UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4162

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

GING-HWANG TSOA, a/k/a Felicia Tsoa, 

 Defendant - Appellant. 

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. James C. Cacheris, Senior

District Judge. (1:13-cr-00137-JCC-2) 

Submitted: October 29, 2014 Decided: November 12, 2014

Before DUNCAN and THACKER, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion. 

Eugene V. Gorokhov, Ziran Zhang, BURNHAM & GOROKHOV PLLC, 

Washington, D.C., for Appellant. Dana J. Boente, United States 

Attorney, Paul J. Nathanson, Assistant United States Attorney, 

Alexandria, Virginia, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. 
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PER CURIAM: 

Ging-Hwang Tsoa was convicted after a jury trial of 

one count of conspiracy to commit bank fraud, in violation of 

18 U.S.C. § 1349 (2012), and two counts of bank fraud, in 

violation of 18 U.S.C. §§ 2, 1344 (2012), and was sentenced to 

three concurrent terms of thirty months’ imprisonment. Tsoa 

appeals her convictions, arguing that the district court 

reversibly erred in excluding evidence -- including expert 

testimony -- and in denying her motion under Fed. R. Crim. P. 29 

for a judgment of acquittal as to the bank fraud counts. We 

affirm. 

We review the district court’s decisions as to 

admissibility of evidence, including its ruling excluding expert 

testimony, for abuse of discretion. United States v. Iskander, 

407 F.3d 232, 236 (4th Cir. 2005); United States v. Barile, 

286 F.3d 749, 753 (4th Cir. 2002). “[W]e will not find an abuse 

unless the district court’s decision was ‘arbitrary and 

irrational.’” Iskander, 407 F.3d at 236 (quoting United States 

v. Weaver, 282 F.3d 302, 313 (4th Cir. 2002)). We also defer to 

a district court’s balancing under Fed. R. Evid. 403 unless that 

balancing is an arbitrary or irrational exercise of discretion. 

United States v. Kelly, 510 F.3d 433, 437 (4th Cir. 2007). 

Further, where a defendant presented a challenge regarding the 

admissibility of evidence below but raises a new argument with 
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respect to that challenge for the first time on appeal, we 

review the district court’s admissibility ruling for plain error 

only. United States v. Bernard, 708 F.3d 583, 588 (4th Cir.), 

cert. denied, 134 S. Ct. 617 (2013). Under the plain error 

standard, this court may -- but is not required to -- correct 

the district court’s error if the error was plain and affected 

Tsoa’s substantial rights. United States v. Olano, 507 U.S. 

725, 732, 735 (1993). 

First, Tsoa contends that the district court erred in

excluding prior to trial the proffered expert opinion testimony 

of Dr. Ronald Boggio regarding Tsoa’s verbal abilities and 

memory, reading, thinking, and facility with English. Tsoa also 

contends that the district court erred in excluding the 

proffered expert opinion testimony of Stephen McGurl that Tsoa 

had an overall poor understanding of the mortgage lending 

process. The expert testimony was proffered in support of 

Tsoa’s contention that she lacked the required intent to commit 

the bank fraud and conspiracy offenses. As to Boggio’s 

proffered testimony, the district court determined that the 

testimony was not probative of the contention that Tsoa lacked 

the required intent and was also excludable under Fed. R. Evid. 

403. As to McGurl’s proffered testimony, the district court 

determined that the testimony was not reliable and also was 

excludable under Rule 403. 
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After review of the record and the parties’ briefs, we 

conclude that the district court did not abuse its discretion in 

excluding the proffered testimony from Dr. Boggio and McGurl. 

To be admissible, psychiatric evidence of a mental condition 

short of insanity must be offered to rebut the Government’s 

evidence of specific intent, United States v. Worrell, 313 F.3d 

867, 874 (4th Cir. 2002), and is properly excludable where it 

does not focus on the defendant’s state of mind at the time of 

the charged offense, United States v. Cameron, 907 F.2d 1051, 

1067 (11th Cir. 1990), or does not explain the effect of some 

mental condition on the defendant’s ability to form the 

requisite criminal intent. United States v. Schneider, 111 F.3d 

197, 202-03 (1st Cir. 1997). 

Where expert testimony bears on intent, a district 

court still must perform its gatekeeping function with respect 

to the testimony and ensure it is not only relevant but 

reliable. United States v. Prince-Oyibo, 320 F.3d 494, 498 

(4th Cir. 2003). Expert testimony is properly excludable where 

persons “of common understanding” are “as capable of 

comprehending the primary facts and of drawing correct 

conclusions from them” as are the expert. Salem v. U.S. Lines 

Co., 370 U.S. 31, 35 (1962) (quoting U.S. Smelting Co. v. Parry, 

166 F. 407, 411, 415 (8th Cir. 1909)) (internal quotation marks 

omitted); see, e.g., United States v. Lespier, 725 F.3d 437, 449 
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(4th Cir. 2013) (noting, in affirmance of district court ruling 

excluding admission of proffered expert testimony on sleep 

deprivation, that, “in the typical case, the effects of sleep 

deprivation” are readily comprehended by jurors), cert. denied, 

134 S. Ct. 974 (2014). Such evidence also may be excluded “if 

its probative value is substantially outweighed by a danger of 

one or more of the following: unfair prejudice, confusing the 

issues, misleading the jury, undue delay, wasting time, or 

needlessly presenting cumulative evidence.” Fed. R. Evid. 403. 

Dr. Boggio’s proffered opinions regarding Tsoa’s 

verbal abilities and memory, reading, thinking, and facility 

with English do not address or focus on Tsoa’s state of mind or 

ability to form the necessary intent to defraud at the time of 

the charged offense conduct. Further, as Tsoa appears to

acknowledge on appeal, evidence regarding her abilities in 

English was a topic readily comprehendible by jurors and could 

be developed through other sources. As the “imprimatur of a 

clinical label” regarding Tsoa’s abilities in English was 

neither necessary nor helpful to the jury, United States v. 

DiDomenico, 985 F.2d 1159, 1164 (2d Cir. 1993), and Dr. Boggio’s 

opinions regarding Tsoa’s intellectual abilities were not linked 

to her mental state at the time of the charged offense conduct, 

the district court did not abuse its discretion in concluding 

that any probative value from Dr. Boggio’s opinions was 
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substantially outweighed by a danger that admission of the 

opinions would confuse the issues and mislead the jury and that 

the opinions were therefore excludable under Rule 403. 

The same, we conclude, is true for the district 

court’s exclusion of McGurl’s proffered opinion regarding Tsoa’s 

understanding the mortgage lending process. Nothing in McGurl’s 

proffered opinion is addressed to whether Tsoa’s understanding 

of the mortgage lending process at the time of the interview 

with McGurl was extant at the time of the charged offense 

conduct. Because the jury’s role was to assess whether Tsoa was 

guilty of the charged conspiracy and bank fraud offenses based 

on her acts and omissions at the time of the charged conduct, 

the district court did not abuse its discretion in concluding 

that McGurl’s proffered opinion on this matter was substantially 

outweighed by a danger that admission would mislead the jury and 

that his opinion was therefore excludable under Rule 403. We 

further reject as without merit Tsoa’s arguments to the contrary 

as they concern the exclusion of McGurl’s and Dr. Boggio’s 

proffered opinions. 

Next, Tsoa contends that the district court erred in 

denying her mid-trial request to admit Dr. Boggio’s proffered 

testimony to rebut her incriminating statements that were 

introduced through the testimony of the current and former case 

agents, arguing that the testimony was probative of the 
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reliability of her statements to the agents and admissible under 

Fed. R. Evid. 806. We reject this contention as meritless. As 

Tsoa appears to acknowledge on appeal, Rule 806 does not by its 

terms* allow a defendant-declarant to attack the credibility of 

her own out-of-court statements admissible under Fed. R. Evid. 

801(d)(2)(A). We also reject as meritless Tsoa’s argument, 

premised on United States v. Shay, 57 F.3d 126 (1st Cir. 1995), 

that -- the terms of Rule 806 notwithstanding -- Dr. Boggio’s 

proffered testimony would have “cast doubt on” the accuracy and 

reliability of her incriminating statements to the agents and 

would have cast doubt on the agents’ testimony regarding her 

effective communication in English. Shay is inapposite; its 

focus was on Fed. R. Evid. 702, not a second request to admit 

 * Rule 806 provides: 

When a hearsay statement -- or a statement described 

in Rule 801(d)(2)(C), (D), or (E) [concerning 

statements offered against an opposing party made by 

others] -- has been admitted in evidence, the 

declarant’s credibility may be attacked, and then 

supported, by any evidence that would be admissible 

for those purposes if the declarant had testified as a 

witness. The court may admit evidence of the 

declarant’s inconsistent statement or conduct, 

regardless of when it occurred or whether the 

declarant had an opportunity to explain or deny it. 

If the party against whom the statement was admitted 

calls the declarant as a witness, the party may 

examine the declarant on the statement as if on crossexamination. 

Fed. R. Evid. 806. 
8

evidence the district court had already found excludable under 

Rule 403. Further, in contrast to the testimony at issue in

Shay, Dr. Boggio’s testimony, if believed, would not have 

exculpated Tsoa or explained away her incriminating statements 

to the agents. 

Tsoa also contends that the district court erred in 

excluding emails she sent to one of the case agents after a 2013 

interview. She argues that the emails were admissible under 

Rule 806 as they provided evidence of her knowledge of and 

abilities in English and bore on the reliability of her 

statements to the agents and the agents’ conclusions regarding 

her comprehension and the responsiveness and reliability of her 

statements to them. Tsoa did not raise an argument premised on 

Rule 806 in support of the admissibility of the emails in the 

district court. Accordingly, our review is for plain error 

only. 

As this court has noted, plain error is “synonymous 

with clear or obvious error.” United States v. Carthorne, 726 

F.3d 503, 516 (4th Cir. 2013) (quoting Olano, 507 U.S. at 734) 

(internal quotation marks omitted), cert. denied, 134 S. Ct. 

1326 (2014). An error qualifies as “plain if the settled law of 

the Supreme Court or this circuit establishes that an error has 

occurred.” Id. (quoting United States v. Maxwell, 285 F.3d 336, 

342 (4th Cir. 2002)) (internal quotation marks omitted). Rule 
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806 applies to hearsay statements and certain statements offered 

against an opposing party that have “been admitted in evidence.” 

Fed. R. Evid. 806. By its terms, Rule 806 was not the mechanism 

for admission of Tsoa’s written out-of-court statements 

contained in the emails. Further, Tsoa’s counsel offered the 

emails as probative of Tsoa’s knowledge and abilities, not as 

bearing on credibility. Tsoa thus fails to establish plain 

error under Rule 806 in the exclusion of the emails. 

Finally, Tsoa challenges the district court’s denial 

of her Rule 29 motion as to the bank fraud counts, arguing that 

the Government failed to present proof sufficient to meet its 

burden to show that the victim banks were insured by the Federal 

Deposit Insurance Corporation (“FDIC”) at the time of the 

charged offense conduct. 

We review a district court’s denial of a Rule 29 

motion for judgment of acquittal de novo. United States v. 

Smith, 451 F.3d 209, 216 (4th Cir. 2006). “A defendant 

challenging the sufficiency of the evidence to support his 

conviction bears a heavy burden.” United States v. Beidler, 

110 F.3d 1064, 1067 (4th Cir. 1997) (quoting United States v. 

Hoyte, 51 F.3d 1239, 1245 (4th Cir. 1995)) (internal quotation 

marks omitted). The verdict of a jury must be sustained “if, 

viewing the evidence in the light most favorable to the 

prosecution, the verdict is supported by substantial evidence.” 
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Smith, 451 F.3d at 216 (quoting United States v. Burgos, 94 F.3d 

849, 862 (4th Cir. 1996) (en banc)) (internal quotation marks 

omitted). Substantial evidence is “evidence that a reasonable 

finder of fact could accept as adequate and sufficient to 

support a conclusion of a defendant’s guilt beyond a reasonable 

doubt.” Id. (quoting Burgos, 94 F.3d at 862) (internal 

quotation marks omitted). In reviewing a case for substantial 

evidence, we must allow the Government “the benefit of all 

reasonable inferences from the facts proven to those sought to 

be established,” United States v. Tresvant, 677 F.2d 1018, 1021 

(4th Cir. 1982), and do not weigh the credibility of the 

evidence or resolve any conflicts in the evidence. Beidler, 110 

F.3d at 1067. “Reversal for insufficient evidence is reserved 

for the rare case where the prosecution’s failure is clear.” 

Id. (quoting Burks v. United States, 437 U.S. 1, 17 (1978)) 

(internal quotation marks omitted). 

Tsoa argues that the evidence was insufficient to 

establish that the victim banks were insured by the FDIC, noting 

that the insurance certificates introduced into evidence 

provided no information as to whether the banks were so insured 

at the time of the charged offense conduct and that a case agent 

testified only as to what the certificates said. We reject this 

contention. 
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Here, the FDIC certificates admitted into evidence 

certified that the deposits to each victim bank were insured by 

the FDIC as of April 1, 1999, and November 13, 2004, before the 

commencement of the offense conduct as charged in the 

indictment. Additionally, the case agent’s testimony regarding 

what the certificates indicated as to the banks’ insured status 

provided a sufficient basis from which the jury could draw the 

reasonable inference that the banks were insured by the FDIC at 

the time of the charged offense conduct. Tsoa’s argument to the 

contrary does not alter this conclusion. Accordingly, the 

district court did not reversibly err in denying Tsoa’s Rule 29 

motion as to the bank fraud counts. 

We therefore affirm the district court’s judgment. We 

dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before 

this court and argument would not aid the decisional process. 

AFFIRMED