United States v. Julie Choi , 613 F. App'x 597 ( 2015 )

FILED
NOT FOR PUBLICATION MAY 29 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50324
Plaintiff - Appellee, D.C. No. 8:10-cr-00047-CJC-2
v.
MEMORANDUM*
JULIE CHOI,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Submitted May 4, 2015**
Pasadena, California
Before: PREGERSON, TALLMAN, and NGUYEN, Circuit Judges.
Julie Choi (“Choi”) appeals her conviction for one count of conspiring to
distribute the illegal narcotic MDMA, also known as Ecstacy, and three substantive
counts of distributing MDMA, in violation of 21 U.S.C. §§ 846 and 841(a)(1) and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(b)(1)(C). Choi contends that the evidence was insufficient to support the jury’s
convictions and that no reasonable factfinder could have concluded that she was a
participant in either the drug distribution conspiracy or in the three substantive
distribution acts charged. This court has jurisdiction under 28 U.S.C. § 1291. We
affirm.
We review de novo claims regarding the sufficiency of evidence supporting
a criminal conviction. United States v. Bennett, 621 F.3d 1131, 1135 (9th Cir.
2010). Sufficient evidence supports a conviction if, “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.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979); see also United States v. Nevils, 598 F.3d
1158, 1164-65, 1169 (9th Cir. 2010) (en banc).
1. Regarding Choi’s three substantive distribution convictions, there is
sufficient evidence of Choi’s participation to demonstrate that any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt. See Jackson, 443 U.S. at 319.
On July 23, 2009, Choi participated in a drug sale as the driver for one of her
alleged co-conspirators, Tuan Kiet Do Pham (“Pham”), in a car registered to Choi.
A law enforcement officer observed Choi receive and count a $3,000 payment for
the sale of 1,000 Ecstacy pills. The law enforcement officer then observed Choi
assist Pham in collecting Ecstacy pills that had spilled onto the floor of her car. A
law enforcement audio recording supported the officer’s observations. After Pham
gave several hundred Ecstacy pills to the drug buyer, Choi drove Pham to a house
where significant work was done on her car to permit recovery of the remaining
spilled Ecstacy pills. Choi observed all the Ecstacy pill recovery efforts.
On July 24, 2009, Choi picked up Pham in her car and drove him to the
same meeting location to meet with the same drug buyer. Pham delivered the
Ecstacy pills spilled the day before. A law enforcement officer and the drug buyer,
who was a government confidential informant, observed the drug delivery and
testified in court to Choi’s participation. A law enforcement audio recording
supported their testimony regarding the drug delivery.
On September 24, 2009, a court-authorized law enforcement wiretap
revealed Pham’s participation in the sale of 1,500 Ecstacy pills. A law
enforcement officer observed the sale and testified in court about the participation
of an adult woman named “Julie,” matching Choi’s description, in the drug sale.
The drug sale took place in and around a car matching the description of Choi’s
car. Choi was present in her car for the sale.
2. Regarding Choi’s conviction for conspiracy, when viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the conspiracy beyond a reasonable doubt.
Jackson, 443 U.S. at 319. For Choi to have been found guilty of conspiracy under
21 U.S.C. § 846, the government had to prove the following: (1) “there was an
agreement between two or more persons to distribute” Ecstacy or possess Ecstacy
with intent to distribute it; and (2) Choi “joined in the agreement knowing of its
purpose and intending to help accomplish that purpose.” Ninth Circuit Model Inst.
9.19 (2010).
Though Choi attempts to minimize her participation in the conspiracy, “[i]t
is not a defense that a person’s participation in a conspiracy was minor or for a
short period of time.” Ninth Circuit Model Crim. Jury Inst. 8.23 (2010); see
United States v. Escalante, 637 F.2d 1197, 1200 (9th Cir. 1980) (holding that a
person may be a member of a conspiracy even though the person does not know all
of the purposes of or participants in the conspiracy). An agreement to join a
conspiracy “may be inferred from the defendant’s acts pursuant to the scheme, or
other circumstantial evidence, and a defendant’s proximity to the scene of illicit
activity may support an inference when viewed in context with other evidence.”
United States v. Matta-Ballesteros, 71 F.3d 754, 765 (9th Cir. 1995), opinion
amended on denial of reh’g, 98 F.3d 1100 (9th Cir. 1996); see also United States v.
Iriarte-Ortega, 113 F.3d 1022, 1024 (9th Cir. 1997), opinion amended on denial of
reh’g, 127 F.3d 1200 (9th Cir. 1997) (discussing proof of a conspiracy through
circumstantial evidence of defendants acting in concert for a common goal).
Choi argues that to uphold her conspiracy conviction, the government had to
show that Choi had prior knowledge that Pham was going to engage in a drug
transaction. The Supreme Court in Rosemond v. United States, stated that to be
convicted a defendant must have “knowledge that enables him to make the relevant
legal (and indeed, moral) choice” and time to “opt to walk away.” 134 S. Ct. 1240,
1249-50 (2014).
Beyond evidence from the July 23, July 24, and September 24, 2009 drug
sales, the jury heard evidence of Choi driving Pham to a drug sale on July 1, 2009.
The government presented to the jury wiretapped conversations from September 28
and October 2, 2009, in which Choi’s co-conspirators discussed Choi’s
participation in expanding their drug distribution efforts and Choi’s demand for an
appropriate finder’s fee for her assistance. Choi’s co-conspirators pled guilty to
the conspiracy in which Choi was charged.
Evidence from more than three months of Choi’s participation in the drug
distribution conspiracy demonstrates that Choi had more than adequate knowledge
and time to make her legal and moral choice. Rosemond, 134 S. Ct. at 1249-50.
Choi chose not to walk away from the drug distribution conspiracy.
Choi’s reliance on United States v. Tran, 568 F.3d 1156 (9th Cir. 2009), to
support overturning her convictions is misplaced. Unlike in Tran, Choi (1)
participated in drug sales as the driver of a car registered to her; (2) assisted in
several drug sales; (3) directly observed the drugs and then affirmatively acted to
facilitate their distribution; (4) lacked any testimony from co-conspirators denying
her involvement; and (5) faced extensive testimony from law enforcement
witnesses, as well as audio recordings, detailing her actions furthering the drug
distribution conspiracy.
None of Choi’s other arguments against her convictions, when viewed “in
the light most favorable to the prosecution,” are persuasive. Nevils, 598 F.3d at
1169.
AFFIRMED.