United States v. Kevyn Paik ( 2012 )

FILED
NOT FOR PUBLICATION FEB 27 2012
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. 10-10568
Plaintiff - Appellee, D.C. No. 1:09-cr-00129-JMS-1
v.
MEMORANDUM *
KEVYN PAIK,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Hawaii
J. Michael Seabright, District Judge, Presiding
Argued and Submitted February 16, 2012
Honolulu, Hawaii
Before: GOODWIN, TROTT, and MURGUIA, Circuit Judges.
Kevyn Paik appeals his convictions of two counts of mail fraud in violation
of 18 U.S.C. § 1341, two counts of wire fraud in violation of 18 U.S.C. § 1343, and
one count of criminal conflict of interest in violation of 18 U.S.C. § 208. Because
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
the facts are known to the parties, we recount them here only as necessary to
explain our decision. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. There was sufficient evidence to show that Paik and his co-defendant
took great care to conceal Paik’s involvement in the Pond C subcontract not only
from Ducks Unlimited (DU), but also from the U.S. Fish & Wildlife Service
(FWS). Refuge manager Michael Hawkes testified that if Paik’s name had
appeared on any invoice from DU, FWS would not have approved reimbursement
to DU. Given the defendants’ multiple attempts to obtain subcontracts for various
projects at the Refuge, the jury reasonably inferred that FWS’s continued
unawareness of Paik’s involvement was essential to his ongoing fraudulent scheme
and that Paik therefore intended “to obtain money or property from the one who
[was] deceived.” United States v. Lew, 875 F.2d 219, 221 (9th Cir. 1989). The
prosecution also sufficiently proved that Paik knew FWS would reimburse DU for
its payment to Paik’s co-defendant on the subcontract; thus, when Paik “falsified
the [bids] . . . , he was effectively harming the [United States].” United States v.
Bonallo, 858 F.2d 1427, 1434 n.9 (9th Cir. 1988).
2. For the same reasons, sufficient evidence supports the conclusion that
the wire transfers from FWS to DU constituted “a step in the plot” and therefore
furthered Paik’s fraudulent scheme. Schmuck v. United States, 489 U.S. 705, 711
2
(1989) (internal quotation marks and alteration omitted). The jury could have
reasonably inferred that Paik’s ongoing fraudulent scheme depended on the FWS’s
unawareness and did not “reach fruition” until after the wire transfers occurred. Id.
at 712.
3. We need not decide if the mail fraud and wire fraud statutes require an
intent to harm because even if such an intent is required, the prosecution
sufficiently proved that intent. The evidence shows that Paik’s deceitful conduct
“depriv[ed] the [FWS] of the opportunity to weigh the true benefits and risks of the
transaction.” United States v. Treadwell, 593 F.3d 990, 997 (9th Cir. 2010).
4. With respect to the wire transfers from FWS to DU, Paik knew his
fraudulent scheme involved a straw contractor in Hawaii, a general contractor
based on the mainland, and the U.S. government. Thus, the jury reasonably
concluded that Paik foresaw the use of the wires. See United States v. Cusino, 694
F.2d 185, 188 (9th Cir. 1982) (“One ‘causes’ use of the mails or wire
communications where such use can reasonably be foreseen, even though not
specifically intended.”); see also United States v. Goodson, 155 F.3d 963, 967 (8th
Cir. 1998) (“In today’s technology-oriented environment, electronic money
transfers are a common and often indispensable part of ordinary business
activities.”).
3
5. Sufficient evidence also supports the jury’s finding that Paik violated
the criminal conflict of interest statute by participating “personally and
substantially as a Government officer or employee” in a matter in which he had a
financial interest. 18 U.S.C. § 208(a). Mike Mitchell of FWS testified that Paik
was the primary FWS employee assisting DU and that he “was the on-the-ground
person who was overseeing the construction.” The prosecution proved Paik was
acting as an FWS employee while working with DU on the Pond C subcontract.
6. There was no plain error in the conflict of interest jury instruction
because it did not constructively amend the indictment. A constructive amendment
occurs when “a complex of facts presented at trial [is] distinctly different from
those set forth” in the indictment or where “the crime charged in the indictment
was substantially altered at trial.” United States v. Shipsey, 363 F.3d 962, 974 (9th
Cir. 2004) (internal quotation marks and alterations omitted). Here, however, the
indictment, the evidence, and the instruction were not substantially different and
involved only a single set of facts -- Paik’s fraudulent scheme to obtain money
from the United States by helping his co-defendant obtain and perform the Pond C
subcontract.
AFFIRMED.
4