                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 02-10545
                Plaintiff-Appellee,                D.C. No.
               v.                              CR-00-05432-1-
AURORA TREVINO,                                      REC
             Defendant-Appellant.
                                                 OPINION

         Appeal from the United States District Court
            for the Eastern District of California
          Robert E. Coyle, District Judge, Presiding

                   Argued and Submitted
        February 11, 2004—San Francisco, California

                     Filed January 18, 2005

    Before: A. Wallace Tashima and Richard R. Clifton,
  Circuit Judges, and Ronald B. Leighton,* District Judge.

                Opinion by Judge Leighton;
 Partial Concurrence and Partial Dissent by Judge Tashima




   *The Honorable Ronald B. Leighton, United States District Judge for
the Western District of Washington, sitting by designation.

                                 765
768               UNITED STATES v. TREVINO


                        COUNSEL

Anthony P. Capozzi, Fresno, California, for the defendant-
appellant.

MacGregor W. Scott, United States Attorney, Jonathan B.
Conklin, Assistant U.S. Attorney, Fresno, California, for the
plaintiff-appellee.
                   UNITED STATES v. TREVINO                 769
                          OPINION

LEIGHTON, District Judge:

   Aurora Trevino appeals her convictions for conspiracy to
defraud the United States (18 U.S.C. § 371) and attempting to
evade or defeat a tax (26 U.S.C. § 7201). The convictions
resulted from erroneous tax returns prepared and filed on
Trevino’s behalf by her accountant, Salvador Archuleta, for
the 1989, 1990, 1991, and 1992 tax years. Trevino sought and
was denied a new trial in the district court.

   She appeals, making three arguments: (1) the trial court
erred in failing to instruct the jury that her good faith belief
that her tax returns were proper was a complete defense to the
charges against her; (2) the prosecutor engaged in miscon-
duct; and (3) Jury Instruction number 44 impermissibly cre-
ated a presumption of her knowledge of the contents of her
erroneous 1992 tax return.

                               I.

   Since 1985, Aurora Trevino has owned and operated Auro-
ra’s Flowers, selling silk flower arrangements from stores in
Dinuba and Fresno, California. Since 1989, she has used the
accounting services of Salvador Archuleta. In 1993, the IRS
began investigating Archuleta, and in his office found ver-
sions of Trevino’s 1991 and 1992 tax returns which were dif-
ferent than the returns filed with the IRS for those years. In
1994, the IRS audited Trevino’s 1991 tax return, which con-
firmed that she had made significantly more profit than she
reported to the IRS.

   Trevino was eventually charged with conspiracy to defraud
the United States for her 1989, 1990, 1991, and 1992 tax
returns (Count One), attempting to evade or defeat a tax for
1991 (Count Two), and attempting to evade or defeat a tax for
1992 (Count Three).
770                UNITED STATES v. TREVINO
   Archuleta was charged with falsifying tax returns on behalf
of his clients. He pleaded guilty and his potential sentence of
35 months was reduced to 21 months, in exchange for his
guilty plea and his agreement to cooperate with the govern-
ment in various cases, including Trevino’s.

   At trial, the government introduced evidence that Trevino
owned the Dinuba business location, her residence, and three
rental properties. It also showed that, in connection with a res-
idential loan application, she and her husband had represented
to their bank that they had a gross monthly income of $13,050
and a net worth of $633,142.

   Archuleta claimed that, in 1989, Trevino offered him her
accounting business if he could reduce her tax liability. He
did so for the tax years at issue primarily by falsely increasing
the “cost of the goods” component of her tax calculation on
each return’s Schedule C. This was demonstrated at trial in
part by comparing monthly “profit and loss” statements
Archuleta prepared for Trevino with the profit calculations
incorporated into her various tax returns.

   Schedule C to Trevino’s 1989 return showed a net profit of
$70,445, while the profit and loss statement Archuleta pre-
pared for her showed a net profit of $179,169. The IRS calcu-
lated Trevino’s actual 1989 profit at $197,758.

   For 1990, Schedule C reported a net profit of $65,516,
while Trevino’s profit and loss statement showed a net profit
of $145,844. The IRS calculated her 1990 profit at $132,270.

   Trevino’s 1991 Schedule C reported a net profit of
$22,933, and the profit and loss statement Archuleta prepared
for her showed $198,497. The IRS also introduced a different
return, which was not filed with the IRS, reflecting a net
profit of $86,714. Trevino did not sign her 1991 tax return.
The IRS calculated Trevino’s profit for 1991 at $114,025.
                   UNITED STATES v. TREVINO                  771
   For 1992, Schedule C showed $44,589 and Archuleta’s
profit and loss statement showed $235,396. The IRS calcu-
lated Trevino’s actual profit for 1992 at $162,289.

   Trevino testified that the monthly profit and loss statements
prepared for her were incorrect, but she did not know why.
She testified that she would sign the inaccurate returns with-
out knowing they were false and without question of or expla-
nation by Archuleta; she claimed he “never told her anything”
about the returns or her tax liability. Her primary defense at
trial was that she was “suggestible and dependant” (a position
offered by a clinical psychologist testifying as an expert) and
that she simply did not know that Archuleta was doing any-
thing wrong.

   For his part, Archuleta testified that he did review
Trevino’s returns with her, and that she visited his office reg-
ularly to go over the monthly profit and loss statements. He
testified that typically Trevino would come in and go over
each tax return before it was filed. He specifically testified
that he reviewed his initial version of Trevino’s 1991 tax
return with her, and that she complained that the tax liability
reflected on it was too high. He testified that she instructed
him to reduce it, and that he did so by increasing the cost of
goods sold in that tax year. The revised return, reflecting more
cost and less profit, was filed with the IRS on Trevino’s
behalf. Indeed, even Trevino’s Brief is replete with references
to trial testimony supporting the finding that she was a willing
and active participant in falsely increasing the cost of goods
sold in order to reduce her profit and her tax liability.

   The jury found her guilty on all three counts: conspiracy to
defraud for the 1989-1992 tax years; evading a tax for 1991,
and evading a tax for 1992. Trevino moved for a new trial fol-
lowing the verdict, arguing that the trial court erred in failing
to give a “good faith” defense instruction, and that Jury
Instruction 44 as given was a misstatement of the law. She
also objected to the prosecutor’s claim in his rebuttal argu-
772                  UNITED STATES v. TREVINO
ment that her attorney was “wrong” when he claimed that
Archuleta did not increase the cost of goods sold by
$150,000.00.

  Trevino’s motion for a new trial was denied and she was
sentenced to 10 months in jail. She appeals on all three bases.

                                II.

  1.     Good Faith Defense.

   Trevino argues that the district court erred in failing to
instruct the jury that her good faith belief that her tax returns
were proper was a complete defense to the charges against
her. We review de novo whether a District Court’s instruc-
tions to the jury adequately address a defendant’s theory of
defense. United States v. Smith, 217 F.3d 746, 750 (9th Cir.
2000); United States v. Hooper, 177 F.3d 824, 831 (9th Cir.
1999).

  The government’s burden of proving willfulness

       requires negating [1] a defendant’s claim of igno-
       rance of the law or [2] a claim that because of a mis-
       understanding of the law, he had a good-faith belief
       that he was not violating any of the provisions of the
       tax laws. This is so because one cannot be aware that
       the law imposes a duty upon him and yet be ignorant
       of it, misunderstand the law, or believe that the duty
       does not exist.

Cheek v. United States, 498 U.S. 192, 202, 111 S. Ct. 604,
112 L. Ed.2d 617 (1991) (emphasis added).

   [1] There is, then, a difference between an “ignorance”
defense and a “good faith misunderstanding” defense. In
order to rely on a good faith defense, the defendant must in
fact have some “belief;” either that her own understanding
                   UNITED STATES v. TREVINO                  773
was correct, or that she in good faith relied on the tax advice
of a qualified tax professional. See United States v. Bishop,
291 F.3d 1100, 1106-07 (9th Cir. 2002).

   Trevino did not claim the former, and while she claims she
relied on Archuleta, it is her position that he gave her no
advice or guidance of any sort. Instead, she claimed she did
not know, did not ask, and was not told what Archuletta was
doing. She claimed to be an unknowing and involuntary par-
ticipant in a scheme that benefitted only her.

   [2] The jury was instructed that “an act is done knowingly
if the defendant is aware of the act, and does not act or fails
to act through ignorance, mistake, or accident.” “It is not
reversible error to reject a defendant’s proposed instruction on
his theory of the case, if other instructions, in their entirety,
adequately cover that defense theory.” United States v. Dees,
34 F.3d 838, 842 (9th Cir. 1994) (citing United States v.
Mason, 902 F.2d 1434, 1438 (9th Cir. 1990)). The instruc-
tions allowed Trevino to argue her theory of the case — that
her ignorance (and not her misunderstanding of the law) pre-
cluded her from willingly evading a tax.

   [3] Furthermore, the instruction proposed by Trevino does
not address the good faith defense that Trevino suggests here
— that she relied in good faith on the tax advice of a qualified
tax professional. There was no error in the court’s failure to
give Trevino’s proposed “good faith defense” jury instruction.
See United States v. Shipsey, 363 F.3d 962, 967-968 (9th Cir.
2004).

  2.   Prosecutorial Misconduct.

  Trevino claims that the prosecutor engaged in misconduct
requiring a new trial. She claims the prosecutor misstated the
evidence when he argued in rebuttal that “defense counsel
was wrong in stating that Mr. Archuleta did not increase the
cost of goods sold by $150,000.00.”
774                   UNITED STATES v. TREVINO
   A trial court’s ruling on a claim of prosecutorial miscon-
duct, where the defendant did not interpose an objection, is
reviewed for “plain error.” United States v. Sarno, 73 F.3d
1470, 1496, 1496 (9th Cir. 1995). The inquiry is whether the
allegedly improper behavior, considered in the context of the
entire trial, affected the jury’s ability to judge the evidence
fairly. United States v. McKoy, 771 F.2d 1207, 1212 (9th Cir.
1985).

   [4] Trevino has not articulated precisely what was incorrect
about the prosecutor’s argument. However, even if the prose-
cutor’s view of the evidence on this limited point was wrong,
it cannot be said that his short statement permeated the trial
or had any ability to prevent the jurors from evaluating the
evidence fairly from their own recollections of it.

   [5] Numerous courts have held that where the veracity of
various testimony is at issue, it is fair play to argue that one
side is not telling the truth. See, e.g., Sarno, 73 F.3d at 1496
(“It is hardly surprising that, in a case turning upon the ‘false-
hood’ of certain representations, the prosecution would
attempt to persuade the jury that those representations were in
fact lies.”).

   [6] Trevino has not met and cannot meet the high burden
of demonstrating a “plain error” that seriously affected the
fairness, integrity, or public reputation of judicial proceed-
ings. See United States v. Young, 470 U.S. 1, 15, 105 S. Ct.
1038, 84 L. Ed.2d 1 (1985). Trevino is not entitled to a new
trial based on her claim of prosecutorial misconduct.

  3.   Erroneous Presumption Instruction.

   Trevino’s final argument is that Jury Instruction No. 44
violated her right to due process because it impermissibly cre-
ated a presumption of her knowledge of the contents of her
erroneous 1992 tax return.1 We review de novo whether a
  1
   Trevino argues that the erroneous instruction requires reversal of her
convictions on all counts. The erroneous instruction, however, could not
                    UNITED STATES v. TREVINO                     775
given instruction violates due process by creating an unconsti-
tutional presumption or inference. United States v. Warren, 25
F.3d 890, 897 (9th Cir. 1994).

  [7] Jury Instruction No. 44 was taken from the U.S. Dept.
of Justice Criminal Tax Manual, § 8.04[1] (7th ed. Supp.
2001). It instructed the jury that the defendant’s signature on
a return created a rebuttable presumption that she signed it
and had knowledge of its contents:

     A return or other tax document signed with the
     defendant’s name creates a rebuttal [sic] presump-
     tion that the defendant actually signed it and had
     knowledge of its contents.

   [8] However, 26 U.S.C. § 6064, the statute upon which
Instruction No. 44 was purportedly based, contains no such
presumption. The government concedes that the statute does
not “directly support” the Department of Justice’s Instruction.
26 U.S.C. § 6064 provides instead that an individual’s signa-
ture on the return is prima facie evidence that the return was
actually signed by that individual:

     The fact an individual’s name is signed to a return
     . . . shall be prima facie evidence for all purposes
     that the return . . . was actually signed by him.

26 U.S.C. § 6064. It was therefore error to give the govern-
ment’s Instruction No. 44.

   Not all federal constitutional errors that occur in the course
of a criminal trial, however, require reversal. Sullivan v. Loui-
siana, 508 U.S. 275, 278 (1993). Most are amenable to
harmless-error analysis. Id. at 279; United States v. Montalvo,

have impacted jury deliberations on count two, which solely concerned
Trevino’s 1991 tax return.
776                     UNITED STATES v. TREVINO
331 F.3d 1052, 1056-1057 (9th Cir. 2003). A structural
defect, mandating automatic reversal, occurs when the gov-
ernment has been relieved of its burden to prove the elements
of the crime charged beyond a reasonable doubt.2 Sullivan,
508 U.S. at 281; Gibson v. Ortiz, 387 F.3d 812, 825 (9th Cir.
2004). The erroneous instruction here is subject to harmless
error review because the defendant’s knowledge of the spe-
cific contents of her tax returns is not an element of the
offense and the jury was properly instructed on the govern-
ment’s burden of proof for each element of the offense.3
Where the presumed fact is not necessary for the verdict, we
assess the evidence for alternative facts sufficient to prove the
element for which the presumed fact was proffered. Yates v.
Evatt, 500 U.S. 391, 404 n.9 (1991).

  [9] To sustain a conviction on count one, under the indict-
ment the government was required to prove beyond a reason-
able doubt that Trevino knew her 1992 income tax return
  2
     Alternatively, Trevino argues, citing our recent decision in Martinez v.
Garcia, 379 F.3d 1034 (9th Cir. 2004) that structural error occurred
because she was convicted under two conflicting instructions, one proper
and one erroneous. We do not agree that the instruction at issue here was
“one of two grounds” that supported Trevino’s conviction. Unlike in Mar-
tinez where it was impossible to tell from the verdict form whether he was
convicted on the basis of premeditation (permissible theory) or transferred
intent (impermissible theory), there was no such binary choice between
the two instructions at issue here. Trevino’s argument that an impermissi-
ble presumption creates two theories is incorrect. Cf. Sullivan, 508 U.S. at
281 (noting that even a mandatory presumption that goes to an element of
the offense may by harmless).
   3
     If, as the dissent mistakenly contends, the erroneous presumption
relieved the government of proving an essential element of the crime
charged, the defect is structural; therefore, it is meaningless to engage, as
the dissent appears to do, in harmless error analysis. Sullivan, 508 U.S. at
280. While Sullivan does permit harmless error review for some manda-
tory presumptions, the presumption here is not one where the predicate
fact (signing the return) is so closely related to the presumed fact (knowl-
edge of the return’s contents) that it is the functional equivalent of the pre-
sumed fact. Id. at 281.
                       UNITED STATES v. TREVINO                        777
“understated the amount of income tax due.” And for count
three, the government was required to prove beyond a reason-
able doubt that Trevino knew more federal income tax was
owed than was declared due on her income tax return.4 Ninth
Cir. Crim. Jury Inst. 9.35 (2000). In order to know more fed-
eral income tax was owed than was declared, it is not neces-
sary to know the precise contents of the return that was filed
or have specific knowledge of the amount declared due. A
defendant’s knowledge that she is paying less than the amount
declared may be inferred when the defendant knows her
accountant is following her instructions to significantly
reduce the profits reported to the IRS.

   [10] There was such evidence here. Archuleta testified
repeatedly that Trevino instructed him to reduce her tax liabil-
ity and that he did so by changing the cost of goods sold com-
ponent of the net profit calculation on each return’s Schedule
C. He testified that on at least two occasions, he showed
Trevino what he had done, and she complained to him that the
tax liability was still too high, and instructed him to reduce it
further. This testimony was supported by documentary evi-
dence in the form of numerous profit and loss statements
showing profits many multiples of the amounts ultimately
reported to the IRS, and multiple versions of various tax
returns.
  4
    The Dissent would reverse and remand on both count three (tax eva-
sion for 1992) and count one (conspiracy to defraud for all four tax years).
It reasons that it is not possible to determine from the verdict form
whether the conspiracy conviction was based on the overt act of filing the
1992 return, knowing that it understated the amount of tax due. It argues
that Martinez, 379 F.3d 1034, requires reversal where the conviction
might be based on such an impermissible theory.
   For the reasons articulated with respect to count one, the erroneous
instruction did not relieve the government of its burden of demonstrating
beyond a reasonable doubt that Trevino knew she owed more than the
amount reflected on the 1992 return. It does not, therefore, amount to an
impermissible theory and does not require reversal of Trevino’s conviction
on either count.
778               UNITED STATES v. TREVINO
   [11] Indeed, Trevino was also convicted on count two —
an identical charge to count three but based on her 1991
return — where the government conceded she did not sign the
return and there was no additional evidence she knew the pre-
cise amount declared due. Consequently, it was not necessary
for the government to prove Trevino knew the precise con-
tents of her 1992 return. It was enough that she knew that the
tax return understated the amount of tax which properly
should have been due.

   [12] Therefore, the instruction’s erroneous presumption
that Trevino knew the amount shown on her return did not
relieve the government of any material burden, and was thus
harmless in light of the instructions as a whole. It does not
require a new trial.

  AFFIRMED



TASHIMA, Circuit Judge, concurring in part and dissenting
in part:

   I concur in all of the majority opinion, except Part II.3.
Because I cannot agree with the majority that the admittedly
erroneous “presumption” instruction was harmless, I respect-
fully dissent in part. Because I do not find the error to have
been harmless, I also dissent from so much of the court’s
judgment as affirms the convictions on Counts One and
Three. I agree, however, with the majority that the erroneous
instruction was harmless as to Count Two. I therefore concur
in the affirmance of the judgment of conviction on that count.

   Defendant was charged with two counts of attempting to
evade income taxes, 26 U.S.C. § 7201, and one count of con-
spiracy to defraud the government, 18 U.S.C. § 371, by filing
false income tax returns. The 1992 tax evasion count, Count
Three, was based on the filing of a false return, which was
                      UNITED STATES v. TREVINO                        779
signed by defendant.1 The government secured an instruction
from the district court that “a return . . . signed with the defen-
dant’s name creates a rebuttable presumption that the defen-
dant . . . had knowledge of its [the tax return’s] contents.” The
government now virtually concedes that the instruction is erro-
neous.2

   One of the elements the government was required to prove
beyond a reasonable doubt, to prove a § 7201 offense, is that
“defendant knew that more federal income tax was owed than
was declared due on the defendant’s income tax return.”
Ninth Cir. Crim. Jury Inst. 9.35 (2000) (emphases added).
Thus, an essential part of the required knowledge is knowl-
edge of what was “declared due” on defendant’s return. The
erroneous presumption instruction effectively relieved the
government of its burden of proving that defendant possessed
such knowledge — an essential element of the crime charged.
The majority concedes as much, acknowledging that in order
to sustain a conviction on Count Three, “the government was
required to prove beyond a reasonable doubt that Trevino
knew that more income tax was owed than was declared on
her [1992] income tax return.” Slip op. at 777 (emphasis
added). The majority attempts to evade the force of that con-
cession by arguing that “[i]n order to know more federal
income tax was owed than was declared, it is not necessary
to know the precise contents of the return that was filed or
have specific knowledge of the amount declared due.” Id. at
777. It also argues that “[a] defendant’s knowledge that she
is paying less than the amount declared may be inferred when
   1
     Defendant apparently did not sign her 1991 return on which Count
Two was based.
   2
     Although not making a complete concession, the government concedes
on appeal that “[t]he defense correctly notes that the statutory authority
(26 U.S.C. § 6064) provided in support of Jury Instruction 44 does not
directly support the language of the instruction.” In defense of its having
sought the instruction, the government pleads that it “was obtained
directly from the current version of the United States Department of Jus-
tice Tax Manual. Criminal Tax Manual, 2001 Version, Section 8.04[1].”
780                 UNITED STATES v. TREVINO
the defendant knows her accountant is following her instruc-
tions to significantly reduce the profits reported to the IRS.”
Id. The evidence it points to in support of this assertion, how-
ever, all concerns tax years other than 1992. Moreover, even
if the evidence supported such an inference, the erroneous
instruction told the jury that such evidence need not be
weighed and such an inference need not be drawn — the jury
simply could rely on the presumption. In short, the majority
is able to find harmlessness only by ignoring a required ele-
ment of the offense.

   Given that defendant’s entire defense was that her tax
returns were prepared by her accountant and that she was
ignorant of their contents, the majority’s conclusion has no
grounding in the law or in the record of this case. The govern-
ment offered no evidence to prove that Trevino had knowl-
edge of the contents of her 1992 tax return prepared by her
accountant — all it had to prove this element was the errone-
ous presumption. What we recently said in Gibson v. Ortiz,
2004 WL 2240595 (9th Cir. 2004), applies here:

      When a court gives the jury instructions that allow
      it to convict a defendant on an impermissible legal
      theory, as well as a theory that meets constitutional
      requirements, “the unconstitutionality of any of the
      theories requires that the conviction be set aside.”

Id. at *12 (quoting Boyde v. California, 494 U.S. 370, 379-80
(1990)).

   The majority is also mistaken in concluding that the errone-
ous instruction was harmless as to Count One, the conspiracy
count. It asserts that “[t]he erroneous instruction did not
relieve the government of its burden of demonstrating beyond
a reasonable doubt that Trevino knew she owed more than the
amount reflected on the 1992 return.” Slip op. at 777 n.4.
Respectfully, I cannot agree. One of the overt acts, Overt Act
Six, that the government was required to prove beyond a rea-
                   UNITED STATES v. TREVINO                781
sonable doubt in order to convict defendant of the Count One
conspiracy was that she filed a tax return for 1992 “knowing
that such return was false in that it understated the amount of
income tax due. . . .” Indictment at 5. To paraphrase the
majority’s discussion of Martinez v. Garcia, 379 F.3d 1034
(9th Cir. 2004), “it was impossible to tell from the verdict
form whether [Trevino] was convicted on the basis of [Overt
Acts One through Four] (permissible theory) or [Overt Act
Six (filing the 1992 return)] (impermissible theory)” on Count
One. Slip op. at 776 n.2. Thus, given this “binary choice,” the
error is not harmless as to Count One, and reversal is
required. See id. at 1039.

   Because the giving of Instruction No. 44 was not harmless
error as to Counts One and Three — under any standard —
I would reverse the conviction on those counts, and remand
for a new trial.
