United States of America v. VIVIAN TAT, AKA Vivian Lnu

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
VIVIAN TAT, AKA Vivian Lnu,
Defendant-Appellant.
No. 19-50034
D.C. No.
2:14-cr-00702-ODW-2
MEMORANDUM*
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RUIMIN ZHAO,
Defendant-Appellant.
No. 19-50078
D.C. No.
2:14-cr-00702-ODW-3
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Argued and Submitted March 4, 2021
Submission Withdrawn April 7, 2021
Resubmitted October 14, 2021
Pasadena, California
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
OCT 21 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Before: GRABER and MILLER, Circuit Judges, and HILLMAN, ** District Judge.
Defendants Vivian Tat and Ruimin Zhao appeal their convictions for
conspiring to launder monetary instruments in violation of 18 U.S.C. § 1956(h).1
We affirm.
1. The district court did not abuse its discretion in refusing to give a
missing-witness instruction. See United States v. Bramble, 680 F.2d 590, 592 (9th
Cir. 1982) (holding that we review for abuse of discretion the district court’s
refusal of such an instruction). Defendants did not attempt to call the witness,
Defendant Zhao’s husband, because they believed that he would invoke his
privilege against self-incrimination. "Where a witness’ unavailability results from
an invocation of the privilege against self-incrimination, the witness is unavailable
to both parties, and the court’s refusal to give an absent witness instruction is
proper." United States v. Brutzman, 731 F.2d 1449, 1454 (9th Cir. 1984),
overruled on other grounds by United States v. Charmley, 764 F.2d 675, 677 n.1
(9th Cir. 1985).
** The Honorable Timothy Hillman, United States District Judge for the
District of Massachusetts, sitting by designation.
1 Defendant Tat also appeals her convictions under 18 U.S.C. § 1005, which
we address separately in a concurrently filed published opinion.

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2. As the government concedes, the prosecutor troublingly erred during her
closing argument when, at the district court’s encouragement, she vouched for the
government’s witnesses and suggested that the government was a guarantor of
truthfulness. See United States v. Young, 470 U.S. 1, 18 (1985) (describing the
dangers of a "prosecutor’s vouching for the credibility of witnesses"). But,
applying plain error review, we decline to vacate Defendants’ convictions because
(1) "the prosecutor’s remarks were ‘invited,’" and (2) "the overwhelming evidence
of [Defendants’] intent to [launder money] eliminates any lingering doubt that the
prosecutor’s remarks unfairly prejudiced the jury’s deliberations." Id. at 12, 19. A
surreptitious video recording and documents comprised most of the evidence,
limiting significantly the prejudice of any comments about witnesses.
3. The district court did not abuse its discretion in answering the jury’s first
note by stating which exhibits correspond to Counts 2 and 3. See United States v.
Ramirez, 537 F.3d 1075, 1081 (9th Cir. 2008) (holding that we "ordinarily review
a district court’s response to a jury question for abuse of discretion"). A district
court may "assist the jury in arriving at a just conclusion by explaining and
commenting upon the evidence, [or] by drawing their attention to the parts of it
which [it] thinks important." Quercia v. United States, 289 U.S. 466, 469 (1933).
Indeed, both Tat and the government argued to the jury that Exhibits 47 and 48
supported their theories of the case, and no other exhibits were relevant.

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4. Because, as the district court found, Defendants had an opportunity to
object and failed to do so, we review for plain error the district court’s response to
the jury’s second note. See United States v. Martinez, 850 F.3d 1097, 1100 n.1
(9th Cir. 2017) (noting that we review for plain error whether the district court’s
response to a juror’s question violated the Sixth Amendment when the defendant
did not object to that response before the district court despite having an
opportunity to do so). That said, we must stress that the far better practice is for a
district court to invite comment on its response to the jury’s question expressly and
to hold all such discussions on the record to avoid the uncertainties apparent in this
case.
The district court did not plainly err because the jury’s question—"Where is
Raymond Tan?"—and the court’s response—"That is not an issue for your
determination"—are ambiguous. The most natural reading of the question is that
the jury literally asked about Tan’s physical location. Assuming that the district
court had the same interpretation, its answer was legally and factually correct.
Moreover, the court’s response was similar to the unobjectionable Jury Instruction
No. 20: "For reasons that do not concern you the case against [Tan] is no longer
before you. Do not speculate why." The court also did not advise the jury that it
could not consider the inference most favorable to Defendants—that the

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government was hiding Tan—which defense counsel already had raised during
closing argument.
AFFIRMED.

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