NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

ALAN L. RODRIGUES, 

Defendant-Appellant.

No. 15-10138 

D.C. No. 

2:09-cr-00022-MMD-GWF-1 

MEMORANDUM*

Appeal from the United States District Court

for the District of Nevada

Miranda M. Du, District Judge, Presiding

Submitted June 6, 2017**

Pasadena, California

Before: GRABER, SACK,*** and MURGUIA, Circuit Judges.

Defendant Alan Rodrigues appeals his convictions for (1) conspiracy to 

defraud the United States by impairing and impeding the Internal Revenue Service 

 

* 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).

*** The Honorable Robert D. Sack, United States Circuit Judge for the 

Court of Appeals for the Second Circuit, sitting by designation.

FILED

JUN 14 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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(“IRS”), in violation of 18 U.S.C. § 371; (2) mail fraud, in violation of 18 U.S.C. 

§ 1341; and (3) aiding in the preparation of materially false income tax returns, in 

violation of 26 U.S.C. § 7206(2). Rodrigues argues that the district court erred in 

denying his motion for judgment of acquittal under Federal Rule of Criminal 

Procedure 29. He also argues that the district court erred in denying his motion for 

a new trial under Rule 33(a). We have jurisdiction pursuant to 28 U.S.C. § 1291, 

and we affirm.

We review de novo a defendant’s challenge to the sufficiency of the 

evidence where, as here, the challenge was properly raised before the district court. 

United States v. Pearson, 391 F.3d 1072, 1075 (9th Cir. 2004). There is sufficient 

evidence to support a conviction if, viewing the evidence in the light most 

favorable to the prosecution, any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 

443 U.S. 307, 319 (1979); United States v. Tomsha-Miguel, 766 F.3d 1041, 1045 

(9th Cir. 2014). The district court’s denial of a defendant’s motion for a new trial is 

reviewed for an abuse of discretion. United States v. King, 660 F.3d 1071, 1076 

(9th Cir. 2011). A motion for a new trial “should be granted only in exceptional 

cases in which the evidence preponderates heavily against the verdict.” United 

States v. Rush, 749 F.2d 1369, 1371 (9th Cir. 1984) (internal quotation marks 

omitted).
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To prove that Rodrigues aided in the preparation of false income tax returns, 

the government must establish that Rodrigues acted “willfully,” that is, that 

Rodrigues “acted with specific intent to defraud the government in the enforcement 

of its tax laws.” United States v. Salerno, 902 F.2d 1429, 1432 (9th Cir. 1990). 

Similarly, to prevail on the mail fraud claim, the government must prove that 

Rodrigues had the “specific intent to defraud.” United States v. French, 748 F.3d 

922, 935 (9th Cir. 2014). “It is settled law that intent to defraud may be established 

by circumstantial evidence.” United States v. Rogers, 321 F.3d 1226, 1230 (9th 

Cir. 2003). 

1. Rodrigues argues that the government failed to prove beyond a 

reasonable doubt that he lacked a good-faith belief that his conduct related to the 

National Audit Defense Network’s (“NADN”) sale of Tax Break 2000 (“Tax 

Break”) was lawful. However, the government presented sufficient evidence for a 

rational jury to find beyond a reasonable doubt that Rodrigues acted willfully and 

with the specific intent to defraud the IRS through his role in NADN’s promotion 

and sale of Tax Break. The testimony of Daniel Porter, Robert Stovall, and Joseph 

Tigani established that Rodrigues knew that Tax Break, as marketed and sold, was 

a tax product offered to improperly take advantage of the disability access tax 

credit, and that the Tax Break program lacked economic substance. Further, 

testimony from Tax Break purchaser Rocky Gannon revealed that Rodrigues 
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personally assured Gannon that he would not have to pay back the promissory note 

he executed in purchasing Tax Break, which strongly suggests that Rodrigues 

knew the Tax Break notes were a sham. Additionally, the memorandum delivered 

to Rodrigues from NADN’s technical department not only warned Rodrigues that 

the Tax Break program would not survive a challenge by the IRS because it lacked 

economic substance, it also expressly warned that NADN and its employees 

involved in the sale of Tax Break could be subjected to criminal penalties. From 

this evidence, a rational juror could find beyond a reasonable doubt that Rodrigues 

acted willfully and with the specific intent to defraud the IRS through his 

participation in NADN’s promotion and sale of Tax Break. See United States v. 

Crooks, 804 F.2d 1441, 1448 (9th Cir. 1986) (concluding that evidence of intent to 

defraud the United States and willfulness were sufficiently established where the 

defendant knew the scheme he promoted involved transactions devoid of economic 

substance); see also United States v. Schulman, 817 F.2d 1355, 1359 (9th Cir.

1987) (“[T]he law is well settled that sham transactions are illegal.”); United States 

v. Clardy, 612 F.2d 1139 (9th Cir. 1980) (affirming conviction under 28 U.S.C. 

§ 7206 for “sham” tax deductions).

2. Although Rodrigues does not dispute that NADN’s sale of Tax Break

constituted a conspiracy to defraud the United States, he argues that the government

failed to meet its burden of proving that he became a member of this conspiracy.
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“Once the existence of a conspiracy is established, evidence establishing beyond a 

reasonable doubt a connection of a defendant with the conspiracy, even though the 

connection is slight, is sufficient to convict him with knowing participation.” United 

States v. Lane, 765 F.2d 1376, 1381 (9th Cir. 1985).

A reasonable juror could conclude that the evidence of Rodrigues’ knowledge 

that Tax Break was a sham, coupled with the specific steps Rodrigues took to 

promote and sell Tax Break through NADN, showed that Rodrigues knowingly and 

voluntarily became a participant in the conspiracy. The evidence established that,

once NADN started selling Tax Break, Rodrigues supervised its sale, including 

approving the sales scripts touting the tax benefits of the program. The evidence also 

showed that Rodrigues was knowingly involved in issuing false Forms 1099 to give 

the impression that the Tax Break websites were earning income, when in fact the 

websites lacked economic substance. This evidence came from Porter’s testimony, 

as well as the documentary evidence showing that Rodrigues acted as the resident 

agent of G&J Eagle Enterprises, Inc., a shell company purporting to provide the 

income claimed by the false Forms 1099. 

3. The district court did not abuse its discretion in denying the motion 

for a new trial on the ground that the jury verdict was against the weight of the 

evidence. The district court permissibly concluded that Porter, the government’s 

primary witness, was credible, and substantial evidence in the record other than
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Porter’s testimony supports the jury’s finding that Rodrigues had the required

knowledge and criminal intent. See United States v. Alston, 974 F.2d 1206, 1211

(9th Cir. 1982) (stating that, in deciding a motion for a new trial, the district court 

is permitted to “weigh the evidence and in so doing evaluate for itself the 

credibility of the witnesses” (internal quotation marks omitted)). 

AFFIRMED.