United States v. Huy Chi Luong , 468 F. App'x 710 ( 2012 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 15 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 07-10225
Plaintiff - Appellee, D.C. No. CR-96-00350-WBS
v.
MEMORANDUM*
HUY CHI LUONG,
aka Jimmy Luong, Chi Fei,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, Senior District Judge, Presiding
Argued and Submitted January 19, 2012
San Francisco, California
Before: McKEOWN, CLIFTON, and BYBEE, Circuit Judges.
Huy Chi Luong appeals from his Eastern District of California convictions
for money laundering and the resulting 480-month prison sentence. We affirm the
convictions, but vacate the sentence and remand to the district court for
resentencing.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
I. Sufficiency of the Evidence
Luong first challenges the sufficiency of the government's evidence.
Evidence is sufficient for conviction if, viewed in the light most favorable to the
government, “‘any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.’” United States v. Tubiolo, 134 F.3d 989,
991 (9th Cir. 1998) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
Luong does not dispute that he received proceeds from the specified unlawful
activity (“SUA”), or that he participated in the charged financial transaction, but
contends (1) that the government did not prove that the money involved in the
charged financial transactions came from the SUA; and (2) that the government
failed to prove an attempt to conceal with respect to Count 86. Neither argument
succeeds.
The government presented evidence that Luong received significant
proceeds from the Zenon and Centon robberies during the time period of the
charged financial transactions. The government also presented evidence from
which a jury could conclude that Luong did not have sufficient income from other
sources so as to cover the charged transactions. Luong’s argument that the money
could have come from other criminal activity is unavailing, as he did not introduce
evidence that he received proceeds from any other robberies during the time period
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in question. Considering all of the evidence together, a rational jury could find that
the funds used in the charged financial transactions were derived from the Zenon
and Centon robberies.
A rational jury could also conclude that Luong intended to conceal the
source, ownership, or control of the $5,000 he paid toward the mortgage of a piece
of real property. The government produced evidence that the actual owner of the
house was Luong, not his parents, whose names were on the deed, as well as
evidence that the money came from teller’s checks Luong had someone else
purchase for him.
II. Mulitiplicity
Luong next argues that Counts 64-66 are multiplicitious. Charges are
multiplicitious if they charge a single offense in multiple counts. See United States
v. UCO Oil Co., 546 F.2d 833, 835 (9th Cir. 1976). Luong contends that the
purchase and deposit of two teller’s checks constitute a single financial transaction.
However, 18 U.S.C. § 1956(c)(3) defines a transaction as including “a deposit,
withdrawal, transfer between accounts, exchange of currency, loan, extension of
credit, purchase or sale of any stock, bond, certificate of deposit, or other monetary
instrument.” 18 U.S.C. § 1956(c)(3) (emphasis added). Each purchase of a teller’s
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check constitutes a distinct financial transaction, as does a deposit. Therefore,
charging the purchases and deposit in distinct counts was not multiplicitous.
III. Venue
Luong also argues that venue was lacking for Counts 64 and 65, which
charged Luong with purchasing teller’s checks in Alhambra, California, a city
outside the Eastern District of California. Venue must be proper for each count.
United States v. Corona, 34 F.3d 876, 879 (9th Cir. 1994).
Though venue is usually challenged prior to the start of trial, a venue
challenge may be timely raised in a motion for acquittal at the close of the
government’s case when the defect in venue is not apparent on the face of the
indictment. United States v. Ruelas-Arreguin, 219 F.3d 1056, 1060 (9th Cir.
2000). Here, however, Luong raised his venue challenge only after the jury
returned a guilty verdict. That challenge was untimely. United States v. Powell,
498 F.2d 890, 891 (9th Cir. 1974) (“[V]enue may be waived, and where, as here,
the objection was not raised until after the jury had returned its verdict of guilty,
we find that waiver did in fact occur. A new trial on venue grounds raised after the
jury has convicted gives the appellant a second bite at the apple to which he is not
entitled under the circumstances here.” (citations omitted)). After the defendant
has put on his entire defense, the desired benefit is moot. Luong does not offer a
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reason for the extended delay, nor does he argue that he was prejudiced in any
manner. Because the challenge was untimely, we do not reach the merits.
IV. Sentencing
Finally, Luong challenges his 480-month sentence as procedurally and
substantively unreasonable. We vacate the sentence and remand for resentencing,
as the record indicates there may have been confusion regarding this defendant’s
actions and the crimes for which he was being sentenced. The district court’s
mention of “beatings” at sentencing, when there is no evidence of any beatings in
the record, leaves the impression that Luong may have been sentenced based on the
facts of crimes in which he was not involved. Reliance on clearly erroneous facts
is procedural error that warrants resentencing.
As it does not appear to us that the district judge will be unable to put
extraneous facts out of his mind, we do not grant Luong’s request to remand to a
different judge. We do advise, however, that the district court is to consider all
circumstances and subsequent developments on resentencing, including Luong’s
sentence on RICO charges in the Northern District of California.
AFFIRMED in part, VACATED and REMANDED in part.
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