UNITED STATES of America, Plaintiff-Appellee, v. Judy YEUNG, a/k/0a Mui Wan Yeung, Defendant-Appellant, 468 F. App'x 692

MEMORANDUM Even assuming there was a variance in proof between the single conspiracy charged in the indictment and the three conspiracies allegedly proved at trial, the variance did not prejudice Yeung’s rights due to evidentiary spillover because Yeung stood trial alone. See United States v. Anguiano, 873 F.2d 1314, 1318 (9th Cir.1989); see also United States v. Liu, 631 F.3d 993, 1000 (9th Cir.2011). Yeung’s reliance on United States v.

Lazarenko, 564 F.3d 1026 (9th Cir.2009), which involved retroactive misjoinder, is misplaced, because the government did not present to the jury any evidence related to any count that was not properly before the court or was subsequently dismissed. The district court did not abuse its discretion by admitting evidence related to the three legitimate loans issued to Yeung. This evidence was introduced to prove knowledge, intent, or motive, which are elements of the charged conspiracy, and the court provided a jury instruction to prevent confusion of the issues, if any.

See Fed.R.Evid. 402, 403, and 404(b); see also United States v. Khan, 993 F.2d 1368, 1377-78 (9th Cir.1993). Yeung’s claim that the government presented insufficient evidence of her intent to defraud also fails because a reasonable jury could conclude that Yeung intended to defraud banks by submitting false loan applications that misrepresented the borrowers’ identities, incomes, and assets. We also uphold the witness tampering convictions.

The district court did not abuse its discretion by admitting a witness’s lay opinion regarding his understanding of statements made during a conversation with Yeung, because such testimony was rationally based on the perception of the witness and helpful to the jury, for example by clarifying that the name “Auntie” referred to Judy Yeung, and “stuff in Hong Kong” referred to the Hang Seng Bank account letter. See Fed. R.Evid. 701. Additionally, the jury instructions’ definition of “corrupt persuasion” is fully consistent with our case law, see United States v.

Doss, 630 F.3d 1181, 1189-90 (9th Cir.2011), and there is sufficient evidence in the record from which a rational juror could have concluded that Yeung affirmatively instructed Zhang and Louie to lie to law enforcement. Yeung’s conviction is AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. . In a separate opinion filed concurrently with this memorandum disposition, we vacate and remand in part the district court’s restitution award.

Because the sentencing of alleged co-conspirator Alex Yee does not “have a direct relation to matters at issue,” United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir.1992) (internal quotation marks omitted), we deny Yeung’s request for judicial notice.