United States v. Hong Lee Wong , 619 F. App'x 580 ( 2015 )

FILED
NOT FOR PUBLICATION JUL 23 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10276
Plaintiff - Appellee, D.C. No. 3:12-cr-00578-SI-2
v.
MEMORANDUM*
HONG LEE WONG, AKA William
Wong,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 14-10294
Plaintiff - Appellee, D.C. No. 3:12-cr-00578-SI-1
v.
NGOC DUONG, AKA Danny Duong,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, Senior District Judge, Presiding
Argued and Submitted July 7, 2015
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
San Francisco, California
Before: TALLMAN, M. SMITH, and MURGUIA, Circuit Judges.
Duong and Wong each were convicted of wire fraud and aggravated identity
theft, receiving sentences of thirty and twenty-eight months’ imprisonment,
respectively. The district court held Wong and Duong jointly liable to Cheery Way
for $166,781.31 in restitution. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
I
Wong argues that the district court erred in instructing the jury that it could
infer that Wong knew the Six Flags project was a fraud from evidence that Wong
was deliberately ignorant of that fact. The instruction was proper. This court held
long ago and recently reaffirmed that deliberate ignorance satisfies the knowledge
element of a federal offense. United States v. Heredia, 483 F.3d 913, 922 (9th Cir.
2007) (en banc); United States v. Jewell, 532 F.2d 697, 702–04 (9th Cir. 1976) (en
banc). We see no reason to treat the knowledge element of the wire fraud statute
differently from other federal offenses. See, e.g., United States v. McDonald, 576
F.2d 1350, 1358 (9th Cir. 1978).
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II
Wong argues that the evidence introduced at trial is insufficient to permit a
rational inference that Wong actually knew of the Six Flags project’s fraudulent
nature. Duong testified that Wong asked Duong to prepare the fraudulent contract
with the City of New Orleans. This testimony, viewed in the light most favorable
to the Government, is alone sufficient to permit a reasonable juror to conclude that
Wong knew the Six Flags project was fraudulent. See United States v. Arnt, 474
F.3d 1159, 1162 (9th Cir. 2007).
III
Wong argues that the district court abused its discretion in holding Wong
and Duong jointly and severally liable for restitution, rather than apportioning the
amount according to Wong’s and Duong’s respective roles in the Six Flags
scheme. But the district court found that both Wong and Duong participated in the
scheme to an extent sufficient to hold both liable for the full amount. The record
supports this finding: Wong brought Cheery Way to the project and communicated
with its principals in Cantonese, a language in which Duong is not proficient. The
district court acted within its discretion. See United States v. Booth, 309 F.3d 566,
576 (9th Cir. 2002).
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IV
Duong argues that the district court abused its discretion in admitting
evidence that Duong engaged in uncharged misconduct in the context of a
relationship with a business partner under Rule 404(b) of the Federal Rules of
Evidence. According to Duong, the district court improperly admitted evidence of
Duong’s misconduct to show bias.
The district court did not abuse its discretion in admitting testimony that
Duong and his business partner, a government witness, were embroiled in
unrelated civil litigation as evidence of the partner’s potential bias against Duong.
See United States v. Harris, 185 F.3d 999, 1008 (9th Cir. 1999). The court
admitted Duong’s misconduct itself to show that Duong was capable of persuading
his business partner to remain in the relationship despite Duong’s malfeasance—a
theory that Duong does not challenge in his opening brief. And the district court
not only properly weighed the potential prejudicial effect of Duong’s misconduct
against its probative value, but narrowly limited the scope of the evidence as a
result.
Finally, even if the court erred, any error was harmless because Duong
admitted to the jury that he falsified a contract with the City of New Orleans and,
together with Wong, used that fraudulent document to induce Cheery Way to
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continue to deal with them.
V
Duong argues that the district court erred in instructing the jury to consider
“evidence that the defendants committed other acts not charged here” for “its
bearing, if any, on the question of the defendants’ intent and/or knowledge.”
According to Duong, the district court did not admit any evidence under Rule
404(b) to show intent or knowledge. Duong is mistaken. Before trial, the district
court permitted the Government to introduce testimony that Wong attempted to sell
Six Flags scrap metal to another buyer after Cheery Way withdrew. The court
ruled that this testimony was admissible as evidence of Wong’s intent or
knowledge, and the Government presented this testimony at trial. Accordingly,
the district court not only had discretion to instruct the jury to consider this
evidence for its bearing on the defendants’ intent and/or knowledge, but was
required to do so. Fed. R. Evid. 105; United States v. Bradshaw, 690 F.2d 704,
709–10 (9th Cir. 1982).
VI
Duong argues that misuse of a person’s name alone, without other
identifying information, is insufficient to support a conviction of aggravated
identity theft. Both the relevant statutory text and this court’s case law belie
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Duong’s argument. The offense of aggravated identity theft rests on the
unauthorized use of “a means of identification of another person.” 18 U.S.C.
§ 1028A(a)(1). A “means of identification” is “any name or number that may be
used, alone or in conjunction with any other information, to identify a specific
individual.” 18 U.S.C. § 1028(d)(7) (emphasis added); see also United States v.
Blixt, 548 F.3d 882, 886 (9th Cir. 2008) (holding that “forging another’s signature
constitutes the use of that person’s name and thus qualifies as a ‘means of
identification’ under 18 U.S.C. § 1028A”).
AFFIRMED.
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