Kim

MEMORANDUM **

Keith Joon Kim appeals in No. 03-10043 his jury trial conviction and sentence imposed for making a false statement to a government agent, in violation of 18 U.S.C. § 1001 . The United States cross-appeals the sentence in No. 03-10090. We affirm the conviction, vacate the sentence and remand for resentencing with instructions. [1] 1. The facts are well known to the parties and will be repeated only insofar as necessary to explain our decision. The false statement for which Kim was convicted was not fundamentally ambiguous.

Generally speaking, the existence of some ambiguity in a falsely answered question will not shield the respondent from a perjury or false statement prosecution. It is for the jury to decide in such cases which construction the defendant placed on a question. If, however, a question is excessively vague, or fundamentally ambiguous, the answer may not, as [a] matter of law, form the basis of a prosecution for perjury or false statement.

United States v. Culliton, 328 F.3d 1074, 1078 (9th Cir.2003) (per curiam) (citations and internal quotation marks omitted), cert. denied — U.S.-, 124 S.Ct. 1087 , 157 L.Ed.2d 900 (2004). We look to the context of…