NOT FOR PUBLICATION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. C OLE, INC., a corporation;
SONIC LIFE.COM, LLC, a limited liability company, FKA Sonic Health Systems, LLC, No. 14

- 35 581

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, CLER K
U.S. COURT OF APPEAL S2 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). Ev identiary rulings are

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

reversal. Id. W e affirm.

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

because the exhibit risked confusing the issue s 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 c onviction 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 ca ll a rebuttal expert to respon d 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 protec tions 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

. T he district court appropriately acted within its d iscretion 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 72 4, 729 (9th Cir. 2007).4

AFFIRMED.