Unpublished Disposition, 928 F.2d 409 (9th Cir. 1991)

MEMORANDUM^* 

Gutierrez appeals his conviction for conspiracy, mail fraud, wire fraud, and subscribing a false federal income tax return. All charges arose out of a scheme in which Gutierrez and his brother¹  claimed to have developed processes to make synthetic wood and cement. Through presenting false information, the brothers won various investors for their scheme. They also convinced banks to loan them money by presenting false financial information. Finally, they presented false information on both their personal income tax returns and on the tax returns of the companies they created as vehicles for their scheme.

Gutierrez argues that the denial of his motion for a bill of particulars denied him reasonable notice of the charges he would be required to meet at trial. We review a denial of a motion for a bill of particulars under an abuse of discretion standard. United States v. Calabrese, 825 F.2d 1342, 1347 (9th Cir. 1987). "The purposes of a bill of particulars are to minimize the danger of surprise at trial and to provide sufficient information on the nature of the charges to allow preparation of a defense. These purposes are served if the indictment itself provides sufficient details of the charges and if the Government provides full discovery to the defense." United States v. Mitchell, 744 F.2d 701, 705 (9th Cir. 1984). A defendant "is not entitled to know all the evidence the government intends to produce but only the theory of the government's case." United States v. Ryland, 806 F.2d 941, 942 (9th Cir. 1986), cert. denied, 481 U.S. 1057 (1987). Finally, appellant must show that he was prejudiced in some way by the denial of the bill of particulars. See Mitchell, 744 F.2d at 705; Calabrese, 825 F.2d at 1347.

Gutierrez suffered no prejudice. The government had filed a trial memorandum that described the evidence on which the government intended to rely and that included a witness list. The government also provided the defendants with a statement before trial showing the sums the government alleged defendants to have received and not reported from various sources. Given the information that the government did provide, and given that the government is not required to provide all the evidence it intends to produce at trial, the district court did not abuse its discretion in denying Gutierrez's motion for a bill of particulars.

II. Insufficient Evidence with Regard to Fraud

We review sufficiency of the evidence arguments by asking "whether, when viewed in the light most favorable to the government, the evidence adduced at trial was sufficient for a rational jury to find [the defendant] guilty beyond a reasonable doubt." United States v. Mundi, 892 F.2d 817, 820-21 (9th Cir. 1989).

A. Was the Scheme Proved Substantially as Alleged?

Gutierrez argues that a defendant cannot be convicted of mail or wire fraud "unless the scheme to defraud is proved substantially as alleged." The only authority Gutierrez cites for this proposition is one 8th Circuit case from 1906. Assuming that this proposition is good law in this circuit, Gutierrez has not shown that the government failed to prove the scheme substantially as alleged. There is no basis for this claim.

Gutierrez argues that the government failed to prove that he acted with fraudulent intent. We will not here reiterate the government's summary of the evidence presented to show intent. Viewed in the light most favorable to the government, the evidence was more than sufficient for a rational jury to find beyond a reasonable doubt that Gutierrez acted with fraudulent intent.

A variance between the indictment and the proof at trial does not require reversal unless it affects the substantial rights of the parties. United States v. Anderson, 532 F.2d 1218, 1227 (9th Cir.), cert. denied, 429 U.S. 839 (1976). Gutierrez argues that a fatal variance occurred with respect to counts 32 and 33 because "the evidence showed that the alleged victim was not even in the state to or from which the alleged telephone call was placed.... The variance between the proof and the indictment creates reasonable doubt that the crime charged occurred substantially as alleged." The government concedes that the telephone calls at issue in these counts were made between San Diego, California and Casper, Wyoming, rather than between San Diego and Decatur, Illinois, as alleged. However, the call was still a wire communication transmitted in interstate commerce for the purpose of executing a scheme to defraud, as alleged in the indictment. Gutierrez has failed to show a material distinction or that the misnamed state affected his substantial rights. Cf. United States v. Von Stoll, 726 F.2d 584, 587 (9th Cir. 1984) (no fatal variance where indictment specified that defendant took money from one partner, while proof showed he got it from the other partner). We reject this claim.

Gutierrez argues that the government at trial proved only his gross receipts; he claims that the indictment, by contrast, placed in issue his "total income," which would require proof of receipts minus allowable deductions. He argues that because of this variance, he was not given reasonable notice of the charges he had to meet at trial.

Gutierrez's contention has no merit because the indictment did not differ from the proof. The indictment alleged that Gutierrez falsely reported the amount of his total income because he had received "substantial income" in addition to the amount listed on his returns as his "total income." The only reference to "total income" was to the amount Gutierrez had in fact listed as "total income" on his returns; the amount of "total income" was not at issue in the charge. Rather, the indictment alleged that Gutierrez had received "substantial income" in addition to that amount. Thus, the allegation did not require the government to prove Gutierrez's "total income." For this reason, the fact that the government did not prove "total income" at trial does not constitute a variance between the indictment and the proof.

IV. Sufficiency of the Evidence Regarding "Total Income"

Gutierrez was charged with violating 26 U.S.C. § 7206(1). Section 7206(1) makes it a felony if any person " [w]illfully makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter ..." "The existence of a tax deficiency is not an element of this crime." United States v. Marabelles, 724 F.2d 1374, 1380 (9th Cir. 1984). Thus, the government need not prove the amount of the defendant's taxable income. The government need only prove that the defendant did not believe the return to be completely true. Gross receipts are a "material matter" that must be reported, regardless of whether deductions exist to offset those receipts. See United States v. Taylor, 574 F.2d 232, 236 (5th Cir.) (amount of gross receipts is a material matter within the definition of section 7206(1)), cert. denied, 439 U.S. 893 (1978).

Gutierrez claims that the government was required to prove the amount of his taxable income, not just the amount of his gross receipts. This argument misstates the law. A defendant is guilty of violating section 7206(1) if he knowingly fails to report an amount of income. This is true even if the defendant knew that he was also failing to report deductions that would offset that income, such that his total amount of taxable income was not underreported. Gutierrez's argument on this issue has no merit.

Gutierrez argues that the trial court erroneously allowed Thomas Foster, an expert witness, to testify on "an ultimate issue in the case embracing legal conclusions." Gutierrez also argues that the trial court abused its discretion in denying his motion for a mistrial based on Foster's testimony.

"The decision to admit expert testimony is committed to the discretion of the court and will not be disturbed unless manifestly erroneous." United States v. Kinsey, 843 F.2d 383 (9th Cir.), cert. denied, 487 U.S. 1223 (1988). Federal Rule of Evidence 704(a) provides that if opinion testimony is otherwise admissible, it is "not objectionable because it embraces an ultimate issue to be decided by the trier of fact." Rule 704(b) provides that "No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto." Thus, even if the expert did testify as to the ultimate issue of the commission of fraud, this would be objectionable only if the expert testified as to Gutierrez's mental state.

Foster was a government revenue expert testifying as an expert witness on income tax matters. In one line of questioning, the prosecution asked Foster if a person receiving a loan was required to report the loan as income. In response to a hypothetical, Foster explained that the proceeds of a bona fide loan would not be includable in gross income for federal income tax purposes. In response to another hypothetical, Foster explained that where a borrower fully intended to repay a loan, the loan would not be taxed as income. By contrast, Foster explained, a purported loan would be characterized as income if it was obtained without the intent to repay it. Since one of the issues in the case was whether Gutierrez had violated the tax laws by failing to report as income money purportedly obtained as loans, it was relevant for Foster to explain to the jury when money characterized as a loan must be reported as income. Foster stated no conclusion as to the ultimate issue about whether Gutierrez had or had not committed fraud. He merely explained that a pre-formed intent not to repay a loan would cause the proceeds to be treated as gross income. The district court did not err in permitting Foster's testimony.

"A federal judge has broad discretion in supervising trials, and his or her behavior during trial justifies reversal only if it abuses that discretion. A trial judge is more than an umpire, and may participate in the examination of witnesses to clarify evidence, confine counsel to evidentiary rulings, ensure the orderly presentation of evidence, and prevent undue repetition." United States v. Laurins, 857 F.2d 529 (9th Cir. 1988), cert. denied, 109 S. Ct. 3215 (1989).

Gutierrez argues that the record is replete with examples of bias against the defense by the trial court. Based on our review of the transcript, we hold that the district court did not exhibit bias in its conduct of the trial.

"The customary procedure for claims of ineffective assistance of counsel in federal criminal trials is by collateral attack on the conviction under 28 U.S.C. § 2255." United States v. Johnson, 820 F.2d 1065, 1073 (9th Cir. 1987). This procedure permits the petitioner to present new facts in support of his claim. Id. Because a section 2255 proceeding would be a more appropriate forum for Gutierrez's ineffective assistance of counsel claim, we dismiss this claim without prejudice.

Gutierrez argues a number of additional points, but none merits discussion, much less reversal.

AFFIRMED.