United States v. Ho ( 2020 )

19-761
United States v. Ho
United States Court of Appeals
For the Second Circuit
August Term 2019
Argued: March 11, 2020
Decided: December 29, 2020
No. 19-761
UNITED STATES OF AMERICA,
Appellee,
v.
CHI PING PATRICK HO, AKA PATRICK C.P. HO,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of New York
No. 17-cr-779, Loretta A. Preska, Judge.
Before: RAGGI, CHIN, AND SULLIVAN, Circuit Judges.
Defendant-Appellant Chi Ping Patrick Ho appeals his conviction after trial
in the Southern District of New York (Preska, J.) on charges of conspiracy to violate
the Foreign Corrupt Practices Act (“FCPA”), conspiracy to commit money
laundering, substantive money laundering, and violations of the FCPA. Ho
argues that (1) the evidence was insufficient to support his FCPA conviction under
15 U.S.C. § 78dd-2; (2) the district court erroneously instructed the jury that a
violation of § 78dd-3 constituted specified unlawful activity that could support a
money laundering conviction; (3) the wires at issue in his money laundering
conviction did not go “to” or “from” the United States as required to convict; (4)
the district court abused its discretion in admitting certain evidence at trial; and
(5) the indictment was invalid because it contained material contradictions and
charged Ho under mutually exclusive sections of the FCPA. We reject each of Ho’s
arguments and affirm the district court’s judgment in all respects.
AFFIRMED.
BENJAMIN E. ROSENBERG, Dechert LLP, New York,
New York (Katherine M. Wyman, Dechert LLP,
New York, New York, Edward Y. Kim, Jonathan F.
Bolz, Krieger Kim & Lewin LLP, New York, New
York, on the brief), for Defendant-Appellant Chi Ping
Patrick Ho.
DOUGLAS ZOLKIND, Assistant United States
Attorney (Daniel C. Richenthal, Catherine E.
Ghosh, Anna M. Skotko, Assistant United States
Attorneys, for Audrey Strauss, Acting United
States Attorney for the Southern District of New
York, Paul A. Hayden, Trial Attorney, Fraud
Section, Criminal Division, United States
Department of Justice, on the brief), for Appellee
United States of America.
RICHARD J. SULLIVAN, Circuit Judge:
Defendant-Appellant Dr. Chi Ping Patrick Ho, a citizen of Hong Kong,
appeals from a judgment of conviction entered March 27, 2019, in the United States
District Court for the Southern District of New York (Preska, J.), following a jury
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trial. The indictment principally alleged that Ho, as an officer or director of a U.S.-
based organization, paid bribes on behalf of a Chinese company to the leaders of
Chad and Uganda in exchange for commercial advantages. The jury convicted Ho
on seven counts charging violations of and conspiracy to violate two provisions of
the Foreign Corrupt Practices Act (“FCPA”), 15 U.S.C. §§ 78dd-2 and 78dd-3, and
the money laundering statute, 18 U.S.C. § 1956(a)(2)(A). Judge Preska sentenced
Ho to 36 months’ imprisonment and imposed a fine of $400,000.
On appeal, Ho challenges his conviction on several grounds, maintaining
that (1) there was insufficient evidence supporting his convictions under § 78dd-2
of the FCPA; (2) a violation of § 78dd-3 of the FCPA is not a specified unlawful
activity under the money laundering statute; (3) the money laundering statute
does not cover a transaction that merely goes “through” correspondent bank
transfers in the United States; (4) the district court abused its discretion in
admitting certain evidence at trial; and (5) the indictment was defective as it
contained material contradictions and charged Ho under mutually exclusive
sections of the FCPA. For the reasons set forth below, we reject each of Ho’s
challenges and affirm the district court’s judgment.
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I. BACKGROUND 1
The evidence at trial established that Ho used his position as an officer or
director of a U.S.-based non-governmental organization (“NGO”) to engage in two
bribery schemes for the benefit of China CEFC Energy Company Limited (“CEFC
Energy”), a for-profit conglomerate based in Shanghai. CEFC Energy funded a
non-profit NGO in Hong Kong known as the China Energy Fund Committee, or
CEFC Limited (“CEFC NGO”). That entity, in turn, funded a non-profit U.S.
entity, China Energy Fund Committee (USA) Inc. (the “U.S. NGO”), which was
incorporated in Virginia, where it had an office, and which used a suite affiliated
with CEFC Energy in Trump World Tower in New York. A former employee of
CEFC NGO testified that CEFC NGO treated the U.S. NGO as the U.S. arm of its
organization. See App’x at 194–204; see also discussion infra Section III.A. Beyond
funding the U.S. NGO, CEFC NGO held itself out as an organization
“headquartered in Hong Kong” with an office “in the United States,” App’x at 731,
and touted itself as a “Chinese think tank registered in Hong Kong and also in the
1Because Ho appeals his conviction following a jury trial, we recite the facts from the trial
evidence “in the light most favorable to the government, crediting any inferences that the
jury might have drawn in its favor.” United States v. Napout, 963 F.3d 163, 168 (2d Cir.
2020) (internal quotation marks omitted).
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USA as a public charity,” with “special consultative status” with the United
Nations, id. at 592.
Ho served as an officer and the principal director of CEFC NGO, holding
the title of Secretary General. He was also an officer and director of the U.S. NGO,
and ran the daily operations of both entities. As part of his work with CEFC NGO
(including through the U.S. arm), Ho often visited the United Nations and made
contacts with high-ranking officials, including Presidents of the UN General
Assembly, to help CEFC Energy find business opportunities. As relevant to this
case, Ho engaged in two schemes – the “Chad scheme” and the “Uganda scheme”
– to advance CEFC Energy’s commercial interests.
A. Chad Scheme
Around September 2014, a CEFC Energy official asked Ho to arrange a
meeting with the President of Chad, Idriss Déby (“Déby”), to help CEFC Energy
pursue business in Chad. Ho agreed and asked a former President of the UN
General Assembly, Vuk Jeremić, for an introduction to Cheikh Gadio, a former
Foreign Minister of Senegal who knew Déby. Jeremić contacted Gadio and
suggested that he meet Ho, his “friend[] from China who was doing a lot of work
with the United Nations” and working at a Chinese oil company. App’x at 250.
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Gadio and Ho eventually met at the Trump World Tower suite used by
CEFC Energy and the U.S. NGO. There, Ho explained CEFC Energy’s interest in
Chad and sought Gadio’s assistance in gaining access to Déby. Gadio agreed to
help set up meetings between CEFC and Déby. In late October 2014, Gadio met
with Déby in Chad, and advised Ho that Déby was interested in working with
CEFC Energy.
Later that year, Ho and a delegation from CEFC Energy met with Déby in
Chad on several occasions. At the first meeting, in November 2014, Déby invited
CEFC Energy to consider an opportunity to acquire an oilfield in Chad. He noted
that other oil companies were interested in that block and suggested next steps to
enable CEFC Energy to advance a bid. About a week later, Ho asked Gadio to
arrange another meeting with Déby. Gadio advised against a second meeting at
that time, but in the face of Ho’s insistence, set up the meeting.
The second meeting took place on December 8, 2014, at Déby’s presidential
compound and involved a delegation from CEFC Energy, Ho, Gadio, and Gadio’s
son and business partner, Boubker Gadio, as well as Déby and his chief of staff.
The participants discussed the Chadian oilfield opportunity, and at the end of the
meeting, the CEFC delegation presented Déby with wrapped gift boxes. Déby did
6
not open the boxes until after the meeting; when he did, he found that the boxes
contained $2 million in cash. Déby called Gadio – who by this time had gone back
to his hotel – and demanded that he return to the compound.
When Gadio arrived, Déby expressed outrage that the boxes contained cash.
Déby asked Gadio if he knew in advance about the cash gift, and Gadio responded
that he did not. At Déby’s request, Ho, Gadio, and the CEFC delegation met with
Déby and his chief of staff the next day, December 9, 2014. At that meeting, Déby
expressed shock and anger at receiving cash, and explained that he did not know
“why people believe all African leaders are corrupt.” Id. at 300.
Ho responded that he was “very impressed by [Déby’s] reaction and . . .
attitude,” id. at 301, while members of the CEFC delegation insisted that the cash
had been intended as a donation to the country, not as a bribe to Déby. Déby
replied that “donations are not made this way” and again refused to accept the
cash. Id. at 304. Ultimately, the delegation promised a formal letter of donation to
be used for Chad. Ho subsequently drafted a letter to that effect, which Gadio
revised and delivered to Déby.
In exchange for setting up the meetings in Chad, Gadio sought a written
contract with CEFC Energy to formalize his role and ensure his compensation for
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assisting the company in acquiring business in the Chadian oilfields. After the
December trip, Boubker Gadio sent a text message to his father asking if he had
received “any feedback from our friends in China” regarding the contract. Id. at
736; see also id. at 307. Gadio answered, “No[,] our Chinese friends are strange! Let
us give them another week. Otherwise we will go to Chad [in] early January and
destroy their reputation and strategies in Chad!” Id. at 736; see also id. at 307–08.
Boubker responded, “I sincerely think they will reply favorably . . . [.] [T]heir
attempt to buy the president to put us to the side did not work. Big companies
don[’]t like middle men . . . but they don[’]t have a choice with us.” Id. at 736 (first
ellipsis in original). Ultimately, CEFC NGO paid Gadio $400,000 for his work in
Chad. Nevertheless, despite Gadio’s connections and Ho’s efforts to negotiate a
deal for oil rights, the parties failed to secure a deal.
B. Uganda Scheme
Also in 2014, Ho sought an introduction to Sam Kutesa – the Minister of
Foreign Affairs for Uganda, who had recently begun a one-year term as the
President of the UN General Assembly – for the purpose of helping CEFC Energy
develop business in Uganda’s oil fields. Ho contacted Kutesa’s office at the UN in
New York and introduced himself as the “Deputy Chairman and Secretary
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General” of CEFC NGO, “a Chinese think tank registered in Hong Kong and also
in the USA as a public charity” with “special consultative status from UN’s
Economic and Social Council.” App’x at 592.
Around February 2016 – by which time Kutesa had completed his term as
President of the General Assembly and returned to Uganda as Foreign Minister –
Kutesa, through his wife, solicited a bribe from Ho to be disguised as a payment
to a charitable foundation. Ho requested, and ultimately received, authorization
from the chairman of CEFC Energy to make a half million dollar payment to
Kutesa’s charity. Ho then contacted Kutesa to advise him that the payment would
be made and to procure an invitation to the inauguration of Ugandan President
Yoweri Museveni, who was Kutesa’s brother-in-law. Ho told Kutesa that he
would bring executives from CEFC Energy to discuss business opportunities in
Uganda.
On May 5, 2016, Ho caused a wire transfer of $500,000 to be sent from CEFC
NGO to an account belonging to the Food Security and Sustainable Energy
Foundation at Stanbic Bank in Kampala, Uganda, as a donation to the foundation
designated by the Kutesas. Specifically, the wire originated “from HSBC Hong
Kong on behalf of CEFC [NGO] as the originator, through to HSBC Bank US as the
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US correspondent for credit to Deutsche Bank in New York[,] US as a
correspondent for the beneficiary bank Stambic [sic] Bank in Uganda, for final
credit to the beneficiary Food Security and Sustainable Energy Foundation.” Id. at
400. Ho and a CEFC Energy delegation attended the inauguration in May 2016,
and met with Museveni, Kutesa, and others. After the trip, Ho emailed the
Kutesas and reiterated that CEFC Energy was anxious to partner with the Kutesas’
family businesses. About five months later, Kutesa’s wife told Ho about a
confidential opportunity to acquire a Ugandan bank. Ho referred the matter to
another CEFC Energy executive to handle, but it appears that CEFC Energy
ultimately did not complete a deal in Uganda.
II. PROCEDURAL HISTORY
In 2017, a grand jury in the Southern District of New York returned an
indictment charging Ho with eight crimes: conspiracy to violate the FCPA in
violation of 18 U.S.C. § 371 (Count One); violation of FCPA § 78dd-2 with respect
to the Chad scheme (Count Two); violation of FCPA § 78dd-2 with respect to the
Uganda scheme (Count Three); violation of FCPA § 78dd-3 with respect to the
Chad scheme (Count Four); violation of FCPA § 78dd-3 with respect to the Uganda
scheme (Count Five); conspiracy to commit money laundering in violation of 18
10
U.S.C. § 1956(h) (Count Six); money laundering in violation of 18 U.S.C.
§ 1956(a)(2)(A) with respect to the Chad scheme (Count Seven); and money
laundering in violation of 18 U.S.C. § 1956(a)(2)(A) with respect to the Uganda
scheme (Count Eight).
Ho moved to dismiss Count One and Counts Four through Eight of the
indictment on April 16, 2018. As to Counts One, Four, and Five, Ho argued that
because the indictment contained language stating that he was a domestic concern
under § 78dd-2, he could not also be charged with violating or conspiring to
violate § 78dd-3, which does not apply to domestic concerns. In seeking to dismiss
Counts Six through Eight, Ho asserted, among other things, that the text of the
money laundering statute precluded the government from arguing that “the wires
went from Hong Kong to the United States, and then from the United States to
. . . Uganda.” No. 17-cr-779 (LAP), Doc. No. 63 at 13. The district court denied the
motion, explaining, as to the FCPA counts, that charging Ho under both §§ 78dd-
2 and 78dd-3 was not inconsistent. Turning to the money laundering counts, the
court found that the indictment was technically sufficient because “it alleges that
the defendant transmitted funds both to the United States and from the United
States,” Special App’x at 13, and that a wire transfer from Hong Kong to a
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correspondent bank in New York, to another bank in New York, and then, to an
international destination would be “clearly sufficient under . . . United States v.
Daccarett, 6 F.3d 37, 54 (2d Cir. 1993).” Special App’x at 14.
Trial began on November 26, 2018 and ended on December 5, 2018, when
the jury returned guilty verdicts against Ho on Counts One through Six and Count
Eight, while acquitting him on Count Seven. On December 18, 2018, Ho moved
for a judgment of acquittal on all counts of conviction under Rule 29(c), “[i]n order
to preserve all arguments as to the sufficiency of the evidence to convict.” No. 17-
cr-779 (LAP), Doc. No. 218. The district court denied that motion, and ultimately
sentenced Ho to 36 months’ imprisonment, and fined him $400,000. Ho is
currently serving his sentence.
III. DISCUSSION
Ho raises several arguments on appeal. First, Ho contends that there was
insufficient evidence to establish that he acted on behalf of a “domestic concern,”
as required to convict under § 78dd-2 of the FCPA. Second, he asserts that the jury
was improperly instructed that a violation of § 78dd-3 could serve as specified
unlawful activity supporting his money laundering convictions. Third, Ho
maintains that the money laundering statute, which covers wire transfers that go
12
“to” or “from” the United States, does not reach a transaction that merely involves
the use of correspondent banks in the United States, where the transfer originated
in Hong Kong and concluded in Uganda. Fourth, Ho argues that the district court
abused its discretion by admitting certain out-of-court statements and summary
charts into evidence. Fifth, Ho contends that the district court should have struck
Counts One, Four, and Five because the indictment contained material
contradictions that rendered those counts legally defective and because the
indictment charged Ho under two mutually exclusive sections of the FCPA,
§§ 78dd-2 and 78dd-3. We address each argument in turn.
A. The Evidence Supports Ho’s Convictions Under 15 U.S.C. § 78dd-2
(Counts Two And Three)
As relevant here, 15 U.S.C. § 78dd-2 prohibits an officer or director of a
“domestic concern” from offering or paying bribes to a foreign official to gain “any
improper advantage,” “in order to assist such domestic concern in obtaining or
retaining business for or with, or directing business to, any person.” 15 U.S.C. §
78dd-2(a). 2 A domestic concern includes an entity that has a “principal place of
2 The statute defines the term “person” to include a company. See 15 U.S.C. § 78c(a)(9).
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business in the United States” or that “is organized under the laws of a State of the
United States.” Id. § 78dd-2(h)(1).
Ho challenges the sufficiency of the evidence underlying his § 78dd-2
convictions on Counts Two and Three, arguing that “no rational trier of fact could
have found the essential elements of [a § 78dd-2 violation] beyond a reasonable
doubt, because there was no evidence that Ho was acting to assist any domestic
concern.” Ho Br. at 20 (internal quotation marks omitted). Drawing on the
government’s argument at trial that “Ho’s actions were undertaken to benefit . . .
two foreign entities,” Ho maintains that the government’s theory of the case
precluded the jury from finding that Ho assisted a domestic concern. Id. at 20–21.
According to Ho, “at most” the jury could find that Ho “worked for” the Hong
Kong-based CEFC NGO to arrange meetings between CEFC and Ugandan
officials that benefited CEFC Energy, and that he “worked on behalf of” CEFC
Energy to facilitate the Chad sale; but he contends that the government provided
“no proof” that the U.S. NGO “did anything relevant to the allegations in the case.”
Id. at 21–22.
“We review sufficiency of evidence challenges de novo, but defendants face
a heavy burden,” because our framework for evaluating such challenges “is
14
exceedingly deferential.” United States v. Baker, 899 F.3d 123, 129 (2d Cir. 2018)
(internal quotation marks omitted). This is “because a reviewing court must
sustain the jury’s guilty verdict if viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” United States v. Heras, 609 F.3d 101, 105
(2d Cir. 2010) (internal quotation marks omitted). In conducting this inquiry, we
must “credit[] every inference that could have been drawn in the [g]overnment’s
favor,” Baker, 899 F.3d at 129 (second alteration in original) (internal quotation
marks omitted), because “the task of choosing among competing, permissible
inferences is for the [jury], not for the reviewing court,” United States v. McDermott,
245 F.3d 133, 137 (2d Cir. 2001). Further, we are mindful that “the jury is entitled
to base its decision on reasonable inferences from circumstantial evidence.” United
States v. Rahman, 189 F.3d 88, 123 (2d Cir. 1999).
In challenging the sufficiency of the evidence supporting his § 78dd-2
convictions, Ho makes much of the fact that the U.S. NGO was not the ultimate
object of Ho’s assistance. The statutory language, however, does not require that
the domestic concern itself be the ultimate object of the assistance. Rather, the
statute precludes officers and directors of domestic concerns from paying bribes
15
to foreign officials “in order to assist such domestic concern in obtaining . . .
business for . . . any person.” 15 U.S.C. § 78dd-2(a) (emphasis added); accord United
States v. Ng Lap Seng, 934 F.3d 110, 145 (2d Cir. 2019) (explaining that the FCPA
“prohibits bribery designed to obtain, retain, or direct business not only for or to
the briber, but for or to ‘any person’”). Notably, the statute addresses the goal of
corruptly assisting a domestic entity in obtaining business either “for or with”
another company, suggesting that the domestic concern need not itself be seeking
to obtain business “with” that company. 15 U.S.C. § 78dd-2(a) (emphasis added);
see also United States v. Kay, 359 F.3d 738, 755–56 (5th Cir. 2004) (explaining that
“Congress was concerned about both the kind of bribery that leads to discrete
contractual arrangements and the kind that more generally helps a domestic payor
obtain or retain business for some person in a foreign country.” (emphasis added)).
Similarly, the phrase “directing business to” is followed by the phrase “any
person,” which again shows that the statute is not solely concerned with entities
or persons steering business toward themselves. See 15 U.S.C. § 78dd-2(a). After
all, as we have recognized, “the FCPA prohibits commercial bribery without
regard to whether the briber himself profits directly from the business obtained.”
Ng Lap Seng, 934 F.3d at 145. Thus, Ho plainly could be convicted if the jury found
16
that he acted on behalf of the domestic concern to assist that concern in obtaining
business for CEFC Energy.
We conclude that the evidence introduced at trial was more than sufficient
to prove that Ho acted on behalf of the U.S. NGO to assist it in obtaining business
for CEFC Energy. Contrary to Ho’s assertion that “at most a reasonable juror could
find that . . . [he] worked for” the Hong Kong-based CEFC NGO, Ho Br. at 21, the
government presented ample evidence demonstrating that the U.S. NGO operated
as an arm of CEFC NGO and that Ho’s actions in furtherance of the scheme were
conducted in his capacity as officer or director of the U.S. arm to steer business to
CEFC Energy.
For example, David Wen Riccardi-Zhu testified that he was a volunteer and
employee of a CEFC entity classified as an NGO, which he described as based in
Hong Kong but with “offices in the United States.” App’x at 198. He later
specifically identified the U.S. NGO as “the NGO that [he] worked for,” id. at 202,
and he acknowledged the existence of “an office in Virginia [that] we used a few
times,” id. at 204, in addition to a space in Trump World Tower in New York, id.
at 206. In addition to testifying in general terms that Ho “ran the day-to-day
operations of the NGO,” id. at 198, Riccardi-Zhu further affirmed that, in his
17
understanding, Ho acted in his role as an officer and director of the U.S. entity, id.
at 204. The jury could reasonably infer from this testimony that Ho acted on behalf
of the U.S. arm when running NGO-related operations in New York.
And while Ho complains that the government “deliberately conflated” the
NGOs at trial, Reply Br. at 1, the evidence, viewed most favorably to the
government, indicates that it was the NGOs themselves that maintained
overlapping identities in order to take advantage of each as best served particular
interests. Thus, evidence showed that CEFC NGO held itself out as a single
organization with a branch in the United States. The website, “cefc-ngo.co” –
which Riccardi-Zhu described as “one of the websites that the NGO had,” App’x
at 215, without distinguishing between the Hong Kong and U.S. entities –
described the NGO as one organization with operations in multiple countries. The
jury also saw a screenshot of the website stating that “CEFC is headquartered in
Hong Kong with more than 10 offices in the United States, Canada and other
countries and regions.” Id. at 731.
The government also introduced an email from Ho to Kutesa’s UN office in
which Ho held himself out as an officer of “a Chinese think tank registered in
Hong Kong and also in the USA as a public charity.” Gov. Addendum at 11; see
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also App’x at 389. The only entity registered in the United States was the U.S.
NGO. Thus, the jury could find that Ho used his position in an entity “organized
under the laws of a State of the United States,” 15 U.S.C. § 78dd-2(h)(1), as well as
his position in foreign registered entities, to gain the access that best served his
corrupt pursuit of benefits for CEFC Energy in the Uganda scheme. As to the Chad
scheme, the jury heard testimony that Ho reached out to Jeremić on behalf of the
NGO and asked for a connection to Gadio, whom Ho met at Trump World Tower
– the very location that Riccardi-Zhu stated was occasionally used by the U.S.
NGO.
Viewing this evidence in the light most favorable to the government, and
drawing all inferences in support of the verdict, we find that the jury reasonably
concluded that Ho acted on behalf of a domestic concern in directing business to
CEFC. We therefore reject Ho’s sufficiency challenge to Counts Two and Three.
B. Ho Offers No Basis To Disturb His Money Laundering Convictions
(Counts Six And Eight)
Ho next argues that his money laundering convictions must be reversed
because (1) a violation of § 78dd-3 cannot constitute specified unlawful activity
19
under the money laundering statute, and (2) the government failed to prove that
the transfer of funds went “to” or “from” the United States. We disagree.
1. A Violation Of 15 U.S.C. § 78dd-3 Is Sufficient To Establish Specified
Unlawful Activity Under The Money Laundering Statute
Ho asserts that the jury was improperly charged when it was told that a
violation of § 78dd-3 could serve as the specified unlawful activity underlying his
money laundering convictions pursuant to 18 U.S.C. § 1956(c)(7)(D). He argues
that “when Congress amended § 1956(c)(7) to add the Foreign Corrupt Practices
Act as a specified unlawful activity . . ., Congress was referring only to §§ 78dd-1
and 78dd-2 – not § 78dd-3, which was added to the Foreign Corrupt Practices Act
six years later, in 1998.” Ho Br. at 25 (citation omitted). To support this
interpretation, Ho invokes the reference canon, by which a statute’s reference to a
general subject indicates dynamic meaning “as it exists whenever a question under
the statute arises,” Jam v. Int’l Fin. Corp., 139 S. Ct. 759, 769 (2019), while a statute’s
reference to another statute by specific title or section “takes the statute as it exists
at the time of adoption,” Hassett v. Welch, 303 U.S. 303, 314 (1938), without any
subsequent amendments unless by express intent. Thus, in Ho’s view,
“Congress’s specific reference to the [FCPA] in § 1956(c)(7) manifested an
intention to incorporate the FCPA as it existed in 1992, when the reference was
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added to the statute.” Ho Br. at 26. Because § 78dd-3 was not a part of the FCPA
until six years later, Ho argues that it is not covered by the money laundering
statute.
We review this question of statutory interpretation de novo. United States v.
Epskamp, 832 F.3d 154, 160 (2d Cir. 2016). “We ordinarily assume, absent a clearly
expressed legislative intention to the contrary, that the legislative purpose is
expressed by the ordinary meaning of the words used.” Jam, 139 S. Ct. at 769(internal quotation marks omitted). “When the language of the statute is clear . . .,
our inquiry is complete and the language controls.” United States v. Kinzler, 55 F.3d
70, 72 (2d Cir. 1995). In that case, “we have no reason to apply canons of
construction.” New York ex rel. N.Y. State Off. of Child. & Fam. Servs. v. U.S. Dep't of
Health & Hum. Servs.' Admin. for Child. & Fams., 556 F.3d 90, 98 (2d Cir. 2009).
The money laundering statute criminalizes the transfer of funds “with the
intent to promote the carrying on of specified unlawful activity.” 18 U.S.C.
§ 1956(a)(2)(A). The term “specified unlawful activity” is defined in § 1956(c)(7)
to include “any felony violation of the Foreign Corrupt Practices Act.” 18 U.S.C.
§ 1956(c)(7)(D) (emphasis added).
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Because that language is plain, we decline Ho’s invitation to read an
unexpressed limitation into the statute through an unnecessary resort to the
reference canon. In New York State Office of Children & Family Services, we similarly
declined to turn to the reference canon where a statute straightforwardly referred
to a concept described in another provision, without limitation. 556 F.3d at 97.
There, we examined whether 42 U.S.C. § 672(a)(1)’s reference to “reasonable
efforts of the type described in section 671(a)(15) of this title” incorporated a fixed
concept of such efforts as they existed at the time of § 672(a)(1)’s adoption in 1980,
or whether the statute incorporated subsequent amendments made to the
referenced provision, § 671(a)(15), in 1997. See id. at 97–99. Despite the statute’s
reference to a specific section, we nevertheless understood the text to “plainly
signal[] Congress's intent to incorporate the full range of ‘reasonable efforts’
required by § 671(a)(15).” Id. at 92. Indeed, we expressly rejected as inapplicable
the argument that the reference canon showed that Congress did not intend to
incorporate later amendments to the referenced provision, and found the “plain
language of the statute to reveal the contrary, i.e., that Congress unambiguously
intended to incorporate” the amendments. Id. at 97. That conclusion rendered
unnecessary any need “to resort to canons of construction.” Id.; see also id. at 99
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(explaining that the reference canon “is not a categorical rule that compels courts
to always read statutory cross-references as pointing to their original targets,” but
“[r]ather, like all canons of construction, it is a tool to be used only where the
meaning of the section” is unclear (internal quotation marks omitted)).
Applying the same principles here, we find that § 1956(a) “plainly signals
Congress’s intent to incorporate the full range” of felony violations under the
FCPA. See id. at 92. As in New York State Office of Children & Family Services, the
statute at issue here contains no textual limitation. Indeed, the use of the word
“any” – particularly when paired with the broad descriptor “felony violation of
the Foreign Corrupt Practices Act,” rather than specific prohibitions – reinforces
the natural reading of the statute to refer to whatever conduct constitutes such a
violation. See United States v. Gonzales, 520 U.S. 1, 5 (1997) (explaining that, “[r]ead
naturally, the word ‘any’ has an expansive meaning, that is, ‘one or some
indiscriminately of whatever kind’” (quoting Webster’s Third New International
Dictionary 97 (1976)).
Moreover, that reading is consistent with the statutory context. As we
previously recognized, the money laundering statute “takes dead aim at the
attempt to launder dirty money,” while leaving “[w]hy and how that money got
23
dirty” to be “defined in other statutes.” United States v. Stavroulakis, 952 F.2d 686,
691 (2d Cir. 1992). Consequently, we conclude that the statute’s general reference
to “any felony violation” extends to the identified criminal statutes as they develop
to provide new ways for money to become tainted. We find that this interpretation
aligns with courts’ efforts to “read [statutes] as an ordinary citizen might” and not
to “force lay persons to become experts in the vestigial esoterica of every statute
and federal rule.” El Encanto, Inc. v. Hatch Chile Co., Inc., 825 F.3d 1161, 1164 (10th
Cir. 2016) (Gorsuch, J.).
In light of the money laundering statute’s “unambiguous . . . incorporation
by reference” of the FCPA “in its entirety,” see N.Y. State Off. of Child. & Fam. Servs.,
556 F.3d at 98, we reject Ho’s suggestion that Congress was obliged to specify that
its reference to the FCPA expressly included subsequent amendments to the
statute. We likewise reject his suggestion that because Congress could have
amended the money laundering statute to specifically include later FCPA
amendments, its failure to do so reflects an intent to exclude those subsequent
amendments. Given that § 1956 incorporates the umbrella concept of “any felony
violation” of the FCPA, we see no reason to assume that Congress intended to
impose on itself a continuing obligation to amend the money laundering statute
24
every time it amended or expanded the FCPA. See id. at 97 (rejecting argument
that Congress’s failure to “pluralize the word ‘type’ in [the referencing statute] to
correspond to the expanded definition of ‘reasonable efforts’ in [the incorporated
provision]” meant it intended the cross-reference to apply only to the unexpanded,
pre-amended definition, where the incorporated provision’s amendment
introduced no grammatical inconsistency).
Our approach is not inconsistent with the Supreme Court’s recent analysis
in Jam v. International Finance Corp., 139 S. Ct. 769 (2019), in which the Supreme
Court turned to the reference canon to “confirm[]” what it determined was the
“more natural reading” of the statute at issue, recognizing that courts usually
assume that the ordinary meaning of a statute reflects the legislative intent. Id. at
769. Nothing in Jam compels us to depart from the ordinary meaning of § 1956’s
clear text or to resort to canons of construction, and we decline to do so today. We
therefore hold that a violation of § 78dd-3 constitutes specified unlawful activity
under the money laundering statute, and thus reject Ho’s argument that the jury
should have been instructed otherwise.
25
2. A Wire That Passes Through The United States Can Be Covered By 18
U.S.C. § 1956(a)(2)(A)
Next, we turn to Ho’s argument that his money laundering convictions on
Counts Six and Eight must be vacated because the wire transfers on which they
were based went from Hong Kong to Uganda through the United States, and thus,
did not go “to” or “from” the United States. In other words, Ho asserts that the
money laundering statute does not cover wire transfers where the United States is
neither the point of origination nor the end destination for the money, but is
instead just an intermediate stop along the way. As relevant to this challenge, the
money laundering statute makes it illegal for a person to “transport[], transmit[],
or transfer[] . . . funds from a place in the United States to or through a place
outside the United States or to a place in the United States from or through a place
outside the United States” under certain circumstances. 18 U.S.C. § 1956(a)(2).
On appeal, Ho does not dispute that he caused a wire transfer of $500,000 to
be sent from CEFC NGO “to an account belonging to the Food Security and
Sustainable Energy Foundation at Stanbic Bank in Kampala, Uganda.” Ho Br. at
14. Nor does he dispute that the $500,000 went “[f]rom HSBC Hong Kong on
behalf of CEFC Limited as the originator, through to HSBC Bank US as the US
correspondent for credit to Deutsche Bank in New York[,] US as a correspondent
26
for the beneficiary bank Stambic [sic] Bank in Uganda, for final credit to the
beneficiary Food Security and Sustainable Energy Foundation.” App’x at 400; see
also id. at 690–91; Tr. 847–49 (showing that Ho sent bank information to his
assistant, who confirmed to another CEFC Energy employee that the dollar-
denominated payment should be made by wire transfer).
Instead, Ho contends that the wire underlying his conviction on Count Eight
“was a single, continuing, transaction from Hong Kong to Uganda,” and that
under § 1956(i)(3), “a transfer of funds from one place to another, by wire or any
other means, shall constitute a single, continuing transaction.” Ho Br. at 29
(brackets and internal quotation marks omitted). Therefore, according to Ho, the
funds went “through” the United States, as distinct from “to” or “from” the United
States, as required by the statute. Ho relatedly asserts that the government’s
theory that the transaction between Hong Kong and Uganda was divisible into
multiple transfers – from Hong Kong to the United States, and from the United
States to Uganda – for purposes of the “to” and “from” determination was
contrary to law. Accordingly, in Ho’s view, the government failed to prove a wire
transfer as required by § 1956(a).
27
Whether Ho’s challenge is construed as a question of statutory
interpretation or an attack on the sufficiency of the evidence, we review de novo.
See United States v. Szur, 289 F.3d 200, 213 (2d Cir. 2002) (characterizing appellants’
comparable argument as “a mixed question of law and fact” requiring de novo
review of the statute’s meaning and the sufficiency of the government’s evidence);
see also United States v. Aleynikov, 676 F.3d 71, 76 (2d Cir. 2012) (applying de novo
review for preserved claims regarding “[t]he sufficiency of an indictment and the
interpretation of a federal statute”). Under either formulation, Ho’s argument
turns on what permissibly constitutes a transfer “to” or “from” the United States.
We reject Ho’s claim that the charged wire transfer, which took advantage
of U.S.-based correspondent accounts to conduct a dollar-denominated
transaction, is barred from coverage under § 1956(a)(2)(A). Though Ho correctly
asserts that statutory terms are generally to be given their ordinary meaning, we
are unpersuaded that the plain meaning of “to,” “from,” and “through” compel
his conclusion. See Ho Br. at 30–31 (arguing that “from” indicates a “starting
point”; “to” is associated with reaching; and “through” suggests movement in one
side and out another). The ordinary understanding of these terms does not require
them to be mutually exclusive.
28
Ho’s own example is illustrative. He asserts that “[o]ne would not say that
one was coming ‘from New York’ when one’s train from Boston to Washington
stops in New York along the way; rather, one would say that one was going ‘from’
Boston, ‘to’ Washington, and ‘through’ New York.” Id. at 31. Of course, in some
conversational contexts, that may be true. But ordinary parlance would not
necessarily preclude such a passenger from also saying that he travelled from New
York to Washington. That’s especially true if the passenger in question had to
change trains at Penn Station. In ordinary communication, the expressions are not
by nature at odds.
Describing the government’s interpretation as being “that anytime a transfer
goes ‘through’ the United States, it also goes ‘to’ it and ‘from’ it,” Ho argues that
such a reading “would render the term ‘through’ superfluous.” Id. at 32 (emphasis
added). But the government does not go so far, and neither do we. We do not
reach, for example, whether the transportation of cash from Hong Kong in an
airplane over the United States to a final destination in Uganda would be properly
said to have gone “through,” “from,” or “to” the United States – let alone whether
more than one of those prepositions could apply. We simply acknowledge that
some schemes that colloquially go “through” the United States – in the sense that
29
their origins and destinations are elsewhere – might also be said to involve
transfers that go “to” or “from” the United States. They did so here.
The wire sent by Ho involved (1) HSBC Hong Kong debiting CEFC NGO’s
account in Hong Kong; (2) HSBC Hong Kong sending a payment message to
HSBC Bank US, asking it to debit $500,000 from HSBC Hong Kong’s
correspondent account in New York; (3) HSBC Bank US debiting HSBC Hong
Kong’s same correspondent account; (4) HSBC Bank US and Deutsche Bank, New
York settling a $500,000 transfer through a payment system; (5) Deutsche Bank
crediting Stanbic Bank’s correspondent account in New York; and (6) Stanbic Bank
crediting Food Security and Sustainable Energy Foundation’s account in Uganda.
See App’x at 848–57 (showing wire transfers at issue broken into component parts);
see also Rena S. Miller, Cong. Rsch. Serv., IF0873, Overview of Correspondent Banking
and “De-Risking” Issues (Apr. 20, 2018).
Recognizing that a subset of this series of transactions went from or to the
United States does not conflict with § 1956(i). It bears noting that § 1956(i) is a
venue provision, not a definitional one. It permits a prosecution to be brought in
“any district in which the financial or monetary transaction is conducted.” 18
U.S.C. § 1956(i)(1)(A). The term “conducts,” however, is defined in § 1956(c)(2) to
30
include “initiating” or “participating in initiating” a financial transaction. And
while § 1956(i)(3) provides that “a transfer of funds from [one] place to another . . .
shall constitute a single, continuing transaction,” it further provides that “[a]ny
person who conducts (as that term is defined in subsection (c)(2)) any portion of the
transaction may be charged in any district in which the transaction takes place.” Id.
§ 1956(i)(3) (emphasis added). Even assuming that the overarching transfer
between Hong Kong and Uganda would here be the relevant “single, continuing
transaction” contemplated in § 1956(i), nothing about this venue provision’s
language prevents us from finding that such a transaction may simultaneously be
comprised of intermediate stages or “portion[s] of the transaction.” Id.
Indeed, courts – including the Second Circuit – have long conceived of
transfers from one place to another as being severable, and resting in the United
States, when moving through correspondent banks. See United States v. Daccarett,
6 F.3d 37, 54 (2d Cir. 1993) (“With each EFT at least two separate transactions
occurred: first, funds moved from the originating bank to the intermediary bank;
then the intermediary bank was to transfer the funds to the destination bank, a
correspondent bank in Colombia.”); United States v. Prevezon Holdings, Ltd., 251 F.
Supp. 3d 684, 693 (S.D.N.Y. 2017) (noting that “international wire transfers do not
31
merely ‘ricochet’ off of U.S. correspondent banks,” but rather, use such banks “as
indispensable conduits” and involve “two separate transactions that cross the U.S.
border” (internal quotation marks omitted)); United States v. All Assets Held at Bank
Julius, 251 F. Supp. 3d 82, 94 (D.D.C. 2017) (“The Court therefore again concludes
that EFTs are two transactions: one transaction into the United States and one
transaction out of the United States.”).
Consequently, we disagree with Ho’s view “that the government’s strategy
to separate the wire into discrete transactions was contrary to binding Second
Circuit authority.” Reply Br. at 9. Indeed, Ho’s reliance on United States v. Harris,
79 F.3d 223 (2d Cir. 1996), is misplaced. To be sure, the Harris court found, on the
facts of that case, that two transactions (one from New York to Connecticut, the
other from Connecticut to Switzerland) were two stages “of a single plan to
transfer funds from a place in the United States to or through a place outside the
United States.” Id. at 231 (internal quotation marks omitted). But Harris involved
a § 1956(a) scheme where the defendant, charged with concealing funds, argued
that he intended only the New York-to-Connecticut leg of the transfer to effectuate
the concealment. See id. According to the defendant, because the international
transfer from Connecticut to Switzerland was not “designed to conceal the nature,
32
location, source, and ownership of the funds,” id., he could not be convicted of
violating § 1956(a)(2), which prohibits international transfer of funds from
unlawful activity while “knowing that such transportation is designed . . . to
conceal,” 18 U.S.C. § 1956(a)(2). Rejecting the defendant’s attempt to bifurcate his
intent to conceal, the Harris court found that he had “a single plan to transfer
funds” and noted that the jury instructions “dispel[led] any concerns that the jury
considered each transfer” separately with respect to his intent to conceal. Harris,
79 F.3d at 231 (affirming the conviction because the court and jury considered
“Harris’ movements of funds from New York to Switzerland as single transfers
that served to conceal the location of the funds from the banks”). Harris’s holding
that the defendant engaged in a single plan to conceal the movement of funds
abroad in no way precludes the jury from examining whether intermediate
transfers went “to” or “from” an intermediate location.
Ho’s reliance on United States v. Dinero Express, Inc., 313 F.3d 803 (2d Cir.
2002), and United States v. Moloney, 287 F.3d 236 (2d Cir. 2002), is also misplaced.
Ho argues that these cases stand for the proposition that the movement of funds
in intermediate steps as part of a larger scheme can constitute only one transfer,
regardless of how the wires are divided as a practical matter. But again, these
33
cases do not preclude interpreting the statute to mean that funds transferred in
multiple steps at multiple banks are “to” or “from” those intermediate resting
points.
Dinero Express held merely that a four-step money laundering transaction
could constitute a “transfer” even though there was “no individual step” that
“involved the direct wiring of money from the United States to the Dominican
Republic.” 313 F.3d at 805–06 (emphasis added). And Moloney likewise held “that
a single money laundering count can encompass multiple acts provided that each
act is part of a unified scheme.” 287 F.3d at 241. Both cases found that composite
steps could permissibly comprise a scheme giving rise to liability under § 1956(a);
but neither case addressed whether those intermediate steps themselves might be
considered transfers “to” or “from” the United States.
Moreover, in finding that an indictment may charge in one count an
overarching transaction made up of multiple transfers, Moloney emphasized that
“[t]his conclusion is particularly sound because money laundering frequently
involves extended sequences of acts designed to obscure the provenance of dirty
money.” Id. That observation sheds light on the often complex nature of money
laundering, and absent an express indication from Congress to the contrary, we
34
decline to bar juries from finding that a defendant “transports, transmits, or
transfers” money “from” or “to” the United States, 18 U.S.C § 1956(a)(2), when a
defendant arranges a wire transfer that uses the U.S. banking system to go from a
foreign source, to a correspondent bank in the United States, to another bank in
the United States, and then to a final foreign beneficiary. We will not “suppose
that Congress did not intend to criminalize the use of United States financial
institutions as clearinghouses for criminal money laundering and conversion into
United States currency.” All Assets Held at Bank Julius, 571 F. Supp. 2d at 12. Seeing
no reason to hold that as a matter of law the jury was precluded from adopting the
understanding of EFT and correspondent bank transfers articulated in Daccarett,
Bank Julius, and Prevezon, we affirm.
C. Ho’s Evidentiary Challenges Are Meritless
Ho argues that the district court abused its discretion by admitting certain
out-of-court statements and summary charts into evidence at trial. First, he argues
that the district court erred in permitting Gadio to testify about statements made
by Déby at the Chad meetings on December 8 and December 9. Second, Ho objects
to the admission of Boubker Gadio’s text message to his father concerning the
Chad contract. Third, he challenges the admission of two summary charts that
35
provided timelines of certain text messages, emails, and other documents
admitted into evidence.
We review a district court’s evidentiary rulings for abuse of discretion. See
United States v. Taubman, 297 F.3d 161, 164 (2d Cir. 2002). “To find such an abuse
we must be persuaded that the trial judge ruled in an arbitrary and irrational
fashion.” United States v. Pipola, 83 F.3d 556, 566 (2d Cir. 1996); see also United States
v. Monsalvatge, 850 F.3d 483, 493 (2d Cir. 2017). Even if a district court abused its
discretion in making an evidentiary ruling, we will not grant a new trial where the
errors are harmless. See Fed. R. Crim. P. 52(a); United States v. Rea, 958 F.2d 1206,
1219–20 (2d Cir. 1992). For an error to be deemed harmless, “we are not required
to conclude that [the evidence] could not have had any effect whatever; the error
is harmless if we can conclude that [the evidence] was unimportant in relation to
everything else the jury considered on the issue in question, as revealed in the
record.” Rea, 958 F.2d at 1220 (internal quotation marks omitted).
1. The District Court Did Not Abuse Its Discretion In Admitting Déby’s
Out-of-Court Statements About Cash Payments
Ho challenges the admission of statements made by Déby to Gadio on
December 8, in which Déby expressed concern about finding cash in gift boxes, as
well as Déby’s similar statements to Ho and members of the CEFC delegation on
36
December 9, to which Ho responded. Ho maintains that the statements constitute
inadmissible hearsay to which no exception applies.
The district court did not abuse its discretion in admitting the statements.
As to the December 9 statement, in which Déby conveyed to the delegation his
anger about receiving cash payments, the district court admitted the testimony as
an adoptive admission by Ho under Federal Rule of Evidence 801(d)(2)(B).
Specifically, it found that Ho’s admissible response that he was “impressed by”
Déby’s reaction could “only make sense in the context of adopting the president’s
statement that the boxes had cash in them.” Special App’x at 19.
Ho argues that his statement was merely “an effort to smooth things over
diplomatically, or as a statement that Ho was and would have been impressed by
Déby’s rejection of any gift.” Ho Br. at 40. But “[w]here the defendant's adoption
. . . purportedly is manifested by . . . ambiguous conduct,” we consider the
statement’s incriminatory content and whether it is of the type that a person would
respond to with a denial “or at least with some indication that he objects to the
statement as untrue.” United States v. Shulman, 624 F.2d 384, 390 (2d Cir. 1980).
Here, the district court reasonably concluded that if Ho did not agree with Déby’s
representation or had not been aware of the alleged cash bribes, he would have
37
said so. In this context, the court acted well within its discretion in finding that
Ho’s lack of denial, coupled with his acknowledgement of Déby’s reaction,
supported an inference that Ho understood all along what was in the boxes. See
United States v. King, 560 F.2d 122, 134–35 (2d Cir. 1977). Ho’s response – however
it was meant – would have made little sense to the jury without the admission of
Déby’s statement and reaction. See United States v. Guzman, 754 F.2d 482, 487 (2d
Cir. 1985). Accordingly, the district court did not abuse its discretion in admitting
Gadio’s recounting of Déby’s statements to Ho.
And because the district court appropriately admitted the December 9
statement, it also acted within its discretion in admitting the earlier December 8
statement “as context and to tell the story.” Special App’x at 21. “When statements
by an out-of-court declarant are admitted as background, they are properly so
admitted not as proof of the truth of the matters asserted but rather to show the
circumstances surrounding the events, providing explanation for such matters as
the understanding or intent with which certain acts were performed.” United
States v. Pedroza, 750 F.2d 187, 200 (2d Cir. 1984). Déby’s statements provided
context about the understanding and intent of those involved, and was relevant to
contextualize the nature of the relationship among Déby, Gadio, and Ho, as well
38
as Déby’s decision to meet with the CEFC delegation the next day. See United States
v. Lubrano, 529 F.2d 633, 636–37 (2d Cir. 1975) (instructions by principal to agent
immediately preceding principal’s meeting with defendant was “relevant to aid
the jury in understanding the background events leading up to the crimes in
question”).
In any event, because the substance of Déby’s December 8 statement to
Gadio reiterated Déby’s admissible statement to Ho the following day, any error
would necessarily have been harmless. See United States v. Dukagjini, 326 F.3d 45,
62 (2d Cir. 2003) (finding harmless error where jury would have reached same
verdict in absence of case agent’s hearsay testimony).
2. The District Court Properly Admitted Boubker Gadio’s Text Message
Ho next challenges the admission of the text message from Boubker to his
father referring to “our friends in China” and “their attempt to buy the president”
of Chad. Ho Br. at 40. Contending that this message was “plainly hearsay,” Ho
argues that the district court erroneously admitted the statement under the rule of
completeness and as a prior consistent statement. Id. As to the former, Ho
contends that the “rule of completeness” does not apply because “only the party
adverse to the party who introduced a document” may invoke it. Id. at 41. Ho
39
also argues that “the court’s prior consistent statement rationale also fails” because
“the text contained Boubker’s words, not Gadio’s,” and was thus not Gadio’s prior
consistent statement. Id.
We have previously held that statements made by third parties – here,
Boubker – can constitute prior consistent statements of a testifying witness – here,
Gadio – if the witness adopted the third-party statement. In United States v. Rubin,
we held that notes recounting an interview with the defendant were admissible as
a prior consistent statement of a testifying witness named Cox, where a different
person took the notes but Cox adopted them “as accurate and in accord with his
own recollection.” 609 F.2d 51, 62 (2d Cir. 1979), aff'd, 449 U.S. 424 (1981). As in
Rubin, the witness here could be said to have adopted, at the time, the view
expressed in the text. Gadio, like the witness in Rubin, testified to the adoption;
that is, his silence in response to Boubker’s text reflected his contemporaneous
agreement with a statement he would otherwise have been expected to dispute or
refute.
Moreover, once Gadio’s adoption of his son’s statement is recognized, it was
admissible as a prior consistent statement if the prior statement was: (1)
“consistent with the witness’ in-court testimony,” (2) “‘offered to rebut an express
40
or implied charge against him of recent fabrication or improper influence or
motive,’” and (3) “made prior to the time when the motive to fabricate arose.” Id.
at 61 (quoting Fed. R. Evid. 801(d)(1)(B)). Here, the adopted text message was
consistent with Gadio’s testimony that he, at the time of the alleged bribe, believed
it to be a bribe. It was also offered to rebut Ho’s assertion to the jury that, to avoid
liability himself, Gadio had recently fabricated a narrative implicating Ho in the
bribery scheme. Since the statement was made long before Gadio had any reason
to falsely implicate others of criminal wrongdoing, it was relevant to rebut Ho’s
arguments that Gadio had falsely implicated him after Gadio’s arrest.
Accordingly, we find no abuse of discretion in the district court’s admission of
Boubker’s text message as a prior consistent statement of Gadio, and therefore
need not reach Ho’s rule-of-completeness argument to affirm.
3. The District Court Did Not Err In Admitting The Summary Charts
Ho also challenges the admission of two summary charts that provided
timelines of certain text messages, emails, and other documents admitted into
evidence. He concedes that the charts accurately quote the underlying emails and
text messages and could be used as demonstratives, but objects to their admission
as trial exhibits available to the jury in its deliberations. Ho argues that Federal
41
Rule of Evidence 1006 does not permit summary charts to be “created for the
purpose of generating a narrative supporting the prosecution’s theory of the case,”
as he contends the charts were. Ho Br. at 43. He further contends that the charts
summarized materials that could have “easily . . . been examined by the jury,” as
there were “only 71 documents related to the Chad Scheme plus translations
(totaling 370 pages), and 62 documents related to the Uganda Scheme plus
translations (totaling 399 pages).” Id. at 44.
Under Rule 1006, a proponent of evidence “may use a summary, chart, or
calculation to prove the content of voluminous writings, recordings, or
photographs that cannot be conveniently examined in court.” Fed. R. Evid. 1006.
“This court has long approved the use of charts in complex trials, and has allowed
the jury to have the charts in the jury room during its deliberations, so long as the
judge properly instructs the jury,” as the judge did here, “that it is not to consider
the charts as evidence.” United States v. Casamento, 887 F.2d 1141, 1151 (2d Cir.
1989) (internal citations omitted) (rejecting appellants’ argument that “despite the
judge’s instructions, the vast amount of evidence presented to the jury made it
inevitable that the jury would rely uncritically on the government's summary
charts,” and noting that “[b]arring contrary evidence, we must presume that juries
42
follow the instructions given them by the trial judge”); see United States v. Pinto,
850 F.2d 927, 935 (2d Cir. 1988) (finding no abuse of discretion where court allowed
summary charts identifying phone participants, conspirators’ numbers and
addresses, and the locations from which calls were placed or received); United
States v. Goldberg, 401 F.2d 644, 647-48 (2d Cir. 1968) (affirming trial court’s
admission of charts that were constructed “from the testimony of the
government’s witnesses and from . . . voluminous business records”); see also
United States v. Thiam, 934 F.3d 89, 96–97 (2d Cir. 2019) (affirming a trial court’s
admission of a summary chart because the “evidence was useful to the jury in
understanding Thiam’s motivation for accepting bribes and his consciousness of
guilt respectively”).
Here, the jury was properly advised that the charts themselves did not
constitute independent evidence and that it was the jury’s duty to first determine
that they accurately reflected the evidence on which they were based. And while
it is true that summary charts are sometimes used to synthesize even larger
volumes of documentary evidence than was the case here, see, e.g., Casamento, 887
F.2d at 1151, it was clearly not an abuse of discretion for the district court to
conclude that hundreds of pages of evidence merited the use of summary charts
43
in a complex fraud trial. We therefore affirm the district court’s evidentiary
rulings.
D. The Indictment Properly Charged Ho Under Different Sections Of The
FCPA (Counts One, Four, And Five)
Ho argues that the indictment was “‘repugnant’ because it contain[ed] [a]
‘contradiction between material allegations’” when it alleged that Ho was “a
domestic concern” in one count while bringing charges that did not apply to
domestic concerns in another. Ho Br. at 51–52 (quoting United States v. Cisneros,
26 F. Supp. 2d 24, 52 (D.C. Cir. 1998)); see also Malvin v. United States, 252 F. 449,
456 (2d Cir. 1918) (suggesting that “averments of [an] indictment” may be
“repugnant” where they are inconsistent). He also argues that the indictment was
invalid because it charged Ho under two mutually exclusive sections of the FCPA,
§§ 78dd-2 and 78dd-3. According to Ho, these purported errors “required that
Counts [Four] and [Five] be stricken, which would also have fatally undermined
Count [One].” Ho Br. at 49–50. We disagree.
1. The Indictment Was Not Repugnant
Ho argues that the indictment was facially inconsistent as to material
allegations, thus rendering Counts Four and Five defective, because the grand jury
determined that he was a “domestic concern,” to which § 78dd-3 does not apply.
44
To show that the grand jury “determined” Ho was a domestic concern, he relies
on the indictment’s language in Counts Two and Three, which allege violations of
§ 78dd-2. Tracking the statute and using the conjunctive, the indictment alleged
that “the defendant, . . . being a domestic concern and an officer, director,
employee, and agent of a domestic concern,” paid bribes in violation of § 78dd-2.
App’x at 85–86, 90, 91 (emphasis added). Based on the indictment’s use of “and”
rather than “or,” Ho argues that the grand jury must have found that he was a
domestic concern, and that he could therefore not also be charged in Counts Four
and Five, which allege violations of § 78dd-3 – a provision that does not cover
domestic concerns.
We are not persuaded by Ho’s argument that the grand jury found that Ho
was himself a domestic concern. Our case law, which upholds the practice of
pleading in the conjunctive without requiring that the government prove all
possibilities at trial, undermines the view that the grand jury “finds” each fact
alleged conjunctively in a charge on which the grand jury indicts. In United States
v. McDonough, 56 F.3d 381 (2d Cir. 1995), we rejected the defendant’s argument
that because “the [grand jury] indictment charged him with two purposes in the
conjunctive, the government was required to prove both at trial.” Id. at 390.
45
“Where there are several ways to violate a criminal statute, . . . federal pleading
requires that an indictment charge in the conjunctive to inform the accused fully
of the charges.” Id. (brackets, ellipsis, internal quotation marks, and citations
omitted) (explaining that “[a] conviction under such an indictment will be
sustained if the evidence indicates that the statute was violated in any of the ways
charged”); see also Griffin v. United States, 502 U.S. 46, 51 (1991) (acknowledging the
“historical” and “regular practice for prosecutors to charge conjunctively, in one
count, the various means of committing a statutory offense, in order to avoid the
pitfalls of duplicitous pleading”). The indictment followed that instruction here.
Nor is there any reason to believe that Ho was confused as to the
government’s theory of liability in Counts Four and Five. Ho clearly knew that
the government was not alleging that he was a domestic concern, and the parties
in fact stipulated that he “was not a citizen, national, or resident of the United
States.” Tr. 829–30; see also Special App’x at 9 (district court noting that the
complaint on which Ho was arrested alleged that he “was an officer, director,
employee, and agent of a domestic concern” while charging that the “NGO was a
domestic concern”). Moreover, the district court expressly instructed the jury that
“Counts Two and Three charge the defendant based on his status as an alleged
46
officer, director, employee, or agent of a domestic concern.” Tr. 1081–82; see also
id. at 1083–84 (reiterating that for Count Two, “the government must prove . . .
that the defendant was an officer, director, employee, or agent of a domestic
concern, or a stockholder thereof acting on behalf of such domestic concern”).
But even if it could be argued that the conjunctive language inserted error
in the grand jury process, such error clearly would have been harmless. The
Supreme Court has held that “the petit jury’s verdict of guilty beyond a reasonable
doubt demonstrates a fortiori that there was probable cause to charge the
defendants with the offenses for which they were convicted,” and that “the
convictions must [therefore] stand despite” error in the grand jury process. United
States v. Mechanik, 475 U.S 66, 67 (1986) (upholding indictment where tandem
witnesses testified before the grand jury); see also United States v. Friedman, 854 F.2d
535, 541, 583 (2d Cir. 1988) (upholding indictment even assuming government
repeatedly leaked grand jury information, resulting in extensive publicity
surrounding grand jury proceedings).
While Mechanik and Friedman involved errors in or surrounding the
proceedings in which the grand jury reached its decision – rather than an allegedly
duplicitous indictment – the reasoning behind those cases applies equally here.
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“The reversal of a conviction entails substantial social costs,” which “are an
acceptable and often necessary consequence when an error in the first proceeding
has deprived a defendant of a fair determination of the issue of guilt or innocence.
But the balance of interest tips decidedly the other way when an error has had no
effect on the outcome of the trial.” Friedman, 854 F.2d at 583 (quoting Mechanik,
475 U.S. at 72) (emphasis omitted).
Here, as noted, Ho was informed well before trial of the particular way in
which he was alleged to have violated the FCPA, and he had ample opportunity
to prepare his defense in response to that theory. We therefore cannot say that any
purported inconsistency in the indictment caused him prejudice at trial, and Ho
does not do much to suggest otherwise. He instead seeks to distinguish this case
from Friedman and Mechanik by suggesting that “[a] procedural error in the grand
jury’s process (such as the presence of an unauthorized person in the grand jury,
or a violation of grand jury secrecy rules)” is less central to the “heart of the grand
jury’s assignment” than a purportedly “fundamental contradiction in the
indictment itself.” Reply Br. at 23. But this proposition is easily dismissed, since
an indictment’s purported inconsistency caused by conjunctive pleading poses no
greater “theoretical potential to affect the grand jury’s determination whether to
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indict,” Mechanik, 475 U.S. at 70, than does an error during the proceeding.
Indeed, unlike a violation of grand jury secrecy rules, such an inconsistency would
seem to pose little risk to a defendant’s right to a fair trial before the petit jury, see
Friedman, 854 F.2d at 583, giving further assurance that “the petit jury's subsequent
guilty verdict means not only that there was probable cause to believe that the
defendants were guilty as charged, but also that they are in fact guilty as charged
beyond a reasonable doubt,” Mechanik, 475 U.S. at 70. Accordingly, Ho’s challenge
fails.
2. Sections 78dd-2 And 78dd-3 Of The FCPA Are Not Mutually Exclusive
Section 78dd-2 of the FCPA renders it unlawful for “any domestic concern,
. . . or for any officer, director, employee, or agent of such domestic concern . . .
acting on behalf of such domestic concern” to engage in certain prohibited
practices involving foreign trade. Section 78dd-3, by contrast, renders unlawful
the same conduct by “any person other than . . . a domestic concern (as defined in
section 78dd-2 of this title), or for any officer, director, employee, or agent of such
person . . . acting on behalf of such person, while in the territory of the United
States.”
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Arguing from the legislative history and purported intent of Congress, Ho
contends that §§ 78dd-2 and 78dd-3 are mutually exclusive. Broadly, he argues
that the statute addresses “three separate categories” of violators – “issuers,
[under] § 78dd-1; domestic concerns and their agents, [under] § 78dd-2; and
anyone else and their agents, [under] § 78dd-3.” Reply Br. at 24. As support, Ho
points to a Senate Committee Report, which explains that § 78dd-3 provides
“criminal and civil penalties over persons not covered under the existing FCPA
provisions regarding issuers and domestic concerns.” See Ho Br. at 52–53 (quoting S.
Rep. No. 105-277, at *5 (1998)). He also argues that United States v. Hoskins, 902
F.3d 69 (2d Cir. 2018), supports his position that §§ 78dd-2 and 78dd-3 are
mutually exclusive because the Court “[r]eferr[ed] to § 78dd-3” to indicate it
applied to foreign persons “not within any of the aforementioned categories who
violate the FCPA while present in the United States.” Ho Br. at 53–54 (internal
quotation marks omitted). Finally, Ho argues that ambiguous criminal statutes
must be interpreted narrowly according to the rule of lenity.
But the FCPA’s statutory language contains no indication that the
provisions are mutually exclusive, or that both sections would not cover a director,
like Ho, who acts on behalf of both a domestic concern – here, the U.S. NGO – and
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on behalf of a person other than a domestic concern – here, CEFC NGO. As we
noted in Hoskins, Congress sought to subject foreign persons to FCPA liability if
they “fit within three categories: (1) those who acted on American soil, (2) those
who were officers, directors, employees, or shareholders of U.S. companies, and
(3) those who were agents of U.S. companies.” 902 F.3d at 91. Nothing in the
language of the statute, or Hoskins, prevents an individual from fitting within more
than one of those three categories, particularly where, as here, that individual acts
on U.S. soil on behalf of both domestic and foreign entities. The FCPA’s clear text
therefore makes it unnecessary for us to examine its legislative history or invoke
the rule of lenity, and we accordingly reject Ho’s claim that his §§ 78dd-2 and
78dd-3 convictions are mutually exclusive.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment.
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