MEMORANDUM**

John G. Westine, Jr., appeals his jury conviction for income tax evasion for the calendar year 1983 and failure to file an income tax return for the calendar year 1984. Westine argues that the district court's instructions to the jury impermissibly relieved the government of its burden of proving intent in violation of Sandstrom v. Montana, 442 U.S. 910 (1979). We review de novo, United States v. Stenberg, 803 F.2d 422, 433 (9th Cir.1986), and affirm.

"A jury instruction is constitutionally defective if it creates a mandatory presumption that shifts from the prosecution the burden of proving beyond a reasonable doubt an essential element of a criminal offense." United States v. Heuer, 916 F.2d 1457, 1461 (9th Cir.1990); see Sandstrom, 442 U.S. at 519. Nevertheless, a Sandstrom error is not grounds for a reversal if, in light of the whole record, the error is harmless beyond a reasonable doubt. Rose v. Clark, 478 U.S. 570, 576-579 (1985).

An error that impermissably shifts the burden of proof on an element of intent is harmless when the predicate facts establish intent beyond a reasonable doubt so that no rational jury could find the defendant committed the relevant criminal act but did not intend to cause the injury. Id.; see also Pope v. Illinois, 481 U.S. 497, 503 n. 6 (1987); Russ v. Kincheloe, 843 F.2d 1240, 1241 (9th Cir.1988) (reversal required if error complained of "might have contributed to the conviction" or the instruction complained of "possibly influenced the jury adversely to the litigant").

Here, Westine challenges remarks made by the judge to the jury during Westine's closing argument about a letter dated September 27, 1982 from the IRS to Westine stating that he would be audited for the tax year 1981.

During closing argument, the government argued that Westine had schemed "over the years ... to evade ... the payment of taxes." As illustration, the government pointed first to Westine's filing of identical tax returns for the calendar year 1981 and 1982. The government then stated that in September 1982, Westine had received notice that he would be audited for the calendar year 1981 and thereafter, on October 11, 1982, filed a W-4 in which he wrongfully claimed he was exempt from paying taxes for calendar year 1983. The government argued that when he received the September 1982 notice, Westine knew he was being audited for at least calendar years 1981 and 1982 and claimed he was exempt on the W-4 form to avoid future audits.

In response, Westine argued to the jury that "if you listen closely to [the prosecutor's argument], he said, quote, the letter presumably was received by the defendant." Westine argued that this was only "conjecture, presumption, [and] suspicion" which was not "proof beyond a reasonable doubt. You need direct evidence." The judge then interrupted the argument, saying "[l]isten to the law, members of the jury. You can consider presumptions. You cannot consider any conjecture or suspicion. But you can consider presumptions." Westine responded that there was "no legal presumption that Mr. Westine received that letter," and the judge answered, "[i]t is a presumption of the law because it was a letter properly mailed is received [sic] unless there is evidence to the contrary."

Westine argues that this instruction to the jury relieved the government of its burden of proving his intent and apparently argues that the jury could have found him guilty of tax evasion and failure to file an income tax return without finding that he intended to commit those crimes. Nevertheless, any Sandstrom error from the district court's instruction on the mailbox rule was harmless error. The jury was specifically instructed that the government must prove Westine guilty beyond a reasonable doubt, that Westine need not prove his innocence, that he was presumed innocent until every part of the charges were proved beyond a reasonable doubt, and that if the government failed to prove the charges, the jury must return a verdict of "not guilty." The judge also instructed the jury as to the government's burden to prove each element of the crime:

In order for the defendant to be found guilty of attempting to evade or defeat his income tax for a particular year, the government must prove two elements beyond a reasonable doubt.... And Second, that the defendant did some--did some willful affirmative act constituting evasion or attempted evasion of his income tax for the year in question....

Three elements must be proved in order to establish the offense [of failure to file an income tax return].... Third, that the defendant's failure to make the return was [w]illful.

Thus, the jury necessarily found that Westine had the requisite intent to commit the crimes, thereby rendering any Sandstrom error harmless. See Rose, 478 U.S. at 580-81, 583.

AFFIRMED.