Case Information
THE DISTRICT COURT OF GUAM
UNITED STATES OF AMERICA, CRIMINAL CASE NO. 23-00014 Plaintiff,
DECISION AND ORDER DENYING vs. MOTIONS FOR JUDGMENT OF ACQUITTAL AND NEW TRIAL MICHAEL L. MARASIGAN, (ECF NOS. 547, 554, 557) JOSE ARTHUR “ART” D. CHAN, JR., and
CHRISTINE C. CHAN,
Defendants.
Before the court are Defendant Jose Arthur “Art” D. Chan, Jr.’s Motion for New Trial Under Rule 33, ECF No. 547, and Motion for Judgment of Acquittal Under Rule 29 and Motion for New Trial Under Rule 33, ECF No. 554. These motions were joined by Defendants Michael L. Marasigan and Christine C. Chan. ECF Nos. 550, 555-56, 558. Also before the court is Defendant Marasigan’s Motion for Acquittal or in the Alternative for Evidentiary Hearing and New Trial. ECF No. 557. This motion was joined by Defendant Art Chan. ECF No. 561. The court has reviewed the record and the relevant case law and deems these motions suitable for submission without oral argument. For the reasons stated below, the court hereby DENIES the motions in full.
2 28 Procedural Posture and Factual Background I.
On May 10, 2023, a federal grand jury indicted seven defendants, Michael L. Marasigan, Jose Arthur “Art” D. Chan, Jr., Alfredo D. Leon Guerrero, Christine C. Chan, Juanita Capulong, Minda C. San Nicolas, and Richard C. Brown, on sixty-four counts. Indictment, ECF No. 1. The indictment charged all defendants with one count of conspiracy to operate illegal gambling business, in violation of 18 U.S.C. §§ 371, 1955(a), and one count of money laundering conspiracy, in violation of 18 U.S.C. §§ 1956(h), 1956(a)(1)(B)(i), 1957. Id. at 1-7. The indictment also charged five of the defendants with sixty-two counts of money laundering, in violation of 18 U.S.C. §§ 1957, 2. Id. at 1, 7-14. Relevant here, Defendant Marasigan was charged with sixty-two counts of money laundering, Defendant Christine Chan was charged with twenty-four counts of money laundering, and Defendant Art Chan was not charged with money laundering. at 7-14. Co-defendants Leon Guerrero, Capulong, and San Nicolas pleaded guilty on August 20, November 13, and November 7, 2023, respectively, and Defendant Brown passed away on April 4, 2024, resulting in the court dismissing the charges against him on May 24, 2024. See ECF Nos. 77, 80, 82, 87-88, 160-61, 204, 209, 232.
On October 2, 2024, a grand jury returned a superseding indictment charging Defendants Marasigan, Art Chan, and Christine Chan, with a sixty-fifth count of conspiracy to commit wire fraud, in violation of 18 U.S.C. §§ 1349, 1343, and modifying certain money laundering charges to include conspiracy to commit wire fraud as a specified unlawful activity. Superseding Indictment at 1, 11-17, ECF No. 212. All the charges arise out of the Guam Shrine Club’s establishment of Hafa Adai Bingo to conduct bingo games for the stated charitable purpose of transporting children to Shriner’s Hospitals for Children in Hawai’i for medical care. Id . at 3. 3 28 1 [2] Jury selection commenced on March 13, 2025, and trial began on March 18, 2025. See Mins., ECF No. 377. After the Government rested its case on May 1, 2025, all defendants orally moved for judgment of acquittal on May 2, 2025. See ECF Nos. 511, 523. The court denied the motions with respect to Counts 1 to 64 but held the motions under advisement for Count 65. See ECF Nos. 519, 523; see also ECF Nos. 509-10, 513-15, 517. On May 5, 2025, the court denied the remaining motions. See Mins., ECF No. 523. Thereafter, the defendants rested without putting on evidence.
Closing statements were given by all parties on May 6, 2025, and the Government gave a rebuttal statement on May 7, 2025. [3] See ECF Nos. 524, 525. The court read closing jury instructions on May 7, 2025, and the jury retired to deliberate the same day. Mins., ECF No. 525; see also ECF Nos. 526-27. After about five days of deliberating, the jury returned its verdict on May 13, 2025, finding the three defendants guilty on all counts. [4] Mins., ECF No. 533; see also ECF Nos. 535-37. The court discharged the jury thereafter. Mins., ECF No. 533.
Also relevant to this Decision and Order, the jurors gave a thank-you card to a Clerk’s Office staff member who then provided it to the undersigned on May 7, 2025, before the jury retired to deliberate but after court was adjourned. See Clerk’s Notice, ECF No. 539. The thank- you card consists of a colored-in heart and flowers and is addressed to the undersigned judge and 4 28 1 four Clerk’s Office staff members: the jury administrator, courtroom deputies, and court reporter. See id. The card is from “The Best Jurors” and dated “Feb 25 - Eternity.” [5] The jurors also individually signed the card, and many wrote short messages expressing their gratitude for “care and kindness,” “generosity and care,” and “hospitality” during their service. The court disclosed the thank-you card to the parties at the next hearing on May 13, 2025, and made the card available for inspection before the Clerk’s Office scanned and docketed it. See Tr. at 4:5- 4:16, ECF No. 541; Clerk’s Notice, ECF No. 539.
On May 27, 2025, Defendant Art Chan filed a Motion for New Trial Under Rule 33, ECF No. 547, which was joined by Defendants Marasigan and Christine Chan. [6] ECF Nos. 550, 555. On May 30, 2025, Defendant Art Chan filed a Motion for Acquittal Under Rule 29 and Motion for New Trial Under Rule 33, ECF No. 554, which was also joined by Defendants Marasigan and Christine Chan. [7] ECF Nos. 556, 558. Also on May 30, 2025, Defendant Marasigan filed a Motion for Acquittal or in the Alternative for Evidentiary Hearing and New Trial, ECF No. 557, which was joined by Defendant Art Chan. ECF No. 561. The Government opposed each of these motions, ECF Nos. 562, 566-67, and Defendants Arthur Chan and Marasigan filed replies. ECF Nos. 568, 572-73. Pending disposition of these motions, Defendants Marasigan, Art Chan, and Christine Chan are scheduled to be sentenced on November 3, 2025. [8] Order, ECF No. 578. 5 28 II. Defendant Marasigan’s Absence
Before turning to the pending motions, the court notes that as of the date of this Decision and Order, Defendant Marasigan has failed to return to Guam from the Philippines in violation of this court’s order that he do so by June 20, 2025. See ECF Nos. 576, 579; see also ECF No. 553. On August 14, 2025, the Government filed supplemental authority in support of its opposition to Defendant Marasigan’s post-trial motions, arguing that the court should invoke the fugitive disentitlement doctrine and deny the pending motion on that ground. Brief, ECF No. 592.
Under Federal Rule of Criminal Procedure 43(a), a defendant must be present at certain stages of criminal proceedings, including at trial and sentencing. F ED . R. C RIM . P. 43(a)(2)-(3); see also United States v. Ornelas , 828 F.3d 1018, 1021 (9th Cir. 2016). And “[t]he Supreme Court has recognized that ‘the right to personal presence at all critical stages of the trial . . . [is a] fundamental right[] of each criminal defendant.” La Crosse v. Kernan , 244 F.3d 702, 707-08 (9th Cir. 2001) (quoting Rushen v. Spain , 464 U.S. 114, 118 (1983)); see also Illinois v. Allen , 397 U.S. 337, 388 (1970). However, this rule does not apply to the resolution of post-trial motions, particularly where the defendant is voluntarily absent. F ED . R. C RIM P. 43(a) advisory committee’s note to 1944 amendment (citing United States v. Lynch , 132 F.2d 111 (3d Cir. 1942)). Although the court agrees with the Government that there may be grounds upon which it can invoke the fugitive disentitlement doctrine to deny Defendant Marasigan’s post-trial motions, it declines to do so here. Therefore, Defendant Marasigan’s presence is not required for the court to resolve his outstanding motion.
The court does, however, agree with the Government that Defendant Marasigan may be sentenced in absentia . Brief at 2 n.1, ECF No. 592 (citing United States v. Ornelas , 828 F.3d 1018, 1021-22 (9th Cir. 2016)); see also F ED . R. C RIM . P. 43(c)(1)(B); see also See F ED . R. C RIM P. 43(a) advisory committee’s note to 1944 amendment (citing III. Legal Standards
A. Motion for Judgment of Acquittal Under Federal Rule of Criminal Procedure 29, “the court on the defendant’s motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.” F ED . R. C RIM . P. 29(a). Motions for judgment of acquittal must be brought or renewed “within 14 days after a guilty verdict, or after the court discharges the jury, whichever is later.” F ED . R. C RIM . P. 29(c)(1). If the jury returned a guilty verdict, the court may set aside that verdict. F ED . R. C RIM . P. 29(c)(2).
The court reviews motions for judgment of acquittal under a sufficiency-of-the-evidence standard, i.e., “evidence supports a conviction, if, viewed in the light most favorable to the government, it would allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.” United States v. Graf , 610 F.3d 1148, 1166 (9th Cir. 2010) (quoting United States v. Stoddard , 150 F.3d 1140, 1144 (9th Cir. 1998)); see also United States v. Nevils , 598 F.3d 1158, 1163-64 (9th Cir. 2010) (discussing two-step inquiry for considering challenges to sufficiency of the evidence under Jackson v. Virginia , 443 U.S. 307, 319 (1979)). “In ruling on a Rule 29(c) motion, a district court must bear in mind that ‘it is the exclusive function of the jury to determine the credibility of the witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts.’” United States v. Rojas , 554 F.2d 938, 943 (9th Cir. 1977), supplemented by 574 F.2d 476 (9th Cir. 1978), (quoting United States v. Nelson , 419 F.2d 1237, 1241 (9th Cir. 1969)); see also United States v. Alvarez-Valenzuela , 231 F.3d 1198, 1201- 02 (9th Cir. 2000) (“[A]ny conflicts in the evidence are to be resolved in favor of the jury’s United States v. Lynch , 132 F.2d 111 (3d Cir. 1942)); F ED . R. C RIM . P. 43(b) advisory committee’s note to 1995 amendment (explaining that “[d]elay in conducting the sentencing hearing under such circumstances may result in difficulty later in gathering and presenting the evidence necessary to form a guideline sentence”). verdict.”). “The hurdle to overturn a jury’s conviction based on a sufficiency of the evidence challenge is high.” United States v. Rocha , 598 F.3d 1144, 1153 (9th Cir. 2010).
B. Motion for New Trial Under Federal Rule of Criminal Procedure 33, “[u]pon the defendant’s motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” F ED . R. C RIM . P. 33(a). A district court’s authority to grant a new trial is broader than its authority to grant a motion for judgment of acquittal. United States v. Alston , 974 F.2d 1206, 1211 (9th Cir. 1992). “The court is not obliged to view the evidence in the light most favorable to the verdict, and it is free to weigh the evidence and evaluate for itself the credibility of the witnesses.” United States v. Kellington , 217 F.3d 1084, 1097 (9th Cir. 2000) (citing Alston , 974 F.2d at 1211). Nonetheless, a new trial “should be granted ‘only in exceptional cases in which the evidence preponderates heavily against the verdict.’” United States v. Pimentel , 654 F.2d 538, 545 (9th Cir. 1981) (citation omitted). Before granting a motion for new trial, the court must conclude that “a serious miscarriage of justice may have occurred.” Alston , 974 F.2d at 1211-12.
IV. Discussion
A. Motions for Judgment of Acquittal Defendant Marasigan moves for judgment of acquittal on Count 1, Conspiracy to Operate Illegal Gambling Business, arguing that the Government “failed to submit sufficient evidence or legal argument allowing the Jury or Court to reasonably conclude that bingo is illegal on Guam.” Mot. at 2-3, ECF No. 557. The motion is joined by Defendant Art Chan. ECF No. 561. Defendant Art Chan also moves for a judgment of acquittal on Count 65, Conspiracy to Commit Wire Fraud, on two grounds: (1) the Government presented no evidence that established Art Chan contemplated or caused actual harm to any alleged victims, and (2) “no reasonable jury based on the evidence presented could have found that a misrepresentation occurred.” Mot. at 5- 8, ECF No. 554. This motion is joined by Defendants Marasigan and Christine Chan. ECF Nos. 556, 558.
1. Conspiracy to Operate Illegal Gambling Business First, for the jury to have found the defendants guilty of conspiracy to operate illegal gambling business, it had to find that the Government proved each of the following elements beyond a reasonable doubt:
First, beginning on or about March 2015, and ending on or about December 31, 2021, there was an agreement between two or more persons to operate illegal gambling business as charged in the superseding indictment;
Second, the defendant became a member of the conspiracy knowing of at least one of its objects and intending to help accomplish it; and Third, one of the members of the conspiracy performed at least one overt act on or after March 2015 for the purpose of carrying out the conspiracy.
Jury Instr. No. 9, ECF No. 527; see also 18 U.S.C. § 371. The court instructed the jury on the elements of 18 U.S.C. § 1955(a), as the object of the conspiracy. Jury Instr. at 13, ECF No. 527. The second element stated: “Second, that the bingo games are illegal gambling in Guam.” That same instruction included the following:
As to the second element, gambling is illegal on Guam if a person (1) makes or accepts a wager involving money or anything of monetary value upon the result of a game or contest, or (2) holds any money or anything of monetary value which he knows has been wagered in violation of (1).
“Bingo games” means a specific game of chance, commonly known as “bingo,” in which prizes are awarded on the basis of designated numbers or symbols on a card conforming two numbers or symbols selected at random.
Jury Instr. No. 10, ECF No. 527. The substance of these definitions derives from 9 G UAM C ODE A NN . §§ 64.10(a), 64.70(f)(1). Immediately after this instruction, the court instructed the jury on the defendants’ affirmative defense, which was based on 9 G UAM C ODE A NN . § 64.70(a): Even if you find that the Government has proven each of the elements in Court’s Instruction No. 9 beyond a reasonable doubt, you must find the defendant not guilty if the defendant proves by a preponderance of the evidence:
First, the gambling activities were sponsored, promoted, and conducted by the Guam Shrine Club, and
Second, the Guam Shrine Club was issued a permit by the Director of the Department of Revenue and Taxation to conduct such activities.
A preponderance of the evidence means that you must be persuaded that the things the defendant seeks to prove are more probably true than not true. This is a lesser burden of proof than the government’s burden to prove beyond a reasonable doubt each element of conspiracy to operate illegal gambling.
Jury Instr. No. 14, ECF No. 527; see also Jury Instr. Nos. 12-14, ECF No. 527 (defining “sponsored,” “conducted,” and “promoted”); Jury Instr. No. 15, ECF No. 527 (instructing jurors on the duration of permits to conduct gambling activities).
Defendant Marasigan argues that the Government did not provide sufficient evidence for the jury to conclude that bingo is illegal in Guam. Mot. at 1-3, ECF No. 557. This argument relies on two arguments previously addressed by the court: (1) that bingo is not illegal gambling in Guam, and (2) that the Government cannot prove that gambling is illegal in Guam by introducing evidence of issues in the permitting process. Mot. at 2, ECF No. 557. In opposition, the Government accurately recites the content of the jury instructions, emphasizing the definition of illegal gambling provided above and noting that the jury considered and rejected this affirmative defense. Opp’n at 1-2, ECF No. 567. However, the Government’s analysis stops there. Defendant Marasigan picks up on this but does not sufficiently address the fact that the jury was instructed on the types of gambling activities made illegal under 9 G UAM C ODE A NN . § 64.10(a). Reply, ECF No. 573.
28 What the Government quotes, but does not make explicit, is that the jury was clearly instructed on how to find whether bingo games are illegal gambling in Guam. See Jury Instr. No. 10, ECF No. 527; see also G UAM C ODE A NN . §§ 64.10(a), 64.70(f)(1). The instruction informed the jury of how to evaluate whether the gambling activities involved making or accepting “a wager involving money or anything of monetary value upon the result of a game or contest” or involved holding “any money or anything of monetary value” known to be wagered upon the result of a game or contest. Jury Instr. No. 10, ECF No. 527. If the jury found one or both conditions from the evidence, then it could properly find that the gambling activities were illegal in Guam. See also 9 G UAM C ODE A NN . § 64.10. The Government introduced exhibits, and all parties elicited testimony that supports this conclusion. For example, bingo players Geraldine Borja and Marie Pinaula Leon Guerrero Duenas testified about paying the Guam Shrine Club to play bingo games, about actually playing bingo games at Hafa Adai Bingo, and about the possibility of winning or losing money as a result. E.g. , Tr. at 6:14-7:15, 12:19- 15:4, ECF No. 488; Tr. at 6:5-8:2, 9:16-12:2, ECF No. 489. Co-conspirators Minda San Nicolas and Juanita Capulong testified about counting the proceeds held by the Guam Shrine Club from Hafa Adai Bingo with Christine and Art Chan. E.g. , Tr. at 42:6-42:10, ECF No. 493. The Government introduced exhibits that showed permits issued to Guam Shrine Club by the Department of Revenue and Taxation to conduct bingo and the gross deposits of bingo proceeds collected and held (accompanied by analyses of those accounts). E.g. , Gov’t Exs. 1, 4, 6, 109; see also Gov’ts Ex. 107 (identifying stipulated-to financial records). The Government also introduced advertisements, such as a YouTube video and a newspaper article, that advertised the Hafa Adai Bingo, the bingo games, and the prizes. E.g. , Gov’ts Exs. 78, 79. The list goes on.
Defendant Marasigan does not address this evidence. Instead, he re-argues points that the 11 28 1 court previously rejected. As to his first argument, the court has already held that bingo games can constitute illegal gambling on Guam under 9 G UAM C ODE A NN . § 64.10(a). E.g. , Order, at 1- 2, ECF No. 380. The court has also held that 9 G UAM C ODE A NN . § 64.70(a) provides an exception to that prohibition, which is to be interpreted as an affirmative defense. As to Defendant Marasigan’s second argument, the Government’s evidence and the court’s jury instructions are consistent with the court’s prior ruling that the Government could not introduce—and the jury should not consider—evidence of whether the permits to conduct gambling activities were properly issued or should have been revoked by the Director of the Department of Revenue and Taxation. See Order at 1 n.1, ECF No. 380; Jury Instr. at 14, 18, ECF No. 527. The Government did not introduce evidence to prove that point and, instead, submitted evidence sufficient for a rational jury to find that the bingo games constituted illegal gambling in Guam.
Relatedly, the Government argues that in finding the defendants guilty of conspiracy to operate an illegal gambling business, the jury “considered and rejected” the defendants’ affirmative defense. See Opp’n at 2, ECF No. 567. The court agrees. If the jury found the defendants guilty of Count 1, the jury was instructed to consider whether the defendants should be found not guilty because they were entitled to the affirmative defense. Jury Instr. No. 11, ECF No. 527. Because Defendant Marasigan does not appear to dispute the evidence presented to the jury on the defendants’ affirmative defense, the court will only address this point briefly. A 12 28 jury’s verdict is entitled to substantial deference, particularly given that it is “the exclusive function of the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts.” See United States v. Dreitzler , 577 F.2d 539, 545 (9th Cir. 1978) (quotation omitted). The Government introduced ample evidence that would allow a rational jury to conclude that the defendants were not entitled to the affirmative defense claimed. For example, although the Government introduced evidence of the permits issued to the Guam Shrine Club to conduct bingo games, the Government also introduced evidence of the gaps in time periods between those permits, accompanied by related testimony from agent Dawn Wandschneider. See, e.g. , Gov’t Exs. 1, 109. Co-conspirators Won Sun Min, Minda San Nicolas, and Juanita Capulong testified about being approached by Defendant Marasigan to invest in or provide services to Hafa Adai Bingo and how they would be paid, this was further supported by checks and financial statements showing the same. See, e.g. , Tr. at 12:10-14:5, ECF No. 493; Gov’t Exs. 12, 14, 15, 16, 17, 18, 20, 21. Bingo player Geraldine Borja also testified about Defendant Marasigan being the “manager” of Hafa Adai Bingo because “[e]verybody saying he was.” Tr. at 11:17-12:17, 27:15-29:2, ECF No. 488.
In short, Defendant Marasigan’s reliance on old arguments without addressing the evidence presented at trial or the jury instructions provided does not warrant judgment of acquittal on Count 1. Viewing the evidence in the light most favorable to the Government, the evidence presented at trial would allow any rational trier of fact to find that the bingo games constituted illegal gambling in Guam. Therefore, Defendant Marasigan’s motion for judgment of acquittal on Count 1 is DENIED .
2. Conspiracy to Commit Wire Fraud
For the jury to have found the defendants guilty of conspiracy to commit wire fraud, it had to find that the Government proved both of the following beyond a reasonable doubt:
First, beginning on or about March 2015, and ending on or about December 31, 2021, there was an agreement between two or more persons to commit wire fraud as charged in the superseding indictment; Second, the defendant became a member of the conspiracy knowing of at least one of its objects and intending to help accomplish it.
Jury Instr. No. 22, ECF No. 527; see also 18 U.S.C. § 1349. The court instructed the jury on the elements of 18 U.S.C. § 1343, as the object of the conspiracy. Jury Instr. No. 23, ECF No. 527. The instruction stated:
First, a person knowingly participated in, devised, or intended to devise a scheme or plan to defraud bingo players for the purpose of obtaining money or property by means of false or fraudulent pretenses, representations, or promises. Deceitful statements of half-truths may constitute false or fraudulent representations;
Second, the statements made as part of the scheme were material; that is, they had a natural tendency to influence, or were capable of influencing, bingo players to part with money or property;
Third, the person acted with the intent to defraud, that is, the intent to deceive and cheat bingo players; and
Fourth, the person used, or caused to be used, an interstate or foreign wire communication to carry out or attempt to carry out an essential part of the scheme.
Id. The instruction explained that the jury “may consider not only a person’s words and statements but also the circumstances in which they are used as a whole.” Id. The instruction also explained that misrepresentations must “deceive the victim about the nature of the bargain.”
Defendant Art Chan argues that the court should grant judgment of acquittal on Count 65 for two reasons: (1) he “never contemplated nor caused actual harm” because the bingo players “received exactly what they paid for” and were not deceived about the nature of the bargain; and (2) he “never made a misrepresentation about the bingo games” (i.e., there was no evidence of a misrepresentation about where the proceeds would go). Mot. at 5, ECF No. 554. In opposition, the Government argues that the evidence showed that “[t]he defendants misled bingo players into believing that their money would be used to fulfill the Guam Shrine Club’s . . . charitable mission,” as evidenced by distribution checks to co-conspirator Won Sun Min and Defendant Marasigan, as well as Defendant Marasigan’s diversion of bingo proceeds to himself, Defendant Christine Chan and co-conspirators Juanita Capulong and Minda San Nicolas. Opp’n at 3, ECF No. 566. The Government also argues that the evidence clearly shows that a misrepresentation occurred. Id . at 4. In support, the Government identifies evidence that shows Defendant Art Chan’s position as Vice President and President of the Guam Shrine Club, that Guam Shrine Club established Hafa Adai Bingo to conduct bingo games for a charitable purpose, and that Guam Shrine Club contracted with Defendant Marasigan’s company, Ideal Ventures, which then used the proceeds to make payments to co-conspirators and Defendant Christine Chan. Id. The Government also identifies testimony from co-conspirators Alfredo D. Leon Guerrero and Juanita Capulong about how the defendants routinely attended the bingo games and that Defendant Art Chan would “meet and greet bingo players if he wasn’t otherwise helping Christine Chan count the money in the back room.” Id. Finally, the Government identifies advertisements issued by Guam Shrine Club about fundraising for a charitable purpose through Hafa Adai Bingo. (citing Gov’t Exs. 77-3, 78-2). In reply, Defendant Art Chan reemphasizes his argument that the Government failed to prove harm because “if the bingo players knew that the representations were false, they would not have spent their money,” and “[w]ithout this proof, there could be no injury.” Reply at 2, ECF No. 572 (describing testimony from bingo players that “they would have played even if they knew some of the monies did not go to the charitable purpose”). Defendant Art Chan also argues that the Government failed to prove materiality, i.e., “but-for the representations made by Mr. Chan and other defendants, the bingo players would not have participated and spent money at the bingo games.” Id. at 3 (citing portions of the bingo players’ testimony). Finally, Defendant Art Chan argues that the fact that some of the proceeds went to a charitable purpose defeats the Government’s argument about the bingo games not being conducted for a charitable purpose and, therefore, no reasonable juror could have concluded otherwise. Id. at 4.
The court agrees with the Government. Here, the Government was required to prove a conspiracy to commit wire fraud. In doing so, “[t]he Government need not provide direct evidence of all the elements of the crime; circumstantial evidence and reasonable inferences drawn therefrom can be sufficient to sustain a conviction.” United States v. Castro , No. 2:19-cr- 00295-GMN-NKJ, 2023 WL 4052429, at *4 (D. Nev. June 15, 2023) (citing United States v. Cordova Barajas , 360 F.3d 1037, 1041 (9th Cir. 2004); United States v. Reyes-Alvarado , 963 F.3d 1184, 1188 (9th Cir. 2012)). In the context of a conspiracy charge, an agreement may be inferred from circumstantial evidence. United States v. Hubbard , 96 F.3d 1223, 1226 (9th Cir. 1996). Although “mere association with members of the conspiracy” is insufficient, once a conspiracy is established, only a slight connection is necessary to convict the defendant. Id. The relevant inquiry at this stage is “whether the jury could reasonably arrive at its verdict,” “not whether the evidence excludes every hypothesis except guilt.” (citing United States v. Dinkane , 17 F.3d 1192, 1996 (9th Cir. 1994)).
Considering the evidence as a whole, rather than in isolation, and even if the Government introduced a large body of circumstantial evidence on the points identified by Defendant Art Chan, the court finds that the evidence presented to the jury was sufficient for it to determine whether the defendants were guilty of conspiracy to commit wire fraud. It is within the sound discretion of the jury to weigh the credibility of the witnesses, such as the bingo players, and to situate their testimony in the broader context of the evidence presented. Here, the jury evaluated evidence presented about Guam Shrine Club’s and others’ representations about Hafa Adai Bingo and Guam Shrine Club’s charitable purpose. E.g. , Gov’t Exs. 1, 77-79, 102; Tr. at 15:13- 15:25, 63:9-68:12, 74:8-77:3, ECF No. 465. For example, bingo player Geraldine Borja testified about the bingo games’ charitable purpose and how she played there because she “really like[d] the non-profit and they were helping the Shriners, helping the children.” Tr. at 7:16-13:25, 20:3- 24:20, 27:7-29:20, ECF No. 488; see also Tr. at 6:19-7:7, 8:12-10:4, 13:3-15:25, 17:7-18:4, 26:13-27:13, 31:3-31:17, ECF No. 489. The jury evaluated evidence of Defendants Art Chan and Marasigan’s roles in running the Guam Shrine Club and Hafa Adai Bingo and the payments to Defendant Christine Chan and her role in counting proceeds. E.g. , Gov’t Exs. 13-17, 22-23, 33, 35, 53-54, 76, 103; Tr. at 27:20-28:4, 30:8-31:22, 47:19-49:6, 81:18-87:20, ECF No. 465; Tr. at Tr. at 7:16-13:25, ECF No. 488. The jury also evaluated the substantial amounts of money proven to not have gone to the Aloha Shriners for the transportation of children even if some children had been sent to Hawai’i for treatment. See, e.g. , Gov’t Exs. 12-33, 35, 37-39, 52-54, 76, 81-92, 103-104. 108-09; Tr. at 88:10-90:11, 166:4-170:21, ECF No. 465. The evidence provided a sufficient basis for the jury to conclude that the defendants were guilty of conspiracy to commit wire fraud and, more specifically, that the bingo players did not “receive exactly what they paid for” and that misrepresentations were made about how bingo proceeds would be used. The court does not find that the bingo players’ testimony in isolation provides a sufficient basis to conclude that acquittal is warranted on Count 65.
17 28 1 In short, the evidence presented at trial would allow any rational trier of fact to find the essential elements of conspiracy to commit wire fraud beyond a reasonable doubt. Therefore, Defendant Art Chan’s motion for judgment of acquittal on Count 65 is DENIED .
B. Motions for New Trial Defendant Art Chan argues that a new trial is required for three reasons: (1) the Government constructively amended the Superseding Indictment by “shifting its theories of guilt never proved to any Grand Jury” for Counts 1 and 65; (2) the Government argued, and the court did not stop it from arguing, theories regarding the Defendants’ receipt of large sums of money as proof of guilt that was outside the scope of the Superseding Indictment, which amounted to a fatal variance; and (3) the court “engaged in ex parte communication with the jury” when it received a thank-you note from the jurors. Mot. at 5-12, ECF No. 547; Mot. at 8-10, ECF No. 554. These motions are joined by Defendants Marasigan and Christine Chan. [12] ECF Nos. 550, 555, 556, 558. Defendant Marasigan also moves for a new trial on the basis that the thank-you card from the jurors constitutes jury misconduct. [13] See Mot. at 2-4, ECF No. 557. This motion is joined by Defendant Art Chan. ECF No. 561.
1. Constructive Amendment and Fatal Variance: Counts 1 and 65 A constructive amendment occurs when the government or the court, either literally or in effect, alters the charging terms of the indictment “after the grand jury has last passed upon them.” United States v. Adamson , 291 F.3d 606, 614 (9th Cir. 2002); see also United States v. Bellot , 113 F.4th 1151, 1154 (9th Cir. 2024) (quoting United States v. Singh , 995 F.3d 1069, 1078-79 (9th Cir. 2021)). A variance occurs when “the evidence offered at trial proves facts materially different from those alleged in the indictment.” Adamson , 291 F.3d at 614; see also Bellot , 113 F.4th at 1154 (citing Singh , 995 F.3d at 1078-79). Because “[t]he line between a constructive amendment and a variance is at times difficult to draw,” the Ninth Circuit, in Adamson , clarified how each has been found. A constructive amendment may exist where “(1) ‘there is complex of facts [presented at trial] distinctly different from those set forth in the charging instrument,’ or (2) ‘the crime charged [in the indictment] was substantially altered at trial, so that it was impossible to know whether the grand jury would have indicted for the crime actually proved.’” Adamson , 291 F.3d at 615 (quoting United States v. Von Stoll , 726 F.2d at 586) (collecting cases). “Although a constructive amendment usually involves a complex of facts, we have generally found a variance where the indictment and the proof involve only a single, though materially different, set of facts.” Id . (collecting cases).
Defendant Art Chan argues both constructive amendment and fatal variance on Counts 1 and 65. Mot. at 5-10, ECF No. 547; Mot. at 8-10, ECF No. 554. Both theories include a common argument: that the Government argued and relied on evidence of the large sums of money earned in this case to prove that Defendant Art Chan (and the other defendants) committed conspiracy to operate illegal gambling and conspiracy to commit wire fraud, which is different from how those counts are charged in the Superseding Indictment. E.g. , Mot. at 6, ECF No. 547; Mot. at 9, ECF No. 554. For Count 1, Defendant Art Chan also specifies that the charges in the Superseding Indictment shifted from permit violations under 9 G UAM C ODE A NN . § 64.70 and the improper filing of Form 990s to excessive amounts of money earned as proof of 19 28 illegal gambling activities. See Mot. at 6, ECF No. 547. For Count 65, Defendant Art Chan argues that instead of proving that he misrepresented that bingo games were conducted for a charitable purpose, the Government argued that the defendants failed to disclose material facts to the bingo players about how the proceeds would be used instead of misrepresenting the charitable purpose. E.g. , Mot. at 9, ECF No. 554. The Government disagrees with these arguments. Broadly, the Government argues that essential elements of the crimes charged in the Superseding Indictment were accurately given in the jury instructions, and that the proof offered at trial aligned with the charged conspiracies. See Opp’n at 3, ECF No. 562; Opp’n at 6-7, ECF No. 566.
The court agrees with the Government that there was no constructive amendment or variance on Count 1 or Count 65 because the evidence offered at trial was consistent with the conduct charged in the Superseding Indictment.
i. Count 1: Conspiracy to Operate Illegal Gambling Business In Count 1, the Government charged the defendants with conspiracy to operate an illegal gambling business. Superseding Indictment at 3-4, ECF No. 212. The Superseding Indictment specified that the objects of the conspiracy were that the defendants would “unjustly enrich themselves and others by operating an illegal gambling business under the guise of charitable and civic fundraising,” Defendants Marasigan and Christine Chan would “maintain[] and control[] financial accounts under their names and business entities,” Defendant Art Chan would be an “authorized signator[y] on various [Guam Shrine Club] bank and credit union accounts which they used to pay profit distribution checks to co-conspirators, and Defendant Marasigan would pay co-conspirators from funds derived from illegal gambling,” among other objects. Id. at 4-5. Alleged overt acts in furtherance of this conspiracy included that Defendants Marasigan and Art Chan falsely represented that Defendant Marasigan “would act as a consultant when the [Guam Shrine Club] hosted bingo fundraisers, when in fact [Defendant Art Chan] well knew that [Defendant Marasigan] and others would conduct, finance, manage, supervise, or direct the [Guam Shrine Club]’s bingo fundraising activities,” that Defendant Art Chan opened checking accounts in the Guam Shrine Club’s name and “executed a five-year term Bingo Sponsorship Agreement with Won Sun Min to conduct bingo games at the Guam Greyhound Park in Tamuning,” and that Defendants Marasigan and Christine Chan “invested monies in the operation of Hafa Adai Bingo.” at 5-7.
Although the Superseding Indictment also alleged overt acts related to the signing and submission of Form 990s and referenced certain subsections of 9 G UAM C ODE A NN . § 64.70 in its introduction, the fact that the Government did not present evidence in support of these allegations and, instead, introduced evidence well within the scope of the charged offense, its objects, and its overt acts makes clear that the Government did not present a distinctly or materially different set of facts at trial than those alleged in the Indictment. See id. at 1-7. For example, the Government presented evidence about the Guam Shrine Club’s charitable purpose through fundraising applications, advertisements, and various witness testimony. E.g. , Gov’t Exs. 1, 77-79; Tr. at 16:3-20:3, ECF No. 431; Tr. at 7:16-13:17, 20:3-21:25, ECF No. 488. The Government also presented evidence on the investments by co-conspirators and Defendants Marasigan and Christine Chan in Guam Shrine Club and the payments made to co-conspirators and Defendants Marasigan and Christine Chan and their entities from the bingo proceeds. E.g. , Gov’t Exs. 12-39, 53-54, 82-92; Tr. at 46:23-62:15, 88:24-90:11, ECF No. 465. The Government then presented evidence of Defendant Art Chan’s status as an authorized signatory for Guam Shrine Club through various exhibits and Guam Shrine Club’s arrangement with Defendant Marasigan to manage the bingo games through various exhibits and testimony. E.g. , Gov’t Ex. 76; Tr. at 30:10-31:6, 122:5-123:18, ECF No. 465. And the Government presented evidence of a sponsorship agreement for the bingo games with co-conspirator Won Sun Min. E.g. , Gov’t Ex. 51; Tr. at 7:16-13:17, 20:3-21:25, ECF No. 488.
The evidence presented at trial is consistent with the conduct charged in Count 1 of the Superseding Indictment, and the court finds that the Government’s case did not stray from the charges by substantially altering the terms of the Superseding Indictment or presenting materially different evidence. Furthermore, the jury instructions clearly state the applicable law and do not support Defendant Art Chan’s view that the Government proved a crime that was different than that presented to the Grand Jury. Jury Instr. Nos. 9-10, ECF No. 527; Superseding Indictment at 3-7, ECF No. 212. Accordingly, Defendant Art Chan’s motion for new trial is DENIED as to Count 1.
ii. Count 65: Conspiracy to Commit Wire Fraud In Count 65, the Government charged the defendants with conspiracy to commit wire fraud. Superseding Indictment at 15, ECF No. 212. The Superseding Indictment alleged that the objects of the conspiracy included that the defendants would “unjustly enrich themselves and others by fraudulently obtaining bingo and conspiracy to commit wire fraud proceeds.” at 16. The Superseding Indictment also alleged that Defendant Art Chan “misrepresented and caused to misrepresent to Guam DRT that the purpose of Guam Shrine Club’s bingo games was to provide transportation of ill children to Shriner’s Hospital in Hawaii,” as well as that Defendants Marasigan, Art Chan, and Christine Chan “misrepresented and caused to misrepresent to potential and current bingo players that the bingo games were conducted to support a charitable purpose.” Id. The allegations included that Defendant Marasigan’s management of the bingo games was part of the conspiracy and that interstate wire communications were facilitated through a payment processor and by sending money to and from various financial accounts. The Superseding Indictment then alleges several overt acts, including that Defendant Art Chan caused applications for bingo permits to be submitted to the Department of Revenue and Tax to conduct bingo games between 2016 and 2020, and that Defendant Christine Chan and co- conspirators Minda San Nicolas and Juanita Capulong counted money for the bingo payouts. Id. at 16-17.
At trial, the Government did not substantially alter its theory of conspiracy to commit wire fraud or present a distinctly different set of facts from the allegations in Count 65. In fact, there was ample evidence presented to the jury on these exact allegations. For example, the Government introduced evidence about the proceeds distributed to co-conspirators Won Sun Min, Minda San Nicolas, and Juanita Capulong and Defendants Marasigan and Christine Chan. Gov’t Exs. 12-23. The Government introduced evidence of the bingo permits applied for and issued by the Guam Department of Revenue and Taxation that indicated Guam Shrine Club’s charitable purpose and the net proceeds received from Hafa Adai Bingo and how those funds were collected and used. E.g. , Gov’t Exs. 1-2, 4, 6, 81-86, 88-92; 88:24-90:11, 122:5-123:18, ECF No. 465. The Government then introduced evidence of Defendant Art Chan’s signing of checks and other documents on behalf of the Guam Shrine Club regarding the use of funds from the bingo games and of Defendant Marasigan’s management of the bingo games. E.g. , Tr. at 30:10-31:6, 46:23-62:15, ECF No. 465. The Government introduced further evidence about the charitable purpose of the bingo games, and co-conspirators testified about Defendants Christine Chan and Art Chan counting bingo proceeds with co-conspirators Minda San Nicolas and Juanita Capulong. E.g. , Gov’t Exs. 77-79; Tr. at 7:16-13:25, 20:3-24:20, ECF No. 488; Tr. at 6:19-7:7, 8:12-10:4, 13:3-15:25, ECF No. 489. Unlike Defendant Art Chan contends, the Government did not rely exclusively on the amount of bingo proceeds from the Guam Shrine Club during trial to prove conspiracy to commit wire fraud. The Government also did not present theories that strayed from the conduct charged in Count 65. Even when the court does not view the evidence in the light most favorable to the verdict and evaluates witness credibility and the weight of the evidence on its own, the court finds that the evidence presented by the Government was sufficiently tailored to the charges in the Superseding Indictment and does not warrant granting a new trial.
Moreover, an indictment “need not specify the theories or evidence upon which the government will rely.” United States v. Cochrane , 985 F.2d 1027, 1031 (9th Cir. 1993). The Government may also forgo “allegations which are unnecessary to an offense this is clearly contained within [the indictment].” United States v. Miller , 471 U.S. 130, 136 (1985). Any arguments by the Government on the issue of whether Defendant Art Chan or the other defendants should have disclosed certain facts about the purpose of the bingo games does not literally or effectively substantially alter the terms of the Superseding Indictment, nor does it present facts materially different from those alleged. Furthermore, the jury instructions clearly instruct the jury on the applicable law, particularly with respect to how a misrepresentation must go to the nature of the bargain. Jury Instr. No. 22-23, ECF No. 527.
Therefore, the court does not find sufficient reason or support to conclude that the Government constructively amended the Superseding Indictment during trial on Count 65. Accordingly, Defendant Art Chan’s motion for new trial based on constructive amendment is DENIED on both counts.
2. Thank-you Card Finally, Defendant Art Chan argues that the court must grant a new trial because “the [c]ourt engaged in ex parte communication with the jury” when it received a thank-you card from the jurors before they retired to deliberate. Mot. at 10, ECF No. 547. In support, he argues that the thank-you card demonstrates that the jurors “formed an opinion about the case prior to reaching the verdict” by using the term “eternity” in reference to the length of the trial. Id. at 11. Defendant Art Chan also requests an evidentiary hearing if the court determines that the thank- you card does not constitute an ex parte communication. Defendant Marasigan, without citing a single case, similarly argues a new trial is warranted on this ground, but more fervently asserts that an evidentiary hearing is necessary to fill in “the factual blanks.” Mot. at 3-4, ECF No. 557. The Government opposes these motions, arguing that the thank-you card does not warrant a new trial because it “does not pertain to ‘any fact in controversy or any law applicable to the case.’” Opp’n at 4-5, ECF No. 562 (citing Rushen , 464 U.S. at 121); see also Opp’n at 2-3, ECF No. 567. In reply, Defendant Art Chan also notes that the printed statement on the back of the thank- you card was “Published by Christian Art Publishers” and “Cover designed by Christian Art Gifts” presents additional concerns about the influence of “Christianity or religion” during deliberations. Reply at 4, ECF No. 568.
“The Sixth Amendment guarantees a criminal defendant a fair trial by a panel of impartial jurors who can ‘lay aside [their] impression[s] or opinion[s] and render a verdict based on the evidence presented in court.’” Brown v. Attorney General for State of Nevada , 140 F.4th 1069, 1075 (9th Cir. June 12, 2025) (quoting Irvin v. Dowd , 366 U.S. 717, 723 (1961)). However, a new trial is not required “every time a juror has been placed in a potentially compromising situation . . . because it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.” Rushen , 464 U.S. at 118. “[N]ot every incident of a juror’s ex parte contact . . . constitute[s] actual prejudice.” United States v. Maree , 934 F.2d 196, 201 (9th Cir. 1991) (discussing heightened standard required new trial based on ex parte contact where the contact does not “pertain to any fact in controversy or any law applicable to the case’”), abrogated on other grounds , United States v. Adams , 432 F.3d 1092 (9th Cir. 2006).
When an ex parte communication relates to some aspect of the trial, the trial judge generally should disclose the communication to counsel for all parties. at 119. The failure to do so “can normally be determined by a post-trial hearing,” whereby the determination to hold a hearing is decided by considering “the content of the allegations, the seriousness of the alleged misconduct or bias, and the credibility of the source.’” United States v. Brande , 329 F.3d 1173, 1176-77 (9th Cir. 2003) (citation omitted). “If these factors warrant holding a hearing, a hearing should be held unless the court already knows the ‘exact scope and nature’ of the improper contact.” Rushen , 464 U.S. at 118 (quoting United States v. Saya , 247 F.3d 929, 935 (9th Cir. 2001).
Although atypical, the thank-you card here was innocuous; it was a standalone communication from the jurors delivered to court personnel, that was disclosed to the parties, expressed gratitude, and did not refer to “any fact in controversy or law applicable to the case.” Rushen , 464 U.S. at 457. The card is not remotely similar to cases where jurors’ ex parte communications would constitute a prosaic, trial, or egregious error. See id. ; Brown , 140 F.4th at 1075-76 (collecting cases on communications that constitute each level of error). In fact, even in cases discussing ex parte communications constituting prosaic errors, the thank-you card here does not come close to the form or content of the communications discussed therein. E.g. , id. (citing Rushen , 464 U.S. at 121; United States v. Dutkel , 192 F.3d 893, 895 (9th Cir. 1999); Godoy v. Spearman , 861 F.3d 956, 967 (9th Cir. 2017)).
The thank-you card also does not communicate any clear prejudice against the defendants, nor does it evince a “potentially compromising situation” where the jurors were contacted or influenced in their deliberations. At most, the card refers to the length of the jurors’ term of service (“Feb 25 - Eternity”)—perhaps a reference to the various mid-trial continuances in this case which, out of an abundance of caution, would warrant disclosure to the parties. ECF No. 539-1; e.g. , ECF Nos. 410, 415; see also Rushen , 464 U.S. at 118. Nonetheless, defendants exaggerate the risk of prejudice arising out of this statement by failing to address how the thank- you card relates to the facts or law in this case. Defendants also speculate about how the reference to “Eternity” and the card’s publisher could potentially weigh on jury’s consideration of the evidence introduced and the law as they were instructed. However, on multiple occasions, the court instructed the jury “not [to] hold [the continuances] against either of parties or their attorneys” in addition to instructing them at each recess to “keep an open mind” and to “not form of express any opinion on this case” or “speak to anyone on any subject connected with this trial.” E.g. , Tr. at 18:21-19:5, ECF No. 450; Tr. at 20:5-21:3, ECF No. 442; cf. Richardson v. Marsh , 481 U.S. 200, 211 (1987) (discussing “the rule that juries are presumed to follow their instructions”). Religion also does not play a role in facts or law of this case, nor is the court aware of any significant reference to religion during trial. The court clearly instructed the jurors on what they may consider in reaching their verdict. Jury Instr. Nos. 1, 5-7, 30, ECF No. 527. 27 28 1 Therefore, the court does not find that the thank-you card exposes the defendants to any risk of actual prejudice.
For similar reasons, the court finds that an evidentiary hearing is not required. The defendants’ arguments make no reference to the analysis required to determine whether a hearing is warranted. In so deciding, the court must consider the content of the allegations, the seriousness of the alleged misconduct or bias, and the credibility of the source. See Brande , 329 F.3d at 1176-77. Here, the allegations of bias arise out of (1) the length of the trial, and (2) the publisher of the thank-you card. See Mot. at 11, ECF No. 547; Reply at 4, ECF No. 568. The court has already discussed why these allegations do not plausibly allege a risk of actual prejudice or concern any fact or law involved in the case. Furthermore, the court also does not find that the allegations are serious or credible. A thank-you card that expresses gratitude for “kindness,” “generosity & care,” and “delicious snacks,” and makes a reference to the length of the trial, does not show even a remote degree of seriousness regarding allegations of actual prejudice. Furthermore, beyond speculating about how the thank-you card is prejudicial, the defendants do not assert credible allegations in light of the court’s oral disclosure, the clerk’s written disclosure, the cautionary instructions given during trial, and the jury instructions given at the end of trial. Clerk’s Notice, ECF No. 539; Tr. at 4:5-4:16, ECF No. 541; Tr. at 18:21- 19:5, ECF No. 450; Tr. at 20:5-21:3, ECF No. 442; Jury Instr. Nos. 1, 5-7, 30, ECF No. 527. For these reasons, the court does not find that an evidentiary hearing is warranted.
In short, the fact that the jurors wrote a thank-you card to the undersigned and Clerk’s Office staff before retiring to deliberate neither presents an “exceptional case in which the evidence preponderates heavily against a verdict” nor supports a conclusion that “a serious miscarriage of justice may have occurred.” Pimentel , 654 F.2d at 545; Alston , 974 F.2d at 1211- 12. Therefore, the motions for new trial on this ground are DENIED .
V. Conclusion
For the reasons explained above, Defendant Art Chan and Defendant Marasigan’s motions are DENIED .
SO ORDERED. Aug 18, 2025
[1] Page citations throughout this Decision and Order refer to CM/ECF-generated page numbers.
[2] Unlike Defendants Art and Christine Chan, Defendant Marasigan’s counsels opted to reserve their client’s opening 20 statement. However, at the close of the Government’s case, counsels decided to rest their case and only gave a closing statement. See ECF No. 403, 523, 542. 21
[3] Although jury selection began on March 13, 2025, and closing statements concluded on May 7, 2025, trial was in session for about sixteen days because of mid-trial motions to continue, mid-trial motions to disqualify the 22 undersigned, and a mid-trial oral motion to withdraw as counsel. ECF Nos. 377, 403, 405, 410, 415, 440, 441, 453, 470, 475, 479, 482, 492, 496, 501, 504, 511, 519, 523-25. 23
[4] Defendants Marasigan and Christine Chan requested to poll the jurors on their verdicts, but Defendant Art Chan declined to do so. Mins., ECF No. 533.
[5] February 25, 2025, is the date that the jurors’ terms of service began when they were summoned to appear for 20 orientation.
[6] Defendant Christine Chan joined all but the first full paragraph on page nine of the motion. ECF No. 555. 21
[7] The court granted the defendants’ extensions of time to file certain post-trial motions. See ECF Nos. 544, 546, 549. 22
[8] The original date of sentencing was August 14, 2025, see Order, ECF No. 538, but the hearing was continued to 23 November 3, 2025, at the request of the U.S. Probation Office to allow “additional time to conduct the presentence investigation, specifically, the review of voluminous discovery documents consisting of 24,000 pages.” Order, ECF No. 578.
[10] Additionally, Defendant Marasigan’s attempt to analogize the statutory prohibition of gambling activities in Guam to driving being legal in Guam is inapposite. The court is not aware of a statute that prohibits driving at large. 22 Rather, what is more commonly prohibited is driving without a license, where the absence of a license is necessary to proving the offense. Here, there is no statute that states that gambling is legal. Instead, the statute prohibits 23 gambling activities, subject to a number of exceptions. 9 G UAM C ODE A NN . §§ 64.10(a), 64.70. Regardless, Defendant Marasigan fails to adequately explain how his analogy relates to the evidence that the Government did or did not present.
[11] The jury was also instructed on how to address the duration of the permits to conduct bingo games given the inconsistency of permit durations and the provisions in 9 G UAM C ODE . A NN . § 64.70(c)(1)(B)(i). Jury Instr. at 18, ECF No. 527.
[12] As noted above, Defendant Christine Chan joined all but the first full paragraph on page nine of the motion. ECF No. 555.
[13] It is unclear whether Defendant Marasigan is also arguing that a new trial is warranted on the basis that bingo does not constitute illegal gambling in Guam. Mot., ECF No. 557. However, for the reasons stated above, this 22 position is contrary to the court’s prior holdings and does not constitute an exceptional case where “the evidence preponderates heavily against the verdict” or “a serious miscarriage of justice may have occurred.” Pimentel , 654 23 F.2d at 545; Alston , 974 F.2d at 1211-12. Furthermore, to the extent that Defendant Marasigan is moving to have another judge resolve his pending motion, the court denies that request as it is both improperly pled and unsupported by law.
[14] Defendant Art Chan also argues that there was a fatal variance because of evidentiary spillover on Count 1. Mot. at 9-10, ECF No. 547. As the rules articulated by Defendant Art Chan make clear, evidentiary spillover is not a cause for fatal variance, but rather a symptom of it that would make the variance prejudicial. See Mot. at 8, ECF No. 547. Defendant Art Chan also does not appear to argue that a new trial is warranted because of prejudicial spillover. E.g. , United States v. Lazarenko , 564 F.3d 1026, 1044 (9th Cir. 2008). Accordingly, the court will not independently evaluate the merits of such argument. However, because the court finds that there was no variance, the court notes that it generally agrees with the Government that the jury instructions adequately addressed the risk by instructing the jurors to consider each defendant and each count separately. Jury Instr. No. 25, ECF No. 527.
[15] The court notes that it is well-established that the court may provide “subsistence,” such as snacks and meals 23 when jurors are ordered to be kept together, as well as address other logistical matters relating to their service. See generally 28 U.S.C. § 1871(a), (e), (g); United States v. Donahower , 85 F. 547, 549 (8th Cir. 1898) (discussing furnishment of meals to jurors after they have been charged and while they were confined).