United States v. Chang Han Chen, A/K/A 34, United States of America v. Chong Chao Chen, A/K/A 21 , 131 F.3d 375 ( 1997 )

Affirmed by published opinion. Judge WILLIAMS wrote the opinion in which Chief Judge WILKINSON and Judges RUSSELL, WIDENER, HALL, MURNAGHAN, WILKINS, NIEMEYER, HAMILTON, LUTTIG, MICHAEL, and MOTZ joined. Judge WILLIAMS wrote a concurring opinion, in which Chief Judge WILKINSON and Judges RUSSELL, WILKINS, NIEMEYER, and LUTTIG joined.

OPINION

WILLIAMS, Circuit Judge:

We granted en banc review in this case to determine whether the convictions and sentences of Chong Chao Chen (“Chong”) and Chang Han Chen (“Chang”), members of an alien-smuggling ring, should stand.¹ Chong and Chang were convicted by a jury of using or carrying a firearm, or aiding and abetting the same, during a crime of violence, see 18 U.S.C.A. §§ 2, 924(c)(1) (West Supp.1997). On appeal, they contend that their § 924(c)(1) convictions must be vacated because the district court misinstrueted the jury in light of the Supreme Court’s decision in Bailey v. United States, — U.S. -, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), which, subsequent to their convictions, clarified the meaning of “use” under the statute. By an equally divided court we affirm their § 924(c)(1) convictions.

In addition to being convicted of violating § 924(c)(1), Chong and Chang were convicted of conspiracy to kidnap, see 18 U.S.C.A. § 1201(c) (West 1984); kidnapping, see 18 U.S.C.A. §§ 2 (West 1969), 1201(a) (West 1984 & Supp.1997); hostage taking, see 18 U.S.C.A. §§ 2, 1203 (West Supp.1997); conspiracy to interfere with commerce by threats or violence, see 18 U.S.C.A. § 1951(a) (West Supp.1996); conspiracy to transport and harbor aliens, see 18 U.S.C.A. § 371 (West 1966 & Supp.1997); alien harboring, see 8 U.S.C.A. § 1324(a)(l)(A)(iii) (West Supp.1997), 18 U.S.C.A. § 2; and collecting extension of credit by extortionate means, see 18 U.S.C.A. §§ 2, 894 (West 1976 & Supp. 1997). Chong also was convicted of bringing in aliens, see 8 U.S.C.A. § 1324(a)(l)(A)(i) (West Supp.1997), 18 U.S.C.A. § 2; and transporting aliens, see 8 U.S.C.A. § 1324(a)(l)(A)(ii) (West Supp.1997), 18 U.S.C.A. § 2. For these crimes, and for their § 924(c)(1) convictions, the district court sentenced Chong to 322 months imprisonment and Chang to 168 months imprisonment. Chong and Chang claim that they are entitled to new trials because of numerous procedural errors made by the district court, and to new sentences because the district court erroneously increased their offense levels under various provisions of the Sentencing Guidelines. We reject their contentions and affirm their convictions and sentences.

I.

In January 1994, approximately 105 Chinese nationals from the People’s Republic of China boarded a Taiwanese ship headed for the United States. The Chinese nationals had agreed to pay from $20,000 to $28,000 each to be smuggled into the United States by members of an alien-smuggling ring. The Chinese nationals were told by the smugglers that they could pay this “transportation” fee over time, and that after arriving in the .United States they immediately would be free to work and earn money. After spending nearly 70 days at sea, the Chinese nationals were loaded onto a fishing vessel and smuggled into the United States at Cape May, New Jersey. From there, they were taken to Prince George’s County, Maryland, where they were confined in two safehous-es — one in Upper Marlboro and one in Mit-chelville.

In March 1994, agents of the Federal Bureau of Investigation (FBI) and the Immigration and Naturalization Service (INS) learned from wiretaps that numerous Chinese nationals were being held hostage in the United States. On April 5,1994, pursuant to valid search warrants, FBI and INS agents raided three residences in Prince George’s County, Maryland, and one in Queens, New York. As a result of the searches, the FBI and INS learned that the smugglers were holding the Chinese nationals hostage and forcing them to raise ransom money from relatives in China.

The smugglers confined most of the hostages in a house in Mitchelville, Maryland, locking them in a squalid basement and holding them captive at gunpoint for 15 days. Armed guards routinely beat the hostages and otherwise intimidated them in an effort to get them to raise ransom money. To escape the brutality of the guards, the hostages raised money by telephoning their relatives in China and begging them to borrow money from Chinese loansharks. At trial, hostages testified that it was only when they arrived at the Mitchelville house that they realized they would be confined and tortured until their “transportation” fee had been paid in full. Forty-five of the hostages were able to raise the ransom money and were driven by the smugglers to a safehouse in Queens. From there, they disappeared into the community.

At the Mitchelville house, the remaining hostages were forced to sleep in rows on the floor in the basement, to urinate in a can, to remain silent at all times, and to stay in the basement unles's escorted by an armed guard. The floor was littered with mats, pieces of plywood, sheet rock, clothing,- and blankets, and the windows were covered with black plastic and boarded up. During the search, agents discovered handcuffs and a cache of weapohs that contained loaded sawed-off shotguns and semiautomatic pistols. The agents also discovered ledgers detailing both the names of the hostages and how much each owed or had paid to the smugglers.

Appellant Chong, a permanent resident alien of the United States, was one of the leaders of the smuggling ring. When the hostages came into the United States, he was in charge of the guards at the safehouse in Upper Marlboro, and he later managed the guards at the house in Mitchelville. Appellant Chang, who was from the same Chinese village as Chong, was himself one of the Chinese nationals smuggled in as part of the venture. He paid only a part of the ransom he owed and agreed to work as an armed guard at the Mitchelville house under Chong’s supervision to satisfy the remainder of his debt. The jury determined that Chong was guilty of all counts charged in the indictment and that Chang was guilty of all counts except bringing in and transporting illegal aliens.

II.

Chong and Chang argue that their convictions for using or carrying a firearm during a crime of violence, see 18 U.S.C.A. § 924(c)(1), must be vacated because the district court misinstructed the jury in light of Bailey v. United States, — U.S. -, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). By an equally divided court, we affirm Appellants’ convictions for-violating § 924(c)(1). Chief Judge Wilkinson, and Judges Russell, Wilkins, Niemeyer, Luttig, and Williams vote to affirm the convictions. Judges Widener, Hall, Murna-ghan, Hamilton, Michael, and Motz vote to reverse the convictions.

III.

Chong and Chang also argue that they are entitled to new trials because numerous procedural errors were made by the district court. First, they argue that they are entitled to new trials because the Government failed to comply with Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and the Jencks Act, 18 U.S.C.A. § 3500 (West 1985), by not providing a transcript copy of a witness’s prior testimony in a juvenile proceeding.² We disagree. The Government did not have custody of a transcript of the sealed juvenile proceedings. Under the Jencks Act, the Government is not- required to produce a copy of a witness’s prior statements not in its possession. See 18 U.S.C.A. § 3500(b) (requiring Government to produce any statement of the witness in the possession of the United States).

Second, Chong and Chang argue that the district court erred in permitting the testimony of eodefendants who sat through part of the trial prior to reaching plea agreements with the Government, and in failing to give a cautionary instruction to the jury regarding codefendant testimony. After carefully reviewing the record and the parties’ briefs, hearing argument on this issue, and applying the proper standard of review, we reject Appellants’ contentions. See United States v. Blevins, 960 F.2d 1252, 1260-61 n. 3 (4th Cir.1992) (rejecting challenge to admission of testifying codefendant’s guilty plea); United States v. Gambino, 926 F.2d 1355, 1364 (3rd Cir.1991) (stating that mistrial is not required when codefendant changes plea and testifies against remaining defendants); United States v. Herrera, 832 F.2d 833, 836-37 (4th Cir.1987) (stating that mistrial is not necessarily required when codefendant changes plea during trial).

Finally, Chong and Chang argue that the Government exercised its peremptory challenges in a discriminatory manner in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), by striking three black prospective jurors. Our careful review of the record, however, reveals that the Government’s reasons for striking the prospective jurors were race-neutral. See id. at 89, 106 S.Ct. at 1719 (noting that the demeanor of a potential juror .provides an acceptable basis for exercising a peremptory challenge); United States v. Contreras-Contreras, 83 F.3d 1103, 1105-06 (9th Cir.) (holding that prior jury service is a race-neutral explanation for a peremptory strike), cert. denied, — U.S. -, 117 S.Ct. 259, 136 L.Ed.2d 184 (1996); United States v. Darden, 70 F.3d 1507, 1531-32 (8th Cir.1995) (holding that lack of experience is a race-neutral explanation for a strike), cert. denied, - U.S. -, 116 S.Ct. 1449, 134 L.Ed.2d 569 (1996). Accordingly, we affirm Appellants’ remaining convictions.

TV.

Chong and Chang also challenge their sentences. Both argue that the district court erroneously increased their offense levels three points because some of the Chinese nationals held hostage were minors. See U.S. Sentencing Guidelines Manual § 2A4.1(b)(6) (1995). Chong contends that the district court erroneously increased his offense level two points because a hostage suffered serious bodily injury. See U.S.S.G. § 2A4.1(b)(2)(B). Chang argues that the district court erred in refusing to authorize a mental health examination prior to his.sentencing. Such an examination, he argues, would have established that he was eligible for a downward departure under the Sentencing Guidelines. See U.S.S.G. § 5K2.12 (coercion and duress). Chang, also complains that the district court erroneously increased his offense level six points for demanding ransom. See U.S.S.G. § 2A4.1(b)(l). After carefully reviewing the record and the parties’ briefs, hearing argument on these issues, and applying the proper standard of review, we conclude that Appellants’ challenges to their sentences are without merit. See generally United States v. Davis, 19 F.3d 166, 171 (5th Cir.1994) (affirming enhancement for “serious bodily injury”); United States v. Graham, 946 F.2d 19, 22 (4th Cir.1991) (holding that a district court’s refusal to depart from the Sentencing Guidelines is unreviewable); United States v. Gonzales, 996 F.2d 88, 93-94 (5th Cir.1993) (discussing enhancement for ransom demand); United States v. Rocha, 916 F.2d 219, 242-44 (5th Cir.1990) (same). We therefore affirm their sentences.

V.

" Appellants’ convictions for using a firearm during a crime of violence in violation of 18 U.S.C.A. § 924(c)(1) are affirmed by an equally divided court. We affirm their remaining convictions, and we^ affirm their sentences.

AFFIRMED.

1 . Argument before a three-judge panel was held on October 29, 1996. Before an opinion in the case was published, a member of the court sua sponte requested a poll on whether this case should be reheard en banc. A majority of judges in active service voted to rehear the case and ordered supplemental briefing. Argument before the full court was heard on April 8, 1997.,

2 . The witness, Bao Jin Chen, who testified for the Government against Chong and Chang, also testified in the previous trial of five juvenile members of the alien-smuggling ring. See United States v. Juvenile Male, 74 F.3d 526 (4th Cir.), cert. denied, - U.S. -, 116 S.Ct. 2558, 135 L.Ed.2d 1076 (1996).