                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JAN 11 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   16-10010

              Plaintiff-Appellee,                D.C. No.
                                                 5:15-cr-00226-EJD-1
 v.

DOUGLAS STROMS YORK,                             MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Northern District of California
                    Edward J. Davila, District Judge, Presiding

                     Argued and Submitted December 12, 2016
                             San Francisco, California

Before: HAWKINS, BERZON, and MURGUIA, Circuit Judges.

      Douglas York was convicted for falsely impersonating an Internal Revenue

Service (IRS) employee and acting as such, in violation of 18 U.S.C. § 912. York

appeals the district court’s judgment and conviction. We affirm.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      1. Over York’s objections, the district court gave a jury instruction on the

offense that followed the Ninth Circuit Model Jury Instructions for the § 912[a]1

offense. See Model Crim. Jury Instr. 9th Cir. 8.50 (2010).2 Nothing in the

instructions given explicitly required an “intent to deceive.”

      Assuming, without deciding, that the “intent to deceive” incorporated in the

statutory elements of § 912[a], see United States v. Tomsha-Miguel, 766 F.3d

1041, 1049–50 (9th Cir. 2014), requires a finding of subjective intent to deceive

another into changing his course of action on the basis of the impersonated acts,

see United States v. Lepowitch, 318 U.S. 702, 704–05 (1943), the district court’s

failure to instruct on such a requirement was harmless. See United States v.

Munguia, 704 F.3d 596, 603–04 (9th Cir. 2012). “[A] jury instruction error would

not be harmless if a defendant ‘contested the omitted element and raised evidence


      1
        Section 912 defines two separate crimes in a single paragraph, without sub-
paragraphs. We refer to the violation at issue here, the first crime defined in the
Section, as § 912[a].
      2
        We note that Tomsha-Miguel, 766 F.3d 1041, postdates the last revision to
Model Crim. Jury Instr. 8.50. Accordingly, we request that the Ninth Circuit Jury
Instructions Committee examine the instructions for § 912[a] offenses and
determine whether to clarify the model instructions to conform with Tomsha-
Miguel. We direct the Committee’s attention not only to Tomsha-Miguel, 766 F.3d
at 1046–50, for its articulation of the elements and the incorporated “intent to
deceive,” but also to this Court’s discussion in United States v. Swisher, 811 F.3d
299, 315–16 (9th Cir. 2016), of the limits imposed by the First Amendment on the
reach of criminal laws that penalize false speech.
                                           2
sufficient to support a contrary finding.’” United States v. Cherer, 513 F.3d 1150,

1155 (9th Cir. 2008) (emphasis added) (quoting Neder v. United States, 527 U.S. 1,

19 (1999)).

      Here, the government presented evidence that York used a paid “spoofing”

application to select a false return phone number ending in the digits “1040,” and

to modify his voice to sound like a woman. In the voice mail, York announced

himself as Judy Smith “with the IRS, Internal Revenue Service”; stated the call

was related to a tax audit; noted an interest in checking the recipient’s records for

three specific years; requested a return call at the false “1040” phone number he

had selected; and used “we” in reference to a plan to continue pursuing records in

relation to the audit. This evidence was sufficient to establish an intent to deceive

the individual called into changing his course of action, at least by investigating or

calling the number specified.

      York presented no evidence refuting that intent. He argued to the jury that

some of the government’s evidence—the altered voice, which he characterized as

an obvious ruse, and the unprofessional language used in the

message—demonstrated that he did not genuinely attempt to impersonate or act as

an IRS employee.




                                           3
      That the impersonation may have been flawed does not explain why, if he

intended nothing but annoyance to result from the call, York would have changed

his voice to a “woman’s” through a paid service; requested tax records by phone,

as is consistent with legitimate IRS investigations; or provided a call-back number

ending in “1040,” a number that matches not only a common income tax form, but

also the last four digits of a legitimate IRS help line. The recipient’s actual

response—to run an Internet search on the call-back number—was the minimum

York could have intended, given the content and form of the call, yet went beyond

simple annoyance.

      Furthermore, in rebuttal to York’s closing, the government repeatedly

highlighted how evidence that York specifically drew the recipient’s attention to

the 1040 number demonstrated that York “wanted” to bolster an appearance of

call’s legitimacy. Thus, the evidence of York’s subjective intent to deceive was

not only overwhelming but was also specifically in dispute during the closing

arguments.

      Beyond a reasonable doubt, the failure to instruct on a possible intent to

deceive requirement did not affect the verdict.

      2. Similarly, assuming without deciding that the incorporated “intent to

deceive” requires a materially deceptive act, the district court’s failure to instruct


                                            4
on such a requirement was harmless. To be material, York’s deceptive act would

need to have “a natural tendency to influence, or [be] capable of influencing, the

decision of the decisionmaking body to which it was addressed.” United States v.

Gaudin, 515 U.S. 506, 509 (1995) (alteration in original) (quoting Kungys v.

United States, 485 U.S. 759, 770 (1988)). Even if the voice sounded noticeably

altered, the other deceptive aspects of the call described above were clearly capable

of causing a reasonable person to take some action in response—including, as

occurred, an investigation of the call’s authenticity.

                                          * * *

         In sum, whether or not the jury should have been given further instruction on

the elements of the § 912[a] offense and the embedded “intent to deceive”

component, the possible instructional errors were harmless beyond a reasonable

doubt.

         3. York also contests the sufficiency of the evidence as to the “act as such”

element. Whereas the harmlessness standard applied in the previous sections asks

whether it is beyond a reasonable doubt that the jury would have found York guilty

absent possible instructional error, see Munguia, 704 F.3d at 603–04, the

sufficiency standard asks whether “any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt,” Tomsha-Miguel, 766


                                            5
F.3d at 1045 (second emphasis added) (quoting United States v. Nevils, 598 F.3d

1158, 1161 (9th Cir. 2010)). In the sufficiency review, we are additionally

“obliged to construe the evidence ‘in the light most favorable to the prosecution.’”

Id.

      As the evidence demonstrated that possible failure to instruct the jury on the

embedded requirements of the “act as such” element was harmless, the same

evidence is sufficient under the more prosecution-friendly standard here. We

therefore affirm the district court’s judgment and conviction.

      AFFIRMED.




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