                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            OCT 16 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   16-10191

              Plaintiff-Appellee,                D.C. No. 3:11-cr-00530-VC-2

 v.
                                                 MEMORANDUM*
JESSICA LYNN SODERLING,

              Defendant-Appellant.



UNITED STATES OF AMERICA,                        No.   16-10309

              Plaintiff-Appellee,                D.C. No. 3:11-cr-00530-VC-1

 v.

JAY SCOTT SODERLING,

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Northern District of California
                     Vince Chhabria, District Judge, Presiding

                    Argued and Submitted September 11, 2017
                            San Francisco, California

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: SCHROEDER and TALLMAN, Circuit Judges, and WHALEY,** District
Judge.

      Jay Scott Soderling and Jessica Lynn Soderling appeal their convictions for

conspiring to defraud the United States, in violation of 18 U.S.C. § 371. Mr.

Sodering also appeals his conviction for tax evasion, in violation of 26 U.S.C. §

7201. We affirm.

1.    The absence of jury instructions requiring the jury to find one overt act for

the conspiracy charge and one affirmative act for the tax evasion charge within the

statute of limitations period does not constitute plain error. Defense counsel did

not raise either issue with the instructions before the district court. See United

States v. Kessi, 868 F.2d 1097, 1102 (9th Cir. 1989) (Federal Rule of Criminal

Procedure 30(d) requires a “specific objection” that is “formal, timely, and

distinctly stated”). As a result, “there is no error for an appellate court to

correct—and certainly no plain error.” Musacchio v. United States, 136 S. Ct. 709,

718 (2016).

      We decline to address the Soderlings’ related claim of ineffective assistance

of counsel on direct appeal because the record is insufficiently developed. See



      **
             The Honorable Robert H. Whaley, United States District Judge for the
Eastern District of Washington, sitting by designation.
                                            2
United States v. Jeronimo, 398 F.3d 1149, 1155–56 (9th Cir. 2005), overruled on

other grounds by United States v. Jacobo Castillo, 496 F.3d 947, 957 (9th Cir.

2007) (en banc).1

2.    Sufficient evidence supported the conspiracy conviction. While there was

no direct evidence that Mrs. Soderling knew of Mr. Soderling’s tax liabilities,

“[t]he existence of a conspiratorial agreement or common purpose may be inferred

from the evidence.” United States v. Krasovich, 819 F.2d 253, 255 (9th Cir. 1987).

The Soderlings’ conduct, including Mrs. Soderling opening a second personal bank

account to receive and manage funds for her husband’s business immediately after

a levy on the corporate account, “would be reasonably explainable only in terms of

motivation to evade taxation.” Ingram v. United States, 360 U.S. 672, 679 (1959).

Sufficient evidence also supports the tax evasion conviction, as during the

limitations period, Mr. Soderling made a large number of personal purchases using

corporate money, which is powerful evidence of tax evasion.         Similarly, the

evidence showed the requisite “deceit, craft or trickery, or . . . means that are

dishonest.” Hammerschmidt v. United States, 265 U.S. 182, 188 (1924). Proof of

dishonest means is necessary to convict under 18 U.S.C. § 371, but “[n]either the


      1
        For the same reason, we do not address the Soderlings’ claim of cumulative
error on direct appeal because this claim is based on only two claimed errors, one
of which is the ineffective assistance claim.
                                           3
conspiracy’s goal nor the means used to achieve it need to be independently

illegal.” United States v. Caldwell, 989 F.2d 1056, 1059 (9th Cir. 1993), overruled

on other grounds by Neder v. United States, 527 U.S. 1, 8-9 (1999). Given the

actions discussed above, the jury could have reasonably found that the Soderlings

engaged in dishonest means beyond a reasonable doubt.

3.    There was no plain error due to alleged prosecutorial misconduct at closing

argument. In assessing prosecutorial misconduct, “the issue is whether, considered

in the context of the entire trial, that conduct appears likely to have affected the

jury’s discharge of its duty to judge the evidence fairly.” United States v.

Henderson, 241 F.3d 638, 652 (9th Cir. 2000) (citation omitted). Here, the

prosecutor said that the Soderlings were married at a “key moment” to show that

Mrs. Soderling knew of Mr. Soderling’s tax liabilities, but the Soderlings were not

married at that time. However, this single misstatement did not affect the

Soderlings’ substantial rights. Evidence at trial demonstrated that Mrs. Soderling

was already strongly connected to Mr. Soderling both personally and

professionally by the time of the meeting. Moreover, Mrs. Soderling’s counsel at

closing argument correctly stated that the meeting was “shortly before their

marriage.” Cf. United States v. Flores, 802 F.3d 1028, 1037 (9th Cir. 2015).

      AFFIRMED.


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