                                                                              FILED
                            NOT FOR PUBLICATION                                JUN 19 2013

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



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-10382

               Plaintiff - Appellee,             D.C. No. 1:09-cr-00059-1

  v.
                                                 MEMORANDUM*
JI EON LEE,

               Defendant - Appellant.


                     Appeal from the United States District Court
                               for the District of Guam
             Frances Tydingco-Gatewood, Chief District Judge, Presiding

                              Submitted June 12, 2013**
                                 Honolulu, Hawaii

Before: FARRIS, D.W. NELSON, and NGUYEN, Circuit Judges.

       Appellant Ji Eon Lee appeals her July 17, 2012 jury conviction for perjury,

in violation of 18 U.S.C. § 1621. Lee and her husband, Melvin Davis, were

indicted for marriage fraud and perjury following Lee’s application for permanent


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
resident status. Lee was convicted on Count IV of the indictment, in which she

was charged with perjury based on statements she made under oath in a 2009 oral

interview with a USCIS officer. On appeal, Lee contends that the question,

“[w]ere you and Mr. Davis living together when you applied for your marriage

license?” was fundamentally ambiguous. We have jurisdiction pursuant to 28

U.S.C. § 1291 and we affirm.

      “A fundamentally ambiguous statement cannot, as a matter of law, support a

perjury conviction.” United States v. Camper, 384 F.3d 1073, 1076 (9th Cir.

2004). “A question is fundamentally ambiguous when men of ordinary

intelligence cannot arrive at a mutual understanding of its meaning.” Id. (quoting

United States v. Culliton, 328 F.3d 1074, 1078 (9th Cir. 2003) (per curiam)). In

determining whether a question is fundamentally ambiguous, “[the court] must

consider the context of the question and [the] answers, as well as other extrinsic

evidence relevant to [the defendant’s] understanding of the questions . . . .”

Culliton, 328 F.3d at 1079. “A statement is not fundamentally ambiguous simply

because the questioner and respondent could possibly have had different

interpretations.” Camper, 384 F.3d at 1076 (quoting Culliton, 328 F.3d at 1079).

Moreover, “the existence of ‘some ambiguity’ in a falsely answered question is

generally not inconsistent with a conviction for perjury.” Id. (quoting United


                                          2
States v. McKenna, 327 F.3d 830, 841 (9th Cir. 2003)). “Ordinarily, the finder of

fact decides which of the plausible interpretations of an ambiguous question the

defendant apprehended and responded to.” Id. (citing Culliton, 328 F.3d at 1078).

      Considering the context in which the question was asked, and the broader

purpose of the interview itself, we find that the question whether Lee and Davis

were living together at the time they applied for a marriage license was not

fundamentally ambiguous. Although the question may be susceptible to slightly

differing interpretations, persons of ordinary intelligence could arrive at a mutual

understanding of its meaning.

      Because the question whether Lee and Davis were living together when they

applied for a marriage license is not fundamentally ambiguous, the jury was free to

determine—based on the record before it—how Lee interpreted the question and

whether she answered it truthfully. Lee has not argued that there was insufficient

evidence in the record to support the jury’s finding that her answer was false.

Therefore, we need not address the issue. See United States v. Waters, 627 F.3d

345, 359 n.6 (9th Cir. 2010) (failure to raise issue in opening brief results in

waiver).

      AFFIRMED.




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