United States v. Kuai Li , 280 F. App'x 267 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4559
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KUAI LI,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:06-cr-00520-TSE)
Argued: May 13, 2008 Decided: June 6, 2008
Before KING, Circuit Judge, HAMILTON, Senior Circuit Judge, and
Henry F. FLOYD, United States District Judge for the District of
South Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Dale Warren Dover, Alexandria, Virginia, for Appellant.
David Brian Goodhand, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee. ON BRIEF: Chuck Rosenberg,
United States Attorney, Ronald L. Walutes, Jr., Assistant United
States Attorney, Kathy Hsu, Special Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Kuai Li of conspiracy to commit
naturalization and passport fraud, 18 U.S.C. §§ 371, 1425(b), and
1542, and aiding and abetting the procurement of citizenship or
naturalization unlawfully, id. §§ 1425(b) and 2. Li appeals his
convictions and sentence. We affirm.
First, Li asserts that the district court erred when it took
judicial notice of the guilty plea entered by the corrupt
government official that assisted Li in fraudulently obtaining
naturalization and thereafter in using the fraudulently obtained
naturalization certificate to fraudulently procure his passport.
According to Li, the judicial notice of the government official’s
guilty plea violated his rights guaranteed by the Confrontation
Clause of the Sixth Amendment. Here, the district court did not
err when it took judicial notice of the guilty plea because the
taking of such notice did not result in the admission of a
testimonial statement that would bring into play Li’s rights
guaranteed by the Confrontation Clause. See Crawford v.
Washington, 541 U.S. 36, 53-54 (2004) (holding that the
Confrontation Clause bars the “admission of testimonial statements
of a witness who did not appear at trial unless he was unavailable
to testify, and the defendant had had a prior opportunity for
cross-examination”); cf. Colonial Penn Ins. Co. v. Coil, 887 F.2d
1236, 1240 (4th Cir. 1989) (“We hold that these guilty pleas are
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‘not subject to reasonable dispute,’ and that these records are
properly subject to judicial notice pursuant to Fed. R. Evid.
201(b)(2).”). In any event, any error in the admission of the
corrupt government official’s guilty plea was harmless beyond a
reasonable doubt because (1) the jury was informed of the guilty
plea through other sources, and (2) the judicial notice of the
guilty plea helped, rather than hurt, Li, as it buttressed Li’s
defense that he lacked the requisite knowledge and intent to be
convicted. See United States v. Banks, 482 F.3d 733, 741 (4th Cir.
2007) (recognizing that a Confrontation Clause violation may be
found on appeal to be a harmless error).
Second, Li asserts that the district court erred when it
refused to instruct the jury on the defenses of entrapment by
estoppel and good faith. In a related argument, Li asserts that
the district court prevented him from presenting a public authority
defense. The decision to give or not to give a jury instruction is
reviewed for an abuse of discretion. United States v. Russell, 971
F.2d 1098, 1107 (4th Cir. 1992). We review jury instructions to
determine whether, taken as a whole, the instructions fairly state
the controlling law. United States v. Cobb, 905 F.2d 784, 789 (4th
Cir. 1990). A “defendant’s right to present a defense is not
absolute: criminal defendants do not have a right to present
evidence that the district court, in its discretion, deems
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irrelevant or immaterial.” United States v. Prince-Oyibo, 320 F.3d
494, 501 (4th Cir. 2003).
In this case, there was no abuse of discretion. With regard
to Li’s public authority defense, a public authority defense was
not warranted because there was no evidence that the corrupt
government official who issued Li’s fraudulent naturalization
documents had the actual authority to do so. See United States v.
Fulcher, 250 F.3d 244, (4th Cir. 2001) (noting that the defense of
public authority requires reasonable reliance upon the actual, as
opposed to the apparent, authority of a government official to
engage the defendant in a covert activity). With regard to Li’s
request for an entrapment by estoppel instruction, such an
instruction was not warranted because there was no evidence that a
corrupt government official affirmatively assured Li that his
conduct was lawful and that he engaged in that activity with
reasonable reliance on those assurances. See United States v.
Aquino-Chacon, 109 F.3d 936, 938-39 (4th Cir. 1997) (holding that
a defendant may raise the defense of entrapment by estoppel “when
the government affirmatively assures him that certain conduct is
lawful, the defendant thereafter engages in the conduct in
reasonable reliance on those assurances, and a criminal prosecution
based upon the conduct ensues,” but the defendant “must demonstrate
that there was ‘active misleading’ in the sense that the government
actually told him that the proscribed conduct was permissible”).
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With regard to Li’s request for a good faith instruction, we find
no abuse of discretion, given that the district court properly
instructed the jury on the knowledge elements of the offenses. See
United States v. Fowler, 932 F.2d 306, 317 (4th Cir. 1991)
(refusing to require separate good faith instruction when
instruction on specific intent adequate).
Third, Li asserts that the evidence in the record is
insufficient to support his convictions. A jury’s verdict must be
upheld on appeal if there is substantial evidence in the record to
support it. Glasser v. United States, 315 U.S. 60, 80 (1942).
“[A]n appellate court’s reversal of a conviction on grounds of
insufficient evidence should be confined to cases where the
prosecution’s failure is clear.” United States v. Jones, 735 F.2d
785, 791 (4th Cir. 1984) (citation and internal quotation marks
omitted). In determining whether the evidence in the record is
substantial, we view the evidence in the light most favorable to
the government and inquire whether there is evidence that a
reasonable finder of fact could accept as adequate and sufficient
to support a conclusion of a defendant’s guilt beyond a reasonable
doubt. United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996)
(en banc). A defendant challenging the sufficiency of the evidence
faces a heavy burden. United States v. Beidler, 110 F.3d 1064,
1067 (4th Cir. 1997). In evaluating the sufficiency of the
evidence, we do not review the credibility of the witnesses and
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assume that the jury resolved all contradictions in the testimony
in favor of the government. United States v. Romer, 148 F.3d 359,
364 (4th Cir. 1998). We have carefully reviewed the record and
conclude that the evidence in the record is sufficient to support
the jury’s verdicts. See United States v. Suarez-Rosario, 237 F.3d
1164, 1167 (9th Cir. 2001) (“[U]under the terms of 18 U.S.C.
§ 1542, the government must prove that the defendant made a willful
and knowing false statement in an application for a passport or
made a willful and knowing use of a passport secured by a false
statement.”); United States v. Ellis, 121 F.3d 908, 922 (4th Cir.
1997) (holding that, in order to prove that a defendant was
involved in a conspiracy in violation of 18 U.S.C. § 371, the
government must prove there was an agreement between two or more
people to commit a crime and an overt act in furtherance of the
conspiracy); Burgos, 94 F.3d at 873 (“A defendant is guilty of
aiding and abetting if he has knowingly associated himself with and
participated in the criminal venture.”) (citation and internal
quotation marks omitted); United States v. Moses, 94 F.3d 182, 184
(5th Cir. 1996) (holding that, to prove a § 1425(b) offense, the
government must show beyond a reasonable doubt that “(1) the
defendant . . . obtained . . . naturalization or citizenship; (2)
the defendant is not entitled naturalization or citizenship; and
(3) the defendant knows that he or she is not entitled to
naturalization or citizenship”).
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Finally, Li argues that the district court erred when it
revoked his citizenship under 8 U.S.C. § 1451(e) as a result of his
conviction for violating 18 U.S.C. § 1425(b). According to Li, the
government cannot “arbitrarily sever its relationship with the
people who remain sovereign.” Appellant’s Br. at 8. Because we
find his § 1425(b) conviction to be valid, Li’s argument fails. A
district court entering the criminal judgment convicting a person
for a violation of § 1425 “shall thereupon revoke, set aside, and
declare void the final order admitting such person to citizenship,
and shall declare the certificate of naturalization of such person
to be canceled.” 8 U.S.C. § 1451(e) (emphasis added); see also
United States v. Moses, 94 F.3d 182, 188 (5th Cir. 1996) (holding
that the language of § 1451(e) is mandatory).
For the reasons stated herein, the judgment of the district
court is affirmed.
AFFIRMED
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