Case: 21-10150 Document: 00516100268 Page: 1 Date Filed: 11/18/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 18, 2021
No. 21-10150
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Tzu Fan Chen,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
No. 7:20-CR-31-1
Before Smith, Stewart, and Graves, Circuit Judges.
Per Curiam:*
Tzu Fan Chen was convicted of using a means of interstate commerce
to attempt to entice a child. He maintains that the district court erred by not
sua sponte ordering a mistrial when a witness offered testimony that infringed
his right against self-incrimination. As he acknowledges, review is for plain
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this opin-
ion should not be published and is not precedent except under the limited circumstances
set forth in 5th Circuit Rule 47.5.4.
Case: 21-10150 Document: 00516100268 Page: 2 Date Filed: 11/18/2021
No. 21-10150
error only, because of his failure to raise the issue in the district court. United
States v. McCall, 553 F.3d 821, 826 (5th Cir. 2008). To show plain error, one
must establish a clear or obvious error that affects his substantial rights. Id.
If this showing is made, and if the error “seriously affects the fairness, integ-
rity, or public reputation of judicial proceedings,” then this court may exer-
cise its discretion to correct the error. Id. (internal quotation marks and cita-
tion omitted).
When considering a claim of plain error arising from not granting a
mistrial for erroneous admission of evidence, the ultimate question is
“whether the tainted evidence substantially affected the jury’s verdict.” Id.
at 827. Three factors are considered: (1) how prejudicial the improperly
admitted evidence was, (2) the effectiveness of any curative instruction, and
(3) how strong the evidence of guilt was. Id. Establishing plain error “is dif-
ficult, as it should be.” Puckett v. United States, 556 U.S. 129, 135 (2009)
(internal quotation marks and citation omitted).
Chen has not made the requisite showing. The government’s case
was, as he concedes, substantial, and the disputed evidence pales in compari-
son to evidence concerning the communications Chen sent to the agent and
the actions he took in furtherance of his goal of enticing a child into illegal
sexual activity. When the record is considered as a whole, we cannot say that
the disputed evidence “substantially affected the jury’s verdict.” McCall,
553 F.3d at 826. Consequently, the plain error standard has not been met.
See id.; see also id. at 825-27.
Finally, Chen avers that the district court erred by not granting his
motion for a judgment of acquittal because the evidence did not show that he
attempted to entice a real child and by overruling his objection to that part of
the jury instructions that did not require the government to prove that he
attempted to entice a real child. Those arguments are, as he acknowledges,
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Case: 21-10150 Document: 00516100268 Page: 3 Date Filed: 11/18/2021
No. 21-10150
unavailing under our jurisprudence, which holds that an 18 U.S.C. § 2422(b)
conviction can be grounded in communications with an undercover agent
posing as a person with access to a child. See United States v. Caudill,
709 F.3d 444, 445−46 (5th Cir. 2020); United States v. Lundy, 676 F.3d 444,
448−49 (5th Cir. 2012).
AFFIRMED.
3