United States v. Kenneth Park , 537 F. App'x 686 ( 2013 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 07 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 11-50197
Plaintiff - Appellee, D.C. No. 2:09-cr-00128-VBF-1
v.
MEMORANDUM*
KENNETH SUNG PARK, aka Sung K.
Park, aka Sung Kyu Park,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Valerie Baker Fairbank, District Judge, Presiding
Argued and Submitted July 10, 2013
Pasadena, California
Before: GRABER, RAWLINSON, and WATFORD, Circuit Judges.
Appellant Kenneth Sung Park (Park) challenges his convictions for bank
fraud and wire fraud.
1. The district court acted within its discretion when it admitted Mr.
Kim’s prior consistent statement pursuant to Federal Rule of Evidence
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
801(d)(1)(B). Park’s challenge to the witness’s testimony at trial constituted an
“express or implied charge of recent fabrication or improper influence or motive of
the [witness’s] testimony . . .” United States v. Chang Da Liu, 538 F.3d 1078,
1086 (9th Cir. 2008) (citations omitted).
The district court did not abuse its discretion in holding that the statement’s
probative value outweighed any danger of unfair prejudice under Federal Rule of
Evidence 403. See United States v. Payne, 944 F.2d 1458, 1471 (9th Cir. 1991)
(holding that prior consistent statements had “significant probative force bearing
on credibility apart from mere repetition” because the statements “demonstrated
that [the witness] had repeated certain aspects of her story . . .”); see also United
States v. Miller, 874 F.2d 1255, 1274 (9th Cir. 1989) (observing that the
determination that “the prior consistent statement has significant probative force
bearing on credibility apart from mere repetition. . . . rests in the trial judge’s sound
discretion”) (citation, footnote reference, and internal quotation marks omitted).
In any event, any error in admitting the prior consistent statement was
harmless given the substantial evidence of Park’s guilt. See United States v. Ajoku,
718 F.3d 882, 890 (9th Cir. 2013) (“Non-constitutional evidentiary decisions are
reviewed for abuse of discretion and reversal is appropriate only if the error more
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likely than not affected the verdict. . . .”) (citation and internal quotation marks
omitted).
2. The district court’s limitations on cross-examination did not violate
Park’s Confrontation Clause rights. See United States v. Urena, 659 F.3d 903,
907-08 (9th Cir. 2011), cert. denied, 132 S.Ct. 1608 (2012) (“A limitation on
cross-examination does not violate the Confrontation Clause unless it limits
relevant testimony and prejudices the defendant, and denies the jury sufficient
information to appraise the biases and motivations of the witness. . . .”) (citation
omitted).
3. The district court did not abuse its discretion in denying Park’s
belated motion for appointment of sentencing counsel, as Park was appointed
counsel and granted self-representation on numerous occasions prior to the filing
of his motion. See United States v. Thompson, 587 F.3d 1165, 1174 (9th Cir.
2009) (holding that “a court may force a defendant to proceed pro se if his conduct
is dilatory and hinders the efficient administration of justice”) (citation and internal
quotation marks omitted).
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4. The district court did not err in denying Park’s motion for new trial.
First, no Confrontation Clause violation occurred because the bank loan
applications were routine business documents whose primary purpose was not for
use in litigation. See United States v. Rojas-Pedroza, 716 F.3d 1253, 1267 (9th
Cir. 2013). Second, as Park concedes, the district court was not required to inquire
whether Park agreed to a stipulation signed by Park and his attorney. See United
States v. Hernandez-Hernandez, 431 F.3d 1212, 1219 (9th Cir. 2005) (“[W]hen a
stipulation to a crucial fact is entered into the record in open court in the presence
of the defendant, and is agreed to by defendant’s acknowledged counsel, the trial
court may reasonably assume that the defendant is aware of the content of the
stipulation and agrees to it through his or her attorney[.]”) (citations and footnote
reference omitted).
Finally, a remand for the district court to consider Park’s ineffective
assistance of counsel and handwriting analysis claims is unwarranted. “Although
[Park] raised [these claims] before the district court, the conclusory statement in
[his] opening brief, unaccompanied by argument or citation to the record, is
insufficient to preserve the issue for appeal.” Autotel v. Nev. Bell Tel. Co., 697
F.3d 846, 857 n.9 (9th Cir. 2012), cert. denied, 133 S.Ct. 1250 (2013) (citations
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omitted). In any event, the district court rejected all of Park’s claims when it
denied Park’s motion for new trial in its entirety.
AFFIRMED.
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