United States Court of Appeals

For the First Circuit

No. 06-1902

UNITED STATES,

Appellee,

v.

RICHARD HATCH,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

 Boudin, Chief Judge,

Campbell, Senior Circuit Judge,

Howard, Circuit Judge.

Michael Louis Minns with whom Enid M. Williams and the Law

Office of Michael Louis Minns P.L.C. was on brief for appellant.

Donald C. Lockhart, Assistant United States Attorney, with

whom Robert Clark Corrente, United States Attorney, Andrew J. Reich

and Lee H. Vilker, Assistant United States Attorneys, were on brief

for appellant.

February 1, 2008
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CAMPBELL, Senior Circuit Judge. Appellant-defendant

Richard Hatch, the first winner of the CBS reality tv show

"Survivor," appeals from his convictions and sentence on three

counts of filing false tax returns, in violation of 26 U.S.C. §§

7201 and 7206(1), after a jury trial in the United States District

Court for the District of Rhode Island. 

Hatch makes four arguments on appeal: (1) that the

district court violated his Sixth Amendment rights by curtailing

Hatch's explanation of why he believed the show's producers had

paid the taxes on his "Survivor" winnings; (2) that, in a variety

of ways, the court improperly limited the defense's right to crossexamine; (3) that the court wrongly allowed the government to use

what Hatch calls "unqualified experts" while excluding some of the

testimony of Hatch's own expert; and (4) that his sentence was

unreasonably harsh. After reviewing the record and the arguments,

we affirm the convictions on all three counts and the sentence.

Background

On September 8, 2005, Hatch was indicted for related tax

and fraud crimes.

Count 1 alleged that Hatch had filed a tax return for the

year 2000 in which he falsely stated that he had negative income

and was owed a $4,483 refund, and that he willfully failed to

declare three sources of income: (a) the over one million dollars

he won on "Survivor;" (b) $18,708 in rental income from property he
An S-corporation is a flow-through corporation, meaning that 1

profits or losses flow through to the shareholders, who bear the

tax consequences. As sole shareholder of Tri-Whale, Hatch was

additionally obligated to report all of the ordinary income earned

by Tri-Whale on his individual tax return.

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owned in Newport, Rhode Island; and (c) $25,000 in charitable

donations diverted to his own use.

Count 2 alleged that Hatch had filed a tax return for

2001 which falsely stated that his income was $228,077 and that he

was owed a $43,296 refund, and that he willfully failed to declare

four sources of income: (a) about $320,000 he received as co-host

of a radio show; (b) $9,396 in rent from the Newport property; (c)

$27,074, the value of a car he won as part of his "Survivor" prize;

and (d) $11,500 in charitable donations which he diverted to his

own use.

Count 3 alleged that Hatch had filed a tax return for

2001 for an S-corporation called Tri-Whale Enterprises, created to 1

receive his radio show income, and that he falsely stated that TriWhale's annual income was $68,173, omitting the $320,000 mentioned

in Count 2, above.

Counts 4-9 alleged that Hatch had defrauded four

companies which contributed $36,500 in charitable donations, in

violation of the mail and wire fraud statutes. Count 10 alleged

that Hatch defrauded the People's Credit Union when he altered a

$25,000 donation check so that he would appear to be a payee, as

opposed to the designated charity, Horizon Bound, to whom the check
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was originally made out, and then deposited it in his account

there. 

Following a nine-day trial, the jury convicted Hatch on

the three tax counts but acquitted him of the remaining charges.

On May 16, 2006, the district court sentenced him to 51 months in

prison, at the high end of the sentencing guideline range.

Facts

I. The 2000 Tax Returns (Count One)

For seven weeks in 2000, Hatch competed with sixteen

other contestants on "Survivor," a reality television show filmed

on the island of Pulau Tiga. As the "survivor" of the competition,

Hatch won a prize of one million dollars and a car. He

additionally received $10,000 for appearing on the August 23, 2000

televised finale of the show. "Survivor Entertainment Group"

("SEG"), which produced the show, cut two checks to Hatch in these

amounts. Hatch deposited the one-million-dollar check in his bank

account. He endorsed the $10,000 check over to a construction

company at work renovating his residence in Middletown, Rhode

Island.

Prior to the show, Hatch had signed a contract stating he

was not an employee or agent of SEG and that he would be

responsible for all taxes associated with any winnings: "I shall

pay all state and federal or other taxes on any prizes I win."

After Hatch received his prize, in early 2001, SEG sent Hatch an
Hatch was acquitted on the bank fraud count that was 2

supported by the allegation of check altering.

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IRS 1099 form reporting his receipt of $1,010,000 in income from

SEG in 2000.

Following his win, Hatch appeared December 7, 2000 on the

pilot episode of a show called "For Goodness Sake!," which focused

on the charitable causes of celebrities. The show's producer,

Chamber's Communication Corporation, paid Hatch's travel expenses

and made a $25,000 donation to "Horizon Bound," a charity Hatch had

founded. Horizon Bound's ostensible object was to take

disadvantaged teens on camping trips to build their self-esteem.

Hatch attempted to deposit the $25,000 Horizon Bound

check in his personal account at Newport Federal Savings Bank, but

as the check was payable to a corporation, the bank refused the

deposit. Hatch then deposited the check in his personal account at

another bank, People's Credit Union. The payee of the deposited

check was "Horizon Bound/Richard Hatch," and there was conflicting

testimony from Hatch and bank employees about alteration of the

payee of the check. Hatch subsequently used the money for gifts 2

and the renovation of his home in Middletown, none of it going to

Horizon Bound. Hatch's accountant, Daniel J. Urso, called as a

defense witness, testified that Hatch's personal use of the funds

was justified because Hatch had given other funds to the charity.
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Hatch also in 2000 received $18,708 in rent from the

tenants on a property he owned in Newport. He often collected the

rent himself. 

In March 2001, Hatch hired accountant Richard Plotkin to

prepare his 2000 tax return. Hatch gave Plotkin the 1099 received

from SEG showing his $1,010,000 in "Survivor" income, along with

1099s showing income from other sources, including a book deal and

deals with Conde Nast and Reebok. Hatch gave Plotkin a copy of his

own accounting of his income (which distinguished 1099 contractor

income from W-2 employee income), in which he noted the "Survivor"

income but did not list the $25,000 charity income and the $18,708

rental income. Hatch wrote on the accounting sheet that his "Total

Income" was "$1,166,626.10." In a second written summary, Hatch

referred to the rental property but claimed, wrongly, that it had

generated "no rental income" in 2000 because it was "in

renovation." Hatch later said he had received sixty days of rent

in the sum of $4,000, and Plotkin's assistant accordingly crossed

out "no rental income" and wrote "$4,000" underneath it, but this

was also a misrepresentation because he had received seven months

of rent for a total of $18,708. Plotkin emphasized to Hatch that

the "Survivor" income had to be reported to the IRS, and Hatch did

not disagree.

In November 2001, Plotkin showed Hatch the 2000 tax

return Plotkin had prepared, which included the "Survivor" income
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but not the $25,000 charity income or the $18,708 rental income, of

which Hatch had not informed him. Plotkin's draft 2000 tax return

stated that Hatch owed $374,831 in taxes and $66,670 in interest

and penalties for late filing. Hatch did not tell Plotkin that he

disputed the inclusion of the "Survivor" income in the return.

Hatch and Plotkin discussed various IRS payment options, and then

Plotkin and Hatch signed the return. Plotkin offered to file the

return, but Hatch said he would do it himself. Hatch never filed

the return. Instead, in late 2001, Hatch hired a self-employed

accountant and family friend, Jodi Rodrigues Wallis ("Wallis"), to

prepare a new 2000 tax return. Hatch provided Wallis with a return

for the year 1999 prepared by Plotkin, but not the return for 2000

Plotkin had prepared. When Wallis mentioned she wanted to contact

Plotkin, Hatch indicated he preferred that she not be in contact

with him because Hatch did not want any more to do with Plotkin's

firm.

There was conflicting testimony by the two accountants

about whether they ever discussed Hatch with one another. Hatch

did not give Wallis the 1099s reflecting his non-"Survivor"-related

income for 2000--even though he had given those forms to Plotkin.

Hatch told Wallis he had been so busy with "Survivor" he had not

had time to earn other income that year. As he had once told

Plotkin, Hatch again claimed his rental property had earned no

income because it was under renovation. Hatch denied receiving any
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royalties from a book deal, although Wallis knew Hatch had written

a book. Hatch told Wallis he had disclosed all his sources of

income for 2000.

Hatch gave Wallis the 1099 furnished by SEG reflecting

his "Survivor" income, as well as the original handwritten

accounting sheet he had given Plotkin which stated there was no

rental income. He did not give Wallis the other handwritten

summary of his 1099 and W-2 income. Hatch also advised Wallis,

incorrectly, that in connection with his receipt of the "Survivor"

prize, he had paid twenty percent in commissions to an agent and a

manager; that CBS had required him to retain an agent and manager

in advance in order to claim the prize; and that the SEG contract

had not contained any language warning him he would be responsible

for paying taxes. Notwithstanding, Wallis told Hatch he was still

required to pay taxes on the "Survivor" income, although he could

deduct the purported commissions.

On March 1, 2002, Wallis handed to Hatch a 2000 tax

return she had prepared reflecting the "Survivor" winnings less

deductions for the claimed $200,000 in commissions but omitting the

$25,000 "charity income," the $18,708 rental income, and the other

1099 income Hatch had divulged to Plotkin but not to Wallis. The

return stated that Hatch owed $234,807 in taxes. Hatch left

Wallis' house with the return in hand but he never filed it with

the IRS.
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In July 2002, the IRS sent Hatch a letter telling him it

had not received his 2000 tax return. The IRS listed in that

letter the 1099 income it knew. The IRS's letter did not include

mention of the "Survivor" income but stated that its list might not

be comprehensive. Hatch gave the IRS's notice to Wallis. Wallis

advised Hatch he would need to file an amended tax return which

included the 1099 income reflected on the IRS notice of which Hatch

had not previously informed her. She told him that he was still

required to pay taxes on the "Survivor" income even though the

IRS's notice had not mentioned that income. Hatch did not follow

this advice.

In the fall of 2002, Hatch asked Wallis what his 2000 tax

exposure would be if the "Survivor" income were wholly excluded

from the tax assessment. Wallis offered to prepare a spreadsheet

with that analysis, but Hatch wanted the information to be provided

in the form of a completed tax return. Wallis accordingly prepared

a hypothetical 2000 tax return which omitted the "Survivor" income

and state that Hatch's income was negative $41,087 and that he was

owed a $4,483 refund.

On November 19, 2002, Wallis gave Hatch the hypothetical

2000 return she had prepared that omitted reporting the "Survivor"

winnings. This document did not bear Wallis' name and signature as

preparer. Hatch, orally and in a letter he signed in Wallis'

presence, agreed the return was for informational purposes only and
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that he would not file it with the IRS. Wallis told Hatch she

would lose her license if he filed the return. Hatch said he

understood. Later that very same day, however, Hatch signed and

mailed the return to the IRS.

The draft return Hatch filed omitted three main sources

of income discussed earlier: the "Survivor" income; the "charity"

money Hatch had converted to personal income; and the rental

income. As a result of these omissions on the filed return, Hatch

received a $4,483 refund rather than paying any taxes. If Hatch

had filed a return properly reflecting the income he received in

the year 2000, including the "Survivor" and other income, he would

have had to pay $375,652 in taxes.

II. The 2001 Tax Returns (Counts 2 and 3)

Between January and December 2001, Hatch served as a cohost on the morning show of Boston radio station WQSX-FM. In

return, the station's operator, Entercom Boston LLC, paid Hatch

$70,232 for his appearances from January-March and $321,139 for his

appearances from April to December. The $70,232 was paid as W-2

income because Hatch was then an employee of the station. At

Hatch's request, Entercom paid the $321,139 to Tri-Whale

Enterprises, the S-Corporation founded by Hatch. As noted, Hatch

was the sole shareholder of Tri-Whale, and he was required to list

any Tri-Whale income on his individual tax return. Hatch deposited

the Entercom checks payable to Tri-Whale in a Tri-Whale bank
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account (labeled "Richard Hatch d/b/a Tri-Whale") at the Newport

Federal Savings Bank. Hatch then transferred most of the funds to

his personal account at the same bank. In February 2001, Hatch

claimed the final part of his "Survivor" prize: a car valued at

$27,074. General Motors sent Hatch a 1099 form reflecting his

receipt of $27,074 in income.

On April 14, 2001, Hatch appeared as a contestant on "The

Weakest Link," an NBC game show. The show's producers paid Hatch

a small fee and made a $10,000 donation to Horizon Bound. Before

the $10,000 check was issued to Horizon Bound, Hatch faxed an NBC

representative two documents demonstrating Horizon Bound's tax

exempt status, both of which bore the forged signature of Ralph

Magee, a friend of Hatch who was unaware that Hatch was holding him

out as the treasurer of Horizon Bound. Hatch responds on appeal

that Hatch and Magee were domestic partners and that "it is a fact

of life that spouses and domestic partners sign for each other and

Magee had no issue with Hatch using his signature." He further

notes that he was acquitted of the charity fraud charges. When

Hatch received the $10,000 check payable to Horizon Bound, he

deposited it in the Horizon Bound account at Newport Federal

Savings Bank. A month later, however, he wrote a $10,000 check on

that account to a construction company that was renovating his

Middletown home.
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On April 17, 2001, Hatch spoke at East Boston Savings

Bank about his time on "Survivor" and Horizon Bound. The bank then

wrote Horizon Bound a check for $1,000, which Hatch deposited in

the Horizon Bound account. CAM Media and Graphics, which had

arranged for Hatch to make his presentation, also wrote a $500

check to Horizon Bound. Hatch deposited this check in his personal

account at People's Credit Union. Also in 2001, Hatch received

$9,047 in rental income from the Newport property.

As she prepared Hatch's 2001 individual tax return and

the 2001 S-corporation tax return for Tri-Whale, Wallis made clear

to Hatch he was individually liable for any income of Tri-Whale and

that such income also needed to be reported on the S-corporation

return. Hatch told Wallis about the January-March wage income from

Entercom of $70,232, which Wallis included on his individual

return, but he failed to disclose the April-December payments of

$321,139 Entercom had made to Tri-Whale--the largest source of

income Hatch had received that year. Hatch responds that he never

received a 1099 or W-2 showing the Entercom income and states,

without record citation, that "Wallis was aware that the income

from Entercom, like all other income, went into Hatch's personal

account" and thus that she could have discovered the $321,139 by

examining the records of Hatch's personal checking account.

Hatch's assertion ignores the fact that Wallis testified that Hatch

gave her check stubs for which Tri-Whale was the payee, that those
Hatch disputes this fact on the grounds that Wallis testified 3

she asked him about a checking account for Tri-Whale, not a general

bank account, but her testimony also refers to her having asked him

about the existence of a "business account." Further, it is clear

from the testimony that Hatch provided her with information about

Tri-Whale's income but omitted information about the relevant sums

of money at issue in the indictment and also omitted any

information about the existence of a bank account for Tri-Whale,

which he did have.

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stubs did not include anything from Entercom, and that Hatch told

her there were no other sources of income for Tri-Whale for that

year. When Wallis asked Hatch whether he had opened a bank account

for Tri-Whale, suggesting she might want to look at the bank

statements, Hatch told her incorrectly that he had not done so.3

Hatch also failed to tell Wallis about the income from the car, the

rental property, and the diverted donations. When Wallis inquired

about the car (which she knew Hatch had won), Hatch lied and said

he had not yet received it. As he had done the year before, Hatch

told Wallis that the rental property had earned no income because

it was still being renovated.

Based on what Hatch had told her, Wallis prepared a 2001

individual tax return for Hatch which omitted those four sources of

income (the second portion of the Entercom payment, the car, the

rental property, and the diverted donations, totaling $374,510) and

which incorrectly stated that his income was $228,077 and that he

was owed a substantial refund. Wallis also prepared a 2001 SCorporation tax return for Tri-Whale which did not include the

$321,139 in Entercom payments and which accordingly wrongly stated,
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based on check stubs provided to Wallis by Hatch, that Tri-Whale

had received only $68,173 in income. Hatch filed the Tri-Whale

return on October 1, 2002 and the individual return on October 9,

2002. As a result, Hatch paid no taxes and received a $44,874

refund. If Hatch had filed returns disclosing his true income, he

would have paid $99,319 in taxes.

For his defense at trial, Hatch called the contractor who

renovated his Middletown residence, in an apparent effort to show

that the project had something to do with Horizon Bound, though the

witness did not recall for certain whether Hatch had actually

spoken to him about the charity. Hatch then called his manager to

suggest that at the time he filed the returns at issue in the case,

he was distraught over an allegation that he had abused his adopted

son. The manager, however, testified the child abuse charge had

been dismissed in the summer of 2000, more than two years before

the relevant tax filings. He also testified that commissions paid

him by Hatch had post-dated the "Survivor" prize and had nothing to

do with it. The attorney Hatch hired in connection with the child

abuse charge confirmed that the charge had been dismissed in 2000

but noted that Hatch had filed two related civil lawsuits that

lasted into the period when he filed the tax returns. 

A high school teacher testified that he had run a real

camping program called Horizon Bound in the 1970s and 80s, that

Hatch had been a camper in the summer of 1979, and that he had
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given Hatch permission to incorporate a new entity under the name

after Hatch won "Survivor." He testified, however, that he was

unaware Hatch was holding him out as secretary of the new Horizon

Bound.

Hatch testified on his own behalf. He said that Wallis

knew he was going to file the hypothetical tax return which omitted

the "Survivor" income and that she had him sign the letter

acknowledging the draft nature of the return so that she could

distance herself from what he was doing. He conceded that the

commissions he had paid to his manager, agent and attorney had

nothing to do with the "Survivor" prize and claimed that the

"mistakes" on his tax returns were made in good faith and that he

intended to file amended returns correcting those mistakes.

On cross-examination, Hatch admitted that he had received

many 1099s over the years and had reported the income stated on

those forms and that he received 1099s reflecting the "Survivor"

prize and car. He acknowledged that three months after the show

ended, he authored a book in which he stated he would have to pay

taxes on the prize and he had initially set aside $350,000 with the

expectation of using some of it to pay taxes. He further admitted

that Plotkin had told him that it was clear he had to pay taxes on

the prize, that he had failed to report the $320,000 in Tri-Whale

income, and that he deposited the $25,000 donation in his personal

account and used the money for personal expenses because he felt
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Horizon Bound owed him money. He testified he used the other

$11,500 in donations in a similar way for similar reasons. 

Lastly, Hatch called accountant Urso to attempt to show

that there were certain defects in the tax returns prepared by

Plotkin and Wallis regarding issues unrelated to the trial. The

court found this testimony largely irrelevant. The government then

called two witnesses to rebut Hatch's testimony that someone at

People's Credit Union added his name as a payee to the $25,000

donation check.

Discussion

III. Limitations Placed Upon Hatch's Testimony About

Irregularities in Way "Survivor" Contest Was Run and Producers'

Supposed Promise to Pay His Taxes

Hatch argues that the district court violated his Sixth

Amendment rights by precluding Hatch's testimony about his alleged

discovery during the taping of "Survivor" that the production

company, SEG, was "cheating" by giving food to other contestants

and otherwise violating its own rules for how the contest would be

run. Hatch's discovery of these irregularities, he now says in his

appellate briefs and argument, led the show's producer, Mark

Burnett, to promise Hatch, in exchange for his silence, that SEG

would pay his taxes if he were to win the prize. In his briefs,

Hatch states, "the district court refused to allow [his] testimony

about the consideration for the deal Burnett proposed, that if

Hatch won the show, his taxes would be paid"; the alleged
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"encounter with the show's producer . . . was excluded from

evidence"; the court would not allow him to testify that the

"show's producers . . . agreed that if he won, they would pay his

taxes"; the court "shut down" his proposed defense based on

"Burnett's proposed deal"; the court barred him from describing

"the quid pro quo arrangement offered by Burnett when Hatch caught

the show's producers cheating"; the court "decided the jury would

not hear" about the agreement with Burnett"; and the court

precluded him from testifying that "Burnett told him CBS/SEG would

pay his taxes if he did not blow the whistle on the network." 

The government responds that, far from preventing Hatch

from testifying to an agreement with Burnett for SEG to pay his

taxes, the court several times encouraged Hatch to present, and

said that it would allow, evidence that the "Survivor" producers

promised to pay his taxes, yet neither Hatch nor anyone else ever

testified to such a promise, nor was such testimony proffered.

Without evidence of a promise to pay the taxes, the government

says, the other evidence concerning irregularities in the way the

shown was run was immaterial. We agree and find no error in the

district court's rulings on the permissible scope of Hatch's

testimony. We review rulings excluding evidence for an abuse of

discretion. United States v. Maldonado-Garcia, 446 F.3d 227, 231-

32 (1st Cir. 2006).
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a. Background

As necessary background to the disputed rulings, we first

describe the relevant testimony and rulings at the trial, noting

first that the man who Hatch asserts on appeal to have brokered a

purported deal to pay Hatch's taxes, Burnett, testified as the

government's first witness. Burnett said nothing during his

testimony about a deal to pay Hatch's taxes, and defense counsel

never asked him on cross-examination whether he or others at SEG

had promised that SEG would pay Hatch's taxes--nor did the defense

later call Burnett as its own witness and seek to elicit such

testimony.

The court's complained-of limitations upon Hatch's

testimony to the show's sponsors' misdeeds and Burnett's purported

promise to pay the taxes on Hatch's winnings, arose during the

defense's case. During the direct examination of defense witness

Alan David, a former agent of Hatch's, defense counsel suggested

that SEG had portrayed Hatch in a negative light in the way it

edited footage from the show. When Hatch was called, his counsel

continued along the same path, trying to portray aspects of the

"reality" show as having been improperly "staged" by SEG, including

Hatch's encounter with a shark while he was fishing for food.

After sustaining an objection from the government, the court told

defense counsel that the inquiry about the shark encounter did not

seem "relevant to any issues in the case." When defense counsel
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argued it was relevant, the court called a sidebar and asked for an

explanation. Defense counsel responded, "It shows there's staging.

He caught the shark, they made him release it and catch it again,

and that time it bit him." The court asked again how the

information was relevant to the case at hand. Defense counsel

replied, "Because a great deal of this has been staged to make him

appear to be evil and that sort of thing." The court responded

that, "The issue in this case isn't what his behavior was on the

Survivor, we went through that during voir dire, that was the time

to inquire, and I did inquire about whether any jurors who viewed

the Survivor show formed any opinions of Mr. Hatch. So let's move

on to the issues in this case, which are the tax evasion charges

and the fraud charges." 

Defense counsel responded that his next planned area of

questioning was that "part of the reason that there was miscommunication on the million dollars was that there were problems

with the show, things that people were not doing, and that led them

to ask questions about the way this was going to be done." The

court replied, "I don't think the manner in which the show was

filmed has anything to do with that, so let's move on." Counsel

then clarified that he wanted to show that the contest rules had

been changed midstream and "that's part of the thing with the

1099s, the rules were changed." When the court asked whether

counsel was referring to the rules regarding how Hatch would be
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paid, counsel stated, "Well, it's a continuing course of conduct,

the rules are not changed just for the payment. They also were

changed during the contest." The court responded that it would

rule on objections as made but that counsel needed to "move off of

the details or the manner in which the show was filmed."

This warning prompted counsel to ask again whether he

could ask Hatch about the "rule change on the show." The court

said, "The rules [on] how he would be paid?" Counsel responded,

"No, that led right up to that, that led him to believe that the

rules were continuing to change that created an ambiguity in how he

was going to be paid." The court concluded, "If it has anything to

do with the terms of his payment and who was going to pay taxes on

the money he won, you can certainly get into it. Let's get back to

it" (emphasis supplied).

The court thus opened the door for defense counsel to ask

Hatch whether Burnett or someone else at SEG had promised to pay

the taxes on the money he won. Hatch's counsel, however, did not

follow up with questions of this sort. Instead, counsel questioned

Hatch as follows: "Rich, did there come a time when you realized

that the production was not going to completely go by the rules as

they had been described to you?" When the government objected, the

court asked, "The rules of what? . . . [t]he rules as to how the

competition was conducted or how Mr. Hatch would be paid if he won

anything?" Counsel replied, "Well, first, that, which leads into
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the second, your Honor." The court said, "Well, let's talk about

the second. To the extent you're asking about the first, the

objection is sustained." The court added, "You can certainly get

into anything that Mr. Hatch has to say on the rules of how he was

to be compensated if he won" (emphasis supplied). The court's

statement offered defense counsel yet another chance to elicit from

Hatch that the producers had promised SEG would pay his taxes.

Counsel thereupon asked Hatch whether he had had discussions with

other contestants about their plans to pay taxes on their winnings.

Counsel next asked, "The 'Survivor' show, was there a time when you

met with anybody on the show and had discussions which began to

convince you that the show might pay the taxes for you?" Hatch

responded,

Yes. Not contestants. I met with the producers when,

for all intents and purposes, we probably shouldn't have

been meeting with the producers, but the show almost

stopped filming as a result of a number of things that

took place, and Mark Burnett, who testified here, and the

other executive producer, Craig Pelligian, came in and

spent a significant amount of time with the final four

who were remaining. And I personally had discussions

with both and each of them.

At this juncture defense counsel might logically have asked Hatch

whether any of these "discussions" had pertained to the payment of

taxes, and what Burnett and Pelligian had said on the topic.

Instead of doing so, counsel inquired whether he could make an

additional proffer. The court heard the proffer at the morning

recess. Counsel said during the recess:
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For the record, were we permitted to do so, I would

elicit testimony that during the show there were rules,

but they were constantly being changed, and that one of

the rules were [sic] no outside attention, and that

people with the program who did not want Richard Hatch to

win, began to try to manipulate it for him to lose, and

they started smuggling food to some of the competing

contestants. This led to an encounter with Mr. Hatch and

Mr.--I believe the gentleman who was on the stand, Mr.

Burnett, I don't--it led to some interviews with

different people on the show in which Mr. Hatch was

complaining about this. And during those moments, they

apologized to him. And from the conversations and

gatherings, Mr. Hatch left with the understanding that if

he won the show, the studio would pay his taxes. And

this was a result of them breaking the law with trying to

manipulate the results of the contest.

The district court expressed hesitation about the relevance of the

proffer: "Well, you kind of lost me on the connection. I think I

indicated that if you had evidence that Mr. Hatch wanted to present

evidence that the individuals who were running the show had told

him something or led him to believe that they would be paying the

taxes on any earnings, you can certainly do that" (emphasis added).

The judge thus repeated the court's earlier invitation to Hatch to

testify that Burnett or someone at SEG had expressly promised or

led him to believe that SEG would pay his taxes on any earnings.

But no such testimony of an express promise was thereafter

elicited, nor was the proffer enlarged so as to encompass any

indication of an express promise having been made. The court was

left to believe merely that Hatch wanted to testify at length about

rule violations in the show's conduct and apologies, accompanied by
-23-

some unconnected assertion that Hatch left "with the understanding

that if he won the show," the studio would pay his taxes.

In the circumstances, the court understandably observed

that the "details of how the show was being staged" were not in

themselves relevant to Hatch's state of mind when he filed his tax

returns almost two years later, but it once again emphasized that

Hatch, if he would, could still provide the necessary connective.

"Now, as I say, if there is evidence as to what the persons running

the 'Survivor' show and responsible for compensating him may have

told him about the taxability of his prize money or who would pay

the taxes on the prize money, that's a different matter. I thought

I made that clear, that you could go into that" (emphasis added).

Defense counsel withdrew, stating without elaboration that "if it's

not put in context, I do not believe it makes any sense

whatsoever." There was no further questioning of Hatch, and no

additional proffer, concerning testimony as to statements by

Burnett or others that might have caused Hatch to believe SEG had

agreed to pay the taxes on his "Survivor" winnings.

b. Hatch's Argument on Appeal

Hatch argues that the limits placed by the district court

on discussion of the rules of "Survivor" wrongly impaired his

ability to introduce evidence that he had a subjective belief he

had no legal duty to pay his taxes, an argument which would negate

the element of willfulness required to prove his guilt. Cheek v.
-24-

United States, 498 U.S. 192 (1991); United States v. Bonneau, 970

F.2d 929, 931-34 (1st Cir. 1992). He argues that the district

court "repeatedly set up roadblocks, withdrew invitations

previously extended, and closed doors." According to the

appellant, "The message was clear: Hatch could testify that he

believed his taxes would be or had been paid, but he could not

testify why." 

We find little merit in this contention. Neither defense

counsel's proffers nor Hatch's courtroom testimony ever described

conversations with SEG's representatives in which they made offers

or promises to pay Hatch's taxes if he won the prize. Yet Hatch's

argument in his appellate brief is now apparently premised on the

assumption that either such a "deal" was shown at trial or had been

the subject of an offer of proof declined by the court. According

to the brief, if Hatch had been allowed to testify to what happened

behind the scenes on the "Survivor" show, "his testimony would have

shown the context for testimony that Burnett proposed a quid pro

quo deal: if Hatch remained silent about the fact that the show's

outcome was being staged, the cheating would stop, and CBS/SEG

would pay Hatch's taxes if he won" (Appellant's brief, p. 17). But

Hatch, a principal witness to whatever, if anything, took place,

never testified at trial to the events and words by Burnett or

others that might constitute such a supposed "quid pro quo deal"

with the producers of the show, although specifically invited to do
-25-

so by the court on several occasions. To quote the judge's words

on one of these occasions, Hatch could testify "that the

individuals who were running the show had told him something or led

him to believe that they would be paying the taxes on any

earnings." Hatch was thus put on clear notice that testimony to

such a "deal" was allowed and was indeed invited--no offer of proof

was even needed as a predicate to his so testifying, if he would.

But, notwithstanding the invitations, Hatch, for whatever reason,

evaded the giving of any direct testimony--and no proffer was made-

-to the very deal which his counsel, on appeal, now alludes to as

if firmly planted in the trial record. And nowhere else in the

record, including in Burnett's own testimony, is there evidence of

the making of such a deal. As the government points out in its

brief, any wound stemming from this fatal gap in the record is

entirely "self-inflicted."

The district court was well within its discretion to

insist that appellant first supply specific evidence of what

Burnett or others actually said that might have led Hatch to

believe that SEG would pay the taxes. Such evidence was plainly a

predicate to the materiality of any other evidence that was offered

as "context" to the alleged agreement. Hatch's conclusory

assertion that he left the show "with the understanding that the

taxes would be paid" was not a sufficient substitute for the
-26-

recounting of what Burnett or the others had actually said to him,

if anything, in the nature of a promise to pay his taxes.

The district court enjoys broad discretion to control the

ordering of proof. See, e.g., United States v. Holmquist, 36 F.3d

154, 163 (1st Cir. 1994). Even Hatch does not now argue that the

mere evidence by itself of SEG's alleged improper "staging" of

events during the show, and Hatch's annoyance about this, are

probative of Hatch's innocent state of mind when he filed his

incorrect tax returns. It could be material only if there were

also evidence of an express undertaking by SEG to pay Hatch's

taxes--an agreement Hatch says was forged in light of his threats

to reveal SEG's misconduct in its running of the show. But no

promises to pay taxes made by Burnett or others were testified to

by Hatch, even though the court several times expressly invited

testimony as to such promises.

The district court accordingly in no way violated Cheek

by rejecting further testimony by Hatch about the producers'

alleged mismanagement of the show. The court could properly have

determined that to permit Hatch to testify further to the

producers' alleged misdeeds, without assurance of evidence of their

actual promise to pay the taxes, would, besides being irrelevant,

simply confuse the jury and might cause it to make unwarranted

assumptions. See Fed. R. Evid. 401-403; Bonneau, 970 F.2d at 932-

33 (rejecting claim that Cheek required admission of certain
-27-

evidence in the absence of a clear proffer, and noting that even

where Cheek evidence is concerned "trial judges have ample latitude

to weigh the importance of the evidence against the risk of jury

confusion"); United States v. Lussier, 929 F.2d 25, 31 (1st Cir.

1991) (exhibit properly excluded despite Cheek where they "lacked

a foundation of evidence or offer of proof to link them to the

willfulness issue" and they "could only have confused the jury").

The defendant suggests that his proffer was clear enough

for the court to realize that the evidence of the producers'

misconduct would in due course lead to, and be tied into, testimony

to a promise to pay Hatch's taxes. We disagree. The court on

several occasions gave defense counsel full opportunity to elicit

from his client whether or not he was saying the "Survivor"

executives had agreed to pay his taxes and, if so, what it was he

was told at the time. The failure of Hatch to present any evidence

of such conversations when invited by the court strongly suggested

that no actual promises were made, and no such "deal" actually

existed. It was not the court's right, much less duty, to put

words in Hatch's mouth. 

The defendant repeatedly now invokes "context" as his

argument for saying the court should have allowed Hatch to be

examined about the producers' various alleged misdeeds. But

without evidence that the producers had agreed to pay Hatch's

taxes, the evidence that Hatch had caught those running the show
Our conclusion that the district court did not abuse its 4

discretion in excluding testimony about alleged cheating on

"Survivor" negates any need for us to address Hatch's related

claim, that what he calls the "Cheek error" prejudiced his case on

Counts 2 and 3. Since the court did not err in its rulings, there

could be no prejudice. 

-28-

cheating was of no contextual materiality to the revenue violations

with which Hatch was charged. The court was well within its

discretion to reject further testimony of Hatch's complaints about

"cheating" during the show until the defense furnished evidence of

a tax payment promise that made such contextual evidence relevant.4

IV. Limits on Cross-Examination

Hatch argues that the district court improperly limited

his cross-examination of three witnesses--his former accountants

Plotkin and Wallis, and IRS Agent Jason Rameaka--and thus violated

his right to confrontation under the Sixth Amendment. We review

these claims for abuse of discretion, United States v. Charles, 456

F.3d 249, 255 (1st Cir. 2006), recognizing that limitations on

cross-examination should be scrutinized "with the utmost caution

and solicitude for the defendant's Sixth Amendment rights," United

States v. Tracey, 675 F.2d 433, 437 (1st Cir. 1982) (internal

quotation and citation omitted). See United States v. Wilson, 798

F.2d 509, 518 (1st Cir. 1986) (defendant is entitled to "broad

latitude in questioning government witnesses"). But there is

another side to the coin, necessary to prevent trials from becoming

mired in confusion and irrelevance. It is well-established that
-29-

"the license to cross-examine is not absolute," id., and the

district court "retains wide latitude to impose reasonable limits

on cross-examination in order to avoid confusion of the issues or

extended discussion of marginally relevant material." United

States v. Gonzalez-Vazquez, 219 F.3d 37, 45 (1st Cir. 2000)

(internal quotations and citations omitted). 

Here, the district court's limitations on crossexamination in this nine-day trial were thoughtful and far from

being excessive. Most of the defense's numerous questions asked on

cross-examination were uninterrupted. The relatively few

exclusions were largely of questions that could reasonably be

thought to be repetitive, improper, incoherent, or confusing to the

jury, or else dealt with matters of seemingly scant relevance to

the charges upon which Hatch was being tried. We address some of

Hatch's contentions in greater detail as follows.

a. Wallis and Exhibit Three

Hatch contends that the court unfairly limited his crossexamination of Wallis on Exhibit Three, the unfiled 2000 tax return

prepared by Wallis which reported the "Survivor" income but omitted

the charity, rental and other sources of income. Instead of that

return, Hatch subsequently filed with the IRS a different

"hypothetical" tax return Wallis had prepared at his request for

informational purposes only that omitted the "Survivor" income

(Exhibit One).
-30-

In contending improper curtailment of his efforts to

cross-examine Wallis regarding Exhibit Three, Hatch refers

specifically to only two places in the record. In the first, the

court sustained the government's objections when counsel asked how

many amended tax returns Wallis had prepared that year and during

her entire career. Hatch never, at the time, stated his reasons

for the questions, nor did he object to the court's exclusionary

ruling. The court's sustaining of the objections was well within

its discretion given the questions' doubtful materiality to the

criminal tax charges against Hatch.

The court also sustained an objection to a second

question regarding the impact of the "alternative minimum tax" on

Hatch's claimed deductions for the alleged $200,000 in commissions.

Hatch says he pursued the line of questioning on the alternative

minimum tax to indicate that he did not stand to gain from

fabricating reference to the commissions. The court told Hatch's

counsel, "If you want to get into this in your case, if it's

relevant, that is only a small part of the question. You are

confusing the jury. You're mixing up a lot of things and

misleading the jury" (emphasis supplied). The court went on to

assure defense counsel that he could pursue the issue of deductions

Hatch might but did not take in order to demonstrate the tax loss

was minimal, so long as he could show relevance. Hatch's counsel

did not object further, nor provide any calculations indicating the
-31-

possible materiality of the alternative minimum tax. The court did

not abuse its discretion in concluding that the applicability of

the alternative minimum tax in the context of the claimed

deductions on Exhibit Three was more confusing than relevant and,

accordingly, in limiting discussion of it at that time.

Hatch also argues, without record citation as to where

the offending ruling occurred, that the court prevented him from

inquiring into Wallis' "accounting practice." The government comes

to his aid by offering the suggestion that defendant perhaps means

the point in the trial record where defense counsel asked Wallis,

"[w]hy didn't you recommend to [Hatch] that he use your bookkeeping

services, or somebody else's?" At this point, the court sua sponte

called a sidebar to tell defense counsel that his "questions are

seeming to get more and more out into the periphery." Defense

counsel never gave a clear explanation of why the bookkeeping

questions were relevant, and the court noted that counsel had

stated "that there is no dispute that the returns that were filed

on his behalf or that he filed were incorrect." The court went on,

"What this case is about is whether he acted willfully. And none

of these questions seem to bear on that issue at all. So why don't

you think about it for a minute and see if we can sharpen up the

focus a little bit." We see no error in the court's handling of

the matter.
In discussion not clearly tied to his claims of truncated 5

cross-examination, Hatch also accuses the government or Wallis of

having intentionally doctored Exhibit 135A, which was a piece of

accountants' graph paper in Wallis' handwriting, showing $101,000

in commissions paid to Hatch's agent and the same amount to his

manager, along with another square of paper in Hatch's handwriting,

apparently cut from a larger piece, stapled onto it and listing in

Hatch's handwriting the commissions Hatch generally paid. The

government had initially introduced Exhibit 135, a copy of the

original document, because it was all Wallis' attorney had provided

the government. When the government submitted the original later

in the trial, it was admitted as Exhibit 135A. Hatch's argument

about the introduction of this exhibit is at best tangential to the

heart of the case--whether Hatch willfully withheld information

about his income from the IRS. To whatever extent the dispute may

be relevant on other grounds, Hatch has waived any such objection

by failing to preserve it in the district court or even develop it

on appeal. Briefly stated, there was no objection to the admission

of Exhibit 135 nor, after a request for a limiting instruction

which was given, to 135A.

To give a bit more detail, the government had initially

introduced Exhibit 135 along with Exhibit 124, a piece of paper

Hatch had given Plotkin which listed his 2000 earnings at the top

with actual amounts deducted for commissions and other expenses.

At the top of Exhibit 124, Hatch noted that he paid no commission

to anyone on his "Survivor" winnings. Wallis testified that she

never saw Exhibit 124 but received from Hatch only the square piece

of paper listing the commissions, which she took to be referring to

commissions for the "Survivor" prize.

As best we can discern from Hatch's appellate brief, Hatch

alleges that the government intentionally introduced Exhibit 135,

the copy, so that it would appear that Hatch's handwritten notes on

the commissions were a stand-alone "sticky" attached to Wallis'

-32-

Hatch declares at some length that Wallis' testimony that

she encouraged Hatch to file Exhibit Three to avoid further

penalties was an admission that she had advised him to file a false

tax return. This assertion in no way advances his argument that

his cross-examination was limited on Exhibit Three, since he was

allowed to develop, and did develop, this line of questioning,

bringing the point to the jury's attention without interruption.5
notes, when in fact it appears to have been cut from the larger

Exhibit 124, which allegedly demonstrated no commissions paid on

the "Survivor" winnings. These allegations against the government

were not presented to the district court in the first instance and

are therefore waived. Furthermore, Exhibit 135 was admitted

without objection, and Hatch's own testimony on direct seemed to

support Wallis' testimony that he had given her the small square of

paper. When the original document was found and introduced, there

was a lengthy discussion at sidebar. Hatch's counsel requested a

limiting instruction related to the government claim it had just

discovered the original after submitting a photocopy. The

government then introduced the original exhibit, saying that the

defense had no objection to it. Defense responded, "Well, yes and

no. I mean--" and was cut off by the court, saying "If you want to

object, you object, and I'll rule on the objections. I don't want

to hear any more about it, the jury is on its way in."

Subsequently, defense said, "We have no objection to its entry with

strict limiting instructions, your Honor." 

On appeal, Hatch claims he "repeatedly objected," and only

stopped when the court said, "I don't want to hear any more about

it." This ignores the fact that the court invited objection to

occur when the evidence was offered, and that Hatch affirmatively

stated "We have no objection to its entry with strict limiting

instructions," which the court had already promised to provide and

did. There was no objection preserved. Even if there had been a

preserved objection, the court did not abuse its discretion in

admitting the original exhibit for the sake of clarity.

-33-

b. Wallis and Exhibit One

Hatch includes in his brief a subheading on "CrossExamination on Exhibit 1," implying he has an argument that crossexamination was restricted regarding the return Wallis prepared,

but did not intend Hatch to file. This section of Hatch's brief,

however, does not identify any areas in which cross-examination was

restricted. No discernible error exists.

c. Wallis and Exhibits Five and Seven

Hatch argues that the court unfairly restricted cross

examination of Wallis regarding Exhibit Five, Hatch's 2001
Hatch makes much in his briefs of the fact that Tri-Whale did 6

not have a checking account, ignoring the fundamentally

unchallenged point that he did have a corporate account for TriWhale, the existence of which he concealed from Wallis, and from

which he transferred funds to his own account. He misquotes the

government's brief in order to create the appearance of a

discrepancy where there is none, claiming that the government's

brief referred to Tri-Whale's "corporate checking account," when in

fact it referred only to "a bank account for Tri-Whale."

-34-

individual return, and Exhibit Seven, Hatch's 2001 S-corporation

return for Tri-Whale Enterprises.

Exhibit Seven falsely stated that Tri-Whale Enterprises

received only $68,173 in income, omitting $321,139 that Entercom

paid to Tri-Whale for Hatch's April-December appearances as a radio

host. As the sole shareholder of Tri-Whale, Hatch should also have

included the same $321,139 on his personal 2001 tax return, Exhibit

Five, but he did not. This omitted income formed part of the basis

for Count 2. Wallis had told Hatch he was required to report all

Tri-Whale income on both returns, but he concealed the $321,139

from her and even denied he had created a bank account for TriWhale. Not only had Hatch opened an account for Tri-Whale, but he

had transferred most of the Entercom payments in that account to

his personal account.6

Wallis, Plotkin, and IRS Agent Rameaka testified that in

the case of S-corporations, profits or losses flow through to the

shareholders, who bear the tax consequences. Hatch now claims that

Wallis' testimony on this point was "absurd" and that he was "not

allowed to challenge" it on cross-examination, citing to a
-35-

transcript page. The only blocked question on this page, however,

was: "The S Corporation, it must pay a reasonable salary to its

employees, must it not; isn't that legally required?" There is no

explanation in Hatch's brief of the relevance of the question, and

it did not relate to the tax consequences Hatch now claims he was

trying to address. Hatch says his attempt to cross-examine Wallis

on the "alternative minimum tax" concerned Exhibits 5 and 7, but in

fact it related only to Exhibit Three, discussed supra. Hatch

makes no effort to explain in what way any preparer's errors in the

corporate tax return were relevant to whether he (1) deliberately

concealed the $321,139 from Wallis, and (2) filed the return

knowing it was false.

As the court emphasized elsewhere in the trial, unless

the claimed imperfections could have had an effect on Hatch's

intent, the fact that the returns prepared by Plotkin and Wallis

may not have been "letter perfect" or "absolutely correct in every

single respect" was irrelevant. When the court made a similar

point at a pretrial hearing ("What does whether [the returns] were

properly prepared have to do with whether Mr. Hatch knew or didn't

know that the return he filed was false and that he did so with an

intention to evade substantial amount of tax?"), defense counsel

conceded that the question of whether the tax returns were

incorrect in other areas "may not go directly to the issue of

willfulness in that sense, your Honor."
-36-

d. Cross-Examination of Wallis on Incompetence and Bias

Hatch concludes his argument that his counsel's crossexamination of Wallis was unfairly truncated by contending that the

district court prevented him from exploring Wallis' alleged

incompetence and bias, pointing to the court's sustaining of

objections to four questions. We have reviewed the record as

relates to each question. None of the court's rulings amounts to

an abuse of discretion. 

Regarding the first question, Hatch repeats his claim

that he tried to ask Wallis about her "accounting expertise," but

the cited question was actually "Why didn't you recommend to

[Hatch] that he use your bookkeeping services, or somebody else's?"

There was little apparent relevance to this question, and the court

acted within its discretion in excluding it. We have already

addressed Hatch's second question regarding payment of a reasonable

salary to S-corporation employees: the question, on its face,

lacked materiality. Third, Hatch claims that the court erred in

preventing his counsel from asking Wallis about the difference

between an employee and an independent contractor. Hatch never

explained the point of his question, and, in ruling it irrelevant,

the court acted within its discretion, stating it didn't matter

whether Hatch was an employee. Finally, contrary to Hatch's

interpretation, the court did not preclude his counsel from asking

Wallis if she knew why Tri-Whale had received a loan from a
To the extent Hatch now claims that these four questions 7

together might have exposed bias on the part of Wallis and concern

for her own career, he never argued, and thus waived, this theory

below. 

-37-

"shareholder": rather the judge sustained an objection to this

initial question in the series because of counsel's editorial

comment. Counsel was thereafter allowed to ask further questions

on this topic.7

e. Cross-examination of Plotkin

Plotkin was the first of two accountants who told Hatch

that he was required to report the $1 million prize. Plotkin

prepared a completed tax return for Hatch that reflected that

income but omitted other income Hatch had not revealed to him.

Hatch chose not to file that return and thereafter sought the

services of Wallis. Hatch claims that on cross-examination, "[t]he

thoroughness of Plotkin's interview with Hatch, a component of the

defense, was cut off," citing Volume 3, page 136 of the trial

transcript. That citation reveals one sustained objection to an

argumentative and confusing question, "How do you explain that

you're sent a client to deal with a million dollars and he set up

a charitable foundation and you had no discussions with him on the

charitable foundation whatsoever?" That objection aside, Hatch

received many other opportunities to cover the thoroughness of

Plotkin's work with Hatch, including asking a lengthy series of

questions regarding the small amount of time Plotkin spent with
-38-

Hatch's file, and entering into a back-and-forth about Plotkin's

ignorance of the Horizon Bound charity Hatch had founded.

Hatch additionally claims that "Plotkin's statement that

he had never talked to Rodrigues-Wallis, a statement that was

highly suspect, could not be sufficiently tested." The record

citation in his brief, however, demonstrates that Plotkin admitted

he had spoken about Hatch with a female accountant (presumably

Wallis) but merely could not recall her name, and counsel had the

opportunity to push on that detail to demonstrate that Plotkin's

memory was at best fuzzy on the point.

Hatch also complains that he could not ask Plotkin about

the employee/contractor distinction, but in fact he was allowed to

pursue the topic with Plotkin. The one question to which an

objection was sustained called for an answer about what the IRS is

"inclined" to say about the distinction between an employee and

independent contractor. This inquiry into the inclination of the

IRS was beyond anything Plotkin could meaningfully answer, and its

materiality was less than plain.

Finally, Hatch claims that "Plotkin's understanding of

Hatch's knowledge of subchapter S corporations was judicially

determined, not fair game, in cross-examination," citing Volume 3,

p. 124. The only blocked question, however, was, "Would it be fair

to say that Mr. Hatch didn't even know what a subchapter S

corporation was before he got this advice from you and the others?"
-39-

(emphasis supplied). It was within the court's discretion to

exclude a question asking someone to testify to another's

knowledge.

f. Cross-Examination of Rameaka

Hatch argues that he was prevented from cross-examining

IRS Agent Rameaka on the subject of how he obtained certain

documents offered into evidence. He says the purpose of the

excluded questions was to undermine Rameaka's effort to suggest

that evidence was "hard to get" from Hatch and to give the jury the

"impression that Hatch was sneaky, that he hid information."

The court restricted cross-examination on only two

occasions. First, the court ruled irrelevant the question, "And

you haven't told the jury that many records came as a result of Mr.

Hatch obeying the law and handing them over to you, correct?" The

court told counsel he could explain his position to the contrary at

the morning recess. Immediately following the sustained objection

to this question, counsel was permitted to establish that Tri-Whale

produced one of the exhibits pursuant to a subpoena. This led to

the next question that the court ruled irrelevant, "Is that always

the case when you ask someone that's been accused of tax evasion,

do they always obey the subpoena and give you the documents?" The

court eventually explained its thinking as follows:

First of all . . . the fact that Mr. Hatch may have

obeyed a Subpoena, doesn't reflect on any issue in this

case. A Subpoena requires someone to produce whatever

the Subpoena commands. Secondly, to the extent that Mr.
-40-

Hatch voluntarily turned over records, again, is not

really relevant unless we know the exact circumstances.

But beyond that, it's now a moot question because Agent

Rameaka later testified and acknowledged that Mr. Hatch

had provided him with some documents. Third, the manner

in which you asked some of these questions was a

problem. You interjected into the question a lot of

editorial comment . . . . Whether he obeyed the law in

complying with a Subpoena, doesn't have any bearing on

whether or not he wilfully evaded income taxes. His

state of mind that he filed the returns, or whatever it

is that the Government alleges he did, would be

relevant. But the fact that he may have complied with

a Subpoena long after that doesn't shed any light on the

issue. So for all those reasons, the Court stands by

its ruling. 

The court's ruling was within its discretion.

To sum up our disposition of Hatch's myriad contentions

of overly-restricted cross-examination, the court acted within its

discretion in sustaining the objections it did during the crossexamination of the three witnesses. We discern no basis for

appellant's argument that the court's rulings contravened his Sixth

Amendment right to cross-examine.

V. Expert Witness Testimony

Hatch argues that the district court wrongly admitted

what he calls the "expert" testimony of Plotkin, Wallis, Rameaka

and Agent Michael Pleshaw, who were never formally designated as

experts by the government, and that it erred in excluding some

expert testimony offered by defense witness Daniel Urso. Taking

each witness in turn, we find no error. We review a court's

decision to admit testimony for abuse of discretion. United States

v. Cormier, 468 F.3d 63, 72 (1st Cir. 2006). Where no objection
-41-

was made below, as was often the case here, we review the decision

for at most plain error. United States v. Diaz, 300 F.3d 66, 74-76

(1st Cir. 2002).

a. Plotkin

Plotkin testified not as an expert witness but as a fact

witness. There was no objection lodged to his testimony on the

ground now argued, and hence therefore its admission can be

reviewed only for plain error. Plotkin testified on direct

examination without objection to (1) the mechanics of how he

prepared the tax return which included the "Survivor" income but

omitted the other income; (2) the significance of various dollar

amounts which appeared on the return; (3) what a W-2 is; (4) the

fact that some handwriting on Exhibit 125 was Hatch's and some was

his assistant's; (5) the fact that Hatch never questioned the

inclusion of the "Survivor" prize in the return and indeed

discussed the possibility of a compromise with the IRS; (6) what an

offer in compromise is; (7) that he and Hatch signed the return but

that Hatch declined an offer for the firm to mail the return for

him; (8) that he discussed with Hatch the advantages of receiving

his radio station income as an independent contractor as opposed to

an employee, and what those benefits were; and (9) that Tri-Whale

was an S-corporation, that he explained to Hatch what an Scorporation is, and that he told Hatch that all S-corporation

income would have to be reported on his individual return.
In another example of misrepresentation in Hatch's brief, 8

Hatch claims that government counsel "argued Plotkin's credentials

as an expert in closing." The record transcript page he cites

reflects no such argument.

-42-

Plotkin subsequently testified on redirect, over one

"leading" and "mischaracterization" objection, to three issues that

had been raised by the defense on cross-examination: (1) his

credentials as an accountant; (2) the significance of various items

on the tax return he had prepared for Hatch; and (3) his memory

about a call from the female accountant.

Hatch claims without record support that the "chief real

reason" for the testimony was to "persuade the jury of Plotkin's

professional expertise" and to demonize Hatch for being wealthy.8

We see nothing in the record to suggest that Plotkin was being

presented as an expert, nor does Hatch's appellate brief make any

argument beyond the mere assertion that he was an expert. To

whatever extent his answers might be said to have included opinion

testimony, they largely fell within the limits of admissible lay

opinion testimony, see Fed. R. Evid. 701(b), and even were that not

so in every respect, their unobjected-to admission could in no way

be considered to be plain error.

b. Wallis

Wallis also testified as a fact witness to, among other

things, the facts: (1) that Hatch gave her a 1099 reflecting the

"Survivor" income and what a 1099 is; and (2) that Hatch discussed
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with her his unsupported theory that perhaps CBS might have paid

his taxes, that she told him this was improbable, that he never

produced any evidence that CBS might have paid his taxes, and that

she warned him that if CBS had done so this itself would be a

taxable item. Wallis subsequently testified without objection

concerning the mechanics of how she prepared the 2000 tax return

(which Hatch never filed), the significance of various dollar

amounts on the return, and her interactions with Hatch during the

process. Again, the bulk of Wallis' testimony fell within the

ambit of Fed. R. Evid. 701. There was no objection to Wallis'

testimony on the present ground, nor, any more than Plotkin's, was

it expert testimony. It was certainly not plain error for the

court to admit Wallis' unobjected-to testimony.

c. Rameaka

As with Plotkin and Wallis, Hatch made no objection to

Rameaka as an expert witness but rather complained below that he

should not be allowed to testify as a summary witness, a claim he

does not pursue on appeal. His two-sentence statement that Rameaka

was not a named expert and that he created several summary charts

does not constitute an argument.

d. Pleshaw

Hatch objected on several occasions at trial that IRS

Agent Pleshaw was improperly being asked to testify as an expert

although not previously qualified as such by the court. We review
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the overruled objections for abuse of discretion. Cormier, 468

F.3d at 72. Hatch had sufficient advance notice of the substance

of Pleshaw's testimony, and Pleshaw himself, as an experienced IRS

agent, was clearly qualified to testify regarding the tax issues at

stake in the case. The court did not abuse its discretion in

admitting the testimony.

Pleshaw's testimony was introduced in order to establish

whether, if the sums omitted from the tax returns had been

included, substantial tax would be owed. United States v.

Mikutowicz, 365 F.3d 65, 70 (1st Cir. 2004) ("tax evasion requires

government to prove that defendant owed substantially more federal

income tax than declared"). Hatch had conceded before trial that

the key omitted income charged in the indictment should have been

included in the tax returns and that this would be undisputed at

trial. In addition, Hatch acknowledged that the odds were slim

that a jury would find there was no "substantial" tax owed if those

sums had been included, and that consequently this would not be the

focus of his defense. Hatch did not stipulate to this point,

however, and the government introduced evidence on that element of

the crime at trial using Pleshaw as its witness. 

Pleshaw's forthcoming testimony was addressed at length

in a pretrial hearing on December 22, 2005, a couple of weeks

before trial began. The court did not rule expressly on whether

Pleshaw would be considered an expert but observed that,
Despite complaining generally about this issue at length in 9

his primary brief on appeal, Hatch cites to the relevant rule only

in his reply brief.

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even if this witness is classified as an expert, if the

scope of his testimony is simply that he's going to

explain how the tax would be calculated for the purpose

of showing that a substantial tax is due and owing, if

it's limited to simply doing the calculations, it's a

very low bar, I guess, to establish that he has the

qualifications to give that testimony.

The court then urged the parties to confer and discuss the

potential testimony and expressly invited defense counsel to file

a motion for a so-called Daubert hearing if he believed one was

required so as to challenge Pleshaw's expert qualifications. The

government provided Hatch with a resume establishing Pleshaw's

credentials, but no request or motion for a Daubert hearing at

which Pleshaw's expertise could be examined and challenged was ever

filed by the defense.

Hatch suggests that Pleshaw's testimony was not properly

noticed pursuant to Fed. R. Crim. P. 16(a)(1)(G), which requires

the government "at the defendant's request" to give a written

summary of any upcoming expert testimony. Whatever the dispute 9

about the precise nature of the notice given to Hatch concerning

Pleshaw's qualifications, or, for that matter, whether Hatch

expressly requested the kind of report addressed in the Rule, there

is no doubt that Pleshaw's identity, qualifications, and the scope

of his testimony were front and center at the pretrial hearing well

in advance of the trial. There can be no argument that Hatch was
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caught off-guard by Pleshaw's appearance at trial or by the purpose

and substance of Pleshaw's testimony. Hatch, moreover, had been

told by the court prior to trial that if he desired a hearing on

Pleshaw's qualifications, he could request one, which he never did.

Given, therefore, the substantial degree of compliance with the

purpose, whether or not in all respects the letter, of Rule

16(a)(1)(G), we think the court had ample discretion to overrule

defendant's objections and allow Pleshaw's responses as it did.

See also United States v. Cuellar, 478 F.3d 282, 293, cert. granted

on another issue, 128 S. Ct. 438 (2007) (court has discretion

whether to grant sanctions for a violation of Rule 16; new trial

must be ordered based on alleged discovery violation only if such

a violation prejudices the defendant's substantial rights).

To the extent that Hatch now challenges Pleshaw's

qualifications to testify, we note that he concedes on this appeal

that Pleshaw had "significant expert background." We have noted,

in another case where this same agent, Pleshaw, testified, that "It

is well-established in several circuits that 'expert testimony by

an IRS agent which expresses an opinion as to the proper tax

consequences of a transaction is admissible evidence.'"

Mikutowicz, 365 F.3d at 73 (quotation omitted). See also United

States v. DeSimone, 488 F.3d 561, 577 (1st Cir. 2007). Pleshaw was

giving just such testimony here. Hatch has made no argument that

Pleshaw's testimony was based on unreliable principles, inadequate
Hatch asserts that Pleshaw "opined that Hatch lied about 10

$25,000 in charity money" and thus issued an opinion about Hatch's

willfulness, but he overstates Pleshaw's testimony, which was that

a $25,000 check for Horizon Bound "ended up in [Hatch's] personal

account for personal use." Defense counsel objected that the

testimony was "narrative speech, not just an answer," and the court

sustained the objection, stating, "Yes, I think you have answered

that question that it ended up in Mr. Hatch's personal account."

On the issues relevant to this appeal, the court ruled that 11

Urso could not testify about the quality of Hatch's bookkeeping

abilities, noting that "this case isn't about Mr. Hatch's

bookkeeping abilities, it's about whether or not he willfully did

not report certain items of income that were taxable and should

have been reported." The court further ruled that proffered

testimony that it's a common experience to have difficulty with

taxes when trauma occurs was irrelevant because the question in the

case was whether income was willfully omitted. It noted also that

such an opinion about traumatic events is outside the expertise of

an accountant. The court denied the government's motion with

respect to testimony about efforts Hatch may have made to file

amended returns, indicating that it was too early (pre-trial) to

decide whether such evidence would be admissible. It ruled

discussion about the alleged incompetence of the prepared tax

returns to be irrelevant but noted that Hatch could pursue

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data, or a flawed methodology. Finally, Pleshaw's testimony did

not stray into a statement of opinion about Hatch's intent to evade

income taxes. See Fed. R. Evid. 704(b) (expert may not testify to

mental state of defendant where mental state is element of the

offense); Mikutowicz, 365 F.3d at 72. There was no abuse of 10

discretion.

e. Urso

After briefing and argument by the parties below, the

district court granted in part and denied in part the government's

motion in limine to preclude Daniel Urso, a CPA and witness for the

defense, from testifying on certain topics. The court nonetheless 11
testimony on the issue of whether Hatch didn't claim deductions

that would have reduced his tax liability.

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made clear that either side could request reconsideration at trial.

Hatch now argues that there were four areas where his examination

of Urso was improperly restricted. Contrary to Hatch's

contentions, none of those areas would have gone to addressing the

central issue of whether Hatch willfully withheld disclosure of

income on his tax returns.

The court first sustained an objection to the question,

"Can you tell the jury the basics about how a CPA starts to do

business and the relationship that is required to do appropriate

business with a new client?" Defense counsel later proffered that

Urso would testify that "a normal business relationship with a CPA

takes time to develop, that they to start [sic] look into these

matters, and that there has been absolutely no due diligence with

Mr. Plotkin at all, and that would give a normal taxpayer cause to

be concerned about whether or not they had an accurate return."

This proffer did not demonstrate how the question was relevant. It

did not identify any specific instances of incompetence by Plotkin

or Wallis and, more importantly, did not show how the alleged

incompetence related to Hatch's intent.

The second area involved Hatch's attempt to introduce

testimony from Urso to the effect that the 1099 Hatch received

reflecting the $1,010,000 (Exhibit Twelve), was incorrectly filled
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out by SEG because the $1 million and $10,000 should have been

treated separately and certain numbers should have been shown in

different boxes in the form. The court noted, however, that

"[u]nless there is some evidence that because of the way this form

was filled out, Mr. Hatch was misled into believing this was not

taxable income, this evidence would be totally irrelevant." When

the court offered defense counsel another chance to make the

connection, he responded "it is relevant because it shows that SEG

got it wrong, and it was an extremely complicated tax issue." This

was not responsive to the point the court had made, that the issue

was not pertinent to whether Hatch believed this income was nontaxable.

The third area Hatch sought to explore with Urso was the

effect of the "alternative minimum tax" on the $200,000 in alleged

commissions listed in the Exhibit Three return, to suggest Hatch

would not have received any tax advantage from the false statements

had the return been filed. The court rightly found the issue

irrelevant. There was no indication Hatch was aware of the effect

of the alternative minimum tax when he told Wallis falsely about

commissions he paid on the prize. Additionally, since Hatch never

filed Exhibit Three, discussion of the claimed commissions would

not have gone to the issue of whether Hatch willfully failed to

disclose income to the IRS. The return he did file, Exhibit One,

the hypothetical return drawn up by Wallis, did not include any
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commissions at all because it made no reference to the "Survivor"

prize itself. 

The fourth area Hatch wanted to address with Urso was

that the tax returns prepared by Plotkin and Wallis were "abysmally

poorly prepared" and "incompetently prepared beyond imagination,"

and that Wallis had committed "ethics violations." The court

rightly ruled that the proposed testimony was irrelevant to the

issue of Hatch's intent. The court noted that Hatch was "not

claiming that he didn't file any of [the returns that were never

filed] because he thought there was some flaw in the return" and

that "[o]n the contrary, the gist of [his] position is that he

didn't understand enough about the tax laws to really know whether

these returns were correct or not". As the court concluded, "So,

therefore, any evidence that Mr. Urso might present as to whether

he agrees with every entry in the return or whether he would have

prepared the returns differently, is irrelevant."

Hatch relies on United States v. Lankford, 955 F.2d 1545,

1548 (11th Cir. 1992), in which the Eleventh Circuit found that a

district court had erred when it determined that the tax expert

offered by the defense could not testify about the reasonableness

of Lankford's conclusion that the money he received was a gift

rather than taxable income. Id. at 1550. Here, however, Lankford

does not help Hatch because there is no specific connection between

the expert testimony and Hatch's intent. Id. at 1550-52. The
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minimal restrictions on Urso's testimony were not an abuse of the

court's discretion.

VI. Sentencing

Lastly, Hatch challenges in the briefest of language his

sentence on the grounds that the court erred in the loss finding

and in applying a perjury enhancement. Both claims are undeveloped

and fail in any event.

The loss calculation claim is waived, United States v.

Barrow, 448 F.3d 37, 44 (1st Cir.), cert. denied, 127 S. Ct. 176

(2006) ("issues adverted to in a perfunctory manner, unaccompanied

by some effort at development argumentation, are deemed waived"

(citation omitted)). It is also meritless. Hatch claims that the

district court wrongly accepted Pleshaw's testimony that Hatch

evaded paying well over $400,000 in taxes (triggering a two-level

sentencing enhancement) instead of multiplying the total of the

alleged unpaid funds by 28 percent, as called for in the

guidelines, for a total of $399,000. Hatch ignores the language of

the guideline provision at issue, USSG § 2T1.1(c)(1) n.(A), which

provides that the court may accept a "more accurate determination

of the tax loss" in lieu of the guidelines' own recommended

calculation. At sentencing, the government argued that Pleshaw's

testimony had provided this more accurate determination (which was

also subject to cross-examination by the defense), and the court
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adopted this approach. On appeal, Hatch makes no argument to

undermine it.

Secondly, Hatch, apparently invoking an acquitted conduct

theory, glancingly argues that the court erred in applying an

upward adjustment because it found Hatch had lied on the stand.

The claim is waived because it is entirely underdeveloped.

Moreover, it fails because, sharply contrary to Hatch's vague claim

that "[m]uch of this finding was based on supposed perjury on the

counts on which Hatch was acquitted," the court catalogued many

instances in which Hatch had committed perjury, noting that the

list was "a pretty long one" and included lying on the stand about

his failure to disclose the income which formed the bases for the

charges on which he was convicted and about his alleged failure to

read the letter drafted by Wallis regarding the hypothetical

Exhibit One which he then submitted for his tax return. The court

further detailed false statements Hatch had made to the Probation

Office concerning his assets. Hatch did not raise the acquitted

conduct theory below and has an insurmountable hurdle here to show

any error, never mind plain error. United States v. Donnelly, 370

F.3d 87, 91-92 (1st Cir. 2004).

Affirmed.