United States v. Bo Wei Hua

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4947
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BO WEI HUA,
Defendant - Appellant.
No. 05-5001
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ZHIHAO LIU,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, District
Judge. (CR-05-193)
Submitted: October 11, 2006 Decided: November 30, 2006
Before WILKINSON, WILLIAMS, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John O. Iweanoge, THE IWEANOGES FIRM, P.C., Washington, D.C.;
Michael S. Nachmanoff, Acting Federal Public Defender, Geremy C.
Kamens, Assistant Federal Public Defender, Frances H. Pratt,
Research and Writing Attorney, Alexandria, Virginia, for
Appellants. Chuck Rosenberg, United States Attorney, Paul Ahern,
Special Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Bo Wei Hua and Zhihao Liu appeal their jury convictions
and resulting sentences for conspiring to commit access device
fraud, in violation of 18 U.S.C. § 1029(b)(2) (2000). We affirm.
Liu contends the district court erroneously instructed
the jury that concealment of the crime was part of the conspiracy.
This court reviews a contested jury instruction for abuse of
discretion. United States v. Park, 421 U.S. 658, 675 (1975). The
judgment is not subject to reversal if, given the full context of
the trial, “the charge was not misleading and contained an adequate
statement of the law to guide the jury’s determination.” United
States v. United Med. & Surgical Supply Corp., 989 F.2d 1390, 1406-
07 (4th Cir. 1993) (quoting United States v. Park, 421 U.S. at
675). Because concealment of identity is central to the objective
of using fraudulent credit cards, we conclude that the district
court correctly instructed the jury that concealment was a central
part of this conspiracy. See Grunewald v. United States, 353 U.S.
391, 399-402, 405 (1957); United States v. Rabinowitz, 56 F.3d 932,
934 (8th Cir. 1995).
Hua contends the evidence was insufficient to sustain her
conviction. This court must affirm Hua’s jury conviction if there
is substantial evidence, when viewed in the light most favorable to
the Government, to support the jury’s verdict. Glasser v. United
States, 315 U.S. 60, 80 (1942). In determining whether the
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evidence is substantial, this court views the evidence in the light
most favorable to the government and inquires whether there is
evidence sufficient to support a finding of guilt beyond a
reasonable doubt. United States v. Burgos, 94 F.3d 849, 862 (4th
Cir. 1996). In evaluating the sufficiency of the evidence, the
court does not review witness credibility and assumes the jury
resolved all contradictions of the evidence in the government’s
favor. United States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998).
The jury, not the reviewing court, weighs the credibility of the
evidence and resolves any conflicts in the evidence presented, and
if the evidence supports different reasonable interpretations, the
jury decides which to believe. United States v. Murphy, 35 F.3d
143, 148 (4th Cir. 1994). Circumstantial as well as direct
evidence is considered, and the government is given the benefit of
all reasonable inferences from the facts proven to the facts sought
to be established. United States v. Tresvant, 677 F.2d 1018, 1021
(4th Cir. 1982). After careful consideration of the record, we
find the evidence sufficient to sustain Hua’s conviction.
Finally, Hua asserts that the trial court abused its
discretion by refusing to allow her to present evidence and
instruct the jury on the defense of duress. “In order to establish
duress the defendant must show that he acted under a reasonable
fear of an imminent threat of bodily harm and that he had no
reasonable choice but to commit the illegal act.” United States v.
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King, 879 F.2d 137, 139 (4th Cir. 1989) (emphasis in original)
(citations omitted). However, duress “is limited to very narrow
circumstances.” Id. at 138. Hua contends she was “compelled” to
use fraudulent credit cards under threat of harm to her daughter.
Even assuming Hua’s testimony is credible, as the district court
noted, any alleged threat of harm was not imminent. See, e.g.,
Buczek v. Continental Cas. Ins. Co., 378 F.3d 284, 291 (3d Cir.
2004) (employing dictionary definitions of “ready to take place;
near at hand” and “likely to occur at any moment; impending”)
(citations omitted); United States v. Tokash, 282 F.3d 962, 970
(7th Cir. 2002) (noting that “future” or “later” and “imminent” are
opposites). Furthermore, Hua possessed the reasonable alternative
of reporting the threat to local or federal authorities.
Therefore, we hold that the district court did not err in refusing
the duress instruction.
Accordingly, we affirm Hua’s and Liu’s convictions and
sentences. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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