NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 31 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-50080

Plaintiff-Appellee, D.C. Nos. 2:19-cr-00282-RGK-7 v. 2:19-cr-00282-RGK-8 2:19-cr-00282-RGK-9 SCUDERIA DEVELOPMENT, LLC; 1001 2:19-cr-00282-RGK-10

DOUBLEDAY, LLC; VON-KARMAN -

MAIN STREET, LLC; 10681

PRODUCTION AVENUE, LLC, MEMORANDUM*

Defendants-Appellants.

UNITED STATES OF AMERICA, No. 22-50081

Plaintiff-Appellee, D.C. No. 2:19-cr-00282-RGK-5 v.

PERFECTUS ALUMINIUM INC, AKA

Perfectus Aluminium Inc,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 22-50082

Plaintiff-Appellee, D.C. No. 2:19-cr-00282-RGK-6

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. v.

PERFECTUS ALUMINUM

ACQUISITIONS, LLC,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 22-50103

Plaintiff-Appellant, D.C. Nos. 2:19-cr-00282-RGK-4 v. 2:19-cr-00282-RGK-5 2:19-cr-00282-RGK-6 ZHONGTIAN LIU, AKA Big Boss, AKA 2:19-cr-00282-RGK-7 Chairman, AKA UL, AKA Uncle Liu, AKA 2:19-cr-00282-RGK-8 Liu Zhongtian; CHINA ZHONGWANG 2:19-cr-00282-RGK-9 HOLDINGS; ZHAOHUA CHEN, AKA 2:19-cr-00282-RGK-10 Uncle Chen, AKA Chen Zhaohua; XIANG 2:19-cr-00282-RGK CHUN SHAO, AKA Johnson Shao,

Defendants,

and

PERFECTUS ALUMINIUM INC;

PERFECTUS ALUMINUM

ACQUISITIONS, LLC; SCUDERIA

DEVELOPMENT, LLC; 1001

DOUBLEDAY, LLC; VON-KARMAN -

MAIN STREET, LLC; 10681

PRODUCTION AVENUE, LLC,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding

2 Argued and Submitted July 15, 2024 Pasadena, California

Before: PAEZ and SANCHEZ, Circuit Judges, and LYNN,** District Judge.

Defendants-Appellants appeal their jury convictions on 24 counts for

conspiring to commit wire fraud, customs fraud, and promotional money

laundering in violation of 18 U.S.C. § 371; wire fraud in violation of 18 U.S.C.

§ 1343; customs fraud in violation of 18 U.S.C. § 545; and money laundering in

violation of 18 U.S.C. § 1956(a)(2)(A). They also appeal the district court’s

restitution order, while the Government cross-appeals the court’s restitution

payment schedule. We have jurisdiction under 28 U.S.C. § 1291. We affirm

Defendants’ convictions and vacate the restitution order in part.

1. The district court did not err in denying Defendants’ motion to

dismiss. Because U.S. corporate Defendants’ wires originated or terminated in the

Central District of California, this case concerns domestic applications of the wire

fraud statute. See United States v. Hussain, 972 F.3d 1138, 1145 (9th Cir. 2020).

Further, the indictment adequately alleged the elements of customs fraud. The

indictment alleged that Defendants intended to defeat or avoid 2011

antidumping/countervailing duties (“AD/CVD”) orders by knowingly submitting

** The Honorable Barbara M. G. Lynn, United States District Judge for the Northern District of Texas, sitting by designation.

3 false documentation to U.S. Customs and Border Protection (“Customs”) asserting

that their aluminum pallets were “finished merchandise.” 18 U.S.C. § 545; see

United States v. Robinson, 147 F.3d 851, 853 (9th Cir. 1998) (explaining that

customs fraud occurs at the time of “the submission of false, forged or fraudulent

invoices” at the port of entry). The district court correctly denied Defendants’

motion to dismiss the indictment on these grounds.

2. The district court did not abuse its discretion in conducting voir dire.

Defendants’ claim that the district court was required to inquire about anti-Asian

and anti-Chinese bias rests on speculation about the COVID-19 pandemic and

general animosity toward China, but a “trial court may refuse questions which are

tied to prejudice only speculatively.” United States v. Anekwu, 695 F.3d 967, 978

(9th Cir. 2012) (cleaned up) (quoting United States v. Payne, 944 F.2d 1458, 1474

(9th Cir. 1991)). To the extent Defendants preserved their voir dire objection for

appeal, the district court exercised its “considerable discretion” by declining to ask

proposed questions that concerned the COVID-19 pandemic and were only

speculatively linked to any concerns about juror bias. United States v. Medina

Casteneda, 511 F.3d 1246, 1250 (9th Cir. 2008).

3. The Government did not commit a constructive amendment or

impermissible variance between the indictment and trial. The indictment alleges

that Defendants conspired to import aluminum extrusions tack-welded into the

4 shape of pallets and falsely represent to Customs that the aluminum pallets were

“finished merchandise” beyond the ambit of the 2011 AD/CVD orders. The

Government presented the same theory of customs fraud at trial. Government

witnesses testified that the pallets were not “finished merchandise” because they

lacked any “non-extruded aluminum,” evidence that is consistent with the

indictment’s charge that Defendants smuggled extruded aluminum into the United

States as “finished merchandise.” Nor was the Government’s proof at trial an

impermissible variance because the proven facts were not “materially different

from those alleged in the indictment.” United States v. Hartz, 458 F.3d 1011, 1020

(9th Cir. 2006) (quoting United States v. Von Stoll, 726 F.2d 584, 586 (9th Cir.

1984)).

4. The district court properly admitted co-conspirator statements. At

trial, the Government established the existence of a conspiracy to commit wire

fraud and customs fraud, and thus needed “only [to] present slight evidence

connecting the defendant to the conspiracy.” United States v. Crespo de Llano,

838 F.2d 1006, 1017 (9th Cir. 1987). Defendants’ challenged statements were

directly connected to and in furtherance of the proven conspiracy, and the court

correctly held them to be admissible under the co-conspirator hearsay exclusion of

Federal Rule of Evidence 801(d)(2)(E).

5. The district court correctly instructed the jury. The court properly

5 declined to give “entrapment-by-estoppel” and “mere-presence” defense

instructions because Defendants failed to present prima facie evidence such that a

jury “could rationally sustain the defense.” United States v. Kayser, 488 F.3d

1070, 1076 (9th Cir. 2007) (quoting United States v. Jackson, 726 F.2d 1466, 1468

(9th Cir. 1984) (per curiam)). The district court correctly instructed the jury on the

law regarding the AD/CVD orders and the Department of Commerce’s 2017 scope

ruling and did not usurp the jury’s fact-finding role. Because each object of the

conspiracy was legally sufficient, the district court did not abuse its discretion by

using a general verdict form.

6. The Government presented sufficient evidence of customs fraud and

wire fraud to support the jury’s verdict. The Government provided ample evidence

of Defendants’ willful acts and intent to engage in customs fraud, as well as

evidence of Defendants’ deliberate misrepresentations to investors for the wire

fraud counts. Viewing the evidence in the light most favorable to the prosecution,

any rational juror “could have found the essential elements of the crime beyond a

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).

7. Finally, the district court properly ordered restitution of

$1,836,244,745 to Customs for unpaid duties under the Mandatory Victims

Restitution Act (“MVRA”) and properly found all Defendants jointly and severally

liable. See United States v. Gagarin, 950 F.3d 596, 609 (9th Cir. 2020).

6 The court erred, however, in imposing the restitution payment schedule

without resolving the parties’ dispute concerning the value of the Warehouse

Defendants’ assets. The MVRA “requires both that a district court set forth its

reasons in resolving a dispute over restitution and that a restitution award . . . be

adequately supported by evidence in the record.” United States v. Tsosie, 639 F.3d

1213, 1222 (9th Cir. 2011) (emphasis added). “By its use of the ‘all property or

rights to property’ language, Congress has made quite clear that the totality of

defendants’ assets will be subject to restitution orders.” United States v. Novak,

476 F.3d 1041, 1046 (9th Cir. 2007) (en banc) (internal citation omitted) (quoting

18 U.S.C. § 3613(a)). The district court did not hold an evidentiary hearing or

resolve the parties’ dispute over the value of the warehouses before determining

that Defendants lacked the ability to pay restitution and ordering a nominal

payment schedule. This finding was “without support in inferences that may be

drawn from the facts in the record.” United States v. Martinez-Lopez, 864 F.3d

1034, 1043 (9th Cir. 2017) (en banc) (quoting United States v. Hinkson, 585 F.3d

1247, 1263 (9th Cir. 2009) (en banc)).

Defendants’ convictions AFFIRMED. Restitution order VACATED and

REMANDED.1

1 Defendants’ motion to take judicial notice of polling data on the COVID-19 pandemic and U.S.-China relations, (Dkt. 14), is DENIED as “not relevant to the disposition of this appeal.” Cuellar v. Joyce, 596 F.3d 505, 512 (9th Cir. 2010).

7