NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       NOV 14 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT



 UNITED STATES OF AMERICA,                       No.    14-35581

                 Plaintiff-Appellee,             D.C. Nos.    3:11-cv-01179-SI
                                                              3:11-cv-01424-SI
   v.

 VARIOUS GOLD, SILVER AND COINS,                 MEMORANDUM*
 in rem; UP TO $550,542.07 IN FUNDS
 LOCATED IN US BANK ACCOUNT
 ENDING IN 5114, in rem; UP TO
 $98,854.52 IN FUNDS LOCATED IN
 KEY BANK ACCOUNT ENDING IN
 4138, in rem; UP TO $579,181.19 IN
 FUNDS LOCATED IN US BANK
 ACCOUNT ENDING IN 0109, in rem; UP
 TO $10,000.00 IN FUNDS LOCATED IN
 US BANK ACCOUNT ENDING IN 7613,
 in rem,

                 Defendants,

 and

 JAMES G. COLE, an individual; JAMES
 G. COLE, INC., a corporation;
 SONICLIFE.COM, LLC, a limited liability
 company, FKA Sonic Health Systems,
 LLC,


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                  Claimants-Appellants.

                    Appeal from the United States District Court
                             for the District of Oregon
                    Michael H. Simon, District Judge, Presiding

                           Submitted November 9, 2016**
                                 Portland, Oregon

Before: McKEOWN, W. FLETCHER, and FISHER, Circuit Judges.

      James G. Cole, James G. Cole, Inc., and Soniclife.com, LLC (collectively

“Cole”) appeal from the district court’s denial of their motion for new trial after a

jury found in favor of the government in this civil in rem forfeiture action for mail

and wire fraud. We have jurisdiction under 28 U.S.C. § 1291, and we review for

abuse of discretion the district court’s denial of the motion for a new trial. Janes v.

Wal-Mart Stores Inc., 

, 886 (9th Cir. 2002). Evidentiary rulings are

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

reversal. 

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

because the exhibit risked confusing the issues at trial. Fed. R. Evid. 403. The

decision of Cole’s employee, Mr. George, in 2004 to decline to manufacture illegal


      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                           2
drugs goes beyond rebutting the government’s theory of fraud. Further, Cole was

otherwise permitted to testify as to his belief that he did not need to disclose the

prior conviction because Mr. George had reformed.

      Although Dr. Brueggemeyer’s testimony about the FDA’s scientific testing

probably qualifies as expert testimony, see Fed. R. Evid. 701 advisory committee’s

note, any error in admitting it as lay testimony was harmless. Cole already had

notice of the government’s analogue-drug theory through the expert report and trial

testimony of the government’s timely disclosed expert witness, Dr. Hilmas. Cole

chose not to call a rebuttal expert to respond to Dr. Hilmas. Dr. Brueggemeyer’s

testimony stayed within the bounds of what the government said he would testify

to as a lay witness, and Cole deposed him before trial. Cole has not shown that

affording the Rule 26 protections likely would have changed the verdict. See

United States v. Figueroa-Lopez, 

, 1247 (9th Cir. 1997).

      The government also presented several other fraud theories and supporting

evidence. The district court appropriately acted within its discretion in concluding

that, even if there were error on the grounds identified by Cole, a new trial was not

warranted because the trial was fair and the jury verdict was not against the weight

of the evidence. See Molski v. M.J. Cable, Inc., 

, 729 (9th Cir. 2007).

                                           3
AFFIRMED.




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