                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             DEC 13 2016
                     UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No.    15-50044

              Plaintiff-Appellee,                 D.C. No.
                                                  8:10-cr-00188-JLS-1
 v.

BICH QUYEN NGUYEN,                                MEMORANDUM*

              Defendant-Appellant.


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

                           Submitted December 9, 2016**
                               Pasadena, California

Before: PREGERSON, NGUYEN, and OWENS, Circuit Judges.

      Bich Quyen Nguyen appeals her conviction for conspiracy to commit wire

fraud, in violation of 18 U.S.C. § 1349. She alleges that the district court erred in

failing to use her proposed good faith jury instruction because the jury instruction


      *
             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).
on the element of intent to defraud did not fully capture her theory of good faith.

Nguyen also claims that a separate good faith instruction was necessary because

the government shifted the burden of proof by commenting on Nguyen’s lack of

documentation to corroborate her testimony. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

      Nguyen contends that the district court should have given a particularized

good faith instruction above and beyond the instruction on intent to defraud. Her

claim is foreclosed by this court’s precedents. “Our case law is well settled that a

criminal defendant has ‘no right’ to any good faith instruction when the jury has

been adequately instructed with regard to the intent required to be found guilty of

the crime charged, notwithstanding the normal rules governing ‘theory of defense’

requests.” United States v. Shipsey, 363 F.3d 962, 967 (9th Cir. 2004) (emphasis

in original). Here, the district court (1) correctly defined intent to defraud as “an

intent to deceive or cheat;” (2) used language regarding good faith that we

approved in United States v. Molinaro, 11 F.3d 853, 863 (9th Cir. 1993); and (3)

repeatedly instructed the jury that the government bore the burden of proving each

element, including intent, beyond a reasonable doubt.

      Nguyen also argues that the government shifted the burden of proof during

cross-examination and rebuttal argument by implying that Nguyen had a duty to


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present evidence to corroborate her testimony. We have held that if the defendant

“takes the stand and testifies in his own defense his credibility may be impeached

and his testimony assailed like that of any other witness.” United States v. Palmer,

536 F.2d 1278, 1282 (9th Cir. 1976) (quoting Brown v. United States, 356 U.S.

148, 154-55 (1958)). We have also held that “[t]he prosecutor may comment on

the defendant’s failure to present exculpatory evidence, provided that the

comments do not call attention to the defendant’s own failure to testify.” United

States v. Mares, 940 F.2d 455, 461 (9th Cir. 1991).

      Here, the district court instructed the jury that questions, statements,

objections, and arguments by lawyers are not evidence. The district court also

repeatedly instructed the jury that the government has the burden of proving every

element beyond a reasonable doubt and that the defendant does not have to present

any evidence to prove innocence. Additionally, when the government raised

Nguyen’s lack of corroborating evidence during its rebuttal argument, the

government immediately reminded the jury, “We have the burden.”

      We hold that the government’s questions and comments were designed to

highlight the weaknesses in Nguyen’s version of events as presented through her

testimony and that they did not impermissibly shift the burden of proof to the

defense. Accordingly, no curative instruction was necessary.


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AFFIRMED.




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