Unpublished Disposition, 852 F.2d 572 (9th Cir. 1988)

MEMORANDUM^** 

Ernest W. Cramer, Jr. appeals from the judgment entered upon his conviction following a jury trial of the crime of wilful failure to file income tax returns for the years 1980, 1981, and 1981.

Cramer does not contend that insufficient evidence supports the jury's verdict. Instead, he argues that the trial court committed reversible error in (1) refusing to permit him to testify to his understanding of the meaning of the word "voluntary" and in (2) permitting the revenue agent to express his opinion regarding Cramer's understanding of his duty to file an income tax return. We have concluded that the district court did not abuse its discretion in disallowing Cramer to define "voluntary," on further redirect examination, on the ground that such testimony would be outside the scope of recross examination. We agree that the court erred in overruling Cramer's objection to the revenue agent's opinion testimony but conclude that the error was harmless. Accordingly, we affirm.

The entire recross examination of Cramer consisted of the following question and answer:

Q. Mr. Cramer, isn't it true that you got this information that you could volunteer to file or not file from these tax protest seminars you went to?

A. Originally, yes.

The further redirect examination that followed the recross examination set forth above reflects the following colloquy

Q. Did you eventually contact the Internal Revenue Service about if it was voluntary?

A. Yes, I did.

Q And what did they tell you?

A Voluntary complimence--compliance.

Q Thank you. What is [sic] voluntary mean to you, by the way?

MS. KLOSTER: Objection. Beyond the scope.

THE COURT: Overruled. Sustained. Let's move on.

MR. MARKOFF: Okay. I have not [sic] further questions.

After receiving this adverse ruling, Cramer's attorney did not request permission of the court to reopen direct examination of his client in order to present his understanding of the word "voluntary" as used in the phrase "voluntary compliance."

A trial judge has the discretion to determine whether a question is reasonably related to the subject matter of the previous examination by opposing counsel. We will not interfere with a trial judge's ruling on the scope of an examination "unless he has plainly abused his discretion." United States v. Giese, 597 F.2d 1170, 1191 (9th Cir.) cert. denied, 444 U.S. 979 (1979). The subject of the definition of the word "voluntary" was not explored during recross examination.

The district court did not plainly abuse it's discretion in ruling that the challenged question sought to elicit testimony beyond the scope of recross examination.

During the direct examination of Special Agent J. Thomas Hampton, of the Internal Revenue Service, he was asked if he had formed an opinion "whether [Cramer] had an understanding of his duty to file." Defense counsel interposed an objection. The court overruled the objection. The witness responded that Cramer had "a very good understanding" that he had to file a return.

While declining to concede that the admission of this testimony was error, the Government admits in its brief that "the question was inartfully framed to call for the agent's opinion." Special Agent Hampton based his opinion in part upon Cramer's admission that he knew he had a duty to file a tax return. We believe that the court's ruling was erroneous. No foundation was presented to demonstrate that the officer's opinion was admissible under Rule 701 or Rule 702 of the Federal Rules of Evidence. The court's ruling was not prejudicial, however, because Special Agent Hampton's testimony that Cramer admitted that "he knew he had a responsibility [to file] and that he knew he was going to have to pay" was received into evidence without objection. The admission of lay opinion testimony is harmless if it does not affect the substantial rights of a defendant. United States v. Butcher, 557 F.2d 666, 670 (9th Cir. 1977). We have reviewed the entire record in this matter. The admission of the opinion testimony was not prejudicial because the remaining admissible evidence that Cramer wilfully evaded his taxes was overwhelming.

AFFIRMED.