United States v. Tara Mazzeo , 592 F. App'x 559 ( 2015 )

FILED
NOT FOR PUBLICATION JAN 23 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10481
Plaintiff-Appellee, D.C. No. 2:12-cr-00337-JCM-
CWH-1
v.
TARA MAZZEO, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted November 18, 2014
San Francisco, California
Before: GOULD and WATFORD, Circuit Judges, and MARTINEZ, District
Judge.**
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Ricardo S. Martinez, U.S. District Judge for the Western
District of Washington, sitting by designation.
Defendant-Appellant Tara Mazzeo appeals her conviction on two counts of
making false statements to a government official in violation of 18 U.S.C. § 1001,
for which she was sentenced to five years of probation without conditions of
confinement. Mazzeo contends that the district judge committed reversible error in
excluding the government agent’s handwritten notes from evidence and that there
was insufficient evidence to support the jury’s verdict. Mazzeo additionally argues
that the district court plainly erred in failing to instruct the jury that the element of
willfulness for a § 1001 crime requires knowledge of unlawfulness. We have
jurisdiction under 28 U.S.C. § 1291. We ordered supplemental briefing regarding
Mazzeo’s challenge to the district court’s jury instruction related to willfulness and
affirm as to all issues raised in the case.
The district court’s exclusion of evidence during trial is reviewed for abuse
of discretion. United States v. Evans, 728 F.3d 953, 959 (9th Cir. 2013). Under this
deferential standard, we consider whether the district court’s evidentiary decision
was based on “consideration of the relevant factors” and whether there was a “clear
error of judgment.” United States v. Soulard, 730 F.2d 1292, 1296 (9th Cir. 1984).
The district judge did not abuse his discretion in determining that the notes had
little, if any, probative value on the basis of Mazzeo’s proffers at trial. Even if in
error, the exclusion neither rose to the level of a deprivation of Mazzeo’s
constitutional rights, cf. United States v. Pineda-Doval, 614 F.3d 1019, 1032-33
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(9th Cir. 2010), nor undermined the weighty evidence offered against Mazzeo so
as to more probably than not affect the jury’s verdict, see United States v.
Gwaltney, 790 F.2d 1378, 1384-85 (9th Cir. 1986).
Mazzeo’s argument, presented for the first time upon appeal, that the
excluded notes were inconsistent with evidence produced at trial is reviewed for
plain error. See Hudspeth v. Comm’r, 914 F.2d 1207, 1215 (9th Cir. 1990). This
argument fails because the distinctions that Mazzeo points to are ones without a
difference. Considering the ample evidence supporting the jury’s verdict and the
jury’s opportunity to fully consider the defense’s theory that Mazzeo understood
the questions differently from the agents even absent the notes, we cannot say that
any possible error seriously affected the fairness and integrity of the proceedings
so as to warrant reversal. See United States v. Romero-Avila, 210 F.3d 1017, 1022-
23 (9th Cir. 2000) (declining to reverse for plain error where prosecutor presented
independent evidence of defendant’s guilt).
Mazzeo’s challenge to the sufficiency of the evidence, preserved by motion
for acquittal, is reviewed de novo. United States v. Carranza, 289 F.3d 634, 641
(9th Cir. 2002). Mazzeo argues that her conviction for false statements cannot be
sustained where the interview on which it was based was not recorded and where
the government failed to otherwise prove the precise language of the questions to
which the jury found her answers false. These arguments fail on several grounds.
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This is not an instance where a single, ambiguous question could have lent
itself to separate interpretations, with respect to one of which the defendant’s
answer was literally true. Cf. United States v. Cook, 489 F.2d 286, 286 (9th Cir.
1973). Rather, the jury was presented with starkly contrasting versions of questions
asked and answers given by Mazzeo. We decline to invade the jury’s exclusive
province to evaluate the credibility of witnesses in order to resolve such
evidentiary conflicts. See United States v. Young, 573 F.2d 1137, 1139 (9th Cir.
1978) (“[I]t is the jury’s exclusive function to weigh the credibility of witnesses,
resolve evidentiary conflicts and draw reasonable inferences from proven facts.”).
We also decline to adopt a new, bright-line rule barring § 1001 prosecutions
absent a recording of the incriminating interview. In false statements cases, the full
context in which the statements were uttered is to be evaluated in determining the
sufficiency of the evidence. See United States v. Sainz, 772 F.2d 559, 562 (9th Cir.
1985). Drawing all reasonable inferences in favor of the government, see United
States v. Corona-Verbera, 509 F.3d 1105, 1117 (9th Cir. 2007), we conclude that a
“rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” United States v. Mincoff, 574 F.3d 1186, 1192 (9th Cir. 2009)
(quoting United States v. Dearing, 504 F.3d 897, 900 (9th Cir. 2007)).
Mazzeo’s challenge to the jury instruction on willfulness is reviewed for
plain error, as there was no objection at trial. United States v. Garrido, 713 F.3d
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985, 994 (9th Cir. 2013). “A plain error that affects substantial rights may be
considered even though it was not brought to the court’s attention.” Fed.R.Crim.P.
52(b). Nonetheless, we cannot correct an error pursuant to Rule 52(b) “unless the
error is clear under current law.” United States v. Olano, 507 U.S. 725, 734 (1993).
That is, for an error to be “plain,” it must be “contrary to the law at the time of
appeal.” Johnson v. United States, 520 U.S. 461, 468 (1997). Mazzeo argues that
the district court’s error in failing to instruct the jury that knowledge of
unlawfulness is required for a § 1001 crime is plain in light of the government’s
concession of error and our unpublished decision in United States v. Ajoku, 584
Fed.Appx. 824 (9th Cir. 2014). We disagree.
As Ajoku addressed a conviction under 18 U.S.C. § 1035, it did not disturb
the longstanding precedent in this circuit that, under 18 U.S.C. § 1001, “willfully”
means only “deliberately and with knowledge.” United States v. Tatoyan, 474 F.3d
1174, 1182 (9th Cir. 2007) (citing Browder v. United States, 312 U.S. 335, 341
(1941)); United States v. Heuer, 4 F.3d 723, 732 (9th Cir. 1993). Mazzeo points to
no intervening authority displacing this holding. Whether or not the “willfulness”
element for a § 1001 crime should be altered is a question for another day. As the
district court’s error, if any, is not obvious under current law, Mazzeo’s conviction
must stand.
AFFIRMED.
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