United States v. Fujii, Masao

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3455
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MASAO FUJII, a/k/a YASUO TAMURA,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 CR 17—Joan B. Gottschall, Judge.
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ARGUED APRIL 9, 2002—DECIDED AUGUST 20, 2002
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Before FLAUM, Chief Judge, and COFFEY and KANNE,
Circuit Judges.
KANNE, Circuit Judge. Masao Fujii was convicted of
attempting to smuggle aliens into the United States for
private financial gain, in violation of 8 U.S.C. § 1324(a)(2)
(B)(ii) (“Count 1”); of encouraging and inducing aliens
to come to, enter, or reside in the United States, knowing
that it was in violation of law, in violation of 8 U.S.C.
§ 1324(a)(1)(A)(iv) (“Count 2”); and finally, of knowing-
ly using a counterfeit passport, in violation of 18 U.S.C.
§ 1543 (“Count 3”). The district court sentenced Fujii to 36
months of imprisonment. On appeal, Fujii challenges his
conviction with respect to Counts 1 and 2, arguing that the
district court erroneously admitted evidence under the
2 No. 01-3455
business records exception to the rule against hearsay
and that the evidence the government produced at trial
was insufficient to support his convictions.
I. Background
On January 5, 2000, Masao Fujii and three Chinese
nationals used fraudulent passports to board a Korean
Airlines Flight in Saigon, Vietnam bound for Seoul, Korea.
Fujii’s fraudulent passport bore the name “Yasuo Tamura.”
Xie Mei Zheng, Yan Zhu Zheng, and Xiao Hong Li used
fraudulent passports bearing the names “Naoko Yamada,”
“Miyuki Okamoto,” and “Yuri Kimura,” respectively. The
next day, all four individuals checked through onto Ko-
rean Airlines Flight 37 in Seoul, Korea bound for Chica-
go’s O’Hare International Airport.
Flight 37 arrived at O’Hare’s international terminal,
Terminal 5, where the United States Immigration and
Naturalization Service (“INS”) checks passports and other
documentation. The process for checking passports and
documentation at Terminal 5 proceeds as follows: First,
the traveler presents documentation at a primary inspec-
tion station. If the documentation appears incorrect or for
some other reason requires further inspection, the traveler
is referred to an INS secondary inspection station for
further questioning.
Fujii approached the INS primary inspection station
alone. There, he presented INS Inspector Todd Seeger
with his fraudulent Japanese passport, his INS I-94 W
Nonimmigrant Visa Waiver Arrival/Departure Form, and
a Customs Declaration Form. Because Seeger noticed
that Fujii’s passport did not contain the security fea-
tures that he was accustomed to seeing on Japanese pass-
ports, Seeger referred Fujii to the INS secondary inspec-
tion station.
No. 01-3455 3
At the same time that Fujii was being referred to the
INS secondary inspection station, Supervisory INS In-
spector Peter Manno was monitoring the other individ-
uals arriving on Flight 37. Manno watched the three Chi-
nese Nationals enter the women’s restroom. Manno stood
outside the restroom and refused to let anyone else enter.
After hearing six distinct toilet flushes, Manno and INS
Supervisor Teresa Guerrero entered the restroom and
confronted the three women. Two of the women were
standing together in one of the bathroom stalls, floating
in that stall’s toilet were the remnants of two Japanese
passports bearing the names “Okamoto” and “Yamada.”
The third Chinese national was in an adjacent stall and
had no passport in her possession, and no remnants were
seen floating in the toilet in that stall. All three of the
women were then escorted to the INS secondary inspection
station.
At the INS secondary inspection station, Manno con-
tacted Korean Airlines and requested a copy of the mani-
fest for Flight 37 and a copy of passenger reservations
for “Okamoto” and “Yamada.” Korean Airlines Assistant
Manager Tracy Oliveras printed out passenger reserva-
tions, check-in records, and the manifest for the flight.
The records were kept in a computer system and mani-
fests were printed by Oliveras on a daily basis. Either
travel agents, airline reservation agents, or airline agents
stationed at the airport had recorded the relevant infor-
mation in the computer system. Further, Oliveras tes-
tified that the entries were made at or near the time the
information was received, it was the regular business
practice of Korean Airlines to make the entries into the
computer system, and the records were kept as part of
Korean Airlines’ regular business activity.
The Korean Airlines check-in records revealed that
“Tamura” and the three Chinese nationals all “through
checked” from Saigon to Flight 37 in Seoul. Further, all four
4 No. 01-3455
individuals checked in with the same airline agent with-
in minutes of one another. Finally, the check-in records
showed that “Yamada” was in a group of four. Without
about being asked to do so, Oliveras subsequently pulled
the records for the other individuals listed in the group of
four with “Yamada.” The other individuals listed were
“Tamura,” “Okamoto,” and “Kimura.” Korean Airlines res-
ervations records further showed that all four individ-
uals had booked their reservations with the same travel
agent and that the tickets were all issued on the same
day and paid for by the same company.
While Manno obtained the aforementioned flight infor-
mation, INS agent Liam O’Neill began interviewing Fujii
at the INS secondary inspection station with the assis-
tance of Language Services, a contract company that INS
used to provide interpreters via telephone. O’Neill asked
Fujii questions in English that were then translated into
Japanese by the Language Services telephone interpreter.
Then Fujii answered the questions in Japanese, and the
interpreter translated Fujii’s answers back into English.
About half-way through the interview, Korean Airlines
Manager, Man Kee Ha, took over the translating duties
for the telephone interpreter from Language Services.
After Ha began interpreting, Fujii proceeded to give
two separate sworn statements. In his first sworn state-
ment, Fujii insisted that he was “Tamura” and that his
passport was legally issued by the Japanese government.
Following giving this first sworn statement, however,
O’Neill fingerprinted Fujii and placed his prints in the
INS’s fingerprint Identification System (“IDENT”). O’Neill
then learned that Fujii had previously pled guilty and
was convicted of encouraging or inducing six Chinese
aliens to enter the United States in violation of 8 U.S.C.
§ 1324(a)(1)(A)(iv). O’Neill then began to interview Fujii
for a second time. At this point, Fujii admitted that the
purpose of his trip was to help the “Singapore guy” to bring
No. 01-3455 5
the three Chinese women through United States Immigra-
tion. Further, Fujii explained that he did this because he
had guaranteed a debt for a friend, Sasaki Takeshi, to the
Cambodian mafia. Fujii then signed a second sworn state-
ment, which contained the information above, using his
real name, Masao Fujii.
Following the government’s presentation of the afore-
mentioned evidence at trial, Fujii moved for judgment of
acquittal pursuant to Rule 29 of the Federal Rules of
Criminal Procedure. The district court denied Fujii’s mo-
tion with regard to Counts 2 and 3, but reserved ruling
with regard to Count 1. Following the presentation of
his case at trial, Fujii renewed his motion for judgment
of acquittal with regard to Count 1, which the district
court denied. The jury found Fujii guilty on all three counts
in the indictment.
On appeal, Fujii contends that the district court erred
when it admitted into evidence check-in and reservation
records under the business records exceptions to the bar
on the admission of hearsay. Fujii also appeals the denial
of his motion for judgment of acquittal, challenging the
sufficiency of the government’s evidence with respect to
Counts 1 and 2, arguing (1) that the government failed to
prove that he “encouraged or induced” the aliens or that
he did these acts for “private financial gain,” (2) that
the translated version of his second sworn statement is
untrustworthy, and (3) that the government failed to
provide sufficient, independent evidence to corroborate
his sworn statement.
II. Analysis
A. Business Records Exception
Fujii argues that the district court erred in admitting
Korean Airlines’ check-in and reservation records because
6 No. 01-3455
they were not made in the ordinary course of business
and because they did not contain sufficient indicia of
trustworthiness. We review a district court’s evidentiary
ruling for an abuse of discretion. See United States v.
Briscoe, 896 F.2d 1476, 1494-95 (7th Cir. 1990).
Federal Rule of Evidence 803(6) provides for the admis-
sion of
A memorandum, report, record, or data compilation, in
any form, of acts, events, conditions, opinions, or di-
agnoses, made at or near the time by, or from infor-
mation transmitted by, a person with knowledge, if
kept in the course of a regularly conducted business
activity, and if it was the regular practice of that
business activity to make the memorandum, report,
record or data compilation, all as shown by the testi-
mony of the custodian or other qualified witness, unless
the source of information or the method or circum-
stances of preparation indicate lack of trustworthiness.
Computer data compiled and presented in computer print-
outs prepared specifically for trial is admissible under
Rule 803(6), even though the printouts themselves are not
kept in the ordinary course of business. See Briscoe, 896
F.2d at 1494 n.13.
In this case, the check-in and reservation records were
compiled and maintained in Korean Airlines’ ordinary
course of business. Oliveras, Korean Airlines Assistant
Manager, testified that the records were made from infor-
mation transmitted from a person with knowledge, the
entries were made at or near the time the information
was received, it was the regular business practice of Ko-
rean Airlines to make the entries into the computer sys-
tem, and the records were kept as part of Korean Airlines’
regular business activity. Because the information was
printed out at the request of the INS does not deprive
the printouts of its business-record character. See id.No. 01-3455 7
Consequently, because Fujii fails to establish that “the
source of information or the method or circumstances
of preparation indicate lack of trustworthiness,” see FED.
R. EVID. 803(6), we conclude that the district court did
not abuse its discretion in admitting check-in and res-
ervation records under Rule 803(6).
B. Sufficiency of the Evidence
A district court’s denial of a motion for acquittal is
reviewed de novo. See United States v. Quilling, 261 F.3d
707, 712 (7th Cir. 2001). We review the evidence and draw
all reasonable inferences therefrom in the light most
favorable to the government. See United States v. Jackson,
103 F.3d 561, 567 (7th Cir. 1996). If any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt, the district court must be
affirmed. See Jackson v. Virginia, 443 U.S. 307, 319, 99
S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
Fujii argues that the evidence at trial was insufficient
to convict him of Counts 1 and 2. Specifically, Fujii con-
tends that the government failed to prove that he acted
for the purpose of “private financial gain” or that he
“encouraged or induced” the aliens. To convict on Count 1,
the government needed to establish that Fujii attempted
to bring the three Chinese nationals to the United
States for the purpose of private financial gain, knowing
or in reckless disregard of the fact that the three Chinese
nationals had not received prior official authorization to
enter the United States. See 18 U.S.C. § 1324(a)(2)(B)(ii). A
pecuniary motive sufficiently establishes that one acted
for the purpose of “private financial gain.” See United
States v. Tsai, 282 F.3d 690, 697 (9th Cir. 2002). To con-
vict on Count 2, the government needed to establish that
Fujii encouraged or induced the three Chinese nationals
to enter the United States, knowing or in reckless disre-
8 No. 01-3455
gard of the fact that such entry was in violation of law. See
18 U.S.C. § 1324(a)(1)(A)(iv). To prove that Fujii “encour-
aged or induced” the aliens, all that the government needed
to establish was that Fujii knowingly helped or advised
the aliens. See United States v. He, 245 F.3d 954, 957-59
(7th Cir. 2001) (approving jury instruction equating know-
ingly helped or advised with “encouraged”).
The following evidence was adduced against Fujii at
trial: Fujii admitted in his second sworn statement that
he was assisting a man to bring the three Chinese nation-
als through United States Immigration and that he was
doing these acts because he had guaranteed a debt for a
friend to the Cambodian mafia. Further, the government
entered evidence that Fujii had previously pled guilty to
a similar crime giving an identical explanation for his
acts, establishing that Fujii knew that his acts were in
violation of the law. See FED. R. EVID. 404(b). Moreover,
the government offered evidence that all four individ-
uals, including Fujii, attempted to use fraudulent pass-
ports to enter the United States; that Fujii and the three
Chinese nationals reserved their tickets together; that
they purchased their tickets together; that they had their
tickets issued sequentially; and finally, that they checked
in to their flight together. The government also presented
evidence that upon their arrival in Chicago, the three Chi-
nese nationals were discovered attempting to dispose of
their fraudulent passports in the women’s washroom.
Taken in the light most favorable to the government, the
aforementioned evidence was more than sufficient to con-
vict Fujii on both counts. Fujii himself admitted that he
was helping a man bring the three Chinese nationals
through United States Immigration. This fact established
that Fujii “encouraged or induced” the aliens. See He,
245 F.3d at 957-59. Fujii also admitted that he did these
acts because of a mafia debt, satisfying the pecuniary mo-
tive element of Count 1. See Tsai, 282 F.3d at 697.
No. 01-3455 9
In further support of his insufficiency claim, Fujii argues
that because the linguistic skills of Korean Airlines em-
ployee Man Kee Ha were so deficient, his translated
sworn statement should have been disregarded.1 However,
it is not our job to determine whether Ha’s translated
version of Fujii’s sworn statement should be disregarded,
rather it is “the function of the finder-of-fact to weigh the
evidence presented by the parties as to the accuracy of
the proffered translation and to determine the reliability
of the translation on the basis of that evidence.” United
States v. Zambrana, 841 F.2d 1320, 1337 (7th Cir. 1988).
Fujii challenged Ha’s linguistic abilities on cross-exam-
ination and attempted to demonstrate to the jury why
it should have found Ha’s translations untrustworthy, and
the jury was not convinced. Thus, we decline to second-
guess this credibility determination on appeal. See United
States v. Wimberly, 79 F.3d 673, 676 (7th Cir. 1996) (“Where
a sufficiency of the evidence challenge is based on witness
credibility, we defer to the jury’s determination absent
‘extraordinary circumstances.’ ”).
Finally, Fujii contends that his second sworn state-
ment should have been disregarded because the govern-
ment failed to present sufficient, independent evidence
to corroborate this sworn statement. In Jackson, the
defendant argued that because the only evidence adduced
at trial to establish the “agreement” necessary for a con-
spiracy came from his own statement, the government’s
evidence did not independently establish an “agreement,”
and therefore, there was insufficient evidence to sustain his
conviction. See 103 F.3d at 567. In response, we explained:
In this circuit, when an appellant challenges the suf-
ficiency of the evidence, alleging that the conviction
1
Notably, Fujii does not allege that the district court erred in
admitting Ha’s translation nor does he challenge Ha’s qualifica-
tions.
10 No. 01-3455
was based solely on his own statements, we will up-
hold the conviction if there is substantial independent
evidence which would tend to establish the trustworthi-
ness of the statement . . . . [E]stablishing such trustwor-
thiness does not require independent proof of each
element of the offense charged.
Id. (citations and quotations omitted) (emphasis in origi-
nal). In other words, all that is necessary is for the gov-
ernment to present “extrinsic evidence tending to corrob-
orate the confession, [and then] the confession as a whole
is admissible, and some elements of the offense may be
proven entirely on the basis of [the] corroborated confes-
sion.” United States v. Trombley, 733 F.2d 35, 38 (6th Cir.
1984). Fujii’s argument overstates the extent of independ-
ent evidence necessary to corroborate his sworn statement.
As demonstrated in our analysis above, the government
presented more than sufficient evidence to corroborate
Fujii’s sworn statement, including evidence that all four
individuals reserved and purchased their tickets togeth-
er, evidence that all four individuals used fraudulent
Japanese passports, and evidence that the three Chi-
nese nationals were attempting to dispose of their fraud-
ulent passports upon their arrival in the United States.
III. Conclusion
For the foregoing reasons, we AFFIRM.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—8-20-02