                                                                             FILED
                            NOT FOR PUBLICATION                               DEC 10 2010

                                                                        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. 10-30021

              Plaintiff - Appellee,              D.C. No. 2:09-CR-00285-MJP-01

  v.
                                                 MEMORANDUM *
XIN HE,

              Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Western District of Washington
                    Marsha J. Pechman, District Judge, Presiding

                     Argued and Submitted November 5, 2010
                              Seattle, Washington

Before: B. FLETCHER and BYBEE, Circuit Judges, and WILKEN, District
Judge.**

       Xin He appeals her felony conviction, following a bench trial, of

misbranding of a drug held for sale, with intent to defraud or mislead, in violation




        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
         The Honorable Claudia Wilken, United States District Judge for the
Northern District of California, sitting by designation.
of 21 U.S.C. §§ 331(k) and 333(a)(2). We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

      We find sufficient indicia in the record to support a conclusion that the

district judge properly interpreted 21 U.S.C. § 333(a)(2). Thus, we review whether

there was sufficient evidence to support Appellant’s felony conviction. Our review

of the sufficiency of evidence is governed by Jackson v. Virginia, 443 U.S. 307

(1979). United States v. Nevils, 598 F.3d 1158, 1163-64 (9th Cir. 2010). First, we

consider “the evidence presented at trial in the light most favorable to the

prosecution.” Id. at 1164. We then “determine whether this evidence, so viewed,

is adequate to allow ‘any rational trier of fact [to find] the essential elements of the

crime beyond a reasonable doubt.’” Id. (quoting Jackson, 443 U.S. at 319).

Reversal is appropriate only “if the evidence of innocence, or lack of evidence of

guilt, is such that all rational fact finders would have to conclude that the evidence

of guilt fails to establish every element of the crime beyond a reasonable doubt.”

Nevils, 598 F.3d at 1165.

      In the count she appeals, Appellant was charged with offering “for sale as

Botox ® a drug which was not Botox ®” with intent to defraud and mislead, a felony

misbranding offense. See 21 U.S.C. §§ 331(k), 333(a)(2) and 352(i). The

government presented evidence that, in China, Appellant received medical training


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and worked as a surgery room nurse and, in the United States, received training

and worked as a licensed dental assistant, attended cosmetology school and was

licensed as a manicurist and an esthetician. Appellant’s website represented that

she was a registered nurse, which was false, and that her clinic followed

recommendations by the Centers for Disease Control and Prevention. Appellant

testified that these statements were included to lead consumers to believe that she

was a professional.

      This evidence, if viewed in the light most favorable to the government,

could lead a rational fact finder to conclude that Appellant was sufficiently

sophisticated to know that the vials labeled with Chinese characters that she

obtained in China and smuggled into the United States did not contain authentic

Botox, even if she believed the contents were chemically identical to Botox. This

knowledge, considered along with Appellant’s misrepresentation and failure to

disclose material facts at the time she offered the substance for sale, could lead a

rational fact finder to conclude beyond a reasonable doubt that she had the

requisite intent to defraud or mislead in connection with offering a misbranded

drug for sale. Accordingly, we uphold Appellant’s felony misbranding conviction.

      AFFIRMED.




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