 1991) (“We prefer appellants to

raise such claims in a habeas proceeding because it permits the district judge first


                                            3
to decide whether the claim has merit, and second, if it does, to develop a record as

to what counsel did, why it was done, and what, if any, prejudice resulted.”).

      In United States v. Hanoum, 33 F.3d 1128 (9th Cir. 1994), we reviewed a

new trial motion based on newly discovered evidence giving rise to an ineffective

assistance of counsel claim. Id. at 1129. We stated that evidence properly

considered in the context of a new trial motion is evidence that “relates to the

elements of the crime charged,” explaining that

      [t]he fact that Hanoum’s attorney allegedly failed to do anything to
      prepare a case is material to whether he was effective or not, but not to
      whether Hanoum is innocent or guilty of the crimes charged . . . .
      Additionally, evidence of ineffectiveness will seldom if ever indicate
      that a new trial would probably produce an acquittal. The same
      problem occurs: it is the underlying evidence suppressed or not
      presented by the attorney, not the attorney’s ineffectiveness, that
      might produce the acquittal.

Id. at 1130-31. We declined, however, to reach the merits of Hanoum’s conflict of

interest claim, which consisted of “mere allegations” that had not been developed

at a hearing. Id. at 1131-32.

      The record before the district court was not sufficient to establish the precise

nature and timing of any tax advice Richey gave the Rosses, and the district court

was not obliged to conduct an evidentiary hearing to develop the record on that

point. Such evidence would be material as to whether Richey rendered ineffective



                                           4
assistance of counsel and not as to whether the Rosses are guilty of willfully

conspiring to defraud the government. Stated otherwise, the Rosses’ conflict of

interest claim does not demonstrate that the prosecution failed to present evidence

sufficient to persuade a rational trier of fact of their guilt. Accordingly, we are

persuaded that the district court did not abuse its discretion in denying the Rosses’

new trial motion. A collateral attack pursuant to 28 U.S.C. § 2255 represents an

appropriate procedural device to challenge the effectiveness of Richey’s

representation and also provides an adequate remedy for the Rosses’ conflict of

interest claim. See Miskinis, 966 F.2d at 1269 (“We emphasize that there is no

fixed rule against determining the ineffectiveness question on direct appeal where

the record so permits. Rather, the decision to defer resolution of an ineffective

assistance of counsel claim is a discretionary one and depends upon the contents of

the record in a particular case.”).

                                           II

      The Rosses also challenge evidentiary rulings that the district court made

during the trial. “A district court’s ruling excluding testimony is reviewed for

abuse of discretion.” United States v. Moran, 493 F.3d 1002, 1012 (9th Cir. 2007).

A district court abuses its discretion when its evidentiary rulings are “based on ‘an

erroneous view of the law or a clearly erroneous assessment of facts.’” United


                                           5
States v. Nguyen, 465 F.3d 1128, 1130 (9th Cir. 2006) (quoting United States v.

Morales, 108 F.3d 1031, 1035 (9th Cir. 1997)). “Reversal is required if it is ‘more

probable than not’ that error affected the verdict.” United States v. Alvarez, 358

F.3d 1194, 1205 (9th Cir. 2004) (quoting United States v. Rohrer, 708 F.2d 429,

432 (9th Cir. 1983)).

                                          A

      David Ross argues that the district court erred in excluding as hearsay his

testimony about tax advice he received from various advisors. We have explained

in prior opinions that, in criminal tax cases, a defendant’s testimony about the tax

advice on which he relied is not inadmissible as hearsay when it is offered to

support a defense that the defendant relied in good faith on the advice of qualified

experts. See Moran, 493 F.3d at 1013 (“[T]he defendant ‘has the right to tell the

court his own version of the tax advice on which he claim[s] to have relied.’ Such

testimony does not constitute hearsay when not offered for the truth of the matter

stated.”) (quoting United States v. Bishop, 291 F.3d 1100, 1111 (9th Cir. 2002)).

      Although the district court erred as a matter of law in ruling that testimony

reporting the tax advice was “hearsay,” it did not prevent David Ross from

testifying about the advice he received from others as long as he framed it in terms

of what he “understood” or learned from those advisors. Additionally, the district


                                           6
court admitted the trial testimony of two of David Ross’s advisors and hundreds of

pages of documents setting forth the advice the Rosses received and claimed to

have relied upon. The district court’s rulings did not prevent the jury from

considering the evidence in support of the Rosses’ good faith reliance defense.

Accordingly, the district court’s error in ruling that testimony about advice from a

tax advisor is hearsay was harmless error.

                                          B

      The Rosses argue that the district court erred in excluding evidence of their

reliance on advice they received from Richey. Rule 403 of the Federal Rules of

Evidence provides that “[a]lthough relevant, evidence may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations of undue

delay, waste of time, or needless presentation of cumulative evidence.” Fed. R.

Evid. 403. An exception to the general rule that a district court’s decision to

exclude evidence at trial is reviewed for an abuse of discretion exists “when the

district court excludes evidence under Federal Rule of Evidence 403 but does not

engage in explicit balancing.” United States v. Leo Sure Chief, 438 F.3d 920, 925

(9th Cir. 2006). In such cases, the district court’s determination is reviewed de

novo. Id.


                                           7
      Although the district court did not expressly rely on Rule 403, its ruling

reflects a determination that the relevance of the proffered evidence was

outweighed by the potential for prejudice that could flow from creating an

opportunity for the Government to call Richey as a rebuttal witness. Evidence of

reliance on erroneous advice from Richey would not have negated a rational trier

of fact’s determination of willfulness in the years before the Rosses hired Richey:

the years from 1998 through 2003. Any reliance on advice from Richey would

have been relevant only to a portion of the single conspiracy count, which covered

the period from 1998 through the time of the grand jury indictment in 2008.1

Accordingly, we conclude that the district court did not err in excluding the

proffered evidence.2

                                           III


      1
        We express no view regarding whether evidence of Richey’s advice should
have been admitted regarding the sufficiency of the evidence as to the conspiracy
count. That issue can be addressed on habeas corpus review, if such relief is
requested. In United States v. Barron, 172 F.3d 1153 (9th Cir. 1999), we stated
that under the “broad and flexible power” conferred by § 2255, a district court may
set aside an inmate’s conviction. Id. at 1160 (internal quotation marks omitted)
(quoting United States v. Handa, 122 F.3d 690, 691 (9th Cir. 1997)).
      2
       Lei Ross also argues that, as a result of the district court’s ruling on the joint
proffer of evidence, she “was denied her Sixth Amendment right to present a
defense and her Fifth and Sixth Amendment rights to due process.” Because we
conclude that the district court’s ruling did not constitute error, we do not reach Lei
Ross’s arguments that the error rose to the level of a constitutional violation.

                                            8
         Lei Ross contends that the trial court erred by failing to sever her trial from

her husband’s on the basis of an alleged conflict of interest with David Ross’s trial

counsel. She also argues that her own trial counsel rendered ineffective assistance

by failing to make a timely motion for severance. We review claims that are not

raised below for plain error. United States v. Nevils, 598 F.3d 1158, 1170 (9th Cir.

2010).

         The district court was not obliged, sua sponte, to sever Lei Ross’s trial from

her husband’s. Additionally, in light of the absence of reference to any facts in the

trial record that relate to the basis for the decision of Lei Ross’s counsel not to

move to sever, a collateral attack on the conviction, pursuant to 28 U.S.C. § 2255,

is the appropriate forum for Lei Ross to pursue her ineffective assistance of

counsel claim.

         AFFIRMED.




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