United States v. Ji Eon Lee , 528 F. App'x 773 ( 2013 )

FILED
NOT FOR PUBLICATION JUN 19 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10382
Plaintiff - Appellee, D.C. No. 1:09-cr-00059-1
v.
MEMORANDUM*
JI EON LEE,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Guam
Frances Tydingco-Gatewood, Chief District Judge, Presiding
Submitted June 12, 2013**
Honolulu, Hawaii
Before: FARRIS, D.W. NELSON, and NGUYEN, Circuit Judges.
Appellant Ji Eon Lee appeals her July 17, 2012 jury conviction for perjury,
in violation of 18 U.S.C. § 1621. Lee and her husband, Melvin Davis, were
indicted for marriage fraud and perjury following Lee’s application for permanent
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
resident status. Lee was convicted on Count IV of the indictment, in which she
was charged with perjury based on statements she made under oath in a 2009 oral
interview with a USCIS officer. On appeal, Lee contends that the question,
“[w]ere you and Mr. Davis living together when you applied for your marriage
license?” was fundamentally ambiguous. We have jurisdiction pursuant to 28
U.S.C. § 1291 and we affirm.
“A fundamentally ambiguous statement cannot, as a matter of law, support a
perjury conviction.” United States v. Camper, 384 F.3d 1073, 1076 (9th Cir.
2004). “A question is fundamentally ambiguous when men of ordinary
intelligence cannot arrive at a mutual understanding of its meaning.” Id. (quoting
United States v. Culliton, 328 F.3d 1074, 1078 (9th Cir. 2003) (per curiam)). In
determining whether a question is fundamentally ambiguous, “[the court] must
consider the context of the question and [the] answers, as well as other extrinsic
evidence relevant to [the defendant’s] understanding of the questions . . . .”
Culliton, 328 F.3d at 1079. “A statement is not fundamentally ambiguous simply
because the questioner and respondent could possibly have had different
interpretations.” Camper, 384 F.3d at 1076 (quoting Culliton, 328 F.3d at 1079).
Moreover, “the existence of ‘some ambiguity’ in a falsely answered question is
generally not inconsistent with a conviction for perjury.” Id. (quoting United
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States v. McKenna, 327 F.3d 830, 841 (9th Cir. 2003)). “Ordinarily, the finder of
fact decides which of the plausible interpretations of an ambiguous question the
defendant apprehended and responded to.” Id. (citing Culliton, 328 F.3d at 1078).
Considering the context in which the question was asked, and the broader
purpose of the interview itself, we find that the question whether Lee and Davis
were living together at the time they applied for a marriage license was not
fundamentally ambiguous. Although the question may be susceptible to slightly
differing interpretations, persons of ordinary intelligence could arrive at a mutual
understanding of its meaning.
Because the question whether Lee and Davis were living together when they
applied for a marriage license is not fundamentally ambiguous, the jury was free to
determine—based on the record before it—how Lee interpreted the question and
whether she answered it truthfully. Lee has not argued that there was insufficient
evidence in the record to support the jury’s finding that her answer was false.
Therefore, we need not address the issue. See United States v. Waters, 627 F.3d
345, 359 n.6 (9th Cir. 2010) (failure to raise issue in opening brief results in
waiver).
AFFIRMED.
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