United States v. 2020-05-06 | 19-35078 | USA V. MALCOLM BIRDSONG | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MALCOLM WAYNE BIRDSONG; M. W.
BIRDSONG; WAYNES' GROUP,

Defendants-Appellants,

and

MISSOULA COUNTY; ENOCH
INVESTMENTS LLC,

Defendants.

No. 19-35078

D.C. No. 9:17-cv-00072-DWM

MEMORANDUM
*

Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding

Submitted May 4, 2020
**

Portland, Oregon

Before: SCHROEDER, WATFORD, and HURWITZ, Circuit Judges.

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED

MAY 6 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2
Malcolm Wayne Birdsong and Waynes’ Group, Birdsong’s controlled
corporation (collectively “Birdsong”), appeal from a district court judgment in favor
of the government in this suit about unpaid income taxes. Birdsong challenges the
denial of a motion to exclude evidence and the grant of summary judgment for the
government. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
1. The district court did not abuse its discretion in refusing to exclude
evidence that a notice of tax deficiency was sent to Birdsong by certified mail. See
Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1105–06 (9th Cir.
2001) (stating standard of review). The government’s untimely supplemental
disclosure of a copy of the certified mail envelope was harmless.
1
See Fed. R. Civ.
P. 37(c)(1). The government had previously produced another copy of an envelope
sent to Birdsong’s last known address. See R & R Sails, Inc. v. Ins. Co. of Pa., 673
F.3d 1240, 1247–48 (9th Cir. 2012) (approving consideration of “the surprise to the
party against whom the evidence would be offered”). And, the district court granted
Birdsong an extension of time to inspect the supplemental disclosure and respond to
the government’s summary judgment motion. See id. at 1248 (approving
consideration of “the possibility that a continuance would cure prejudice to the
opposing party”). The court also noted that the delay in disclosure was brief and

1
Because the government provided a description of the document “by category
and location,” it was not required to produce a copy of the envelope with its initial
disclosures. See Fed. R. Civ. P. 26(a)(1)(A)(ii).

3
would result in minimal disruption to the court’s schedule.
2. The district court did not err in granting summary judgment in favor of
the government. Because the district court properly considered the certified
envelope mailed to Birdsong’s last known address, the government met its burden
of establishing that notice was sent to the taxpayer. See 26 U.S.C. § 6212(a), (b)(1);
Elings v. Comm’r, 324 F.3d 1110, 1112 & n.5 (9th Cir. 2003). Birdsong proffered
no evidence to the contrary.
AFFIRMED.