United States of America v. Hugh Leslie Baras

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HUGH LESLIE BARAS,
Defendant - Appellant.
No. 14-10396
D.C. No. 4:11-cr-00523-YGR-1
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding
Argued and Submitted December 8, 2015
San Francisco, California
Before: PAEZ, CLIFTON, and OWENS, Circuit Judges.
Hugh Baras appeals his jury conviction and sentence for theft of
Government property, in violation of 18 U.S.C. § 641, and five counts of tax
evasion, in violation of 26 U.S.C. § 7201. We affirm.
FILED
DEC 14 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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The district court did not violate Baras’s right to present a defense and did
not abuse its discretion by excluding evidence of Baras’s belated tax payments.
Baras’s defense was only limited in that he could not attempt to prove his
medication-induced diminished capacity defense through evidence of belated
payment of taxes. Evidence of late tax payments made while awaiting prosecution
is irrelevant. United States v. Pang, 362 F.3d 1187, 1194 (9th Cir. 2004). Were
the rule otherwise, tax evaders could attempt to “avoid criminal prosecution simply
by paying up after being caught.” Id. Excluding evidence under Fed. R. Evid.
403, in this instance evidence regarding belated payment of taxes, is permitted to
avoid a risk of confusing the issues and confusing the jury. See Holmes v. South
Carolina, 547 U.S. 319, 326 (2006).
Although the facts in the current case are not identical to the facts in Pang or
other cases relied upon by the district court, Baras has not established that the
factual differences justify a contrary result. Evidence of late tax payments is not
particularly probative that Baras’s prior failure was the result of medication.
The Government did not commit prejudicial misconduct by offering new
arguments in rebuttal. By arguing that Baras’s home was still in disrepair, the
Government was responding to Baras’s defense that his mental capacity had been
temporarily affected by medications. The argument regarding Baras’s opportunity
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to avoid taxes was included in opening statements when the Government discussed
Baras’s receipt of W-2 forms by his employers.
The jury instructions encompassed Baras’s mental disorder defense. “[I]t is
not reversible error to reject a defendant’s proposed instruction . . . if other
instructions, in their entirety, adequately cover that defense theory.” United States
v. Mason, 902 F.2d 1434, 1438 (9th Cir. 1990), overruled on other grounds by
Dixon v. United States, 548 U.S. 1 (2006). The instructions stated that the jury
could acquit if it found that Baras suffered from diminished capacity as a result of
prescription drugs. An added reference to Baras’s alleged mental disorder would
not have meaningfully furthered this defense because the mental disorder defense
was based on Baras’s use of medications.
We find highly troubling the treatment by the U.S. Attorney’s Office of the
contacts and attempted contacts by a juror with an assistant U.S. Attorney. We are
surprised both that the assistant U.S. attorney who was the target of the contacts
did not promptly notify his superiors or those in the office responsible for the
prosecution of this case, and that those responsible did not promptly notify the
district court and defense counsel. A delay of six weeks is especially hard to
understand, and we advise the office that it would be prudent to treat any such
episode in the future differently. Nonetheless, we agree with the assessment of the
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district court that Baras was not prejudiced and that a new trial was not required.
Juror misconduct has been held to warrant reversal in cases involving “extended
external influences on jurors or confirmed juror bias,” neither of which is present
here. Henry v. Ryan, 720 F.3d 1073, 1086 (9th Cir. 2013) (emphasis in original).
While the juror did disobey the court’s instruction to refrain from communicating
with anyone, the juror’s communications were fairly found to have been innocuous
and unrelated to the merits of the case.
The evidence at trial did not constructively amend the indictment, nor did it
improperly vary from the allegations in the indictment. The indictment did not
specify a particular theory of tax evasion. In any event, the evidence of Baras’s
failure to report the coin sales was properly introduced as probative of his intent,
not as an independent basis for his conviction.
The district court correctly declined to group the two sets of offenses against
the IRS and the Social Security Administration, under U.S.S.G. § 3D1.2, because
the offenses represented two separate and distinct harms. They also involved
distinctly different conduct. Although both the IRS and the SSA are part of the
federal government, they are separate agencies and were victimized in different
ways.
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The district court did not err in holding that Baras’s payments did not
require an acceptance of responsibility reduction. Whether Baras accepted
responsibility for his crime was a factual finding that this court reviews for clear
error. United States v. Garrido, 596 F.3d 613, 617 (9th Cir. 2010). There was no
clear error here. Baras disputed his guilt and did not demonstrate contrition.
The district court did not err in ordering forfeiture of funds. Criminal
forfeiture is separate from restitution, which serves an entirely different purpose.
Accordingly, this court has held that “defendants may be required to pay restitution
and forfeit the same amounts.” United States v. Newman, 659 F.3d 1235, 1241
(9th Cir. 2011) (quotation omitted). This is especially true in cases in which “a
defendant is convicted of a crime that provides for forfeiture as part of the
penalty.” United States v. Carter, 742 F.3d 440, 446 (9th Cir. 2014).
AFFIRMED.
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