UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4162
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GING-HWANG TSOA, a/k/a Felicia Tsoa,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:13-cr-00137-JCC-2)
Submitted: October 29, 2014 Decided: November 12, 2014
Before DUNCAN and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Eugene V. Gorokhov, Ziran Zhang, BURNHAM & GOROKHOV PLLC,
Washington, D.C., for Appellant. Dana J. Boente, United States
Attorney, Paul J. Nathanson, Assistant United States Attorney,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ging-Hwang Tsoa was convicted after a jury trial of
one count of conspiracy to commit bank fraud, in violation of
18 U.S.C. § 1349 (2012), and two counts of bank fraud, in
violation of 18 U.S.C. §§ 2, 1344 (2012), and was sentenced to
three concurrent terms of thirty months’ imprisonment. Tsoa
appeals her convictions, arguing that the district court
reversibly erred in excluding evidence -- including expert
testimony -- and in denying her motion under Fed. R. Crim. P. 29
for a judgment of acquittal as to the bank fraud counts. We
affirm.
We review the district court’s decisions as to
admissibility of evidence, including its ruling excluding expert
testimony, for abuse of discretion. United States v. Iskander,
407 F.3d 232, 236 (4th Cir. 2005); United States v. Barile,
286 F.3d 749, 753 (4th Cir. 2002). “[W]e will not find an abuse
unless the district court’s decision was ‘arbitrary and
irrational.’” Iskander, 407 F.3d at 236 (quoting United States
v. Weaver, 282 F.3d 302, 313 (4th Cir. 2002)). We also defer to
a district court’s balancing under Fed. R. Evid. 403 unless that
balancing is an arbitrary or irrational exercise of discretion.
United States v. Kelly, 510 F.3d 433, 437 (4th Cir. 2007).
Further, where a defendant presented a challenge regarding the
admissibility of evidence below but raises a new argument with
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respect to that challenge for the first time on appeal, we
review the district court’s admissibility ruling for plain error
only. United States v. Bernard, 708 F.3d 583, 588 (4th Cir.),
cert. denied, 134 S. Ct. 617 (2013). Under the plain error
standard, this court may -- but is not required to -- correct
the district court’s error if the error was plain and affected
Tsoa’s substantial rights. United States v. Olano, 507 U.S.
725, 732, 735 (1993).
First, Tsoa contends that the district court erred in
excluding prior to trial the proffered expert opinion testimony
of Dr. Ronald Boggio regarding Tsoa’s verbal abilities and
memory, reading, thinking, and facility with English. Tsoa also
contends that the district court erred in excluding the
proffered expert opinion testimony of Stephen McGurl that Tsoa
had an overall poor understanding of the mortgage lending
process. The expert testimony was proffered in support of
Tsoa’s contention that she lacked the required intent to commit
the bank fraud and conspiracy offenses. As to Boggio’s
proffered testimony, the district court determined that the
testimony was not probative of the contention that Tsoa lacked
the required intent and was also excludable under Fed. R. Evid.
403. As to McGurl’s proffered testimony, the district court
determined that the testimony was not reliable and also was
excludable under Rule 403.
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After review of the record and the parties’ briefs, we
conclude that the district court did not abuse its discretion in
excluding the proffered testimony from Dr. Boggio and McGurl.
To be admissible, psychiatric evidence of a mental condition
short of insanity must be offered to rebut the Government’s
evidence of specific intent, United States v. Worrell, 313 F.3d
867, 874 (4th Cir. 2002), and is properly excludable where it
does not focus on the defendant’s state of mind at the time of
the charged offense, United States v. Cameron, 907 F.2d 1051,
1067 (11th Cir. 1990), or does not explain the effect of some
mental condition on the defendant’s ability to form the
requisite criminal intent. United States v. Schneider, 111 F.3d
197, 202-03 (1st Cir. 1997).
Where expert testimony bears on intent, a district
court still must perform its gatekeeping function with respect
to the testimony and ensure it is not only relevant but
reliable. United States v. Prince-Oyibo, 320 F.3d 494, 498
(4th Cir. 2003). Expert testimony is properly excludable where
persons “of common understanding” are “as capable of
comprehending the primary facts and of drawing correct
conclusions from them” as are the expert. Salem v. U.S. Lines
Co., 370 U.S. 31, 35 (1962) (quoting U.S. Smelting Co. v. Parry,
166 F. 407, 411, 415 (8th Cir. 1909)) (internal quotation marks
omitted); see, e.g., United States v. Lespier, 725 F.3d 437, 449
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(4th Cir. 2013) (noting, in affirmance of district court ruling
excluding admission of proffered expert testimony on sleep
deprivation, that, “in the typical case, the effects of sleep
deprivation” are readily comprehended by jurors), cert. denied,
134 S. Ct. 974 (2014). Such evidence also may be excluded “if
its probative value is substantially outweighed by a danger of
one or more of the following: unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” Fed. R. Evid. 403.
Dr. Boggio’s proffered opinions regarding Tsoa’s
verbal abilities and memory, reading, thinking, and facility
with English do not address or focus on Tsoa’s state of mind or
ability to form the necessary intent to defraud at the time of
the charged offense conduct. Further, as Tsoa appears to
acknowledge on appeal, evidence regarding her abilities in
English was a topic readily comprehendible by jurors and could
be developed through other sources. As the “imprimatur of a
clinical label” regarding Tsoa’s abilities in English was
neither necessary nor helpful to the jury, United States v.
DiDomenico, 985 F.2d 1159, 1164 (2d Cir. 1993), and Dr. Boggio’s
opinions regarding Tsoa’s intellectual abilities were not linked
to her mental state at the time of the charged offense conduct,
the district court did not abuse its discretion in concluding
that any probative value from Dr. Boggio’s opinions was
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substantially outweighed by a danger that admission of the
opinions would confuse the issues and mislead the jury and that
the opinions were therefore excludable under Rule 403.
The same, we conclude, is true for the district
court’s exclusion of McGurl’s proffered opinion regarding Tsoa’s
understanding the mortgage lending process. Nothing in McGurl’s
proffered opinion is addressed to whether Tsoa’s understanding
of the mortgage lending process at the time of the interview
with McGurl was extant at the time of the charged offense
conduct. Because the jury’s role was to assess whether Tsoa was
guilty of the charged conspiracy and bank fraud offenses based
on her acts and omissions at the time of the charged conduct,
the district court did not abuse its discretion in concluding
that McGurl’s proffered opinion on this matter was substantially
outweighed by a danger that admission would mislead the jury and
that his opinion was therefore excludable under Rule 403. We
further reject as without merit Tsoa’s arguments to the contrary
as they concern the exclusion of McGurl’s and Dr. Boggio’s
proffered opinions.
Next, Tsoa contends that the district court erred in
denying her mid-trial request to admit Dr. Boggio’s proffered
testimony to rebut her incriminating statements that were
introduced through the testimony of the current and former case
agents, arguing that the testimony was probative of the
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reliability of her statements to the agents and admissible under
Fed. R. Evid. 806. We reject this contention as meritless. As
Tsoa appears to acknowledge on appeal, Rule 806 does not by its
terms * allow a defendant-declarant to attack the credibility of
her own out-of-court statements admissible under Fed. R. Evid.
801(d)(2)(A). We also reject as meritless Tsoa’s argument,
premised on United States v. Shay, 57 F.3d 126 (1st Cir. 1995),
that -- the terms of Rule 806 notwithstanding -- Dr. Boggio’s
proffered testimony would have “cast doubt on” the accuracy and
reliability of her incriminating statements to the agents and
would have cast doubt on the agents’ testimony regarding her
effective communication in English. Shay is inapposite; its
focus was on Fed. R. Evid. 702, not a second request to admit
*
Rule 806 provides:
When a hearsay statement -- or a statement described
in Rule 801(d)(2)(C), (D), or (E) [concerning
statements offered against an opposing party made by
others] -- has been admitted in evidence, the
declarant’s credibility may be attacked, and then
supported, by any evidence that would be admissible
for those purposes if the declarant had testified as a
witness. The court may admit evidence of the
declarant’s inconsistent statement or conduct,
regardless of when it occurred or whether the
declarant had an opportunity to explain or deny it.
If the party against whom the statement was admitted
calls the declarant as a witness, the party may
examine the declarant on the statement as if on cross-
examination.
Fed. R. Evid. 806.
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evidence the district court had already found excludable under
Rule 403. Further, in contrast to the testimony at issue in
Shay, Dr. Boggio’s testimony, if believed, would not have
exculpated Tsoa or explained away her incriminating statements
to the agents.
Tsoa also contends that the district court erred in
excluding emails she sent to one of the case agents after a 2013
interview. She argues that the emails were admissible under
Rule 806 as they provided evidence of her knowledge of and
abilities in English and bore on the reliability of her
statements to the agents and the agents’ conclusions regarding
her comprehension and the responsiveness and reliability of her
statements to them. Tsoa did not raise an argument premised on
Rule 806 in support of the admissibility of the emails in the
district court. Accordingly, our review is for plain error
only.
As this court has noted, plain error is “synonymous
with clear or obvious error.” United States v. Carthorne, 726
F.3d 503, 516 (4th Cir. 2013) (quoting Olano, 507 U.S. at 734)
(internal quotation marks omitted), cert. denied, 134 S. Ct.
1326 (2014). An error qualifies as “plain if the settled law of
the Supreme Court or this circuit establishes that an error has
occurred.” Id. (quoting United States v. Maxwell, 285 F.3d 336,
342 (4th Cir. 2002)) (internal quotation marks omitted). Rule
8
806 applies to hearsay statements and certain statements offered
against an opposing party that have “been admitted in evidence.”
Fed. R. Evid. 806. By its terms, Rule 806 was not the mechanism
for admission of Tsoa’s written out-of-court statements
contained in the emails. Further, Tsoa’s counsel offered the
emails as probative of Tsoa’s knowledge and abilities, not as
bearing on credibility. Tsoa thus fails to establish plain
error under Rule 806 in the exclusion of the emails.
Finally, Tsoa challenges the district court’s denial
of her Rule 29 motion as to the bank fraud counts, arguing that
the Government failed to present proof sufficient to meet its
burden to show that the victim banks were insured by the Federal
Deposit Insurance Corporation (“FDIC”) at the time of the
charged offense conduct.
We review a district court’s denial of a Rule 29
motion for judgment of acquittal de novo. United States v.
Smith, 451 F.3d 209, 216 (4th Cir. 2006). “A defendant
challenging the sufficiency of the evidence to support his
conviction bears a heavy burden.” United States v. Beidler,
110 F.3d 1064, 1067 (4th Cir. 1997) (quoting United States v.
Hoyte, 51 F.3d 1239, 1245 (4th Cir. 1995)) (internal quotation
marks omitted). The verdict of a jury must be sustained “if,
viewing the evidence in the light most favorable to the
prosecution, the verdict is supported by substantial evidence.”
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Smith, 451 F.3d at 216 (quoting United States v. Burgos, 94 F.3d
849, 862 (4th Cir. 1996) (en banc)) (internal quotation marks
omitted). Substantial evidence is “evidence that a reasonable
finder of fact could accept as adequate and sufficient to
support a conclusion of a defendant’s guilt beyond a reasonable
doubt.” Id. (quoting Burgos, 94 F.3d at 862) (internal
quotation marks omitted). In reviewing a case for substantial
evidence, we must allow the Government “the benefit of all
reasonable inferences from the facts proven to those sought to
be established,” United States v. Tresvant, 677 F.2d 1018, 1021
(4th Cir. 1982), and do not weigh the credibility of the
evidence or resolve any conflicts in the evidence. Beidler, 110
F.3d at 1067. “Reversal for insufficient evidence is reserved
for the rare case where the prosecution’s failure is clear.”
Id. (quoting Burks v. United States, 437 U.S. 1, 17 (1978))
(internal quotation marks omitted).
Tsoa argues that the evidence was insufficient to
establish that the victim banks were insured by the FDIC, noting
that the insurance certificates introduced into evidence
provided no information as to whether the banks were so insured
at the time of the charged offense conduct and that a case agent
testified only as to what the certificates said. We reject this
contention.
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Here, the FDIC certificates admitted into evidence
certified that the deposits to each victim bank were insured by
the FDIC as of April 1, 1999, and November 13, 2004, before the
commencement of the offense conduct as charged in the
indictment. Additionally, the case agent’s testimony regarding
what the certificates indicated as to the banks’ insured status
provided a sufficient basis from which the jury could draw the
reasonable inference that the banks were insured by the FDIC at
the time of the charged offense conduct. Tsoa’s argument to the
contrary does not alter this conclusion. Accordingly, the
district court did not reversibly err in denying Tsoa’s Rule 29
motion as to the bank fraud counts.
We therefore affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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