United States v. Zhao Wu Chen

322 F. App'x 43
CourtCourt of Appeals for the Second Circuit
DecidedApril 15, 2009
DocketNo. 05-4718-cr
StatusPublished

This text of 322 F. App'x 43 (United States v. Zhao Wu 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. Zhao Wu Chen, 322 F. App'x 43 (2d Cir. 2009).

Opinion

SUMMARY ORDER

Zhao Wu Chen appeals from a judgment of conviction entered in the United States District Court for the Southern District of New York (Pauley, J.) following a jury verdict finding Chen guilty of bringing, and conspiring to bring, aliens into the United States illegally in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and 18 U.S.C. § 371. On appeal, Chen argues that various aspects of his prosecution and trial were infirm. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal.

1. Sufficiency of the Indictment. We review the denial of a motion to dismiss an indictment de novo. United States v. Ebbers, 458 F.3d 110, 125 (2d Cir.2006). “Dismissal of an indictment following a conviction is an extraordinary remedy.” United States v. Lombardozzi, 491 F.3d 61, 79 (2d Cir.2007) (internal quotation marks and alterations omitted). “[T]o warrant dismissal of an indictment after a conviction, the prosecutor’s conduct must amount to a knowing or reckless misleading of the grand jury as to an essential fact.” Id. (internal quotation marks and alterations omitted). “In addition, the mere fact that evidence presented to the grand jury was unreliable, misleading, or inaccurate, is not sufficient to require dismissal of an indictment.” Id.

Chen argues that the admittedly inaccurate testimony of a government witness before the grand jury rendered the indictment infirm, warranting dismissal. But Chen has offered no evidence to support his argument other than the inaccuracy itself, which “is not sufficient to require dismissal.” Id. Moreover, the witness admitted the misstatement at trial. “[A] guilty verdict by a petit jury remedies any possible defects in the grand jury indictment.” United States v. Eltayib, 88 F.3d 157, 173 (2d Cir.1996). The district court properly denied Chen’s motion to dismiss the indictment.

2. Sufficiency of the Evidence. “We review de novo a challenge to the sufficiency of the evidence and affirm if the evidence, when viewed in its totality and in the light most favorable to the government, would permit any rational jury to find the essential elements of the crime beyond a reasonable doubt.” United States v. Yannotti, 541 F.3d 112, 120 (2d Cir.2008) (internal quotation marks omitted). Chen challenges the sufficiency of the evidence with respect to both the conspiracy and the substantive charges of the indictment.

a. Sufficiency With Respect to Conspiracy. To prove a conspiracy to commit a substantive offense, “the government must show that the defendant agreed with another to commit the offense; that he knowingly engaged in the conspiracy with the specific intent to commit the of[46]*46fenses that were the objects of the conspiracy; and that an overt act in furtherance • of the conspiracy was committed.” United States v. Monaco, 194 F.3d 381, 386 (2d Cir.1999) (internal quotation marks omitted). “[T]he government need not show that [the defendant] knew all of the details of the conspiracy, so long as he knew its general nature and extent.” United States v. Rosa, 17 F.3d 1531, 1543 (2d Cir.1994). “A conviction for conspiracy must be upheld if there was evidence from which the jury could reasonably have inferred that the defendant knew of the conspiracy charged in the indictment and knowingly joined and participated in it.” Id. at 1544.

Chen argues that the evidence was insufficient to establish his participation in a conspiracy to smuggle aliens because the government did not prove that he agreed to engage in the conspiracy. But the evidence showed that Chen knew of the conspiracy’s objective to smuggle in aliens for commercial gain and sought to make it succeed. The evidence was sufficient to allow a reasonable juror to find that Chen conspired with Dong to commit the substantive offense.

b. Sufficiency With Respect to the Substantive Offense. To establish a violation of 8 U.S.C. § 1324(a)(2)(B)(ii), the government must prove that the defendant (1) brought or attempted to bring into the United States (2) an alien (3) knowing or in reckless disregard of the fact that the alien was not authorized to enter the United States (4) for commercial advantage or private financial gain. 8 U.S.C. § 1324(a) (2)(B) (ii).

Chen argues that the government failed to prove that he knew (or recklessly disregarded) that the aliens in question were not authorized to enter the United States. He says he had no reason to know that the passport documents he received from China, which he passed along to the confidential informants (together with large sums of cash), were fraudulent. But Chen did pass along the documents — together with $20,000 payments — to the informants with the expectation that the information and payments would facilitate the entry of aliens. The jury could reasonably infer that Chen knew the aliens were not authorized to enter the country legally. The evidence, viewed in the light most favorable to the government, was therefore sufficient to establish that Chen knew or recklessly disregarded the fact that the aliens were not authorized to enter the country.

S. Evidentiary Rulings. “We review evidentiary rulings for abuse of discretion.” United States v. Szur, 289 F.3d 200, 217 (2d Cir.2002) (internal quotation marks and alteration omitted). Chen challenges the district court’s admission of statements he argues were hearsay, and he challenges the admission of ‘salacious’ evidence of his involvement in prostitution.

a. Hearsay. Federal Rule of Evidence 801(d)(2)(E) designates as non-hearsay “a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.” “Before admitting a co-conspirator’s statement over an objection that it does not qualify under Rule 801(d)(2)(E), a court must be satisfied that the statement actually falls within the definition of the Rule.” Bourjaily v. United States, 483 U.S. 171, 175, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987). “There must be evidence that there was a conspiracy involving the declarant and the nonoffering party, and that the statement was made during the course and in furtherance of the conspiracy.” Id. (internal quotation marks omitted). The offering party must prove that these facts are established by a preponderance of the evidence. Id.

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Related

United States v. Lombardozzi
491 F.3d 61 (Second Circuit, 2007)
Brady v. Maryland
373 U.S. 83 (Supreme Court, 1963)
Giglio v. United States
405 U.S. 150 (Supreme Court, 1972)
Bourjaily v. United States
483 U.S. 171 (Supreme Court, 1987)
Strickler v. Greene
527 U.S. 263 (Supreme Court, 1999)
United States v. Freddie Hilton
521 F.2d 164 (Second Circuit, 1975)
United States v. Raoul Rivalta and Fausto Rivalta
925 F.2d 596 (Second Circuit, 1991)
United States v. Rosa
17 F.3d 1531 (Second Circuit, 1994)
United States v. Osama Awadallah
436 F.3d 125 (Second Circuit, 2006)
United States v. Bernard J. Ebbers
458 F.3d 110 (Second Circuit, 2006)
United States v. Yannotti
541 F.3d 112 (Second Circuit, 2008)

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Bluebook (online)
322 F. App'x 43, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-zhao-wu-chen-ca2-2009.