United States v. Ken Liang

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 13, 2018
• Docket: 16-50063
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 13 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-50063

Plaintiff-Appellee, D.C. No. 8:15-cr-00061-AG v.

KEN LIANG, MEMORANDUM* and Defendant-Appellant. ORDER

Appeal from the United States District Court for the Central District of California Andrew J. Guilford, District Judge, Presiding

Submitted March 5, 2018** Pasadena, California

Before: GRABER and OWENS, Circuit Judges, and MAHAN,*** District Judge.

Defendant Ken Liang appeals his convictions and sentence for conspiracy to

obstruct justice (18 U.S.C. § 1512(k)), obstruction of justice (id. § 1512(c)(2)), and

* 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). *** The Honorable James C. Mahan, United States District Judge for the District of Nevada, sitting by designation. persuading another to engage in conduct with the intent to hinder communication

of information regarding a violation of conditions of release (id. § 1512(b)(3)). We

affirm.

1. The government presented sufficient evidence at trial to support

defendant’s conviction for attempting to obstruct, influence, or impede an official

proceeding under § 1512(c)(2).1 Evidence in the record supports a finding that

defendant acted with a corrupt state of mind. See United States v. Watters, 717

F.3d 733, 735 (9th Cir. 2013). Further, the government presented evidence that

defendant took substantial steps towards commission of the crime that

“corroborate[d] strongly the firmness of [his] criminal intent.” United States v.

Hofus, 598 F.3d 1171, 1174 (9th Cir. 2010) (internal quotation marks omitted).

The government presented sufficient evidence at trial to support defendant’s

conviction for conspiracy to obstruct justice. See 18 U.S.C. § 1512(k).

The government presented sufficient evidence at trial to support defendant’s

conviction for corruptly persuading his former client to engage in conduct with the

intent to hinder communication of information regarding anticipated violations of

conditions of release. Defendant persuaded his former client to affirmatively lie to

1 This court has not ruled on whether 18 U.S.C. § 1512(c)(2) contains a nexus requirement to an official proceeding, and we do not decide the issue, because the government presented sufficient evidence in this case for a reasonable trier of fact to find a nexus between defendant’s conduct and an official proceeding.

2 government officials regarding her pretrial release conditions, which violates

§ 1512(b)(3). See United States v. Khatami, 280 F.3d 907, 914 (9th Cir. 2002).

2. The district court, sitting as the finder of fact, did not err in rejecting

defendant’s entrapment defense, as the government provided sufficient evidence

for a reasonable trier of fact to conclude that defendant was predisposed to

committing the offense. See United States v. Mohamud, 843 F.3d 420, 432 (9th

Cir. 2016), cert. denied, 138 S. Ct. 636 (2018).

Further, the entrapment by estoppel doctrine does not apply here, as no

authorized government official affirmatively told defendant that his conduct was

permissible. See United States v. Batterjee, 361 F.3d 1210, 1216 (9th Cir. 2004).

3. Defendant raises, for the first time on appeal, two statutory defenses

to his conviction: 18 U.S.C. § 1512(e) and 18 U.S.C. § 1515(c). As defendant did

not raise these defenses at the trial court level, we hold that he has waived the right

to assert these defenses on appeal. See United States v. Lo, 231 F.3d 471, 480–81

(9th Cir. 2000) (holding that the defendant forfeited the affirmative defense of

statute of limitations by not raising it at trial).

4. Defendant asserts that the attorney-client privilege protects his

communications with Li and Li’s communications with O’Neil. As defendant did

not assert the privilege at the trial court level, we hold that he has waived the right

to assert the privilege on appeal. See United States v. Vo, 413 F.3d 1010, 1017 (9th

3 Cir. 2005) (holding that failure to assert the marital-communications privilege at

trial waived the right to assert the privilege on appeal).

5. We reject defendant’s argument that the government and the trial

court constructively amended the indictment. The reference to attempt in the

prosecutor’s closing argument relates to count two (obstruction of justice) and not

count one (conspiracy). Further, “[w]hen, as here, the statute speaks disjunctively,

the conjunctive is not required even if the offense is charged conjunctively in the

indictment.” United States v. Arias, 253 F.3d 453, 457–58 (9th Cir. 2001).

Finally, the court order denying defendant’s post-trial motions properly addressed

all arguments raised in defendant’s motions.

6. Defendant asserts that two government agents testified falsely at trial.

Because defendant does not show that the disputed testimony was knowingly false,

he cannot demonstrate that the agents perjured themselves. See Hayes v. Ayers,

632 F.3d 500, 520 (9th Cir. 2011).

7. We reject defendant’s argument that the government committed

prosecutorial misconduct while arguing defendant’s Rule 29 motion and during

closing argument. The majority of the government’s statements accurately

summarized the evidence or drew reasonable inferences from the evidence, and

were therefore permissible. See United States v. Sayetsitty, 107 F.3d 1405, 1409

(9th Cir. 1997). Further, none of the statements shifted the focus of the

4 government’s arguments from evidence to emotion, and thus the statements did not

impair defendant’s right to a fair trial. See United States v. Santiago, 46 F.3d 885,

890–91 (9th Cir. 1995). Finally, the cumulative effect of the few slight

misstatements by government counsel did not prejudice defendant’s right to a fair

trial. See United States v. Flores, 802 F.3d 1028, 1037–38 (9th Cir. 2015).

8. Defendant asserts that the court committed three structural errors that

defendant contends warrant reversal of his conviction and sentence.

We hold that the trial court did not plainly err when it accepted defendant’s

waiver of his right to a jury trial. Defendant’s waiver did not need to be in writing.

See United States v. Shorty, 741 F.3d 961, 966 (9th Cir. 2013). Further, the court

conducted an adequate colloquy under the circumstances to ensure that the

defendant, a lawyer, understood the significance of waiving his right to a jury trial.

See id. at 966–69; see also United States v. Tamman, 782 F.3d 543, 552 (9th Cir.

2015).

Defendant does not present a colorable argument that the speed of the

running translation on the video recordings presented at trial prejudiced

defendant’s right to a fair trial. The transcripts of the conversations, not the video

subtitles, were the evidence, see United States v. Franco, 136 F.3d 622, 626 (9th

Cir. 1998), and defendant does not argue that the trial court neglected to review the

transcripts.

5 As the pretrial press release is not properly in front of this court, see Lobatz

v. U.S. W. Cellular of Cal., Inc., 222 F.3d 1142, 1148 n.4 (9th Cir. 2000); United

States v. Walker, 601 F.2d 1051, 1054–55 (9th Cir. 1979), we will not consider

defendant’s argument regarding the press release.

9. We deny defendant’s motion to supplement. We grant the

government’s motions to strike.

AFFIRMED.