                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4162


UNITED STATES OF AMERICA,

                       Plaintiff - Appellee,

          v.

GING-HWANG TSOA, a/k/a Felicia Tsoa,

                       Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:13-cr-00137-JCC-2)


Submitted:   October 29, 2014             Decided:   November 12, 2014


Before DUNCAN and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Eugene V. Gorokhov, Ziran Zhang, BURNHAM & GOROKHOV PLLC,
Washington, D.C., for Appellant. Dana J. Boente, United States
Attorney, Paul J. Nathanson, Assistant United States Attorney,
Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Ging-Hwang Tsoa was convicted after a jury trial of

one count of conspiracy to commit bank fraud, in violation of

18 U.S.C.    § 1349      (2012),    and    two   counts     of    bank    fraud,      in

violation of 18 U.S.C. §§ 2, 1344 (2012), and was sentenced to

three concurrent terms of thirty months’ imprisonment.                               Tsoa

appeals     her    convictions,       arguing     that    the      district      court

reversibly       erred   in   excluding       evidence    --     including      expert

testimony -- and in denying her motion under Fed. R. Crim. P. 29

for a judgment of acquittal as to the bank fraud counts.                              We

affirm.

            We     review     the    district     court’s        decisions      as    to

admissibility of evidence, including its ruling excluding expert

testimony, for abuse of discretion.               United States v. Iskander,

407 F.3d 232, 236 (4th Cir. 2005); United States v. Barile,

286 F.3d 749, 753 (4th Cir. 2002).               “[W]e will not find an abuse

unless    the      district    court’s        decision    was      ‘arbitrary        and

irrational.’”       Iskander, 407 F.3d at 236 (quoting United States

v. Weaver, 282 F.3d 302, 313 (4th Cir. 2002)).                    We also defer to

a district court’s balancing under Fed. R. Evid. 403 unless that

balancing is an arbitrary or irrational exercise of discretion.

United    States    v.   Kelly,     510   F.3d   433,    437     (4th    Cir.   2007).

Further, where a defendant presented a challenge regarding the

admissibility of evidence below but raises a new argument with

                                          2
respect      to    that    challenge      for       the    first    time      on     appeal,    we

review the district court’s admissibility ruling for plain error

only.       United States v. Bernard, 708 F.3d 583, 588 (4th Cir.),

cert. denied, 134 S. Ct. 617 (2013).                            Under the plain error

standard, this court may -- but is not required to -- correct

the district court’s error if the error was plain and affected

Tsoa’s substantial rights.                  United States v. Olano, 507 U.S.

725, 732, 735 (1993).

               First, Tsoa contends that the district court erred in

excluding prior to trial the proffered expert opinion testimony

of    Dr.    Ronald       Boggio    regarding        Tsoa’s        verbal         abilities    and

memory, reading, thinking, and facility with English.                                   Tsoa also

contends       that       the    district       court       erred       in    excluding        the

proffered expert opinion testimony of Stephen McGurl that Tsoa

had    an    overall       poor     understanding          of     the    mortgage         lending

process.          The     expert    testimony        was    proffered         in     support    of

Tsoa’s contention that she lacked the required intent to commit

the     bank      fraud    and     conspiracy         offenses.              As    to    Boggio’s

proffered         testimony,       the   district         court     determined          that   the

testimony was not probative of the contention that Tsoa lacked

the required intent and was also excludable under Fed. R. Evid.

403.        As to McGurl’s proffered testimony, the district court

determined        that    the     testimony     was       not   reliable          and   also   was

excludable under Rule 403.

                                                3
               After review of the record and the parties’ briefs, we

conclude that the district court did not abuse its discretion in

excluding the proffered testimony from Dr. Boggio and McGurl.

To be admissible, psychiatric evidence of a mental condition

short    of    insanity       must    be    offered      to     rebut    the    Government’s

evidence of specific intent, United States v. Worrell, 313 F.3d

867, 874 (4th Cir. 2002), and is properly excludable where it

does not focus on the defendant’s state of mind at the time of

the charged offense, United States v. Cameron, 907 F.2d 1051,

1067 (11th Cir. 1990), or does not explain the effect of some

mental     condition         on     the     defendant’s         ability        to       form   the

requisite criminal intent.                 United States v. Schneider, 111 F.3d

197, 202-03 (1st Cir. 1997).

               Where    expert       testimony         bears    on    intent,       a    district

court still must perform its gatekeeping function with respect

to   the      testimony       and    ensure       it    is     not     only    relevant        but

reliable.        United       States       v.   Prince-Oyibo,          320    F.3d      494,   498

(4th Cir. 2003).             Expert testimony is properly excludable where

persons       “of      common        understanding”             are     “as     capable         of

comprehending          the     primary          facts     and     of     drawing          correct

conclusions from them” as are the expert.                             Salem v. U.S. Lines

Co., 370 U.S. 31, 35 (1962) (quoting U.S. Smelting Co. v. Parry,

166 F. 407, 411, 415 (8th Cir. 1909)) (internal quotation marks

omitted); see, e.g., United States v. Lespier, 725 F.3d 437, 449

                                                 4
(4th Cir. 2013) (noting, in affirmance of district court ruling

excluding       admission          of   proffered     expert    testimony         on   sleep

deprivation, that, “in the typical case, the effects of sleep

deprivation” are readily comprehended by jurors), cert. denied,

134 S. Ct. 974 (2014).                  Such evidence also may be excluded “if

its probative value is substantially outweighed by a danger of

one or more of the following: unfair prejudice, confusing the

issues,    misleading          the      jury,   undue      delay,   wasting       time,    or

needlessly presenting cumulative evidence.”                     Fed. R. Evid. 403.

               Dr.        Boggio’s      proffered     opinions      regarding          Tsoa’s

verbal    abilities          and    memory,     reading,     thinking,      and    facility

with English do not address or focus on Tsoa’s state of mind or

ability to form the necessary intent to defraud at the time of

the    charged       offense       conduct.         Further,   as    Tsoa    appears        to

acknowledge          on    appeal,      evidence     regarding      her   abilities         in

English was a topic readily comprehendible by jurors and could

be developed through other sources.                        As the “imprimatur of a

clinical       label”       regarding      Tsoa’s       abilities    in     English        was

neither    necessary         nor     helpful    to   the    jury,   United        States   v.

DiDomenico, 985 F.2d 1159, 1164 (2d Cir. 1993), and Dr. Boggio’s

opinions regarding Tsoa’s intellectual abilities were not linked

to her mental state at the time of the charged offense conduct,

the district court did not abuse its discretion in concluding

that     any    probative          value    from     Dr.     Boggio’s     opinions         was

                                                5
substantially      outweighed        by   a       danger    that     admission       of   the

opinions would confuse the issues and mislead the jury and that

the opinions were therefore excludable under Rule 403.

            The    same,      we    conclude,          is   true     for      the   district

court’s exclusion of McGurl’s proffered opinion regarding Tsoa’s

understanding the mortgage lending process.                         Nothing in McGurl’s

proffered opinion is addressed to whether Tsoa’s understanding

of the mortgage lending process at the time of the interview

with   McGurl     was   extant      at    the      time     of    the    charged    offense

conduct.    Because the jury’s role was to assess whether Tsoa was

guilty of the charged conspiracy and bank fraud offenses based

on her acts and omissions at the time of the charged conduct,

the district court did not abuse its discretion in concluding

that McGurl’s proffered opinion on this matter was substantially

outweighed by a danger that admission would mislead the jury and

that his opinion was therefore excludable under Rule 403.                                  We

further reject as without merit Tsoa’s arguments to the contrary

as   they   concern     the    exclusion          of   McGurl’s         and   Dr.   Boggio’s

proffered opinions.

            Next, Tsoa contends that the district court erred in

denying her mid-trial request to admit Dr. Boggio’s proffered

testimony    to    rebut      her    incriminating               statements     that      were

introduced through the testimony of the current and former case

agents,     arguing     that       the    testimony         was     probative       of    the

                                              6
reliability of her statements to the agents and admissible under

Fed. R. Evid. 806.     We reject this contention as meritless.             As

Tsoa appears to acknowledge on appeal, Rule 806 does not by its

terms * allow a defendant-declarant to attack the credibility of

her own out-of-court statements admissible under Fed. R. Evid.

801(d)(2)(A).     We   also   reject       as   meritless   Tsoa’s   argument,

premised on United States v. Shay, 57 F.3d 126 (1st Cir. 1995),

that -- the terms of Rule 806 notwithstanding -- Dr. Boggio’s

proffered testimony would have “cast doubt on” the accuracy and

reliability of her incriminating statements to the agents and

would have cast doubt on the agents’ testimony regarding her

effective communication in English.               Shay is inapposite; its

focus was on Fed. R. Evid. 702, not a second request to admit

     *
         Rule 806 provides:

     When a hearsay statement -- or a statement described
     in   Rule   801(d)(2)(C),   (D),   or   (E)    [concerning
     statements offered against an opposing party made by
     others] -- has been admitted in evidence, the
     declarant’s credibility may be attacked, and then
     supported, by any evidence that would be admissible
     for those purposes if the declarant had testified as a
     witness.     The court may admit evidence of the
     declarant’s    inconsistent    statement    or    conduct,
     regardless of when it occurred or whether the
     declarant had an opportunity to explain or deny it.
     If the party against whom the statement was admitted
     calls the declarant as a witness, the party may
     examine the declarant on the statement as if on cross-
     examination.

Fed. R. Evid. 806.



                                       7
evidence the district court had already found excludable under

Rule 403.       Further, in contrast to the testimony at issue in

Shay,    Dr.    Boggio’s     testimony,       if    believed,      would    not       have

exculpated Tsoa or explained away her incriminating statements

to the agents.

              Tsoa also contends that the district court erred in

excluding emails she sent to one of the case agents after a 2013

interview.          She argues that the emails were admissible under

Rule    806    as   they   provided    evidence      of    her    knowledge      of    and

abilities      in    English    and    bore    on    the    reliability          of    her

statements to the agents and the agents’ conclusions regarding

her comprehension and the responsiveness and reliability of her

statements to them.          Tsoa did not raise an argument premised on

Rule 806 in support of the admissibility of the emails in the

district      court.       Accordingly,   our      review    is    for   plain        error

only.

              As this court has noted, plain error is “synonymous

with clear or obvious error.”             United States v. Carthorne, 726

F.3d 503, 516 (4th Cir. 2013) (quoting Olano, 507 U.S. at 734)

(internal      quotation     marks    omitted),     cert.    denied,       134    S. Ct.

1326 (2014).         An error qualifies as “plain if the settled law of

the Supreme Court or this circuit establishes that an error has

occurred.”      Id. (quoting United States v. Maxwell, 285 F.3d 336,

342 (4th Cir. 2002)) (internal quotation marks omitted).                              Rule

                                          8
806 applies to hearsay statements and certain statements offered

against an opposing party that have “been admitted in evidence.”

Fed. R. Evid. 806.           By its terms, Rule 806 was not the mechanism

for   admission         of     Tsoa’s     written          out-of-court           statements

contained in the emails.                Further, Tsoa’s counsel offered the

emails as probative of Tsoa’s knowledge and abilities, not as

bearing   on     credibility.          Tsoa       thus    fails   to    establish           plain

error under Rule 806 in the exclusion of the emails.

            Finally, Tsoa challenges the district court’s denial

of her Rule 29 motion as to the bank fraud counts, arguing that

the Government failed to present proof sufficient to meet its

burden to show that the victim banks were insured by the Federal

Deposit    Insurance         Corporation       (“FDIC”)      at    the       time      of     the

charged offense conduct.

            We    review      a   district        court’s    denial      of       a    Rule    29

motion for judgment of acquittal de novo.                              United States v.

Smith,    451    F.3d    209,     216    (4th       Cir.    2006).           “A       defendant

challenging      the    sufficiency       of       the    evidence      to    support         his

conviction bears a heavy burden.”                        United States v. Beidler,

110 F.3d 1064, 1067 (4th Cir. 1997) (quoting United States v.

Hoyte, 51 F.3d 1239, 1245 (4th Cir. 1995)) (internal quotation

marks omitted).         The verdict of a jury must be sustained “if,

viewing    the    evidence        in    the       light    most    favorable           to     the

prosecution, the verdict is supported by substantial evidence.”

                                              9
Smith, 451 F.3d at 216 (quoting United States v. Burgos, 94 F.3d

849, 862 (4th Cir. 1996) (en banc)) (internal quotation marks

omitted).       Substantial evidence is “evidence that a reasonable

finder    of    fact     could      accept      as    adequate       and    sufficient      to

support a conclusion of a defendant’s guilt beyond a reasonable

doubt.”         Id.    (quoting      Burgos,          94    F.3d     at    862)    (internal

quotation marks omitted).                 In reviewing a case for substantial

evidence,      we     must   allow       the    Government         “the    benefit    of   all

reasonable inferences from the facts proven to those sought to

be established,” United States v. Tresvant, 677 F.2d 1018, 1021

(4th   Cir.     1982),       and    do    not    weigh       the    credibility       of   the

evidence or resolve any conflicts in the evidence.                            Beidler, 110

F.3d at 1067.          “Reversal for insufficient evidence is reserved

for the rare case where the prosecution’s failure is clear.”

Id. (quoting Burks v. United States, 437 U.S. 1, 17 (1978))

(internal quotation marks omitted).

               Tsoa    argues      that    the       evidence      was    insufficient      to

establish that the victim banks were insured by the FDIC, noting

that     the     insurance         certificates            introduced       into     evidence

provided no information as to whether the banks were so insured

at the time of the charged offense conduct and that a case agent

testified only as to what the certificates said.                            We reject this

contention.



                                                10
           Here,       the     FDIC   certificates          admitted   into   evidence

certified that the deposits to each victim bank were insured by

the FDIC as of April 1, 1999, and November 13, 2004, before the

commencement      of       the    offense         conduct     as    charged     in    the

indictment.    Additionally, the case agent’s testimony regarding

what the certificates indicated as to the banks’ insured status

provided a sufficient basis from which the jury could draw the

reasonable inference that the banks were insured by the FDIC at

the time of the charged offense conduct.                     Tsoa’s argument to the

contrary   does      not      alter   this    conclusion.           Accordingly,      the

district court did not reversibly err in denying Tsoa’s Rule 29

motion as to the bank fraud counts.

           We therefore affirm the district court’s judgment.                          We

dispense   with        oral      argument     because       the     facts   and      legal

contentions    are     adequately      presented       in     the   materials     before

this court and argument would not aid the decisional process.



                                                                              AFFIRMED




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