                                                                             FILED
                            NOT FOR PUBLICATION
                                                                              JUN 22 2016
                     UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 15-30071

              Plaintiff - Appellee,               D.C. No. 2:13-cr-00239-TSZ-1

 v.
                                                  MEMORANDUM*
THOMAS R. HAZELRIGG, III,

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Western District of Washington
                  Thomas S. Zilly, Senior District Judge, Presiding

                         Argued and Submitted June 9, 2016
                                Seattle, Washington

Before: EBEL,** PAEZ, and BYBEE, Circuit Judges.

      Thomas Hazelrigg III appeals a judgment of conviction, entered after a jury

trial, on two counts of willfully attempting to evade or defeat taxes in violation of

26 U.S.C. § 7201. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable David M. Ebel, Senior Circuit Judge for the U.S.
Court of Appeals for the Tenth Circuit, sitting by designation.
      1.     Hazelrigg argues that the district court admitted evidence of his lavish

living that was irrelevant, unduly prejudicial, and violative of due process. He also

argues that the district court admitted evidence in violation of Federal Rule of

Evidence 404(b). At trial, Hazelrigg objected only to photographs of the Bellevue

condominium, and only on relevance grounds. We therefore review Hazelrigg’s

relevance challenge to the Bellevue condominium photographs for abuse of

discretion. See United States v. Stinson, 647 F.3d 1196, 1210 (9th Cir. 2011). His

remaining challenges are reviewed for plain error. See United States v. Olano, 507

U.S. 725, 731-32 (1993). Under that standard, reversal is required only if the

admission of evidence was plainly erroneous, affected Hazelrigg’s substantial

rights, and undermined the integrity of the proceedings. See id. at 732.

      2.     The district court did not abuse its discretion in admitting photographs

of the Bellevue condominium. Evidence that Hazelrigg spent significant sums

from nominee accounts on nominee properties, including the Bellevue

condominium, was relevant to show his ability to pay his tax indebtedness and his

affirmative attempts to defeat collection. See Spies v. United States, 317 U.S. 492,

499 (1943) (explaining that a wide range of conduct may give rise to an inference

of willful attempt to defeat and evade taxes, including the “concealment of assets

or covering up sources of income, handling of one’s affairs to avoid making the


                                          2
records usual in transactions of the kind, and any conduct, the likely effect of

which would be to mislead or to conceal”); see also United States v. Carlson, 235

F.3d 466, 468-49 (9th Cir. 2000). Moreover, the Bellevue condominium was one

of several nominee properties the government showed Hazelrigg controlled

through straw owners. The government properly used photographs of the

residence to help the jury keep the properties straight and to tell a comprehensible

story. See Fed. R. Evid. 401 advisory committee’s note (including “views of real

estate” among examples of evidence regularly admitted to aid understanding).

      3.     The district court did not commit reversible plain error in admitting

the other “lavish living” evidence, to which no objection was made. See Olano,

507 U.S. at 732.

      First, its admission was not a plainly erroneous application of the federal

rules governing relevance. As discussed above, evidence of Hazelrigg’s spending

from nominee accounts on nominee properties gave rise to an inference of willful

evasion, see Spies, 317 U.S. at 499; Carlson, 235 F.3d at 468-69, and was therefore

admissible because it tended to prove a fact of consequence, see Fed. R. Evid. 401,

402; cf. United States v. Scholl, 166 F.3d 964, 975 (9th Cir. 1999) (holding that

prosecutor’s questions about defendant’s two houses, time share in Hawaii, and




                                           3
golf club membership elicited testimony that “[a]lthough marginal,” was

nonetheless probative of the defendant’s defense).

      Second, it is not obvious that admission of the evidence was unduly

prejudicial, because the government mostly tied evidence of Hazelrigg’s spending

to his use of the nominee accounts and properties. See United States v. Unruh, 855

F.2d 1363, 1377 (9th Cir. 1987) (admonishing that evidence of a defendant’s

wealth “should not be offered unless clearly connected” to the specific charges or

conduct at issue); see also United States v. Kessi, 868 F.2d 1097, 1106-07 (9th Cir.

1989). Hazelrigg makes much of the potential prejudice arising from the

government’s use of photographs. But the photographs were not misleading, did

not have “a visceral impact that far exceeds their probative value,” were not likely

to “arouse irrational fears and prejudices,” and did not “ma[k]e the difference

between acquittal and conviction.” United States v. Hitt, 981 F.2d 422, 424-25

(9th Cir. 1992).

      Third, the admission of relevant evidence was not plainly a violation of

Hazelrigg’s due process right to a fair trial. See United States v. Socony-Vacuum

Oil Co., 310 U.S. 150, 240 (1940) (recognizing that appeals to class prejudice may

“so poison the minds of jurors . . . that an accused may be deprived of a fair trial”).

As Hazelrigg concedes, the government made no references to Hazelrigg’s lavish


                                           4
living in closing argument, let alone the “undignified and intemperate” “appeals to

class prejudice” present in Socony-Vacuum Oil Co., 310 U.S. at 239. Indeed, it

was Hazelrigg’s lawyer—not the government—who told the jury in closing, “The

image of [Hazelrigg] sitting in a hot tub with a big glass of champagne laughing

manically as he rolls [a] hundred dollars in his fingers, that is probably pretty

accurate” (emphasis added).

       Even if we assumed, however, that the district court plainly erred in

admitting certain of the “lavish living” evidence, under our deferential standard of

review, reversal would not be warranted. See Olano, 507 U.S. at 734. Hazelrigg

has not demonstrated that his substantial rights were affected in light of the

considerable evidence that he ordered his financial affairs to evade creditors, the

Internal Revenue Service among them. See Spies, 317 U.S. at 499 (“If the tax-

evasion motive plays any part in . . . [conduct which misleads or conceals,] the

offense may be made out even though the conduct may also serve other

purposes . . . .”).

       4.     Finally, it was not a plainly erroneous application of Federal Rule of

Evidence 404(b) for the district court to admit evidence demonstrating that

Hazelrigg concealed his control of the Redmond residence during the IRS

collection period but subsequently held himself out as the owner. Because this


                                           5
evidence was intrinsic to the charged offense and “‘necessary to permit the

prosecutor to offer a coherent and comprehensible story regarding the commission

of the crime,’” it was “exempt from the requirements of Rule 404(b).” United

States v. Anderson, 741 F.3d 938, 949-50 (9th Cir. 2013) (quoting United States v.

Dorsey, 677 F.3d 944, 951 (9th Cir. 2012)).

      AFFIRMED.




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