United States v. Xing Lin , 683 F. App'x 41 ( 2017 )


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  • 14-4133
    United States v. Xing Lin
    UNITED STATES COURT OF APPEALS
    FOR THE SECOND CIRCUIT
    SUMMARY ORDER
    RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
    ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
    PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
    DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
    ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
    SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
    At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 20th day of March, two thousand seventeen.
    PRESENT: JON O. NEWMAN,
    DENNIS JACOBS,
    Circuit Judges,
    LEWIS A. KAPLAN,*
    District Judge,
    - - - - - - - - - - - - - - - - - - - -X
    UNITED STATES OF AMERICA,
    Appellee,
    -v.-                                               14-4133**
    XING LIN,
    Defendant-Appellant.
    - - - - - - - - - - - - - - - - - - - -X
    *
    Judge Lewis A. Kaplan, of the United States District
    Court for the Southern District of New York, sitting by
    designation.
    **
    We respectfully direct the Clerk of Court to amend
    the caption.
    1
    FOR APPELLANT:             MEGAN WOLFE BENETT, Kreindler &
    Kreindler LLP, New York, NY.
    FOR APPELLEE:              JENNIFER E. BURNS (with Michael
    Ferrara on the brief), for Preet
    Bharara, United States Attorney
    for the Southern District of New
    York, New York, NY.
    Appeal from a judgment of the United States District
    Court for the Southern District of New York (Cedarbaum, J.).
    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
    AND DECREED that the judgment of the district court be
    AFFIRMED.
    Xing Lin appeals from the judgment of the United States
    District Court for the Southern District of New York
    (Cedarbaum, J.). A jury convicted Lin of extortion,
    racketeering, conspiracy to commit racketeering, and murder
    through the use of a firearm during and in relation to a
    crime of violence, but acquitted him of conspiracy to commit
    extortion. The district court sentenced Lin principally to
    life in prison on the murder and racketeering offenses, and
    to a concurrent twenty-year sentence on the substantive
    extortion offense. We assume the parties’ familiarity with
    the underlying facts, the procedural history, and the issues
    presented for review.
    1. Lin argues that the district court improperly
    rejected his attempt to plead guilty. At Lin’s first
    attempted plea allocution, the district court was
    unconvinced that Lin had adequately pleaded to all elements
    of the charged crime. Near the end of that proceeding, the
    district court stated: “I will accept the plea, but I would
    really like to hear another allocution.” App’x at 84. The
    district court requested additional legal authorities and a
    further allocution the following day. However, when Lin
    appeared the next day, his counsel immediately informed the
    district court that Lin was “not prepared to go forward with
    his plea of guilty that we attempted to enter yesterday.”
    App’x at 91.
    We review a district court’s decision to accept or
    reject a guilty plea for abuse of discretion, United States
    v. Severino, 
    800 F.2d 42
    , 46-47 (2d Cir. 1986). The
    district court did not abuse its discretion in asking the
    2
    parties to reappear the next day to explain the legal and
    factual basis for the plea. The district court did not
    improperly “reject” Lin’s guilty plea; Lin only attempted to
    enter a plea the previous day, the district court said it
    “will” accept it after further allocution, but Lin then
    decided not to enter a plea.
    2.a. Lin was convicted of using a firearm “in relation
    to a crime of violence.” See 
    18 U.S.C. § 924
    (c)(1)(A), (j).
    Lin argues that the predicate crime, Hobbs Act extortion, is
    not a “crime of violence.” In relevant part, § 924 defines
    a “crime of violence” as a felony that “by its nature,
    involves a substantial risk that physical force against the
    person or property of another may be used in the course of
    committing the offense.” Id. § 924(c)(3)(B). After Lin’s
    trial, the Supreme Court provided guidance on how to
    construe a similar statutory provision: “[d]eciding whether
    the . . . clause covers a crime . . . requires a court to
    picture the kind of conduct that the crime involves in ‘the
    ordinary case,’ and to judge whether that abstraction
    presents a serious potential risk of physical injury.”
    Johnson v. United States, 
    135 S. Ct. 2552
    , 2557 (2015). Lin
    argues that the “ordinary case” of Hobbs Act extortion does
    not involve a substantial risk of the use of physical force.
    Because Lin did not raise this argument below, it is
    reviewed for plain error. See Fed. R. Crim. P. 52(b).
    Plain error review requires the defendant to show: “(1)
    there is an error; (2) the error is clear or obvious, rather
    than subject to reasonable dispute; (3) the error affected
    the appellant’s substantial rights, which in the ordinary
    case means it affected the outcome of the district court
    proceedings; and (4) the error seriously affects the
    fairness, integrity or public reputation of judicial
    proceedings.” United States v. Vilar, 
    729 F.3d 62
    , 70 (2d
    Cir. 2013) (quoting United States v. Marcus, 
    560 U.S. 258
    ,
    262 (2010)).
    “For an error to be plain, it must, at a minimum, be
    clear under current law.” United States v. Whab, 
    355 F.3d 155
    , 158 (2d Cir. 2004) (quotation marks omitted) (quoting
    United States v. Weintraub, 
    273 F.3d 139
    , 152 (2d Cir.
    2001)). “We typically will not find such error where the
    operative legal question is unsettled, including where there
    is no binding precedent from the Supreme Court or this
    Court.” 
    Id.
     (quotation marks omitted).
    3
    It is far from clear that the “ordinary case” of Hobbs
    Act extortion would not entail a substantial risk of the use
    of physical force. Although Lin cites several Second
    Circuit cases indicating that fear of economic harm can be
    sufficient for Hobbs Act extortion, these examples are not
    necessarily the “ordinary case.” Therefore, even if the
    district court did err, such error was not “clear or
    obvious.”1
    b. Lin asserts error in the aiding and abetting
    instructions on his 
    18 U.S.C. § 924
    (c) count. After Lin’s
    trial, the Supreme Court decided Rosemond v. United States,
    
    134 S. Ct. 1240
    , 1251-52 (2014), which held that a defendant
    may not be convicted for aiding and abetting use of a
    firearm in relation to a crime of violence unless the
    district court instructs the jury that the defendant had
    “advance knowledge of a firearm’s presence.” The district
    court did not do so, and the government concedes that
    Rosemond renders the instructions erroneous.
    We review for plain error and affirm Lin’s conviction
    because there is not a “reasonable probability that the
    error affected the outcome of the trial.” United States v.
    Prado, 
    815 F.3d 93
    , 102 (2d Cir. 2016) (quoting United
    States v. Marcus, 
    628 F.3d 36
    , 42 (2d Cir. 2010)).
    Lin argues that he did not know his bodyguard was
    carrying a weapon when Lin and his bodyguard entered a
    nightclub in July 2004; this bodyguard shot three people,
    killing two. However, two witnesses testified that Lin
    verbally ordered his bodyguard to “shoot” one of the
    victims, which would support an inference of foreknowledge.
    App’x at 308, 640. Lin attacks the credibility of these
    witnesses and argues that there is no other evidence to
    suggest Lin’s advance knowledge. However, a third witness
    testified that, in a phone call after the murder, Lin said
    he had only intended his bodyguard “to shoot [the victim] on
    his arms or legs.” App’x at 511. The testimony of these
    three witnesses defeats any “reasonable probability” that
    1
    Lin also asserts for the first time on appeal that
    
    18 U.S.C. § 924
    (c)(3)(B) is unconstitutionally vague. We
    rejected that argument in United States v. Hill, 
    832 F.3d 135
    , 145 (2d Cir. 2016).
    4
    the erroneous jury instruction would have affected the
    trial’s outcome.2
    3. Lin’s racketeering convictions required a jury
    finding of at least two acts of racketeering activity. See
    
    18 U.S.C. §§ 1962
    (c) & (d); 1961(5). The special verdict
    listed five acts of racketeering activity: murder in
    violation of state law, extortion, and three acts of
    conducting an illegal gambling operation. Lin contends that
    there is insufficient evidence to support the findings as to
    gambling because the government failed to introduce evidence
    that he conducted games of chance as defined by state law.
    Assuming Lin is correct, the jury still would have
    found that Lin engaged in two acts of racketeering (murder
    and extortion). Although two predicate acts can justify a
    racketeering conviction, Lin argues that the jury might have
    acquitted him if it had to rely only on the murder and
    extortion charges. In at least two instances, we have
    declined to uphold racketeering convictions after
    invalidating several of the predicate acts, notwithstanding
    two or more remaining valid predicate acts. See United
    States v. Biaggi, 
    909 F.2d 662
    , 693 (2d Cir. 1990); United
    States v. Delano, 
    55 F.3d 720
    , 728-29 (2d Cir. 1995).
    However, in those cases, we emphasized that the invalidated
    predicate acts “represented the bulk of th[e] [racketeering]
    prosecution, eclipsing all else.” Delano, 
    55 F.3d at 729
    .
    It cannot be said that issues related to gambling “eclipsed”
    discussion of murder and extortion. Most of the
    government’s closing argument dealt with the murders and
    other violence associated with Lin. We decline to vacate
    Lin’s racketeering convictions.
    4. Lin requests a new trial based on the government’s
    purportedly improper summation. “[A] defendant who seeks to
    overturn his conviction based on alleged prosecutorial
    misconduct in summation bears a heavy burden,” and must show
    that the allegedly improper comments, “in the context of the
    entire trial, [were] so severe and significant as to have
    2
    We would reach the same conclusion regardless of
    whether the government or Lin bears the burden of
    establishing prejudice (or the lack thereof). Accordingly,
    we need not consider whether the “modified plain error
    rule,” which places the burden on the government, remains
    good law. See Prado, 815 F.3d at 102.
    5
    substantially prejudiced him, depriving him of a fair
    trial.” United States v. Farhane, 
    634 F.3d 127
    , 167 (2d
    Cir. 2011) (quotation marks and citations omitted).
    Lin asserts that the government summation improperly
    shifted the burden of proof to the defense, disparaged
    defense counsel, and vouched for the government’s witnesses.
    We disagree. When read in context, the prosecutor’s
    comments fairly responded to Lin’s attack on the credibility
    of the government witnesses. “The government is ordinarily
    permitted to respond to arguments impugning the integrity of
    its case.” United States v. Bautista, 
    23 F.3d 726
    , 733 (2d
    Cir. 1994) (quotation marks and citation omitted). In any
    event, Lin has not sustained his “heavy burden” of showing
    that the comments were so severe in the context of the
    entire proceeding as to deprive Lin of a fair trial.
    Farhane, 
    634 F.3d at 167
    .
    5. Lin challenges his sentence as procedurally and
    substantively unreasonable. Lin did not raise these
    challenges below, so they are reviewed for plain error.
    United States v. Gamez, 
    577 F.3d 394
    , 397 (2d Cir. 2009).
    a. Lin argues that the sentencing range was
    miscalculated because his racketeering guideline range was
    pegged to first-degree murder rather than second-degree
    murder. Lin points to no precedent indicating this was
    error. Indeed, we have held in a similar case that first-
    degree murder could be the proper reference, at least in
    some circumstances. See United States v. Minicone, 
    960 F.2d 1099
    , 1110 (2d Cir. 1992). If there was error, it was not
    “clear,” and therefore not plain. See Whab, 
    355 F.3d at 158
    .
    b. Lin contends that the district court’s brief
    explanation of the sentence was insufficient to ensure that
    the district court adequately considered the appropriate
    sentencing factors. However, the district court
    acknowledged the seriousness of Lin’s crime, mentioned his
    personal traits, stated that she reviewed all of the
    parties’ filings, listened to Lin’s sentencing statement,
    and adopted the findings contained in the Presentence
    Report. Lin has failed to show that the brevity of the
    court’s explanation “seriously affects the fairness,
    integrity or public reputation of judicial proceedings.”
    Vilar, 729 F.3d at 70. Consequently, there is no plain
    error.
    6
    c. Lin alludes to the possibility that his ethnicity
    affected his sentence. The comments that Lin cites do not
    come close to suggesting that the district court’s
    sentencing was improperly influenced by race.
    d. Lin argues his life sentence is substantively
    unreasonable. But Lin was responsible for his subordinate
    purposefully killing one person and inadvertently killing a
    bystander. Lin also engaged in racketeering and extortion.
    His sentence was “within the range of permissible
    decisions,” and we do not disturb it. United States v.
    Rigas, 
    490 F.3d 208
    , 238 (2d Cir. 2007) (quoting United
    States v. Fuller, 
    426 F.3d 556
    , 562 (2d Cir. 2005)).
    For the foregoing reasons, and finding no merit in
    Lin’s other arguments, we hereby AFFIRM the judgment of the
    district court.
    FOR THE COURT:
    CATHERINE O’HAGAN WOLFE, CLERK
    7