FILED
NOT FOR PUBLICATION APR 09 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50137
Plaintiff - Appellee, D.C. No. 2:07-cr-00215-SVW-1
v.
MEMORANDUM *
XI CHAIDEZ, AKA Seal A, AKA Xi
Zhang, AKA Sunny Zhang,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted April 6, 2010 **
Pasadena, California
Before: D.W. NELSON and REINHARDT, Circuit Judges, and GERTNER, ***
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 Nancy Gertner, United States District Judge for the
District of Massachusetts, sitting by designation.
Xi Chaidez appeals her conviction on one count of Impairment of In Rem
Jurisdiction in violation of 18 U.S.C. § 2232(b) and one count of Conspiracy to
Impair In Rem Jurisdiction in violation of 18 U.S.C. § 371. We affirm.
First, we hold that Chaidez cannot challenge the sufficiency of the evidence
underlying her convictions. Chaidez waived her right to seek appellate review of
the sufficiency of the evidence by failing to move for a judgment of acquittal
before her case was submitted to the jury. United States v. Tisor, 96 F.3d 370, 379
(9th Cir. 1996).
Next, we reject Chaidez’ argument that the Government committed
prosecutorial misconduct by stating during its closing argument that Chaidez
stipulated to an element of the charged offenses. “We review claims of
prosecutorial misconduct for plain error when the defendant fails to object at trial.
We find plain error only when there is: 1) error; 2) that was clear or obvious; 3)
that affected substantial rights; and 4) that seriously affected the fairness, integrity,
or public reputation of the judicial proceedings.” United States v. Washington, 462
F.3d 1124, 1136 (9th Cir. 2006) (internal citations omitted).
Chaidez’ counsel agreed in open court on the record that the defense would
“not . . . tell the jury that the government ha[dn’t] proven beyond a reasonable
doubt that there wasn’t permission to sell.” The district court and the Government
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made clear on the record that they believed this statement was “a factual
stipulation” that Chaidez never received permission to sell. Nothing in the record
suggests to us that this belief was in error. Chaidez did not object when the court
stated on the record that a stipulation had been made, when the Government asked
for and received permission to mention the stipulation during closing arguments,
nor when the Government stated during its closing argument that Chaidez made a
stipulation. The most reasonable explanation for Chaidez’ silence is that Chaidez’
counsel did in fact stipulate that she lacked permission to transfer the property.
Even if Chaidez did not intend to stipulate this point, her intent was not “clear or
obvious” and the Government and the court’s mutual failure to discern her
undisclosed intent did not “seriously affect[] the fairness, integrity, or public
reputation of the judicial proceedings.” Washington, 462 F.3d at 1136.
Accordingly, we hold that the Government did not commit plain error in asserting
during its closing argument that Chaidez stipulated that she lacked court authority
to transfer the property at issue.
AFFIRMED.
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