Professional Documents
Culture Documents
United States v. Alex Wong, Roger Kwok, Chen I. Chung, Tung Tran, Danny Ngo, Brian Chan, Joseph Wang, Chiang T. Cheng, and Steven NG, 40 F.3d 1347, 2d Cir. (1994)
United States v. Alex Wong, Roger Kwok, Chen I. Chung, Tung Tran, Danny Ngo, Brian Chan, Joseph Wang, Chiang T. Cheng, and Steven NG, 40 F.3d 1347, 2d Cir. (1994)
3d 1347
Lloyd Epstein, New York City (Epstein & Weil, of counsel), for
defendant-appellant Alex Wong.
Alan Drezin, Brooklyn, NY, for defendant-appellant Roger Kwok.
Michael Handwerker, New York City, for defendant-appellant Chen I.
Chung.
Susan G. Kellman, New York City, for defendant-appellant Tung Tran.
Gerald Bodell, New York City, for defendant-appellant Danny Ngo.
Gail E. Laser, New York City (Shargel & Futerfas, of counsel), for
defendant-appellant Brian Chan.
David A. Lewis, New York City (The Legal Aid Society, Federal
Defender Services Unit, of counsel), for defendant-appellant Joseph
Wang.
Charles Lavine, Forest Hills, NY, for defendant-appellant Chiang T.
Cheng.
Joel Cohen, New York City, for defendant-appellant Steven Ng.
Catherine E. Palmer and Loretta Lynch, Asst. U.S. Atty., E.D. N.Y.,
Brooklyn, NY (Zachary W. Carter, U.S. Atty., Emily Berger and Margaret
Giordano, Asst. U.S. Attys., of counsel), for appellee.
Before: OAKES and MAHONEY, Circuit Judges, and MISHLER,
District Judge.*
MAHONEY, Circuit Judge:
Alex Wong, Roger Kwok, Chen I. Chung, Tung Tran, Danny Ngo, Brian Chan,
Joseph Wang, Chiang T. Cheng, and Steven Ng appeal from judgments of
conviction entered on various dates in October and November 1992 in the
United States District Court for the Eastern District of New York, Reena Raggi,
Judge, after a ten-week jury trial. Each of the defendants was convicted of a
substantive violation of the Racketeer Influenced and Corrupt Organizations
("RICO") provisions of the federal criminal code, see 18 U.S.C. Secs. 1962(c)
and 1963, and of RICO conspiracy in violation of 18 U.S.C. Secs. 1962(d) and
1963. Each of the defendants except Alex Wong, Chiang T. Cheng, and Steven
Ng was also convicted of one count of conspiracy to commit an assault with
dangerous weapons to maintain or increase their positions in a RICO enterprise
in violation of 18 U.S.C. Sec. 1959(a)(6).
Tung Tran was convicted of two counts of conspiracy to commit murder (and in
one count also to kidnap) to maintain or increase his position in a RICO
enterprise in violation of 18 U.S.C. Sec. 1959(a)(5); four counts of murder (and,
as to two counts, kidnapping) to maintain or increase his position in a RICO
enterprise in violation of 18 U.S.C. Secs. 1959(a)(1) and 2; one count of
conspiracy to use extortionate means to collect a debt in violation of 18 U.S.C.
Sec. 894; one count of using extortionate means to collect a debt in violation of
18 U.S.C. Secs. 894 and 2; three counts of conspiracy to commit extortion in
violation of 18 U.S.C. Sec. 1951; and three counts of extortion in violation of
18 U.S.C. Secs. 1951 and 2.
Danny Ngo was convicted of one count of conspiracy to use extortionate means
to collect a debt in violation of 18 U.S.C. Sec. 894, and one count of using
extortionate means to collect a debt in violation of 18 U.S.C. Secs. 894 and 2.
Brian Chan was convicted of two counts of conspiracy to commit murder (and
in one count also to kidnap) to maintain or increase his position in a RICO
enterprise in violation of 18 U.S.C. Sec. 1959(a)(5); three counts of murder
(and, as to two counts, kidnapping) to maintain or increase his position in a
RICO enterprise in violation of 18 U.S.C. Secs. 1959(a)(1) and 2; one count of
conspiracy to use extortionate means to collect a debt in violation of 18 U.S.C.
Sec. 894; one count of using extortionate means to collect a debt in violation of
18 U.S.C. Secs. 894 and 2; two counts of conspiracy to commit extortion in
violation of 18 U.S.C. Sec. 1951; and two counts of extortion in violation of 18
U.S.C. Secs. 1951 and 2.
Chen I. Chung, Chiang T. Cheng, and Steven Ng were acquitted of one count
of murder to maintain or increase their position in a RICO enterprise. Tung
Tran and Brian Chan were each acquitted of one count of kidnapping to
maintain or increase their positions in a RICO enterprise.
10
The district court sentenced all defendants except Ngo and Ng principally to
multiple concurrent terms of life imprisonment for their participation in
offenses involving murder to maintain or increase their positions in a RICO
enterprise. The court sentenced Ngo principally to concurrent terms of ten years
imprisonment for his RICO and extortion offenses. Ng was sentenced
principally to concurrent terms of 210 months imprisonment for his RICO
violations and 120 months imprisonment for conspiracy to commit murder.
Each defendant was also accorded a number of shorter sentences to run
concurrently with the principal sentences. The district court imposed concurrent
fines totalling $250,000 upon each defendant except Ng, who was fined
$175,000.
11
We affirm the judgments of conviction and sentences except for the fines
imposed in this case. We vacate the fines and remand for their reconsideration.
Background
12
13
Kin Fei Wong founded the Green Dragons in the mid-1980's as an offshoot of
another Asian gang known as the "Fook Ching," and was the overall "Dai Lo"
or "Big Brother" of the gang. Because Kin Fei Wong spent much of his time out
of the United States, he delegated day-to-day operational authority to senior
gang members. The operational or "street" leader of the Green Dragons in late
1986 was a gang member known as "E.T." After E.T. was killed in November
1986 by the Tung On, a rival Asian gang, Chen I. Chung became the
operational leader of the Green Dragons. Kin Fei Wong maintained regular
telephone contact with Chen I. Chung, and issued directives concerning Green
Dragons policy, specific places to be extorted and amounts to demand, and how
to handle conflicts with rival gangs and members of the Chinese community.
15
The Green Dragons recruited young Asian men from schools and playgrounds
in Queens. Most of the members moved out of their families' homes and into
apartments or "safe houses" maintained by the gang, where they lived with
other Green Dragons members under the supervision of more senior members.
Senior members collected funds derived from the gang's activities, and used the
funds to pay the gang's expenses and to pay salaries to younger members.
16
Sonny Wong, who was one of the government's primary witnesses at trial,
joined the Green Dragons when he was sixteen in October 1986, shortly after
Steven Ng enlisted in the gang. He and Steven Ng had been approached at their
high school by several Asian gangs before they decided to join the Green
Dragons. At the time Wong and Ng joined the Green Dragons, E.T. was the
gang's operational leader under Kin Fei Wong; Chen I. Chung and Wing Dong
Moi were two senior members. Chung and Moi instructed Sonny Wong
concerning the operating rules of the Green Dragons, including that he was to
follow orders and was not to speak to the police. Danny Ngo joined the gang in
January 1987. Aleck Yim, another government witness, joined the Green
Dragons in April 1988, after receiving the approval of gang members Alex
Wong and Danny Ngo. Joseph Wang and Chiang T. Cheng joined the Green
Dragons after Yim. Shortly thereafter, Tung Tran moved to New York from
San Francisco and joined the gang. Brian Chan and Roger Kwok enlisted in
April 1989.
17
18
The arrests and indictments in this case resulted from a nine-month joint
investigation conducted between March and November 1990 by the Federal
Bureau of Investigation (the "FBI") and the New York City Police Department
(the "NYPD"), assisted by the Nassau County Police Department. As part of
their investigation, the FBI and NYPD conducted court-authorized electronic
surveillance, monitoring several telephones used by the Green Dragons from
August through November 1990. Through these wiretaps, the authorities
learned that the Green Dragons had arranged to fight a rival gang, the White
Tigers, to settle a "turf" dispute. The police arrested Chen I. Chung, Tung Tran,
Brian Chan, Joseph Wang, Roger Kwok, Danny Ngo, and other members of
the Green Dragons on November 19, 1990, as the gang members massed in
preparation for the expected combat. Alex Wong, Chiang T. Cheng, and Steven
Ng had already been incarcerated on November 19 on other charges.
19
Discussion
20
525 (1993). Wang and Ngo claim that under the Reves standard, the evidence
was insufficient to support their convictions for substantive RICO and RICO
conspiracy violations. Ngo argues that the evidence was not sufficient to
establish that he participated in a pattern of racketeering activity under RICO.
Steven Ng contends that the district court should have suppressed wiretap
evidence on the ground that it was not timely sealed. Chen I. Chung and Brian
Chan contend that the district court improperly empaneled an anonymous jury.
Wang and Chan challenge the admission of evidence of uncharged criminal
activities to prove the "enterprise" requirement under RICO. Chan argues that
the district court erred in admitting allegedly hearsay evidence regarding, and
contests the sufficiency of the evidence implicating him in, the murder of Jin
Lee Soek. Kwok, Chung, Chiang T. Cheng, and Wong argue that the district
court erred in refusing to grant them downward departures in imposing their
sentences. Wong, Tran, and Chan argue that because they are concededly
indigent, the district court abused its discretion by imposing fines upon them.
21
We address each of these claims below. Other contentions, which are not
separately analyzed, are summarized at the conclusion of this opinion.
A. Identification Testimony.
22
23
Tung Tran2 and Alex Wong raise separate challenges to the admission of
identification testimony at trial, arguing that the testimony was tainted by
pretrial identification procedures that they claim were unduly suggestive. The
identifications stemmed from two incidents involving crimes committed by
Green Dragons members in 1989 and 1990.
24
25
a. The Incident.
26
On July 16, 1989, Carol Huang and her husband Gregory Hyde had dinner at
the Tien Chiau Restaurant in Flushing. After Huang and Hyde finished dinner,
they approached the counter to pay the manager, but saw two young Chinese
men having an "intense conversation" with the manager, and so returned to
their table to wait for the manager to finish the discussion.
27
After hearing what they thought were firecrackers, Hyde turned and saw one of
the young Chinese men with a gun in his hand, in a crouched position and
shooting at the manager. Huang also saw the manager being shot. Hyde told
his wife to duck under the table. As he tried to do so, Hyde was shot and fell to
the floor, his legs paralyzed. After Huang saw her husband fall to the floor, she
looked up and stared at the face of the young man with the gun for "[t]wo to
three seconds," while he looked at her. Huang described the gunman, whom
she later identified as Alex Wong, as "a very nice-looking kid with huge,
extraordinary huge eyes," and approximately sixteen to seventeen years of age.
Huang continued to stare at Wong for what felt "like ages," because she feared
that he would shoot at her or her husband again. Finally, Wong turned away
when someone at another table screamed. Huang then saw Wong shoot in the
direction of the scream. Both Anthony Gallivan, another customer dining at the
restaurant, and Mon Hsiung Ting, the manager of the Tien Chiau, died from
gunshot wounds inflicted during this incident.
28
Earlier that summer, Chen I. Chung had told Sonny Wong that the manager of
the Tien Chiau Restaurant had refused to pay protection money to the Green
Dragons, and that he planned to have the manager killed to teach the owners of
the restaurant "not to mess with the Green Dragons." Joseph Wang and Alex
Wong were in charge of collecting protection money from the Tien Chiau
Restaurant. The night of the incident, Chen I. Chung contacted Sonny Wong to
tell him the Tien Chiau manager was dead, and instructed Sonny Wong to meet
him at Chung's apartment. There Sonny Wong met with Alex Wong, Joseph
Wang, and Chiang T. Cheng, who were debriefing Chung on the shooting.
Cheng had driven Wang and Alex Wong to the restaurant. Alex Wong stated
that he had shot the manager and a Caucasian customer. Joseph Wang said that
after looking behind the cashier's counter to ascertain whether a security
camera had recorded the incident, he had shot the manager again to be certain
that he was dead.
29
30
31
Shortly after the incident, on July 25, 1989, Huang met with an NYPD sketch
artist, who prepared a sketch based on Huang's description of the gunman's
facial features. On September 22, 1989, Huang viewed three different photo
arrays, each containing six photographs of Asian men. According to the
interviewing NYPD detective, Huang chose Sonny Wong's photo from the first
array and Joseph Wang's from the second, stating that their pictures
"resembled" the "shooter" she had seen. She also chose Alex Wong's photo
from the third array, observing that the photo "look[ed] like the shooter," and
that if she saw the subject of the photograph in person she could identify him.
Huang's testimony was similar to the detective's, but somewhat more tentative,
and emphasized her desire to see the suspects in person.
32
On May 3, 1990, the NYPD conducted a lineup before Huang of six or seven
Asian men, including Alex Wong. After looking at the lineup for five to ten
minutes, Huang indicated that she "wasn't sure." Huang stated that one of the
men (number five--Alex Wong) "look[ed] like him, but she can't be sure
because of the height." The police then held a second lineup with the same
participants standing, dimming the lights to simulate the lighting in the
restaurant on the night of the shooting. Huang viewed the lineup for
approximately five to ten minutes; just before she did so, a police detective told
her that "we can't just take a 'possibly.' " Huang then identified Alex Wong.
Although he was taller than she remembered the gunman to be, Huang stated
that Wong had "the same facial features, fair skin, [and] rather big, huge eyes."
33
34
35
photo arrays. Wong argues that Huang's hesitance in identifying Wong in the
photo array and the seated lineup contrasts starkly with her certainty after the
standing lineup, indicating that the second lineup was suggestive and that her
identification was not independently reliable. Finally, Wong argues that the
length of time between the shooting and the lineup--ten months--weighs heavily
against a finding of independent reliability.
36
The Supreme Court has established a two-step inquiry for evaluating the
constitutional permissibility of in-court identification testimony based on outof-court identification procedures. That inquiry "requires a determination of
whether the identification process was impermissibly suggestive and, if so,
whether it was so suggestive as to raise 'a very substantial likelihood of
irreparable misidentification.' " Jackson v. Fogg, 589 F.2d 108, 111 (2d
Cir.1978) (quoting Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381-82, 34
L.Ed.2d 401 (1972) (citing Simmons v. United States, 390 U.S. 377, 384, 88
S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968))).
37
38 opportunity of the witness to view the criminal at the time of the crime, the
the
witness' degree of attention, the accuracy of [the witness'] prior description of the
criminal, the level of certainty demonstrated at the confrontation, and the time
between the crime and the confrontation. Against these factors is to be weighed the
corrupting effect of the suggestive identification itself.
39
Manson, 432 U.S. at 114, 97 S.Ct. at 2253; see also Neil, 409 U.S. at 199, 93
S.Ct. at 382. For both pretrial and in-court identifications, the linchpin of
admissibility is reliability. Manson, 432 U.S. at 106 n. 9, 114, 97 S.Ct. at 2249
n. 9, 2253. However, if impermissibly suggestive procedures are not employed,
"independent reliability is not a constitutionally required condition of
admissibility, and the reliability of the identification is simply a question for
the jury." Jarrett, 802 F.2d at 42 (citations omitted).
40
We are not persuaded that the standing lineup was unduly suggestive. Wong
does not contest the fact that the composition of the lineup, which featured a
number of Asian males of similar general appearance, was fair. While the
detective's comment created the risk of prompting an identification on
something less than total certainty, it did not suggest that Huang choose any
particular participant, nor did it confirm the correctness of her choice after it
had been made. See Jarrett, 802 F.2d at 46 (prosecutor's statement to witness
before trial to "stick to [his] guns" about identification not impermissibly
suggestive because it could be, and was, taken to mean that witness should
speak his mind).
41
Further, while lineups that unnecessarily contrast the height of a suspect with
that of the other participants have been condemned as suggestive, see, e.g.,
Foster v. California, 394 U.S. 440, 442-43, 89 S.Ct. 1127, 1128-29, 22 L.Ed.2d
402 (1969); McFadden v. Cabana, 851 F.2d 784, 785, 789-90 (5th Cir.1988),
cert. denied, 489 U.S. 1083, 109 S.Ct. 1541, 103 L.Ed.2d 845 (1989), we do
not consider the height discrepancy to have been suggestive in this case. The
circumstances of this case seem to indicate that Huang chose Wong despite his
height, not because of it. In any event, Huang's testimony was that Wong was in
a crouched position, shooting, when she observed him in the restaurant,
rendering a misestimate of his height understandable without significantly
undercutting the reliability of her identification.
42
43
We conclude that neither the detective's comment, nor the height differential
between Wong and the other participants in the lineup, nor the combination of
these two factors rendered the lineup at which Huang identified Wong unduly
suggestive. Furthermore, in any event, viewing the totality of the
circumstances, see Manson, 432 U.S. at 114, 97 S.Ct. at 2253; Neil, 409 U.S. at
199, 93 S.Ct. at 382, Huang's pretrial identification was independently reliable
and thus admissible.
44
Huang observed the gunman after she ducked under the table at the restaurant,
staring him in the face for "[two] to three seconds" before he turned away. This
was sufficient for identification. See Coleman v. Alabama, 399 U.S. 1, 4-6, 90
S.Ct. 1999, 2000-02, 26 L.Ed.2d 387 (1970) (plurality opinion) (fleeting but
"real good look" at assailant sufficient for identification). Moreover, as the
district court found, Huang's degree of attention was very high as she stared at
the assailant's face because she feared he would open fire on her and her
husband. See United States v. Concepcion, 983 F.2d 369, 378 (2d Cir.1992)
("nature of events" in struggle and shooting "was such as to attract and hold [the
witnesses'] attention"), cert. denied, --- U.S. ----, 114 S.Ct. 163, 126 L.Ed.2d
124 (1993); Gonzalez v. Hammock, 639 F.2d 844, 847 (2d Cir.1980) (witness'
attention "would be riveted on a man who was pulling a shotgun from a bag"),
cert. denied, 449 U.S. 1088, 101 S.Ct. 880, 66 L.Ed.2d 815 (1981).
45
46
2. The Hampton Street Robbery and Linda Pang's Identification of Tung Tran.
47
a. The Incident.
48
49
Once inside, the gang forced Cheng Chen (one of the apartment's occupants),
his mother, and his cousin to undress, and proceeded to ransack the apartment.
For the next two hours, Cheng Chen was held in one room at gunpoint, during
which time he heard various sounds coming from other rooms in the apartment,
including the screams of his wife, Linda Pang. After the gang members left,
Chen found his wife naked and crying in another room. Pang, who was in the
bathroom when the gang members entered the apartment, had been forced out
of the bathroom by a gang member. For the next two hours, Pang saw
approximately five or six robbers, several with guns and at least one with a
knife, as she was taken at gunpoint from room to room in the apartment. While
in her bedroom, Tung Tran raped Pang at knifepoint. The robbers stole cash
and jewelry from the apartment, as well as Chen's ATM card and access
number.
50
Later that night, Sonny Wong saw Danny Ngo, Joseph Wang, Alex Wong,
Tung Tran, Brian Chan, and Roger Kwok at one of the gang's apartments,
sorting out proceeds from the robbery of the Hampton Street apartment. Aleck
Yim, who was also present at the apartment, recalled that Tung Tran, Steven
Ng, Brian Chan, and "other Green Dragon [m]embers" were present and
discussed the robbery.
51
52
53
54
On June 12, 1990, Detectives Charles Judson and Peter Blum of the Nassau
County Police Department met with Chen and Pang at a coffee shop to show
them photo arrays. Judson met with Chen at one table and showed him one set
of photos, while Blum sat with Pang at a separate table and showed her a
second set. Chen identified Tung Tran and two other participants from this set.
Pang identified Brian Chan from the second set. Pursuant to instructions, Chen
and Pang then signed their names to the backs of the photographs that they had
identified, and initialled the backs of photographs that they had not selected.
The two tables then exchanged photographs.
55
When Blum laid this second set of photos before Pang, she "stared" at them,
"obviously fixating on one photograph and her eyes were full of tears. She
began to cry." Blum put the photos away and tried to console her for two or
three minutes, because "it was obvious she was reliving the incident." When
Pang had composed herself, Blum again laid out the photos. Pang then pointed
to a picture of Tung Tran. Blum turned the picture over and had her sign it, and
then initial the remaining photographs. Pang signed above her husband's
signature, which he had placed on the reverse side of the photograph after his
prior identification of Tran.
56
One week after viewing photos in the coffee shop, Pang viewed additional
photographs but did not recognize anyone. On October 18, 1990, in a meeting
held at the office of one of the Assistant United States Attorneys handling this
case, Detective Blum again showed Pang the photos she had viewed in the
coffee shop. Pang again identified the photograph of Tung Tran.
57
Tran's motion to suppress Pang's identification testimony was based upon the
contention that the identification procedures employed by the police were
impermissibly suggestive. Because of the court's concern that Chen's signature
on the back of Tung Tran's photograph might have bolstered Pang's
identification, the court heard testimony from Chen and Pang, as well as Judson
and Blum, about the suggestiveness of the procedures employed. Pang testified
that she initially looked at the second set of pictures "for one or two minutes,
and then ... felt very uncomfortable." After she composed herself, she looked at
the pictures for a "few minutes," and then identified Tran. The writing on the
back of the pictures meant "[n]othing much" to her. She did not notice her
husband's signature beneath her signature when she signed the back of Tran's
photograph. The court also questioned Pang about the circumstances under
which she had seen her assailant on the night of the robbery. Pang testified that
she had seen him face-to-face and looked him "in the eye" for about a minute in
"[v]ery clear" lighting.
58
The district court denied Tung Tran's motion to suppress Pang's identification,
concluding that Pang had not been influenced by the presence of her husband's
signature on the back of Tran's photo. The court said:
59
In listening carefully to all of this witness' testimony on direct and cross, and
also to her answers to my questions[,] I am prepared to believe her, that she
didn't notice her husband's signature. This very unassuming, somewhat shy
young woman finds it very difficult even now to say what happened to her the
night that is at issue here that she was raped. She's prepared to discuss [that
night] in almost any other terms, except when she's finally asked repeatedly to
say exactly what happened to her.
60
I have little difficulty believing that seeing that photograph some months after
the rape renewed in her all of the horror of the experience, and that when she
did turn it over to sign her name, that that would have been the kind of quick
action where she wasn't particularly paying attention to any of the other names
on it. I'm prepared to believe her in this regard.
61
At trial, Chen identified Chiang T. Cheng, Steven Ng, and Brian Chan as
among the robbers that night. Pang also identified Cheng, Ng, and Chan at
trial, as well as Tung Tran and Danny Ngo. Prior to trial, the defendants
requested, and obtained, an in limine ruling to preclude the government from
introducing evidence that Pang was raped during the Hampton Street robbery.
62
63
On appeal, Tran renews his contention that the pretrial procedure was
suggestive. Tran also argues that because Pang was ordered to keep her head
down by the robbers, she did not have an independently reliable basis for the
identification. We disagree.
64
The district court's conclusion that Pang's agitation kept her from noticing her
In addition, although our conclusion that Pang's identification of Tran was not
affected by any suggestive police procedure eliminates the need to inquire into
the independent reliability of Pang's identification, see Jacobowitz, 877 F.2d at
168, we note that it exhibits very strong indicia of reliability. Pang had an
ample opportunity to view Tran, and the incident understandably held her full
attention. See Neil, 409 U.S. at 200 & n. 7, 93 S.Ct. at 383 & n. 7. Pang
displayed complete certainty about her identification. Under these
circumstances, neither the fact that Pang had not previously provided a
description of Tung Tran, nor the fact that her photo identification occurred six
months after the incident (and her in-court identification twenty-five months
after the incident) renders her identification unreliable. See Jacobowitz, 877
F.2d at 168. Finally, while Tran argues that Pang's pretrial failure to identify
anyone before or after viewing the photo arrays in the coffee shop is an
indication that she has no independent recollection of the robbery, it is just as
likely (or more likely, given Pang's opportunity to view the intruders) to be a
manifestation of extreme conscientiousness as a witness. See Neil, 409 U.S. at
201, 93 S.Ct. at 383.
The Juvenile Delinquency Act (the "JDA"), 18 U.S.C. Secs. 5031 et seq.,
regulates the exercise of federal jurisdiction over juvenile defendants. Section
5032 of the JDA establishes two different certification requirements for
juvenile delinquency proceedings in federal courts:
70
71
While proper certification confers jurisdiction upon the district court, it does
not determine whether the government must proceed against the defendant as a
juvenile, with the extra procedural protections afforded by the JDA, or as an
adult in a criminal prosecution. See id.; Chambers, 944 F.2d at 1261. A federal
district court may convene itself as a juvenile court under the JDA. See Brian
N., 900 F.2d at 222. When a juvenile who is not a previous offender is alleged
to have committed a violent felony or one of several specified narcotics-related
offenses, the Attorney General may make a motion to transfer the juvenile to
adult proceedings. Sec. 5032. This motion may be granted if, after a hearing,
the district court finds that "such transfer would be in the interest of justice"
considering, inter alia, the juvenile's age, background, prior delinquency record,
and maturity. Id.; see also United States v. Elwood, 993 F.2d 1146, 1149 (5th
Cir.1993). For previous offenders charged with committing crimes after the age
of sixteen that involve the threat, use, or substantial risk of use of physical
force, or enumerated narcotics-related offenses, transfer to the district court is
automatic. Sec. 5032.
72
73
Any proceedings against a juvenile under this chapter or as an adult shall not be
commenced until any prior juvenile court records of such juvenile have been
received by the court, or the clerk of the juvenile court has certified in writing
that the juvenile has no prior record, or that the juvenile's record is unavailable
and why it is unavailable.
74
Id. (emphasis added). Courts have read the mandatory language of this
provision to establish the certification of records as a prerequisite to the exercise
of federal jurisdiction. See Doe, 13 F.3d at 304; United States v. M.I.M., 932
F.2d 1016, 1019-20 (1st Cir.1991); Juvenile Male, 923 F.2d at 620; Brian N.,
900 F.2d at 222-23. Under the JDA, juvenile proceedings commence with the
filing of an information. See Doe, 13 F.3d at 304; M.I.M., 932 F.2d at 1019;
Brian N., 900 F.2d at 221; In re Martin, 788 F.2d 696, 698 (11th Cir.), cert.
denied, 478 U.S. 1009, 106 S.Ct. 3306, 92 L.Ed.2d 719 (1986).
75
76
77
After his conviction, Wong moved to dismiss the substantive RICO and RICO
conspiracy counts on the ground that he was not an adult during the
commission of either crime. Wong argued that the definition of "pattern of
racketeering activity," which requires "at least two acts of racketeering
activity," 18 U.S.C. Sec. 1961(5), would not support a RICO or RICO
conspiracy conviction absent proof that the defendant had committed two or
more predicate acts as an adult. Because the government did not move to
transfer Wong's case to adult status pursuant to the JDA, Wong argued, his
activities prior to his eighteenth birthday were to be deemed acts of juvenile
delinquency outside the jurisdiction of the federal courts and could not
In an oral opinion rendered July 17, 1992, the district court denied Wong's
motion, holding that substantive RICO and RICO conspiracy were "continuing
crimes," and that Wong's commission of a single predicate act as an adult was
sufficient to establish federal jurisdiction over Wong to be tried as an adult.
79
80
On appeal, Wong and Ngo contend that their acts as juveniles are not subject to
federal jurisdiction absent certification by the Attorney General and a motion
by the government to transfer the case to adult status pursuant to the JDA. They
argue that because certain discrete offenses were completed while they were
juveniles, the district court had no jurisdiction over those acts as RICO
predicate acts. Wong also argues that: (1) because he did not commit two
predicate acts required to establish a "pattern of racketeering," see Sec. 1961(5),
after his eighteenth birthday, and because the acts that he committed while a
juvenile are properly considered acts of juvenile delinquency, his convictions
for substantive RICO and RICO conspiracy violations must be reversed; and
(2) his pre-eighteen acts did not constitute "racketeering activity," as defined in
the RICO statute, because they were not "punishable by imprisonment for more
than one year." 18 U.S.C. Sec. 1961(1). For the reasons that follow, we
conclude that Wong and Ngo were properly convicted on RICO counts that
included predicate acts that they committed before the age of eighteen.
81
The JDA pertains to juveniles who are "alleged to have committed an act of
Wong and Ngo began committing the RICO offenses charged in counts one and
two of the indictment while they were juveniles, but continued to do so after
their eighteenth birthdays. Because the RICO offenses were not "committed by
a [defendant] prior to his eighteenth birthday," Sec. 5031, these offenses are not
subject to the requirements of the JDA.
83
785-86 (10th Cir.1991) (same), cert. denied, --- U.S. ----, 112 S.Ct. 903, 116
L.Ed.2d 804 (1992); United States v. Doerr, 886 F.2d 944, 969 (7th Cir.1989)
(same) (quoting United States v. Cruz, 805 F.2d 1464, 1475 (11th Cir.1986)
(quoting Spoone, 741 F.2d at 687), cert. denied, 481 U.S. 1006, 107 S.Ct. 1631,
95 L.Ed.2d 204, 482 U.S. 930, 107 S.Ct. 3215, 96 L.Ed.2d 702 (1987)); United
States v. Gjonaj, 861 F.2d 143, 144 (6th Cir.1988) (same) (quoting Spoone,
741 F.2d at 687). Because conspiracy is a continuing crime that "endures until
its objectives are either completed or abandoned," United States v. Lovell, 16
F.3d 494, 497 (2d Cir.1994), a federal court may assume jurisdiction over a
defendant " 'upon a "threshold demonstration of post-eighteen conspiracy
activity." ' " Maddox, 944 F.2d at 1233 (quoting Gjonaj, 861 F.2d at 144
(quoting Cruz, 805 F.2d at 1476)).
84
85
Both substantive RICO and RICO conspiracy offenses are continuing crimes.
See United States v. Moscony, 927 F.2d 742, 754 (3d Cir.) (substantive RICO
is continuing offense analogous to conspiracy), cert. denied, 501 U.S. 1211,
111 S.Ct. 2812, 115 L.Ed.2d 984 (1991); United States v. Rastelli, 870 F.2d
822, 838 (2d Cir.) (RICO conspiracy not complete until purposes accomplished
or abandoned), cert. denied, 493 U.S. 982, 110 S.Ct. 515, 107 L.Ed.2d 516
(1989). It follows that Wong's conviction for conspiring to murder Carol
Huang and Ngo's robbery and extortion convictions establish the requisite posteighteen conduct to furnish the district court with jurisdiction over the
substantive RICO and RICO conspiracy charges of which they were convicted.
86
Wong contends, however, that under the JDA he "cannot be held liable for preeighteen conduct," Maddox, 944 F.2d at 1233, and thus his pre-majority acts
cannot serve as the basis for criminal liability under RICO. See also United
States v. Odom, 13 F.3d 949, 957 (6th Cir.) (same, citing Maddox, 944 F.2d at
1233), cert. denied, --- U.S. ----, 114 S.Ct. 1859, 128 L.Ed.2d 481 (1994), --U.S. ----, 115 S.Ct. 116, 130 L.Ed.2d 62 (1994). Because the indictment
charged Wong with only one predicate act as an adult, Wong further claims that
Both Maddox and Odom affirmed convictions for conspiracies that bridged the
pertinent defendant's eighteenth birthday. In Odom, the court decided only that
evidence of pre-eighteen conduct was admissible, adding the gratuitous
observation that such conduct could not support criminal liability. See 13 F.3d
at 957. Neither case posed or addressed the RICO issue that we must address.
Further, nothing in the text of the JDA would divest the district court of
jurisdiction over Wong and Ngo's pre-eighteen predicate acts. This court has
held that a defendant can be held criminally liable for pre-eighteen conduct so
long as the prosecution begins after the defendant is twenty-one years of age,
thereby precluding application of the JDA. See Hoo, 825 F.2d at 669-70
(collecting cases). As noted earlier, the JDA regulates jurisdiction with respect
to the charged offense (here, substantive RICO and RICO conspiracy), not the
individual acts comprising the offense. Thus, "once having established that
certain acts of the offense occurred after the defendant's eighteenth birthday,
the entire case may be tried in accordance with the adult rules of procedure and
evidence." Cruz, 805 F.2d at 1477; see also Welch, 15 F.3d at 1211; Doerr, 886
F.2d at 969-70.
88
Further, this court has held in the statute-of-limitations context that jurisdiction
over a single RICO predicate act confers jurisdiction over other predicate acts,
including some that could not be prosecuted separately. Because the limitations
period is measured from the point at which the crime is complete, see United
States v. Persico, 832 F.2d 705, 713 (2d Cir.1987) (citing Toussie v. United
States, 397 U.S. 112, 115, 90 S.Ct. 858, 860, 25 L.Ed.2d 156 (1970)), cert.
denied, 486 U.S. 1022, 108 S.Ct. 1995, 100 L.Ed.2d 227, 488 U.S. 982, 109
S.Ct. 532, 102 L.Ed.2d 564 (1988), a defendant may be liable under substantive
RICO for predicate acts the separate prosecution of which would be barred by
the applicable statute of limitations, so long as that defendant committed one
predicate act within the five-year limitations period. See id. at 714; see also
United States v. Salerno, 868 F.2d 524, 534 (2d Cir.) (same, citing Persico, 832
F.2d at 714), cert. denied, 491 U.S. 907, 109 S.Ct. 3192, 105 L.Ed.2d 700, 493
U.S. 811, 110 S.Ct. 56, 107 L.Ed.2d 24 (1989). Similarly, a defendant is liable
for participation in a RICO conspiracy for predicate acts the separate
prosecution of which would be time-barred, so long as that defendant has not
withdrawn from the conspiracy during the limitations period. See Salerno, 868
F.2d at 534; Persico, 832 F.2d at 713. While statutes of limitation are designed
to serve different ends than the JDA, cf. Welch, 15 F.3d at 1211 & n. 12, the
continuing nature of RICO offenses and the interest in avoiding multiple
Finally, Wong argues that because the government did not move to transfer his
case to adult status, his pre-eighteen acts should properly have been considered
acts of juvenile delinquency, and thus did not constitute "racketeering activity"
as defined in the RICO statute because they were not "punishable by
imprisonment for more than one year." 18 U.S.C. Sec. 1961(1). We disagree.
90
91
92
We conclude that the defendant's age at the time the substantive RICO or RICO
conspiracy offense is completed is the relevant age for purposes of the JDA,
and that an adult defendant may properly be held liable under RICO for
predicate offenses committed as a juvenile. Accordingly, the district court
properly had subject matter jurisdiction over the substantive RICO and RICO
conspiracy counts that incorporated the predicate acts committed by Wong and
Ngo as juveniles.
93
94
Roger Kwok was arrested on November 19, 1990. Because he was then only
seventeen years old (he was born April 5, 1973), the government charged him
in a separate juvenile complaint with conspiracy to commit murder and assault
with a dangerous weapon in aid of racketeering. At the same time, the United
States Attorney certified that the crimes charged against Kwok were violent
felonies and that there was a substantial federal interest in the case to warrant
the exercise of federal jurisdiction. See Sec. 5032. Kwok was arraigned on the
juvenile complaint on November 20, 1990, before Magistrate Judge John L.
Caden in the Eastern District of New York.
95
Before the arraignment, Pretrial Services presented the court, Kwok, and the
government with a pretrial services report which recited that in August 1989,
Kwok had been convicted of grand larceny in state court and sentenced to five
years probation. The government further discussed the prior convictions during
Kwok's November 26, 1990 detention hearing before Magistrate Judge Allyne
R. Ross.
96
97
On January 11, 1991, the district court held a conference to address whether the
government had properly filed the juvenile information and whether Kwok
would be transferred to adult status. At that conference, the government
provided the court with a certified copy of the records regarding Kwok's prior
state court conviction. The court then arraigned Kwok on the juvenile
information. After examining the court records firsthand at the state court,
defense counsel subsequently conceded that Kwok's prior conviction was for a
violent felony. The trial court then determined that the transfer of Kwok to
adult status was mandatory.
98
Kwok argues that the government did not comply with the requirement of Sec.
5032 that "proceedings against a juvenile under this chapter shall not be
commenced until any prior juvenile court records of such juvenile have been
received by the court." Essentially, Kwok contends that use of the term "prior
juvenile court records" in Sec. 5032 mandates the delivery of official court
records prior to the filing of the information.
99
100 In United States v. Parker, 956 F.2d 169 (8th Cir.1992), the Eighth Circuit
concluded that certification from a state court judge and several assistant
district attorneys from various jurisdictions stating that the juvenile had no
prior record satisfied the record certification provision, although the language
of the statute calls for such certification to be made by "the clerk of the juvenile
court." The court stated: "[W]e decline to stand on technicalities. We hold that
the government adequately complied with the statutory requirements of section
5032...." Id. at 170.
101 Courts have similarly demonstrated flexibility with respect to the requirement
for need certification. See United States v. Gonzalez-Cervantes, 668 F.2d 1073,
1077-78 (9th Cir.1981) (need certification stating that San Diego County
refused to assume jurisdiction over case, when certification should have
concerned Imperial County, where crime occurred, did not deprive court of
jurisdiction, although mistake constituted "substantive inaccuracy"); United
States v. Dennison, 652 F.Supp. 211, 213 (D.N.M.1986) (failure to certify, in
accordance with Sec. 5032, that "substantial federal interest" existed in case did
not deprive court of jurisdiction because juvenile information filed same day
revealed gravity of offense and that federal jurisdiction was exclusive).
102 The cases cited by Kwok are not to the contrary. In M.I.M., the First Circuit
held that proceedings may not commence against a juvenile "until the court
receives at least a good faith proffer of the juvenile records, or a certificate as to
their absence or unavailability." 932 F.2d at 1019 (emphasis added). The court
found dismissal of the proceedings appropriate, however, because no juvenile
records "were delivered to the district court until the morning of the
suppression hearing in th[at] case." Id. In Juvenile Male, there was an entire
failure to comply with the record certification requirement. 923 F.2d at 620.
Similarly, in Brian N., the Tenth Circuit found dismissal appropriate when the
government "failed to make any effort to provide the records to the court at the
time the information was filed," although the government "knew of the
existence of these juvenile defendants' court records." 900 F.2d at 223
(emphasis added).
103 The record certification provision should be read to afford the government a
limited amount of flexibility. Such a reading is especially appropriate in view of
the provision's legislative history. The record certification provision was added
to Sec. 5032 in 1984, as part of the Comprehensive Crime Control Act of 1984.
See Pub.L. No. 98-473, Sec. 1201(c), 98 Stat. 1837, 2150 (1964). The Senate
Report describing this new section commented:
104many respects, determination of whether a young offender is to be treated as a
In
juvenile or an adult and of the appropriate disposition of juveniles adjudicated
delinquent depends on the nature of the juvenile's prior record. Too often, however,
juvenile proceedings are undertaken without the benefit of such information. This
new paragraph stresses that these records be obtained beforehand whenever possible.
The Committee intends, however, that this new provision's requirements are to be
understood in the context of a standard of reasonableness. Thus, if reasonable efforts
to obtain a juvenile's records have been made, certification of their unavailability is
permissible. Also, the Committee intends that this new requirement be applied with
a degree of flexibility so that stages of proceedings to which such records are not
relevant are not delayed pending arrival of the records. Thus, it is appropriate that a
hearing concerning a transfer for prosecution await the arrival of a juvenile's court
records, since they are highly relevant to the transfer decision. However, it would
also be appropriate to commence delinquency proceedings (provided the government
had not moved for a transfer for prosecution) but stay the subsequent dispositional
hearing pending receipt of the records by the court, since such records are relevant to
the proper disposition of the offender, but not to the initial delinquency adjudication.
105 S.Rep. No. 225, 98th Cong., 2d Sess. 391 (1984), reprinted in 1984
U.S.C.C.A.N. 3182, 3531.
106 We conclude that the requirements of the record certification provision have
been satisfied in this case. The government provided the court below with
notice of Kwok's juvenile record (in the form of a pretrial services report) prior
to arraignment, and long before the information was filed. Further, the
government provided the district court with a certified copy of the juvenile
required by [the JDA]." The court then concluded, however, that the
government had filed its transfer motion on the twenty-ninth day of the speedy
trial period, and that the government's transfer motion tolled the speedy trial
clock under the "interest of justice" exception set forth in Sec. 5036. The court
implicitly concluded that the speedy trial clock began to run upon the
defendant's first appearance before a judicial officer (here, after arraignment on
the complaint on November 20, 1990), as is the case under the Speedy Trial
Act. See 18 U.S.C. Sec. 3161(c)(1).
113 On appeal, Kwok renews his argument, contending that: (1) the speedy trial
clock begins running from the time a defendant is incarcerated, not the time he
first appears before a judicial officer, and thus the government's motion was
made on the thirtieth day of the period; and (2) the government's motion was
inadequate to toll the speedy trial clock, because the government merely filed a
bare notice of motion that failed to set forth any facts that could serve as the
basis of a valid transfer under Sec. 5032, thereby engaging in "stalling tactics."
114 Kwok is correct that the thirty-day speedy trial period begins to run on the date
a juvenile is taken into federal custody. See United States v. Romulus, 949 F.2d
713, 716 (4th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1690, 118 L.Ed.2d
403 (1992); United States v. Doe, 882 F.2d 926, 927-28 & n. 3 (5th Cir.1989);
United States v. Doe, 642 F.2d 1206, 1207-08 (10th Cir.), cert. denied, 454
U.S. 817, 102 S.Ct. 94, 70 L.Ed.2d 86 (1981); United States v. Sechrist, 640
F.2d 81, 83-85 (7th Cir.1981). But see United States v. Andy, 549 F.2d 1281,
1283 (9th Cir.1977) (period begins to run on earlier of date government
certifies or should have certified case for prosecution in federal court, or date
upon which government formally assumes jurisdiction over juvenile). This
determination calls only for a one-day correction, however, with the result that
the government filed the motion to transfer on the thirtieth day of Kwok's
detention.
115 The period of time between December 19, 1990, when the government moved
to transfer Kwok, and January 31, 1991, when the district court determined that
transfer to adult status was mandatory because of Kwok's prior larceny
convictions, was properly excluded as in the interest of justice. See Romulus,
949 F.2d at 716 (period between filing motion to transfer and district court's
favorable decision "properly excluded under the interest-of-justice exclusion");
cf. Baker, 10 F.3d at 1397 (upholding determination that government's motion
to continue trial date was "in the interest of justice"); United States v. J.D., 525
F.Supp. 101, 107 (S.D.N.Y.1981) (period after filing motion to transfer to adult
status excludable under Speedy Trial Act, 18 U.S.C. Sec. 3161(h)(1)(F)). Once
the district court had granted the motion, Kwok was no longer "an alleged
delinquent" for purposes of the JDA, and thus Sec. 5036 was no longer
applicable to him. See Romulus, 949 F.2d at 716.
116 Nothing in either the Federal Rules of Criminal Procedure or the Criminal
Rules of the Eastern District of New York suggests that a motion would not be
deemed filed on the date the notice of motion is filed. See Fed.R.Crim.P. 47
(motion "may be supported by affidavit"); E.D.N.Y.Crim.R. 3(b) (notice of
motion and "any supporting affidavits" to be filed with clerk). Further, we
perceive no record support for Kwok's argument that the government did not
make the motion in good faith. Indeed, the district court stated that the
government had proceeded "in a reasonably expeditious manner," and had
presented a "serious" motion to transfer.
117 We conclude that the speedy trial provision of the JDA was not violated, and
that the district court therefore did not err in refusing to dismiss the case.
118Adequacy of Jury Instructions and Sufficiency of Evidence Supporting RICO
C.
Charges under Reves v. Ernst & Young.
119 All defendants-appellants were convicted of violating 18 U.S.C. Sec. 1962(c)
and (d). Section 1962(c) provides that:
120 It shall be unlawful for any person employed by or associated with any
enterprise engaged in, or the activities of which affect, interstate or foreign
commerce, to conduct or participate, directly or indirectly, in the conduct of
such enterprise's affairs through a pattern of racketeering activity or collection
of unlawful debt.
121 Id. (emphasis added). Section 1962(d) renders it unlawful for any person "to
conspire to violate" Sec. 1962(c).
122 Joseph Wang and Danny Ngo contend that in light of Reves v. Ernst & Young,
--- U.S. ----, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1992), which was decided
during the pendency of this appeal, the jury instruction explicating the language
of Sec. 1962(c) that is emphasized in the above quotation requires reversal.
This argument would benefit all defendants-appellants, since all were convicted
of violations of Sec. 1962(c) and (d). See supra note 1. Wang and Ngo also
claim that the evidence was insufficient to convict them under the Reves
standard.
123 Reves addressed the RICO liability of the outside auditor for a farmer's
affairs of the enterprise, or (2) the predicate offenses are related to the activities
of that enterprise.
129 Id. Although Reves does not mention Scotto, "we have recently recognized that
the Supreme Court's holding in Reves ... is irreconcilable with the relevant
portion of our decision in Scotto." United States v. Viola, 35 F.3d 37, 40 (2d
Cir.1994) (citing Napoli v. United States, 32 F.3d 31, 34 (2d Cir.1994).
130 The instruction challenged in this case is vulnerable as echoing Scotto, although
it focuses on different Sec. 1962(c) language than does Scotto. We have
addressed similar instructions in the aftermath of Reves in United States v.
Thai, 29 F.3d 785 (2d Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 456, 130
L.Ed.2d 364 (1994), Napoli, and Viola.
131 In Thai, we rejected a challenge to the conviction and underlying instruction
because the challenging defendant "was not at the bottom of the management
chain" and was thus included within the "ladder of operation" to which Sec.
1962(c) extends. Id. at 816. We then added the following:
132 In any event, we note that no defendant objected to the trial court's RICO
instruction in this regard, and thus we would not reverse on account of any error
in light of the later-decided Reves unless it were plain error. See United States
v. Weiner, 3 F.3d 17, 24 (1st Cir.1993) (reviewing Sec. 1962(c) charge only for
plain error because "Reves resolved a split between circuits ... so the objection
could easily have been made at trial"); see generally United States v. Tillem,
906 F.2d 814, 825 (2d Cir.1990) (applying plain-error standard even when error
in the instruction was established only by a decision rendered after the date of
the trial); United States v. Scarpa, 913 F.2d 993, 1019-20 (2d Cir.1990) (same).
Plain error is error so egregious as to result in a miscarriage of justice. See, e.g.,
United States v. Tillem, 906 F.2d at 825. If there was error in these
instructions, it surely was not plain error.
133 Id.; cf. Napoli, 32 F.3d at 37 (defendants "could have brought to this Court's
attention that other circuits disagreed with our analysis in Scotto and that the
Supreme Court had granted certiorari in Reves to resolve the split among the
circuits on the construction of section 1962(c)").
134 Certiorari was granted in Reves on February 24, 1992, well before the
commencement of the trial of this case. See Reves, --- U.S. ----, 112 S.Ct. 1159
(1992). No objection was taken at trial to the instruction challenged on this
appeal. Wang asserts, however, that he requested a charge "that conducting or
members of the White Tigers gang. Chen I. Chung was the gang's street leader.
143 Roger Kwok, Chiang T. Cheng, and Steven Ng, although lower in the gang's
hierarchy, operated under the direction of their superiors over an extensive
period of involvement in the affairs of the Green Dragons. Kwok carried out the
murders of Tina Sham and Tommy Mach. Cheng was convicted of three
murders in connection with the gang's activities. Ng was convicted of a
conspiracy to commit murder in furtherance of the Green Dragons' operations.
144 In view of this intensive and continuing involvement in the operations of the
Green Dragons, ordinarily (as in the case of most criminal organizations) under
the overall direction of the enterprise's leadership, we perceive no miscarriage
of justice in the RICO convictions in this case. We therefore conclude that
Reves poses no bar to affirmance of the RICO convictions rendered in this case.
Nor is there any basis to regard the trial evidence as insufficient to support the
RICO convictions of Wang and Ngo.
D. Sufficiency of the Evidence to Establish a Pattern of Racketeering.
145
146 Ngo contends that his many predicate acts were too widely separated in "time
[and] subject matter" to constitute a Sec. 1962(c) "pattern of racketeering
activity." This argument is frivolous. To establish that predicate acts are
sufficiently "related" and "continuous" to establish a "pattern of racketeering
activity" under Sec. 1962(c), see H.J. Inc. v. Northwestern Bell Tel. Co., 492
U.S. 229, 239-43, 109 S.Ct. 2893, 2900-03, 106 L.Ed.2d 195 (1989), it is only
necessary that the criminal acts " 'have the same or similar purposes, results,
participants, victims, or methods of commission, or otherwise are interrelated
by distinguishing characteristics and are not isolated events.' " Id. at 240, 109
S.Ct. at 2901 (quoting 18 U.S.C. Sec. 3575(e)) (now repealed).
147 The predicate acts that the jury found to have been proved against Ngo were
conspiracy to murder a Tung On leader in February 1987, conspiracy to commit
and commission of the Hampton Street armed robbery in January 1990, and
conspiracy to extort and attempted extortion in August 1990. While Ngo's
activities varied in type, all were designed to earn money for, or increase the
prestige of, the Green Dragons, all involved the same cast of characters, and all
continued for a sustained period. This evidence would easily permit a jury to
find a Sec. 1962(c) pattern of racketeering activity.
E. Suppression of Evidence from Electronic Surveillance.
148
149 As part of the investigation of the Green Dragons, the FBI and NYPD engaged
use of an anonymous jury, especially in view of evidence that Kin Fei Wong
and other members of the Green Dragons remained at large with the means to
harm jurors. See Paccione, 949 F.2d at 1192-93; Thomas, 757 F.2d at 1365.
Furthermore, at the time of the government's motion the case had received a
significant amount of coverage from the print and broadcast media, and the
government reasonably predicted that additional press coverage would
accompany the trial. The prospect of publicity militates in favor of jury
anonymity to prevent exposure of the jurors to intimidation or harassment. See
Vario, 943 F.2d at 240.
160 We also conclude that the district court took adequate precautions to safeguard
the defendants-appellants' constitutional rights. Although the district court
precluded disclosure of the jurors' names, addresses, and employers, the court
questioned prospective jurors about their familiarity with the case, the
defendants and the crime scenes, and inquired about their neighborhoods,
marital status, employment, spouse's and children's employment, education,
organizational affiliations, ethnicity, military service, and other matters. This
extensive voir dire adequately explored prospective jurors' "bias as to issues in
the case[ ] and as to the defendant[s]," United States v. Barnes, 604 F.2d 121,
140 (2d Cir.1979), cert. denied, 446 U.S. 907, 100 S.Ct. 1833, 64 L.Ed.2d 260
(1980), and "was more than sufficient to enable the defendants to exercise their
challenges meaningfully, and to obtain a fair and impartial jury." United States
v. Tutino, 883 F.2d 1125, 1133 (2d Cir.1989), cert. denied, 493 U.S. 1081,
1082, 110 S.Ct. 1139, 107 L.Ed.2d 1044 (1990).
161 Chan complains that when Judge Raggi told the jurors at the outset of trial that
government transportation would be provided to them because of their
"anonymous" status, no explanation was provided to allay the jurors' potential
concerns about that status. No request was made for such an explanation, so the
issue was waived. See Vario, 943 F.2d at 241. Further, when the jurors inquired
about having to eat lunch in the courthouse when other juries were permitted to
go to nearby restaurants, Judge Raggi explained that it would not be possible
for twelve jurors and six alternates to be accommodated at restaurants during
the one-hour lunch break that she scheduled, without any reference to their
anonymous status. These incidents provide no basis to conclude that this status
prejudiced the jury's deliberations to the disadvantage of defendants-appellants.
G. Admission of Evidence of Uncharged Criminal Activities.
162
163 During the trial, the government introduced wiretap evidence and live
testimony concerning a fight between the Green Dragons and a rival Asian
gang, known as Born to Kill ("BTK"), at the Mars Club in Manhattan during
June 1990. Sonny Wong testified that he had gone to the club with Danny Ngo,
Tung Tran, Brian Chan, Joseph Wang, and several other members of the Green
Dragons. Brian Chan and Tung Tran remained outside watching the entrance to
prevent other gangs from entering, while the others went into the club. Inside,
the Green Dragons encountered BTK members and a fight ensued. During the
melee, Wang was struck in the face with a beer bottle and (along with other
Green Dragon members) ran for the exit. Once outside, he retrieved a gun from
the gang's parked car and began firing at BTK members as they departed from
the club.
164 Objection was made to the introduction of this evidence on the grounds that it
was proof of an uncharged crime, cumulative, and prejudicial. See Fed.R.Evid.
403, 404(b). The government countered that the evidence was not cumulative
because it "establish[ed] the membership of these individuals in the Green
Dragons," and was some of the first evidence admitted concerning Ngo's
participation in the enterprise.
165 The district court ruled that the evidence was admissible to prove the existence
and nature of the Green Dragons "enterprise" and the participation of
defendants-appellants in that enterprise, rather than as evidence of other crimes
under Rule 404(b). The court determined that although other evidence had been
admitted regarding the defendants' violent conduct, the challenged evidence
was not cumulative because "there is no piece of evidence that the government
has proffered that I do not expect will be subject to challenge, if not here during
the evidentiary phase of the trial, [then] during summations of counsel." The
court then implicitly rejected the defendants' challenge to the evidence under
Rule 403, stating that, "I will always listen to objections, because ... if [the
testimony about the fight] gets too far afield, I would limit it under [Rule] 403."
166 On appeal, Joseph Wang and Brian Chan challenge the admission of this
testimony, claiming that it was cumulative and unfairly prejudiced them by
demonstrating their propensity to use guns and to engage in gunfights. We
disagree.
167 A district court has broad discretion regarding the admissibility of evidence and
its rulings will be disturbed only for an abuse of that discretion. See United
States v. Brady, 26 F.3d 282, 286 (2d Cir.) (collecting cases), cert. denied, --U.S. ----, 115 S.Ct. 246, 130 L.Ed.2d 168 (1994). No such abuse appears here.
Evidence is "relevant" if it has "any tendency" to prove or disprove a fact of
consequence in the trial. Fed.R.Evid. 401. As the district court recognized, this
evidence was probative of the existence, organization, and nature of the RICO
enterprise, a central allegation in the indictment. Accordingly, "the fact that it
172 Shortly after 5:30 p.m. on February 27, 1990, Peerapol Busapavanij was sitting
in the front seat of his car on Ketcham Street in Elmhurst, repairing his seat
belts. Busapavanij saw a car drive by him, and saw someone jump out of the
car and go down the street. He then heard some shots, turned and saw a man
firing a gun, and then saw the same car back up, pick up the gunman, and drive
away. When police responded to the scene, they found Jin Lee Soek dead from
two bullet wounds to the head. Analysis of gunpowder residue indicated that
one of the bullets had been fired from a distance of approximately two feet.
Busapavanij had noted the car's license number, and reported it to the police. It
was assigned to a 1984 grey Mercury registered to Brian Chan. Also, a police
detective interviewed Danny Kim, a young Korean male and a witness to the
crime.
173 On the evening of the murder, Sonny Wong was standing in the doorway of a
shop in Elmhurst when he saw Brian Chan and Tung Tran in Chan's Mercury
chasing four young Asian men who ran in the direction of Ketcham Street in
Elmhurst. Later that evening, Sonny Wong met Chan, Tran, and other members
of the gang at a pool hall. Chan told Sonny Wong that he had spotted members
of BTK, a rival gang, in their area and that he and Tran had given chase. Chan
told Wong that "he was sitting on the car door and he shot at one of the guys
that was running." Later that same evening, Wong had a conversation with
Tony Kim, a leader in the Korean Power ("KP") gang. On March 6, 1990, Chan
was arrested for the murder of Soek.
174 At trial, Sonny Wong testified about events surrounding the state prosecution of
Chan for the murder of Soek. Wong testified that Chan told him that there was
only one witness against Chan in the case, a member of the KP. Wong then
began to testify about a subsequent meeting at a restaurant between Tony Kim
and a number of KP members and Wong, who was accompanied by a number
of Green Dragons members. After a defense objection to the testimony on
hearsay grounds, the district court instructed Wong to testify only as to what he
had said during the conversation without mentioning what Tony Kim had said,
reiterating an instruction given by the court a few minutes earlier. The relevant
portion of Sonny Wong's testimony is reproduced in the margin. 6 In substance,
Wong testified that he had told Kim that Chan was in jail and that one of Kim's
"kids" was going to be a witness against Chan. Wong told Kim to tell his "kid"
not to testify; that Kim should "know the rules" that gangsters do not testify
against one another; and that after Chan was released from custody, Kim could
do "[w]hatever he wants to do" with Chan. After Chan's case was dismissed
and Chan was released, Chan told Sonny Wong that "the government had to
drop the case because the witness did not show up." Aleck Yim also testified
that Chan told him that the person who was "supposed to testify against him
underlines this reading of the evidence. The summation made reference only to
Wong's portion of the conversation, and did not invite the jury to infer anything
from Tony Kim's participation in the conversation.
179 Chan argues that there was insufficient evidence to support his conviction for
Soek's murder because: (1) although the grey Mercury was registered to Chan,
other members of the gang had driven the car; and (2) Chan's statement to
Sonny Wong that he had been sitting on the door of the car when he shot at the
rival gang members was inconsistent with both Busapavanij's eyewitness
testimony and autopsy reports indicating that the injuries had been inflicted at
close range. We are persuaded, however, that there was adequate evidence
from which a jury, drawing all permissible inferences in favor of the
government, could rationally conclude that Chan was guilty beyond a
reasonable doubt. See United States v. Chang An-Lo, 851 F.2d 547, 553-54 (2d
Cir.), cert. denied, 488 U.S. 966, 109 S.Ct. 493, 102 L.Ed.2d 530 (1988).
180 Around the time of the homicide, Sonny Wong had seen Brian Chan and Tung
Tran speed off towards Ketcham Street chasing a group of young Asian males.
Chan's car was identified as the vehicle used by the killer to flee the scene of
the murder. Later that evening, Chan boasted about having shot at a rival gang
member. Significantly, Brian Chan never told either Sonny Wong or Aleck
Yim that he had been wrongly accused and was not responsible for the murder.
Finally, Sonny Wong testified to the efforts of Chan and his Green Dragons
cohorts to prevent the testimony of a KP witness against Chan regarding the
Soek murder, and despite Chan's argument to the contrary, we have concluded
that this evidence was admissible against him.
I. Downward Departures.
181
182 Chen I. Chung, Roger Kwok, Chiang T. Cheng, and Alex Wong assert that the
district court erred in refusing to grant them downward departures. Essentially,
Chung, Kwok, and Cheng argue that they were entitled to downward
departures because of the lack of guidance they received during their
upbringing. Wong claims that the district court erred in rejecting his argument
that his case falls outside the "heartland" of the sentencing guidelines for
RICO/homicide prosecutions because the Sentencing Commission did not
consider the special problems of youth gang members in writing the guidelines.
Their claims lack merit.
183 A sentencing court's refusal to depart downward from the indicated guideline
sentencing range is ordinarily not appealable. See United States v. Piervinanzi,
23 F.3d 670, 685 (2d Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 259, 130
L.Ed.2d 179, --- U.S. ----, 115 S.Ct. 267, 130 L.Ed.2d 185 (1994). This rule
does not apply, however, when the sentencing court mistakenly believed that it
lacked the authority to depart. See id.; United States v. Lawal, 17 F.3d 560, 563
(2d Cir.1994).
184 This court has not recognized "youthful lack of guidance" as a valid basis for
downward departure. See United States v. Haynes, 985 F.2d 65, 68 (2d
Cir.1993).7 Moreover, the district court explicitly considered granting such a
departure to Chang and Kwok, but declined to do so as an exercise of discretion.
Although recognizing that such departures might be warranted in some cases,
the court found that the hardships suffered by these defendants when growing
up were not so severe as to mitigate the murders that they committed. The
district court also explicitly declined to grant a downward departure to Chung,
but did not specifically advert to any lack of youthful guidance in doing so
because that ground was not argued to the court. We are without authority to
review the court's decision not to depart downward in imposing these
sentences.
185 Alex Wong contends that youth gang cases are not within the "heartland" of the
RICO statute because youth gang members are more amenable to psychological
counseling and rehabilitation than adults. Wong claims that this distinction was
not adequately taken into consideration by the Sentencing Commission when
formulating the Guidelines, and that his case should be remanded for
consideration of whether a downward departure is appropriate in this case. See
18 U.S.C. Sec. 3553(b); United States v. Skinner, 946 F.2d 176, 179 (2d
Cir.1991).
186 We are unpersuaded. The Sentencing Commission has specifically considered
age as a factor in sentencing, and has determined that it "is not ordinarily
relevant" in determining whether a downward departure is appropriate. See
USSG Sec. 5H1.1, p.s. Moreover, it is well established that a district court
should consider a defendant's potential for rehabilitation in determining a
sentence. See 18 U.S.C. Sec. 3553(a)(1), (2)(D) (1988). It is therefore
unnecessary and inappropriate to carve out a separate "youth gang" exception to
the sentencing guidelines for RICO/homicide prosecutions.
187 In this case, the district court explicitly acknowledged that a defendant's
potential for rehabilitation was "a factor for consideration" in sentencing.
However, the court determined that Wong's prospects for rehabilitation were
too speculative to warrant a departure. In doing so, the court carefully weighed
the evidence before it, including wiretap evidence in which Wong spoke about
"using his psychiatric counseling to his advantage" in sentencing. The district
195 (f) If the defendant establishes that (1) he is not able and, even with the use of a
reasonable installment schedule, is not likely to become able to pay all or part
of the fine required by the preceding provisions, or (2) imposition of a fine
would unduly burden the defendant's dependents, the court may impose a lesser
fine or waive the fine. In these circumstances, the court shall consider
alternative sanctions in lieu of all or a portion of the fine, and must still impose
a total combined sanction that is punitive. Although any additional sanction not
proscribed by the guidelines is permissible, community service is the generally
preferable alternative in such instances.
196 It is clear that a fine may constitutionally be imposed upon an indigent
defendant, who may assert his continuing indigence as a defense if the
government subsequently seeks to collect the fine. See United States v. Torres,
901 F.2d 205, 247-48 (2d Cir.) (collecting cases), cert. denied, 498 U.S. 906,
111 S.Ct. 273, 112 L.Ed.2d 229 (1990). It is also clear that USSG Sec. 5E1.2(f)
authorizes, but does not mandate, the imposition of a lesser fine or waiver of
any fine in the case of an indigent defendant. See Sec. 5E1.2, comment. (n. 3).
In addition, Sec. 5E1.2(a) imposes upon the defendant the burden of
establishing indigence, see United States v. Marquez, 941 F.2d 60, 65-66 (2d
Cir.1991), which may be satisfied either by independent evidence or by
reference to the defendant's presentence report. See Rivera, 971 F.2d at 895
(citing United States v. Labat, 915 F.2d 603, 606 (10th Cir.1990)).
197 Our precedents, however, appear to direct that the discretion vested in
sentencing courts by Sec. 5E1.2(f) to waive a fine where indigence is shown
should generally be executed in favor of such a waiver. Consistently, we do not
believe that these precedents should be read to authorize the imposition of a
fine despite a showing of present and future inability to pay, based upon some
remote fortuity like the possibility that a defendant will win a lottery. We have
already noted our statement in Rivera that a fine "should not be imposed" in the
absence of some evidence of the defendant's future ability to pay it. 971 F.2d at
895. In United States v. Stevens, 985 F.2d 1175 (2d Cir.1993), we remanded
for resentencing when the district court imposed a $2,000,000 fine despite a
presentence report that the defendant was indigent, directing that the district
court provide the defendant "an opportunity to come forward with evidence of
his inability to pay and ... consider the appropriate factors in determining
whether or not to impose a fine and if so, in what amount." Id. at 1188. In
United States v. Rivera, 22 F.3d 430 (2d Cir.1994), while approving the fine
imposed in that case, we stated that a "sentencing court may not base the
imposition of a fine upon its mere suspicion that the defendant has funds." Id. at
440 (citing Stevens, 985 F.2d at 1188). On the other hand, an inference that a
defendant has funds may be drawn from circumstantial evidence, see United
States v. Orena, 32 F.3d 704, 716 (2nd Cir.1994), bearing in mind that the
defendant must sustain the burden of establishing indigence. See USSG Sec.
5E1.2(a).
198 The proper balance was struck, in our view, by the Third Circuit in United
States v. Seale, 20 F.3d 1279 (3d Cir.1994). The court stated in that case: "In
attempting to predict future ability to pay, district courts must be realistic and
must avoid imposing a fine when the possibility of a future ability to pay is
based merely on chance." Id. at 1286 (collecting cases). The court imposed a
fine, however, because the defendants in that "highly publicized crime" might
be able to generate future income "from books or movies about [the] crime." Id.
199 Seale does not provide an entirely satisfactory resolution of the issue, because it
appears that the government would be unable to move for an amendment of
sentence in the unlikely event that any of the defendants-appellants did win a
lottery. See 18 U.S.C. Secs. 3572(c), 3573. We nonetheless conclude that the
district court improperly based one or more of the fines that it imposed in this
case upon that possibility. In view of the cross-adoption of appeal arguments by
defendants-appellants, see supra note 1, we vacate the fines imposed in this
case and remand for their reconsideration.K. Other Claims.
200 The defendants raise a host of other challenges to their convictions. Chen I.
Chung contends that the district court: (1) improperly restricted cross
examination of Sonny Wong concerning allegedly coercive official conduct in
securing Wong's cooperation; and (2) committed reversible error by requesting
that the government clarify on redirect examination an ambiguity in testimony
elicited during cross-examination.
201 Danny Ngo contends that: (1) he was a "peripheral defendant" and should have
been tried separately; and (2) there was insufficient evidence to support his
convictions for (a) conspiracy to murder the leader of the Tung On gang, (b)
the robbery of the Hampton Street apartment, (c) the attempted extortion of
Jack Tran, and (d) the conspiracy to commit assault upon the White Tigers.
202 Joseph Wang argues that: (1) there was insufficient evidence to support his
convictions for the robbery of the Hampton Street apartment and for conspiracy
to rob the Long Island Dumpling Restaurant; (2) the district court erred in
admitting an allegedly inflammatory photograph of the crime scene at the Tien
Chiau Restaurant that featured a large pool of blood; and (3) there was
insufficient evidence to prove that he participated in the Tien Chiau Restaurant
murders to maintain or increase his participation in a RICO enterprise within
The Honorable Jacob Mishler, United States District Judge for the Eastern
District of New York, sitting by designation
All appellants except Danny Ngo have joined in the applicable arguments of
codefendants pursuant to Fed.R.App.P. 28(i). Accordingly, sponsorship is
irrelevant in the case of arguments that are applicable to a number of
defendants
within the ensuing sixty days. On August 27, 1993, this court sought
clarification from Tran through Kellman regarding whether Tran wished
Kellman to appear at oral argument on his behalf. Tran did not answer this
query, but requested a copy of the trial transcript, which Kellman provided. To
date, we have received no indication from Tran whether he wishes us to
consider Kellman's oral argument, nor have we received any supplemental pro
se brief from him. Accordingly, we have deemed Tran's appeal to be based
upon the arguments advanced by Kellman at oral argument and set forth in her
brief, as well as applicable arguments of his codefendants
3
The JDA defines a "juvenile" as "a person who has not attained his eighteenth
birthday, or for the purpose of proceedings and disposition under this chapter
for an alleged act of juvenile delinquency, a person who has not attained his
twenty-first birthday...." 18 U.S.C. Sec. 5031. "Juvenile delinquency" is
defined as "the violation of a law of the United States committed by a person
prior to his eighteenth birthday which would have been a crime if committed by
an adult." Id
The conduct underlying Wong's pre-eighteen predicate acts satisfy the elements
of the following crimes under New York law, carrying the specified potential
sentences: second degree murder (for the Tien Chiau Restaurant murders), a
class A-I felony, see N.Y.Penal Law Sec. 125.25, fifteen years to life; second
degree conspiracy (for the conspiracy underlying the Tien Chiau Restaurant
murders and the conspiracy to murder Carol Huang), a class B felony, see id.
Sec. 105.15, six to twenty-five years; first degree robbery (Hampton Street
robbery), a class B felony, see id. Sec. 160.15, one to twenty-five years; fourth
degree conspiracy (Hampton Street robbery), a class E felony, see id. Sec.
105.10, one to four years; third degree bribery (bribery of a public official), a
class D felony, see id. Sec. 200.00, one to seven years. See generally id. Sec.
70.00 (establishing sentences)
Q: What did you say during the course of this meeting, Mr. Wong?
A: I told Tony Kim that Brian was in jail and that his kid is testifying as a
witness against him.
A: Tony Kim.
Q: Meaning what? What did you mean by that?
A: Whatever he wants to do.
Q: To whom, Mr. Wong?
A: To Brian Chan.
Q: Approximately how long was this meeting, Mr. Wong?
A: Over an hour.
Q: Did anything happen regarding Brian Chan's case after this meeting?
A: Yes.
Q: How do you know?
A: I went to court with [Brian Chan's] lawyers that day when he--when his case
was dismissed.
....
Q: Did you talk to Brian Chan after that, Mr. Wong?
A: Yes.
Q: What did he say to you after that?
A: He told me the government had to drop the case because the witness did not
show up.
7
Chan and Tran erroneously believe that the district court imposed a fine of
$250,000 for each count of conviction, for fines totalling several millions of
dollars. However, the $250,000 fines imposed on each of them represent the
total fine for all their offenses