United States v. Hui Chen

350 F. App'x 520
CourtCourt of Appeals for the Second Circuit
DecidedOctober 27, 2009
DocketNo. 08-4026-cr
StatusPublished

This text of 350 F. App'x 520 (United States v. Hui Chen) 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. Hui Chen, 350 F. App'x 520 (2d Cir. 2009).

Opinion

SUMMARY ORDER

Defendant-Appellant (“defendant”), a former manager of Kassla Limo & Car [522]*522Service (“Kassla”), appeals from a judgment of conviction for extortion, conspiracy to commit extortion, and witness tampering. Defendant challenges the sufficiency of the evidence in support of her conviction, the reasonableness of her sentence, and the calculation of the restitution and forfeiture awards. We assume the parties’ familiarity with the underlying facts and procedural history.

The Hobbs Act provides that anyone who “obstructs, delays, or affects commerce ... by robbery or extortion, or attempts or conspires so to do” is guilty of a felony. 18 U.S.C. § 1951(a). “Extortion” is defined as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear....” 18 U.S.C. § 1951(b)(2). Defendant claims that there was no evidence that she was personally involved in Kassla’s efforts to extort its drivers, and that, as a matter of law, Kassla’s efforts to protect its illegal van service route between Manhattan and Queens cannot constitute extortion. Neither argument has merit.

Contrary to defendant’s argument, there was a great deal of evidence that she personally participated in Kassla’s criminal endeavors. Defendant held herself out as the company’s president. She also spoke about company rules at company meetings, and was involved in determining the drivers’ monthly fee. Further, defendant mediated between Kassla’s enforcer and its victims, and personally received payments from Kassla’s victims.

Defendant also argues that Kassla’s violent acts were unrelated to its efforts to collect its monthly fees. Specifically, she claims that the organization used violence and threats of violence, not to extort money from its drivers, but rather to protect the exclusivity of its criminal enterprise. So long as Kassla’s violent acts are understood as part of its efforts to dissuade its drivers from competing with its criminal activities, defendant suggests that these acts cannot constitute “obtaining of property from another” within the meaning of the Hobbs Act. Defendant relies heavily on Scheidler v. National Organization for Women, Inc., 537 U.S. 393, 123 S.Ct. 1057, 154 L.Ed.2d 991 (2003), in which the Supreme Court suggested that property is “obtained” within the meaning of the Hobbs Act only if the defendant “receive[s] something of value ... that they could exercise, transfer, or sell.” Id. at 405.

Defendant’s claim that Kassla’s acts of violence were unconnected to its effort to collect monthly fees from its drivers was considered and rejected by the jury. However, even if we were to credit defendant’s claim, there would still be a sufficient basis for the extortion conviction. This Court rejected defendant’s argument to the contrary in United States v. Gotti, 459 F.3d 296 (2d Cir.2006). In Gotti, while acknowledging that Scheidler “framed [the “obtaining” requirement] as a two-part inquiry that requires both a deprivation and an acquisition of property,” id. at 323 (emphasis added), we explained that “the Court’s emphasis on the possibility of exercising, transferring, or selling the property [is] a concern with the extortionist’s intent.” Id. (emphasis in the original). Thus, we noted that if the abortion protesters in Scheidler had intended to profit from their crimes — if, e.g., they attempted to force the defendants to give them a no-cost non-competition agreement — then this would have satisfied Scheidler s definition of “obtaining.” Id. at 323-24.

The Gotti rule is that if a defendant interferes with a person’s intangible rights for the sake of enrichment, then this constitutes both a deprivation and an acquisition of the defendant’s property. This is [523]*523equally true when the “rights” at issue are intangible rights, including the intangible right to engage in illegal activity. United States v. Ivezaj, 568 F.3d 88, 93 (2d Cir. 2009); United States v. Ambrose, 740 F.2d 505 (7th Cir.1984) (Posner, J.); United States v. Hanigan, 681 F.2d 1127, 1131 (9th Cir.1982). Applied to the present case, this means that Kassla’s efforts to protect its “turf’ with threats and acts of violence satisfies Scheidler’s requirement that the defendant not only disrupt the victim’s use of her property, but also “obtain” this property.

Defendant’s challenge to the sufficiency of the evidence in support of her conviction for witness tampering is equally unavailing. Two drivers testified that defendants asked them to give false testimony. Another driver testified that multiple third parties contacted him on defendant’s behalf and told him that if Chen were convicted “she would not let go of [him] even if she becomes a ghost,” and that, “when she gets out, she will retaliate.” It was reasonable for the jury to conclude that these statements were intended as threats.

Also without merit is defendant’s challenge to the reasonableness of her sentence. The district court sentenced defendant to 86 months’ imprisonment, which was roughly one-half the lower end of her guidelines range. Defendant has not argued that the court miscalculated her guidelines range or otherwise committed procedural error. The only issue, therefore, concerns the substantive reasonableness of her sentence in the light of the § 3553(a) factors. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). We review the district court’s sentence for substantive reasonableness deferentially, setting the sentence aside only if it “cannot be located within the range of permissible decisions.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir.2008) (internal quotation marks omitted); United States v. Rigas, 490 F.3d 208, 238 (2d Cir.2007). Defendant’s best argument for greater leniency is based on her family circumstances: defendant and her husband, a co-defendant, have a young son. However, the district court explicitly took defendant’s family circumstances into account and awarded her a below-guidelines sentence on that basis. The district court also found that defendant was “a leader of this criminal enterprise,” and that this enterprise made threats of violence and committed actual incidents of violence. In the light of these findings, the 86-month sentence was reasonable.

Finally, defendant challenges the district court’s forfeiture and restitution awards. The court ordered $272,410 in forfeiture based on the assumption that 50 drivers made monthly payment of $250 over 22 months, and $119,110 in joint and several restitution.

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Related

United States v. Rigas
490 F.3d 208 (Second Circuit, 2007)
Scheidler v. National Organization for Women, Inc.
537 U.S. 393 (Supreme Court, 2003)
Gall v. United States
552 U.S. 38 (Supreme Court, 2007)
United States v. Saccoccia
58 F.3d 754 (First Circuit, 1995)
United States v. Patrick W. Hanigan
681 F.2d 1127 (Ninth Circuit, 1982)
United States v. Thomas Ambrose
740 F.2d 505 (Seventh Circuit, 1984)
United States v. Gotti
459 F.3d 296 (Second Circuit, 2006)
United States v. Cavera
550 F.3d 180 (Second Circuit, 2008)
United States v. Ivezaj
568 F.3d 88 (Second Circuit, 2009)

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Bluebook (online)
350 F. App'x 520, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hui-chen-ca2-2009.