United States v. Jian Bing Wu , 670 F. App'x 509 ( 2016 )

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                           NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
NOV 03 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No.   15-10188
Plaintiff-Appellee,                D.C. No.
1:12-cr-00057-FMTG-1
v.
JIAN BING WU,                                    MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Guam
Frances Tydingco-Gatewood, Chief Judge, Presiding
Argued and Submitted October 18, 2016
Honolulu, Hawaii
Before: WALLACE, FARRIS, and WATFORD, Circuit Judges.
Jian Bing Wu appeals his conviction for conspiracy to commit marriage
fraud, in violation of 18 U.S.C. § 371, and marriage fraud, in violation of 8 U.S.C.
§ 1325(c). He challenges the district court’s denial of his motions for judgment of
acquittal and his motion for mistrial and dismissal based on a purported Brady /
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Giglio violation. Wu also challenges the district court’s decision to deliver an
Allen charge to the jury. We have jurisdiction under 28 U.S.C. § 1291. We affirm.
We review a district court’s denial of a motion for acquittal de novo,
viewing the evidence in the light most favorable to the prosecution to determine
whether any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. See United States v. Riggins,

40 F.3d 1055

,
1057 (9th Cir. 1994). Under 8 U.S.C. § 1325(c), it is a crime to “knowingly enter[]
into a marriage for the purpose of evading any provision of the immigration laws.”
We examine whether, in view of all of the facts and circumstances, the couple
“intend[ed] to establish a life together at the time they were married.” Bark v. INS,

511 F.2d 1200

, 1201 (9th Cir. 1975). The evidence introduced at trial, viewed in
the light most favorable to the prosecution, would allow any rational trier of fact to
conclude that Wu married his wife to obtain a green card and that the couple did
not intend to establish a life together at the time they were married. Accordingly,
the district court did not err in denying Wu’s motions for acquittal.
The district court also did not err in denying Wu’s motion for a mistrial and
dismissal based on the prosecution’s failure to disclose before trial that Wu’s ex-
wife, a government witness, intended to disavow her prior written statement. We
review a denial of a motion for mistrial for an abuse of discretion. See United
2
States v. Nelson,

137 F.3d 1094

, 1106 (9th Cir. 1998). Challenges to a conviction
for alleged Brady / Giglio violations are reviewed de novo. See United States v.
Vgeri,

51 F.3d 876

, 880 (9th Cir. 1995). Here, the district court correctly observed
that the prosecution was under an obligation to inform Wu of his wife’s disavowal
of her prior written statement, but that no Brady / Giglio violation occurred and no
mistrial was warranted because the information came to light early in the trial
while it was “still of substantial value” to the defense. United States v. Gordon,

844 F.2d 1397

, 1403 (9th Cir. 1988); see also United States v. Chung,

659 F.3d 815

, 831 (9th Cir. 2011).
Finally, the district court did not abuse its discretion in delivering an Allen
charge after the jury informed the court it had deadlocked. We must uphold the
district court’s decision unless the record makes it clear that the Allen charge had a
coercive effect on the jury. See United States v. Daas,

198 F.3d 1167

, 1179 (9th
Cir. 1999). We discern no coercive effect here in light of the neutral form of the
charge given, the length of time the jury deliberated after receiving the charge in
relation to the total time of deliberation, and the lack of any other indicia of
coerciveness in the record. See United States v. Steele,

298 F.3d 906