                                                                              FILED
                           NOT FOR PUBLICATION                                OCT 22 2012

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-30338

              Plaintiff - Appellee,              D.C. No. 3:10-cr-5221-BHS

  v.
                                                 MEMORANDUM*
SHARON DIANE KUKHAHN, AKA
Sharon Stephenson,

              Defendant - Appellant.



                   Appeal from the United States District Court
                     for the Western District of Washington
                   Benjamin H. Settle, District Judge, Presiding

                     Argued and Submitted October 11, 2012
                              Seattle, Washington

Before: KOZINSKI, Chief Judge, TASHIMA and M. SMITH, Circuit Judges.

       Defendant-Appellant Sharon Kukhahn appeals her jury conviction and

sentence for one count of conspiracy to defraud the Internal Revenue Service (IRS)



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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in violation of 18 U.S.C. § 371, four counts of income tax evasion in violation of

26 U.S.C. § 7201, and one count of corrupt interference with the administration of

internal revenue laws in violation of 26 U.S.C. § 7212(a). We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

      The district court did not err in admitting evidence related to the business

practices of Kukhahn’s alleged co-conspirator because that evidence was relevant

to the existence and scope of the conspiracy. See United States v. Rizk, 660 F.3d

1125, 1131 (9th Cir. 2011). Additionally, the district court did not err in admitting

photographic evidence of the co-conspirator’s office and Kukhahn’s residence

because the photographs were relevant to the charges of conspiracy and tax

evasion. Kukhahn failed to preserve any Rule 403 objection to this evidence, and

its admission does not rise to plain error. See United States v. Gomez-Norena, 908

F.2d 497, 501 n.4 (9th Cir. 1990).

      We reject Kukhahn’s contention that the district court erred in admitting

evidence of her tax returns for tax years preceding the prosecuted period. The

evidence of prior tax returns was relevant to Kukhahn’s willfulness, intent, and

absence of mistake. See United States v. Polk, 550 F.2d 566, 568 (9th Cir. 1977).

We also reject Kukhahn’s contention that the district court judge had an obligation

to recuse himself simply because he presided over a prior civil matter in which

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Kukhahn was the defendant. “[O]pinions formed by the judge on the basis of facts

introduced or events occurring in the course of . . . prior proceedings, do not

constitute a basis for a bias or partiality motion unless they display a deep-seated

favoritism or antagonism that would make fair judgment impossible.” United

States v. Liteky, 510 U.S. 540, 555 (1994). The district judge’s condemnation of

Kukhahn’s crime during the sentencing hearing does not constitute evidence of

deep-seated antagonism. See United States v. Monaco, 852 F.2d 1143, 1147 (9th

Cir. 1988).

      Finally, the district court did not abuse its discretion by failing to grant a

further downward variance from the Guidelines range because the record reflects

“rational and meaningful consideration” of the 18 U.S.C. § 3553(a) factors. United

States v. Ressam, 679 F.3d 1069, 1089 (9th Cir. 2012) (en banc) (quotes omitted).

Kukhahn’s sentence of 84 months—a sentence well below the Guidelines

range—is “sufficient, but not greater than necessary to accomplish §

3553(a)(2)’s sentencing goals.” Id. (citations and quotes omitted).

      AFFIRMED.




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