NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 11 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-10294
Plaintiff-Appellee, D.C. No. 2:17-cr-00169-JAM-1 v.
CHI MENG YANG, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding
Submitted April 5, 2024** San Francisco, California
Before: M. SMITH, HURWITZ, and JOHNSTONE, Circuit Judges.
Chi Meng Yang appeals his convictions for conspiracy to commit bribery
pursuant to 18 U.S.C. § 371, bribery of a public official pursuant to 18 U.S.C. §
666(a)(2), and manufacturing marijuana pursuant to 21 U.S.C. § 841(a)(1). We have
jurisdiction pursuant to 28 U.S.C. § 1291. Because the parties are familiar with the
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). facts, we only recount them here as necessary to provide context. We affirm.
1. Yang argues that the district court erred by not instructing the jury on
his entrapment and entrapment-by-estoppel defenses to the manufacturing charge.
We review the district court’s denial of Yang’s proposed instructions for abuse of
discretion. See United States v. Heredia, 483 F.3d 913, 921 (9th Cir. 2007) (en
banc).
A standard “entrapment defense has two elements: ‘(1) the defendant was
induced to commit the crime by a government agent, and (2) he was not otherwise
predisposed to commit the crime.’” United States v. Spentz, 653 F.3d 815, 818 (9th
Cir. 2011) (quoting United States v. Barry, 814 F.2d 1400, 1401 (9th Cir. 1987)).
“A defendant is not entitled to have the issue of entrapment submitted to the jury in
the absence of evidence showing some inducement by a government agent and a
lack of predisposition.” Id. (cleaned up).
Here, Yang presented no evidence tending to show that Sheriff Lopey induced
him to manufacture the 300 marijuana plants he stipulated to having on his property.
Instead, all that Yang offered on the issue of inducement was (1) his testimony that
the Sheriff suggested on one occasion that Yang “could” grow a few marijuana
plants “indoors,” and (2) his testimony that the Sheriff met with members of the
community in 2016 to provide guidance on how to comply with local marijuana
ordinances.
2 These facts, even if believed, do not create a jury question on inducement.
See United States v. Simas, 937 F.2d 459, 462 (9th Cir. 1991) (stating that
inducement amounts to “repeated and persistent solicitation or persuasion which
overcomes the defendant’s reluctance,” and that “mere suggestions or the offering
of an opportunity to commit a crime is not conduct amounting to inducement”)
(cleaned up). The Sheriff’s suggestion that Yang could grow at least ten marijuana
plants indoors is a far cry from “creating a substantial risk that an otherwise innocent
[Yang] would” manufacture more than 100 marijuana plants on a parcel of land that
he owned. 9th Cir. Model Crim. Jury Instr. 5.2. The same is true for the Sheriff’s
town hall meeting on compliance with local marijuana ordinances.
2. Yang also challenges the district court’s denial of his proposed
entrapment-by-estoppel instruction. “Entrapment by estoppel is the unintentional
entrapment by an official who mistakenly misleads a person into a violation of the
law.” United States v. Schafer, 625 F.3d 629, 637 (9th Cir. 2010) (cleaned up).
Yang concedes that his entrapment-by-estoppel defense would only apply to his
manufacture of about a dozen plants because that is all the Sheriff suggested was
legal, and therefore it is not a complete defense. Because Yang stipulated to owning
a lot where over 300 marijuana plants were found, even if the district court had
instructed the jury on the entrapment-by-estoppel defense, it could not have changed
the jury’s verdict, which was that Yang manufactured more than 100 marijuana
3 plants. See generally United States v. Gurolla, 333 F.3d 944, 957 (9th Cir. 2003)
(applying harmless error analysis to trial court’s denial of entrapment instruction).
3. Yang argues that the panel should vacate his conviction for conspiracy
to commit bribery because the district court allowed three of his defense witnesses
to categorically invoke their Fifth Amendment privilege against self-incrimination,
as opposed to having them assert the privilege on a question-by-question basis,
thereby violating his Sixth Amendment right to compulsory process. We review the
district court’s exclusion of the three witnesses for an abuse of discretion. See United
States v. Klinger, 128 F.3d 705, 709 (9th Cir. 1997), as amended (Nov. 18, 1997).
At best, Yang’s three witnesses, had they been allowed to testify, would only
have testified that they had not communicated with Yang about the bribery
mentioned in the superseding indictment. But that narrow testimony would not have
overcome Yang’s “clear evidence of guilt” on the conspiracy to commit bribery
charge, United States v. Moore, 682 F.2d 853, 858 (9th Cir. 1982), given the
voluminous evidence showing that he conspired with his co-conspirator sister to
bribe the Sheriff. Accordingly, any failure caused by the categorical exclusion of
Yang’s three defense witnesses, none of whom was charged as a co-conspirator, is
harmless beyond a reasonable doubt. See id. at 857–58.
4. Yang also argues that his conspiracy to commit bribery conviction
should be vacated because the district court erroneously precluded his public
4 authority defense. We review de novo a district court’s decision that “the evidence,
as described in the defendant’s offer of proof, is insufficient as a matter of law to
support the proffered defense.” United States v. Schoon, 971 F.2d 193, 195 (9th Cir.
1991), as amended (Aug. 4, 1992) (cleaned up).
“The public authority defense is an affirmative defense of excuse derived from
the common law. It is grounded in the principle that prosecuting an individual who
acts in reliance upon official statements that one’s conduct is lawful offends due
process.” United States v.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 11 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-10294
Plaintiff-Appellee, D.C. No. 2:17-cr-00169-JAM-1 v.
CHI MENG YANG, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding
Submitted April 5, 2024** San Francisco, California
Before: M. SMITH, HURWITZ, and JOHNSTONE, Circuit Judges.
Chi Meng Yang appeals his convictions for conspiracy to commit bribery
pursuant to 18 U.S.C. § 371, bribery of a public official pursuant to 18 U.S.C. §
666(a)(2), and manufacturing marijuana pursuant to 21 U.S.C. § 841(a)(1). We have
jurisdiction pursuant to 28 U.S.C. § 1291. Because the parties are familiar with the
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). facts, we only recount them here as necessary to provide context. We affirm.
1. Yang argues that the district court erred by not instructing the jury on
his entrapment and entrapment-by-estoppel defenses to the manufacturing charge.
We review the district court’s denial of Yang’s proposed instructions for abuse of
discretion. See United States v. Heredia, 483 F.3d 913, 921 (9th Cir. 2007) (en
banc).
A standard “entrapment defense has two elements: ‘(1) the defendant was
induced to commit the crime by a government agent, and (2) he was not otherwise
predisposed to commit the crime.’” United States v. Spentz, 653 F.3d 815, 818 (9th
Cir. 2011) (quoting United States v. Barry, 814 F.2d 1400, 1401 (9th Cir. 1987)).
“A defendant is not entitled to have the issue of entrapment submitted to the jury in
the absence of evidence showing some inducement by a government agent and a
lack of predisposition.” Id. (cleaned up).
Here, Yang presented no evidence tending to show that Sheriff Lopey induced
him to manufacture the 300 marijuana plants he stipulated to having on his property.
Instead, all that Yang offered on the issue of inducement was (1) his testimony that
the Sheriff suggested on one occasion that Yang “could” grow a few marijuana
plants “indoors,” and (2) his testimony that the Sheriff met with members of the
community in 2016 to provide guidance on how to comply with local marijuana
ordinances.
2 These facts, even if believed, do not create a jury question on inducement.
See United States v. Simas, 937 F.2d 459, 462 (9th Cir. 1991) (stating that
inducement amounts to “repeated and persistent solicitation or persuasion which
overcomes the defendant’s reluctance,” and that “mere suggestions or the offering
of an opportunity to commit a crime is not conduct amounting to inducement”)
(cleaned up). The Sheriff’s suggestion that Yang could grow at least ten marijuana
plants indoors is a far cry from “creating a substantial risk that an otherwise innocent
[Yang] would” manufacture more than 100 marijuana plants on a parcel of land that
he owned. 9th Cir. Model Crim. Jury Instr. 5.2. The same is true for the Sheriff’s
town hall meeting on compliance with local marijuana ordinances.
2. Yang also challenges the district court’s denial of his proposed
entrapment-by-estoppel instruction. “Entrapment by estoppel is the unintentional
entrapment by an official who mistakenly misleads a person into a violation of the
law.” United States v. Schafer, 625 F.3d 629, 637 (9th Cir. 2010) (cleaned up).
Yang concedes that his entrapment-by-estoppel defense would only apply to his
manufacture of about a dozen plants because that is all the Sheriff suggested was
legal, and therefore it is not a complete defense. Because Yang stipulated to owning
a lot where over 300 marijuana plants were found, even if the district court had
instructed the jury on the entrapment-by-estoppel defense, it could not have changed
the jury’s verdict, which was that Yang manufactured more than 100 marijuana
3 plants. See generally United States v. Gurolla, 333 F.3d 944, 957 (9th Cir. 2003)
(applying harmless error analysis to trial court’s denial of entrapment instruction).
3. Yang argues that the panel should vacate his conviction for conspiracy
to commit bribery because the district court allowed three of his defense witnesses
to categorically invoke their Fifth Amendment privilege against self-incrimination,
as opposed to having them assert the privilege on a question-by-question basis,
thereby violating his Sixth Amendment right to compulsory process. We review the
district court’s exclusion of the three witnesses for an abuse of discretion. See United
States v. Klinger, 128 F.3d 705, 709 (9th Cir. 1997), as amended (Nov. 18, 1997).
At best, Yang’s three witnesses, had they been allowed to testify, would only
have testified that they had not communicated with Yang about the bribery
mentioned in the superseding indictment. But that narrow testimony would not have
overcome Yang’s “clear evidence of guilt” on the conspiracy to commit bribery
charge, United States v. Moore, 682 F.2d 853, 858 (9th Cir. 1982), given the
voluminous evidence showing that he conspired with his co-conspirator sister to
bribe the Sheriff. Accordingly, any failure caused by the categorical exclusion of
Yang’s three defense witnesses, none of whom was charged as a co-conspirator, is
harmless beyond a reasonable doubt. See id. at 857–58.
4. Yang also argues that his conspiracy to commit bribery conviction
should be vacated because the district court erroneously precluded his public
4 authority defense. We review de novo a district court’s decision that “the evidence,
as described in the defendant’s offer of proof, is insufficient as a matter of law to
support the proffered defense.” United States v. Schoon, 971 F.2d 193, 195 (9th Cir.
1991), as amended (Aug. 4, 1992) (cleaned up).
“The public authority defense is an affirmative defense of excuse derived from
the common law. It is grounded in the principle that prosecuting an individual who
acts in reliance upon official statements that one’s conduct is lawful offends due
process.” United States v. Doe, 705 F.3d 1134, 1145 (9th Cir. 2013) (quoting United
States v. Jumah, 493 F.3d 868, 874 (7th Cir. 2007)). Typically, a public authority
defense to federal charges is only available where the defendant “rel[ies] on the
advice or authority of federal officials or agents,” because only such officials or
agents could possibly authorize violations of federal law. United States v. Mack,
164 F.3d 467, 474 (9th Cir. 1999). The defendant’s “belie[f] that a government agent
authorized her to engage in illegal acts” must be reasonable. United States v. Bear,
439 F.3d 565, 568 (9th Cir. 2006). There is no evidence of authorization by any
federal official here.
On appeal, Yang emphasizes that he “only requested the public authority
defense in a limited way as a defense to one of the overt acts alleged to have been in
furtherance of the bribery conspiracy in the indictment”—i.e., the act of “bring[ing]
the list of parcel numbers” for certain marijuana grow sites to the Sheriff.” But even
5 if, as Yang urges, the affirmative defense of public authority may be used to negate
specific overt acts that would otherwise be used to prove the existence of a
conspiracy, any error was harmless.
Yang was still able to present evidence at trial suggesting that he only
performed certain overt actions at the Sheriff’s behest. Upon hearing this evidence,
the jury still found that Yang committed “one or more acts in furtherance of the
illegal” bribery scheme. United States v. Decoud, 456 F.3d 996, 1014 (9th Cir. 2006)
(cleaned up). Moreover, even if the overt act of Yang bringing the parcel numbers
to the Sheriff were negated, there were numerous other overt acts the jury could have
relied upon to sustain a conspiracy conviction. Accordingly, the district court’s
preclusion of the public authority defense is not a valid basis for vacating Yang’s
conviction for conspiracy to commit bribery.
5. Finally, Yang argues that the district court should not have excluded
evidence that he and his three excluded defense witnesses believed they complied
with state law regarding medical marijuana, which he argues could have shown that
they had no motive to bribe or to conspire to bribe the Sheriff to protect their
marijuana-growing properties from eradication raids. We review a district court’s
evidentiary rulings for an abuse of discretion, see United States v. Ramirez, 176 F.3d
1179, 1182 (9th Cir. 1999), and find none here.
Before trial, Yang’s counsel expressly conceded that “Yang’s property had
6 300 [marijuana] plants, which is outside of any[] realistic interpretation of California
medical [marijuana] law,” making any evidence about Yang’s understanding of state
law irrelevant. The subjective belief of the three witnesses as to their own
compliance with state medical marijuana law is also irrelevant because the
government’s bribery and conspiracy-to-bribe charges centered on Yang’s
agreement with his sister to bribe the Sheriff, not Yang’s agreement with any of the
three marijuana growers.
AFFIRMED.