United States of America v. Kil Jun Lee

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KIL JUN LEE,
Defendant-Appellant.
No. 13-50422
D.C. No.
2:12-cr-00278-DDP-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted July 5, 2016
Pasadena, California
Before: MURGUIA, and WATFORD, Circuit Judges, and BOLTON,** District
Judge.
Kil Jun Lee appeals his convictions and sentences for three counts of
trafficking in counterfeit goods in violation of 18 U.S.C. § 2320(a), contending that
the convictions and sentences were multiplicitous with his convictions and
FILED
JUL 22 2016
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 Honorable Susan R. Bolton, United States District Judge for the
District of Arizona, sitting by designation.

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sentences for three counts of smuggling the same goods under 18 U.S.C. § 545.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm as modified.
The two sets of charges stemmed from the same conduct: bringing
counterfeit sexual dysfunction pills into the United States. While sections 2320(a)
and 545 are not by their terms multiplicitous, here the jury was instructed that an
element of guilt under § 545 was the violation of § 2320(a). As a result, the jury
instructions treated trafficking in counterfeit goods under § 2320(a) as a lesser
included offense of smuggling under § 545. The jury found Lee guilty of both sets
of charges, and the district court entered judgment on both sets.
While the government can indict a defendant for both a greater and a lesser
included offense, “entering judgment against him is multiplicitous and a double
jeopardy violation when it is based on the same conduct.” United States v.
Schales, 546 F.3d 965, 978 (9th Cir. 2008). This constituted plain error. See id. at
980. We therefore strike from the judgment the trafficking convictions and
sentences on counts 1, 3, and 5, including the $300 in special assessments for those
counts, and affirm the judgment as modified. See United States v. Long, 301 F.3d
1095, 1108 (9th Cir. 2002).
AFFIRMED as MODIFIED
2

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