                            NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                          FEB 7 2019
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No.   18-50052

                Plaintiff-Appellee,              D.C. No.
                                                 8:16-cr-00079-JVS-2
 v.

KAITLYN PHUONG NGUYEN,                           MEMORANDUM*

                Defendant-Appellant.

                    Appeal from the United States District Court
                       for the Central District of California
                     James V. Selna, District Judge, Presiding

                            Submitted February 5, 2019**
                               Pasadena, California

Before: GOULD, NGUYEN, and OWENS, Circuit Judges.

      Defendant-Appellant Kaitlyn Nguyen appeals from her conviction,

following a jury trial, for one count of conspiracy to distribute, and nine counts of

distributing, controlled prescription drugs outside the usual course of professional

practice and without a legitimate medical purpose, in violation of 21


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. §§ 841(a)(1) and 846. As the parties are familiar with the facts, we do not

recount them here. We affirm.

      1. Nguyen argues that the district court erred in admitting her post-arrest

statements because they were coerced. However, there is no indication that

Nguyen’s “will was overborne” when she gave her post-arrest statement to the

officer. United States v. Preston, 751 F.3d 1008, 1016 (9th Cir. 2014) (en banc)

(quoting Dickerson v. United States, 530 U.S. 428, 434 (2000)). Rather, almost all

of the relevant factors—including Nguyen’s age, education, advisement of her

constitutional rights, and brief detention—show that her statement was voluntary.

See Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973) (summarizing relevant

factors to determine whether a defendant’s will was overborne). That Nguyen was

petite, handcuffed, and still in a pajama dress (with a jacket) does not show that her

“will was overborne” in light of the totality of the circumstances. See Preston, 751

F.3d at 1016.

      2. Nguyen also contends that the district court erred in admitting testimony

from family members of a deceased patient because it was unduly prejudicial

under Federal Rule of Evidence 403. However, the district court did not err

because the family testimony was probative of Nguyen’s knowledge and intent, not

“dragged in by the heels for the sake of its prejudicial effect.” United States v.

Haischer, 780 F.3d 1277, 1282 (9th Cir. 2015) (quoting United States v. Hankey,


                                          2
203 F.3d 1160, 1172 (9th Cir. 2000)).

      3. Nguyen next argues that the district court erred in admitting audio

recordings of Nguyen’s patient visits because the government failed to lay

sufficient foundation to identify Nguyen’s voice on the tapes. However, a

witness—who was familiar with Nguyen’s voice based on a 30-minute phone call

and 30-minute, in-person interview—testified that she heard Nguyen’s voice on the

audiotapes. Therefore, the district court did not err in admitting the audiotapes

because the witness’s identification was “based on hearing the voice at any time

under circumstances that connect it with the alleged speaker.” Fed. R. Evid.

901(b)(5).

      In addition, for the first time on appeal, Nguyen appears to argue that the

district court erred by failing to require the witness to listen to the tapes in open

court. However, Nguyen cites no authority establishing such a requirement. And,

to the extent Nguyen is actually alleging a defect in the tapes’ chain of custody,

that “goes to the weight, not the admissibility, of the evidence introduced.” United

States v. Matta-Ballesteros, 71 F.3d 754, 769 (9th Cir. 1995), amended by 98 F.3d

1100 (1996).

      4. Finally, Nguyen argues that the district court erred by failing to provide

the jury with each element of the instruction required under United States v.

Newhoff, 627 F.3d 1163, 1167–68 (9th Cir. 2010). However, Newhoff only


                                            3
governs readbacks of a transcript of witness testimony. See id. Here, the jury

requested a playback of admitted audio exhibits. See United States v. Chadwell,

798 F.3d 910, 915 (9th Cir. 2015) (holding that the “concern for avoiding undue

emphasis on particular trial testimony” is not present when “permitting a jury to

view properly admitted exhibits” (emphasis in original)). Therefore, the Newhoff

instruction was not required, and the district court did not err.

      AFFIRMED.




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