United States v. Shi, Wei M. ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
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No. 02-2241
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WEI MIN SHI,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:01-CR-146—Rudy Lozano, Judge.
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ARGUED DECEMBER 2, 2002—DECIDED JANUARY 22, 2003
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Before BAUER, POSNER, and ROVNER, Circuit Judges.
POSNER, Circuit Judge. The defendant, Wei Min Shi,
appeals from his conviction and sentence for having
conspired with Hai Dong Yu, in violation of 18 U.S.C.
§ 1028(f), to violate 18 U.S.C. §§ 1028(a)(2) and (a)(6), which
respectively make it a crime to transfer, and to possess,
a false identification document that appears to have been
issued under the authority of the U.S. government. Shi was
also convicted of possessing a counterfeit U.S. immigra-
tion stamp, in violation of 18 U.S.C. § 1028(a)(5), but he
has not appealed that conviction.
The document in question is an “I-94,” a form that an alien
who wants to obtain a nonimmigrant visa is required to fill
2 No. 02-2241
out. Yu, a Chinese, had filled out such a form in Chinese
and obtained a visa and come to the United States. He
wanted a state identification card and learned that Shi could
help him get one. They met in Chicago, and Shi agreed for
$100 to help Yu get such a card. He drove Yu to the Indiana
motor vehicle bureau in Crown Point, Indiana, which issues
identification cards to immigrants residing in Indiana. Had
Yu’s I-94 been in English, he could have obtained the card;
but it was not. Shi took a blank I-94 form from a sheaf of
such forms that he had on hand, together with stamps and
other paraphernalia required to create a credible forgery,
and forged on the spot an I-94 for Yu that contained the
same information as Yu’s legitimate form but was in
English. The forgery was spotted when Shi and Yu pre-
sented the forged I-94 to the motor vehicle bureau.
There is no question that Shi violated substantive pro-
visions of 18 U.S.C. § 1028, not only by possessing a coun-
terfeit stamp but also by possessing and transferring to
Yu a false identification document purported to be is-
sued under the authority of the United States, and that Yu
committed the possession offense (to which he pleaded
guilty). But what was the conspiracy? Shi was engaged
in an illegal business of selling phony documentation to
aliens. Yu was one of his customers. The prohibition of pos-
sessing and transferring these phony documents is sym-
metrical with the prohibition of possessing and selling
illegal drugs, and an illegal sale of drugs, though made
pursuant to an agreement express or implied, is not a
conspiracy to make the sale, United States v. Lechuga, 994
F.2d 346, 348-50 (7th Cir. 1993) (en banc) (plurality opinion);
United States v. Thomas, 284 F.3d 746, 751-52 (7th Cir.
2002); United States v. Sanchez, 251 F.3d 598, 601 (7th Cir.
2001); United States v. Lennick, 18 F.3d 814, 819-20 and nn. 4-5
(9th Cir. 1994); see also United States v. Boyle, 482 F.2d 755,
767 (D.C. Cir. 1973), or to possess the item sold.
No. 02-2241 3
Conspiracies are punished separately from single-offender
criminal acts, and often as severely even if the conspir-
acy fails to achieve its aim, because a group having some
illegal purpose is more dangerous than an individual
who has the same purpose. Callanan v. United States, 364
U.S. 587, 593 (1961); Krulewitch v. United States, 336 U.S.
440, 448-49 (1949) (Jackson, J., concurring). They are more
dangerous not only because there is more power for
harm in a group and hence a greater likelihood that the
group will achieve its criminal aim, but also because a
group can take advantage of the division of labor, parcel-
ing out tasks in accordance with the skills, preferences,
and experience of the individual members, thus enabling
it to operate on a larger scale, and conceal its criminal
activities more effectively, that would be possible for a
lone wolf. United States v. Manzella, 791 F.2d 1263, 1265
(7th Cir. 1986). A seller and a buyer do not compose a
“group” in the sense relevant to conspiracy law, because
they do not have a common aim; they act at arm’s length
rather than cooperatively, each trying to get the better of
the deal. Shi’s aim was to obtain $100 for furnishing Yu
with a forged document; Yu’s to use the document to ob-
tain an Indiana ID. They did not seek joint possession,
or have any other common object, without which there
is no conspiracy. United States v. Mojica, 185 F.3d 780, 786-
87 (7th Cir. 1999); United States v. Magana, 118 F.3d 1173,
1185-86 (7th Cir. 1997); United States v. Paters, 16 F.3d 188,
190-91 (7th Cir. 1994); United States v. Fox, 902 F.2d 1508,
1514-15 (10th Cir. 1990).
And anything that would make a sale more ominous
than another kind of crime (perhaps the fact that volun-
tary transactions are more difficult to detect than crimes
with readily identifiable, indignant victims) would be
reflected in the punishment for the sale. To punish it more
severely as conspiracy would be an egregious example
4 No. 02-2241
of redundant punishment. Put differently, since the agree-
ment is inherent in the sale, calling it a conspiracy merely
relabels the sale rather than identifying an added source
of menace warranting punishment.
The government more or less acknowledges what we
have said so far but argues that Shi and Yu were conspir-
ing not merely to furnish Yu with a phony I-94 but by do-
ing so to enable him to commit a further crime, namely
to extract from the Indiana motor vehicle bureau a state
identification card without furnishing the bureau with
proper documentation. And since Yu did not live in In-
diana, he was not entitled to an Indiana identification
card in any event. In other words, Shi and Yu were agreeing
to obtain an identification card from the bureau of motor
vehicles illegally. This is a plausible characterization of
their conduct, and had they been charged with conspiring
to defraud the motor vehicle bureau they might well
have been found guilty. But they were not charged with
conspiring to commit any offense, state or federal, against
the bureau. They were charged with conspiring, that is,
agreeing, to violate section 1028 of the federal criminal
code, specifically the provisions of that section that forbid
the transfer and possession of (so far as bears on this case)
a forged I-94. If A agrees to sell a gun to B for use against
C, A and B are guilty of conspiring against C. They are
not guilty of conspiring to transfer the gun from A to B.
The conviction of conspiracy thus has to be reversed
and the case remanded for resentencing on the section
1028(a)(5) count. Shi argues that the guideline applicable
to that count is U.S.S.G. § 2B1.1 (“forgery; offenses in-
volving altered or counterfeit instruments other than
counterfeit bearer obligations of the United States).” The
government argues that it is section 2L2.1 (“trafficking in
a document relating to naturalization, citizenship, or legal
No. 02-2241 5
resident status, or a United States passport”). The govern-
ment is correct. See United States v. Kuku, 129 F.3d 1435,
1439-40 (11th Cir. 1997) (per curiam). Section 2L2.1 de-
scribes Shi’s conduct to a T, whereas 2B1.1 is applicable
to forgeries generally. An application note to section 2B1.1,
moreover, instructs that “if the primary purpose of the
offense, under 18 U.S.C. § 1028, was to violate, or assist
another to violate, the law pertaining to naturalization,
citizenship, or legal resident status, apply § 2L2.1 . . . rath-
er than this guideline.” § 2B1.1, Application Note 7(B).
Granted, there is no evidence that Yu wanted the forged
I-94 in order to violate the immigration laws or that Shi
had any intention of facilitating such a violation; no doubt
he was indifferent to the purpose for which Yu wanted
the Indiana ID that a forged I-94 might enable him to ob-
tain. But the immediate purpose of the offense was to
violate a law pertaining to legal resident status, for that
is what the law requiring foreign visitors, such as Yu, to
fill out an I-94 form is.
With the conspiracy count gone, however, there is no
basis for enhancing Shi’s sentence for a leadership role
in the offense on the basis that he was the leader of the
conspiracy, which he was; but it was a conspiracy to
defraud the motor vehicle bureau, which was not a crime
with which he was charged. The only offense of which he
stands lawfully convicted is the possession of the counter-
feit stamp, a one-man offense. We need not decide wheth-
er a leadership enhancement might be appropriate on
the basis of relevant conduct consisting of an uncharged
conspiracy to defraud the motor vehicle bureau.
REVERSED AND REMANDED.
6 No. 02-2241
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-22-03