                                                                              FILED
                             NOT FOR PUBLICATION
                                                                               AUG 31 2015

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


                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                          No. 14-10479

               Plaintiff - Appellee,               D.C. No. 3:10 cr-08216- DGC

 v.
                                                   MEMORANDUM*
KENNITH LEE DEFOOR,

               Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                    David G. Campbell, District Judge, Presiding

                       Argued and Submitted August 13, 2015
                             San Francisco, California

Before:      REINHARDT, TASHIMA, and CALLAHAN, Circuit Judges.

      Kennith Defoor appeals from his conviction for conspiring to defraud the

United States and filing false claims against the United States through a fraudulent

income tax return scheme in violation of 18 U.S.C. §§ 2, 286, 287. Defoor did not

raise any of the issues he presses in this appeal in the district court; accordingly, we



      *      This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
review each issue for plain error. See United States v. Hilgers, 560 F.3d 944, 946

(9th Cir. 2009). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

       1.     Defoor argues that the district court plainly erred by allowing the

government to elicit testimony from IRS Agents Shelly Bare and Patrick Bauer that

he filed “false” tax returns.

              a.     First, Defoor contends that, by testifying that Defoor filed “false”

tax returns, Agents Bare and Bauer impermissibly “testified to the legal conclusion”

at issue in the case (i.e., whether the claims Defoor filed were “false”) in violation of

Federal Rules of Evidence 701, 702, 704, and 403. Although Federal Rule of

Evidence 704(a) specifically provides that “[a]n opinion is not objectionable just

because it embraces an ultimate issue,” Fed. R. Evid. 704(a), it “does not lower the

bar[] so as to admit all opinions.” Fed. R. Evid. 704 advisory committee’s notes.

Rules 701 and 702 require opinions to “be helpful to the trier of fact,” and Rule 403

“provides for exclusion of evidence which wastes time.” Fed. R. Evid. 704 advisory

committee’s notes. Together, these rules prevent a witness from giving “an opinion

as to her legal conclusion, i.e., an opinion on an ultimate issue of law.” Hangarter v.

Provident Life & Accident Ins. Co., 373 F.3d 998, 1016 (9th Cir. 2004) (citation

omitted).



                                            2
      Although determining whether an opinion is a “legal conclusion” can be a

difficult task, our case-law helps guide this inquiry. In United States v. Hearst, 563

F.2d 1331 (9th Cir. 1977) (per curiam), we concluded that it was permissible for

experts to testify that the defendant had “voluntarily rob[bed] a bank” and “act[ed]

under fear of death or grave bodily harm” because “[t]he average lay[person] would

understand those terms and ascribe to them essentially the same meaning intended by

the expert witness.” Id. at 1351. Similarly, in this case, it is clear that, when Agents

Bare and Bauer testified that Defoor’s claims were “false,” they were using the term

in a manner that the “average lay[person] would understand.” Id. Defoor has not

identified, nor have we found, any authority suggesting that the term “false” has a

specialized meaning in the law that is different from what the term means in the

vernacular. Moreover, nothing in the record suggests that, when Agents Bare and

Bauer testified that the claims were “false,” they intended the term to mean anything

other than what it does in common parlance. Accordingly, the district court did not

commit plain error by allowing Agents Bare and Bauer to testify that the claims

Defoor filed were “false.”

             b.     Defoor further argues that, by permitting Agent Bare to testify

that the claims he filed were “false,” the district court “allow[ed] the government to

commit ambush by expert,” because her testimony went beyond the scope of the

                                           3
United States’ pretrial notice of expert testimony, in violation of Federal Rule of

Criminal Procedure 16(a)(1)(G). This argument has little merit: at least two years

before trial, the government notified Defoor that Agent Bare would “opine that the

income tax returns prepared by defendants and turned over in discovery are

inaccurate and that defendants’ claims for tax refunds have no basis in U.S. income

tax law.”

      Defoor contends that this notice was insufficient: according to Defoor, this

notice failed to inform him that Agent Bare would “testify using the exact

terminology from the statute regarding the very question that the jury must resolve in

this case, namely whether these returns constituted false claims.” Defoor’s argument

rests on his assertion that the term “false” is different from the term “inaccurate.”

We reject this distinction: the two terms are synonyms. See Merriam-Webster’s

Thesaurus, “False,” http://www.merriam-webster.com/thesaurus/false (last visited

August 17, 2015) (identifying “inaccurate” as a synonym for “false”). Accordingly,

the district court did not commit plain error in violation of Rule 16 by allowing

Agent Bare to testify that the claims Defoor filed were “false.”

             c.     Defoor also argues that the district court plainly erred by

permitting Agent Bauer, a “case agent,” to testify as an expert. This argument is

premised on Defoor’s contention that, by testifying that the claims Defoor filed were

                                            4
“false,” Agent Bauer offered an “expert” opinion. However, at least in this case,

testifying that a claim was “false” required no specialized expertise: as discussed

above, when Agent Bauer testified that Defoor’s claims were “false,” he used the

term in a manner that the “average lay[person] would understand.” Hearst, 563 F.2d

at 1351. Accordingly, the district court did not commit plain error by allowing

Agent Bauer to testify that the claims Defoor filed were “false.”

      2.     Next, Defoor argues that the trial court erred by “unilaterally

investigating and resolving a juror’s report of potential jury tampering” – a phone

call received by Juror Number 9 or her husband during trial1 – without holding an

evidentiary hearing or applying the presumption of prejudice required by Remmer v.

United States, 347 U.S. 227 (1954).

      The Remmer presumption does not attach to every allegation of jury tampering

or misconduct. Rather, a court must “first determine whether a defendant has made a

prima facie showing that the intrusion had . . . an adverse effect on the deliberations.”

United States v. Henley, 238 F.3d 1111, 1115 (9th Cir. 2001) (citation omitted);

accord United States v. Rutherford, 371 F.3d 634, 643 (9th Cir. 2004) (noting that

Remmer does not apply in cases involving instances of “more prosaic kinds of jury


      1
             The record is unclear as to whether Juror Number 9 or her husband
received the phone call at issue. This discrepancy does not affect our analysis.

                                           5
misconduct” (citation omitted)). This “adverse effect standard is a low one: Unless

the district court finds that this showing is entirely frivolous or wholly implausible, it

must order a Remmer hearing to explore the degree of the intrusion and likely

prejudice suffered by the defendant.” Henley, 238 F.3d at 1115 (citation omitted).

      Here, Defoor fails to meet even this “low” threshhold. It is “wholly

implausible” for Defoor to suggest that the phone call received by Juror Number 9

(or her husband) had an “adverse effect” on the jury deliberations. The caller simply

asked Juror Number 9 (or her husband) if she (or he) owed money to the IRS and,

upon questioning by Juror Number 9 (or her husband), hung up. This single question

cannot plausibly be interpreted as even an indirect attempt to coerce or otherwise

distract Juror Number 9 from her duties as a juror. Moreover, nothing in the record

supports the inference that the call intimidated, distracted, or affected Juror Number

9’s peace of mind during jury deliberations. To the contrary, the record allays any

such concerns: Juror Number 9 testified that the call would not affect her “ability to

be a fair and impartial juror to both sides.” Similarly, Juror Number 8 – the only

other juror that the record reflects knew about the call and its contents – testified that

he or she would be “able to retain a fair and open mind and not be influenced by the

fact that this coincidence occurred.” Both jurors further testified that the call left



                                            6
them without “any lingering concern” that it “might actually be associated with the

real Internal Revenue Service.”

      The phone call and the trial are connected only because they are tangentially

related to the same subject. This attenuated link, by itself, is not enough to require

application of the Remmer presumption. See Smith v. Phillips, 455 U.S. 209, 217

(1982) (“[I]t is virtually impossible to shield jurors from every contact or influence

that might theoretically affect their vote.”). Accordingly, the district court did not

commit plain error by failing to attach the Remmer presumption to the alleged

incident of jury tampering.2

      3.     Finally, Defoor argues that three of the district court’s jury instructions

were plainly erroneous.

             a.     First, Defoor argues that the district court’s § 287 instruction was

plainly erroneous. To sustain a conviction under § 287, the “government must prove

that the defendant (1) presented a claim against the United States and (2) knew such

claim to be false.” United States v. Atalig, 502 F.3d 1063, 1067 (9th Cir. 2007). The

district court’s § 287 instruction was entirely consistent with this precedent.

      2
             Defoor also offers a conclusory, one-sentence contention that, by
conducting its investigation outside of his presence, the district court violated Fed. R.
Crim. P. 43. Defoor fails to provide either argument or analysis in support of this
contention; accordingly, we conclude that this contention is waived. See Greenwood
v. FAA, 28 F.3d 971, 977 (9th Cir. 1994).

                                           7
Nonetheless, Defoor argues that it was erroneous for two reasons. First, he argues

that the instruction was incorrect because it did not “require[] the jury to find that the

claims were consciously inaccurate, nor that Mr. Defoor knew them to be false at the

time he made them.” This argument is belied by the instruction itself, which

required the jury to find that Defoor “knew the claim[s] w[ere] false.”

      Second, Defoor argues that the instructions were erroneous because they “did

not require the jury to conclude that the defendant acted with a consciousness that he

was doing something wrong or that violated the law.” This argument has little merit:

it is axiomatic that “ignorance of the law or a mistake of law is no defense to

criminal prosecution.” United States v. Liu, 731 F.3d 982, 989 (9th Cir. 2013)

(quoting Cheek v. United States, 498 U.S. 192, 199 (1991)). Although we have

recognized two exceptions to this rule, see United States v. Fierros, 692 F.2d 1291,

1294 (1982), as modified (9th Cir. 1983), neither we, nor the Supreme Court, has

ever held that § 287 falls within either exception.3 Accordingly, the district court’s §

287 instructions were not plainly erroneous.

      3
              Defoor cites two decisions from the Fourth Circuit, United States v.
Bolden, 325 F.3d 471, 494 (4th Cir. 2003) and United States v. Maher, 582 F.2d 842,
847 (4th Cir. 1978), that lend some marginal support to his position. However, the
district court’s failure to include an instruction derived from non-binding, out-of-
circuit authority is not plain error. See United States v. Bear, 439 F.3d 565, 569 (9th
Cir. 2006) (“An error is plain if it is ‘clear’ or ‘obvious’ under current law.” (citation
omitted)).

                                            8
             b.     Next, Defoor argues that the district court’s aiding and abetting

instruction was plainly erroneous. Specifically, Defoor argues that the “aiding and

abetting the charge of false claims” and “the definition of knowledge” instructions

were “obviously inconsistent,” such that the jury was permitted to “convict under an

aiding and abetting theory without proof of the required mental state for aiding and

abetting.” This argument has little merit: there was nothing “inconsistent” in the

district court’s aiding and abetting instruction and its knowledge instruction. Rather,

the latter instruction simply provided further guidance as to what term “knowingly”

meant. Moreover, the district court’s aiding and abetting instruction did not permit

the jury to convict Defoor “without proof of the required mental state” for the crime:

the district court’s aiding and abetting instruction (including the mens rea

requirement) was entirely consistent with the relevant Ninth Circuit Model Jury

Instruction. Accordingly, the district court’s aiding and abetting instruction was not

plainly erroneous. See United States v. Benford, 574 F.3d 1228, 1231 n.1 (9th Cir.

2009) (a district court does not commit plain error if it “follow[s] the Ninth Circuit




                                           9
Model Jury Instructions and require[s] the jury to find all the statutory elements of

the crime”).4

                c.   Finally, Defoor argues that the district court’s § 286 instruction

was plainly erroneous for two reasons. First, Defoor faults the district court for

failing to instruct the jury that, in order to convict Defoor under § 286, it had to find

that he knew that what he was doing was “unlawful[].” As discussed above, this

argument is meritless: “ignorance of the law or a mistake of law is no defense to

criminal prosecution.” Liu, 731 F.3d at 989 (quoting Cheek, 498 U.S. at 199). And,

although there are two exceptions to this rule, Defoor does not cite, nor have we

found, any decision holding that § 286 falls within either exception.

       Defoor also argues that the district court’s § 286 instruction was erroneous

because it “failed to instruct the jury that they must find that Mr. Defoor entered into

an agreement to defraud the United States.” The government has waived any

argument that this instruction was not plainly erroneous by failing to respond to this

argument in its answering brief. See United States v. Gamboa-Cardenas, 508 F.3d

491, 502 (9th Cir. 2007). However, even assuming that the § 286 instruction was

       4
               In his reply brief, Defoor suggests that the district court erred by failing
to instruct the jury that, in order to convict Defoor of aiding and abetting a § 287
violation, it had to find that he knew that what he was doing was “unlawful.”
Because Defoor raised this issue for the first time in his reply brief, it is waived. See
United States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992).

                                            10
plainly erroneous, we decline to overturn his conviction on this basis because Defoor

has not met the final prong of the plain error analysis. That is, he has failed to

demonstrate that any error in this instruction “seriously affect[ed] the fairness,

integrity, or public reputation of judicial proceedings.” United States v. Rizk, 660

F.3d 1125, 1132 (9th Cir. 2011) (citations omitted). Defoor provides no explanation

as to how the (asserted) failure to instruct the jury that it had to find that Defoor

entered into an agreement to defraud the United States meets this prong of the plain

error analysis; indeed, his briefs do not even mention it. In any event, such an

argument would have failed. Even where jury instructions omit an essential element

of a crime, we “nonetheless may affirm if the record contains strong and convincing

evidence that the missing element of the crime was adequately proved by the

prosecution, such that it is extremely unlikely that a properly instructed jury would

not have convicted.” United States v. Romm, 455 F.3d 990, 1005 (9th Cir. 2006)

(citation omitted). Here, the evidence that Defoor entered into an agreement with his

daughter and son-in-law to defraud the United States was overwhelming: together,

they filed 122 false returns, knowing that the incomes and/or withholdings stated

were false. On this record, it is extremely unlikely that any jury would not have

convicted Defoor of a violation of § 286. Accordingly, the district court’s § 286

instruction was not plainly erroneous.

                                            11
AFFIRMED.




            12
                                                                             FILED
USA v Kennith Lee Defoor 14-10479
                                                                              AUG 31 2015
REINHARDT, Circuit Judge, concurring:                                     MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


      I concur in the memorandum disposition, but write separately because I

believe that the question whether § 287 permits an ignorance of the law defense1 in

this case is more complicated than the disposition suggests. In United States v.

Fierros, we recognized that in certain kinds of cases “a defense of ignorance of law

is permitted even though it is not specifically written into the criminal statute.”

692 F.2d 1291, 1294 (9th Cir. 1982). We explained that one such type of case is a

prosecution “under [a] complex regulatory scheme[] that ha[s] the potential of

snaring unwitting violators.” Id. at 1295. We illustrated the need for allowing a

mistake of law defense in those cases using the example of tax law, which “raises

problems of great complexity” and in which “innocent errors are numerous.” Id

(internal quotation omitted); see also Cheek v. United States, 498 U.S. 192 (1991)

(recognizing an ignorance of the law defense implicit in a criminal tax statute);

United States v. Bishop, 412 U.S. 346 (1973) (same).

      Defoor was convicted of tax related malfeasance, but § 287 also covers a

wide variety of relatively straightforward activity, like a federal government

employee overstating his reimbursable travel expenses. We have not determined


      1
      I use the term loosely since we are actually talking about an element the
government must prove, rather than a formal defense.
whether the Fierros exception is applicable in statutes that can be violated by a

failure to comply with a complex regulatory regime, but also by other kinds of

wrongdoing. Similarly, we have not decided whether under Fierros we will

sometimes read an ignorance of the law defense into a statute that uses only the

word “knowingly”¯as § 287 does¯rather than “willfully.” See Bryan v. United

States, 524 U.S. 184, 193 (1998) (the use of “knowing” in a criminal statute does

not ordinarily imply an ignorance of the law defense, whereas “willful” does);

United States v. Hancock, 231 F.3d 557, 563 (9th Cir. 2000) (interpreting United

States v. Pasillas-Gaytan, 192 F.3d 864, 866 (9th Cir. 1999) as a case where we

did not read “knowing” as providing an ignorance of the law defense, even though

the regulatory regime “arguably [was] highly technical”).

      Because the question is open, however, it can hardly be a “plain” or

“obvious” error not to have permitted an ignorance of the law defense here.
