                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 02 2012

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



                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,

              Plaintiff-Appellee,                No. 09-10301

  v.                                             D.C. 2:06-cr-00274-KJD-LRL-1

EDMUND C. BOTHA,                                 MEMORANDUM*

              Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Nevada
                    Kent J. Dawson, District Judge, Presiding

                          Submitted February 17, 2011 **
                             San Francisco, California

Before: TASHIMA and SILVERMAN, Circuit Judges, and ADELMAN, District
Judge.***

       A jury convicted defendant-appellant Edmund C. Botha (“Botha”) of tax

evasion, contrary to 26 U.S.C. § 7201, and the district court sentenced him to 60

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 Lynn S. Adelman, District Judge for the United States
District Court for the Eastern District of Wisconsin, sitting by designation.
months in prison. On appeal, Botha challenges his conviction and sentence. We

affirm.

                                           I.

      Botha (through counsel) first argues that the district court’s refusal to provide

his requested jury instruction regarding “willfulness” deprived him of the ability to

argue his theory of defense. We review de novo whether the district court’s

instructions adequately presented the defendant’s theory of the case, but review their

precise formulation for abuse of discretion. United States v. Stinson, 647 F.3d 1196,

1215 (9th Cir. 2011). The instructions were adequate in this case. The district court

provided a legally correct definition of the term “willfully,” as well as a “good faith”

instruction in substantially the same form Botha requested. The instructions, read

together, adequately covered Botha’s defense theory; the district court accordingly did

not err in refusing to give the precise instruction Botha requested. See, e.g., United

States v. Chen, 933 F.2d 793, 796 (9th Cir. 1991). Nor did the court err in failing to

instruct on “gross negligence.” See United States v. McGill, 953 F.2d 10, 13 (1st Cir.

1992). Finally, we note that Botha’s proposed instruction may have misled the jury

into believing that acts done with mixed motives, see Spies v. United States, 317 U.S.

492, 499 (1943), or otherwise legal acts (such as dealing in cash or entering in a




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voluntary child support agreement) could not result in a violation of 26 U.S.C. § 7201,

see, e.g., United States v. Jungles, 903 F.2d 468, 474 (7th Cir. 1990).

                                           II.

      The appellate commissioner granted Botha permission to file pro se

supplemental briefs despite the fact that he was represented by counsel. We have

considered these arguments but find that they lack merit.

      Botha first contends that the government destroyed two pieces of potentially

exculpatory evidence. See Arizona v. Youngblood, 488 U.S. 51, 58 (1988). Botha

failed to raise this issue below, so our review is for plain error. See, e.g., United

States v. Wilkes, 662 F.3d 524, 534-35 (9th Cir. 2011). The trial testimony showed

that the evidence at issue was either purged/destroyed for innocent reasons or

accidentally misplaced; the record contains no evidence of bad faith destruction.

      Second, Botha argues that the prosecutor engaged in misconduct by claiming

in opening and closing that he had not paid any taxes since 1997. Because Botha

failed to object to these statements in the district court, our review is for plain error

only. See id. at 535-36. We must consider the challenged comments in the context

of the entire trial, see United States v. Cabrera, 201 F.3d 1243, 1246 (9th Cir. 2000),

and will reverse only if the prosecutor’s improper conduct so affected the jury’s

ability to consider the evidence fairly that it deprived Botha of a fair trial, United

States v. Smith, 962 F.2d 923, 935 (9th Cir. 1992). Read in context, the challenged

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statement during the prosecutor’s opening cannot be deemed misleading, as counsel

was then discussing tax years 1998-2001, and Botha had not, at the time he was

indicted, paid towards those years. The challenged statement made during closing

failed to include a limitation to the tax years at issue, but it too must be considered in

context, as the prosecutor was at that point responding to a defense contention that the

IRS should have contacted Botha’s accountant and worked out (another) payment

agreement. At all events, this was at most a single isolated comment that was highly

unlikely to mislead the jury, particularly given that defense counsel in his closing

argument reiterated the payments Botha made to the IRS. See United States v.

Wright, 625 F.3d 583, 613 (9th Cir. 2010). Botha cannot show that he was denied a

fair trial.

        Third, Botha argues that the district court erred in allowing the government to

introduce evidence regarding a $1.1 million house purchased by his girlfriend. Once

again, because Botha failed to object, our review of this claim is for plain error.

United States v. Khan, 993 F.2d 1368, 1376 (9th Cir. 1993). Given the deference

ordinarily due a district court’s decision to admit evidence, it is the rare exception

when a district court’s decision to admit evidence constitutes plain error. United

States v. Rizk, 660 F.3d 1125, 1132 (9th Cir. 2011). Botha’s girlfriend admitted that

Botha funded her purchase of the home (rather than paying his taxes), see, e.g.,

Barnett v. IRS, 988 F.2d 1449, 1457 (5th Cir. 1993), and the placement of assets in

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the name of another constitutes probative evidence of evasion, see, e.g., United States

v. Huebner, 48 F.3d 376, 380 (9th Cir. 1994). Botha fails to explain how this

probative evidence was unfairly prejudicial.

      Fourth, Botha argues that the district court erred in denying him a 2-level

reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. We review a

district court’s denial of acceptance points under a “clearly erroneous” standard,

United States v. Moore, 109 F.3d 1456, 1468 (9th Cir. 1997), and find no reversible

error here.   The district judge understood that he could grant the reduction,

notwithstanding the fact that Botha went to trial, but correctly focused on Botha’s pre-

trial conduct. U.S.S.G. § 3E1.1 cmt. n.2. Botha attempted to enter into a plea

agreement with the government, but the agreement Botha proposed called for him to

plead to lesser included offenses (misdemeanors) rather than the crime with which he

was charged. See United States v. Carroll, 6 F.3d 735, 741 (11th Cir. 1993). Botha

then went to trial because he disputed the government’s ability to prove that his

conduct was willful; courts routinely deny the acceptance reduction under such

circumstances. See, e.g., United States v. Chastain, 84 F.3d 321, 324 (9th Cir. 1996);

United States v. Burrows, 36 F.3d 875, 883 (9th Cir. 1994).             Botha fails to

demonstrate legal error in the district court’s construction of the guideline or clear

error in the court’s factual findings.



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      Finally, Botha challenges his sentence.          We review the substantive

reasonableness of a sentence under a deferential abuse of discretion standard. See,

e.g., United States v. Espinoza-Baza, 647 F.3d 1182, 1195 (9th Cir. 2011), cert.

denied, 2012 WL 137032 (U.S. Feb. 21, 2012). The district court rejected Botha’s

primary argument regarding his special needs child, finding that Botha failed to take

timely steps to address the situation, and that Botha was not an irreplaceable care-

giver. The district court passed over in silence Botha’s arguments regarding his

military service and lack of record, but it is the procedural provisions of 18 U.S.C. §

3553 that require engagement with the defendant’s arguments, not the substantive

provisions. See United States v. Paul, 561 F.3d 970, 974 n.2 (9th Cir. 2009). Botha

makes no argument of procedural error, and the district court’s failure to specifically

discuss these other issues does not make the sentence unreasonable. See Rita v.

United States, 551 U.S. 338, 358-59 (2007). The judge correctly calculated the

guideline range, which incorporated Botha’s lack of record, and he heard the evidence

regarding Botha’s military service. The judge specifically acknowledged his authority

to grant a variance but found a guideline sentence appropriate given the aggravated

nature of the case. The judge adequately considered the § 3553(a) factors and reached

a conclusion reasonably supported by the circumstances.

                                         III.

      For the foregoing reasons, we affirm Botha’s conviction and sentence.

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AFFIRMED.




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