United States v. Liu ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 06-10758
v.  D.C. No.
CHANG DA LIU, CR-05-00027-ARM
Defendant-Appellant.

UNITED STATES OF AMERICA,  No. 06-10760
Plaintiff-Appellee,
v.  D.C. No.
CR-05-00027-ARM
MING YAN ZHENG, aka Li-Na,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of the Northern Mariana Islands
Alex R. Munson, Chief District Judge, Presiding
Argued and Submitted
March 10, 2008—San Francisco, California
Filed August 13, 2008
Before: Procter Hug, Jr., Pamela Ann Rymer, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Hug
10513
10516 UNITED STATES v. LIU
COUNSEL
Steven P. Pixley, San Jose, Saipan, M.P., for appellant Chang
Da Liu, and G. Anthony Long, San Jose, Saipan M.P., for
appellant Ming Yan Zheng.
Michael A. Rotker, Attorney, U.S. Department of Justice,
Washington, D.C., for the appellee.
UNITED STATES v. LIU 10517
OPINION
HUG, Circuit Judge:
A jury found Ming Yan Zheng and Chang Da Liu guilty of
conspiracy, two counts of sex trafficking, foreign transporta-
tion for prostitution, and transportation of persons in execu-
tion of fraud.1 The district court sentenced Zheng to 78
months imprisonment, fined her $55,000, and ordered her to
pay $47,440 in restitution and a $500 assessment. The court
sentenced Liu to 57 months, made him jointly and severally
liable for $47,440 in restitution, and ordered him to pay a
$500 assessment.
This is a consolidated direct appeal. Zheng challenges her
convictions on the grounds that (1) the court lacked jurisdic-
tion to prosecute her; (2) the evidence was insufficient to sup-
port her convictions; (3) the district court’s evidentiary rulings
created reversible error; (4) there was prosecutorial miscon-
duct; and (4) the court failed to properly instruct the jury.
Zheng also challenges her sentence on the grounds that (1) the
sentencing guideline calculation was incorrect and (2) restitu-
tion was improper or was incorrectly calculated.
Liu challenges his convictions on the grounds that the
court’s evidentiary rulings created reversible error.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm the district court on all challenged grounds.
Background
Zheng is a Chinese citizen who moved to the Common-
wealth of the Northern Mariana Islands (CNMI) where she
met Liu. Together, Zheng and Liu opened a brothel in Saipan,
the capital of the CNMI, called the Tea House. They recruited
1
Violations of 18 U.S.C. §§ 371, 1591, 2421, and 2314 respectively.
10518 UNITED STATES v. LIU
employees in Dalian, China by placing advertisements for
hotel waitresses, nightclub performers, and service workers
with a Chinese recruiting company. The recruitment flyer
stated the employees would earn about $3,000-$4,000 per
month, and applicants were required to pay $6,000 in “pro-
cessing fees” to secure a position.
Chinese women, including Xuimei Chi and Wei Lian, saw
these advertisements and signed agreements to become “hotel
waitresses.” Chi and Lian each paid part of their $6,000 fee
and arrived in Saipan in debt to Zheng. Upon arriving in Sai-
pan, Chi, Lian, and four other young women from China were
taken to housing barracks and then to the Tea House. At the
Tea House, the women testified that they learned they were
required to have sex with customers. The women protested
but eventually submitted and worked as prostitutes in the Tea
House from October 2004 to May 2005.
In June 2005, the six women went to the FBI and an inves-
tigation of Zheng, Liu, and the Tea House began, which
resulted in Zheng and Liu’s convictions.
A. Jurisdiction and Federal Legislative Authority over the
CNMI
Zheng contends her convictions are invalid because the fed-
eral government lacked authority to prosecute her. Whether
the federal government had authority to prosecute Zheng is a
legal question that we review de novo. See United States v.
Philips, 367 F.3d 846, 854 (9th Cir. 2004) (jurisdictional
issues are reviewed de novo); United States v. Mateo-Mendez,
215 F.3d 1039, 1042 (9th Cir. 2000) (questions of law are
reviewed de novo). Zheng argues the criminal statutes used to
convict her do not apply to the CNMI because they were
enacted pursuant to Congress’s authority under the commerce
clause or the territorial clause and neither the commerce
clause nor the territorial clause applies to the CNMI.
UNITED STATES v. LIU 10519
[1] To understand this argument, it is necessary to briefly
discuss the history and relationship of the CNMI with the
United States. The Northern Mariana Islands became a pos-
session of the United States in 1944, during the war with
Japan, when the United States invaded Saipan. In 1975, the
Northern Mariana Islands and the United States reached an
agreement to create a political union between the Islands and
the United States. This agreement was the “Covenant to
Establish a Commonwealth of the Northern Mariana Islands
in Political Union with the United States of America” (the
“Covenant”). 48 U.S.C. § 1801. The Covenant became law in
1976 and became completely effective in 1986. The Covenant
defines the CNMI’s legal and political relationship with the
United States. Covenant §§ 101-105; United States ex rel.
Richards v. De Leon Guerrero, 4 F.3d 749, 754 (9th Cir.
1993). The Covenant gives the people of the CNMI the right
to local self-government, and enables the U.S. federal govern-
ment to enact legislation applicable to the CNMI as long as
the legislation can be made applicable to the states or if the
legislation expressly names the CNMI. Covenant §§ 103, 105.
[2] Section 501 of the Covenant lists specific provisions of
the U.S. Constitution that apply to the CNMI.2 Zheng argues
2
Section 501 provides in its entirety:
(a) To the extent that they are not applicable of their own force,
the following provisions of the Constitution of the United States
will be applicable within the Northern Mariana Islands as if the
Northern Mariana Islands were one of the several States: Article
I, section 9, Clauses 2, 3, and 8; Article I, Section 10, Clauses 1
and 3; Article IV, Section 1 and Section 2, Clauses 1 and 2;
Amendments 1 through 9, inclusive; Amendment 13; Amend-
ment 14, Section 1; Amendment 15; Amendment 19; and
Amendment 26; provided, however, that neither trial by jury nor
indictment by grand jury shall be required in any civil action or
criminal prosecution based on local law, except where required
by local law. Other provisions of or amendments to the Constitu-
tion of the United States, which do not apply of their own force
within the Northern Mariana Islands, will be applicable within
10520 UNITED STATES v. LIU
§ 501 is an exclusive list of the provisions of the U.S. Consti-
tution that apply to the CNMI. Because neither the commerce
clause nor the territorial clause are included in § 501, Zheng
contends they do not apply to the CNMI.
Zheng relies upon Fleming v. Dept. of Public Safety, to
support her argument. 837 F.2d 401, 405 (9th Cir. 1988)
(overruled on other grounds by Will v. Michigan Dept. of
State Police, 491 U.S. 58, 71 (1989)). In Fleming, we held
that the Eleventh Amendment does not apply to the CNMI
because the Eleventh Amendment was not included in the list
of constitutional provisions set forth in § 501. Id. at 405.
In Fleming, Lawrence Fleming sued the CNMI Department
of Public Safety, alleging that the department deprived him of
his due process and equal protection rights, in violation of 42
U.S.C. § 1983, by the way it handled his application to
become a police officer. Id. at 403. The department argued it
was immune from suit because Eleventh Amendment sover-
eign immunity applied to the CNMI. Id. at 405. We disagreed
and concluded the CNMI does not enjoy Eleventh Amend-
ment immunity because the Eleventh Amendment is “con-
spicuously absent” from § 501 of the Covenant. Id. We
reasoned,
From the specificity with which the applicable provi-
sions of the United States Constitution are identified,
it is clear that the drafters considered fully each con-
stitutional amendment and article for inclusion in the
the Northern Mariana Islands only with approval of the Govern-
ment of the Northern Mariana Islands and of the Government of
the United States.
(b) The applicability of certain provisions of the Constitution of
the United States to the Northern Mariana Islands will be without
prejudice to the validity of and the power of the Congress of the
United States to consent to Sections 203, 506 and 805 and the
proviso in Subsection (a) of this Section.
UNITED STATES v. LIU 10521
Covenant. That they deliberately declined to include
the eleventh amendment unequivocally demonstrates
their desire that the Commonwealth not be afforded
eleventh amendment immunity. Id.
In the present case, Zheng argues that the commerce clause
and territorial clause are like the Eleventh Amendment.
Because they are not included in § 501, Zheng contends they
do not apply to the CNMI. Zheng then reasons the U.S. gov-
ernment lacked jurisdiction to prosecute her for sex traffick-
ing and her other offenses because the criminal statutes she
was convicted of violating were enacted pursuant to Con-
gress’s power under the commerce clause or territorial clause.
We disagree with Zheng’s reasoning. The issue of whether
the commerce clause or territorial clause apply to the CNMI
is misleading. Section 501 sets forth constitutional provisions
that are “applicable within the Northern Mariana Islands as if
the Northern Mariana Islands were one of the several States
. . . .” Unlike the Eleventh Amendment, the commerce clause
and the territorial clause generally are not constitutional pro-
visions that apply to the states.3 These are constitutional pro-
visions that apply to the United States Congress. Whether the
commerce clause and territorial clause “apply to” the CNMI
does not affect the authority of Congress to enact legislation
applicable to the CNMI.
[3] Section 501 does not include a single constitutional pro-
vision that involves Congressional authority to legislate. If we
adopted Zheng’s interpretation of Fleming, Congress would
have no authority to enact legislation applicable to the CNMI
whatsoever. Such a result is nonsensical and conflicts with
§ 105 of the Covenant, which expressly provides, “The
United States may enact legislation in accordance with its
3
We acknowledge the dormant commerce clause does apply to the
states. We make no conclusion regarding whether the dormant commerce
clause applies to the CNMI. That issue is not before us.
10522 UNITED STATES v. LIU
constitutional processes which will be applicable to the North-
ern Mariana Islands . . . .” See Cook Inlet Native Ass’n v.
Bowen, 810 F.2d 1471, 1474 (9th Cir. 1987) (stating sections
of a statute should not be interpreted to render another part
inoperative or to defy common sense). Section 105 assumes
there are constitutional processes that would enable Congress
to legislate for the CNMI.4 We agree.
[4] Accordingly, we hold Congress has the authority to
enact legislation applicable to the CNMI. This authority is not
limited by the exclusion or omission of constitutional provi-
sions in § 501 of the Covenant.
[5] While the commerce clause provides a constitutional
basis for Congress’s legislative authority in the Common-
wealth, the Covenant does limit Congress’s legislative power.
De Leon Guerrero, 4 F.3d at 754. Pursuant to § 501(a) of the
Covenant, 18 U.S.C. §§ 2421 and 2314 are applicable to the
CNMI because they were enacted before the Covenant’s 1978
effective date, and are applicable to the several states and
Guam. See United States v. Taitano, 442 F.2d 467, 468-69
(9th Cir. 1971) (affirming transportation for prostitution con-
viction involving transportation of victims to Guam).
[6] By contrast, 18 U.S.C. § 1591(a) was enacted after the
4
Section 105 provides in its entirety:
The United States may enact legislation in accordance with its
constitutional processes which will be applicable to the Northern
Mariana Islands, but if such legislation cannot also be made
applicable to the several States the Northern Mariana Islands
must be specifically named therein for it to become effective in
the Northern Mariana Islands. In order to respect the right of self-
government guaranteed by this Covenant the United States agrees
to limit the exercise of that authority so that the fundamental pro-
visions of this Covenant, namely Articles I, II and III and Sec-
tions 501 and 805, may be modified only with the consent of the
Government of the United States and the Government of the
Northern Mariana Islands.
UNITED STATES v. LIU 10523
Covenant’s effective date. For legislation enacted after the
Covenant’s effective date, we balance the federal interests
served by the legislation against the degree of intrusion into
local affairs. See De Leon Guerrero, 4 F.3d at 755. In this
case, the balance tips in favor of applicability because the fed-
eral government’s significant interest in combating interna-
tional sex trafficking through United States territories
outweighs the intrusion into the CNMI’s local affairs.
[7] Congress may criminalize conspiracy, sex trafficking,
foreign transportation for prostitution, and transportation of
persons in execution of fraud in the CNMI as it does in the
states. Thus, we conclude the federal government had author-
ity to prosecute Zheng for committing the above crimes.
B. Sufficiency of the Evidence
Zheng also contends there was insufficient evidence to sup-
port her conviction for transportation of persons in execution
of fraud and her convictions for sex trafficking.
When a defendant moves for a judgment of acquittal at the
close of the government’s case, as Zheng did, we review de
novo the question of whether sufficient evidence exists to
support a guilty verdict. United States v. Stewart, 420 F.3d
1007, 1014 (9th Cir. 2005). To determine whether sufficient
evidence exists, we view the evidence in the light most favor-
able to the prosecution and ask whether any rational trial of
fact could have found the defendant guilty of the crime
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
319 (1979); United States v. Shipsey, 363 F.3d 962, 971 n.8
(9th Cir. 2004).
1. Transportation of Persons in Execution of Fraud / Travel
Fraud
Zheng contends there was insufficient evidence to support
her conviction for transportation of persons in execution of
10524 UNITED STATES v. LIU
fraud, a violation of 18 U.S.C. § 2314. She argues the money
claimed to have been obtained by fraudulent means did not
move in interstate or foreign commerce. Zheng claims the
record shows Chi and Lian borrowed money in China to pay
part of their $6,000 “processing fees” and paid the money to
the recruiting firm in China. Because the money allegedly
stayed in China, Zheng contends the elements of travel fraud
cannot be met. Further, Zheng contends Chi and Lian paid
less than $5,000.00 prior to leaving China, which is the mini-
mum amount required to constitute a violation of the travel
fraud statute.
[8] Zheng’s argument is without merit. Viewing the evi-
dence in the light most favorable to the prosecution, a rational
jury could have found Zheng violated 18 U.S.C. § 2314. The
evidence supported a finding that Zheng used false promises
to induce Chi and Lian to travel from China to the CNMI with
the intent to defraud Chi and Lian of $6,000. The evidence
further supported a finding that the money came from China
and ultimately reached Zheng in the CNMI. Thus, we con-
clude there was sufficient evidence to support Zheng’s con-
viction for transportation of persons in execution of fraud.
2. Sex Trafficking
Zheng also contends there was insufficient evidence to sup-
port her two convictions for sex trafficking pursuant to 18
U.S.C. § 1591. She argues the government failed to show she
had the requisite knowledge and intent.
[9] Viewed in the light most favorable to the prosecution,
there was sufficient circumstantial evidence to support a ratio-
nal jury finding that Zheng knew force, fraud, or coercion
would be used to cause Chi and Lian to engage in prostitution.
The government produced evidence that showed Zheng
designed a scheme to induce Chinese women to pay $6,000
to move to the CNMI where the women were then required
to become prostitutes. Chi and Lian testified they did not
UNITED STATES v. LIU 10525
know they would have to be prostitutes in Saipan. The written
materials used to recruit Lian and Chi stated sexual activities
were prohibited, which supports a finding that Zheng intended
to deceive Chi and Lian. Viewing this evidence in the light
most favorable to the prosecution, we conclude there was suf-
ficient evidence to support the jury’s determination that
Zheng was guilty of sex trafficking.
C. Evidentiary Rulings
1. Videos of Chi and Lian
Zheng and Liu both contend the district court committed
reversible error by denying their requests to admit video evi-
dence of Chi and Lian engaging in prostitution of their own
free will.
We review the district court’s decision to admit or exclude
evidence for an abuse of discretion. United States v.
Plancarte-Alvarez, 366 F.3d 1058, 1062 (9th Cir. 2004). Such
rulings will be reversed only if the error more likely than not
affected the verdict. United States v. Edwards, 235 F.3d 1173,
1179 (9th Cir. 2000); United States v. Ramirez, 176 F.3d
1179, 1182 (9th Cir. 1999).
The videos include lengthy footage of people outside an
adult video store, people going in and out of the store, and
nothing more. Viewers cannot hear what the people outside
the store are saying and cannot see what, if anything, happens
inside the store. The footage was filmed after Chi and Lian
left the Tea House and after Zheng was indicted.
The district court found the videos were irrelevant and
thereby excluded by Federal Rule of Evidence 402. The dis-
trict court also concluded the videos should be excluded under
Federal Rule of Evidence 403 as their admission would result
in “unfair prejudice,” “confusion of the issues,” and would
constitute “undue delay and concomitant waste of time.”
10526 UNITED STATES v. LIU
Additionally, the court concluded the videos were barred by
Federal Rule of Evidence 608, which prohibits extrinsic evi-
dence offered to prove specific conduct of a witness.
[10] We conclude the district court did not abuse its discre-
tion by excluding the videos. The videos are long and devoid
of admissible evidence. Chi and Lian admitted they engaged
in prostitution to support themselves after Zheng’s arrest and
the closing of the Tea House. The defendants were not enti-
tled to present extrinsic evidence of specific acts that Lian and
Chi admitted they committed. We conclude the district judge
properly relied upon Federal Rules of Evidence 402, 403, and
608.
2. Special Agent James Barry’s Testimony
Liu contends the district court committed reversible error
by allowing Special Agent James Barry to testify regarding
out of court statements made by Lian and Chi. The statements
were admitted pursuant to Federal Rule of Evidence
801(d)(1)(B). This rule of evidence provides that a statement
is not hearsay if the statement is a prior consistent statement
by a witness and it is offered to rebut an express or implied
charge against the witness of recent fabrication or improper
influence or motive. Fed. R. Evid. 801(d)(1)(B).
In order to admit statements under Rule 801(d)(1)(B), the
party that seeks to admit the statements must satisfy four ele-
ments: “(1) the declarant must testify at trial and be subject
to cross-examination; (2) there must be an express or implied
charge of recent fabrication or improper influence or motive
of the declarant’s testimony; (3) the proponent must offer a
prior consistent statement that is consistent with the declar-
ant’s challenged in-court testimony; and, (4) the prior consis-
tent statement must be made prior to the time that the
supposed motive to falsify arose.” United States v. Collicott,
92 F.3d 973, 979 (9th Cir. 1996); see also Tome v. United
States, 513 U.S. 150, 157-58 (1995).
UNITED STATES v. LIU 10527
In this case, the declarants, Chi and Lian, both testified at
trial and were subject to cross examination. Liu challenged
the credibility of Lian and Chi by presenting evidence that the
women had received financial assistance from the FBI. Liu
implied Lian and Chi fabricated their testimony in order to
receive financial assistance from the FBI. Agent Barry, the
proponent, testified about the content of Lian and Chi’s state-
ments before the FBI began providing them with financial
assistance. Lian and Chi’s statements, as presented by Agent
Barry, were largely consistent with their in-court testimony.
Accordingly, all four elements are satisfied by Agent Barry’s
testimony.
[11] Rather than reversible error, this is a textbook example
of when to apply Federal Rule of Evidence 801(d)(1)(B), and
we conclude the district court did not abuse its discretion
when it permitted Agent Barry to testify about Lian and Chi’s
prior consistent statements.
D. Prosecutorial Misconduct
Zheng contends the government engaged in prosecutorial
misconduct, which violated her due process rights and neces-
sitates a new trial. We review the district court’s rulings on
alleged prosecutorial misconduct for an abuse of discretion.
United States v. Murillo, 288 F.3d 1126, 1140 (9th Cir. 2002).
We review de novo allegations of due process violations. See
United States v. Amlani, 111 F.3d 705, 712 (9th Cir. 1997).
Failure to disclose material information to the defense is con-
stitutional error only if the result of the proceeding would
have been different had the information been disclosed. Id.
(citing Kyles v. Whitley, 514 U.S. 419, 434-36 (1995)). See
also Brady v. Maryland, 373 U.S. 83, 87 (1963).
1. The Government’s Pretrial Investigation of Chi and
Lian’s Veracity
First, Zheng contends the government failed to adequately
investigate Chi and Lian after learning they voluntarily
10528 UNITED STATES v. LIU
engaged in prostitution after leaving the Tea House. Chi and
Lian originally told FBI Agent Barry they were no longer
working as prostitutes. The government later learned Chi and
Lian had engaged in prostitution after leaving the Tea House,
and the government informed defense counsel of this fact.
Lian and Chi testified at trial that they had engaged in prosti-
tution outside the Tea House, and the defense used their initial
lie to undermine their credibility at trial.
On appeal, Zheng contends the government’s discovery of
Chi and Lian’s lie should have triggered additional investiga-
tion. Zheng contends that the prosecution’s act of proceeding
to trial without further investigation violated her due process
rights. The district court found the prosecution had exhaus-
tively investigated its case and concluded Zheng was not
denied due process.
[12] We agree with the district court. The government did
not engage in prosecutorial misconduct by proceeding to trial
without additional investigation, and Zheng’s due process
rights were not violated. The government did disclose the fact
that Chi and Lian engaged in prostitution after leaving the Tea
House, and Zheng was able to use this information to impeach
Chi and Lian at trial.
2. Withholding Impeachment Evidence Regarding the
Wangs
Second, Zheng contends the government withheld
impeachment evidence regarding two witnesses, Bin Wang
and Lan Juan Wang. The Wangs were business partners of
Zheng and Liu. They were involved in the Tea House and
probably could have been tried as accomplices.
Zheng claims the prosecution withheld information about
attempts to provide immigration benefits to the Wangs and
information about immunity or non-prosecution agreements
UNITED STATES v. LIU 10529
for the Wangs. Zheng argues this information could have been
used as impeachment evidence.
The government denied the accusation that the Wangs had
been granted immunity and likewise denied that information
had been withheld from the defense. The district court
rejected the argument that the prosecution had withheld
impeachment evidence from the defense.
The defense only offered the fact that Bin Wang admitted
involvement in the Tea House and had not been indicted to
support its contention that there was a grant of immunity.
Defense counsel’s speculation does not demonstrate that the
district judge erred.
The government admitted and eventually disclosed to the
defense that it did inquire about the Wangs’ eligibility for cer-
tain immigration benefits, learned they were ineligible for the
benefits, and did not inform the Wangs of the inquiry. As the
Wangs had no knowledge of the inquiry, the inquiry had no
value as impeachment evidence.
[13] We conclude Zheng is not entitled to a new trial based
on her allegations that the government withheld impeachment
evidence regarding the Wangs. The district court did not
clearly err by accepting as true the government’s assertion
that the Wangs were not granted immunity. Also, an inquiry
regarding immigration benefits made by the government
unbeknownst to the Wangs is not impeachment evidence.
3. Chi’s Testimony that she was Relocated to Guam for her
Safety
Third, Zheng contends the prosecution breached its duty to
correct false testimony by not correcting Chi’s testimony, and
Zheng further claims her convictions for sex trafficking were
secured by false impressions stemming from Chi’s testimony,
which constitutes a due process violation that requires a new
10530 UNITED STATES v. LIU
trial. Chi testified she understood that she was relocated to
Guam from the CNMI by the U.S. government for her safety.
Agent Barry testified that safety was a benefit of relocating
Chi to Guam, but it was not the primary reason for her reloca-
tion.
[14] The district court rejected as unfounded “any implica-
tion that the prosecution either knowingly presented false
material evidence or that it sat by and knowingly allowed
false evidence to be presented.” We conclude the district court
did not abuse its discretion in its determination that the prose-
cution did not engage in misconduct by allowing Chi to testify
regarding her subjective belief.
E. Jury Instructions
[15] Zheng contends a new trial is warranted because the
district court declined to give two jury instructions requested
by Zheng. Generally, a district court’s formulation of jury
instructions is reviewed for an abuse of discretion.5 See
United States v. Fernandez, 388 F.3d 1199, 1246 (9th Cir.
2004); United States v. Shipsey, 363 F.3d 962, 966 n.3 (9th
Cir. 2004). We consider whether the instructions as a whole
are misleading or inadequate to guide the jury’s deliberation.
United States v. Garcia-Rivera, 353 F.3d 788, 791-92 (9th
Cir. 2003).
Zheng requested a jury instruction that would have
informed the jury that neither the commerce clause nor the
territorial clause of the U.S. Constitution apply to the CNMI.
Zheng contends the district court’s failure to give this instruc-
tion prevented her from presenting a viable defense theory to
the jury.
5
There are exceptions to this general rule. For example, whether a jury
instruction misstates elements of an offense or whether instructions ade-
quately present a defendant’s theory of the case are questions that are
reviewed de novo. Shipsey, 363 F.3d at 966 n.3.
UNITED STATES v. LIU 10531
We conclude the district court properly denied Zheng’s
request on the grounds that the applicability of the commerce
clause and the applicability of the territorial clause to the
CNMI are legal issues beyond the purview of the jury.
Zheng also requested a jury instruction regarding the testi-
mony of co-conspirator, Bin Wang. Wang worked at the Tea
House and testified against Zheng and Liu. Zheng requested
an instruction cautioning the jury against believing Wang
because she suspected Wang had been given immunity by the
prosecution in exchange for his testimony. The government
denied Wang had been granted immunity.
The district court declined to give the immunity instruction
although it did instruct the jury to consider Wang’s testimony
with greater caution in light of the fact that he could be con-
sidered an accomplice. In United States v. Morgan, we con-
cluded “there is no significant distinction between a
cautionary instruction on the testimony of an accomplice and
a cautionary instruction on one granted immunity” because
both instructions direct the jury to receive the testimony with
caution and weigh it with care. 555 F.2d 238, 243 (9th Cir.
1977).
Because the district court did give a cautionary instruction
similar to the one requested by Zheng, we conclude the dis-
trict court did not abuse its discretion in denying Zheng’s
request to give an instruction regarding Wang’s alleged, but
unproven, grant of immunity.
F. Cumulative Error
Zheng contends the cumulative effect of evidentiary rul-
ings, prosecutorial misconduct, denied jury instructions, and
other trial errors warrants a new trial on all charges. As dis-
cussed above, all of Zheng’s allegations of error at trial are
without merit. Accordingly, we conclude cumulative error
does not warrant a new trial.
10532 UNITED STATES v. LIU
G. Sentencing and Restitution
Zheng challenges her sentence on two grounds. Zheng first
contends the advisory guideline calculation was erroneous
because the “loss calculation” of $36,000 for conspiracy and
travel fraud was “premised upon speculation and conjecture
and not clear and convincing evidence.” Loss calculation is a
factual determination of the trial court, and this court reviews
a factual determination at sentencing for clear error. United
States v. Tulaner, 512 F.3d 576, 578 (9th Cir. 2008).
The $36,000 loss calculation in Zheng’s case is based upon
the $6,000 “processing fee” that Zheng required prospective
employees to pay, multiplied by the six women from China
who came to Saipan to work for Zheng. Zheng contends, at
most, the court can only consider the loss incurred by Chi and
Lian because they were the only women who testified against
Zheng.
Zheng’s contention is not supported by law. “[T]he full
scope of the defendant’s fraudulent conduct is taken into
account when calculating the intended loss.” Id. In this case,
the government presented evidence that four other women
were employed by the Tea House as prostitutes and that they
were recruited in the same manner as Chi and Lian.
Zheng complains her pre-sentence report (PSR) “does not
even identify the other ‘victims’ upon whom it based its loss
calculation.” This statement is false. The PSR states the
names of other known victims, Wei Qui Xiang, Chao Hai
Hua, Wang Mei Li, and Mu Ying.
[16] We therefore conclude the district court made no clear
error by calculating a loss of $36,000 for Zheng’s conspiracy
and travel fraud convictions because the district court’s loss
calculation is supported by evidence that Zheng brought six
women from China to Saipan to work as prostitutes and
charged each of them $6,000.
UNITED STATES v. LIU 10533
Zheng’s second challenge to her sentence is that the district
court’s restitution order is improper. Zheng contends there is
not any basis for the restitution calculations of $25,220 for
Chi and $22,220 for Lian. The record belies Zheng’s argu-
ment.
Chi and Lian testified that they signed contracts to work in
Saipan for $7.00 per hour. They worked ten months with no
time off for evenings or weekends. The probation officer who
prepared the PSR estimated they would have earned about
$23,220 had they been paid regularly and earned overtime.
Additionally, Lian and Chi each paid Zheng $6,000 in “pro-
cessing fees” to go to the CNMI. Thus, Lian and Chi each
estimated a total loss of $29,220. The probation officer then
took into account money Lian and Chi received while work-
ing at the Tea House and subtracted that amount from the
$29,220 total.
A restitution order is reviewed for an abuse of discretion,
provided that it is within the bounds of the statutory frame-
work, and factual findings supporting an order of restitution
are reviewed for clear error. United States v. Gordon, 393
F.3d 1044, 1051 (9th Cir. 2004). The district court’s valuation
methodology is reviewed de novo. United States v. Doe, 374
F.3d 851, 854 (9th Cir. 2004).
[17] Here, the district court used a sound valuation method-
ology. Zheng’s contention that there is no basis in fact or
methodology for restitution for Chi and Lian is without merit.
Accordingly, we affirm the district court’s restitution order.
CONCLUSION
We affirm the district court on all challenged grounds and
conclude the federal government had authority to prosecute
Zheng; there was sufficient evidence to convict Zheng; the
district court’s evidentiary rulings against Zheng and Liu do
not constitute reversible error; there was no prosecutorial mis-
10534 UNITED STATES v. LIU
conduct; the district court properly instructed the jury; and the
district court properly sentenced Zheng.
AFFIRMED.