UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 19-4167


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

WILLIAM TODD COONTZ,

                     Defendant - Appellant.



Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Robert J. Conrad, Jr., District Judge. (3:17-cr-00184-RJC-DSC-1)


Submitted: February 21, 2020                                      Decided: April 17, 2020


Before GREGORY, Chief Judge, and WYNN and RICHARDSON, Circuit Judges.


Affirmed by unpublished per curiam opinion.


David G. Barger, GREENBERG TRAURIG, LLP, McLean, Virginia, for Appellant.
R. Andrew Murray, United States Attorney, Anthony J. Enright, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       A jury convicted William Todd Coontz on three counts of willful failure to pay

income taxes (Counts 1 to 3), in violation of 26 U.S.C. § 7203 (2018), and four counts of

aiding and assisting the filing of false tax returns (Counts 4 to 7), in violation of 26 U.S.C.

§ 7206(2) (2018). The district court sentenced Coontz above the applicable Sentencing

Guidelines range to an aggregate 60 months’ imprisonment. In this appeal, Coontz raises

multiple challenges to his convictions, arguing that the district court abused its discretion

in several of its evidentiary rulings and that the evidence was insufficient to support the

jury’s verdicts on Counts 4 to 7. He also challenges the upward-variant sentence he

received. Finding no reversible error, we affirm.

                                                  I.

       We review a district court’s evidentiary rulings for abuse of discretion and “will

only overturn a ruling that is arbitrary and irrational.” United States v. Farrell, 

, 143 (4th Cir.) (alteration and internal quotation marks omitted), cert. denied, 140 S.

Ct. 269 (2019). Even if an evidentiary ruling is erroneous, we will not vacate the conviction

if the error was harmless. United States v. Medford, 

, 751 (4th Cir. 2011).

“An error is harmless if we can say with fair assurance, after pondering all that happened

without stripping the erroneous action from the whole, that the judgment was not

substantially swayed by the error.” United States v. Burfoot, 

, 340 (4th Cir.

2018) (internal quotation marks omitted).




                                              2
                                                 A.

       Coontz first asserts that the district court erroneously admitted opinion testimony

from Trent Arnold, Coontz’s former accountant, regarding Coontz’s understanding of the

tax laws, as that evidence was without foundation and irrelevant. “A witness may testify

to a matter only if evidence is introduced sufficient to support a finding that the witness

has personal knowledge of the matter,” which “may consist of the witness’s own

testimony.” Fed. R. Evid. 602. Arnold was permitted to give lay opinion testimony that

was “(a) rationally based on [his] perception; (b) helpful to clearly understanding [his]

testimony or to determining a fact in issue; and (c) not based on scientific, technical, or

other specialized knowledge within the scope of [Fed. R. Evid.] 702.” Fed. R. Evid. 701;

see United States v. Perkins, 

, 155 (4th Cir. 2006).

       Relevant evidence generally is admissible. Fed. R. Evid. 402. “Evidence is relevant

if: (a) it has any tendency to make a fact more or less probable than it would be without the

evidence; and (b) the fact is of consequence in determining the action.” Fed. R. Evid. 401.

“The threshold for determining whether evidence is relevant is comparatively low, and we

rarely reverse such decisions because they are fundamentally a matter of trial

management.” United States v. Recio, 

, 235 (4th Cir. 2018) (internal quotation

marks omitted).

       We conclude that Arnold’s testimony as to his tax-related interactions with Coontz

on multiple occasions over a period of years provided a sufficient base of personal

knowledge to support Arnold’s opinion. While testimony linking Arnold’s opinion to

Coontz’s specific statements or actions, or to specific provisions in the tax code, may have

                                             3
strengthened the value of this evidence, we conclude that those limitations are pertinent to

the weight, not the admissibility, of the evidence. Further, Arnold’s opinion was relevant

to the central disputed issue of willfulness. We therefore find no abuse of discretion in the

admission of this evidence.

                                                 B.

       Coontz next argues that the district court abused its discretion in allowing Arnold to

testify as to why he resigned from preparing Coontz’s taxes and why he documented his

advice to Coontz regarding the need to take a salary reportable on a W-2 tax form. Arnold’s

testimony that he advised Coontz multiple times that he should take a salary and complete

a W-2, rather than taking distributions from his companies; that Arnold emphasized the

importance of this advice to Coontz by documenting it in writing; and that Coontz did not

take this advice are all relevant to Coontz’s willfulness in failing to properly report the

distributions he received as income. See Spies v. United States, 

, 499 (1943)

(describing facts probative of willfulness in tax fraud context). Even assuming, without

deciding, that the district court abused its discretion in allowing Arnold to testify that he

resigned because Coontz would not take his advice and that he believed he needed to

protect himself, our thorough review of the trial record convinces us that the admission of

this evidence was harmless. See 

.

                                                 C.

       Coontz further argues that the district court abused its discretion in excluding

testimony from his proposed expert witness, accountant Peter Bell. District courts possess

“considerable discretion to determine whether to admit expert testimony.” United States

                                             4
v. Iskander, 

, 238 (4th Cir. 2005). An expert may give an opinion on “matters

involving . . . specialized knowledge so long as the testimony will assist the trier of fact to

understand the evidence or to determine a fact in issue.” United States v. Offill, 

, 175 (4th Cir. 2011) (internal quotation marks omitted); see Fed. R. Evid. 702.

“[O]pinion testimony that states a legal standard or draws a legal conclusion by applying

law to the facts” generally is unhelpful to the jury and, thus, inadmissible. United States v.

McIver, 

, 562 (4th Cir. 2006); see United States v. Barile, 

, 760

(4th Cir. 2002). Even in cases involving complex legal or regulatory schemes, “the jury

must be instructed on the law by the court and not by the witnesses,” and the court generally

should not permit experts “to give opinions on what the law means or how it is interpreted.”

United States v. Wilson, 

, 265-66 (4th Cir. 1997).

       Here, Bell’s proffered testimony addressed bare tax law principles that were more

appropriately left to the trial judge. Cf. United States v. Monus, 

, 385-86 (6th

Cir. 1997) (recognizing that legal opinions generally are inadmissible, but upholding

admission of expert’s opinion on tax liability in response to specific hypothetical

questions). Although the court did not instruct the jury on particular matters within the

compass of Bell’s proffered testimony—a decision that Coontz does not challenge—

Coontz did not seek jury instructions on these matters, even when provided an opportunity

to do so. See United States v. Simon, 

, 699-700 (7th Cir. 2013). Portions of

Bell’s testimony also were potentially confusing or misleading to the jury regarding

Coontz’s tax obligations, and Bell’s opinions were not based on his knowledge of facts

relevant to Coontz’s own state of mind.

                                              5
       Coontz appears to assert that testimony from two of the Government’s witnesses

opened the door to Bell’s testimony. Although these witnesses were permitted to testify

regarding basic tax concepts, some of which were related to Bell’s proffered testimony,

that testimony addressed tax law only as necessary to explain their testimony as fact

witnesses.   With a single exception, this testimony was entirely consistent with the

testimony Bell would have provided on those matters. See 

.

Further, one of these witnesses testified as to tax concepts only on cross-examination by

Coontz or during redirect examination directly elicited by Coontz’s questioning,

preventing that testimony from “opening the door” to Bell’s testimony. See United States

v. Birchette, 

, 61 (4th Cir. 2018) (discussing evidentiary “door opening”), cert.

denied, 

(2019).

       We note that Arnold’s testimony regarding the need to take a salary reportable on a

W-2 form, when viewed in context, may have conflicted with Bell’s proffered opinion on

that subject. See United States v. Lankford, 

, 1550-52 (11th Cir. 1992).

Nevertheless, viewing the totality of the evidence, any error in the court’s failure to allow

Bell to testify on this specific matter was harmless. See 

. Thus,

we discern no reversible error on this ground.

                                             II.

       Turning to Coontz’s sufficiency challenge, Coontz argues that the district court

erred in denying his motion for judgment of acquittal because the Government failed to

adduce evidence establishing that various expenses paid by Coontz’s companies on his

behalf but not reported as income were, in fact, personal expenses. Coontz acknowledges

                                             6
that this “personal expenses” theory was one of two theories through which the

Government sought to establish his guilt of Counts 4 to 7. He argues, however, that the

jury’s general verdict requires vacatur of those counts, as it is not possible to determine

whether the verdict relied on the “personal expenses” theory or the Government’s

alternative “unreported checks” theory.

       Typically, we review the denial of a motion for judgment of acquittal de novo.

United States v. Zelaya, 

, 925 (4th Cir. 2018), cert. denied, 

(2019). Under that standard, we will uphold the jury’s verdict if, viewing the evidence in

the light most favorable to the Government, substantial evidence supports the verdict.

. We ask whether “any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” United States v. Robinson,

, 268 (4th Cir. 2017) (internal quotation marks omitted). In conducting this

inquiry, “we are not entitled to assess witness credibility, and we assume that the jury

resolved any conflicting evidence in the prosecution’s favor.” United States v. Savage, 

, 219 (4th Cir.), cert. denied, 

(2018). “A defendant bringing a

sufficiency challenge must overcome a heavy burden,” as reversal is “confined to cases

where the prosecution’s failure is clear.” United States v. Palomino-Coronado, 

, 130 (4th Cir. 2015) (internal quotation marks omitted).

       As the Government observes, Coontz did not renew his Fed. R. Crim. P. 29 motion

after introducing evidence, and the district court did not reserve ruling on the motion

Coontz made at the close of the Government’s case. Thus, Coontz’s sufficiency challenge

is reviewable only for plain error. See United States v. Gray-Sommerville, 618 F. App’x

                                            7
165, 167 (4th Cir. 2015) (unpublished); United States v. Davis, 

, 336-37 &

n.6 (5th Cir. 2012); see also United States v. Wallace, 

, 332 (4th Cir. 2008)

(describing plain error standard).

       Ultimately, we conclude that Coontz cannot establish reversible error on this

ground. Contrary to Coontz’s assertion, where a case is submitted to the jury on two

theories and the jury returns a general guilty verdict, a challenge to the sufficiency of the

evidence must be rejected so long as the evidence is sufficient to support a conviction on

either theory. Griffin v. United States, 

, 56-60 (1991); see United States v.

Hastings, 

, 238 (4th Cir. 1998). * Thus, “when a defendant is convicted of a

crime based on alternative theories, and the Government produces sufficient evidence to

convict on one theory, a reviewing court need not consider whether the evidence is

sufficient on the alternative ground.” United States v. Ealy, 

, 298 (4th Cir.

2004) (citing 

). Here, the Government adduced overwhelming

evidence to support its “unreported checks” theory of liability—evidence that Coontz does

not fairly dispute. As that theory fully supports the jury’s verdict as to Counts 4 to 7,

Coontz’s sufficiency challenge necessarily fails.




       *
         Coontz’s reliance on Yates v. United States, 

(1957), overruled on
other grounds by Burks v. United States, 

(1978), and cases citing it is misplaced.
Yates provides the standard applicable to cases in which the court submits to the jury
alternate theories of liability, one of which is legally, not factually, inadequate or invalid.
United States v. Moye, 

, 399-400 & n.10 (4th Cir. 2006) (en banc) (discussing
Griffin and Yates); see 

.

                                              8
                                           III.

      Finally, Coontz argues that the district court violated Fed. R. Crim. P. 32(h) and the

Fifth and Eighth Amendments by sua sponte varying upward from the Guidelines range

without providing prior notice or an opportunity to object before the imposition of

sentence. We review questions of law, such as the court’s interpretation of the Federal

Rules of Criminal Procedure, de novo. See In re C.R. Bard, Inc., 

, 923 (4th

Cir. 2016). Because Coontz did not raise his constitutional claims in the district court,

however, our review of those issues is for plain error. See United States v. Jackson, 

, 270 n.2 (4th Cir. 2013).

       Coontz’s arguments grounded in Rule 32(h) and due process are squarely foreclosed

by Irizarry v. United States, 

, 713-14 (2008). And, despite his passing

reference to the Eighth Amendment, Coontz fails to meaningfully explain how the district

court’s mere nine-month variance could constitute cruel and unusual punishment. See

Graham v. Florida, 

, 60 (2010) (explaining that Eighth Amendment “forbids

only extreme sentences that are grossly disproportionate to the crime” (internal quotation

marks omitted)). We therefore find no error, plain or otherwise, in the court’s decision to

vary upward without providing advance notice.




                                            9
                                           IV.

      Accordingly, we affirm the district court’s judgment. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional process.



                                                                             AFFIRMED




                                           10