Metropolitan News-Enterprise


Friday, September 25, 2020


Page 1


Ninth Circuit:

IRS Special Agent Who Cheated on Taxes Not Prejudiced by Barring of Testimony

Conviction on Multiple Counts Is Upheld Over Defendant’s Protest That Her Husband Was Limited in Testimony As to Her Odd Behavior


Above is the badge of Internal Revenue Service special agents in the Criminal Investigation division. Alena Aleykina was such an agent while committing tax fraud. Her conviction was affirmed yesterday by the  Ninth U.S. Circuit Court of Appeals.

By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday affirmed the conviction of a former special agent for the Internal Revenue Service’s Criminal Investigation division for filing false tax returns, obstructing justice and the theft of government money, rejecting her contention that she was denied a fair trial because the judge limited her husband’s testimony as to her odd behavior.

A memorandum opinion by a three-judge panel comes in response to an appeal by Alena Aleykina, who was sentenced Oct. 23, 2018 by District Court Judge John A. Mendez of the Eastern District of California to four years and three months in prison. The panel—comprised of Senior Judge Mary M. Schroeder and Judges William A. Fletcher and Lawrence VanDyke—said:

“[T]he testimony that her husband would have given—including such things as his observations of Aleykina ‘planting fruit trees randomly in the back yard: purchasing spare kitchen appliances for no apparent reason: placing clean clothes on a pile in the middle of the room: keeping clothes, half-eaten food, and paperwork in her car: and frequently and randomly changing residences’—is not incompatible with the ability to form the requisite mens rea or criminal intent for the crimes Aleykina was charged with. Indeed, there was ample evidence properly before the jury that Aleykina was capable of forming the required criminal intent, including that she was still performing her duties as an IRS Special Agent investigating criminal tax fraud, and filing her own (false) tax returns, as well as her husband’s.”

Even if exclusion of the testimony was error, the panel said, it was harmless because it is unlikely it would have changed the result, especially in light of the husband having been allowed to testify that the defendant “ ‘just wasn’t herself,’ was ‘having trouble,’ and may have ‘had postpartum or something.’ ”

Aleykina was found to have fraudulently obtained a decree of legal separation from the Yolo Superior Court in order to gain a tax advantage. She contended in the Ninth Circuit that an expert who testified that the separation was invalid for federal tax purposes usurped the function of the jury.

The opinion responds:

“The expert did not opine that Aleykina’s separation was not valid as a matter of California law. Rather, he was offering his opinion that the separation—valid or not as a matter of state law—was obtained and used for invalid purposes from a federal tax standpoint. He opined that for federal tax purposes—such as head of household filing status—the separation was invalid based on all of the evidence that he reviewed. The expert pointed out that the evidence showed that Aleykina listed a false address in procuring her separation order, continued to live with her husband after her alleged separation, had another child with her husband, referred to her husband as her husband in emails, and held health insurance with her husband.”

The opinion continues:

“Even if the district court improperly allowed the expert to opine about Aleykina’s separation during his testimony, the evidence that the expert relied on. and that the jury would have heard anyway, would lead a reasonable juror to reach the same conclusion.”

The obstruction of justice charge stemmed, in part, from Aleykina having deleted dozens of files from her laptop after investigators came to seize the machine and she lied that she didn’t know where it was. She argued on appeal that deletion of the files did not support a conviction because forensic experts recovered some of them.

The opinion says:

“This argument fails because Aleykina succeeded in destroying some of the files on the laptop.”

It adds that even if all of the files had been recovered, it remains that she altered evidence, which is also an obstruction of justice.

Among other conduct prosecutors proved was that the defendant claimed to be taking English classes—in which she was not enrolled—and received $4,000 for tuition from the IRS. Mendez ordered that she make restitution of those funds, and also ordered three years of supervised probation after serving her prison sentence.

The case is United States v. Aleykina, 18-10420.


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