NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

CHRISTOPHER MYUNG KIM, 

Defendant-Appellant.

No. 20-50041 

D.C. No. 

2:19-cr-00166-VAP-1 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Virginia A. Phillips, Chief District Judge, Presiding

Argued and Submitted May 13, 2021

Pasadena, California

Before: OWENS and R. NELSON, Circuit Judges, and HELLERSTEIN,** District 

Judge.

Christopher Kim appeals from his convictions and sentence for his 

participation in a conspiracy to rob a warehouse of marijuana and cash while 

serving a fake search warrant. As the parties are familiar with the facts, we do not 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Alvin K. Hellerstein, United States District Judge for 

the Southern District of New York, sitting by designation.

FILED

MAY 21 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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recount them here. We affirm.

1. The district court properly instructed the jury regarding the specific intent 

elements of 18 U.S.C. §§ 241 (conspiracy against rights) and 242 (deprivation of 

rights under color of law). In Screws v. United States, 325 U.S. 91, 107 (1945), the 

Supreme Court interpreted section 242 to require more than a “generally bad 

purpose,” but also the specific “purpose to deprive the [victim] of a constitutional 

right.” The Court later read the same “specific intent” element into section 241. 

See Anderson v. United States, 417 U.S. 211, 223 (1974). The district court’s 

instructions here, adopted from a joint proposal by the parties, tracked the statutory 

language of sections 241 and 242 and included specific intent language requiring 

proof of a purpose to deprive the victim of a constitutional right, consistent with 

Screws.

2. Sufficient evidence supports the jury’s verdict as to the brandishing 

enhancement in count five. Brandishing under 18 U.S.C. § 924(c)(1)(A)(ii)

requires the government to prove “1) the open display of the firearm, or knowledge 

of the firearm’s presence by another in some manner, and 2) the purpose of 

intimidation.” United States v. Beaudion, 416 F.3d 965, 968 (9th Cir. 2005). The 

evidence at trial related to brandishing provided ample basis from which “any

rational trier of fact could have found the evidence sufficient.” United States v. 

Pelisamen, 641 F.3d 399, 409 n.6 (9th Cir. 2011) (citation omitted). The jury 
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heard evidence that the firearm was openly displayed, another was aware of its 

presence, and that the purpose of the display was intimidation. That the weapon 

was holstered by a member of law enforcement and that there may have been 

multiple motives for displaying the weapon is immaterial. See Beaudion, 416 F.3d 

at 968. 

3. The district court did not plainly err in admitting Special Agent Truong’s 

lay opinion testimony under Federal Rule of Evidence 701. While a police 

officer’s employment “does not endow him with any freestanding license to offer 

opinions,” an officer “may offer interpretations of ambiguous conversations based 

upon his direct knowledge of the investigation, or translate the drug jargon used by 

the targets of his investigation.” United States v. Perez, 962 F.3d 420, 435 (9th 

Cir. 2020) (internal quotation marks and citation omitted); see also United States v. 

Gadson, 763 F.3d 1189, 1210 (9th Cir. 2014). Agent Truong’s testimony was 

therefore properly admitted. And to the extent there was any error, it was not 

plain, and its admission did not have a “high probability” of “materially affect[ing] 

the verdict.” United States v. Carr, 761 F.3d 1068, 1083 n.10 (9th Cir. 2014)

(citation omitted).

4. The district court erred in admitting co-conspirator hearsay testimony 

during Agent Truong’s testimony, but the error was harmless. “Federal Rule of 

Evidence 801(d)(2)(E) . . . excludes from the definition of ‘hearsay’ those 
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statements made by a coconspirator during the course and in furtherance of the 

conspiracy.” United States v. Shryock, 342 F.3d 948, 982 (9th Cir. 2003). At trial,

Agent Truong testified about statements made by Kim’s co-conspirator Marc 

Antrim about the origins of the conspiracy. As the government concedes, a 

statement made to law enforcement about the origins of the conspiracy after it has 

been carried out is not a statement made “during the course and in furtherance of 

the conspiracy.” Id. Nor is it admissible as a “statement against interest” under 

Rule 804(b)(3) as that exception applies only to an unavailable declarant, and 

Antrim was available and testified in court. Id. at 981. It is also not admissible as 

a “prior consistent statement” under Rule 801(d)(1)(B), as the government now 

argues, because that rule only applies where the declarant was “subject to crossexamination concerning the statement,” rather than as a way “to counter all forms 

of impeachment or to bolster the witness merely because she has been discredited.” 

Tome v. United States, 513 U.S. 150, 156-57 (1995) (citation omitted). 

Nonetheless, this error was harmless. We “will only reverse if an erroneous 

evidentiary ruling more likely than not affected the verdict.” United States v. 

Pang, 362 F.3d 1187, 1192 (9th Cir. 2004) (internal quotation marks and citation 

omitted). Because Antrim testified during trial and offered the same explanation 

about his initial connection to Kim, its admission through Agent Truong’s 

testimony was harmless. 
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5. The district court did not err in admitting co-conspirator hearsay 

statements during the testimony of Kevin McBride, a member of the conspiracy to 

rob the warehouse. We “review for clear error the district court’s underlying 

factual determinations that a conspiracy existed and that the statements were made 

in furtherance of that conspiracy.” Shryock, 342 F.3d at 981. Kim has not 

demonstrated that the district court clearly erred in concluding that Antrim’s 

statements to McBride, made during the conspiracy about his relationship with 

Kim, did not further the conspiracy. 

6. The district court did not commit sentencing error. In explaining its 

conclusion that the offense was violent, the district court incorrectly commented 

that the victims were placed at gunpoint. But the district court also emphasized 

that one of the guards testified to having been traumatized and thinking she would 

be killed during the robbery. In light of that additional observation, and the fact 

that each of the co-conspirators was openly carrying what looked like handguns or 

assault rifles to intimidate the guards, Kim has not shown a “reasonable 

probability” that the district court’s error in remarking that the guards were held at 

gunpoint “adversely affected his sentence.” United States v. Herrera, 974 F.3d 

1040, 1045 (9th Cir. 2020). 

Nor did the district court err in concluding that Kim was an “organizer or 

leader” under U.S.S.G § 3B1.1(a), which provides for a four-level enhancement 
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“[i]f the defendant was an organizer or leader of a criminal activity that involved 

five or more participants or was otherwise extensive.” “[T]he organizer 

enhancement properly applies to a defendant who organizes others in the 

commission of the criminal activity even though he does not retain a supervisory 

role over the other participants.” United States v. Doe, 778 F.3d 814, 824 (9th Cir. 

2015) (internal quotation marks and citation omitted). The government introduced 

significant evidence of Kim’s role in organizing the robbery. Therefore, the 

district court did not err in concluding Kim was an “organizer or leader.” 

U.S.S.G. § 3B1.1(a) (emphasis added).

The district court’s below-Guidelines sentence was not substantively 

unreasonable due to sentencing disparities between Kim and his co-conspirators. 

The court explained that, unlike Kim, his co-conspirators accepted responsibility 

and pled guilty and/or cooperated.

AFFIRMED.