United States v. Zhi Yong Guo , 422 F. App'x 596 ( 2011 )

FILED
NOT FOR PUBLICATION MAR 17 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50394
Plaintiff - Appellee, D.C. No. 2:08-cr-00461-JFW-2
v.
MEMORANDUM *
ZHI YONG GUO, aka Jackson,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted November 1, 2010
Pasadena, California
Before: PREGERSON, RIPPLE,** and GRABER, Circuit Judges.
A jury convicted Defendant Zhi Yong Guo of knowingly and willfully
conspiring to export, and attempting to export, ten export-controlled thermal
imaging cameras to China without a license. In an opinion published this date, we
uphold against a vagueness challenge the constitutionality of the statute of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36–3.
**
The Honorable Kenneth F. Ripple, Senior United States Circuit Judge
for the Seventh Circuit, sitting by designation.
conviction. In this disposition, we consider Defendant’s remaining claims, none of
which persuades us to reverse his conviction.
1. The district court properly overruled Defendant’s objection under Batson
v. Kentucky, 476 U.S. 79 (1986). The court correctly engaged in the three-step
process for determining whether the government had challenged the juror because
of her race. See id. at 96-98. The government offered two race-neutral reasons for
its challenge, which Defendant did not rebut. No retained juror possessed the same
characteristics as the challenged juror, and the government did not challenge two
other jurors of Chinese descent. Accordingly, the court permissibly ruled that
Defendant had failed to prove a discriminatory purpose.
2. The district court properly denied Defendant’s motion to excuse a juror
for cause. The juror’s part-time work as a deputy sheriff, by itself, did not imply
bias as a matter of law. United States v. Le Pera, 443 F.2d 810, 812 (9th Cir.
1971). The juror unequivocally swore that he could make a judgment based on the
evidence, rather than on his general views of law enforcement witnesses and
defense lawyers. The district court did not abuse its discretion by relying on the
juror’s unequivocal answers. United States v. Alexander, 48 F.3d 1477, 1484 (9th
Cir. 1995).
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3. The district court permissibly overruled Defendant’s objection to
evidence of his relationship with Evan Zhang. This evidence fell within the
exception to the bar on "other acts" evidence in Federal Rule of Evidence 404(b)
and was corroborated. United States v. Hollis, 490 F.3d 1149, 1152–53 (9th Cir.
2007). The district court did not abuse its discretion in ruling that the risk of
confusion did not outweigh the high probative value of the evidence. United States
v. Hinkson, 585 F.3d 1247, 1267 (9th Cir. 2009) (en banc).
4. The district court permissibly overruled Defendant’s objection to Zhang’s
testimony regarding statements allegedly made by Chen and Zhu. A
preponderance of the evidence supported the district court’s conclusion that those
statements qualified as statements of co-conspirators made during, and in
furtherance of, a single conspiracy under Federal Rule of Evidence 801(d)(2)(E).
For this reason, we reject Defendant’s Confrontation Clause challenge. United
States v. Bridgeforth, 441 F.3d 864, 868–69 (9th Cir. 2006).
5. The district court properly allowed evidence establishing the
government’s reasons for regulating the export of thermal imaging cameras. The
evidence regarding the control reasons was relevant to whether the cameras in
Defendant’s possession at the time of his arrest fell within the export-control
regulations.
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The district court erred, however, by allowing prejudicial testimony relating
to potentially dangerous applications of the technology. In addition to having little
or no probative value, this testimony was highly prejudicial and did not show
anything about what Defendant or the intended recipients planned to do with the
technology. Nonetheless, because Defendant failed to object, we review only for
plain error, United States v. Morris, 827 F.2d 1348, 1350 (9th Cir. 1987), and find
none. See United States v. Bracy, 67 F.3d 1421, 1433 (9th Cir. 1995) (holding that
the trial court did not plainly err by allowing improper character evidence because
"[t]here was plenty of other evidence connecting the defendants" to the crime).
6. The district court permissibly excluded Defendant’s proposed expert
testimony. Defendant failed to show that the expert had used reliable methods and
that those methods had been applied to the facts in this case. See United States v.
Curtin, 588 F.3d 993, 997–98 (9th Cir. 2009).
7. There being only one arguable error, Defendant’s argument that
cumulative error requires reversal has no purchase.
AFFIRMED.
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