                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 31 2013

                                                                        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. 11-50200

              Plaintiff - Appellee,              D.C. No. 3:10-cr-02217-LAB-1

  v.
                                                 MEMORANDUM *
THANH VIET CAO, AKA Jeremy Cao

              Defendant - Appellant.




                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                       Argued and Submitted March 8, 2013
                              Pasadena, California

Before: WARDLAW and GOULD, Circuit Judges, and WOLF, Senior District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Mark L. Wolf, Senior District Judge for the U.S.
District Court for the District of Massachusetts, sitting by designation.
      Thanh Viet “Jeremy” Cao (“Cao”) appeals his conviction on one count of

conspiracy to commit wire fraud, and three counts of wire fraud and aiding and

abetting wire fraud, in violation of 18 U.S.C. §§ 2, 1341, 1343, and 1349. He also

appeals his sentence of 360 months in custody. We have jurisdiction under 28

U.S.C. § 1291. We affirm Cao’s conviction and sentence.

      The district court did not abuse its discretion by denying Cao’s motion to

recuse all of the judges of the United States District Court for the Southern District

of California. Where a litigant threatens a judge, “‘perhaps . . . the most

important’” aspect of the recusal inquiry under 28 U.S.C. § 455(a) is “the

perceived purpose of the threat.” United States v. Spangle, 626 F.3d 488, 496 (9th

Cir. 2010) (quoting United States v. Holland, 519 F.3d 909, 915 (9th Cir. 2008)).

Disqualification is not necessary or appropriate where the purpose of the threat is

to “force recusal and manipulate the judicial system,” Holland, 519 F.3d at 915,

rather than “actual malice,” Spangle, 626 F.3d at 496. In this case, after the

investigation into Cao’s activities had begun, but before he was indicted, Cao

threatened to file, and filed, liens against two judges, not including the district

judge who presided in his case, and against several prosecutors and other

government employees as well. The liens that Cao filed were reasonably regarded

as efforts to prompt recusal and manipulate the judicial system. See Holland, 519



                                            2
F.3d at 915–17.

      Moreover, the presiding district judge learned about the liens filed against

two of his colleagues in the course of the prosecution of Cao. Where, as here, the

information that allegedly requires disqualification was received by the judge in

the course of the proceedings at issue, disqualification is appropriate only if the

judge manifests opinions that “display a deep-seated favoritism or antagonism that

would make fair judgment impossible.” Liteky v. United States, 510 U.S. 540, 555

(1994). This is not such a case.

      The district court also did not abuse its discretion by denying Cao’s motion

to recuse the entire United States Attorney’s Office for the Southern District of

California. “District judges have ‘substantial latitude’ in deciding whether counsel

must be disqualified” in a criminal case. United States v. Frega, 179 F.3d 793, 799

(9th Cir. 1999) (quoting United States v. Stites, 56 F.3d 1020, 1024 (9th Cir.

1995)). Disqualification of a single prosecutor has been ordered in limited

circumstances, such as when the prosecutor would be a witness at trial, see United

States v. Prantil, 764 F.2d 548, 552–53 (9th Cir. 1985), or has an actual conflict of

interests, see Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 809

(1987) (holding “that counsel for a party that is the beneficiary of a court order

may not be appointed as prosecutor in a contempt action alleging a violation of that



                                           3
order”). Such circumstances are not present here. “There is no authority which

would allow a defendant to disqualify a government attorney by merely alleging

potential civil litigation.” United States v. Wencke, 604 F.2d 607, 611 (9th Cir.

1979) (per curiam). It necessarily follows that the disqualification of the entire

United States Attorney’s office was not required. Cf. United States v. Lorenzo, 995

F.2d 1448, 1452–53 (9th Cir. 1993).

      The district court’s decisions to admit certain evidence do not justify a

reversal of Cao’s conviction. At trial, Cao objected to the admission of some, but

not all, of the now disputed evidence. “We review a district court’s evidentiary

rulings for an abuse of discretion and its interpretation of the Federal Rules of

Evidence de novo.” United States v. Waters, 627 F.3d 345, 351–52 (9th Cir. 2010).

“The de novo standard applies when issues of law predominate in the district

court’s evidentiary analysis, and the abuse-of-discretion standard applies when the

inquiry is essentially factual.” United States v. Mateo-Mendez, 215 F.3d 1039,

1042 (9th Cir. 2000) (internal quotation marks omitted). Where an objection was

erroneously overruled, “we reverse only if the error was not harmless.” United

States v. Derington, 229 F.3d 1243, 1247 (9th Cir. 2000). Where a defendant did

not object to the challenged evidence at trial, “we review the admission of this

evidence for plain error.” United States v. Reyes-Bosque, 596 F.3d 1017, 1032 (9th



                                           4
Cir. 2010). Most of the evidence that defendant challenges was properly admitted

by the district court.1 In any event, the admission of any evidence that might have

been inadmissible at most constituted harmless error. See United States v.

Gonzalez-Flores, 418 F.3d 1093, 1099 (9th Cir. 2005).

      The district court’s denial of Cao’s motion for acquittal under Federal Rule

of Criminal Procedure 29 was not erroneous. Viewing the evidence concerning the

use of interstate wires in furtherance of the alleged scheme to defraud “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).

      “Where one does an act with knowledge that the use of the [wires] will

follow in the ordinary course of business, or where such use can reasonably be

foreseen, even though not actually intended, then he ‘causes’ the [wires] to be




      1
         There was a proper basis for the district court to admit some evidence
conditionally. The court did not make final rulings on the evidence conditionally
admitted. However, the court was not required to revisit sua sponte its rulings to
admit evidence conditionally. Rather, the burden was on defendant to move to
strike the conditionally admitted evidence. See Huddleston v. United States, 485
U.S. 681, 690 n.7 (1988); Sacramento Suburban Fruit Lands Co. v. Miller, 36 F.2d
922, 922 (9th Cir. 1929). Cao did not do so.

                                           5
used.” Pereira v. United States, 347 U.S. 1, 8–9 (1954).2 A rational juror could

have found that Cao knew or reasonably could have foreseen that his use of a

credit card to pay for the investor event in December 2006 would cause interstate

wires to be used in the ordinary course of business to obtain payment for the event.

      In addition, a rational juror could have found that the use of interstate wires

was in furtherance of Cao’s scheme. To be in furtherance of a scheme, the charged

wire transmission “need not be an essential element of the scheme. It is sufficient

for the [use of interstate wires] to be incident to an essential part of the scheme, or

a step in [the] plot.” Schmuck v. United States, 489 U.S. 705, 710–11 (1989)

(second alteration in original) (citations omitted) (internal quotation marks

omitted) (case involving mail fraud); see also United States v. Garlick, 240 F.3d

789, 795 (9th Cir. 2001) (quoting Schmuck, 489 U.S. at 711) (case involving wire

fraud). The wire fraud statute proscribes using the wires to promote a scheme by

lulling victims into believing “that all is well, discouraging [them] from

investigating and uncovering the fraud.” United States v. Jones, 712 F.2d 1316,

1321 (9th Cir. 1983); see also United States v. Maze, 414 U.S. 395, 403 (1974). A

rational juror could have concluded that sustaining the appearance that he was an

        2
         Pereira is a case involving mail fraud. However, “[i]t is well settled that
cases construing the mail fraud and wire fraud statutes are applicable to either.”
United States v. Shipsey, 363 F.3d 962, 971 n.10 (9th Cir. 2004).

                                            6
extremely successful investor was essential to Cao’s Ponzi scheme, which

depended, in part, on impressing existing investors so they would not withdraw

their funds. Cf. Schmuck, 489 U.S. at 711–12. It would have been reasonable for

such a juror to find that Cao hosted the December 2006 event at an opulent hotel to

impress his investors, two of whom testified that the December 2006 event

contributed to their confidence in their investments with Cao.

      Cao’s use of his credit card to pay for the December 2006 investor event

caused interstate wires to be used in a manner that reasonably could have been

viewed as incident to Cao’s efforts to instill confidence in his investors. A rational

juror could have concluded that the December 2006 investor event depended, at

least in part, on Cao using his credit card to pay both the deposit required before

the event and the balance due after it. This distinguishes the instant case from those

on which Cao primarily relies, such as Maze, 414 U.S. at 402, Parr v. United

States, 363 U.S. 370, 393 (1960), and Kann v. United States, 323 U.S. 88, 94

(1944). In contrast to those cases, Cao caused the wires to be used before his

scheme had succeeded in obtaining all of the fruits of the fraud, and it was

important to the success of his continuing scheme that interstate wires be used to

provide payment for the December 2006 event.

      That Cao was convicted on the wire fraud charges relating to the December


                                           7
2006 investor event and acquitted on the charges relating to the February 2007

investor event does not mean that the jury returned an inconsistent verdict. The

evidence was different for each event. The jury heard testimony from witnesses

who attended the December 2006 event, but did not hear testimony from any

witness who attended the February 2007 event. Therefore, there was a rational

basis for the distinction in the jury’s decisions. Moreover, the court’s review of the

sufficiency of the evidence regarding the December 2006 event “should be

independent of the jury’s determination that evidence on another count was

insufficient,” and an inconsistent verdict alone would not be a basis for reversal.

United States v. Powell, 469 U.S. 57, 67–69 (1984).

      In determining Cao’s sentence, the district court did not impermissibly

punish him for asserting his Fifth Amendment right to remain silent about the

location of money he had received from defrauded investors. It would have been

unlawful for the district court to draw any adverse inference if Cao had exercised

that right. See Mitchell v. United States, 526 U.S. 314, 330 (1999); United States v.

Safirstein, 827 F.2d 1380, 1388–89 (9th Cir. 1987). However, if at sentencing a

defendant waives his Fifth Amendment right to remain silent, the district court may

take his refusal to provide relevant information into account in determining the

sentence, in part because his “refusal to cooperate [may] protect[] his former


                                           8
partners in crime, thereby preserving his ability to resume criminal activities upon

release.” Roberts v. United States, 445 U.S. 552, 558 (1980). This is such a case.

After consulting counsel, Cao knowingly and voluntarily waived his Fifth

Amendment right to remain silent and made certain statements. Therefore, the

district court had the discretion to consider his failure to provide information about

the location of the missing money in determining Cao’s sentence. See id. at

557–59.

      The district court also did not abuse its discretion when it chose not to depart

from the Guidelines after considering defendant’s policy argument that the white-

collar fraud Guidelines lack a proper empirical foundation. See United States v.

Henderson, 649 F.3d 955, 964 (9th Cir. 2011).

      Nor did the district court abuse its discretion by imposing a substantively

unreasonable sentence. The district judge properly calculated the Guideline range

and considered the 18 U.S.C. § 3553(a) factors, including the information

presented by the parties regarding sentences in other similar cases. See United

States v. Blinkinsop, 606 F.3d 1110, 1116 (9th Cir. 2010) (“[w]hen a district judge

has considered the § 3553(a) factors and the totality of the circumstances supports

the sentence, we have held that the sentence is substantively reasonable”).

      In view of the foregoing, we affirm Cao’s conviction and sentence.


                                           9
AFFIRMED.




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