United States v. Grace Canada ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 17 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-50188
Plaintiff-Appellee, D.C. No.
2:19-cr-00029-RGK-1
v.
GRACE SHIN WON KIM CANADA, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted July 30, 2021
Pasadena, California
Before: M. SMITH and OWENS, Circuit Judges, and MÁRQUEZ,** District
Judge.
Grace Canada appeals from her convictions for wire fraud, in violation of 18
U.S.C. § 1343, and making false statements to federal agents, in violation of 18
U.S.C. § 1001(a)(2). She argues that (1) insufficient evidence supported her
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Rosemary Márquez, United States District Judge for
the District of Arizona, sitting by designation.
convictions, (2) the jury instructions regarding wire fraud were plainly erroneous,
and (3) the district court erred in denying her post-trial motion to dismiss the
indictment based on prosecutorial misconduct. As the parties are familiar with the
facts, we do not recount them here. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
1. Sufficiency of the Evidence
We review a sufficiency of the evidence challenge de novo and must, after
considering “the evidence in the light most favorable to the prosecution, . . .
determine whether any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” United States v. Kimbrew, 944 F.3d 810,
813 (9th Cir. 2019) (citation omitted).
To support a wire fraud conviction, the government must show “(1) the
existence of a scheme to defraud; (2) the use of wire, radio, or television to further
the scheme; and (3) a specific intent to defraud.” United States v. Jinian, 725 F.3d
954, 960 (9th Cir. 2013). Viewing the evidence in favor of the prosecution, a
rational jury could have found the above elements met beyond a reasonable doubt.
The evidence indicated Canada knew out-of-state expansion had to be funded
independently by Celerity Global, and that Celerity Education Group’s (“CEG”)
purpose was “inside California.” Canada also helped prepare and submit CEG’s
affirmations that it would comply with all rules regarding the use of public funds,
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including using such funds only to benefit Celerity schools and students in
California. Moreover, Canada authorized the $155,000 wire transfer to renovate
the Ohio property, was copied on emails authorizing wire transfers to purchase the
property, handled loan paperwork related to the purchase, and circulated board
meeting notes about the transaction. Testimony at trial also indicated a
“substantial part” of the money for renovations came from public funds. Though
Canada contends she was just the “educational guru” who acted at her superior’s
direction, we conclude that there was sufficient evidence for a rational jury to find
that Canada had the requisite intent to defraud and that authorizing the $155,000
wire transfer was part of the scheme.
To support a false statements conviction, the government had to show that
(1) Canada made a false statement, (2) the statement was made in a matter within
the jurisdiction of the relevant government agency, (3) the defendant acted
willfully, and (4) the statement was material. Ninth Circuit Model Crim. Jury
Instruction 8.73. On appeal, Canada argues that the evidence was insufficient as to
the first and last two elements because her statements were “literally true” and not
material. We disagree. Viewing the evidence in favor of the prosecution, a
rational jury could have found the above elements met beyond a reasonable doubt.
Canada was convicted based on two statements: (1) when asked whether she
had “an understanding that at some point an offer was made to purchase [the Ohio
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property],” she said “no,” and that she knew they were looking for a facility but
was not involved in negotiations, and (2) when asked whether certain documents
refreshed her memory about purchasing the Ohio property, she said “no,” and that
she “knew nothing about the transaction.”
Given the evidence that Canada visited the Ohio property, signed a check
request for its inspection, circulated board meeting notes about the deal, and was
copied on emails directing payment of a $250,000 deposit and nearly $1.5 million
closing balance, a rational jury could have inferred that she was lying when she
answered (1) “No,” she did not have an understanding that at some point an offer
was made to purchase the Ohio property, and (2) “No, [she] knew nothing about
the transaction.” Contrary to Canada’s contention, her statements during her
proffer session were not “literally true,” and they were material because they
“could have affected the investigation.” United States v. Chen, 324 F.3d 1103,
1104 (9th Cir. 2003) (internal quotation marks omitted). We are also unpersuaded
by Canada’s argument that the government’s first question was impermissibly
vague.
Thus, sufficient evidence supports Canada’s convictions for wire fraud and
making false statements to federal agents.
2. Jury Instructions
Canada also challenges the district court’s jury instructions on wire fraud,
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which defined “intent to defraud” as the “intent to deceive or cheat.” In United
States v. Miller, 953 F.3d 1095 (9th Cir. 2020), we held that the intent to defraud
element in wire fraud is conjunctive, requiring an “intent to deceive and cheat . . .
the victim of money or property by means of deception,” id. at 1103. Because
Canada did not object to the jury instructions at trial, we review them for plain
error. United States v. Singh, 979 F.3d 697, 707 (9th Cir. 2020).
Canada fails to show plain error because she cannot demonstrate the
erroneous instructions “affected [her] substantial rights” or “seriously affected the
fairness, integrity, or public reputation of the judicial proceedings.” Id. at 728.
Because the scheme here centered on deceiving government agencies to
misappropriate public funds, it necessarily involved both an intent to deceive and
an intent to cheat, and Canada offers no theory on which the jury could have found
her intent to do the former but not the latter. Indeed, Canada argued at trial that
she possessed neither the intent to deceive nor to cheat. Moreover, the evidence
supports Canada’s dual intent to deceive and cheat: She signed affirmations that
CEG’s funds would only be used for California schools and students, but
nevertheless authorized the use of $155,000 in public funds to renovate the Ohio
property.
Thus, the jury instructions do not constitute reversible error. See Miller, 953
F.3d at 1103 (noting that the erroneous instructions were harmless because “the
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jury would have convicted” the defendant regardless).
3. Motion to Dismiss the Indictment
Finally, Canada challenges the district court’s denial of her motion to
dismiss the indictment due to prosecutorial misconduct. We review a district
court’s rulings on alleged prosecutorial misconduct for an abuse of discretion, and
allegations of due process violations de novo. United States v. Liu, 538 F.3d 1078,
1087 (9th Cir. 2008).
A district court may dismiss an indictment for prosecutorial misconduct if it
“finds a serious due-process violation” or if it determines “dismissal is warranted
under its supervisory powers.” United States v. Bundy, 968 F.3d 1019, 1030 (9th
Cir. 2020). Dismissal for a due process violation requires “grossly shocking and
outrageous” conduct, usually “extreme physical or mental brutality or where the
crime is ‘manufactured by the government from whole cloth.’” Id. (citations
omitted). Dismissal under a court’s supervisory powers requires “(1) flagrant
misbehavior and (2) substantial prejudice.” Id. at 1031 (citation omitted).
Canada contends that dismissal is warranted under both theories because the
prosecutor failed to disclose all the summary charts she intended to introduce, and
“deceptively watermark[ed]” certain charts with “DRAFT” to circumvent a prior
district court order. We disagree. First, there is no evidence the prosecutor’s
conduct rises to the “grossly shocking and outrageous” standard required for a due
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process violation. Id. at 1030. Second, Canada does not explain how she was
prejudiced by the charts. Indeed, the charts merely summarized documents already
produced to the defense, and Canada does not object to the charts’ underlying
substance, accuracy, or admissibility.
Thus, the district court did not err in denying Canada’s motion to dismiss the
indictment.
AFFIRMED.
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