United States v. Zhong

19-4110
United States v. Zhong
In the
United States Court of Appeals
FOR THE SECOND CIRCUIT
AUGUST TERM 2020
No. 19-4110
UNITED STATES OF AMERICA,
Appellee,
v.
DAN ZHONG,
Defendant-Appellant.*
On Appeal from the United States District Court
for the Eastern District of New York
ARGUED: MARCH 9, 2021
DECIDED: FEBRUARY 23, 2022
Before: SACK, WESLEY, and MENASHI, Circuit Judges.
Dan Zhong appeals his conviction, after a jury trial, on five
counts: (1) forced-labor conspiracy in violation of 18 U.S.C. § 1594(b);
(2) forced labor, in violation of 18 U.S.C. § 1589(a) and (b);
(3) concealing passports and immigration documents in connection
* The Clerk of Court is directed to amend the caption as set forth above.
with forced labor, in violation of 18 U.S.C. § 1592(a); (4) alien
smuggling conspiracy, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I);
and (5) visa fraud conspiracy, in violation of 18 U.S.C. § 371. These
convictions related to Zhong’s leading role in a Chinese construction
company named Rilin in the years 2010 to 2016. Zhong contends that
the district court committed evidentiary errors that played a role in
the jury’s decision to convict him. We agree in part. The district court
committed evidentiary errors that may well have affected the jury’s
decision to convict Zhong on the three forced-labor counts. Those
errors, however, were unconnected to Zhong’s other two counts.
Zhong also contends that the government presented insufficient
evidence to allow a jury to convict him on the alien smuggling count.
We disagree. Accordingly, we AFFIRM Zhong’s convictions on the
alien smuggling and visa fraud counts, VACATE Zhong’s
convictions on the three forced-labor counts, and REMAND for a new
trial on the forced-labor counts consistent with this opinion.
Additionally, while our vacatur of the forced-labor convictions
requires us to REMAND for resentencing for the visa fraud count, we
AFFIRM Zhong’s alien smuggling sentence.
ALEXANDER A. SOLOMON, Assistant United States
Attorney (David C. James, Jo Ann M. Navickas, Ian C.
Richardson, Craig R. Heeren, Assistant U.S. Attorneys,
on the brief), for Breon Peace, United States Attorney for
the Eastern District of New York, Brooklyn, New York,
for Appellee.
2
ALEXANDRA A.E. SHAPIRO (Daniel J. O’Neill, Julian S.
Brod, on the brief), Shapiro Arato Bach LLP, New York,
New York, for Defendant-Appellant.
MENASHI, Circuit Judge:
Dan Zhong appeals his conviction in the U.S. District Court for
the Eastern District of New York (Donnelly, J.), after a jury trial, on
five counts: (1) forced-labor conspiracy, in violation of 18 U.S.C.
§ 1594(b); (2) forced labor, in violation of 18 U.S.C. § 1589(a) and (b);
(3) concealing passports and immigration documents (“document
servitude”) in connection with forced labor, in violation of 18 U.S.C.
§ 1592(a); (4) alien smuggling conspiracy, in violation of 8 U.S.C.
§ 1324(a)(1)(A)(v)(I); and (5) visa fraud conspiracy, in violation of
18 U.S.C. § 371. These convictions related to Zhong’s role as a leading
figure in a Chinese construction company named Rilin in the years
2010 to 2016.
Zhong contends that the district court committed evidentiary
errors. We agree. First, before the case was transferred, the district
court (Irizarry, J.) held that it was permissible for the government to
introduce evidence of uncharged criminal conduct. That evidence,
however, was “significantly more sensational and disturbing than the
charged crimes.” United States v. Curley, 639 F.3d 50, 62 (2d Cir. 2011).
Second, the government called one witness—and one witness
only—to provide testimony of Zhong’s personal involvement in that
uncharged conduct. Yet, in violation of Rules 608(a) and 803(21), the
district court did not permit Zhong to elicit testimony from other
witnesses regarding that key witness’s reputation for truthfulness.
3
Third, the district court permitted the government’s forced-
labor expert witness not only to explain the workings of forced-labor
operations in general but also to provide a detailed commentary on
the specific facts of Zhong’s alleged forced-labor operation. With this
testimony, the expert came “dangerously close to usurping the jury’s
function” by effectively “providing an overall conclusion of criminal
conduct.” United States v. Dukagjini, 326 F.3d 45, 54 (2d Cir. 2003). The
expert also provided general testimony regarding the emotional
pleasure perpetrators of forced labor derive from their activities, the
disreputable history of forced labor worldwide, and the Chinese
government’s poor forced-labor record. This testimony was highly
prejudicial and, at best, minimally relevant to Zhong’s prosecution.
Because “we cannot conclude with fair assurance” that “the
cumulative effect of” the district court’s erroneous evidentiary rulings
“did not substantially influence the jury” in its decision to convict
Zhong of the three forced-labor charges, we vacate those convictions.
United States v. Al-Moayad, 545 F.3d 139, 159, 169 (2d Cir. 2008)
(internal quotation marks omitted). Because the government’s
properly admitted trial evidence could support Zhong’s forced-labor
convictions, we remand for a new trial on those counts.
The erroneously admitted evidence, however, did not bear on
the alien smuggling and visa fraud charges the government leveled
against Zhong. Zhong separately argues that the government failed
to present sufficient evidence to allow a jury to convict him on the
alien smuggling count. Specifically, Zhong contends that—although
the evidence shows that Rilin workers overstayed their visas and
worked on projects outside the scope of their visas—the government
failed to produce evidence that Zhong conspired to transport Rilin
workers “in furtherance of” their unlawful presence in the United
4
States. 8 U.S.C. § 1324(a)(1)(A)(ii). We disagree. Although the
evidence presented at trial showed that Rilin workers were not
completely isolated from the public, other evidence demonstrated
that Rilin (led by Zhong) engaged in concerted efforts to shield Rilin
workers from local Chinese-speaking populations and instructed
them not to participate in public events. A reasonable jury could have
concluded that the practice of transporting workers directly to and
from work sites was part of an effort to limit the opportunities for
others to speak to Rilin workers and to discover the workers’
immigration status—and thus to ensure that the workers’ illegal
presence continued. We therefore affirm Zhong’s conviction and
sentence on the alien smuggling count. We also affirm Zhong’s
conviction for visa fraud conspiracy, although our vacatur of the
forced-labor convictions requires us to remand for resentencing on
that count.
In sum, we affirm in part, vacate in part, and remand for further
proceedings consistent with this opinion.
BACKGROUND
A jury convicted Dan Zhong of five charges: (1) forced-labor
conspiracy, (2) forced labor, (3) document servitude in connection
with forced labor, (4) alien smuggling conspiracy, and (5) visa fraud
conspiracy. The government charged Zhong with these crimes based
on his work for Rilin from 2010 to 2016. To illustrate why we cannot
conclude with fair assurance that the district court’s erroneous
evidentiary rulings did not substantially influence the jury‘s decision
to convict Zhong of the three forced-labor charges, we first present
the facts as demonstrated by the trial evidence that Zhong appears to
concede was rightfully admitted. We then supplement that narrative
5
with facts from the evidence that Zhong argues the jury should never
have heard.
I
Dan Zhong served as an accredited diplomat of the People’s
Republic of China from 2001 to 2009. During that time, he held a
management-level position at a Chinese construction and real estate
company named Rilin, which was owned and operated by his uncle,
Wenlaing Wang. Rilin employed many of Zhong’s family members in
executive-level positions. In November 2009, Zhong ended his
diplomatic status and became the official head of Rilin’s operations in
the United States.
Rilin entered into agreements with the United States to bring
Chinese workers to the United States to work on two projects at
Chinese diplomatic facilities. The U.S. State Department approved
one of these projects in 2010 and the other in 2012, and it issued visas
to Rilin employees that allowed the employees to come to the United
States to work on these projects. Zhong coordinated the visa
applications. Once these workers were in the country, however, Rilin
transported them to work at nine other worksites, including a twelve-
story building on Fifth Avenue. 1 These construction projects lay
outside the scope of the workers’ visas. Zhong was aware of and
directed this activity.
1 At the Fifth Avenue project, Rilin employees worked alongside a U.S.-
based general contractor, a U.S.-based safety-services manager, and under
U.S.-hired managers. The workers were not guarded or prevented from
leaving the site.
6
Rilin structured its employment relationship with its workers
as follows. In order to work for Rilin, workers had to pay a substantial
security deposit. The workers then agreed to work for Rilin in the
United States for a salary that substantially surpassed what they
would make in China. Almost all of the salary, however, was to be
paid to them only once they completed their service in the United
States. Rilin retained the right to determine the workers’ completion
dates. While they worked in the United States, the workers’ families
could withdraw small sums, equal to about 10 percent of the workers’
salaries, every two months. Zhong held the workers’ passports and
visas while they were in the United States. When the workers
returned to China, Rilin refunded the security deposit with interest.
When in America, workers were subject to prohibitions against
“[w]ords and deeds that are detrimental to national prestige or
[Rilin’s] reputation,” “[c]ommunicating with overseas relations (or
organizations) without permission,” “stirring up trouble,” “slacking
at work,” “[w]orking for a third party without permission,”
“[l]eaving ... worksites and living quarters without permission,”
“separat[ing] from [Rilin’s] management and runaway to the United
States,” and “[r]unning away.” App’x 990-92. If a worker violated
these prohibitions, the contract provided that the worker would be
subject to “administrative sanctions and monetary penalties,” which
included forfeiture of the security deposit and unpaid wages, and
“repatriat[ion] to [China].” App’x 991. In addition, the contract
stipulated that the workers would reimburse Rilin for “monetary
losses” that Rilin incurred as a result of the workers’ violation of these
prohibitions—monetary losses that included the cost associated with,
among other things, “dispatching people for search.” App’x 991.
7
Rilin housed its workers in centralized locations and kept a list
of employees who absconded. In one instance in 2010, Zhong asked a
Rilin employee if he knew the whereabouts of Kai Kang, an employee
who had run away. Kang’s wife testified that, after Kang absconded,
Rilin obtained a judgment against her in China, and Rilin told her that
she owed the company one million renminbi (RMB). 2 After she said
she did not have that much money, Kang’s wife testified, Rilin
personnel “said they would look for my daughter.” App’x 640. 3
A government cooperating witness, Ken Wang, testified that he
once heard Zhong describe what happened to a worker who escaped,
saying something to the effect of “we found him, and we punish him.
We want to set up a good example to the rest of workers. And if they
dare to escape, or try to follow that guy’s steps, we will beat him up
badly.” App’x 435. It is not clear when this conversation took place.
In 2009, another Rilin worker, Guoliang Yan, told his co-workers that
he once tried to “bring ... back” a former Rilin employee. App’x 213.
At all times, Zhong and Rilin attempted to ensure that the
workers would not reside near local Chinese communities. Rules
posted in the workers’ residences prohibited them from “[c]ontacting
local Chinese, overseas Chinese and overseas Chinese students” as
well as from “[p]articipating in any type of parades and public
gatherings, as well as accepting any type of social surveys and free
tickets.” Gov’t App’x 218. When workers left their residences, they
were to “[g]o out with at least two other people and report to the
2 Roughly $157,000 in current U.S. dollars.
3Kang’s wife was unaware of any efforts by Rilin to collect the money,
App’x 640, and nothing happened to her daughter, App’x 637-38.
8
dormitory management personnel about time and destinations.”
Gov’t App’x 218-19.
In 2011, local law enforcement in New Jersey was called to two
houses in which Rilin lodged its workers. One was a single-family
residence that had been configured to accommodate twenty-eight
workers and twelve workstations with computers in the basement.
The doors to both houses were equipped with double-cylinder locks,
which meant the doors could be locked from the outside. The officers
issued violations relating to overcrowding, unsafe wiring, and other
safety infractions.
After these incidents, Rilin moved the workers to more
spacious residences that did not feature the same double-cylinder
locks. When local authorities inspected the Rilin living premises in
2016, the authorities found that the premises were clean and not
overcrowded. They also found bicycles and fishing equipment.
Rilin workers visited landmarks in New York and various
other locations in the United States. They also, on at least one
occasion, attended a holiday party with neighbors and helped a
neighbor shovel snow. The evidence also showed that the workers
had access to mobile phones.
Zhong offered stipulated testimony from three former Rilin
employees, 4 two of whom served as personal drivers to either Zhong
or Wenliang Wang, Zhong’s uncle and Rilin’s owner. These former
employees testified that they had positive experiences and earned
4No Rilin employees from the indictment period (2010-16) testified because
Rilin sent all its workers back to China in 2015 and 2016, after the
government began issuing Rilin grand jury subpoenas.
9
multiples of what they would have earned in China. They also said
that their movements were not restricted and that they had access to
mobile phones and the internet.
II
Zhong challenges the introduction of two categories of
evidence that the district court admitted over his objection:
(1) testimony about the experiences of three Rilin workers in 2001 and
2002, almost a decade before the indictment period, and (2) testimony
of the government’s forced-labor expert, Luis C. DeBaca.
A
The government called three witnesses—Kevin Liu, Zhaoyou
Li, and Yuansheng Chu—to testify about their attempts to escape
from Rilin in 2001 and 2002. Liu testified that after the second of two
escapes, he was apprehended by a group of people, including Li,
whom Rilin sent to recover him. Liu testified that these Rilin
employees “mobbed” him and injured his face; “there was blood
everywhere.” App’x 271-73. He was then confined in a room at the
Chinese consulate, where other Rilin workers monitored him. While
imprisoned, Liu received a phone call from Wenliang Wang, who
warned Liu not to flee again, lest he suffer a broken leg or risk harm
to his family in China.
Li testified that Rilin directed him to help apprehend Liu and
to guard Liu’s room. Li also confirmed the substance of Wenliang
Wang’s threatening call to Liu. Li further testified that a Rilin crew
tried to apprehend him when Li subsequently defected and that the
crew lacerated his back with a construction tool during this attempt.
The government showed pictures of the injury. Finally, Chu testified
10
that, after he defected, Zhong’s brother approached him to demand
that he return to Rilin. The government also elicited testimony that
Rilin evicted Liu’s and Li’s families from their homes in China.
When Zhong objected before the trial to the introduction of this
evidence, the government said the witnesses would establish that
Zhong was personally involved in the conduct. At trial, however,
none of these witnesses testified to Zhong’s personal involvement.
The government repeatedly invoked these witnesses’ testimony in its
opening and closing statements and asserted that Zhong was
responsible for sending “rendition squads” to abduct these workers.
App’x 755. In fact, the government began its opening statement with
its own dramatic recounting of Liu’s abduction. Additionally,
although the government did not prosecute Zhong for these alleged
incidents, 5 the district court instructed the jury that it could consider
this testimony as direct evidence of Zhong’s participation in a forced-
labor conspiracy from 2010 to 2016.
5 Zhong possessed diplomatic immunity at the time he allegedly committed
the pre-indictment acts. The district court concluded that Zhong “is entitled
to residual immunity from prosecution” but that “the government may
admit evidence of [his] acts while he was an accredited diplomat as direct
evidence, and to prove [his] intent, planning, and knowledge of the alleged
forced labor conspiracy” during the later period. App’x 99. Cf. Swarna v. Al-
Awadi, 622 F.3d 123, 135 (2d Cir. 2010) (noting that residual immunity
protects “only such acts as are directly imputable to the state or inextricably
tied to a diplomat’s professional activities”). On appeal, neither party
challenges the district court’s conclusion that Zhong is entitled to residual
immunity.
11
B
The government called a former prosecutor and diplomat, Luis
C. DeBaca, as an expert witness to describe “the complex nature of
forced labor and human trafficking operations” and “particular
aspects of human trafficking and forced labor that are prevalent in, or
unique to, the People’s Republic of China.” App’x 113.1. DeBaca was
a fellow at Yale University who studied “Modern Slavery.” App’x
113.1. Previously, he served as ambassador-at-large for the U.S. State
Department Office to Monitor and Combat Trafficking in Persons,
which coordinates U.S. government activities involving international
forced-labor practices.
DeBaca offered testimony covering topics including forced
labor, document servitude, alien smuggling, and debt bondage; he
provided definitions for those terms in his testimony. He testified
about why organizations engage in forced labor, the emotional
pleasure that perpetrators of forced-labor operations derive from
their activities, the typical methods used to perpetrate forced labor,
and reasons why workers may remain in servitude. He discussed the
Rilin employment contracts already in evidence and identified
aspects he labeled “red flags” or “troubling.” App’x 375-76, 384. To
provide background for his expert views, he discussed the history of
slavery and sharecropping in the United States. He also told the jury
that forced-labor schemes involving migrant Chinese labor and
Chinese businesses operating abroad are common, especially in the
construction industry. He testified about the prevalence of forced
labor in China, including “reeducation through labor camps” for
Uighur Muslims and forced labor for the mentally and physically
disabled, whom, DeBaca reported, Chinese businessmen “scoop[] up
12
in railway stations ... and take[] out to brick kilns ... or to other very
dangerous and dirty jobs.” App’x 363, 366-67.
The government referenced DeBaca’s testimony numerous
times in its closing statement, asking the jurors to rely on that
testimony in determining whether Zhong’s actions constituted forced
labor.
III
In addition to objecting to the admission of the two categories
of evidence, Zhong sought to impeach the credibility of the
government’s cooperating witness, Ken Wang. No other witness
provided testimony that Zhong engaged in conduct that was similar
to the pre-indictment conduct described by Liu, Li, and Chu. Yet the
district court prevented Zhong from introducing evidence regarding
Wang’s reputation for truthfulness as well as evidence from a
separate proceeding to which Wang was a party in which the court
had ruled against Wang and questioned his testimony.
Zhong also asked the district court to instruct the jury that one
does not violate the forced-labor statute when he warns an employee
of “adverse but legitimate consequences” of violating an employment
agreement. The court rejected this request.
The jury returned a verdict of guilty on all five counts. The
district court sentenced Zhong to 190 months in prison on the forced-
labor and forced-labor-conspiracy counts. In doing so, it rejected
Zhong’s argument that his sentence should be reduced due to the
conditions of his confinement before and during trial. The district
court also sentenced Zhong to a concurrent 108-month sentence for
his alien smuggling conspiracy conviction. Finally, the district court
13
imposed concurrent sixty-month sentences for the counts of
document servitude in connection with forced labor and of visa fraud
conspiracy.
Zhong timely appealed, challenging his conviction and his
sentence.
DISCUSSION
Zhong disputes his conviction and his sentence on several
grounds. First, Zhong claims that the district court erred by refusing
to give an “adverse but legitimate consequences” jury instruction
with respect to the forced-labor charges. Second, Zhong argues that
the district court committed three sets of evidentiary errors that led
the jury to convict him: allowing testimony of the 2001 and 2002 pre-
indictment conduct, preventing Zhong’s attempts to impeach Ken
Wang, and permitting DeBaca’s testimony. Third, Zhong insists that
the government presented insufficient evidence to allow a reasonable
jury to convict him either of the forced-labor or of the alien smuggling
counts. Fourth, Zhong claims that his sentence is unreasonable.
We find merit in Zhong’s second argument—but not in the
remaining arguments—and therefore vacate Zhong’s conviction on
the three forced-labor counts and remand for a new trial on those
charges. We affirm Zhong’s alien smuggling and visa fraud
convictions. While our vacatur of the forced-labor convictions
requires us to remand for resentencing on the visa fraud count,
Zhong’s alien smuggling sentence remains intact.
I
Zhong argues that the district court erred by refusing to
instruct the jury that it could not convict him of forced labor if it found
14
that Rilin workers felt compelled to stay working for Rilin due merely
to Rilin’s threatening “adverse but legitimate consequences” incident
to an employment relationship.
We review challenges to jury instructions de novo. United States
v. Quattrone, 441 F.3d 153, 177 (2d Cir. 2006). “A jury instruction is
erroneous if it misleads the jury as to the correct legal standard or
does not adequately inform the jury on the law.” United States v.
Dinome, 86 F.3d 277, 282 (2d Cir. 1996). We consider a challenged jury
instruction “not in isolation but as a whole to see if the entire charge
delivered a correct interpretation of the law.” United States v. Ng Lap
Seng, 934 F.3d 110, 129 (2d Cir. 2019) (internal quotation marks
omitted). A harmless error standard of review applies if the defendant
objected to the instruction, which Zhong did. Id.The forced-labor statute penalizes any person who “knowingly
provides or obtains the labor or services of a person” through, among
other things, “serious harm or threats of serious harm to that person
or another person.” 18 U.S.C. § 1589(a)(2). The statute defines “serious
harm” to encompass “any harm ... that is sufficiently serious, under
all the surrounding circumstances, to compel a reasonable person of
the same background and in the same circumstances to perform or to
continue performing labor or services in order to avoid incurring that
harm.” 18 U.S.C. § 1589(c)(2). Zhong argues, consistent with the
decisions of two other circuits, that this definition excludes “adverse
but legitimate consequences” incident to an employment
relationship. Muchira v. Al-Rawaf, 850 F.3d 605, 624 (4th Cir. 2017)
(quoting Headley v. Church of Scientology, 687 F.3d 1173, 1180 (9th Cir.
2012)). In other words, Zhong argues that “legitimate consequences,”
id., cannot constitute “serious harm” under the statute, 18 U.S.C.
§ 1589(c)(2).
15
Whether an employer’s threatened consequences are
“legitimate” and therefore do not qualify as “serious harm” will
depend on the “surrounding circumstances” in each case. 18 U.S.C.
§ 1589(c)(2). A court, however, need not presume that a jury will
mistake legitimate consequences for harm. The decision whether to
give an “adverse but legitimate consequences” instruction therefore
lies within the district court’s discretion.
While there may be some forced-labor prosecutions in which a
court would abuse its discretion by failing to give such an
instruction—such as one in which the government presented
evidence of employer conduct that had a coercive effect but was
undeniably legitimate as a matter of law—Zhong has failed to
demonstrate that this case required such an instruction. Zhong argues
that without the instruction the jury could have convicted him of
forced labor based solely on the threatened consequences provided in
Rilin workers’ “voluntarily entered into employment agreement[s].”
App’x 113.58; Appellant’s Br. 57. Perhaps. But Zhong offers no
support for his implicit assumption that the consequences of a
“voluntarily entered into employment agreement” are always
legitimate and can never amount to serious harm. That assumption is
inconsistent with case law recognizing that a victim’s initial
willingness to perform certain labor does not preclude the possibility
that the victim’s continued labor may become forced. See United States
v. Marcus, 628 F.3d 36, 45 (2d Cir. 2010); see also United States v. Mussry,
726 F.2d 1448, 1454 n.6 (9th Cir. 1984) (“Even though a person may
come to a job voluntarily, subsequent coerced service constitutes
involuntary servitude.”) (citing United States v. Harris, 701 F.2d 1095,
1100 (4th Cir. 1983)), abrogated on other grounds, United States v.
16
Kozminski, 487 U.S. 931 (1988). 6 The district court therefore did not
abuse its discretion in declining to give an “adverse but legitimate
consequences” jury instruction.
II
We turn next to Zhong’s claim that the district court made
erroneous and prejudicial evidentiary decisions. We review
evidentiary rulings for abuse of discretion. United States v. Scully, 877
F.3d 464, 473 (2d Cir. 2017). “A district court has abused its discretion
if it has (1) based its ruling on an erroneous view of the law, (2) made
a clearly erroneous assessment of the evidence, or (3) rendered a
decision that cannot be located within the range of permissible
decisions.” Warren v. Pataki, 823 F.3d 125, 137 (2d Cir. 2016).
A
Zhong argues that the district court should not have permitted
the introduction of evidence regarding violence and threats visited
upon Liu, Li, and Chu in 2001 and 2002, eight years before the
indictment period began. We agree.
Our cases applying Rules 403 and 404(b) of the Federal Rules of
Evidence guide our decision. Rule 404(b) provides that “[e]vidence of
any other crime, wrong, or act is not admissible to prove a person’s
character in order to show that on a particular occasion the person
6 Cf. Clyatt v. United States, 197 U.S. 207, 215 (1905) (“Peonage is sometimes
classified as voluntary or involuntary; but this implies simply a difference
in the mode of origin, but none in the character of the servitude. The one
exists where the debtor voluntarily contracts to enter the service of his
creditor. The other is forced upon the debtor by some provision of law. But
peonage, however created, is compulsory service,—involuntary
servitude.”).
17
acted in accordance with the character.” Fed. R. Evid. 404(b)(1). That
rule does not require that the government limit its case strictly to
evidence of the specific criminal conduct by which the defendant
commits the charged crime. Rather, “[e]vidence of uncharged
criminal conduct is not evidence of ‘other crimes, wrongs, or acts’
under Rule 404(b) if that conduct ‘arose out of the same transaction or
series of transactions as the charged offense, if it is inextricably
intertwined with the evidence regarding the charged offense, or if it
is necessary to complete the story of the crime on trial.’” United States
v. Robinson, 702 F.3d 22, 37 (2d Cir. 2012) (quoting United States v.
Carboni, 204 F.3d 39, 44 (2d Cir. 2000)). Moreover, evidence of other
acts “may be admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence
of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). Indeed, “[t]his
Circuit has adopted an ‘inclusionary’ approach to other act evidence
under Rule 404(b), which allows such evidence to be admitted for any
purpose other than to demonstrate criminal propensity.” United States
v. Scott, 677 F.3d 72, 79 (2d Cir. 2012).
Still, a district court may not freely admit evidence of conduct
simply because it relates to the charged crimes or the government
offers it for a purpose other than to demonstrate the defendant’s
propensity to commit the alleged conduct. Our “inclusionary rule is
not a carte blanche to admit prejudicial extrinsic act evidence [that] is
offered to prove propensity,” id., or otherwise to allow “propensity
evidence in sheep’s clothing,” United States v. McCallum, 584 F.3d 471,
477 (2d Cir. 2009).
Additionally, the rule permits the government to offer “‘other
act’ evidence ... to show knowledge or intent” only when “such
evidence [is] ‘sufficiently similar to the conduct at issue’ to permit the
18
jury to draw a reasonable inference of knowledge or intent from the
other act.” United States v. Cadet, 664 F.3d 27, 32 (2d Cir. 2011) (quoting
United States v. Peterson, 808 F.2d 969, 974 (2d Cir. 1987)). Even when
our precedents would otherwise allow the district court to admit
evidence of uncharged criminal conduct “to complete the story of the
crime on trial” or to demonstrate some fact in issue “other than ... a
defendant’s criminal propensity,” a district court may admit that
evidence only if it “satisfies the probative-prejudice balancing test of
Rule 403 of the Federal Rules of Evidence.” United States v. Greer, 631
F.3d 608, 614 (2d Cir. 2011); see also United States v. Hsu, 669 F.3d 112,
118-19 (2d Cir. 2012). Rule 403 provides that a “court may exclude
relevant evidence if its probative value is substantially outweighed
by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time,
or needlessly presenting cumulative evidence.” Fed. R. Evid. 403.
Applying that rule, we have held that a district court abuses its
discretion when it admits evidence of uncharged conduct that “was
significantly more sensational and disturbing than the charged
crimes.” Curley, 639 F.3d at 62. 7
7In Curley, the defendant was charged with stalking and harassing his wife.
639 F.3d at 53. The district court allowed the government to present
evidence showing that on one prior occasion, “police recovered three black
powder rifles (one of which was loaded), ammunition, a bulletproof vest,
and a ski mask from [a rental] car” Curley was driving. Id. at 55. We held
that “[w]hatever probative value the evidence may have had, its highly
prejudicial effect rendered it inadmissible” because it “was certain to arouse
the jury’s emotions against Curley because it was significantly more
sensational and disturbing than the charged crimes.” Id. at 62. We added
that “[t]he introduction of guns into the trial was especially troubling
19
In this case, the government charged Zhong for his Rilin-
related activities between 2010 and 2016. The government’s trial
evidence showed that during the 2010-16 period, Rilin and Zhong
used harsh employment contracts, held workers’ passports and visas,
housed workers in crowded residences that could be locked from the
outside, and, in one instance, obtained a judgment against the family
of an escaped employee and told the family that they owed 1 million
RMB.
Nevertheless, the government sought to bolster its case by
presenting evidence of coercive measures that were more extreme—
and that took place almost a decade before the indictment period—
including kidnappings, weapon use, imprisonment, threats of
physical injury, and evictions of workers’ families. The government
argues that this evidence of uncharged criminal conduct was
admissible both to “complete the story” of Zhong’s charged crimes,
Robinson, 702 F.3d at 37, and to prove Zhong’s “intent,” “knowledge,”
and “plan[ning]” of the charged crimes of forced labor during the
indictment period, Fed. R. Evid. 404(b)(2). The pre-indictment
evidence of violence and threats was not admissible under either of
these theories.
If “necessary,” the government may introduce evidence of
uncharged criminal conduct “to complete the story of the crime on
trial,” not to tell a new one. Robinson, 702 F.3d at 37. Here, the
government’s evidence from the indictment period—drawing all
inferences in its favor—tells a story of a forced-labor scheme
accomplished through lopsided employment contracts, travel
because it tended to show Curley was more violent and disturbed than he
appeared from the other evidence.” Id.
20
restraints, restrictive living conditions, threats of financial ruin, and
other vague threats. The pre-indictment evidence from 2001 and 2002,
on the other hand, conveys a grimmer narrative—a forced-labor
scheme perpetrated through force, violence, evictions of workers’
families from their homes, and threats of physical injury. 8 The
government might have better connected the narratives if it
demonstrated—as it promised the district court it would—that Zhong
was personally involved with these specific acts, but the government
did not do so. The testimony the government offered established only
that some of Zhong’s family members participated in these events.
While the government claims that its evidence demonstrated that
Zhong was “a principal” in Rilin’s U.S. operations at the time, the
evidence it marshals does not connect Zhong personally to the actions
described by the government’s witnesses.
Our precedents demand that “[w]hen ‘other act’ evidence is
offered to show knowledge or intent”—or, by extension, planning—
that “evidence must be ‘sufficiently similar to the conduct at issue’ to
permit the jury to draw a reasonable inference of knowledge or intent
from the other act.” Cadet, 664 F.3d at 32. Yet the conduct that the
government proved occurred during the indictment period—the use
of allegedly coercive contracts, holding Rilin workers’ passports and
visas, housing workers in overcrowded conditions with doors that
8 The government attempts to identify similar conduct during the
indictment period by arguing that Zhong and Rilin attempted to “abduct”
a Rilin worker, Kai Kang, after he left in 2010. Gov’t Br. 17-18, 36-39. The
evidence at trial, however, did not establish an abduction attempt. The only
evidence the government cites is testimony that (1) Zhong asked a Rilin
employee if he knew Kang had escaped and where he was and (2) a witness
heard that other Rilin employees were looking for Kang.
21
lock from the outside, and threatening one family with a financial
penalty—is not sufficiently similar to the violent and threatening
actions that occurred in 2001 and 2002 such that it would be
reasonable for a jury to infer that Zhong knew, intended, or planned
to maintain the same course of conduct suggested by the pre-
indictment actions.
Even if the evidence from 2001 and 2002 completed the story of
the crimes charged against Zhong, we would nevertheless conclude
that the district court abused its discretion in admitting that evidence.
We have approved the admission of evidence of uncharged crimes
when the uncharged crimes “did not involve conduct more
inflammatory than the charged crime.” United States v. Paulino, 445
F.3d 211, 223 (2d Cir. 2006) (quoting United States v. Livoti, 196 F.3d
322, 326 (2d Cir. 1999)); see also United States v. Reichberg, 5 F.4th 233,
242 (2d Cir. 2021) (holding that the district court did not abuse its
discretion to admit evidence of uncharged conduct because, inter alia,
that evidence “was no more inflammatory than the facts of the
charged scheme”); United States v. Roldan-Zapata, 916 F.2d 795, 804 (2d
Cir. 1990) (holding that prior act evidence was not unfairly prejudicial
because it “did not involve conduct any more sensational or
disturbing than the crimes … charged”). Here, by contrast, the
evidence of uncharged crimes described conduct that was
“significantly more sensational and disturbing than the charged
crimes,” Curley, 639 F.3d at 62, and could “lure the factfinder into
declaring guilt on a ground different from proof specific to the offense
charged,” Paulino, 445 F.3d at 223 (quoting Old Chief v. United States,
519 U.S. 172, 180 (1997)). Under these circumstances, Rule 403
required the district court to exclude the evidence from before the
22
indictment period and the district court abused its discretion in failing
to do so. 9
B
Next, Zhong contends that the district court erred by
preventing his efforts to impeach Ken Wang by offering testimony
regarding Wang’s reputation for truthfulness. We agree. Rule 608
allows a party to “attack[]” a “witness’s credibility” with “testimony
about the witness’s reputation for having a character for truthfulness
or untruthfulness, or by testimony in the form of an opinion about
that character.” Fed. R. Evid. 608(a). Yet when Zhong attempted to
ask two witnesses about Wang’s reputation for truthfulness, the
district court sustained the government’s objections and did not allow
Zhong to elicit such testimony.
These rulings were erroneous. One portion of the trial
transcript suggests that the district court disallowed this evidence
because it was hearsay. See App’x 225. But reputation evidence “must
be based on hearsay,” United States v. Lynch, 366 F.2d 829, 832 (3d Cir.
1966), and Rule 803 clarifies that testimony regarding “[a] reputation
9 Additionally, the pre-indictment evidence related to actions for which
Zhong may have possessed diplomatic immunity. See supra note 5. On
appeal, neither party challenges the district court’s conclusion that Zhong
is entitled to residual immunity. While there is no per se bar on the use of
immune behavior in completing the story—or proving a defendant’s
knowledge, intent, or planning—of charged non-immune conduct, the fact
that the district court held Zhong possessed immunity with respect to the
pre-indictment behavior reinforces the conclusion that it was inappropriate
to admit evidence of that behavior to establish the criminality of his later
conduct. The jury might have convicted Zhong based on actions for which
he was immune.
23
among a person’s associates or in the community concerning the
person’s character” is “not excluded by the rule against hearsay,” Fed.
R. Evid. 803(21); see also Michelson v. United States, 335 U.S. 469, 477
(1948) (“When the defendant elects to initiate a character inquiry ...
[n]ot only is he permitted to call witnesses to testify from hearsay, but
indeed such a witness is not allowed to base his testimony on
anything but hearsay.”). On appeal, the government does not argue
otherwise.
The government attempts to defend these decisions on two
alternative grounds, but neither is persuasive. First, the government
argues that Zhong’s witnesses lacked personal knowledge of Wang’s
reputation for truthfulness. See Fed. R. Evid. 602. One witness whom
Zhong asked about Wang’s reputation, however, worked directly
under Wang’s direction at Rilin, and Zhong’s other witness worked
at Rilin at the same time as Wang for multiple years. See United States
v. Mandel, 591 F.2d 1347, 1370 (4th Cir. 1979) (explaining that the
workplace is “a proper locality in which to prove [a witness’s]
reputation or character for truthfulness or untruthfulness”). Second,
the government argues that the district court properly excluded this
reputation testimony because it was cumulative of other evidence
Zhong presented to impeach Wang. Yet the government does not
identify any other evidence that Zhong presented to show that Wang
had a reputation for untruthfulness.
Zhong also sought to impeach Wang by cross-examining him
about an alleged adverse credibility determination that a New Jersey
court made against Wang during a hearing on Wang’s application for
a firearms permit. See Fed. R. Evid. 608(b) (providing that “the court
may, on cross-examination,” allow “specific instances of a witness’s
conduct” to be “inquired into if they are probative of the character for
24
truthfulness or untruthfulness” of the witness). The district court did
not allow that line of inquiry and, contrary to Zhong’s arguments on
appeal, the district court did not abuse its discretion in doing so. The
New Jersey court’s finding concerned Wang’s temperament rather
than his character for truthfulness, and it occurred during a firearms
hearing—not in a proceeding relevant to the content of Wang’s
testimony in Zhong’s case. Even if the New Jersey court’s decision to
some extent called into question whether Wang accurately portrayed
his own temperament, under these circumstances, the district court
did not abuse its discretion in concluding that the decision was not
sufficiently probative of Wang’s character for truthfulness to justify
permitting Zhong to cross-examine Wang about it. See United States v.
White, 692 F.3d 235, 249 (2d Cir. 2012) (identifying “seven non-
exhaustive factors for courts to consider in determining the probity
and relevance of a prior incident in which a court has criticized a
witness’s testimony as unworthy of belief”).
C
Zhong additionally challenges Luis DeBaca’s expert testimony.
Under Rule 702, an expert may testify if, inter alia, his or her
“scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue.”
Fed. R. Evid. 702(a). “For an expert’s testimony to be admissible under
this Rule, however, it must be directed to matters within the
witness’[s] scientific, technical, or specialized knowledge and not to
lay matters which a jury is capable of understanding and deciding
without the expert’s help.” Andrews v. Metro N. Commuter R. Co., 882
F.2d 705, 708 (2d Cir. 1989); see also Fed. R. Evid. 702 advisory
committee’s note to 1972 proposed rules (noting that the use of expert
testimony is improper when “the untrained layman would be
25
qualified to determine intelligently and to the best possible degree the
particular issue without enlightenment from those having a
specialized understanding of the subject involved in the dispute”).
Therefore, “[a] district court may commit manifest error by admitting
expert testimony where ... the subject matter of the expert’s testimony
is not beyond the ken of the average juror.” United States v. Amuso, 21
F.3d 1251, 1263 (2d Cir. 1994).
Zhong argues that the issue before the jury for the forced-labor
charges—whether Zhong “obtain[ed] the labor or services” of Rilin
workers through actual or threatened force, physical restraint, or
other serious harm sufficient “to compel a reasonable person of the
same background and in the same circumstances to perform or to
continue performing labor or services in order to avoid incurring that
harm,” 18 U.S.C. § 1589(a), (c)(2)—was simple. Normally, Zhong says,
such activity would be proved with testimony from the alleged
victims. Those victims would testify about Rilin’s actions and the
effect those actions had on them—and that testimony would allow the
jury to conclude whether those actions rendered Rilin liable under the
forced-labor statute. But in this case, Zhong argues, the government
improperly used DeBaca’s “expert” testimony about forced-labor
practices to compensate for its lack of victim witnesses from the
indictment period. 10
Insofar as Zhong argues that forced labor is categorically an
improper subject for expert testimony, we disagree. As DeBaca’s
testimony illustrates, forced-labor enterprises, especially those
involving foreign workers, may involve complex activities that jurors
10 See supra note 4.
26
would not readily understand as aspects of a forced-labor scheme. For
example, perpetrators of forced labor may encumber workers by
involving them in crimes, making the workers less likely to seek help
and more likely to fear the consequences of leaving their company’s
employ. Additionally, certain victims may be treated preferentially in
a manner that may appear inconsistent with forced labor, and forced-
labor organizations may also grant workers certain communication or
vacation privileges that might appear inconsistent with forced-labor
practices. In such cases, expert testimony may assist jurors in putting
these practices in perspective when they otherwise would have
difficulty doing so. 11
While the district court therefore did not err in allowing the
government to call DeBaca to testify, it still had a duty to ensure that
DeBaca’s testimony did not exceed its proper scope. Expert witnesses
may not “usurp[] the jury’s function” by “providing an overall
conclusion of criminal conduct.” Dukagjini, 326 F.3d at 54. It is
important to distinguish “the legitimate use of an … expert ... to
explicate an organization’s ... structure” from “the illegitimate and
11 Decisions from other circuit courts further support the conclusion that
forced-labor prosecutions may involve issues that lie “beyond the ken of
the average juror.” Amuso, 21 F.3d at 1263; see United States v. Farrell, 563
F.3d 364, 377 (8th Cir. 2009) (holding, in a case in which the defendant was
charged with peonage, that an expert’s testimony was “relevant insofar as
it provided this broader context for the jury to understand the workers’
actions, to understand the conditions in which they may have labored, and
to assess the truthfulness of their allegations”); see also United States v.
Brinson, 772 F.3d 1314, 1319 (10th Cir. 2014) (holding, in a case in which the
defendant was charged with trafficking in child prostitution, that an
expert’s testimony “could have helped the jury” better understand, inter
alia, “the relationship between pimps and their prostitutes, ... how pimps
recruit prostitutes, and how pimps control prostitutes”).
27
impermissible substitution of expert opinion for factual evidence.”
United States v. Mejia, 545 F.3d 179, 190 (2d Cir. 2008). Likewise, the
government may not use expert testimony to “provide [itself] with an
additional summation by having the expert interpret the evidence.”
Dukagjini, 326 F.3d at 54 (alterations omitted). In light of these
limitations on expert testimony, district courts must proceed with
caution. 12
In this case, DeBaca not only explained the inner workings of
forced-labor operations in general; he also provided a detailed
analysis of the employment contract Rilin used, App’x 372-88,
commenting that one clause was “troubling” and another raised
“major red flags,” App’x 375-76, 384. Having already heard DeBaca’s
expert explanations regarding forced-labor schemes in general, the
jury did not need his analysis of the Rilin contract in order to
determine whether that contract was sufficiently coercive to cause
Zhong to violate the forced-labor statute. The jury had no legitimate
use for DeBaca’s color commentary about its “troubling” and “red
12 Dukagjini and Mejia each involved challenges to the admissibility of the
testimony of a government investigator serving as an expert witness. We
explained that, under those circumstances, “there is an increased danger that
the expert testimony will stray from applying reliable methodology and
convey to the jury the witness’s ‘sweeping conclusions’ about [the
defendant’s] activities.” Dukagjini, 326 F.3d at 54 (emphasis added); see also
Mejia, 545 F.3d at 191 (“[I]t is a little too convenient that the Government
has found an individual who is expert on precisely those facts that the
Government must prove to secure a guilty verdict—even more so when that
expert happens to be one of the Government’s own investigators.”) (emphasis
added). DeBaca was not an investigator in this case and might not have
presented a similarly increased danger. Nevertheless, the district court was
still required to ensure that DeBaca did not “interpret the evidence” and
“usurp[] the jury’s function.” Dukagjini, 326 F.3d at 54.
28
flag[]”-raising provisions. App’x 375-76, 384. The government seems
to have impermissibly used DeBaca’s testimony to “interpret” and
“vouch for the admissible evidence [it had] offered.” Dukagjini, 326
F.3d at 54. With this testimony, moreover, DeBaca came “dangerously
close to usurping the jury’s function” by “providing an overall
conclusion of criminal conduct.” Id.Most importantly, portions of DeBaca’s testimony severely
prejudiced Zhong. Those portions bore, at best, tangential relevance
to his case. DeBaca did not limit his testimony to explaining the details
of forced-labor operations in general and the facts of Zhong’s case. He
specifically discussed the motivations for such organizations and
China’s human rights record with respect to forced labor. At one
point, DeBaca said that people employ forced labor due to a
“combination of profit maximization [objectives] on the one hand,
and almost a pleasure that is taken in being able to have this type of
control over other people.” App’x 328-29. He discussed the history of
slavery and sharecropping in the United States as providing
background for his opinions. App’x 311-12, 337, 346. After the
government “turn[ed his] focus to forced labor issues specific to or
particularly problematic in China,” App’x 361, DeBaca highlighted
China’s poor record with respect to forced labor. He testified that
“Chinese labor trafficking” was a “routine problem” that “cropp[ed]
up” “all over the world.” App’x 364. He spoke about how Chinese
businessmen would “scoop[] up” “mentally” and “physically
challenged” people who were “begging” “in railway stations” and
“take[] [them] out to brick kilns … or to other very dangerous and
29
dirty jobs.” App’x 363. 13 DeBaca also discussed China’s use of
“reeducation through labor camps, large prison systems set up ... for
the Muslim community from the Uighur subgroup.” App’x 366-67.
Finally, he reported that the U.S. government’s annual human-
trafficking reports rated China among the world’s most problematic
countries. App’x 367-69.
Much of this evidence is hardly relevant to Zhong’s case. See
Fed. R. Evid. 401 (“Evidence is relevant if: (a) it has any tendency to
make a fact more or less probable than it would be without the
evidence; and (b) the fact is of consequence in determining the
action.”). For example, there was no evidence that Rilin workers were
mentally or physically challenged or that they were members of
religious minority groups in China.
Yet even if some of the testimony might have been relevant, as
the government argues, to enable the jury to understand “the unique
social, political and economic factors that can render Chinese workers
initially susceptible to joining a forced labor scheme and to fear
leaving the scheme,” Gov’t Br. 57, the testimony improperly risked
prejudicing the jury against Zhong, a Chinese man who was
associated with the Chinese government. We have held that an expert
may not “[i]nject[] ... a defendant’s ethnicity into a trial as evidence of
criminal behavior” because such testimony “is self-evidently
improper and prejudicial.” United States v. Cruz, 981 F.2d 659, 664 (2d
Cir. 1992); see also Jinro Am. Inc. v. Secure Investments, Inc., 266 F.3d 993,
1007 (9th Cir. 2001) (holding that the district court erred in “[a]llowing
an expert witness in a civil action” brought against a Korean business
At this point, the district court told DeBaca that he went a “[l]ittle too far,”
13
but it did not act to limit the prejudicial effect of this testimony. App’x 363.
30
“to generalize that most Korean businesses are corrupt, are not to be
trusted and will engage in complicated business transactions to evade
Korean currency laws”).
The government also may not invite the jury to find guilt based
on a defendant’s associations. See Cruz, 981 F.2d at 663 (“[G]uilt may
not be inferred from the conduct of unrelated persons.”); United States
v. Castillo, 924 F.2d 1227, 1231 (2d Cir. 1991) (suggesting that “expert
testimony was employed not for the permissible purpose of assisting
the jury to understand the facts at issue, but rather for the
impermissible purpose of encouraging the inference of appellants’
guilt from the behavior of unrelated persons”); see also United States v.
Lopez-Medina, 461 F.3d 724, 741-42 (6th Cir. 2006) (“Evidence that
demonstrates only ‘guilt by association’ ... is irrelevant to the question
of a defendant’s actual guilt.”); United States v. Polasek, 162 F.3d 878,
884 n.2 (5th Cir. 1998) (citing cases). The prejudicial nature of this
testimony is further heightened by the fact that the government
questioned DeBaca about the Rilin employment contract immediately
following the general testimony about forced labor in China. See
App’x 369-70. This testimony, therefore, improperly invited the jury
to find Zhong guilty by association and the district court should have
excluded it under Rule 403.
D
Having concluded that the district court made erroneous
evidentiary rulings, we now address whether those errors warrant
vacating Zhong’s convictions. Even if a district court errs, a defendant
ordinarily is not entitled to a new trial if those errors were
“harmless—i.e., … unimportant in relation to everything else the jury
considered on the issue in question.” Cameron v. City of New York, 598
31
F.3d 50, 61 (2d Cir. 2010). 14 We may hold that an evidentiary error is
harmless only “if we can conclude with fair assurance” that the
wrongly excluded or admitted evidence would not have or “did not
substantially influence the jury.” Id. at 61 (internal quotation marks
omitted); see also Kotteakos v. United States, 328 U.S. 750, 765 (1946)
(“[I]f one cannot say, with fair assurance, after pondering all that
happened without stripping the erroneous action from the whole,
that the judgment was not substantially swayed by the error, it is
impossible to conclude that substantial rights were not affected ...
[and] the conviction cannot stand.”). In applying that standard, we
consider “(1) the overall strength of the prosecution’s case; (2) the
prosecutor’s conduct with respect to the improperly admitted
evidence; (3) the importance of the wrongly admitted evidence; and
(4) whether such evidence was cumulative of other properly admitted
evidence.” Al-Moayad, 545 F.3d at 164. Additionally, “the cumulative
effect of a trial court’s errors, even if they are harmless when
considered singly, may ... requir[e] reversal” or vacatur of a
conviction. Id. at 178. The government bears the burden of proving
14 Because Zhong properly preserved his objections to the evidentiary
errors, we review those errors for harmless error rather than plain error.
Zhong objected to the admission of the pre-indictment evidence and to
DeBaca’s testimony. The government objected to the admission of evidence
regarding Ken Wang’s reputation for truthfulness. While Zhong did not
respond to that objection with an offer of proof, “an offer of proof is not an
absolute prerequisite in every appeal from the exclusion of evidence” and
is required only where “the significance of the excluded evidence is not
obvious or where it is not clear what the testimony of the witness would
have been.” Henry v. Wyeth Pharms., Inc., 616 F.3d 134, 151-52 (2d Cir. 2010)
(internal quotation marks omitted). Here, the significance and substance of
the excluded evidence is clear.
32
the error was harmless. United States v. Kaiser, 609 F.3d 556, 573 (2d
Cir. 2010).
In this case, “we cannot conclude with fair assurance” that “the
cumulative effect of” the district court’s erroneous evidentiary rulings
“did not substantially influence the jury” in its decision to convict
Zhong of the three forced-labor charges. Al-Moayad, 545 F.3d at 169,
178 (internal quotation marks omitted). The testimony about the
events of 2001 and 2002 formed a central component of the
government’s case. In fact, the story of one 2001 abduction was “quite
literally the first thing mentioned in the government’s opening
statement.” United States v. Stewart, 907 F.3d 677, 689 (2d Cir. 2018)
(holding that such use of inadmissible evidence undermines any
argument that its admission was harmless); see App’x 124. The
government mentioned these events multiple times in its opening and
its closing and told the jury on multiple occasions that Zhong himself
was personally responsible for ordering these actions. Furthermore,
if Zhong had been able to impeach Wang with reputation testimony,
the jury might have had trouble connecting Zhong with the violence
that occurred in 2001 and 2002. No other government witness testified
that Zhong participated in or knew about actions like those described
as having occurred in that period. Finally, the prejudicial portions of
DeBaca’s testimony likely tainted the jury’s assessment of the forced-
labor-related evidence the government presented from the indictment
period. Accordingly, we vacate Zhong’s convictions for forced labor,
forced-labor conspiracy, and document servitude in connection with
forced labor.
We reach a different conclusion, however, with respect to
Zhong’s alien smuggling and visa conspiracy convictions. The
prejudicial effect of the district court’s evidentiary errors was to lead
33
the jury to believe that Zhong was more violent and coercive than the
evidence would have otherwise shown him to be. The government
offered the pre-indictment evidence to show that Zhong participated
in ruthless reprisals against escaped Rilin workers. Wang’s
testimony—which may have appeared more credible than it should
have—reinforced the government’s portrayal of Zhong as a cruel
leader. DeBaca’s expertise framed Zhong’s actions as consistent with
the brutal activities of recognized perpetrators of forced labor, past
and present. Yet Zhong’s allegedly coercive tendencies had little
relevance to the government’s alien smuggling and visa conspiracy
prosecutions. To convict Zhong of those counts, the jury merely had
to find, respectively, that Zhong conspired to transport aliens “in
furtherance” of their illegal presence in the United States, 8 U.S.C.
§ 1324(a)(1), and that he conspired to utter, use, attempt to use,
possess, obtain, accept, or receive a fraudulent visa, see 18 U.S.C.
§§ 371, 1546(a). Zhong could have committed these crimes without
engaging in violence. The district court’s erroneous evidentiary
decisions therefore do not seriously impugn Zhong’s alien smuggling
and visa fraud convictions. 15
15 Zhong argues that DeBaca provided a legally erroneous definition of
“alien smuggling,” in that his definition omitted the statute’s “in
furtherance” requirement. See App’x 330-31. The district court sufficiently
ameliorated any harm this might have caused, however, when it instructed
the jurors that they “would violate [their] oaths as jurors if [they] based
[their] verdict on anything other than the law as I define it,” Gov’t App’x
527-28, and took care to explain the statute’s “in furtherance” requirement,
see App’x 923-924, 926.
34
III
With Zhong’s evidentiary objections resolved, we address his
sufficiency-of-the-evidence claims. “We review de novo challenges to
the sufficiency of the evidence,” viewing “the evidence in the light
most favorable to the government, drawing all inferences in the
government’s favor and deferring to the jury’s assessments of the
witnesses’ credibility.” United States v. Sabhnani, 599 F.3d 215, 241 (2d
Cir. 2010). In undertaking this review, we “consider the government’s
case in its totality rather than in its parts,” mindful that the
sufficiency-of-the-evidence test may be “satisfied by circumstantial
evidence alone.” United States v. Hawkins, 547 F.3d 66, 70-71 (2d Cir.
2008) (alteration omitted). A defendant, moreover, cannot prevail on
a sufficiency-of-the-evidence challenge “if any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.” United States v. Kozeny, 667 F.3d 122, 139 (2d Cir.
2011) (internal quotation marks omitted).
Zhong argues that the government did not present sufficient
admissible evidence to allow a reasonable jury to convict him of either
the forced-labor or the alien smuggling charges and that we therefore
must reverse the district court’s decision to deny Zhong’s motion for
an acquittal. We disagree.
A
To convict Zhong of the forced-labor charges, the jury needed
to conclude that, through Rilin’s actions, Zhong “knowingly
provide[d] or obtain[ed] the labor or services” of Rilin workers
through one or more of the methods prohibited by the forced-labor
statute. 18 U.S.C. § 1589(a). The method that fits Zhong’s alleged
conduct is to obtain labor “by means of serious harm or threats of
35
serious harm.” Id. § 1589(a)(2). The statute defines “serious harm” to
“mean[] any harm, whether physical or nonphysical, including
psychological, financial, or reputational harm, that is sufficiently
serious, under all the surrounding circumstances, to compel a
reasonable person of the same background and in the same
circumstances to perform or to continue performing labor or services
in order to avoid incurring that harm.” Id. § 1589(c)(2). Therefore, in
order to secure a conviction on the forced-labor counts, the
government needed to produce admissible evidence that could
reasonably show that Zhong “knowingly or intentionally engaged in
[harmful] actions or made threats [of harm] that were sufficiently
serious to compel a reasonable person in [the Rilin workers’] position
to remain in [Rilin’s] employ, against [their] will and in order to avoid
such threats of harm, when [they] otherwise would have left.”
Muchira, 850 F.3d at 620. Moreover, the evidence would need to
demonstrate that such actions or threats did, in fact, compel the Rilin
workers to remain working for Rilin when they otherwise would have
left. Otherwise, Zhong could not have “provide[d] or obtain[ed]”
their labor though these actions or threats. 18 U.S.C. § 1589(a).
Even without the erroneously admitted material, the
government’s evidence would allow a reasonable jury to come to
those conclusions. That evidence showed that (1) Rilin workers had
to tender a large security deposit before they could join the company;
(2) even though Rilin workers’ wages are higher than one would
expect from domestic construction work, Rilin workers’ families
received only a small portion of that income while the workers were
in the United States, and Rilin paid the bulk of that income only upon
the workers’ return; (3) Rilin had the authority to decide when a
worker’s tour of duty ended; (4) Rilin imposed rules limiting its
36
workers’ freedom of movement and their freedom to contact people,
especially local Chinese-speaking communities; (5) if workers did not
follow the rules or fled, Rilin could saddle them with a host of
incidental costs or force them to forfeit all their unpaid wages and
their security deposits; (6) on one occasion, Rilin brought the family
of an escaped employee to court in China, obtained a judgment
against them, and told them they owed 1 million RMB; (7) until 2011,
Rilin employees were housed in residences that locked from the
outside; (8) Rilin held its workers’ passports and visas while they
were in the United States and kept a list of escaped workers; and
(9) Zhong led and was intimately involved with Rilin’s U.S.
operations.
Based on this evidence, a “rational trier of fact could have
found,” Kozeny, 667 F.3d at 139, that Zhong knowingly or
intentionally visited harm on Rilin workers or threatened them with
harm in a manner “sufficiently serious to compel a reasonable person
in [the Rilin workers’] position to remain in [Rilin’s] employ, against
[their] will and in order to avoid such threats of harm, when [they]
otherwise would have left,” Muchira, 850 F.3d at 620 (emphasis
omitted). And a jury could further conclude that Zhong’s actions did,
in fact, compel Rilin workers to remain working for Rilin when they
otherwise would have left, and Zhong thus “obtain[ed] the[ir] labor
or services” in violation of the forced-labor statute. 18 U.S.C.
§ 1589(a).
Zhong protests that a reasonable jury could not so conclude
unless it heard testimony from Rilin workers that Zhong’s actions
compelled them to work for Rilin against their will. The government
37
did not present such testimony. 16 In effect, Zhong argues that the
government needed to provide direct evidence of Zhong’s successful
forced-labor scheme. Our precedents, however, do not impose such a
requirement. The sufficiency-of-the-evidence test may be “satisfied
by circumstantial evidence alone.” Hawkins, 547 F.3d at 70-71.
Accordingly, the district court did not err in denying Zhong’s motion
for acquittal, and the government may retry him on the forced-labor
charges.
B
As for the alien smuggling count, the government charged
Zhong with conspiring to violate 8 U.S.C. § 1324(a)(1)(A)(ii), which
imposes criminal liability on any person who, “knowing or in reckless
disregard of the fact that an alien has come to, entered, or remains in
the United States in violation of law, transports, or moves or attempts
to transport or move such alien within the United States by means of
transportation or otherwise, in furtherance of such violation of law.”
Therefore, to convict Zhong on this count, the jury needed to find that
Zhong conspired to transport Rilin workers in the United States “in
furtherance of” their unlawful presence in the United States. See
United States v. Stonefish, 402 F.3d 691, 695 (6th Cir. 2005) (“The
‘violation of law’ to which the provision refers is the illegal alien’s
continued illegal presence in the United States.”). The government’s
key piece of evidence in this regard was Rilin’s transportation of its
workers from their residences to construction projects that laid
outside the scope of their visas. Because individuals who violate the
terms of their visas are subject to removal, see 8 U.S.C.
§ 1227(a)(1)(C)(i), the government argued that Rilin’s transportation
16 See supra note 4.
38
of its workers furthered their illegal presence in the United States by
allowing them to avoid detection by local authorities and to continue
to remain in the United States in violation of the conditions of their
visas.
The alien smuggling statute’s “in furtherance” element
requires that—to give rise to liability under the statute—the
transportation at issue must “help, advance, or promote the alien’s
illegal entry or continued illegal presence in the United States.” United
States v. Barajas-Chavez, 162 F.3d 1285, 1288 (10th Cir. 1999); see also
Furtherance, Black’s Law Dictionary (11th ed. 2019) (defining
“furtherance” as “[t]he act or process of facilitating the progress of
something or of making it more likely to occur; promotion or
advancement”). On this understanding, transporting illegal aliens to
work and back does not qualify as alien smuggling unless the
transportation helped the illegal alien to maintain his illegal presence.
Our sister circuits have variously described what additional
showing the in-furtherance element requires. Some require that the
transportation have a “direct or substantial” (as opposed to an
“incidental”) relationship to maintaining the alien’s illegal presence.
United States v. Moreno, 561 F.2d 1321, 1323 (9th Cir. 1977); see also
United States v. Velasquez-Cruz, 929 F.2d 420, 422-23 (8th Cir. 1991)
(adopting Moreno as the “[p]roper [t]est” for applying the in-
furtherance element). Others have adopted an intent-based
requirement pursuant to which a defendant must “transport[] the
illegal aliens for the purpose of furthering their illegal presence in the
United States.” Stonefish, 402 F.3d at 699 (emphasis added). Still others
articulate less demanding intent-based variations of these
approaches, see Barajas-Chavez, 162 F.3d at 1288 (“The statute requires
that a defendant know or act in reckless disregard of the fact that an
39
individual is an illegal alien, and that defendant’s transportation or
movement of the alien will help, advance, or promote the alien’s
illegal entry or continued illegal presence in the United States.”);
United States v. Parmelee, 42 F.3d 387, 391 (7th Cir. 1994) (“[T]he
defendants had to know not only that the … aliens had entered this
country illegally, but also that they were furthering the aliens’ illegal
entry by transporting them.”); United States v. Merkt, 764 F.2d 266, 272
(5th Cir. 1985).
Our court has yet to take a position on this issue, and we need
not do so here. In this case, the government’s evidence was sufficient
to allow the jury to convict Zhong of the alien smuggling charge
under any of these approaches. The government presented evidence
of the lengths to which Rilin would go to limit the contact its workers
would have with members of the community and how it policed the
outside contact that might occur. Rilin and Zhong purposefully
housed Rilin employees away from local Chinese communities and
instructed the employees not to speak with local Chinese speakers.
House rules required that workers not venture out alone, report their
destinations when they went out as a group, and refrain from
participating in large public events. And at least until 2011, Rilin
housed workers in facilities that locked from the outside. As the
government explains, a jury could have concluded from this evidence
that Zhong led an “effort to conceal and isolate the workers from
social contact” at least in part to “limit[] the opportunities for others
to speak to them and learn” about their circumstances, which might
lead to actions that would disturb Rilin’s operation. Gov’t Br. 85.
Furthermore, the jury could have reasonably concluded that Rilin’s
decision to transport its workers directly to and from the unapproved
worksites formed “an integral part of the bubble that Zhong and his
40
coconspirators constructed around the workers” in that it
“prevent[ed] contact with law enforcement authorities who might”
have otherwise uncovered that these workers were illegally present
in the United States. Gov’t Br. 87.
Zhong argues that other evidence demonstrates that he did not
seek to shield Rilin workers from public view and that Rilin’s
transportation of workers could not have been part of any effort to
ensure they avoided detection. Specifically, Zhong points to the facts
that Rilin workers sometimes mingled with their neighbors, toured
the country, and, when they were at the illegal worksites, worked
openly, wore Rilin jackets, and attended OSHA trainings. While this
evidence might point in the other direction, it did not require the jury
to acquit Zhong on the alien smuggling charge. A “rational trier of
fact could have found,” Kozeny, 667 F.3d at 139, that Rilin did not
conceal its workers entirely but that controlling the workers’
transportation to and from the worksites was still part of the effort to
limit the workers’ exposure. The jury might have concluded, for
example, that Rilin did not conceal the workers under every
circumstance for fear of raising suspicion or for other prudential
considerations, but it nevertheless did so under these circumstances.
Because a rational juror could have concluded that the transportation
was in furtherance of the workers’ illegal presence, the district court
did not err in denying Zhong’s motion for acquittal on the alien
smuggling conspiracy charge. Because we have determined that the
district court’s evidentiary errors had little—if any—impact on the
jury’s decision to convict Zhong on that count, we affirm that
conviction.
41
IV
Finally, we address Zhong’s sentence. The district court
imposed a 190-month term of imprisonment for Zhong’s forced-labor
and forced-labor-conspiracy convictions. Our decision to vacate those
convictions extinguishes that sentence. The district court imposed a
sixty-month term of imprisonment—or perhaps two concurrent sixty-
month terms, the judgment is unclear, see App’x 1514—for Zhong’s
convictions for document servitude in connection with forced labor
and for visa fraud conspiracy, to run concurrently with his other
sentences. Our decision to vacate the document servitude conviction
requires us to vacate the sixty-month sentence and remand Zhong’s
visa fraud conspiracy conviction for resentencing. Finally, the district
court imposed a concurrent sentence with a 108-month term of
imprisonment for Zhong’s alien smuggling conviction, which we
have affirmed. Finding no procedural unreasonableness with this
sentence, we affirm. 17
17 Zhong also brings a substantive reasonableness challenge, but his
arguments relate only to his forced-labor sentence. Regardless, we find
those arguments meritless. Zhong argues that his sentence for those
convictions was substantively unreasonable because the sentence failed to
“avoid unwarranted disparities among defendants with similar records
who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6).
Zhong notes that his 190-month sentence was far longer than three other
sentences our court has affirmed in forced-labor cases, two of which
involved more egregious conduct than that in which Zhong was found to
have engaged. See Sabhnani, 599 F.3d at 225-30, 250 (132-month sentence for
a defendant who sadistically tortured domestic servants over five years);
United States v. Marcus, 517 F. App’x 8, 10-11 (2d Cir. 2013) (ninety-six-
month sentence for a defendant who subjected his victim to “physical and
psychological torture” that caused “lasting physical and mental injury”);
42
“Procedural error occurs in situations where, for instance, the
district court miscalculates the Guidelines; treats them as mandatory;
does not adequately explain the sentence imposed; does not properly
consider the § 3553(a) factors; bases its sentence on clearly erroneous
facts; or deviates from the Guidelines without explanation.” United
States v. McIntosh, 753 F.3d 388, 394 (2d Cir. 2014). “[W]e presume that
a sentencing judge has faithfully discharged her duty to consider the
statutory factors,” United States v. Verkhoglyad, 516 F.3d 122, 129 (2d
Cir. 2008) (internal quotation marks omitted), and “we do not require
‘robotic incantations’ that the district court has considered each of the
§ 3553(a) factors,” United States v. Cavera, 550 F.3d 180, 193 (2d Cir.
2008) (en banc). Moreover, “we never have required a District Court
to make specific responses to points argued by counsel in connection
with sentencing.” United States v. Bonilla, 618 F.3d 102, 111 (2d Cir.
2010). At the same time, “just as we do not insist upon ‘robotic
incantations,’ we require more than a few magic words,” and
“[w]here the appellant or prosecutor presents nonfrivolous reasons
for imposing a different sentence the judge will normally go further
and explain why he has rejected those arguments.” United States v.
Corsey, 723 F.3d 366, 376-77 (2d Cir. 2013) (alteration omitted).
United States v. Garcia, 164 F. App’x 176, 177 (2d Cir. 2006) (forty-six-month
sentence for a defendant who recruited migrant farm workers near the
Mexico border and forced them to work until they had paid off debts). As
the government points out, however, these cases are not necessarily
comparable to Zhong’s because either the cases involved far fewer victims
or the sentences resulted from a Guidelines range on which the government
and the defendant agreed before sentencing. Sabhnani, 599 F.3d at 224-25(two victims); Marcus, 517 F. App’x at 11 (one victim); Plea Agreement at 7,
United States v. Garcia, No. 1:02-CR-110 (W.D.N.Y. Dec. 2, 2004), ECF No.
248 (agreed-upon Guidelines sentence).
43
Zhong argues that the district court improperly applied a
“vulnerable victims” enhancement to the Guidelines offense level.
U.S.S.G. § 3A1.1(b). 18 Zhong contends that the district court failed to
make “individualized findings as to the vulnerability of particular
victims” and instead relied on “broad generalizations about victims
based upon their membership in a class.” United States v. McCall, 174
F.3d 47, 50 (2d Cir. 1998). The concern we expressed in McCall about
“broad generalizations,” however, applies specifically “where a very
substantial portion of the class is not in fact particularly vulnerable to
the crime in question.” Id. In this case, the class of alleged victims
consisted of Chinese nationals with little means, education, and
English proficiency. The district court committed no procedural error
in concluding that such individuals are “unusually vulnerable” or
“particularly susceptible” to becoming victims of an alien smuggling
scheme in which workers are brought to the United States and
isolated from local Chinese-speaking communities. U.S.S.G. § 3A1.1
application note 2; see App’x 940; see also United States v. Getto, 586
F. App’x 11, 13-15 (2d Cir. 2014) (holding that the enhancement
properly applied to defendants convicted of operating a fraudulent
telemarketing scheme that targeted “older people” and those “who
had problems of one sort or another in the reasoning world” such as
people who “suffered from dementia”).
Before the district court, Zhong requested that his sentence be
reduced because of the conditions of his pretrial confinement at MDC-
Brooklyn. We have recognized that the “severity of the conditions of
18Zhong makes this argument with reference to his forced-labor sentence.
The district court, however, also applied this enhancement to his alien
smuggling conviction. We therefore address this argument here.
44
confinement” is a “not unreasonable” basis for a court to impose a
shorter sentence than might otherwise be warranted. United States v.
Stewart, 590 F.3d 93, 144 (2d Cir. 2009). The district court responded
to Zhong’s argument by saying that it was “struck as [it] listened to
counsel list the conditions of Mr. Zhong’s confinement—unsafe,
unhealthy, isolated, not speaking the language. How easily those
arguments could be applied to the victims in this case.” App’x 962.
Zhong argues that the district court improperly failed to “go
further and explain why [it] … rejected” this “nonfrivolous reason[]
for imposing a different sentence.” Corsey, 723 F.3d at 377. Even
assuming the argument was “nonfrivolous” and merited a response,
the district court explained why it rejected the argument when it said
the argument was hypocritical. Regardless, our recognition that the
“severity of the conditions of confinement” is a “not unreasonable”
basis for a shorter sentence, Stewart, 590 F.3d at 144, does not mean a
district court must impose a lower sentence in such a scenario.
Zhong also argues that the district court failed “to adequately
explain the chosen sentence.” United States v. Pugh, 945 F.3d 9, 27 (2d
Cir. 2019) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). Zhong
is incorrect. The district court reviewed the § 3553(a) factors, said it
considered those factors, and then discussed the severity of Zhong’s
crime and the need to protect the public from possible future crimes
Zhong might commit. See App’x 960-66. The transcript of the
sentencing proceeding sufficiently demonstrates that the district
court “considered the parties’ arguments” and had a “reasoned basis
for exercising its own legal decisionmaking authority.” Cavera, 550
F.3d at 193 (alteration omitted).
45
Finally, our decision to vacate Zhong’s forced-labor convictions
does not render his alien smuggling sentence procedurally
unreasonable. Zhong’s 108-month sentence on that count sat at the
low end of the applicable Guidelines range. See App’x 934-35 (stating
that the offense level applicable to “the alien smuggling conspiracy”
count “is ... 31” and placing Zhong’s criminal history “in Category I”);
U.S.S.G. ch. 5, pt. A, Sentencing Table (recommending a sentence of
imprisonment of 108 to 135 months for a defendant in Category I with
an offense level of 31). Although the Guidelines offense level the
district court calculated for the conviction included a two-level
enhancement because the smuggled aliens “were involuntarily
detained through coercion or threat,” App’x 935; U.S.S.G.
§ 2L1.1(b)(8)(A), the district court did not rely on Zhong’s forced-
labor convictions to justify the enhancement.
A district court may apply an enhancement if it concludes—
based on its own assessment—that the preponderance of the evidence
demonstrates that the enhancement should apply. See United States v.
Ryan, 806 F.3d 691, 693-94 (2d Cir. 2015); U.S.S.G. § 6A1.3 commentary
(“[U]se of a preponderance of the evidence standard is appropriate to
meet due process requirements and policy concerns in resolving
disputes regarding application of the guidelines to the facts of a
case.”). That appears to be what occurred here. The presentence
report assessed the evidence and concluded that Zhong committed
alien smuggling because his conduct involved “involuntarily
detain[ing] through coercion or threat” given that “workers were
informed that if they tried to escape, or failed to work, or spoke out
of turn, their cash collateral deposits agreed upon in their contracts
would be seized, as would any property of theirs that was used as
collateral as part of their contracts.” Presentence Investigation Report
46
(“PSR”) ¶ 40. The district court concurred with this analysis. See
App’x 941 (“accept[ing] the presentence report with its addenda in
the entirety” with one exception not relevant to the alien smuggling
conviction). Moreover, the presentence report based its conclusion on
the threatened repercussions included in the Rilin workers’ contracts,
see PSR ¶ 40; App’x 990-92, and Zhong does not contest the
admissibility of that evidence. Accordingly, we affirm Zhong’s
sentence for his alien smuggling conviction.
CONCLUSION
To summarize, we hold:
1. The district court did not err in failing to give an “adverse
but legitimate consequences” jury instruction.
2. The district court erred when it made evidentiary errors
including:
a. allowing the government to present evidence relating
to Rilin’s violent and threatening activity in 2001 and
2002,
b. preventing Zhong from introducing evidence
regarding Ken Wang’s reputation for truthfulness,
and
c. allowing expert Luis DeBaca to interpret the
government’s evidence and give prejudicial
testimony that was largely irrelevant,
and we cannot conclude that the cumulative effect of those
errors was harmless with respect to Zhong’s forced-labor
convictions. Those errors, however, were harmless with
47
respect to Zhong’s alien smuggling and visa fraud
convictions.
3. The district court did not err in refusing to allow Zhong to
cross-examine Ken Wang about his New Jersey court
proceeding or in concluding that forced-labor operations
are a proper subject for expert testimony.
4. Even shorn of the erroneously admitted evidence, the
government presented sufficient evidence to allow a
reasonable jury to convict Zhong of the forced-labor
charges.
5. The government presented sufficient evidence to allow a
reasonable jury to convict Zhong of the alien smuggling
charge.
6. Zhong’s sentence for the alien smuggling charge was not
unreasonable.
Accordingly, we VACATE Zhong’s convictions and the
associated sentences on the three forced-labor counts: forced labor,
forced-labor conspiracy, and document servitude in connection with
forced labor, and REMAND for a new trial on those counts consistent
with this opinion. At that trial, the government may not introduce
evidence of Rilin’s violent and threatening activity in 2001 and 2002.
Furthermore, if the government calls DeBaca to testify, the district
court must ensure that DeBaca does not venture into topics
inappropriate for expert testimony. Additionally, we AFFIRM
Zhong’s conviction for alien smuggling conspiracy and its associated
sentence. Finally, we AFFIRM Zhong’s visa fraud conspiracy
conviction. Because the district court may have imposed a single
48
sentence on that conviction and the document servitude conviction,
however, we VACATE that sentence and REMAND for resentencing.
49