                                                                 [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS
                                                                        FILED
                        FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                     APR 6, 2011
                                No. 10-13568                         JOHN LEY
                            Non-Argument Calendar                      CLERK
                          ________________________

                  D.C. Docket No. 6:08-cr-00028-GAP-DAB-2

UNITED STATES OF AMERICA,

                                                   lllllllllllllllllllllPlaintiff-Appellee,

                                      versus

VIRA HONG,

                                               lllllllllllllllllllllDefendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                                 (April 6, 2011)

Before PRYOR, MARTIN and FAY, Circuit Judges.

PER CURIAM:

      Vira Hong appeals her conspiracy to commit bank fraud and pass a fictitious

instrument. 18 U.S.C. § 371. Hong argues that the evidence is insufficient to
establish that she intended to or actually entered an agreement to deposit a

fraudulent check. We affirm.

      Ample evidence establishes that Hong conspired with Marcus Rogozinski to

present a fraudulent check to a bank for payment and to profit from the fraud.

Hong created and mailed to Rogozinski what appeared to be a check for over $10

million that Hong had designed using check printing software and blank check

stock. The check named as payee the “Treasury/UCC Contract Trust” located at

“1500 Pennsylvania Avenue N.W., Washington, D.C. 20220,” bore the routing

number for the Federal Reserve Bank in New York, and listed a payor, payee, and

numeric and written amounts. Although the check had several “red flags,”

including the large dollar amount, trusts named as both the payor and payee, and

included the statement “Signature Not Required” on the signature line, the Bank of

America processed the check when Rogozinski presented it for deposit because

the check bore the characteristics of a negotiable instrument. When Hong later

spoke to Rogozinski in three recorded telephone calls, Hong’s remarks revealed

that she had agreed with Rogozinski to deposit the fraudulent check as part of a

scheme to defraud. Hong expressed excitement after learning that the bank had

accepted the check; Hong said that she “definitely want[ed] something” from the

proceeds; she agreed three times to obtain other checks to “try doing it again”; she

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explained that she had asked Rogozinski to add a “passcode” to the signature card

for his bank account so that “nobody [could] retrieve it . . . except [him] and

[her]”; and, when making final plans to travel and meet Rogozinski based on his

representations that the check had cleared, Hong inquired if the funds had been

“moved . . . . Like [she] [had] told” Rogozinski. Federal agents arrested Hong

after she met Rogozinski in Orlando, Florida, and Hong admitted to the agents that

“she had indeed manufactured the check” and had created other checks from

which she had profited “possibly in the thousands.” Although Hong told the

agents that she was due the money from the Social Security Administration “based

on the work she had done and the funds she had paid in,” Hong conceded that she

had never earned $10 million. In addition, Hong’s testimony at trial about

choosing an uneven amount for the check based on Rogozinski’s “experience with

. . . Secret Service and Homeland Security and . . . with his friends at the bank and

lawyers” supported the theory of the United States that Hong and Rogozinski had

entered into a conspiracy to defraud a bank.

      Hong challenges the denial of her motion for a judgment of acquittal on two

grounds, but both her arguments fail. First, Hong argues that her convictions rest

on information solicited by Rogozinski during their telephone conversations and

those conversations are not sufficient evidence of the conspiracy because

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Rogozinski called her as an agent of the United States, not as a “culpable

conspirator.” United States v. Arbane, 446 F.3d 1223, 1228 (11th Cir. 2006) (“If

there are only two members of a conspiracy, neither may be a government agent or

informant who aims to frustrate the conspiracy.”). Whether or not the conspiracy

ended before the conversations occurred, Hong’s remarks to Rogozinski can be

reasonably interpreted to relate to an preexisting agreement for Rogozinski to

present the check at the Bank of America. Hong’s remarks, the evidence of her

role in the conspiracy, and her admissions to federal agents and during the trial,

established Hong’s participation in a conspiracy to defraud. Second, Hong argues

that she was entitled to an acquittal because her testimony that she created the

check to transfer money between trust funds held by the United States Treasury

provided an innocent explanation for her “misguided,” “misinformed,” and

“eccentric” conduct. The jury was entitled to discredit Hong’s testimony and treat

it as substantive evidence of her guilt. See United States v. Brown, 53 F.3d 312,

314 (11th Cir. 1995). The district court did not err by denying Hong’s motion for

a judgment of acquittal.

      Hong’s conviction is AFFIRMED.




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