United States v. Christopher Kim ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 21 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-50041
Plaintiff-Appellee, D.C. No.
2:19-cr-00166-VAP-1
v.
CHRISTOPHER MYUNG KIM, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, Chief District Judge, Presiding
Argued and Submitted May 13, 2021
Pasadena, California
Before: OWENS and R. NELSON, Circuit Judges, and HELLERSTEIN,** District
Judge.
Christopher Kim appeals from his convictions and sentence for his
participation in a conspiracy to rob a warehouse of marijuana and cash while
serving a fake search warrant. As the parties are familiar with the facts, we do not
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Alvin K. Hellerstein, United States District Judge for
the Southern District of New York, sitting by designation.
recount them here. We affirm.
1. The district court properly instructed the jury regarding the specific intent
elements of 18 U.S.C. §§ 241 (conspiracy against rights) and 242 (deprivation of
rights under color of law). In Screws v. United States, 325 U.S. 91, 107 (1945), the
Supreme Court interpreted section 242 to require more than a “generally bad
purpose,” but also the specific “purpose to deprive the [victim] of a constitutional
right.” The Court later read the same “specific intent” element into section 241.
See Anderson v. United States, 417 U.S. 211, 223 (1974). The district court’s
instructions here, adopted from a joint proposal by the parties, tracked the statutory
language of sections 241 and 242 and included specific intent language requiring
proof of a purpose to deprive the victim of a constitutional right, consistent with
Screws.
2. Sufficient evidence supports the jury’s verdict as to the brandishing
enhancement in count five. Brandishing under 18 U.S.C. § 924(c)(1)(A)(ii)
requires the government to prove “1) the open display of the firearm, or knowledge
of the firearm’s presence by another in some manner, and 2) the purpose of
intimidation.” United States v. Beaudion, 416 F.3d 965, 968 (9th Cir. 2005). The
evidence at trial related to brandishing provided ample basis from which “any
rational trier of fact could have found the evidence sufficient.” United States v.
Pelisamen, 641 F.3d 399, 409 n.6 (9th Cir. 2011) (citation omitted). The jury
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heard evidence that the firearm was openly displayed, another was aware of its
presence, and that the purpose of the display was intimidation. That the weapon
was holstered by a member of law enforcement and that there may have been
multiple motives for displaying the weapon is immaterial. See Beaudion, 416 F.3d
at 968.
3. The district court did not plainly err in admitting Special Agent Truong’s
lay opinion testimony under Federal Rule of Evidence 701. While a police
officer’s employment “does not endow him with any freestanding license to offer
opinions,” an officer “may offer interpretations of ambiguous conversations based
upon his direct knowledge of the investigation, or translate the drug jargon used by
the targets of his investigation.” United States v. Perez, 962 F.3d 420, 435 (9th
Cir. 2020) (internal quotation marks and citation omitted); see also United States v.
Gadson, 763 F.3d 1189, 1210 (9th Cir. 2014). Agent Truong’s testimony was
therefore properly admitted. And to the extent there was any error, it was not
plain, and its admission did not have a “high probability” of “materially affect[ing]
the verdict.” United States v. Carr, 761 F.3d 1068, 1083 n.10 (9th Cir. 2014)
(citation omitted).
4. The district court erred in admitting co-conspirator hearsay testimony
during Agent Truong’s testimony, but the error was harmless. “Federal Rule of
Evidence 801(d)(2)(E) . . . excludes from the definition of ‘hearsay’ those
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statements made by a coconspirator during the course and in furtherance of the
conspiracy.” United States v. Shryock, 342 F.3d 948, 982 (9th Cir. 2003). At trial,
Agent Truong testified about statements made by Kim’s co-conspirator Marc
Antrim about the origins of the conspiracy. As the government concedes, a
statement made to law enforcement about the origins of the conspiracy after it has
been carried out is not a statement made “during the course and in furtherance of
the conspiracy.” Id. Nor is it admissible as a “statement against interest” under
Rule 804(b)(3) as that exception applies only to an unavailable declarant, and
Antrim was available and testified in court. Id. at 981. It is also not admissible as
a “prior consistent statement” under Rule 801(d)(1)(B), as the government now
argues, because that rule only applies where the declarant was “subject to cross-
examination concerning the statement,” rather than as a way “to counter all forms
of impeachment or to bolster the witness merely because she has been discredited.”
Tome v. United States, 513 U.S. 150, 156-57 (1995) (citation omitted).
Nonetheless, this error was harmless. We “will only reverse if an erroneous
evidentiary ruling more likely than not affected the verdict.” United States v.
Pang, 362 F.3d 1187, 1192 (9th Cir. 2004) (internal quotation marks and citation
omitted). Because Antrim testified during trial and offered the same explanation
about his initial connection to Kim, its admission through Agent Truong’s
testimony was harmless.
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5. The district court did not err in admitting co-conspirator hearsay
statements during the testimony of Kevin McBride, a member of the conspiracy to
rob the warehouse. We “review for clear error the district court’s underlying
factual determinations that a conspiracy existed and that the statements were made
in furtherance of that conspiracy.” Shryock, 342 F.3d at 981. Kim has not
demonstrated that the district court clearly erred in concluding that Antrim’s
statements to McBride, made during the conspiracy about his relationship with
Kim, did not further the conspiracy.
6. The district court did not commit sentencing error. In explaining its
conclusion that the offense was violent, the district court incorrectly commented
that the victims were placed at gunpoint. But the district court also emphasized
that one of the guards testified to having been traumatized and thinking she would
be killed during the robbery. In light of that additional observation, and the fact
that each of the co-conspirators was openly carrying what looked like handguns or
assault rifles to intimidate the guards, Kim has not shown a “reasonable
probability” that the district court’s error in remarking that the guards were held at
gunpoint “adversely affected his sentence.” United States v. Herrera, 974 F.3d
1040, 1045 (9th Cir. 2020).
Nor did the district court err in concluding that Kim was an “organizer or
leader” under U.S.S.G § 3B1.1(a), which provides for a four-level enhancement
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“[i]f the defendant was an organizer or leader of a criminal activity that involved
five or more participants or was otherwise extensive.” “[T]he organizer
enhancement properly applies to a defendant who organizes others in the
commission of the criminal activity even though he does not retain a supervisory
role over the other participants.” United States v. Doe, 778 F.3d 814, 824 (9th Cir.
2015) (internal quotation marks and citation omitted). The government introduced
significant evidence of Kim’s role in organizing the robbery. Therefore, the
district court did not err in concluding Kim was an “organizer or leader.”
U.S.S.G. § 3B1.1(a) (emphasis added).
The district court’s below-Guidelines sentence was not substantively
unreasonable due to sentencing disparities between Kim and his co-conspirators.
The court explained that, unlike Kim, his co-conspirators accepted responsibility
and pled guilty and/or cooperated.
AFFIRMED.
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