United States v. Vuthy Sim

FILED
NOT FOR PUBLICATION JUL 21 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30325
Plaintiff - Appellee, D.C. No. 2:07-cr-00425-JLR-1
v.
MEMORANDUM *
VUTHY SIM,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Argued and Submitted July 13, 2010
Seattle, Washington
Before: REINHARDT, GRABER, and PAEZ, Circuit Judges.
Vuthy Sim appeals her conviction and sentence for visa fraud, money
laundering, and harboring an illegal alien. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
I.
Sim argues that the district court erred in admitting documents from the
Reoun Va alien file. Prior to trial, however, Sim stipulated that the documents in
question had “been certified pursuant to FRE 902(4) as . . . official government
records[s].” No further authentication of the documents was required. See Fed. R.
Evid. 902 (“Extrinsic evidence of authenticity as a condition precedent to
admissibility is not required with respect to . . . [c]ertified copies of public
records.”). Moreover, any hearsay problem created by admitting the alien file
documents and the accompanying summary chart was resolved by the district
court’s limiting instruction. In any event, both the alleged hearsay error and the
alleged lack of foundation for the documents would have been harmless given the
other evidence of Sim’s knowledge that Saran had entered on a fraudulently
obtained visa.
II.
Next, Sim challenges the sufficiency of the evidence on counts four (visa
fraud in relation to the sham marriage of Savy Hean and Chhoum Pen), six (visa
fraud in relation to the sham marriage of Sim and Meth Nhav), eleven (money
laundering in connection with the sham marriage of Savy Hean and Chhoum Pen),
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and twelve (harboring Saran Sim, an illegal alien). We conclude that the evidence
on each count was sufficient to support a conviction.
There was no need for each party to the charged sham marriages to testify in
order to establish that neither “intend[ed] to establish a life [with the other] at the
time they were married.” United States v. Orellana-Blanco, 294 F.3d 1143, 1151
(9th Cir. 2002) (internal quotation marks omitted). The circumstantial evidence
was sufficient to permit a rational juror to infer that such was the case.
Sim’s challenge to her money laundering conviction on count eleven rested
entirely on her argument that the evidence was insufficient to show that the
Hean/Pen marriage was a sham. Because we conclude otherwise, we also affirm
her conviction on count eleven.
We also conclude that the evidence was sufficient to establish that Sim’s
sister Saran was illegally present in the United States, and that Sim was aware of
that fact. Accordingly, we reject Sim’s challenge to the sufficiency of the evidence
to support her conviction on count twelve.
III.
Finally, Sim contends that the district court made insufficient factual
findings to support the four-level aggravating role adjustment that it applied
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pursuant to U.S.S.G. § 3B1.1(a). The evidence supported the enhancement,
however, and the district court was not required to specifically list the participants
over whom Sim exercised control. United States v. Munoz, 233 F.3d 1117, 1136
(9th Cir. 2000), superseded by regulation on other grounds as stated in United
States v. Van Alstyne, 584 F.3d 803, 817-18 (9th Cir. 2009). Accordingly, we
conclude that the district court did not abuse its discretion in imposing the
enhancement.
AFFIRMED.
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