                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 21 2009

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 08-50031

             Plaintiff - Appellee,               D.C. No. CR-04-01298-BEN-01

  v.
                                                 MEMORANDUM *
RICHARD D. CORONA,

             Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 08-50032

             Plaintiff - Appellee,               D.C. No. CR-04-01298-BEN-02

  v.

TRACY D. CORONA,

             Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                     Roger T. Benitez, District Judge, Presiding

                     Argued and Submitted December 7, 2009
                              Pasadena, California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: REINHARDT, TROTT and WARDLAW, Circuit Judges.

      Appellants Richard and Tracy Corona appeal their convictions for

conspiracy to defraud the government by impeding the lawful function of the IRS

in violation of 18 U.S.C. §371 and three counts each of willful failure to pay taxes

in violation of 26 U.S.C. §7203. Additionally, Richard Corona appeals his

conviction for tax evasion in violation of 26 U.S.C. §7201. We affirm.

      The Coronas’ first set of challenges concerns the good faith instructions

given by the district court. None of these challenges has merit. First, the Coronas’

contention that the district court instructed the jury that disagreement with the

IRS’s interpretation of the law could not be a good faith defense rests on a

misreading of the instruction actually given. Second, the Coronas’ contention that a

belief that the tax laws are unconstitutional should be a defense to willfulness has

been rejected by the Supreme Court. See Cheek v. United States, 498 U.S. 192, 205

(1991). The Coronas’ third argument, that the district court erred by telling the jury

to disregard the legal arguments in two documents challenging the validity of the

tax laws, and by instructing the jury not to regard as accurate the legal arguments

in another document challenging the IRS’s levy procedures, also fails. Cheek is

explicit in its approval of instructions telling the jury to disregard a defendant’s

view on the validity of the tax laws. See id. at 206. The instruction with regard to


                                            2
the third document at the time of its introduction into evidence properly invited the

jury to consider the effect of the letter on Mrs. Corona while informing the jury

that the letter inaccurately described the law. In any event, there is no reason to

believe that this instruction distracted the jury from its duty to consider the

Coronas’ good faith defense. See United States v. Powell, 955 F.2d 1206, 1213

(9th Cir. 1992).

      The Coronas next challenge six of IRS Officer Carol Rose’s statements as

improper expert testimony by a lay witness. “[T]he distinction between lay and

expert witness testimony is that lay testimony ‘results from a process of reasoning

familiar in everyday life,’ while expert testimony ‘results from a process of

reasoning which can be mastered only by specialists in the field.’” Fed. R. Evid.

701 advisory committee's note (2000 amendments) (quoting State v. Brown, 836

S.W.2d 530, 549 (Tenn. 1992)). None of the challenged statements resulted from

such specialized reasoning or expertise. As none of the challenged statements

constitute expert testimony, defendants’ argument that their convictions must be

reversed because the government failed to notify them that it would be calling

Rose as an expert witness also fails. See Fed. R. Crim. P. 16.

      The Coronas also challenge several of the same statements by Officer Rose

as opinions about ultimate factual questions. They assert, incorrectly, that lay


                                            3
witnesses are not permitted to give such opinions. A lay witness is permitted to

express opinions so long as those opinions are based on his own perception,

helpful to a clear understanding of his testimony or a factual issue in the case, and

not based on scientific, technical or other specialized knowledge. See Fed. R. Evid.

701. If a lay witness’s opinion is otherwise admissible, that it concerns an ultimate

issue of fact does not render it inadmissible. See Fed. R. Evid. 704 (a).

      Of defendants’ various other arguments regarding Officer Rose’s testimony,

only the argument that Rose’s statement concerning her superior’s “concurr[ence]”

with her collection actions was hearsay merits discussion. Defendants are correct

that the statement was hearsay, and not, as the government contends, a verbal act.

To be a verbal act, a statement must “affect[] the legal rights of the parties or [be] a

circumstance bearing on the rights of the parties.” See Fed. R. Evid. 801(c),

advisory committee’s note. However, the district court’s error in admitting the

statement was harmless. That Rose’s IRS supervisors agreed that she was

conducting her collection efforts properly has very little to do with the ultimate

issue in the case: whether the Coronas willfully did not pay their taxes and

conspired to obstruct the tax-collecting function of the IRS. It is, thus, more

probable than not that any error did not materially affect the verdict. See United

States v. Morales, 108 F.3d 1031, 1040 (1997).


                                            4
      Defendants’ third set of contentions challenges the sufficiency of the

evidence underlying their convictions for willful failure to pay taxes from 1998-

2000. First, the Coronas argue that the government was required to show that they

had the ability to pay the taxes assessed on or about the 15th of April 1999, 2000,

and 2001. However, the case that the Coronas rely on to support this argument,

United States v. Andros, 484 F. 2d 531, 533-34 (9th Cir. 1973), was overruled by

United States v. Easterday, 564 F.3d 1004 (9th Cir. 2009), in which this court

stated that Andros was no longer binding precedent and that “wilfulness does not

require the government to prove that a defendant had the ability to meet his tax

obligations.” See id. at 1011.

      The Coronas’ second argument as to sufficiency of the evidence, that they

could not willfully have failed to pay the tax obligations from the previous year

“on or about” the 15th of April of 1998, 1999, and 2000 because at those dates

they did not yet know their tax liability, also fails. The jury had enough evidence to

conclude that the Coronas’ failure to pay taxes was willful, and not a result of not

knowing their tax liability.

      Third, the Coronas contend that Tracy Corona relied on an admittedly

ineffective marital agreement that purported to relieve her of any tax obligation

beyond the taxes owed on her salary, which were withheld by her employer and


                                          5
paid to the government. They argue that because of her reliance on the agreement,

there was insufficient evidence to convict her of willful failure to pay taxes.

However, the jury was free to disbelieve her claim that she relied on the marital

agreement.

      The Coronas’ final two contentions concern the district court’s failure to

give two jury instructions that they did not ask the court to give. First, they contend

that the court should have instructed the members of the jury that in order to

convict Mr. Corona of tax evasion, it was necessary that they unanimously agree as

to the factual basis for his conviction. Second, they contend that the court was

required to instruct the jury that in order to convict on conspiracy, it had to

determine that defendants had committed an overt act within the statute of

limitations.

      The Coronas are correct that the district court should have given both

instructions. First, a specific unanimity instruction is required when there is a

“genuine possibility of juror confusion,” see United States v. Anguiano, 873 F.2d

1314, 1319-20 (1989), and “a genuine possibility of juror confusion exists when it

is possible that some jurors will convict on the basis of one set of facts while others

will convict on the basis of another set of facts,” United States v. Jerome, 942 F.2d

1328, 1331 (1991). Such a possibility existed in the instant case: some jurors may


                                            6
have believed that Mr. Corona’s filing of the 1040 NR forms constituted an

affirmative act of evasion, while others may have disagreed, but thought that his

failure to report income from Park Centre Properties was such an act. Second,

while only a only a single overt act within the statute of limitations is required to

support a conviction for conspiracy, a trial court is required to give a statute of

limitations instruction whenever there is a possibility that a verdict might rest only

on conduct that occurred outside the statute of limitations. See United States v.

Fuchs, 218 F.3d 957, 962 (9th Cir. 2000). Here, the indictment charged and

evidence was presented of overt acts that occurred both within and outside the

statute of limitations.

       Because the Coronas did not request that the court give these jury

instructions, we review for plain error. See United States v. Klinger, 128 F.3d 705,

710 (9th Cir. 1997). On such review, we may, among other limitations, correct an

error only if it both affects “‘substantial rights,’ which typically means that the

error [was] prejudicial,” and “seriously affects the fairness, integrity, or public

reputation of judicial proceedings,” which we have interpreted to mean that not

reversing the error would cause a miscarriage of justice. See United States v.

Anderson, 201 F.3d 1145, 1150 (9th Cir. 2000) (citations omitted); Fuchs, 218

F.3d at 963. To find prejudice in this context, we must perceive a “high probability


                                            7
[that the failure to give the instruction] substantially affect[ed] the jury verdict.”

See Fuchs, 218 F. 3d at 963.

      We do not perceive the requisite likelihood that the instructional errors

affected the jury’s verdict. In terms of the specific unanimity instruction, Mr.

Corona’s defense as to the filing of the 1040NR forms was that he had a good faith

belief that he did not owe taxes to the federal government. It was necessary for the

jury to reject this same assertion of good faith belief in order to find him guilty of

conspiracy. There is no reason to believe that the jury would have reached a

different conclusion about the same belief when considering the tax evasion

charge. Thus, we do not perceive a high probability that the jury would not have

convicted him of tax evasion had it been properly instructed. In terms of the statute

of limitations instruction, the overt acts that the indictment alleged took place

within the statute of limitations were very similar to the overt acts that the

indictment alleged took place outside of the statute of limitations, and evidence

was presented at trial as to each of those acts. There is nothing to suggest a high

probability that the jury accepted the earlier acts as overt acts in furtherance of the

conspiracy but rejected the evidence of later, similar acts. In any event, given the

evidence presented at trial and the jury’s clear rejection of defendants’ asserted

good faith belief that they did not have to pay taxes, which was their central


                                            8
defense on all counts, it would be difficult to regard these errors as having caused a

miscarriage of justice. Accordingly, we find no plain error.




AFFIRMED




                                          9
