                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 23 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-10276

              Plaintiff - Appellee,              D.C. No. 3:12-cr-00578-SI-2

 v.
                                                 MEMORANDUM*
HONG LEE WONG, AKA William
Wong,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 14-10294

              Plaintiff - Appellee,              D.C. No. 3:12-cr-00578-SI-1

 v.

NGOC DUONG, AKA Danny Duong,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Northern District of California
                   Susan Illston, Senior District Judge, Presiding

                        Argued and Submitted July 7, 2015

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                              San Francisco, California

Before: TALLMAN, M. SMITH, and MURGUIA, Circuit Judges.



      Duong and Wong each were convicted of wire fraud and aggravated identity

theft, receiving sentences of thirty and twenty-eight months’ imprisonment,

respectively. The district court held Wong and Duong jointly liable to Cheery Way

for $166,781.31 in restitution. We have jurisdiction under 28 U.S.C. § 1291, and

we affirm.

                                           I

      Wong argues that the district court erred in instructing the jury that it could

infer that Wong knew the Six Flags project was a fraud from evidence that Wong

was deliberately ignorant of that fact. The instruction was proper. This court held

long ago and recently reaffirmed that deliberate ignorance satisfies the knowledge

element of a federal offense. United States v. Heredia, 483 F.3d 913, 922 (9th Cir.

2007) (en banc); United States v. Jewell, 532 F.2d 697, 702–04 (9th Cir. 1976) (en

banc). We see no reason to treat the knowledge element of the wire fraud statute

differently from other federal offenses. See, e.g., United States v. McDonald, 576

F.2d 1350, 1358 (9th Cir. 1978).




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                                          II

      Wong argues that the evidence introduced at trial is insufficient to permit a

rational inference that Wong actually knew of the Six Flags project’s fraudulent

nature. Duong testified that Wong asked Duong to prepare the fraudulent contract

with the City of New Orleans. This testimony, viewed in the light most favorable

to the Government, is alone sufficient to permit a reasonable juror to conclude that

Wong knew the Six Flags project was fraudulent. See United States v. Arnt, 474

F.3d 1159, 1162 (9th Cir. 2007).

                                          III

      Wong argues that the district court abused its discretion in holding Wong

and Duong jointly and severally liable for restitution, rather than apportioning the

amount according to Wong’s and Duong’s respective roles in the Six Flags

scheme. But the district court found that both Wong and Duong participated in the

scheme to an extent sufficient to hold both liable for the full amount. The record

supports this finding: Wong brought Cheery Way to the project and communicated

with its principals in Cantonese, a language in which Duong is not proficient. The

district court acted within its discretion. See United States v. Booth, 309 F.3d 566,

576 (9th Cir. 2002).




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                                             IV

          Duong argues that the district court abused its discretion in admitting

evidence that Duong engaged in uncharged misconduct in the context of a

relationship with a business partner under Rule 404(b) of the Federal Rules of

Evidence. According to Duong, the district court improperly admitted evidence of

Duong’s misconduct to show bias.

          The district court did not abuse its discretion in admitting testimony that

Duong and his business partner, a government witness, were embroiled in

unrelated civil litigation as evidence of the partner’s potential bias against Duong.

See United States v. Harris, 185 F.3d 999, 1008 (9th Cir. 1999). The court

admitted Duong’s misconduct itself to show that Duong was capable of persuading

his business partner to remain in the relationship despite Duong’s malfeasance—a

theory that Duong does not challenge in his opening brief. And the district court

not only properly weighed the potential prejudicial effect of Duong’s misconduct

against its probative value, but narrowly limited the scope of the evidence as a

result.

          Finally, even if the court erred, any error was harmless because Duong

admitted to the jury that he falsified a contract with the City of New Orleans and,

together with Wong, used that fraudulent document to induce Cheery Way to


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continue to deal with them.

                                            V

      Duong argues that the district court erred in instructing the jury to consider

“evidence that the defendants committed other acts not charged here” for “its

bearing, if any, on the question of the defendants’ intent and/or knowledge.”

According to Duong, the district court did not admit any evidence under Rule

404(b) to show intent or knowledge. Duong is mistaken. Before trial, the district

court permitted the Government to introduce testimony that Wong attempted to sell

Six Flags scrap metal to another buyer after Cheery Way withdrew. The court

ruled that this testimony was admissible as evidence of Wong’s intent or

knowledge, and the Government presented this testimony at trial. Accordingly,

the district court not only had discretion to instruct the jury to consider this

evidence for its bearing on the defendants’ intent and/or knowledge, but was

required to do so. Fed. R. Evid. 105; United States v. Bradshaw, 690 F.2d 704,

709–10 (9th Cir. 1982).

                                           VI

      Duong argues that misuse of a person’s name alone, without other

identifying information, is insufficient to support a conviction of aggravated

identity theft. Both the relevant statutory text and this court’s case law belie


                                            5
Duong’s argument. The offense of aggravated identity theft rests on the

unauthorized use of “a means of identification of another person.” 18 U.S.C.

§ 1028A(a)(1). A “means of identification” is “any name or number that may be

used, alone or in conjunction with any other information, to identify a specific

individual.” 18 U.S.C. § 1028(d)(7) (emphasis added); see also United States v.

Blixt, 548 F.3d 882, 886 (9th Cir. 2008) (holding that “forging another’s signature

constitutes the use of that person’s name and thus qualifies as a ‘means of

identification’ under 18 U.S.C. § 1028A”).

      AFFIRMED.




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