The U.S. Court of Appeals for the Ninth Circuit has denied businessman David Trung Quoc Phan’s motion to halt the issuance of the mandate that affirmed his conviction.
A mandate refers to the official notice of the appellate court given to the lower court, in this case the District Court, advising it of the action of the appellate court.
The appellate court retains control over an appeal until it issues a mandate and the decision is not final until a mandate is issued.
Ninth Circuit Chief Judge Sidney R. Thomas and judges Consuelo M. Callahan and Morgan Christen, however, granted Phan’s motion for permission to file a late petition for the Ninth Circuit’s panel rehearing.
Panel rehearing is heard before the court’s selected judges.
Last June, the Ninth Circuit affirmed the conviction of Phan over his role in a scheme to bring Bangladeshi men to Saipan on promises of jobs and green cards in exchange for cash.
Thomas, Callahan, and Christen ruled that the evidence presented a trial supported a permissible inference of fraudulent intent.
The judges also ruled that the misstatements and inconsistencies in some of the witnesses’ testimony provided a reason for the jury to find the witnesses not credible, but they did not compel the jury to reject the witnesses’ testimony.
In October 2017, a federal jury convicted Phan of two counts of mail fraud, three counts of fraud in foreign labor contracting, and one count of fraud and misuse of visas and permits.
In March 2018, U.S. District Court for the NMI designate judge John C. Coughenour slapped Phan with an eight-month prison sentence. Phan appealed his conviction and sentence to the Ninth Circuit.
In his appeal, Phan asked the Ninth Circuit to reverse his conviction, arguing through his lawyer that the evidence was insufficient to show fraudulent intent.