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NOT FOR PUBLICATION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
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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.
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