United States v. Christian Chung

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 18 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, ) No. 12-50594
)
Plaintiff - Appellee, ) D.C. No. 8:11-cr-00151-CJC-1
)
) MEMORANDUM*
v. )
)
CHRISTIAN EUNSUNG CHUNG, )
)
Defendant - Appellant. )
)
UNITED STATES OF AMERICA, ) No. 12-50605
)
Plaintiff - Appellee, ) D.C. No. 8:11-cr-00151-CJC-2
)
)
v. )
)
KU IL LEE, )
)
Defendant - Appellant. )
)
Appeals from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted March 5, 2014**
Pasadena, California
Before: FERNANDEZ, GRABER, and MURGUIA, Circuit Judges.
Christian Eunsung Chung and Ku Il Lee appeal their convictions and
sentences for wire fraud. See 18 U.S.C. § 1343. We affirm.
(1) Chung and Lee first assert that the evidence was insufficient to
support the jury’s determination that they intentionally participated in a scheme
that used the wires to defraud the Medicare program operated by the United States
Department of Health and Human Services. See id.; United States v. Jinian, 725
F.3d 954, 960 (9th Cir. 2013); United States v. Blitz, 151 F.3d 1002, 1006 (9th Cir.
1998). We disagree. The evidence was sufficient because, “‘after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.’”
United States v. Nevils, 598 F.3d 1158, 1163–64 (9th Cir. 2010) (en banc); see also
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560
(1979). More specifically, the evidence was ample to show that it was foreseeable
**
The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
2
that wire transmissions would be used to carry out the scheme1 and that Chung and
Lee specifically intended to defraud the government.2
(2) Chung and Lee next argue that there was plain error3 when the
government objected to a question about the comparison of handwriting in certain
documents, which was asked of one of the government’s witnesses on cross-
examination. The government’s objection that a certified document examiner was
not present and that the documents spoke for themselves was promptly overruled
by the district court, and the line of questioning went forward without further ado.
The objection neither tended to shift the burden of persuasion to the defense4 nor
vouched for the witness.5 There was no plain error.
(3) Chung and Lee finally argue that their sentences violate the Sixth
Amendment to the United States Constitution. U.S. Const. amend. VI. Their
1
See Jinian, 725 F.3d at 960, 966.
2
See United States v. Pelisamen, 641 F.3d 399, 409 (9th Cir. 2011); United
States v. Ciccone, 219 F.3d 1078, 1084 (9th Cir. 2000); United States v. Lothian,
976 F.2d 1257, 1262–63, 1267 (9th Cir. 1992); see also United States v. Boone,
951 F.2d 1526, 1538–39 (9th Cir. 1991).
3
See United States v. Olano, 507 U.S. 725, 732–35, 113 S. Ct. 1770,
1776–78, 123 L. Ed. 2d 508 (1993).
4
See United States v. Necoechea, 986 F.2d 1273, 1282 (9th Cir. 1993).
5
See United States v. Weatherspoon, 410 F.3d 1142, 1146 (9th Cir. 2005).
3
argument fails because the district court’s calculation of loss for guideline
purposes6 affected neither a mandatory minimum sentence7 nor the maximum
possible sentence8 for wire fraud crimes.9
AFFIRMED.
6
See USSG §2B1.1(b) (Nov. 2012); see also United States v. Torlai, 728
F.3d 932, 938 n.6 (9th Cir. 2013).
7
See Alleyne v. United States, __ U.S. __, __, 133 S. Ct. 2151, 2155, 186 L.
Ed. 2d 314 (2013).
8
See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362–63,
147 L. Ed. 2d 435 (2000).
9
The statutory sentencing range is imprisonment for “not more than 20
years.” 18 U.S.C. § 1343.
4