United States of America v. Aaron Mungit Hu

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
AARON MUNGIT HU,
Defendant-Appellant.
No. 16-10270
D.C. No.
1:15-cr-00243-JMS-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Hawaii
J. Michael Seabright, Chief Judge, Presiding
Submitted February 13, 2018**
Honolulu, Hawaii
Before: O’SCANNLAIN, CLIFTON, and IKUTA, Circuit Judges.
Aaron Mungit Hu challenges his conviction for possession of
methamphetamine and heroin with intent to distribute within 1000 feet of an
FILED
FEB 15 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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elementary school. See 21 U.S.C. §§ 841(a)(1), 860(a). Because the facts are
known to the parties, we repeat them only as necessary to explain our decision.
I
Viewed in the light most favorable to the government, the evidence
presented at trial was sufficient to allow a rational juror to find that Hu’s crime was
committed within 1000 feet of an elementary school. See United States v. Johnson,
874 F.3d 1078, 1080 & n.2 (9th Cir. 2017) (standard for reviewing sufficiency of
the evidence). Agent Dituro testified that his second measurement was shorter
than the first because he intentionally walked a more direct path to the school the
second time. A rational juror could have credited Dituro’s explanation and
accepted his second measurement as accurate. Further, the slight inaccuracy of the
measuring wheel over the course of a 400-meter span does not undermine Dituro’s
measurements. Even if five feet were added to Dituro’s second measurement, the
distance between the arrest site and the school would still be less than 1000 feet.
Finally, with or without reference to the triangle theorem of inequality, a rational
juror could have concluded that the straight-line distance between the school and
2

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the arrest site would have been even shorter than the indirect path that Dituro
measured.1
II
The district court’s decision to give a lesser-included instruction did not
conclusively determine that the evidence was insufficient to support the 1000-foot
element of Hu’s crime. To give the instruction, the court was simply required to
conclude that a rational juror could find that Hu was guilty of the lesser offense but
not the greater—i.e., that a juror could rationally find that Hu possessed the drugs
with the intent to distribute them, but that he did so more than 1000 feet from the
school. See United States v. Crowe, 563 F.3d 969, 972 (9th Cir. 2009). The
court’s observation that a rational juror could have found in Hu’s favor on the
1000-foot element does not show that the evidence was insufficient to support the
jury’s actual finding in favor of the government.
AFFIRMED.
1 The relevant distance for the statute is “a straight line measurement” rather
than “any ‘pedestrian’ route of travel.” United States v. Watson, 887 F.2d 980, 981
(9th Cir. 1989).
3

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