                                                                              FILED
                           NOT FOR PUBLICATION                                APR 03 2013

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-50315

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00346-SJO-1

  v.
                                                 MEMORANDUM*
THOMAS R. JENNINGS,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 11-50325

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00346-SJO-2

  v.

DAVID J. FEUERBORN,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Central District of California
                    S. James Otero, District Judge, Presiding




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                             Submitted February 4, 2013**
                                 Pasadena, California

Before: O’SCANNLAIN, TROTT, and CLIFTON, Circuit Judges.

      Defendants Thomas Jennings and David Feuerborn appeal their convictions

for tax fraud.1 We affirm.

      The district court denied Defendants’ motion to suppress, which they filed

on the first day of trial. The district court’s standing order required that any such

motion be filed thirty-five days before trial, so Defendants waived that issue. See

Fed. R. Crim. P. 12(e). Defendants did not establish good cause to excuse the

waiver. Id.

      Defendants allege that the Government withheld or destroyed certain

evidence. The district court found that all discovery had been turned over to

Defendants in a timely manner. Defendants point to no relevant information or

evidence that was different from the evidence they possessed. Thus, their claim

fails. See California v. Trombetta, 467 U.S. 479, 489 (1984) (requiring defendants

          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).


      1
        We address separately, in a contemporaneously filed opinion, Defendants’
challenge to their sentence based on the sentencing enhancement applied under
section 2T1.1(b)(2) of the federal Sentencing Guidelines for use of “sophisticated
means.”

                                           2
to demonstrate the inability to obtain similar evidence by reasonably available

means).

      Defendants allege that there was insufficient evidence to support their

convictions. Willfulness may be inferred from circumstantial evidence of

fraudulent intent. United States v. Dearing, 504 F.3d 897, 901 (9th Cir. 2007). A

rational juror could have concluded that Defendants intentionally concealed

income, so the evidence was sufficient to support the verdict. United States v.

Nevils, 598 F.3d 1158, 1169 (9th Cir. 2010) (en banc).

      The district court did not abuse its discretion when it permitted Defendants’

pictures to be shown to the jury. Defendants’ facial expressions and the context of

the photos did not render the photographs prejudicial. See United States v. Terry,

760 F.2d 939, 944 (9th Cir. 1985) (affirming the admission of mug shots that

contained no identification numbers).

      Feuerborn attempted to admit into evidence tax returns he filed after he had

been indicted. The district court did not abuse its discretion in excluding those

returns from evidence. See United States v. Pang, 362 F.3d 1187, 1194 (9th Cir.

2004) (excluding similar evidence).

      There was no evidence that the Government destroyed any computers, so

there was no relevance to Defendants’ proffered expert witness. The district court


                                          3
was within its discretion to exclude the testimony of Defendants’ proffered expert.

See Fed. R. Evid. 401, 402.

      The district court did not abuse its discretion in the response to the jury’s

question regarding the disclosure of loans on tax returns, and it did not err in its

statement of the law. If the purported loans were not bona fide, the money

received was taxable income. See Milenbach v. Comm’r, 318 F.3d 924, 930 (9th

Cir. 2003) (noting that a loan is not income because it is offset by an obligation to

repay).

      AFFIRMED.




                                           4
