United States v. Quan ( 2009 )

FILED
NOT FOR PUBLICATION DEC 01 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 07-10597
Plaintiff - Appellee, D.C. No. CR-04-00323-WBS-1
v.
MEMORANDUM *
JIMMY QUAN, a.k.a. Toha Quan,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
William B. Shubb, District Judge, Presiding
Argued and Submitted November 2, 2009
San Francisco, California
Before: RYMER, McKEOWN and N.R. SMITH, Circuit Judges.
Petitioner Jimmy Quan (“Quan”) appeals his final judgment and sentence on
one count of conspiracy to commit bankruptcy fraud (18 U.S.C. § 371), three
counts of concealing property (18 U.S.C. § 152(7)), one count of bankruptcy fraud
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
(18 U.S.C. § 157(2)), and five counts of money laundering (18 U.S.C. §
1956(a)(1)(B)(i)). The ten counts center around three bankruptcy schemes that
took place between March 1997 and August 2005. We affirm on all counts.
I.
Quan moved for acquittal on the grounds of insufficient evidence to support
a single, overarching conspiracy to commit bankruptcy fraud. We review the
district court’s denial of the motion de novo. United States v. Marguet-Pillado,
560 F.3d 1078, 1081 (9th Cir. 2009). We are required to view the evidence in the
light most favorable to the prosecution, and determine whether any rational juror
could have found the essential elements of the crime beyond a reasonable doubt.
Id. Under a “factors analysis,” there is sufficient evidence for a reasonable juror to
have determined that a single conspiracy linked the three bankruptcy schemes. See
United States v. Zemek, 634 F.2d 1159, 1168 (9th Cir. 1980) (holding that a
“single conspiracy can be identified . . . either by isolating various elements under
the ‘factors’ analysis or by aggregating evidence under the ‘single agreement’
test”).
Because a rational juror could also have found that Quan intended to defeat
the provisions of Title 11 by diverting funds and concealing various payments and
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property interests, we affirm the district court’s denial of Quan’s motions regarding
those counts as well.
II.
Quan forfeited his objections to the jury instructions; we therefore review for
plain error. See Johnson v. United States, 520 U.S. 461, 466-67 (1997). We have
discretion not to take notice of any forfeited errors that fail to “seriously affect[]
the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal
quotations omitted).
The jury was explicitly told that in order to convict it must find that one of
the members of the conspiracy committed at least one overt act for the purposes of
carrying out the conspiracy. There is no reason to think that the jury believed
acquitted co-conspirators could satisfy this requirement, and there was no error in
the district court’s failure to instruct that the jury was not permitted to convict
Quan on this basis.
While it was error for the district court not to instruct the jury that the
requisite overt act must have been performed within the statute of limitations
period, the error did not seriously affect the fairness, integrity, or public reputation
of the judicial proceedings. The jury found a conspirator (either Quan or Anna
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Wong) guilty of three counts involving overt acts that occurred within the statute
of limitations period. Each of these acts was capable of grounding the conspiracy
charge; there is little reason to think the error had a detrimental affect on Quan’s
verdict.
Quan’s contention that the jury should also have been instructed that pre-
petition acts required him to have acted “in contemplation” of bankruptcy is
unavailing. A conviction under 18 U.S.C. § 152(7) can be sustained by a jury
finding that Quan acted with the intent to defeat the provisions of Title 11 after he
filed a bankruptcy petition. Given the government’s theory and the evidence it put
forward at trial, it was not necessary for the jury to be instructed on the mens rea
required for pre-petition acts.
III.
Quan argues that no rational juror could have convicted him under 18 U.S.C.
§ 157(2) because the government did not present the jury with a fraud “outside the
bankruptcy” as required by United States v. Milwitt, 475 F.3d 1150 (9th Cir.
2007). Under the facts alleged, Quan attempted to defraud his creditors and filed a
bankruptcy petition in furtherance of that attempt. Even if Quan is correct that we
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are bound by the distinction he identifies in Milwitt, his scheme qualifies as
“outside” the bankruptcy for purposes of the statute.
IV
Quan’s money laundering charges require a predicate offense separate and
distinct from the act constituting the money laundering. United States v. Savage,
67 F.3d 1435, 1442 (9th Cir. 1995), partially abrogated on other grounds by United
States v. Van Alstyne, 584 F.3d 803, 813 (9th Cir. 2009). Although Count
Twenty-Three charges Quan with an offense lasting well beyond the laundering
itself, the money laundering convictions are sufficiently supported by a separate
and distinct phase of that offense—namely, Quan’s failure to disclose the transfer
of the property on Le Conte Avenue.
Finally, in light of our recent decision in Van Alstyne, Quan’s argument
based on Santos v. United States, 128 S. Ct. 2020 (2008) is foreclosed. In Van
Alstyne we held “that ‘proceeds’ means ‘profits’ where viewing ‘proceeds’ as
‘receipts’ would present a ‘merger’ problem of the kind that troubled the plurality
and concurrence in Santos.” Van Alstyne, 584 F.3d at 814. Because there was no
such merger problem presented here, the receipts from the sale of the Le Conte
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Avenue property qualify as proceeds sufficient for a conviction under the money
laundering statute.
AFFIRMED.
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