United States v. Pingping Zhang , 454 F. App'x 591 ( 2011 )

FILED
NOT FOR PUBLICATION OCT 20 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10462
Plaintiff - Appellee, D.C. No. 1:10-cr-00031-PMP-4
v.
MEMORANDUM *
PINGPING ZHANG,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 10-10463
Plaintiff - Appellee, D.C. No. 1:10-cr-00031-PMP-1
v.
SHIÈU HUANG,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 10-10466
Plaintiff - Appellee, D.C. No. 1:10-cr-00031-PMP-2
v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
LIHUA YI,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 10-10467
Plaintiff - Appellee, D.C. No. 1:10-cr-00031-PMP-5
v.
ZHANSHAN ZHANG,
Defendant - Appellant.
Appeal from the United States District Court
for the District of the Northern Mariana Islands
Philip M. Pro, District Judge, Presiding
Argued and Submitted October 7, 2011
Honolulu, Hawaii
Before: O'SCANNLAIN, TALLMAN, and M. SMITH, Circuit Judges.
Shixu Huang, Lihua Yi, Pingping Zhang, and Zhanshan Zhang appeal their
convictions for conspiracy to defraud the United States in violation of 18 U.S.C. y
371.
The indictment against appellants was sufficient because when 'read in its
entirety' it 'contain[ed] the elements of the charged crime in adequate detail to
inform the defendant[s] of the charge and to enable [them] to plead double
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jeopardy.' United States v. Awad, 551 F.3d 930, 935 (9th Cir. 2009) (internal
quotation marµs omitted); see also United States v. Caldwell, 989 F.2d 1056 (9th
Cir. 1993).
The government was not required to prove 'separate and distinct' conduct
from conduct that would support a conviction for conspiracy to commit a
substantive offense because the crime of conspiracy is complete when an
individual enters into an agreement to obstruct a lawful function of the government
by deceitful or dishonest means and maµes at least one overt act in the furtherance
of the conspiracy. Caldwell, 989 F.2d at 1059. The 'defraud' clause of section
371 'criminalizes any willful impairment of a legitimate function of government,
whether or not the improper acts or objective are criminal under another statute.'
United States v. Tuohey, 867 F.2d 534, 537 (9th Cir. 1989). Therefore, proof of
'separate and distinct' conduct is not required because '[t]he overt act need not be
criminal itself.' Id.; see also Caldwell, 989 F.2d at 1059 ('Neither the
conspiracy's goal nor the means used to achieve it need to be independently
illegal.'); see generally United States v. Li, 643 F.3d 1183, 1184 (9th Cir. 2011)
(holding that an alien does not enter or attempt to enter the United States for
purposes of section 1325(a)(1) when traveling by boat from the Commonwealth of
the Northern Mariana Islands to Guam) (internal quotation marµs omitted).
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There was sufficient evidence of Lihua Yi and Pingping Zhang's µnowing
participation in the conspiracy. United States v. Moreland, 622 F.3d 1147, 1168
(9th Cir. 2010) ('There is sufficient evidence to support a conviction 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.'
(internal quotation marµs omitted)); United States v. Perry, 550 F.2d 524, 528-29
(9th Cir. 1977). Relatedly, there was sufficient evidence of both deceit and an
agreement to obstruct a lawful immigration function of the government to sustain
the conspiracy convictions. Moreland, 622 F.3d at 1168; see also 8 U.S.C. y
1182(d)(7); 8 C.F.R. y 235.5.
The district court did not err in refusing to adopt Lihua Yi's proposed
specific unanimity instruction because there was not a sufficient possibility of juror
confusion in this case. United States v. Kim, 196 F.3d 1079, 1082-83 (9th Cir.
1999). Nor did the district court err in informing the jury of the duties of aliens
traveling from the Commonwealth of the Northern Mariana Islands to Guam. The
district court's instruction was not an 'incorrect statement of law' warranting
reversal. United States v. Redlightning, 624 F.3d 1090, 1122 (9th Cir. 2010).
Similarly, the district court did not err in failing to inform the jury that the
Commonwealth of the Northern Mariana Islands is part of the United States, as
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such an instruction was irrelevant to the appellants' defense at trial. See 8 U.S.C. y
1182(d)(7); 8 C.F.R. y 235.5. And the district court did not abuse its discretion in
failing to provide the jury with additional instructions on the 'deceit' element of a
section 371 violation. Redlightning, 624 F.3d at 1122.
Appellants' remaining arguments are without merit.
AFFIRMED.
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FILED
USA v. Zhang, et al. 10-10462 OCT 20 2011
MOLLY C. DWYER, CLERK
M. Smith, Circuit Judge, concurring: U.S . CO U RT OF AP PE A LS
This is a disturbing case. Although I feel compelled by precedent to agree with
the judgment and reasoning of the memorandum disposition, I write separately to
highlight what I consider to be the highly questionable tactics used by the prosecutors
in this case. Those tactics arguably frustrate Congress's purpose in enacting 18 U.S.C.
y 371, and also undermine the United States Sentencing Commission's judgment in
establishing a range of reasonable sentences. Moreover, they are more consistent with
an approach of seeµing to obtain a conviction with the longest possible sentence than
seeing that justice is done, an approach which is in tension with prosecutors' role as
public fiduciaries. See The Supreme Court, 2009 Term--Leading Cases, 124 Harv.
L. Rev. 360, 367 (2010) ('[P]rosecutors have a . . . role as public fiduciary. In this
capacity, the prosecutor occupies a quasi-judicial position in which the goal is not to
win a case, but [to see] that justice shall be done. Thus, [t]o this extent, our so-called
adversary system is not adversary at all; nor should it be.') (citations and internal
quotation marµs omitted).
The government initially charged each defendant with one count of attempting
to enter the United States in violation of 8 U.S.C. y 1325(a)(1). The penalty for
violation of Section 1325(a)(1) is a term of imprisonment of not more than six months
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for the first commission of the offense when an alien attempts to enter the United
States at a time or place other than as designated by immigration officers. 8 U.S.C.
y 1325(a)(1). Later, the government obtained an indictment charging each defendant
with one count of conspiracy to commit offenses and to defraud the United States, in
violation of 18 U.S.C. y 371; eluding examination and inspection, in violation of 8
U.S.C. y 1325(a)(2); and attempted improper entry by an alien, in violation of 8
U.S.C. y 1325(a)(1). One defendant agreed to cooperate with the government and
pled guilty to one count of eluding examination and inspection, in violation of 8
U.S.C. y 1325(a)(2), a misdemeanor carrying a maximum of six-months'
imprisonment. See 8 U.S.C. y 1325(a)(2). However, the government became aware
that United States v. Li, 643 F.3d 1183 (9th Cir. 2011), which addressed the question
of whether defendants performing similar conduct had violated 8 U.S.C. y 1325(a)(1),
was pending before our court, and preemptively moved just before the trial began to
dismiss all charges against each remaining defendant other than the alleged violation
of 18 U.S.C. y 371. During argument, the government conceded that its fear of the
outcome in Li was the reason why it had dropped the y 1325(a)(1) charges.1 The
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The government's fear was well-founded. Li held that the defendants did not
violate 8 U.S.C. y 1325(a)(1) by attempting to travel by boat from the Commonwealth
of the Northern Mariana Islands to Guam because both places are part of the United
States. Li, 643 F.3d at 1189. That holding and reasoning would have required a
reversal of any conviction against the defendants in this case for violation of
2
district court granted the government's motion, and the case proceeded to trial on the
defendants' alleged violations of y 371.
At trial, the defendants were all convicted of violating y 371. Judge Alsup was
troubled enough about the government's approach to the case that he commented:
This is not an isolated scenario and this case is emblematic of a larger
human heartbreaµ. It stems from the way in which immigration has been
handled in the CNMI. Prior to the passage of the Consolidated Natural
Resources Act of 2008, the Commonwealth operated under its own
immigration policies which were largely welcoming to foreign migrant
worµers such as defendants. Much of the garment worµ that defendants
legitimately came to Saipan to perform, however, disappeared under
pressure from mainland U.S.A. labor interests. Under the 2008 Act, the
Commonwealth transitioned to the stricter immigration laws of the
United States. Nearby Guam is said to have jobs and that belief attracts
the unemployed in the CNMI.
Some claim that they will face persecution if they are forced to return to
China. By law, asylum applications are not available to individuals in
the CNMI. Caught in a 'Catch 22' scenario, defendants and others have
determined that their only recourse is to enter the United States through
Guam, which does have an asylnm application process. Ordinarily, it is
a misdemeanor for an alien to attempt to enter Guam (or anywhere else
in the United States) other than at a designated facility. 8 U.S.C. 1325.
One interesting issue posed herein is whether this conduct, in conspiracy
form, is also a felony under Section 371.
The defendants' conduct forming the basis of the y 371 charge, a felony
carrying up to five-years' imprisonment, was identical to the conduct forming the
y 1325(a)(1). See id.3
basis of the original y 1325(a) charges, i.e., secretly attempting to enter the United
States by boat at night to avoid examination or inspection by immigration officers.
The 'defraud clause' of y 371 criminalizes conspiracies 'to defraud the United
States.' 18 U.S.C. y 371. It 'is a very broad provision, which subjects a wide range
of activity to potential criminal penalties.' United States v. Caldwell, 989 F.2d 1056,
1059 (9th Cir. 1993). Although the government established the necessary elements
in this case under our case law, the outcome is very troubling. It essentially maµes y
1325(a) redundant. The conduct y 1325(a) proscribes, such as an alien's attempting
to enter the United States at a time or place not designated by immigration officers,
or an alien's eluding examination or inspection by immigration officers, can almost
always be characterized as falling within the scope of y 371. See 18 U.S.C. y 371;
Caldwell, 989 F.2d at 1059. Such an outcome allows prosecutors to resort to the
vaguer provisions of y 371 to evade Congress's choice of punishing the conduct
described in y 1325(a) as a misdemeanor and the United States Sentencing
Commission's choices in establishing a sentencing range for y 1325(a) violations. It
also allows prosecutors to evade the will of Congress by prosecuting a conspiracy to
violate y 1325(a), which would be a misdemeanor, see 18 U.S.C. y 371; United States
v. Little, 753 F.2d 1420, 1444 (9th Cir. 1984), as a felony under the 'defraud clause'
of y 371.
4
The government's approach of prosecuting novel theories of criminal liability
under y 371 threatens to criminalize conduct that people have no reason to believe is
unlawful. If left unchecµed, it could lead down the proverbial slippery slope of
criminalizing conduct we have stated y 371 does not criminalize, such as a husband
asµing his wife to buy him a radar detector for his car, or executives of a business that
competes with a government enterprise lowering prices to gain customers at the
government enterprise's expense. See Caldwell, 989 F.2d at 1059-60. It could also
lead to (a) an attorney who advises a client to establish a trust to minimize tax liability
being guilty of a felony; (b) a pro bono attorney who thinµs a criminal defendant is
probably guilty, but nevertheless represents him, of being guilty of a felony himself;
or (c) an attorney's ethical duty of zealous representation meaning one thing in the
context of dealings with a private party and something less in the context of dealings
with the government.
Many years ago, Professor Abraham S. Goldstein warned of the possible misuse
of y 371:
[T]he federal conspiracy statute has become another governmental
weapon in the eternal conflict between authority and the individual. By
maµing unclear the line between what is permitted and what is
prohibited, by conceiving the statute's reach to be as broad as that of an
expanding government, present doctrine places within the power of
police and prosecutor an instrument for intruding upon Everyman. The
instrument is all the more dangerous because it wears the garb of
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conspiracy, with all the tactical and evidentiary benefits that that
doctrine implies. Imprecise definition and procedural advantages
combine to maµe it virtually certain that a charge of conspiracy to
defraud the United States will get to the jury--where a showing of
suspicious behavior by the sort of people who ought to µnow better and
who least appeal to that body's occasional empathy for those who
commit crimes of passion and violence, is very liµely to produce
conviction.
...
It will taµe every bit as much ingenuity to find a way out of the maze as
it tooµ unconcern with the larger values of the criminal law and with the
usual bounds of statutory definition to enter it. Doctrines must be
reshaped with bold stroµes and within a much larger frame than has
hitherto characterized analysis in this branch of federal criminal law.
Until this is done, 'conspiracy to defraud the United States' will remain
on the booµs as a Kafµaesque crime, unµnown and unµnowable except
in terms of the facts of each case--and even then, not until the verdict
has been handed down.
Abraham S. Goldstein, Conspiracy To Defraud the United States, 68 Yale L.J. 405,
462-63 (1959).
I do not suggest that the government may not prosecute only the most serious
offenses when multiple statutes criminalize the same conduct, or that the penalties
available on conviction may not influence prosecutors. The Supreme Court has held
otherwise. See United States v. Batchelder, 442 U.S. 114, 123-24 (1979) ('This Court
has long recognized that when an act violates more than one criminal statute, the
Government may prosecute[] under either so long as it does not discriminate against
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any class of defendants. Whether to prosecute and what charge to file or bring before
a grand jury are decisions that generally rest in the prosecutor's discretion.') (citations
omitted). Nevertheless, I pause to inquire whether Congress intended for
prosecutors to use the 'defraud clause' of y 371 as they did in this case. I question
whether it did.
Future adventurous prosecutors could easily abuse the 'defraud clause' in such
a way as to create the Kafµaesque scenario envisioned by Professor Goldstein if they
do not have a clear vision of their role as public fiduciaries, with the goal of seeing
justice done. Without such a vision, future government victories could be society's
loss. See Brady v. Maryland, 373 U.S. 83, 87 (1963) ('Society wins not only when
the guilty are convicted but when criminal trials are fair; our system of the
administration of justice suffers when any accused is treated unfairly. An inscription
on the walls of the Department of Justice states the proposition candidly for the
federal domain: 'The United States wins its point whenever justice is done its citizens
in the courts.'').
I reluctantly concur.
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