United States v. Bo Wei Hua , 207 F. App'x 311 ( 2006 )


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  •                              UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 05-4947
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    BO WEI HUA,
    Defendant - Appellant.
    No. 05-5001
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    ZHIHAO LIU,
    Defendant - Appellant.
    Appeals from the United States District Court for the Eastern
    District of Virginia, at Alexandria. T. S. Ellis, III, District
    Judge. (CR-05-193)
    Submitted:    October 11, 2006         Decided:     November 30, 2006
    Before WILKINSON, WILLIAMS, and TRAXLER, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    John O. Iweanoge, THE IWEANOGES FIRM, P.C., Washington, D.C.;
    Michael S. Nachmanoff, Acting Federal Public Defender, Geremy C.
    Kamens, Assistant Federal Public Defender, Frances H. Pratt,
    Research   and  Writing   Attorney,   Alexandria,   Virginia,   for
    Appellants. Chuck Rosenberg, United States Attorney, Paul Ahern,
    Special Assistant United States Attorney, Alexandria, Virginia, for
    Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    See Local Rule 36(c).
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    PER CURIAM:
    Bo Wei Hua and Zhihao Liu appeal their jury convictions
    and resulting sentences for conspiring to commit access device
    fraud, in violation of 
    18 U.S.C. § 1029
    (b)(2) (2000).    We affirm.
    Liu contends the district court erroneously instructed
    the jury that concealment of the crime was part of the conspiracy.
    This court reviews a contested jury instruction for abuse of
    discretion.   United States v. Park, 
    421 U.S. 658
    , 675 (1975).   The
    judgment is not subject to reversal if, given the full context of
    the trial, “the charge was not misleading and contained an adequate
    statement of the law to guide the jury’s determination.”     United
    States v. United Med. & Surgical Supply Corp., 
    989 F.2d 1390
    , 1406-
    07 (4th Cir. 1993) (quoting United States v. Park, 
    421 U.S. at 675
    ).   Because concealment of identity is central to the objective
    of using fraudulent credit cards, we conclude that the district
    court correctly instructed the jury that concealment was a central
    part of this conspiracy.   See Grunewald v. United States, 
    353 U.S. 391
    , 399-402, 405 (1957); United States v. Rabinowitz, 
    56 F.3d 932
    ,
    934 (8th Cir. 1995).
    Hua contends the evidence was insufficient to sustain her
    conviction.   This court must affirm Hua’s jury conviction if there
    is substantial evidence, when viewed in the light most favorable to
    the Government, to support the jury’s verdict.    Glasser v. United
    States, 
    315 U.S. 60
    , 80 (1942).        In determining whether the
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    evidence is substantial, this court views the evidence in the light
    most favorable to the government and inquires whether there is
    evidence   sufficient    to   support      a    finding     of   guilt   beyond   a
    reasonable doubt.     United States v. Burgos, 
    94 F.3d 849
    , 862 (4th
    Cir. 1996).    In evaluating the sufficiency of the evidence, the
    court does not review witness credibility and assumes the jury
    resolved all contradictions of the evidence in the government’s
    favor.   United States v. Romer, 
    148 F.3d 359
    , 364 (4th Cir. 1998).
    The jury, not the reviewing court, weighs the credibility of the
    evidence and resolves any conflicts in the evidence presented, and
    if the evidence supports different reasonable interpretations, the
    jury decides which to believe.          United States v. Murphy, 
    35 F.3d 143
    , 148 (4th Cir. 1994).           Circumstantial as well as direct
    evidence is considered, and the government is given the benefit of
    all reasonable inferences from the facts proven to the facts sought
    to be established.     United States v. Tresvant, 
    677 F.2d 1018
    , 1021
    (4th Cir. 1982).      After careful consideration of the record, we
    find the evidence sufficient to sustain Hua’s conviction.
    Finally, Hua asserts that the trial court abused its
    discretion    by   refusing   to   allow       her   to   present   evidence   and
    instruct the jury on the defense of duress.               “In order to establish
    duress the defendant must show that he acted under a reasonable
    fear of an imminent threat of bodily harm and that he had no
    reasonable choice but to commit the illegal act.” United States v.
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    King, 
    879 F.2d 137
    , 139 (4th Cir. 1989) (emphasis in original)
    (citations omitted).     However, duress “is limited to very narrow
    circumstances.”    
    Id. at 138
    .    Hua contends she was “compelled” to
    use fraudulent credit cards under threat of harm to her daughter.
    Even assuming Hua’s testimony is credible, as the district court
    noted, any alleged threat of harm was not imminent.           See, e.g.,
    Buczek v. Continental Cas. Ins. Co., 
    378 F.3d 284
    , 291 (3d Cir.
    2004) (employing dictionary definitions of “ready to take place;
    near at hand” and “likely to occur at any moment; impending”)
    (citations omitted); United States v. Tokash, 
    282 F.3d 962
    , 970
    (7th Cir. 2002) (noting that “future” or “later” and “imminent” are
    opposites).   Furthermore, Hua possessed the reasonable alternative
    of   reporting    the   threat   to   local   or   federal   authorities.
    Therefore, we hold that the district court did not err in refusing
    the duress instruction.
    Accordingly, we affirm Hua’s and Liu’s convictions and
    sentences.    We dispense with oral argument because the facts and
    legal contentions are adequately presented in the materials before
    the court and argument would not aid the decisional process.
    AFFIRMED
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