United States v. Boitano, No.
14-10139 (8-12-15)(Christen with Schroeder and Ikuta). To convict of making a
false statement in a tax return in violation of 26 U.S.C. § 7206(1), the return must be filed with the IRS. That is, the
return is sent to the IRS who receives it and deems it filed. Such a filing is an element under circuit
precedent. Here, the defendant gave false statements on tax returns to an IRS
agent. The IRS agent suspected fraud and
launched the investigation that lead to the convictions. However, because the
returns were not filed with the IRS, an element was missing. The gov’t argued
on appeal that filing is not required as an element; making a false statement
under perjury is enough. The 9th rejects the argument. Under precedent (Hanson), filing is an element. The convictions are reversed.
United States v. Cook, No.
13-10233 (8-13-15)(Nguyen with Clifton and Rakoff, Sr. D.J.) The 9th affirms the denial of a motion to
suppress. The defendant was suspected of
dealing ecstasy. He was identified by
cooperating witnesses as the supplier.
As the defendant left the house for a rendezvous, he was taken down. His
backpack lay besides him while he was handcuffed. The police did a quick search, found no
weapons, and then did an inventory search later. The defendant challenged the first search
incident to arrest. The 9th affirmed the
district court in finding that the backpack lay within possible reach of the
defendant, even if he was handcuffed, and occurred soon after the time of the
arrest. The 9th also affirmed the denial of an evidentiary hearing as the
defendant did not raise any uncontested facts when he first filed the motion;
he asked for a hearing after his first trial hung.