United States v. Jong Park , 505 F. App'x 186 ( 2012 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 12-1202
____________
UNITED STATES OF AMERICA
v.
JONG SOON PARK,
Appellant
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-10-cr-00657-005)
District Judge: Honorable Petrese B. Tucker
____________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 16, 2012
Before: SCIRICA, FISHER and JORDAN, Circuit Judges.
(Filed: November 28, 2012 )
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
Jong Soon Park appeals his judgment of conviction for conspiracy to defraud the
United States. For the reasons stated below, we will affirm.
I.
We write principally for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts necessary to our
analysis.
Park is an English-speaking Korean national living in the United States as the
spouse of an E-2 investor visa holder. In June 2008, at a Philadelphia restaurant, Park
met with Michael Choi, his attorney, and with Michael Etemad, a man who Choi believed
to be a potential employer for Park, but who actually was an undercover FBI informant.
The purpose of the meeting was for Choi to convince Etemad, who had owned a garage
in the United States, to employ Park, who had worked as an automotive electrical
technician at Kia Motors in Korea, thereby allowing Park to acquire a permanent resident
card under the federal government’s skilled worker employment-based immigration
program.
During the meeting, Choi proposed that Park work for Etemad as an automotive
electrical technician. Etemad declined the offer, explaining that he had sold his garage,
and that he probably had no work for an automotive electrical technician. Park countered
that he would work for Etemad in any capacity without pay. Although there was no
agreement in place, Choi repeatedly asked Etemad to sign a letter indicating that Park
would work as an automotive electrical technician for $33,800 per year. Notwithstanding
the terms of the letter, Choi suggested that Etemad could employ Park in any capacity
2
without pay. Etemad refused to sign the letter. At an immigration interview the next
week, Park witnessed Choi submit on his behalf the letter with Etemad’s forged signature
to the United States Citizenship and Immigration Services (“USCIS”).
Park was charged with one count of conspiring with Choi to defraud the United
States in violation of 18 U.S.C. § 371, and with two counts of making false statements to
the United States in violation of 18 U.S.C. § 1001. At trial, the District Court granted the
Government’s motion to dismiss one of the false statement counts. Park requested a jury
instruction for a reliance on counsel defense, but he did not object to the District Court’s
denial of his request. The jury found Park guilty on the conspiracy count and not guilty
on the remaining false statement count. After trial, Park moved for a judgment of
acquittal on the basis that the evidence was insufficient to prove the conspiracy count.
The District Court denied the motion and sentenced Park to 4 years probation, a $5,000
fine, and a special assessment of $100.
Park timely appealed. Before us, Park again claims that the evidence was
insufficient to support the conspiracy conviction. Park also contends that the District
Court erred by refusing to give the jury instruction for a reliance on counsel defense.
II.
The District Court had jurisdiction over this case pursuant to 18 U.S.C. § 3231,
and we have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
3
Our review of the District Court’s denial of Park’s motion for a judgment of
acquittal based on the insufficiency of the evidence is plenary. United States v.
Richardson, 658 F.3d 333, 337 (3d Cir. 2011). We analyze whether “any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt[,]”
United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998), construing all factual inferences
in the Government’s favor. Jackson v. Virginia, 443 U.S. 307, 319 (1979) (“Once a
defendant has been found guilty of the crime charged, the factfinder’s role as weigher of
the evidence is preserved through a legal conclusion that upon judicial review all of the
evidence is to be considered in the light most favorable to the prosecution.”) (emphasis
omitted).
We review the District Court’s refusal to give Park’s requested jury instruction for
a reliance on counsel defense for abuse of discretion. 1 United States v. Hoffecker, 530
F.3d 137, 156 (3d Cir. 2008). A district court abuses its discretion if “(1) [a defendant]
proposes a correct statement of the law; (2) his theory is supported by the evidence;
(3) the theory of defense is not part of the charge; and (4) the failure to include an
instruction of the defendant’s theory would deny him a fair trial.” Id. at 176. However,
1
The Government argues that our review should be for plain error because Park
did not object to the District Court’s refusal to give the requested jury instruction. See
generally Jones v. United States, 527 U.S. 373, 384-95 (1999) (holding plain error review
governs unpreserved objection to district court’s refusal to give requested non-theory-of-
defense jury instruction). However, we have explained that we review a district court’s
refusal to give a requested jury instruction on a theory of the defense for an abuse of
discretion. United States v. Maury, 695 F.3d 227, 262 (3d Cir. 2012). We note that we
would affirm under either standard of review for the reasons stated infra Part III.B.
4
“a defendant is not entitled to a judicial narrative of his version of the facts, even though
such a narrative is, in one sense of the phrase, a ‘theory of the defense.’” Id.III.
A.
Park first argues that the evidence was insufficient to support his conspiracy
conviction. To support a conspiracy conviction under 18 U.S.C. § 371, the Government
must prove “(1) the existence of an agreement, (2) an overt act by one of the conspirators
in furtherance of the objectives, and (3) an intent on the part of the conspirators to agree,
as well as to defraud the United States.” United States v. Shoup, 608 F.2d 950, 956 (3d
Cir. 1979). For the third element, the Government must show that a conspirator “has
knowledge of the conspiracy’s illicit purpose when he performs acts which further that
illicit purpose.” United States v. Klein, 515 F.2d 751, 753 (3d Cir. 1975).
Here, the alleged agreement was to defraud the federal government’s
administration of its skilled worker employment-based immigration program, under
which an alien may obtain a green card if he is qualified to fill a permanent, skilled
position, for which there is no qualified United States worker. 8 U.S.C.
§ 1153(b)(3)(A)(i). The alleged overt act was Choi’s submission on Park’s behalf of the
fraudulent letter to the USCIS at the immigration interview. Park challenges the
Government’s evidence supporting the third element of his conspiracy conviction.
5
Park claims that the Government failed to introduce evidence that he knew about
Choi’s fraudulent permanent resident card scheme. However, contrary to Park’s
assertion, the trial record reflects that at the meeting, Park first listened to Etemad explain
that he had closed his garage, and that he probably had no work for an automotive
electrical technician. Park then heard Choi repeatedly ask Etemad to sign a letter
indicating that Park would work for Etemad as an automotive electrical technician for
$33,800 per year. Park finally witnessed Etemad refuse to sign the letter. Despite Park’s
observations, he subsequently watched Choi submit on his behalf the fraudulent letter to
the USCIS at the immigration interview.
It is true that there was no direct evidence of Park’s participation in Choi’s
conspiracy. Nonetheless, Park’s “knowledge and intent may be inferred from conduct
that furthered the purpose of the conspiracy.” United States v. McKee, 506 F.3d 225, 241
(3d Cir. 2007) (citing Direct Sales Co. v. United States, 319 U.S. 703, 711 (1943)).
Resolving permissible inferences in the Government’s favor, we hold that there was
sufficient evidence for the jury to conclude beyond a reasonable doubt that Park intended
to agree with Choi to defraud the United States in order to obtain permanent resident
status. We will therefore sustain the verdict.
B.
Park also submits that the District Court erred by refusing to give the requested
jury instruction for a reliance on counsel defense. The reliance on counsel defense
6
requires “full disclosure to counsel of all material facts and retention of counsel for
advice and not to ensure the success of the fraudulent scheme.” United States v.
Martorano, 767 F.2d 63, 66 (3d Cir. 1985). The basis for the reliance on counsel defense
is that “in relying on counsel’s advice, [a] defendant lacked the requisite intent to violate
the law.” United States v. Traitz, 871 F.2d 368, 382 (3d Cir. 1989).
Here, the District Court did not err by refusing to give the requested jury
instruction. No evidence was introduced demonstrating that Park relied on any advice
from Choi about the legality of their permanent resident card scheme. Because there was
no evidentiary support for a reliance on counsel defense, the District Court did not err in
denying Park’s requested jury instruction. Hoffecker, 530 F.3d at 156 (holding district
court did not abuse its discretion in rejecting requested jury instruction for reliance on
counsel defense due to lack of evidentiary support).
IV.
For the reasons stated above, we will affirm Park’s judgment of conviction.
7