                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 27 2012

                                                                        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. 10-10568

              Plaintiff - Appellee,              D.C. No. 1:09-cr-00129-JMS-1

  v.
                                                 MEMORANDUM *
KEVYN PAIK,

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Hawaii
                   J. Michael Seabright, District Judge, Presiding

                     Argued and Submitted February 16, 2012
                               Honolulu, Hawaii

Before: GOODWIN, TROTT, and MURGUIA, Circuit Judges.

       Kevyn Paik appeals his convictions of two counts of mail fraud in violation

of 18 U.S.C. § 1341, two counts of wire fraud in violation of 18 U.S.C. § 1343, and

one count of criminal conflict of interest in violation of 18 U.S.C. § 208. Because




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
the facts are known to the parties, we recount them here only as necessary to

explain our decision. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      1.     There was sufficient evidence to show that Paik and his co-defendant

took great care to conceal Paik’s involvement in the Pond C subcontract not only

from Ducks Unlimited (DU), but also from the U.S. Fish & Wildlife Service

(FWS). Refuge manager Michael Hawkes testified that if Paik’s name had

appeared on any invoice from DU, FWS would not have approved reimbursement

to DU. Given the defendants’ multiple attempts to obtain subcontracts for various

projects at the Refuge, the jury reasonably inferred that FWS’s continued

unawareness of Paik’s involvement was essential to his ongoing fraudulent scheme

and that Paik therefore intended “to obtain money or property from the one who

[was] deceived.” United States v. Lew, 875 F.2d 219, 221 (9th Cir. 1989). The

prosecution also sufficiently proved that Paik knew FWS would reimburse DU for

its payment to Paik’s co-defendant on the subcontract; thus, when Paik “falsified

the [bids] . . . , he was effectively harming the [United States].” United States v.

Bonallo, 858 F.2d 1427, 1434 n.9 (9th Cir. 1988).

      2.     For the same reasons, sufficient evidence supports the conclusion that

the wire transfers from FWS to DU constituted “a step in the plot” and therefore

furthered Paik’s fraudulent scheme. Schmuck v. United States, 489 U.S. 705, 711


                                           2
(1989) (internal quotation marks and alteration omitted). The jury could have

reasonably inferred that Paik’s ongoing fraudulent scheme depended on the FWS’s

unawareness and did not “reach fruition” until after the wire transfers occurred. Id.

at 712.

       3.        We need not decide if the mail fraud and wire fraud statutes require an

intent to harm because even if such an intent is required, the prosecution

sufficiently proved that intent. The evidence shows that Paik’s deceitful conduct

“depriv[ed] the [FWS] of the opportunity to weigh the true benefits and risks of the

transaction.” United States v. Treadwell, 593 F.3d 990, 997 (9th Cir. 2010).

       4.        With respect to the wire transfers from FWS to DU, Paik knew his

fraudulent scheme involved a straw contractor in Hawaii, a general contractor

based on the mainland, and the U.S. government. Thus, the jury reasonably

concluded that Paik foresaw the use of the wires. See United States v. Cusino, 694

F.2d 185, 188 (9th Cir. 1982) (“One ‘causes’ use of the mails or wire

communications where such use can reasonably be foreseen, even though not

specifically intended.”); see also United States v. Goodson, 155 F.3d 963, 967 (8th

Cir. 1998) (“In today’s technology-oriented environment, electronic money

transfers are a common and often indispensable part of ordinary business

activities.”).


                                             3
      5.       Sufficient evidence also supports the jury’s finding that Paik violated

the criminal conflict of interest statute by participating “personally and

substantially as a Government officer or employee” in a matter in which he had a

financial interest. 18 U.S.C. § 208(a). Mike Mitchell of FWS testified that Paik

was the primary FWS employee assisting DU and that he “was the on-the-ground

person who was overseeing the construction.” The prosecution proved Paik was

acting as an FWS employee while working with DU on the Pond C subcontract.

      6.       There was no plain error in the conflict of interest jury instruction

because it did not constructively amend the indictment. A constructive amendment

occurs when “a complex of facts presented at trial [is] distinctly different from

those set forth” in the indictment or where “the crime charged in the indictment

was substantially altered at trial.” United States v. Shipsey, 363 F.3d 962, 974 (9th

Cir. 2004) (internal quotation marks and alterations omitted). Here, however, the

indictment, the evidence, and the instruction were not substantially different and

involved only a single set of facts -- Paik’s fraudulent scheme to obtain money

from the United States by helping his co-defendant obtain and perform the Pond C

subcontract.

      AFFIRMED.




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