NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. STEVEN MARK PYBRUM, Defendant - Appellant. No. 13-50103 D.C. No. 2:11-cr-00955-GAF-1
MEMORANDUM *

Appeal from the United States District Court for the Central District of California Gary A. Feess, District Judge, Presiding

Argued and Submitted May 13, 2014 Pasadena, California Before: WARDLAW and FISHER, Circuit Judges, and DAWSON, District Judge. ** Steven Pybrum appeals his jury conviction and sentence on four counts of willfully subscribing to false income tax returns under 26 U.S.C. § 7206(1). We affirm. 

# FILED
JUN 17 2014 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. ** The Honorable Kent J. Dawson, United States District Judge for the District of Nevada, sitting by designation.1. Sufficient evidence supported Pybrum’s convictions for willfully subscribing, under penalty of perjury, four IRS Form 1040s that he knew were materially false as to the gross receipts from his accounting practice, his royalty income, and his income from the Foundation for Harmony and Happiness (FFHH). See United States v. Boulware , 384 F.3d 794, 810-12 (9th Cir. 2004). Considering the evidence in the light most favorable to the prosecution, a rational jury could find that Pybrum’s accounting business remained materially unchanged both before and after the formation of FFHH, and that, as a trained CPA, Pybrum knew he had to report gross receipts from his accounting business on his Schedule C but failed to do so. See United States v. Stone , 770 F.2d 842, 845 (9th Cir. 1985) (“[A defendant’s] consistent patte rn of unreporting . . . income is sufficient to infer willfulness.”); United States v. Marabelles , 724 F.2d 1374, 1379 (9th Cir. 1984) (“[W]illfulness may be inferred by the trier of fact from all the facts and circumstances of the attempted understateme nt of tax”). Moreover, a rational jury could find that Pybrum willfully failed to report expenditures that FFHH made on his behalf as income on his Form 1040, and that, of the income Pybrum did report, he willfully and falsely characterized nearly all of this income as “royalty” income. 2. The district court’s “assignment of income” instruction was not

erroneous. See United States v. Garcia-Rivera , 353 F.3d 788, 791-92 (9th Cir.
22003). The instruction did not impermissibly presuppose that Pybrum assigned any income nor did it misstate the law. Rather, it described the legal principles that would apply if the jury found that the evidence supported the government’s theory. By its terms, the instruction applied only to “[a] person engaged as a sole proprietor in a business or profession.” The following instruction accurately stated how a nonprofit like FFHH was required to report receipts generated by its activities, consonant with Pybrum’s defe nse theory. The assignment of income instruction did not relieve the governmentof the need to prove willfulness beyond a reasonable doubt, because it did not rest on a debatable proposition of tax law, see Lucas v. Earl , 281 U.S. 111 (1930), and the instructions as a whole confirmed the government’s burden, see Garcia-Rivera , 353 F.3d at 792. Pybrum’s remaining contentions of instructional error are without merit. 3. The district court did not abuse its discretion by admitting evidence of (1) alleged false statements Pybrum made during an interview with an IRS agent; (2) individuals whose names were used in FFHH’s incorporation documents; and (3) a car loan application. Pybrum made his l ack of intent to violate the tax laws a centerpiece of his defense, and FFHH playeda central role in the alleged illegal scheme. The admitted evidence, which “ came in the course of the conduct with which [Pybrum] was charged,” was “probative of his consciousness that his 3conduct was illegal.” United States v. Ramirez-Jiminez , 967 F.2d 1321, 1327 (9th Cir. 1992). The statements in the loan app lication were directly relevant to proving that Pybrum was receiving income from his accounting business even after the formation of FFHH. 4. Pybrum waived any argument that the prosecution was time-barred by failing to raise it below. See United States v. Lo , 231 F.3d 471, 480-81 (9th Cir. 2000). Even if the argument were preser ved, the supplemented record on appeal demonstrates that the statute of limitati ons was tolled by mutual agreement of the parties, making the prosecution timely. 5. Pybrum did not specifically move to compel the production of the grand jury transcripts in the district court, buteven if he had preserved his request, any nonstructural error in the grand jury pr oceedings (like that alleged here) was rendered harmless by the petit jury’s guilty verdicts at trial. See United States v. Navarro , 608 F.3d 529, 539-40 (9th Cir. 2010). The district court did not abuse its discretion by denying Pybrum’s request for the Special Agent’s Report (SAR), because Pybrum failed to demonstrat e why it was discoverable material. See United States v. Williams , 547 F.3d 1187, 1202 (9th Cir. 2008). He also fails to demonstrate why the production of the SAR “would have created a ‘reasonable probability of a different result,’” par ticularly when he already had in his
4possession all of the exhibits that constitu ted the factual information in the report. United States v. Jernigan , 492 F.3d 1050, 1053 (9th Cir. 2007) (quoting Kyles v. Whitley , 514 U.S. 419, 434 (1995)). 6. The district court did not violate Pybrum’s rights under the Confrontation Clause by restricting the scope of his cross-examination of Agent Wing for bias. See United States v. Larson , 495 F.3d 1094, 1100-03 (9th Cir. 2007). Wing’s purportedly inflated calculation of Pybrum’s tax liability and awareness of Pybrum’s success in challenging prior IRS ci vil audits was of limited relevance for demonstrating whether Wing harbored bias, risked confusing the jury and “in no way went to the heart of why [Wing] was testifying or whether he was lying.” United States v. Hayat , 710 F.3d 875, 898 (9th Cir. 2013). Defense counsel wasafforded ample opportunity to probe Wing’s propensity for bias through crossexamination on a host of other subjects. 7. Pybrum’s challenges to his sentence are without merit. First, enhancement of Pybrum’s sentence for obstructing justice was not erroneous, see U.S. Sentencing Guidelines Manual (U.S.S.G.) § 3C1.1, because the district court explicitly found that Pybrum willfully ma de false statements to Agent Wing that had a material impact on Wing’s investigation of FFHH. Although the civil IRS audit took place before a criminal inves tigation had begun, “obstruction during an 5IRS audit justifies enhanc ing a defendant’s sentence for obstruction ‘during the course of the investigation.’” United States v. Yip , 592 F.3d 1035, 1042 (9th Cir. 2010) (quoting U.S.S.G. § 3C1.1 (2001)). Second, the district court did not plainly err in finding that Pybrum’s use of FFHH to funnel funds was a sophisticated means of hiding assets and transactions in a nonprofit shell. U.S.S.G. § 2T1.1(b)(2); see United States v. Jennings , 711 F.3d 1144, 1147-48 (9th Cir. 2013). Relatedly, because Pybrum used his accounting skills to create FFHH and manipulate his own tax reporting “in a manner that significantly facilitated th e commission or concealment of the offense,” U.S.S.G. § 3B1.3 & cmt. n.4, the special skill enhancement was appropriate. Third, applying both the sophisticated means and special skill enhancements to account for similar behavior did not amount to impermissible double counting, because “each invocation of the behavior serves a unique purpose under the Guidelines.” United States v. Holt , 510 F.3d 1007, 1011 (9th Cir. 2007) (quotation omitted); see United States v. Thornton , 511 F.3d 1221, 1227-28 (9th Cir. 2008) (applying this standard). The special skills enhancement recognizes that persons who use “their special skills to facilitate significantly the commission or concealment of a crime . . . generally ar e viewed as more culpable.” U.S.S.G.
6§ 3B1.3 cmt. background. The sophisticated means enhancement, in contrast, addresses “unusually sophisticated efforts” that “decrease the likelihood of detection and therefore warrant an a dditional sanction for deterrence purposes.” U.S.S.G. § 2T1.1 cmt. background. The district court reasonably found that Pybrum’s conduct fell within the scope of both enhancements. AFFIRMED

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