United States v. Van Brollini ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 15 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10376
Plaintiff-Appellee, D.C. Nos.
4:13-cr-00574-CKJ-BGM-1
v. 4:13-cr-00574-CKJ-BGM
VAN RAYMOND BROLLINI,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted August 8, 2022
San Francisco, California
Before: RAWLINSON, BADE, and BRESS, Circuit Judges.
Concurrence by Judge RAWLINSON.
Van Raymond Brollini appeals his convictions, following a jury trial, for (1)
tax evasion, 26 U.S.C. § 7201; (2) corrupt interference with tax administration, id.§ 7212(a); and (3) failure to file income tax returns, id. § 7203. We have jurisdiction
under 28 U.S.C. § 1291. We remand for the limited purpose of allowing the district
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
court to conform its written judgment to its oral pronouncement. We otherwise
affirm.
1. The district court did not commit reversible error in not instructing the
jury on Counts 1 and 2 that the government had to prove at least one act of evasion
or interference within the limitations period. Because Brollini did not object with
adequate specificity to the jury instructions on this basis at trial, we review for plain
error. See United States v. Anderson, 741 F.3d 938, 945 (9th Cir. 2013). To
demonstrate plain error, Brollini “must show that (1) there was an error, (2) the error
is clear or obvious, (3) the error affected his substantial rights, and (4) the error
seriously affected the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Johnson, 979 F.3d 632, 636 (9th Cir. 2020).
Even assuming Brollini has satisfied the first two prongs of plain-error review,
he has not established the third or fourth prongs. The government introduced
extensive evidence that Brollini engaged in acts of evasion and interference within
the limitations period, such as using Money Mart to prevent the IRS from accessing
his funds, filing paperwork to renounce his American citizenship, attempting to file
a lawsuit against an IRS officer, and presenting false promissory notes to the IRS.
Indeed, Brollini conceded he did all these things, and argued only that he acted in
good faith. Given the evidence presented at trial, there is no reasonable probability
that the jury verdict was substantially affected by any failure to give the instructions
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Brollini now claims were necessary. See United States v. Singh, 979 F.3d 697, 728
(9th Cir. 2020). For the same reasons, even under an abuse of discretion standard,
the district court’s alleged error was harmless. See United States v. Miller, 953 F.3d
1095, 1103 (9th Cir. 2020).
2. The district court did not err by instructing the jury on Count 2 that the
government had to prove that Brollini interfered with a “tax related proceeding,”
rather than Brollini’s preferred formulation of a “targeted administrative action such
as an investigation or audit.” Because Brollini preserved this objection, we review
de novo whether the district court’s instructions correctly stated the elements of the
offense. See United States v. Saini, 23 F.4th 1155, 1160 (9th Cir. 2022).
The instructions required the jury to find that “the IRS was conducting a tax
related proceeding or action involving the defendant,” and that “the defendant knew
about the proceeding or action” before he interfered or attempted to interfere with it.
The district court’s instructions on Count 2 sufficiently accounted for the fact that
under § 7212(a), there must be a “‘nexus’ between the defendant’s conduct and a
particular administrative proceeding, such as an investigation, an audit, or other
targeted administrative action.” Marinello v. United States, 138 S. Ct. 1101, 1109
(2018) (quoting United States v. Aguilar, 515 U.S. 593, 599 (1995)). Regardless,
any error was harmless given the overwhelming and uncontroverted evidence that
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Brollini knew of a targeted collection proceeding and took steps to interfere with it.
See Saini, 23 F.4th at 1160, 1164–65.
3. The district court did not abuse its discretion by limiting its
supplemental instruction on good faith to those counts requiring a willful mental
state, and not extending that instruction to Count 2, which required a corrupt mental
state. See United States v. Southwell, 432 F.3d 1050, 1052 (9th Cir. 2005) (standard
of review); see also United States v. Workinger, 90 F.3d 1409, 1414 (9th Cir. 1996)
(defining “corruptly” for purposes of § 7212(a)). The existing jury instructions for
Count 2 were sufficient to enable the jury to acquit if it concluded that Brollini had
acted based on a good-faith misunderstanding of federal tax law. Moreover, the jury
ultimately convicted Brollini on each count requiring a willfulness mens rea, so there
is no reason to think the outcome on Count 2 would have been different had the
supplemental instruction extended to the Count 2 offense. See United States v.
Rubio-Villareal, 967 F.2d 294, 296 n.3 (9th Cir. 1992) (en banc) (harmless error
standard).
4. The district court did not abuse its discretion by precluding evidence
that an unrelated third party, Tommy Cryer, had been acquitted of federal tax evasion
charges. See United States v. Whittemore, 776 F.3d 1074, 1077 (9th Cir. 2015)
(standard of review). A district court’s weighing of evidence under Federal Rule of
Evidence 403 is entitled to “considerable deference.” United States v. Bussell, 414
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F.3d 1048, 1059 (9th Cir. 2005) (quoting United States v. Hankey, 203 F.3d 1160,
1166–67 (9th Cir. 2000)). Here, the district court did not abuse its discretion in
concluding that any probative value associated with Cryer’s acquittal was
substantially outweighed by the dangers of unfair prejudice or confusing the issues.
Brollini had already significantly resisted IRS collection proceedings before
becoming aware of Cryer’s acquittal. In addition, as the district court determined,
Brollini was already allowed to present a substantial amount of evidence about how
he formed the beliefs at the heart of his good-faith defense. And the reasons for
Cryer’s acquittal were unclear, which could have led to unmanageable collateral
inquiries at trial. Regardless, given the extensive evidence presented at trial, it is
“more probable than not that the error did not materially affect the
verdict.” Morales, 108 F.3d at 1040.
5. Nor did the district court commit reversible error in permitting evidence
that Wayne Hicks, the founder of a warehouse bank (MYICIS) that Brollini used to
shield funds from the IRS, pleaded guilty to conspiring to defraud the IRS. Such an
error does not warrant reversal if it is more probable than not that the error did not
materially affect the verdict. United States v. Morales, 108 F.3d 1031, 1040 (9th Cir.
1997) (en banc). Even assuming the district court exceeded its “wide discretion in
determining the admissibility of evidence under the Federal Rules,” United States v.
Abel, 469 U.S. 45, 54 (1984), any error was harmless in light of the overwhelming
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evidence of Brollini’s guilt. Similarly, even if the district court improperly admitted
hearsay evidence in this regard, “we may consider that error harmless ‘unless we
have grave doubt whether the erroneously admitted evidence substantially affected
the verdict.’” United States v. Morales, 720 F.3d 1194, 1199 (9th Cir. 2013)
(quoting United States v. Alvarez, 358 F.3d 1194, 1214 (9th Cir. 2004)). We have
no such doubt here.
6. The district court did not abuse its discretion by permitting limited
cross-examination about whether Brollini agreed with the jury instructions. Nor did
the government’s questioning rise to the level of prosecutorial misconduct. See
United States v. Christophe, 833 F.2d 1296, 1300–01 (9th Cir. 1987) (reversal
unjustified unless prosecutorial misconduct “denies the defendant a fair trial”). The
questioning did not call for Brollini to testify to a legal conclusion, see Fed. R. Evid.
702, but rather to testify to his own continued disagreement with federal tax law.
And in this case, the district court acted promptly to limit the questioning once it
began, did not permit follow-up questions, and allowed Brollini to further explain
his answer to the questioning on re-direct. There is no basis to conclude that the
questioning regarding the jury instructions materially affected the verdict. Morales,
108 F.3d at 1040.
7. Brollini’s convictions need not be reversed due to cumulative error
because he has not established anything more than marginal trial error, and nothing
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so cumulatively prejudicial as to require reversal. See United States v. de Cruz, 82
F.3d 856, 868 (9th Cir. 1996).
8. The district court properly denied Brollini’s motion to dismiss Counts
1 and 2. The counts alleged violations of 26 U.S.C. §§ 7201 and 7212(a), and both
are continuing offenses under United States v. Murphy, 824 F.3d 1197, 1206 (9th
Cir. 2016). Murphy also confirms that neither count was duplicitous. See id.Brollini’s reliance on dicta in Norwitt v. United States, 195 F.2d 127, 131–33 (9th
Cir. 1952), is not to the contrary. Nor was the district court required, in these
circumstances, to provide a special unanimity instruction. See Schad v. Arizona, 501
U.S. 624, 632 (1991) (plurality opinion); United States v. Kim, 196 F.3d 1079, 1083
(9th Cir. 1999).
9. The district court did not err by ordering Brollini to pay the costs for
Michael Thackray’s testimony about Brollini’s use of Money Mart because the
testimony was not “exclusive[]” to Count 7 (of which Brollini was acquitted).
United States v. Bussell, 504 F.3d 956, 968 (9th Cir. 2007).
10. The parties agree that a remand is necessary so that the district court
can modify its written judgment to conform to its oral pronouncement regarding the
Special Condition 3 term of Brollini’s supervised release. United States v.
Hernandez, 795 F.3d 1159, 1169 (9th Cir. 2015) (“When there is a discrepancy
between an unambiguous oral pronouncement of a sentence and the written
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judgment, the oral pronouncement controls.” (quoting United States v. Fifield, 432
F.3d 1056, 1059 n.3 (9th Cir. 2005))). The matter is remanded to the district court
solely for this limited purpose.
AFFIRMED IN PART AND REMANDED IN PART.
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FILED
United States v. Brollini, Case No. 20-10376
AUG 15 2022
Rawlinson, Circuit Judge, concurring in the result:
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur in the result.
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