United States v. John Lee

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 6, 2018
• Docket: 16-10448
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUN 06 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-10448

Plaintiff-Appellee, D.C. No. 3:15-cr-00541-SI

v. MEMORANDUM* JOHN CHING EN LEE,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California Susan Illston, District Judge, Presiding

Argued and Submitted April 12, 2018 San Francisco, California

Before: WARDLAW and NGUYEN, Circuit Judges, and OLIVER,** District Judge.

Appellant John Ching En Lee (“Lee”) appeals the district court’s denial of his

motion for judgment of acquittal following his jury trial conviction for making a false

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Solomon Oliver, Jr., United States District Judge for the Northern District of Ohio, sitting by designation. statement to federal agents on the grounds that there was insufficient evidence of the

false statement made to satisfy the elements of 18 U.S.C. § 1001(a)(2), and that the

district court erred by failing to specifically instruct the jury on unanimity relative to

which false statement Lee made. We have jurisdiction under 28 U.S.C. § 1291, and

we affirm.

1. We review whether there was sufficient evidence to support a jury

conviction de novo. U.S. v. Vazquez-Hernandez, 849 F.3d 1219, 1229 (9th Cir. 2017).

There was ample evidence before the jury from which it could conclude that the

questions the investigators asked Lee, numerous times in numerous iterations, about

funding his wife’s business were not misleading. Despite their clarity, Lee did not

admit that he had provided her a bank loan. See U.S. v. Jiang, 476 F.3d 1026,

1028–30 (9th Cir. 2007). Lee’s argument that these questions cannot support a

conviction under § 1001(a)(2) has no merit, because a statement does not need to be

recorded or transcribed in order to support a conviction. Id. Moreover, the false

statement was material because the agents’ testimony demonstrated it changed the

scope of their investigation. See U.S. v. De Rosa, 783 F.2d 1401, 1408 (9th Cir.

1986). Thus, there was sufficient evidence to satisfy the elements of falsity, specific

intent, and materiality under 18 U.S.C. § 1001(a)(2) given the lack of ambiguity in the

possible versions of the question posed as recalled by the agents during their

2 testimony at trial; the context of the interview and Lee’s background and experience;

the agents’ testimony as to the scope and course of their investigation; and the absence

of other extrinsic factors weighing against conviction. See Jiang, 476 F.3d at

1029–30; U.S. v. Serv. Deli Inc., 151 F.3d 938, 941 (9th Cir. 1998).

2. Because Lee failed to preserve his objection to the district court’s failure to

give a specific unanimity instruction for appeal, by stipulating to the false statement

he allegedly made, we review the district court’s failure to instruct the jury on specific

unanimity for plain error. See U.S. v. Campbell, 42 F.3d 1199, 1204 (9th Cir. 1994);

Fed. R. Crim. P. 30. Plain error is “error that is clear under the law and affects

substantial rights.” Campbell, 42 F.3d at 1204. The district court did not plainly err

because a specific unanimity instruction was not required in this case. The general

unanimity instruction was sufficient to charge the jury on the relevant law as there was

considerable evidence presented at trial to support the parties’ stipulation regarding

the false statement Lee allegedly made. See 9th Cir. Model Crim. Jury Instructions

§§ 7.9, 8.73.

AFFIRMED.