                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       OCT 26 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    15-50465

                Plaintiff-Appellee,             D.C. No.
                                                8:11-cr-00181-JLS-3
 v.

YONG S. CHA,                                    MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                       for the Central District of California
                   Josephine L. Staton, District Judge, Presiding

                     Argued and Submitted October 10, 2018
                              Pasadena, California

Before: SCHROEDER and NGUYEN, Circuit Judges, and WHELAN, ** District
Judge.

      Yong S. Cha appeals his conviction after a retrial for one count of making

false statements affecting a health care program, in violation of 18 U.S.C.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Thomas J. Whelan, United States District Judge for
the Southern District of California, sitting by designation.
§ 1035(a)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291. Cha raises five

issues on appeal. For the reasons that follow, we affirm.

       Cha argues his retrial violated double jeopardy because his conviction in the

first trial was based on insufficient evidence. His argument is foreclosed by United

States v. Robertson, 875 F.3d 1281 (9th Cir. 2017), which held that in asserting a

double jeopardy violation, “a criminal defendant cannot challenge the sufficiency

of the evidence presented at a previous trial following a conviction at a subsequent

trial.” Id. at 1294. Because Cha was convicted in the retrial, he may not challenge

the sufficiency of the evidence in the first trial.

       Cha raises two challenges to the district court’s jury instruction. He claims

it relieved the government of proving every element of the offense because it did

not require the jury to find the treatment notes were forged. Cha was charged

under 18 U.S.C. § 1035(a)(2), entitled “[f]alse statements relating to health care

matters.” Because there is no Ninth Circuit model jury instruction for § 1035, the

district court used the model instruction for a violation of 18 U.S.C. § 1001(a)(3),

which uses the same language—“false writing or document”—as § 1035(a)(2).

Given the similar language and purpose of the two sections, § 1001(a)’s model jury

instruction has been used in other cases involving a violation of section 1035. See

United States v. Natale, 719 F.3d 719 (7th Cir. 2013) (evaluating district court’s

jury instruction for violation of 18 U.S.C. § 1035). Forgery is not an element of 18


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U.S.C. § 1035(a)(2). The district court, therefore, did not err in patterning the jury

instruction after the Ninth Circuit’s model jury instruction for 18 U.S.C. § 1001(a).

      Cha also contends the jury instruction constructively amended the

indictment because the jury was not limited to convicting him for false statements

in the treatment notes. Because there was no evidence that Cha “used” or “made”

any documents other than the falsified treatment notes, the jury could only have

convicted Cha for false statements in the treatment notes. Accordingly, there was

no constructive amendment. See United States v. Hartz, 485 F.3d 1011, 1019–23

(9th Cir. 2006) (despite jury instruction’s vague reference to “firearm,” finding no

constructive amendment where the only firearms introduced into evidence were

those referred to in the indictment).

      Cha next contends the district court erred in admitting into evidence his

proffer statements. A district court’s decision to admit proffer statements is a

question of law reviewed de novo. See United States v. Rebbe, 314 F.3d 402, 405

(9th Cir. 2002). Cha’s proffer agreement allowed the government to use his

proffer statements to “refute or counter . . . any . . . statement or representation

offered by or on behalf of” Cha. Because Cha’s attorney made assertions at trial

that were inconsistent with Cha’s proffer statements, the district court did not err in

admitting those statements into evidence. Id. at 407 (where defendant presented a




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defense that was inconsistent with proffer statements, district court did not err in

admitting proffer statements).

      Cha’s final argument is that the district court erred in not permitting him to

cross-examine Dr. Pak’s wife, So-Ja Pak, regarding potential bias. This argument

is not supported by the record. Although the district court precluded Cha from re-

litigating Dr. Pak’s competency, it allowed Cha to cross-examine Mrs. Pak

regarding potential bias, including the government’s dismissal of her husband from

the case and the fact she was testifying for the government.

      AFFIRMED.




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