NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0588n.06 No. 11-3201 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. THI ERNO M. DI AL L O, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE SOUTHERN D I STRI CT OF OHI O

Be fore : BOG GS, NORRI S, and KETHL EDGE, Circuit Judges.

PER CURI AM. Thierno M. Diallo, a fede ral pris o n er , ap peals his conviction on seven counts of aiding and assisting in the prepa ration of f

alse tax returns. Diallo was char g ed with fiftee n counts, pled not g uilty , and proce eded to a jury trial. At trial, the g overnme nt introduced evidenc e that Diallo had a tax-prepar at i o n business in addition to his reg ular job, and that he prepa red approximately 750 tax returns for the y ear s 2006 and 2007, mostly for other members of the West Afric an immigra nt community

. The g overnme nt prese nted evidenc e that an unusual perc entag e of the returns prepa red by Diallo resulted in ref unds to the taxpay ers. The taxpay ers involved in the fiftee n char g ed re turns testified that Diallo prepa red their returns, which

wer e false in that they claimed an err oneous filing status, number of depende nts, or b u s i ness expen s es. Diallo prese nted the defe nse that he had prepa red the returns with the information provided by the individuals, and that they had blamed him for t h e fa l s e re t u rns in order to avoid deporta tion. The jury convicted Diallo on seven counts and acquitted him on eig ht counts. He was sentenc ed to twenty -four

months of imprisonment.No. 11-3201 - 2 - On appea l, Diallo argues that the district court err ed in g ranting the g overnme nt’s motion in limine , wh i ch p revented him from arguing that the over 700 returns that he was not char g ed with falsifying w ere in fac t acc urate

. We note initially that counsel did make this argument in his opening statement, as the motion in limine was not filed until afte r the opening statements. There fore , he was not entirely prec luded from raising this argument befor e the jury

. Diallo ar gu ed , in response to the motion, that the g overnme nt ’s s tatistical evidenc e reg arding the num ber of ref unds rec eived by his clients implied that most of the returns he prepa red w ere false, a

nd was ther efor e unduly prejudicia l. He asked to be permitted to argue t h at , b ec ause he was char g ed with only fiftee n counts, the rema inder of the returns he prepa

red must have been a ccur ate. The district court found that the statistical evidenc e

was p re s en t ed for the purpose of showing how Diallo’s tax prepa ration business came to the attention of the I RS. I t ruled that evidenc e that the other returns wer e acc urate would not be rele vant to Diallo’s g uilt on the charg ed counts. A district court’s ruling reg arding the admission of evidenc e or argument is revie wed for an abuse of discretion, and even if an abuse of discretion is found, it will justify reve rsal only if the err or

was not harmless. United States v. Jack son-Randolph , 282 F.3d 369, 376 (6th Cir. 2002). An err or

conce rning admission of evidenc e is harmless unless it is more probable t h an not that the err or materia lly

aff ecte d the ver dict. United States v. Dav is , 577 F.3d 660, 670 ( 6th Cir. 2009). Her e, the district court re lied on United States v. Daulton , No. 06-4593, 2008 WL 116356 (6th Cir. J an. 8, 2008), a simil ar case wher e we conclude d that evidenc e that the defe ndant filed

some acc urate tax returns was irrele vant to whether he was g uilty of falsify ing the returns that he was char g ed with falsifying. We find no abuse of discretion in the district court’s ruling

. Diallo arg ues that his case is distinguishable from Daulton beca use the g overnme nt implied that he had a scheme i n v o l v i n g filing mostly false returns. He argues that the district court err ed in finding that the statistical evidenc e was prese nted to explain how his returns came to the attention of the I RS, when the evidenc e was actua lly used to imply that he was g uilty of a scheme to file mostly false returns. But even if the district court committed err or, the err or was harmless. The jury was able to separ ateNo. 11-3201 - 3 - the evidenc e on eac h count. This is clea r from the fac t that it acquitted Diallo on eig ht of the fiftee n counts char g ed. There fore , the jury was not sway ed by any attempt to imply that Diallo filed mostly false r eturns. Acc ording ly , we a ffirm Dia llo’s conviction.