                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAR 14 2017
                   UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   16-10018

              Plaintiff-Appellee,                D.C. No.
                                                 1:14-cr-00826-SOM-1
 v.

ALBERT S.N. HEE,                                 MEMORANDUM*

              Defendant-Appellant.


                   Appeal from the United States District Court
                            for the District of Hawaii
                   Susan Oki Mollway, District Judge, Presiding

                     Argued and Submitted February 24, 2017
                               Honolulu, Hawaii

Before:      KOZINSKI, HAWKINS and BEA, Circuit Judges.


      1. A criminal defendant can suppress evidence from a civil tax audit if he

shows “clear and convincing” evidence of an “affirmative misrepresentation” by

the IRS. United States v. Bridges, 344 F.3d 1010, 1020 (9th Cir. 2003) (citing




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                                                                               page 2
United States v. Tweel, 550 F.2d 297, 299 (5th Cir. 1977)). Because Hee

presented no such evidence, the district court did not err in denying his motions.


      2. The government violates Brady when it suppresses evidence favorable to

the defense, resulting in prejudice. See Strickler v. Greene, 527 U.S. 263, 281–82

(1999). The suppression must be “so serious that there is a reasonable probability

that the suppressed evidence would have produced a different” outcome. Id. at

281. Because evidence of guilt was overwhelming, there’s no reasonable

probability that the allegedly suppressed evidence would have changed the

outcome of Hee’s March 2015 motion, August 2015 motion or trial.


      3. Because Hee failed to properly object below, we review the district

court’s decisions concerning the admissibility of testimony for plain error. See

United States v. Lopez, 762 F.3d 852, 859 (9th Cir. 2014). Under this standard,

Hee must show that any error was not “subject to reasonable dispute.” Id. at 863

(citations and internal quotation marks omitted). But it’s a matter of reasonable

dispute whether questions concerning “the understanding” of Hee’s family

members were intended to elicit hearsay rather than evidence of Hee’s

contemporaneous good faith. Nor did the exclusion of this line of questioning

affect the outcome of the proceeding. Hee’s defense, which lasted five days and
                                                                             page 3
included seventeen witnesses, amply aired the available evidence of his alleged

good faith.


      AFFIRMED.
