USA V. CHRISTIAN CHUNG, No. 12-50594 (9th Cir. 2014)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT MAR 18 2014 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHRISTIAN EUNSUNG CHUNG, Defendant - Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KU IL LEE, Defendant - Appellant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 12-50594 D.C. No. 8:11-cr-00151-CJC-1 MEMORANDUM* No. 12-50605 D.C. No. 8:11-cr-00151-CJC-2 Appeals from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Submitted March 5, 2014** Pasadena, California Before: FERNANDEZ, GRABER, and MURGUIA, Circuit Judges. Christian Eunsung Chung and Ku Il Lee appeal their convictions and sentences for wire fraud. See 18 U.S.C. § 1343. We affirm. (1) Chung and Lee first assert that the evidence was insufficient to support the jury s determination that they intentionally participated in a scheme that used the wires to defraud the Medicare program operated by the United States Department of Health and Human Services. See id.; United States v. Jinian, 725 F.3d 954, 960 (9th Cir. 2013); United States v. Blitz, 151 F.3d 1002, 1006 (9th Cir. 1998). We disagree. The evidence was sufficient because, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Nevils, 598 F.3d 1158, 1163 64 (9th Cir. 2010) (en banc); see also Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). More specifically, the evidence was ample to show that it was foreseeable ** The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a)(2). 2 that wire transmissions would be used to carry out the scheme1 and that Chung and Lee specifically intended to defraud the government.2 (2) Chung and Lee next argue that there was plain error3 when the government objected to a question about the comparison of handwriting in certain documents, which was asked of one of the government s witnesses on crossexamination. The government s objection that a certified document examiner was not present and that the documents spoke for themselves was promptly overruled by the district court, and the line of questioning went forward without further ado. The objection neither tended to shift the burden of persuasion to the defense4 nor vouched for the witness.5 There was no plain error. (3) Chung and Lee finally argue that their sentences violate the Sixth Amendment to the United States Constitution. U.S. Const. amend. VI. Their 1 See Jinian, 725 F.3d at 960, 966. 2 See United States v. Pelisamen, 641 F.3d 399, 409 (9th Cir. 2011); United States v. Ciccone, 219 F.3d 1078, 1084 (9th Cir. 2000); United States v. Lothian, 976 F.2d 1257, 1262 63, 1267 (9th Cir. 1992); see also United States v. Boone, 951 F.2d 1526, 1538 39 (9th Cir. 1991). 3 See United States v. Olano, 507 U.S. 725, 732 35, 113 S. Ct. 1770, 1776 78, 123 L. Ed. 2d 508 (1993). 4 See United States v. Necoechea, 986 F.2d 1273, 1282 (9th Cir. 1993). 5 See United States v. Weatherspoon, 410 F.3d 1142, 1146 (9th Cir. 2005). 3 argument fails because the district court s calculation of loss for guideline purposes6 affected neither a mandatory minimum sentence7 nor the maximum possible sentence8 for wire fraud crimes.9 AFFIRMED. 6 See USSG §2B1.1(b) (Nov. 2012); see also United States v. Torlai, 728 F.3d 932, 938 n.6 (9th Cir. 2013). 7 See Alleyne v. United States, __ U.S. __, __, 133 S. Ct. 2151, 2155, 186 L. Ed. 2d 314 (2013). 8 See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362 63, 147 L. Ed. 2d 435 (2000). 9 The statutory sentencing range is imprisonment for not more than 20 years. 18 U.S.C. § 1343. 4

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