United States v. Wing Ma ( 2021 )

FILED
NOT FOR PUBLICATION
DEC 10 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10252
Plaintiff-Appellee, D.C. No.
3:15-cr-00529-CRB-1
v.
WING WO MA, AKA Mark Ma, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Submitted December 6, 2021**
San Francisco, California
Before: LUCERO,*** IKUTA, and VANDYKE, Circuit Judges.
Wing Wo Ma appeals from his convictions for (1) conspiracy to
manufacture and to distribute, and possess with intent to distribute marijuana,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Carlos F. Lucero, United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
(2) use of a firearm during and in relation to a drug trafficking crime, (3) use of a
firearm during and in relation to a drug trafficking crime resulting in death, and
(4) conspiracy to commit honest services fraud and bribery. We have jurisdiction
under 28 U.S.C. § 1291, and affirm.
Ma’s argument that evidentiary errors require a new trial fails. First, the
alleged hearsay testimony regarding Ma’s $100,000 debt to Kong was admissible
as both a coconspirator statement and a statement against interest. See United
States v. Tamman, 782 F.3d 543, 553 (9th Cir. 2015); Fed. R. Evid. 804(b)(3).
Second, lay witness opinion testimony that Ma was a deceptive scam artist was
admissible because it concerns Ma’s character and reputation, falling squarely
within the categories of lay opinions expressly declared permissible under United
States v. Skeet, 665 F.2d 983, 985 (9th Cir. 1982). Third, Hu’s characterization of
Ma’s gifts as “bribes” did not constitute a legal conclusion—Hu merely used
“words of common currency which form part of the vocabulary of almost any
American in his teens or older.” United States v. Long, 534 F.2d 1097, 1100 (3d
Cir. 1976). Fourth, Hu’s testimony that he had pled guilty to committing honest
services fraud and bribery was admissible because Ma’s attorney opened the door
to references to Hu’s guilty plea. See United States v. Garcia-Guizar, 160 F.3d
511, 522 (9th Cir. 1998).
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Even if Luu’s testimony opining that Ma murdered Kong qualified as
inadmissible lay witness testimony, such evidence was cumulative of the audio-
recorded interview of Luu that was admitted into evidence and so any error was
harmless. Likewise, even if the district court erred in admitting Huynh’s testimony
opining that Ma’s story was not trustworthy, any error was harmless because Ma
himself admitted the story he told was a lie. Moreover, any errors in admitting
testimony were harmless whether viewed individually or in aggregate. See United
States v. Freeman, 498 F.3d 893, 905 (9th Cir. 2007); United States v. Inzunza, 638
F.3d 1006, 1024–25 (9th Cir. 2011).
The government presented sufficient evidence that Ma used a firearm in
relation to or in furtherance of the drug trafficking crime as required by counts two
and three. In closing argument, Ma’s attorney made the judicial admission that the
marijuana conspiracy charged in count one extended to the Bark Dumps grow site
where Kong and Chen were shot and killed. See United States v. Bentson, 947
F.2d 1353, 1356 (9th Cir. 1991). Even if Ma’s attorney had not made such an
admission, viewing the evidence “in the light most favorable to the government,”
United States v. Stoddard, 150 F.3d 1140, 1144 (9th Cir. 1998), a rational jury
could have found the same beyond a reasonable doubt. Among other evidence, the
conspirators planned the Bark Dumps grow site and made physical preparations to
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grow marijuana. Whether any marijuana plants could have been planted, or were
in fact planted, at the Bark Dumps is irrelevant because factual impossibility is not
a defense to conspiracy. See, e.g., United States v. Fleming, 215 F.3d 930, 936
(9th Cir. 2000). There was also sufficient evidence of firearm use in connection
with the conspiracy. One of Ma’s coconspirators testified that Ma brandished a
gun while citing the need to protect the Bark Dumps grow site. “This court has
held that the uncorroborated testimony of a co-conspirator is sufficient evidence to
sustain a conviction ‘unless the testimony is incredible or unsubstantial on its
face.’” United States v. Ramirez-Robles, 386 F.3d 1234, 1241 (9th Cir. 2004)
(citation omitted). Ma does not challenge his coconspirators’ testimony as
incredible or unsubstantial. Further, there was overwhelming evidence that Ma
used a firearm to kill Kong and Chen, including surveillance footage and DNA
evidence. Accordingly, there was sufficient evidence supporting Ma’s conviction
on counts two and three.
Sufficient evidence also supported Ma’s conviction on count four. Contrary
to Ma’s argument, a quid pro quo arrangement giving rise to honest services fraud
can be “implicit” and need not “concern a specific official act.” United States v.
Kincaid-Chauncey, 556 F.3d 923, 943 (9th Cir. 2009), abrogated on other grounds
by Skilling v. United States, 561 U.S. 358 (2010). The record reflects (1) that Ma
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repeatedly gave gifts to Harry Hu, (2) that in his role as a peace officer, Hu
repeatedly acted to Ma’s benefit, and (3) that Ma repeatedly referred to Hu as an
ally in law enforcement. On these facts, a rational jury could have found Ma’s
guilt as to count four beyond a reasonable doubt.
AFFIRMED.
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