NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

 v.

VARIOUS GOLD, SILVER AND COINS, 

in rem; UP TO $550,542.07 IN FUNDS 

LOCATED IN US BANK ACCOUNT 

ENDING IN 5114, in rem; UP TO 

$98,854.52 IN FUNDS LOCATED IN 

KEY BANK ACCOUNT ENDING IN 

4138, in rem; UP TO $579,181.19 IN 

FUNDS LOCATED IN US BANK 

ACCOUNT ENDING IN 0109, in rem; UP 

TO $10,000.00 IN FUNDS LOCATED IN 

US BANK ACCOUNT ENDING IN 7613, 

in rem, 

Defendants,

and 

JAMES G. COLE, an individual; JAMES 

G. COLE, INC., a corporation; 

SONICLIFE.COM, LLC, a limited liability 

company, FKA Sonic Health Systems, 

LLC, 

No. 14-35581

D.C. Nos. 3:11-cv-01179-SI

3:11-cv-01424-SI

MEMORANDUM*

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

NOV 14 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Claimants-Appellants.

Appeal from the United States District Court

for the District of Oregon

Michael H. Simon, District Judge, Presiding

Submitted November 9, 2016**

Portland, Oregon

Before: McKEOWN, W. FLETCHER, and FISHER, Circuit Judges.

James G. Cole, James G. Cole, Inc., and Soniclife.com, LLC (collectively 

“Cole”) appeal from the district court’s denial of their motion for new trial after a 

jury found in favor of the government in this civil in rem forfeiture action for mail 

and wire fraud. We have jurisdiction under 28 U.S.C. § 1291, and we review for 

abuse of discretion the district court’s denial of the motion for a new trial. Janes v. 

Wal-Mart Stores Inc., 279 F.3d 883, 886 (9th Cir. 2002). Evidentiary rulings are 

similarly reviewed for abuse of discretion and require a showing of prejudice for 

reversal. Id. We affirm.

The district court did not abuse its discretion in excluding Trial Exhibit 261 

because the exhibit risked confusing the issues at trial. Fed. R. Evid. 403. The 

decision of Cole’s employee, Mr. George, in 2004 to decline to manufacture illegal 

 

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).
3 

drugs goes beyond rebutting the government’s theory of fraud. Further, Cole was 

otherwise permitted to testify as to his belief that he did not need to disclose the 

prior conviction because Mr. George had reformed.

Although Dr. Brueggemeyer’s testimony about the FDA’s scientific testing 

probably qualifies as expert testimony, see Fed. R. Evid. 701 advisory committee’s 

note, any error in admitting it as lay testimony was harmless. Cole already had 

notice of the government’s analogue-drug theory through the expert report and trial 

testimony of the government’s timely disclosed expert witness, Dr. Hilmas. Cole 

chose not to call a rebuttal expert to respond to Dr. Hilmas. Dr. Brueggemeyer’s 

testimony stayed within the bounds of what the government said he would testify 

to as a lay witness, and Cole deposed him before trial. Cole has not shown that 

affording the Rule 26 protections likely would have changed the verdict. See 

United States v. Figueroa-Lopez, 125 F.3d 1241, 1247 (9th Cir. 1997).

The government also presented several other fraud theories and supporting 

evidence. The district court appropriately acted within its discretion in concluding 

that, even if there were error on the grounds identified by Cole, a new trial was not 

warranted because the trial was fair and the jury verdict was not against the weight 

of the evidence. See Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007).
4 

AFFIRMED.