United States v. Chu

183 F. App'x 94
CourtCourt of Appeals for the Second Circuit
DecidedMay 31, 2006
DocketNos. 05-1056-cr, 05-1068-cr, 05-1935-cr
StatusPublished

This text of 183 F. App'x 94 (United States v. Chu) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Chu, 183 F. App'x 94 (2d Cir. 2006).

Opinion

SUMMARY ORDER

Defendants-Appellants Henry Chu (“Chu”), Ashok Shah (“Shah”), and Naina Chitroda (“Chitroda”) challenge their convictions for conspiracy to commit bank fraud, mail fraud, and wire fraud in violation of 18 U.S.C. §§ 371, 1344, 1341, and 1343; and conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h). After a four-week jury trial before Judge Berman, in the United States District Court for the Southern District of New York, judgments of conviction were entered against Chu, Shah, and Chitroda on February 25, 2005, February 18, 2005, and March 2, 2005, respectively. The conspiracies charged involved an elaborate Ponzi scheme that laundered bank loans through Allied Deals, Inc. and an international network of companies that were purportedly engaged in metal trading. On appeal, all three Defendants-Appellants argue that the district judge abused his discretion in denying their motions for a severance. Chu and Shah each raise additional arguments. We assume the parties’ familiarity with the facts, the procedural history, and the specific issues on appeal.

I.

Appellants contend that the district court committed reversible error when it denied their motions for severance from the trials of their co-defendants. Where, as here, the defendants are accused of participation in a common scheme, the preference for joint trials in the federal system is especially strong. United States v. Salameh, 152 F.3d 88, 115 (2d Cir.1998) (per curiam). The decision to grant a severance is committed to the trial court’s [97]*97sound discretion, and a defendant making such a motion faces the heavy burden of demonstrating “substantial prejudice.” United States v. Sampson, 385 F.3d 183, 190 (2d Cir.2004). The improved chances for acquittal in a separate trial are not a sufficient basis for severance. See Zafiro v. United States, 506 U.S. 534, 540, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993).

13 At the trial below, Defendants-Appellants, along with three other persons, were charged on a redacted indictment consisting of only three counts. Though the evidence submitted was voluminous, we find that the nature of the conspiracy charged would have justified a similar quantum of evidence had Chu, Shah, and Chitroda been tried independently. Further, the nature of the evidence and legal concepts involved in this case were not so complex or so difficult to understand that a jury would not have been able to grasp them. See United States v. Casamento, 887 F.2d 1141, 1150 (2d Cir.1989). We concluded that the district court did not abuse its discretion in conducting a joint trial.

II.

Chu makes two other claims on appeal.1 First, he challenges the sufficiency of the evidence underlying his conviction pursuant to 18 U.S.C. § 1956(h), conspiracy to commit money laundering. Because Chu was not charged with the substantive offense of money laundering, but rather conspiracy to commit money laundering, the government was required to prove that Chu agreed to the Allied Deals, Inc. scheme to move illegally-obtained funds for the purpose of either promoting further illegal activity or concealing the source of those funds. See 18 U.S.C. § 1956(h); United States v. McDermott, 245 F.3d 133, 137 (2d Cir.2001) (stating the principle that the “essence of conspiracy is the agreement and not the commission of the substantive offense”). Many of the same acts upon which Chu was convicted for conspiracy to commit bank fraud (a conviction that he does not challenge on appeal) served to further the money laundering scheme. The jury could reasonably infer that, by courting and managing bank loans, aiding in the falsification of documents, setting up sham companies, and posing as a “group company” representative, Chu conspired to commit all four objects of the money laundering agreement alleged in the indictment.

Second, Chu renews his claim, raised below as a motion for a mistrial, that he was deprived of a fair trial by the prosecution’s opening statement, which previewed particular evidence that was not in fact produced during trial. The standard for ordering retrial based on prosecutorial comments is “substantial prejudice” to a defendant, a standard measured by “the severity of the misconduct, the measures adopted to cure the misconduct, and the certainty of conviction absent the improper statements.” United States v. Millar, 79 F.3d 338, 343 (2d Cir.1996). In determining the severity of the conduct, the intentions of the prosecution are a factor to be considered. Id. In the present case, the content of the evidence referred to in the opening statement was cumula[98]*98tive of other evidence produced at trial that demonstrated Chu’s knowledge of the sham nature of some number of transactions in the Allied Deals network. As Chu recognized at trial, the government did not act in bad faith, and there is no indication that the evidence referred to by the prosecutor was in fact unavailable. In addition, before the parties’ openings and after the close of the trial, Judge Berman issued appropriate limiting instructions on the jury’s use of attorney statements. Accordingly, the motion for a mistrial was appropriately denied.

III.

Shah individually challenges the sufficiency of the evidence against him, the jury charge on conscious avoidance, and the reasonableness of his sentence. First, Shah argues that the testimony against him was as consistent with innocence as it was with guilt and that he was therefore improperly convicted on both counts. See United States v. D’Amato, 39 F.3d 1249, 1256 (2d Cir.1994) (“[T]he government must do more than introduce evidence at least as consistent with innocence as with guilt.” (internal quotation marks omitted)). Yet on the evidence before the jury, a rational trier of fact could find that Shah knew that he was committing fraud in order to perform Allied Deals’ extremely dubious bidding. See United States v. Lung Fong Chen, 393 F.3d 139, 150 (2d Cir.2004) (stating that, in assessing a challenge to the sufficiency of the evidence underlying a conviction, we review the evidence in the light most favorable to the government, drawing all possible inferences in favor of the prosecution).

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Related

United States v. Fernandez
443 F.3d 19 (Second Circuit, 2006)
Zafiro v. United States
506 U.S. 534 (Supreme Court, 1993)
United States v. Casamento
887 F.2d 1141 (Second Circuit, 1989)
United States v. Armand P. D'AmAto
39 F.3d 1249 (Second Circuit, 1994)
United States v. Millar
79 F.3d 338 (Second Circuit, 1996)
United States v. Salameh
152 F.3d 88 (Second Circuit, 1998)
United States v. Bolajoko Aina-Marshall
336 F.3d 167 (Second Circuit, 2003)
United States v. Juma Sampson
385 F.3d 183 (Second Circuit, 2004)
United States v. McDermott
245 F.3d 133 (Second Circuit, 2001)

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183 F. App'x 94, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-chu-ca2-2006.