United States v. George Wu , 714 F. App'x 824 ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 15 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50185
Plaintiff-Appellee, D.C. No.
2:14-cr-00175-MWF-1
v.
GEORGE WU, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Argued and Submitted March 5, 2018
Pasadena, California
Before: GRABER and OWENS, Circuit Judges, and MAHAN,** District Judge.
Defendant-Appellant George Wu appeals from six jury convictions for
bribery and conspiracy to commit bribery on two grounds: first, that the district
court’s substantive-bribery instruction was plainly erroneous because it
constructively amended counts three and four of the indictment; and second, that
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable James C. Mahan, United States District Judge for the
District of Nevada, sitting by designation.
the district court erred in permitting the government to cross-examine Wu
regarding specific instances of alleged past misconduct. As the parties are familiar
with the facts, we do not recount them here. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
1. The substantive-bribery instruction was misleading as to counts three and
four, and the error was clear. Counts three and four charged Wu with having
bribed John Lee’s unnamed contacts within the U.S. Customs and Immigration
Service (“USCIS”), but the instruction directed the jury to assess whether Wu
bribed Fred Moldt or Daniel Amos, two known USCIS officers with no connection
to Lee. The instruction was thus “unquestionably erroneous on its face.” United
States v. Morfin, 151 F.3d 1149, 1151 (9th Cir. 1998) (per curiam).
The error did not, however, affect Wu’s substantial rights because the
evidence against him as to counts three and four was overwhelming. See United
States v. Marcus, 560 U.S. 258, 262 (2010); United States v. Recio, 371 F.3d 1093,
1100 (9th Cir. 2004). Wu did not dispute that he gave thousands of dollars in cash
to Lee on August 7 and October 22, 2013; the jury received hours of taped
conversations between Wu and Lee in which, among other things, Wu explicitly
agreed to pay Lee so that Lee’s USCIS insiders could secure legal residency for
one of Wu’s clients; and Wu admitted to having never introduced Lee to the clients
on whose behalf Wu was supposedly paying attorney fees. Moreover, in response
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to its request for a “list of each bribery case” for which it was to assess guilt, the
jury was provided with a copy of the indictment, which clarified the specific
conduct for which the jury was to convict or acquit. Given this record, we are
satisfied “that the error did not affect the jury’s verdict, and thus did not affect the
defendant’s substantial rights.” Morfin, 151 F.3d at 1151.
2. The district court did not abuse its discretion in permitting the
government to cross-examine Wu about his alleged past acts. Evidence of those
acts was relevant to show Wu’s predisposition to commit bribery or to unlawfully
misuse confidential government information, which in turn was relevant to rebut
Wu’s entrapment defense. See Fed. R. Evid. 405(b); United States v. Mejia, 559
F.3d 1113, 1116 (9th Cir. 2009); United States v. Mendoza-Prado, 314 F.3d 1099,
1102-03 (9th Cir. 2002) (per curiam). The evidence was also relevant to show
Wu’s character for untruthfulness. See Fed. R. Evid. 608(b); United States v.
Dring, 930 F.2d 687, 691 & n.3 (9th Cir. 1991). There was “sufficient evidence”
adduced at trial, moreover, to support a finding that Wu committed those other
acts. United States v. Bailey, 696 F.3d 794, 799 (9th Cir. 2012); see also
Huddleston v. United States, 485 U.S. 681, 685-89 (1988). Finally, Federal Rule
of Evidence 403 did not require that the evidence of Wu’s past acts be excluded.
See United States v. Dhingra, 371 F.3d 557, 565 (9th Cir. 2004).
AFFIRMED.
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