                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 03 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-10227

              Plaintiff - Appellee,              D.C. No. 1:06-cr-00049-LJO-1

  v.
                                                 MEMORANDUM *
DAVID J. EDWARDS,

              Defendant - Appellant.



                   Appeal from the United States District Court
                       for the Eastern District of California
                   Lawrence J. O'Neill, District Judge, Presiding

                       Argued and Submitted April 15, 2011
                            San Francisco, California

Before: NOONAN and N.R. SMITH, Circuit Judges, and BLOCK, Senior District
Judge.**

       David J. Edwards ('Edwards') appeals the district court's denial of his

motion to suppress grand jury testimony and dismiss the indictment. We have

jurisdiction under 28 U.S.C. y 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 Frederic Blocµ, Senior United States District Judge for
the Eastern District of New Yorµ, sitting by designation.
      Assuming, without deciding, that the district court erred in denying

Edwards's motion to suppress Ledbetter's grand jury testimony, we conclude that

the error was harmless. '[A]s a general matter, a district court may not dismiss an

indictment for errors in grand jury proceedings unless such errors prejudiced the

defendants.' Banµ of Nova Scotia v. United States, 487 U.S. 250, 254 (1988).

Since the testimony and documentary evidence that Special Agent Brian Applegate

presented to the grand jury were clearly sufficient to support the indictment, the

admission of Ledbetter's testimony did not ''substantially [influence] the grand

jury's decision to indict'' and the district court properly declined to dismiss the

indictment. See id. at 256 (quoting United States v. Mechaniµ, 475 U.S. 66, 78

(1986) (O'Connor, J., concurring)).

      AFFIRMED.




                                           2
                                                                             FILED
United States v. Edwards, No. 10-10227                                        MAY 03 2011
Judge N.R. Smith concurring,                                              MOLLY C. DWYER, CLERK
                                                                           U.S . CO U RT OF AP PE A LS

      The district court did not err in refusing to dismiss the indictment or

suppress Ledbetter's testimony, because there was no violation of the tax

practitioner privilege. Congress specified that the privilege 'may only be asserted

in - (A) any noncriminal tax matter before the Internal Revenue Service; and (B)

any noncriminal tax proceeding in Federal court brought by or against the United

States.' 26 U.S.C. y 7525(a)(2) (emphases added). It is obvious that a grand jury

hearing is not a matter before the Internal Revenue Service. Edwards conceded at

oral argument that the grand jury hearing was not a tax proceeding in Federal

court. The privilege was therefore inapplicable.

      There is no reason for the court to extend a common-law privilege in this

case. Congress has expressly provided that a tax practitioner-client privilege

should only apply to a 'noncriminal tax matter before the Internal Revenue

Service' or a 'noncriminal tax proceeding in Federal court.' Id.; Fed. R. Evid. 501

('[T]he privilege of a witness . . . shall be governed by the principles of the

common law,' '[e]xcept as otherwise . . . provided by Act of Congress.')
