                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 11 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-50110

                Plaintiff-Appellee,             D.C. No.
                                                2:14-cr-00548-ODW-1
 v.

MICHAEL HUYNH,                                  MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Central District of California
                   Otis D. Wright II, District Judge, Presiding

                            Submitted January 9, 2018**
                               Pasadena, California

Before: M. SMITH and FRIEDLAND, Circuit Judges, and RAKOFF,*** District
Judge.

      Michael Huynh appeals his conviction on one count of conspiracy to commit

medical fraud in violation of 18 U.S.C. § 371 and eleven counts of subscribing to a


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Jed S. Rakoff, Senior United States District Judge for
the Southern District of New York, sitting by designation.
false tax return in violation of 26 U.S.C. § 7206(1). We have jurisdiction pursuant

to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and we AFFIRM.

      1. Huynh argues that a statement made by the district court during voir dire

constitutes reversible error. We disagree. Because Huynh led the court to believe

that its instructions following the statement fully addressed his objection, we

review for plain error. United States v. Davis, 36 F.3d 1424, 1431 (9th Cir. 1994)

(“Because [the defendant] withdrew his objection to these instructions, we review

for plain error.” (footnote omitted)). Here, even assuming there was an error, that

error would not meet the plain error standard.

      A plain error exists when: 1) there was an “an error or defect”; 2) the error

was “clear or obvious, rather than subject to reasonable dispute”; 3) “the error . . .

affected the appellant’s substantial rights,” which means that the error “affected the

outcome of the district court proceedings”; and 4) if the first three prongs are met,

the error “seriously affect[ed] the fairness, integrity or public reputation of judicial

proceedings.” Puckett v. United States, 556 U.S. 129, 135 (2009) (quoting United

States v. Olano, 507 U.S. 725, 734, 736 (1993)).

      During voir dire, the court asked the jury a hypothetical question to resolve

some confusion among the prospective jurors. Much of this hypothetical was

phrased as if it were fact. However, both the Government and the district court

immediately explained to the prospective jurors that the question was hypothetical


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and was not evidence. Huynh has cited no case that shows the statement, as

immediately clarified, was clearly an error. See United States v. De La Fuente,

353 F.3d 766, 769 (9th Cir. 2003) (“An error cannot be plain where there is no

controlling authority on point and where the most closely analogous precedent

leads to conflicting results.”). Further, given the overwhelming evidence against

Huynh, the statement cannot be said to have affected the outcome of the case.

      2. Huynh also takes issue with the jury instruction stating that the

prosecution was “not required to prove that any additional tax was due to the

government or that the government was deprived of any tax revenues by reason of

any filing of any false return.” Specifically, he contends that because “a tax loss

[was] the only material false statement charged in [the] tax counts,” this instruction

allowed the jury to convict him under Section 7206(1) without finding that his

filings were incorrect as to material matters. This argument misrepresents the

nature of the charges against him. Huynh was charged with and convicted of

underreporting income—not underreporting tax liability. Moreover, the

challenged instruction is consistent with the principle that “[t]he existence of a tax

deficiency is not an element of this crime” under Section 7206(1). United States v.

Marabelles, 724 F.2d 1374, 1380 (9th Cir. 1984); see also United States v.

Marashi, 913 F.2d 724, 736 (9th Cir. 1990) (“Section 7206(1) is a perjury statute;

it is irrelevant whether there was an actual tax deficiency.”). And we are not


                                           3
persuaded by Huynh’s citation to United States v. Uchimura, 125 F.3d 1282 (9th

Cir. 1997), that the instruction took the materiality decision away from the jury.

      3. Next, Huynh argues that his rights under the Confrontation Clause of the

Sixth Amendment were violated because the court prevented defense counsel from

effectively cross-examining a pharmacist witness. This argument mischaracterizes

the nature of the events. The court asked clarifying questions, after which defense

counsel resumed cross-examination of the witness—without any limitations

imposed by the court. Regardless of the standard of review that applies, Huynh

has therefore not demonstrated that any violation occurred.

      4. Huynh further argues that his Fifth and Sixth Amendment rights were

violated because the court allowed the introduction of hearsay evidence when it

permitted the pharmacist to testify about Huynh’s share of the profits. Even

assuming these statements constituted hearsay, and even assuming we review de

novo, the admission of this testimony was not prejudicial. Indeed, any error would

be “harmless beyond a reasonable doubt,” United States v. Bustamante, 687 F.3d

1190, 1195 (9th Cir. 2012), because there was plenty of evidence proving that

Huynh received over $1 million through the scheme.

      5. Finally, Huynh argues that there was insufficient evidence to support his

convictions because the Government did not call key witnesses, did not prove

fraud because a letter sent by the pharmacy purportedly showed that any billing


                                          4
problems were products of human error, and did not prove that Huynh intentionally

subscribed to false tax returns because he was aware a failure to report income

would result in the IRS issuing a Form CP-2000. When reviewing the sufficiency

of the evidence, “the relevant question is whether, after 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). Though Huynh points to a few pieces of

evidence that support his arguments, he fails to address the evidence against him,

which is more than sufficient to show that a rational juror could have found beyond

a reasonable doubt that he was guilty.

      AFFIRMED.




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