                           NOT FOR PUBLICATION                             FILED
                    UNITED STATES COURT OF APPEALS                         MAR 15 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-50185

                Plaintiff-Appellee,             D.C. No.
                                                2:14-cr-00175-MWF-1
 v.

GEORGE WU,                                      MEMORANDUM*

                Defendant-Appellant.

                  Appeal from the United States District Court
                      for the Central District of California
                 Michael W. Fitzgerald, District Judge, Presiding

                       Argued and Submitted March 5, 2018
                              Pasadena, California

Before: GRABER and OWENS, Circuit Judges, and MAHAN,** District Judge.

      Defendant-Appellant George Wu appeals from six jury convictions for

bribery and conspiracy to commit bribery on two grounds: first, that the district

court’s substantive-bribery instruction was plainly erroneous because it

constructively amended counts three and four of the indictment; and second, that


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable James C. Mahan, United States District Judge for the
District of Nevada, sitting by designation.
the district court erred in permitting the government to cross-examine Wu

regarding specific instances of alleged past misconduct. As the parties are familiar

with the facts, we do not recount them here. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

      1. The substantive-bribery instruction was misleading as to counts three and

four, and the error was clear. Counts three and four charged Wu with having

bribed John Lee’s unnamed contacts within the U.S. Customs and Immigration

Service (“USCIS”), but the instruction directed the jury to assess whether Wu

bribed Fred Moldt or Daniel Amos, two known USCIS officers with no connection

to Lee. The instruction was thus “unquestionably erroneous on its face.” United

States v. Morfin, 151 F.3d 1149, 1151 (9th Cir. 1998) (per curiam).

      The error did not, however, affect Wu’s substantial rights because the

evidence against him as to counts three and four was overwhelming. See United

States v. Marcus, 560 U.S. 258, 262 (2010); United States v. Recio, 371 F.3d 1093,

1100 (9th Cir. 2004). Wu did not dispute that he gave thousands of dollars in cash

to Lee on August 7 and October 22, 2013; the jury received hours of taped

conversations between Wu and Lee in which, among other things, Wu explicitly

agreed to pay Lee so that Lee’s USCIS insiders could secure legal residency for

one of Wu’s clients; and Wu admitted to having never introduced Lee to the clients

on whose behalf Wu was supposedly paying attorney fees. Moreover, in response


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to its request for a “list of each bribery case” for which it was to assess guilt, the

jury was provided with a copy of the indictment, which clarified the specific

conduct for which the jury was to convict or acquit. Given this record, we are

satisfied “that the error did not affect the jury’s verdict, and thus did not affect the

defendant’s substantial rights.” Morfin, 151 F.3d at 1151.

      2. The district court did not abuse its discretion in permitting the

government to cross-examine Wu about his alleged past acts. Evidence of those

acts was relevant to show Wu’s predisposition to commit bribery or to unlawfully

misuse confidential government information, which in turn was relevant to rebut

Wu’s entrapment defense. See Fed. R. Evid. 405(b); United States v. Mejia, 559

F.3d 1113, 1116 (9th Cir. 2009); United States v. Mendoza-Prado, 314 F.3d 1099,

1102-03 (9th Cir. 2002) (per curiam). The evidence was also relevant to show

Wu’s character for untruthfulness. See Fed. R. Evid. 608(b); United States v.

Dring, 930 F.2d 687, 691 & n.3 (9th Cir. 1991). There was “sufficient evidence”

adduced at trial, moreover, to support a finding that Wu committed those other

acts. United States v. Bailey, 696 F.3d 794, 799 (9th Cir. 2012); see also

Huddleston v. United States, 485 U.S. 681, 685-89 (1988). Finally, Federal Rule

of Evidence 403 did not require that the evidence of Wu’s past acts be excluded.

See United States v. Dhingra, 371 F.3d 557, 565 (9th Cir. 2004).

      AFFIRMED.


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