United States v. Andrew Yao

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
6-18-2009
USA v. Andrew Yao
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1977
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Recommended Citation
"USA v. Andrew Yao" (2009). 2009 Decisions. Paper 1174.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1174
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 08-1977
__________
UNITED STATES OF AMERICA
v.
ANDREW N. YAO,
Appellant
On Appeal from the United States District Court
for the District of Delaware
(D. C. No. 01-06-cr-00027-001)
District Judge: Hon. Gregory M. Sleet
Argued on May 12, 2009
Before: AMBRO, ROTH and ALARCÓN*, Circuit Judges
(Opinion filed: June 18, 2009)
Mark E. Cedrone, Esquire (Argued)
Cedrone & Janove
Public Ledger Building, Suite 940
150 South Independence Mall West
Philadelphia, PA 19106
Counsel for Appellant
*Honorable Arthur L. Alarcón, Senior United States Circuit Judge for the Ninth
Circuit Court of Appeals, sitting by designation.
Colm F. Connolly, Esquire
United States Attorney
Shannon T. Hanson, Esquire (Argued)
Assistant United States Attorney
1007 N. Orange Street, Suite 700
P. O. Box 2046
Wilmington, DE 19899-2046
Counsel for Appellee
OPINION
ROTH, Circuit Judge:
Andrew Yao appeals from a judgment of conviction for making a false oath in a
bankruptcy proceeding, in violation of 18 U.S.C. § 152(2). The District Court had
jurisdiction pursuant to 18 U.S.C. § 3231. This Court has jurisdiction pursuant to 28
U.S.C. § 1291. We assume the parties’ familiarity with the facts and the record of prior
proceedings, which we describe only as necessary to explain our decision. We will
affirm.
Yao’s sole complaint is directed at the District Court’s instruction on the
fraudulent intent required to prove a violation of 18 U.S.C. § 152(2). The District Court
defined “fraudulently” to require an “intent to deceive the trustee, the creditors, the
bankruptcy court, or any other person or entity.” Yao argues that the District Court
should have limited the potential object of the “intent to deceive” to “the trustee, the
creditors, or the bankruptcy court.”
2
During trial, Yao did not object to the language “or any other person or entity” in
the “fraudulent” jury instruction. Indeed, the words were added to the instruction at the
District Court’s suggestion as a compromise between Yao’s suggested lengthy “intent to
defraud” instruction and the government’s open-ended “intent to deceive” language, and
both parties approved the language before it was used in the preliminary instructions. The
“or any other person or entity” language was used again following the prayer conference
and a final time after the jury asked a question during deliberations, and never did defense
counsel put a “clear, specific objection” to that language on the record. See United States
v. Zehrbach, 47 F.3d 1252, 1260 n.6 (3d Cir. 1995). Accordingly, we review the
instruction only for “plain error.” Id.
Plain error is “found ‘sparingly and only where the error was sure to have had
unfair prejudicial impact on the jury’s deliberations.’” United States v. Thayer, 201 F.3d
214, 221–22 (3d Cir. 1999) (quoting Zehrbach, 47 F.3d at 1263 n.9). Moreover, “we
should exercise our discretion to correct the error [only] where the defendant is actually
innocent, or where, regardless of the defendant’s innocence or guilt, the error seriously
affects the fairness, integrity or public reputation of judicial proceedings.” United States
v. Gordon, 290 F.3d 539, 543 (3d Cir. 2002). We find no such problem here. Yao lied to
creditors’ counsel about transfers of funds he made from corporate debtor’s accounts. He
told these lies while under oath during his deposition as part of bankruptcy proceedings,
and they concern a fact material to the debtor’s bankruptcy—what Yao did with over
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$800,000 of the debtor’s assets. We have reviewed the record and are satisfied that the
evidence would overwhelmingly support the verdict even if the jury instructions had not
included the disputed language.1
Accordingly, we will affirm the judgment of conviction.
1
We thus do not decide whether conviction under 18 U.S.C. § 152(2) typically requires
an “intent to deceive” any person or an “intent to deceive the creditors, the trustee, or the
bankruptcy court.”
4