                                                                           FILED
                            NOT FOR PUBLICATION                            MAR 20 2014

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10065

               Plaintiff - Appellee,             D.C. No. 3:09-cr-00149- MMC-1

  v.
                                                 MEMORANDUM*
MICHAEL CHEN,

               Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Northern District of California
                Maxine M. Chesney, Senior District Judge, Presiding

                       Argued and Submitted March 11, 2014
                            San Francisco, California

Before:       FARRIS, REINHARDT, and TASHIMA, Circuit Judges.

       Defendant Michael Chen appeals his conviction and his sentence. We

affirm.

       1.     The district court did not err in denying Chen’s suppression motion.

See United States v. Aukai, 497 F.3d 955, 958 (9th Cir. 2007) (en banc). Chen



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
waived any privilege by disclosing to the government documents that he gave to

Tony Gu. See United States v. Richey, 632 F.3d 559, 566 (9th Cir. 2011). Further,

“[e]ven if the evidence should have been suppressed, its admission was harmless

beyond a reasonable doubt because the evidence was merely cumulative.” United

States v. Studley, 783 F.2d 934, 941 (9th Cir. 1986).

      2.     The district court did not err in rejecting Chen’s constitutional

challenge to his mail fraud convictions under 18 U.S.C. § 1341. See United States

v. Navarro-Vargas, 408 F.3d 1184, 1209 n.32 (9th Cir. 2005) (en banc). Chen’s

“mailing of false state tax returns constituted a violation of 18 U.S.C. § 1341,”

United States v. Miller, 545 F.2d 1204, 1216 n.17 (9th Cir. 1976), abrogated on

other grounds by Boulware v. United States, 552 U.S. 421, 436 (2008), regardless

of whether Chen “was required . . . to use the mails to submit the fraudulent tax

forms,” United States v. Kellogg, 955 F.2d 1244, 1247 (9th Cir. 1992).

      3.     The district court did not abuse its discretion in admitting evidence of

Chen’s self-reported income from Fune Ya. See Estate of Barabin v.

AstenJohnson, Inc., 740 F.3d 457, 462 (9th Cir. 2014) (en banc). The evidence’s

probative value was not “substantially outweighed by its prejudicial impact,” Perry

v. New Hampshire, 132 S. Ct. 716, 729 (2012), and any risk of unfair prejudice




                                          2
was reduced by the district court’s limiting instructions, United States v. Cherer,

513 F.3d 1150, 1159 (9th Cir. 2008).

      4.     The district court did not clearly err in calculating Chen’s tax loss

using U.S.S.G. § 2T1.1(c)’s presumptive rates. See United States v. Stargell, 738

F.3d 1018, 1024 (9th Cir. 2013). Section 2T1.1 “does not entitle a defendant to

reduce the tax loss charged to him” based on unclaimed deductions, United States v.

Yip, 592 F.3d 1035, 1041 (9th Cir. 2010), and the district court’s finding that Chen

failed to supply a more accurate tax loss calculation was far from clearly erroneous.

      The judgment of conviction and the sentence are

      AFFIRMED.




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