United States of America v. Chun Mei Tong

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHUN MEI TONG,
Defendant-Appellant.
No. 20-10011
D.C. No.
1:18-cr-00082-JMS-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Hawaii
J. Michael Seabright, Chief District Judge, Presiding
Submitted January 18, 2022**
Honolulu, Hawaii
Before: O’SCANNLAIN, MILLER, and LEE, Circuit Judges.
Chun Mei Tong appeals the restitution order entered as part of her criminal
sentence for wire fraud, in violation of 18 U.S.C. § 1343, and aggravated identify
theft, in violation of 18 U.S.C. § 1028(a)(1). We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
* 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).
FILED
JAN 20 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Tong’s conviction was based on a scheme in which she acted as a landlord
in the Section 8 housing program under false pretenses. The district court required
Tong to pay $207,874 in restitution to the City and County of Honolulu
Department of Community Services and the State of Hawaii Public Housing
Authority, the entities that paid Tong for providing Section 8 housing. See United
States v. Bright, 353 F.3d 1114, 1120 (9th Cir. 2004). Tong argues that the district
court overstated the victims’ loss because, had they not paid her, they would have
paid a similar amount to a different landlord. Because Tong did not raise that
argument below, we review only for plain error. Puckett v. United States, 556 U.S.
129, 135 (2009). To be plain, an “error must be clear or obvious”; it “must have
affected the appellant’s substantial rights”; and it must “seriously affect[] the
fairness, integrity[,] or public reputation of judicial proceedings.” Id. (quoting
United States v. Olano, 507 U.S. 725, 734, 736 (1993)).
No clear or obvious error occurred here. We have previously upheld
restitution orders requiring defendants to pay back their full gains attributable to
fraud, even where the victims would have paid the same amount to someone else if
the fraud had not occurred. See United States v. Petersen, 98 F.3d 502, 510 (9th
Cir. 1996); United States v. Hunter, 618 F.3d 1062, 1064–65 (9th Cir. 2010). Like
the victims in those cases, the Section 8 administrators here “suffered a loss by
paying out [the amount] under false pretenses.” Petersen, 98 F.3d at 510. It was

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therefore appropriate for the district court to require Tong to repay the amount that
she obtained because of her fraud.
AFFIRMED.

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