                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             SEP 30 2013

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

UNITED STATES OF AMERICA,                        No. 12-10479

              Plaintiff - Appellee,              D.C. No. 2:09-cr-00147-JCM-
                                                 GWF-1
  v.

RUSSELL PIKE,                                    MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Nevada
                    James C. Mahan, District Judge, Presiding

                    Argued and Submitted September 12, 2013
                            San Francisco, California

Before: SCHROEDER and BYBEE, Circuit Judges, and BEISTLINE, Chief
District Judge.**

       Following a six-day bench trial, Russell Pike was convicted of one count of

tax evasion in violation of 26 U.S.C. § 7201 and sentenced to 52 months’

imprisonment. Pike appeals his conviction and sentence. We affirm.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Ralph R. Beistline, Chief District Judge for the U.S.
District Court for the District of Alaska, sitting by designation.
                                           I

      The elements of tax evasion are “will-fulness; the existence of a tax

deficiency; and an affirmative act constituting an evasion or attempted evasion of

the tax.” Sansone v. United States, 380 U.S. 343, 351 (1965) (internal citations

omitted). Pike contends that he did not commit an affirmative act of tax evasion

under Sansone because forward dating a stock purchase agreement “does not have

the requisite effect of reducing the stated tax liability.” Id. at 352. Pike correctly

points out that his tax liability is based on the date he received payment for his

shares, not the date specified in the agreement. But he misreads Sansone as

suggesting that forward dating an agreement is not an affirmative act of evasion.

The portion of Sansone that Pike relies on merely establishes that § 7201 requires a

tax deficiency in addition to an affirmative act. Following the phrase quoted by

Pike, the Court offers a hypothetical scenario “where a taxpayer understates his

gross receipts and he offsets this by also understating his deductible expenses.” Id.

The Court concludes that “in such a case . . . [he] would not have violated § 7201

as there would not have been the requisite § 7201 element of a tax deficiency.” Id.

at 353 (emphasis added).

      The Court established in United States v. Spies, 317 U.S. 492 (1943), that an

“affirmative willful attempt may be inferred from . . . any conduct, the likely effect


                                           2
of which would be to mislead or to conceal.” Id. at 499. Forward dating a stock

purchase agreement would not change Pike’s tax liability, but it would potentially

conceal the liability by making it appear as if he received cash for his shares in

2007 rather than 2006. See id. (“[A]ffirmative willful attempt may be inferred

from conduct such as . . . making false entries of alterations . . . [or] concealment

of assets or covering up sources of income.”). We have upheld convictions under §

7201 where the defendant attempted to conceal his tax liability even though the act

of concealment did not alter the underlying liability. See, e.g., United States v.

Mal, 942 F.2d 682, 684 (9th Cir. 1991); United States v. Voorhies, 658 F.2d 710,

712–13 (9th Cir. 1981). The district court’s finding that Pike attempted to forward

date a stock purchase agreement is sufficient to support the conclusion that Pike

committed an affirmative act of evasion.

                                            II

      Pike also argues that the lawyers who represented him at trial were

constitutionally ineffective. He first asserts that his counsel failed to elicit

testimony from tax attorney Peter Rinato that he allegedly advised Pike not to file a

tax return in October 2007. But Pike’s attorney Kevin Leik asked Rinato whether

he “g[a]ve any more information to Russell regarding his taxes” after April 2007

and Rinato answered “No.” Furthermore, Pike was not prejudiced by his lawyer’s


                                            3
unwillingness to press Rinato on the issue. While Pike’s failure to file a tax return

is evidence of willfulness under § 7201, the district court separately concluded that

Pike acted wilfully by attempting to forward date a stock purchase agreement for

tax reasons and informing others that he knew that he owed taxes on the

transaction. The evidence supports the district court’s conclusion that Pike acted

willfully even if Rinato told him not to file a tax return before October 15, 2007.

      Next, Pike alleges that his lawyers neglected to impeach the credibility of

government witnesses Karim Mastakiya and Kirk Sanford. But Pike’s lawyer Leik

tried to cross-examine them about their own alleged involvement in fraud and tax

evasion. The court sustained an objection to the introduction of the testimony over

Leik’s protest. Additionally, any error attributable to Leik did not prejudice Pike

because government witness Bill Underhill offered cumulative testimony about

Pike’s efforts to evade his tax obligations, and his credibility was not in doubt.

      Pike also contends that his lawyers erred by not calling Carol Evelyn Brown

as a defense witness. Regardless of their reasons for not doing so, the decision did

not prejudice Pike. Pike claims that Brown would have testified that he did not sell

his personal stock, but rather he engaged in nominee transactions whereby he acted

as an intermediary through whom Xyience stock was sold to new investors. But

this theory was developed by Pike at trial and rejected by the district court in light


                                           4
of the overwhelming evidence that he was selling his own shares. On direct

examination by the government, Brown testified that she issued stock certificate

number 11, among others, to Pike and then transferred some of the shares

represented by that certificate to other investors at Pike’s request. Any testimony

Brown offered to the effect that Pike was not selling his own personal shares would

therefore have flatly contradicted her own prior testimony, which was supported by

ample documentary evidence.

      Finally, Pike alleges a host of other shortcomings by trial counsel, including

unfamiliarity with federal practice and deficient preparation. But Pike does not

indicate how he was prejudiced by these additional instances of alleged

ineffectiveness. His counsel’s various shortcomings did not meaningfully affect

the outcome of Pike’s trial. Furthermore, the district court did not abuse its

discretion by refusing to hold an evidentiary hearing or reopen the record to

address Pike’s ineffective assistance claims. Pike submitted numerous post-trial

declarations, and his new lawyers ably argued them before the court denied Pike’s

motion for a new trial. See United States v. Alexander, 695 F.2d 398, 402 (9th Cir.

1982) (“The decision to hold a hearing or to proceed by affidavit as done here is

within the sound discretion of the trial court. . . . We see no abuse of discretion in




                                           5
the failure to hold a full hearing when the affidavits themselves established the

evidence was insufficient to support the motion.”).

                                         III

      Pike’s various contentions that the district court erred in sentencing him to

52 months’ imprisonment also lack merit. We assume arguendo that the district

court needed to find by clear and convincing evidence that the tax loss suffered by

the government exceeded $1 million to support Pike’s sentence. The government

introduced evidence that, under the most conservative assumptions, Pike owed

more than $1.1 million in tax on his stock sales during 2006. Overwhelming

evidence indicates that Pike sold his own personal shares: his name appeared as the

seller on multiple stock purchase agreements, the money was wired to his

individual bank account, and he treated all of the proceeds that he transferred to

Xyience as retiring his debt to the company and creating a loan payable to himself

on his subsequent tax returns and his personal bankruptcy filing. But even if Pike

sold Xyience stock as a nominee and wrongly retained the proceeds, he still owed

tax on these ill-gotten gains. See James v. United States, 366 U.S. 213, 219

(1961); United States v. George, 420 F.3d 991, 998 (9th Cir. 2005).

      The district court did not abuse its discretion by refusing to hold an

evidentiary hearing on the tax loss calculation. Pike’s new counsel presented


                                          6
affidavits in support of his position and argued them before the court at sentencing.

See United States v. Stein, 127 F.3d 777, 780–81 (9th Cir. 1997) (“Where the

district court allows the defendant to ‘rebut the recommendations and allegations

of the presentence report either orally or through the submission of written

affidavits or briefs,’ Rule 32 does not require an evidentiary hearing.”) (citation

omitted). Finally, the district court fully discharged its duty under Rule 32(i)(3)(B)

to rule on all disputed portions of the presentence report. The court addressed and

rejected Pike’s contention that he sold Xyience treasury stock rather than his

personal stock at every stage of the trial, including sentencing. To the extent that

the district court failed to answer Pike’s minor objections—such as whether he or

his brother purchased an expensive car—there is no need to remand for the district

court to make findings on irrelevant facts that do not affect the length of Pike’s

sentence. See United States v. Saeteurn, 504 F.3d 1175, 1181 (“[A]lthough the

district court did not resolve [defendant’s] objection to his citizenship status as

listed on the PSR, the district court’s failure to do so did not violate Rule

32(i)(3)(B), which is limited to factual disputes which affect the temporal term of

the sentence the district court imposes.”).

      The judgment of the district court is AFFIRMED.




                                           7
