United States v. Peter Lam

Opinion

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT JUN 29 2011

MOLLY C. DWYER, CLERK UNITED STATES OF AMERICA, No. 09-50265 U.S . CO U RT OF AP PE A LS

D.C. No. 2:07-cr-00449-PSG Plaintiff - Appellee, MEMORANDUM * v.

PETER ÈUONG LAM,

Defendant - Appellant.

Appeal from the United States District Court for the Central District of California Hon. Philip S. Gutierrez, District Judge, Presiding

Argued and Submitted June 8, 2011 Pasadena, California

Before: RYMER, TROTT, Circuit Judges, and BEISTLINE,**1Chief District Judge.

Lam appeals his convictions and sentence in the District Court for selling

illegally imported fish in violation of 18 U.S.C. y 545 and introducing misbranded

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

** The Honorable Ralph R. Beistline, Chief District Judge for the District of Alasµa, sitting by designation.

1 fish into interstate commerce with the intent to defraud in violation of 21 U.S.C.

yy 331(a)&(c), y 333(a)(2). This court has jurisdiction pursuant to 18 U.S.C. y

3742 and 28 U.S.C. y 1291, and we affirm the convictions and remand for

resentencing.

There was sufficient evidence presented at trial to support defendant's

convictions. Even were we to conclude that some of the government's comments

during closing argument were inappropriate, which we do not, any error would be

harmless and have had no impact on the verdict rendered. Furthermore, venue was

appropriate pursuant to 18 U.S.C. y 3237(a). Defendant's convictions are

therefore AFFIRMED.

However, there was a procedural error by the District Court in determining

the amount of tax loss to assess against defendant. This resulted in a two level

enhancement of defendant's offense level. Given the other factors involved here,

the court finds no fault with sentencing defendant at the low end of the appropriate

guideline range - Level 22.

In all other respects, the court affirms the judgment of the District Court.

The court REMANDS this matter to the District Court for resentencing consistent

herewith.

It is so ordered.

2 FILED United States v. Lam, No. 09-50265 (Pasadena - June 8, 2011) JUN 29 2011

MOLLY C. DWYER, CLERK RYMER, Circuit Judge, concurring in part and dissenting in part: U.S . CO U RT OF AP PE A LS

I would hold that venue in the Central District of California was improper

for Lam's convictions under 18 U.S.C. y 545.

The indictment does not charge Lam with smuggling fish into the United

States--only with receiving, selling, and transporting the fish after its importation.1

This anterior criminal conduct does not count towards venue. United States v.

Cabrales, 524 U.S. 1, 6-8 (1998).

I am not persuaded that 18 U.S.C. y 3237(a) permits venue in this case. The

indictment didn't charge Lam with moving the fish in interstate commerce. See

Cabrales, 524 U.S. at 8-9 (holding that y 3237(a) did not establish venue in a non-

interstate commerce offense).

1 To be precise, the indictment charges that Lam 'did µnowingly receive, conceal, buy, sell, and facilitate the transportation, concealment, and sale' of the fish after illegal importation.