                                                                              FILED
                           NOT FOR PUBLICATION                                 MAR 21 2012

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 10-50589

              Plaintiff - Appellee,              D.C. No. 3:08-cr-04341-JM-1

  v.
                                                 MEMORANDUM*
LEWIS DONALD GUESS,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Southern District of California
                 Jeffrey T. Miller, Senior District Judge, Presiding

                     Argued and Submitted February 16, 2012
                              Pasadena, California

Before:       FARRIS and W. FLETCHER, Circuit Judges, and HELLERSTEIN,
              Senior District Judge.**

       Lewis Donald Guess (“Appellant”) appeals his conviction on two counts of

willfully filing a false tax return in violation of 26 U.S.C. § 7206(1). Appellant



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Alvin K. Hellerstein, Senior District Judge for the U.S.
District Court for Southern New York, sitting by designation.
challenges the sufficiency of the evidence supporting the conviction and the

preclusion of the testimony of a defense witness who indicated that he would

refuse to answer certain cross-examination questions. We assume familiarity with

the record. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

      The conviction results from a charitable deduction claimed by Appellant on

his 2001 and 2002 federal income tax returns. Appellant claimed that on

December 31, 2001, he contributed shares of stock in a closely-held corporation

that he controlled (Xelan Insurance Services, Inc.), which he valued at $800,000, to

a 501(c)(3) organization that he also controlled (Xelan Foundation). The district

court found, following a bench trial, that the claimed donation had not occurred

and that Appellant willfully filed tax returns stating the contrary.

      At trial, Appellant proposed to call David Jacquot, the general counsel for

certain of Appellant’s entities, as a witness to testify in support of Appellant’s

contentions as to the claimed donation. After reviewing the questions proposed to

be addressed to Jacquot, the district court determined that Jacquot could not testify

because he intended to invoke his Fifth Amendment privilege with respect to

certain cross-examination questions, for he was himself under indictment.

      A challenge to the sufficiency of the evidence supporting a criminal

conviction requires us to determine if, “viewing the evidence in the light most


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favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,

443 U.S. 307, 319 (1979) (emphasis in original); United States v. Nevils, 598 F.3d

1158, 1163-64 (9th Cir. 2010) (en banc). The essential elements of willfully filing

a false tax return in violation of 26 U.S.C. § 7206(1) are: (1) the defendant made

and subscribed a tax return that was incorrect as to a material fact; (2) the tax

return subscribed by the defendant contained a written declaration that it was made

under the penalties of perjury; (3) the defendant did not believe the tax return to be

true and correct as to every material matter; and (4) the defendant falsely

subscribed to the tax return willfully, with the specific intent to violate the law.

Kawashima v. Holder, 615 F.3d 1043, 1054-55 (9th Cir. 2010). Viewed in the

light most favorable to the government, the evidence submitted at trial was

sufficient to permit a rational trier of fact to conclude beyond a reasonable doubt

that Appellant willfully filled two false tax returns in violation of 26 U.S.C. §

7206(1).

      A challenge to the district court’s preclusion of the testimony of a defense

witness is reviewed for abuse of discretion. United States v. Klinger, 128 F.3d

705, 709 (9th Cir. 1997). This Court “permit[s] the exclusion of a defense

witness’s testimony when the witness has refused on cross-examination to respond


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to questions on non-collateral matters.” Denham v. Deeds, 954 F.2d 1501, 1504

(9th Cir. 1992). “In deciding whether the testimony of a particular witness should

be excluded because that witness will refuse to answer ‘non-collateral’ questions, a

district court must ordinarily determine whether a witness will invoke his Fifth

Amendment privilege in response to specific questions.” Klinger, 128 F.3d at 709

(internal quotation marks omitted).

      The district court reviewed the proposed questions to be asked of Jacquot.

Jacquot’s counsel stated that he intended to invoke Jacquot’s Fifth Amendment

privilege such that Jacquot would not answer certain cross-examination questions,

including questions regarding his involvement with, and compensation received

from, certain of Appellant’s entities. The district court found that, given the

specific allegations against Appellant and Jacquot’s alleged involvement therein,

these questions were on non-collateral matters and thus did not abuse its discretion

in not allowing Jacquot to testify.

      AFFIRMED.




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