U.S. v. Zhou
| Decision Date | 01 November 2005 |
| Docket Number | Docket No. 03-1575(L).,Docket No. 03-1610(CON). |
| Citation | 428 F.3d 361 |
| Parties | UNITED STATES of America, Appellee, v. Xiao Qin ZHOU aka Viet Guy aka Viet Boy aka Vietnamese Boy, Lin Li aka Yi Jun aka Crazy Chung, Chun Rong Chen aka Yi Non, Li Wei aka Yi Guan, Li Xin Ye aka Pai Fot, and Hing Wah Gau aka Yi Hei, Defendants, Chen Zi Xiang aka Yi Soon aka Yi Soon Gang and Lin Xian Wu aka Ah Oo, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Second Circuit |
Leslie C. Brown, Assistant United States Attorney (David N. Kelley, United States Attorney for the Southern District of New York, Katherine Polk Failla, Assistant United States Attorney, on the brief), New York, NY, for Appellee.
Sanford Talkin, Talkin, Muccigrosso & Roberts, L.L.P., New York, NY, for Defendant-Appellant Chen Xiang.
Ellyn I. Bank, Esq. (James M. Branden, of counsel, on the brief), New York, NY, for Defendant-Appellant Lin Xian Wu.
Before: MINER and CALABRESI, Circuit Judges, and AMON, District Judge.*
Defendants-appellants, Chen Xiang ("Chen") and Lin Xian Wu ("Lin") (collectively, "Appellants"), appeal from judgments of conviction entered in the United States District Court for the Southern District of New York (Casey, J.), following a jury trial, convicting each of the Appellants, under a superseding indictment, of one count of conspiracy to commit extortion, in violation of 18 U.S.C. § 1951 ("Count One"); one count of extortion, in violation of 18 U.S.C. §§ 2 and 1951 ("Count Two"); three counts of conspiracy to commit robbery, in violation of 18 U.S.C. § 1951 ("Counts Four, Seven, and Ten"); three counts of robbery, in violation of 18 U.S.C. §§ 2 and 1951 ("Counts Five, Eight, and Eleven"); and four counts of using, carrying, and possessing a firearm during and in relation to participation in the charged extortion, robberies, and conspiracies to commit extortion and robbery, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) ("Counts Three, Six, Nine, and Twelve").
Appellants contend that the evidence adduced at trial to prove their guilt in connection with the charged counts of extortion and of conspiracy to commit extortion was insufficient as a matter of law. We agree and, accordingly, reverse the convictions of Appellants under Counts One and Two. Appellants also contend that as a consequence of the legal insufficiency of the extortion-related evidence, the convictions of Appellants for using, carrying, and possessing a firearm during and in relation to the charged extortion and conspiracy to commit extortion also must be reversed. We agree with Appellants in this regard, too, and accordingly reverse the convictions of Appellants under Count Three.1 Finally, in view of these reversals, we remand for resentencing. We affirm the judgments of the District Court in all other respects.
On August 12, 2002, Appellants were charged in a superseding indictment (the "Indictment") as follows: Count One charged Appellants with conspiring to commit extortion, in violation of 18 U.S.C. § 1951. Count Two charged Appellants with extortion, in violation of §§ 2 and 1951. Count Three charged Appellants with using a firearm during and in relation to the crimes charged in Counts One and Two, in violation of § 924(c)(1)(A)(ii). Counts Four, Seven, and Ten charged Appellants with conspiring to commit robbery, in violation of § 1951. Counts Five, Eight, and Eleven charged Appellants with robbery, in violation of §§ 2 and 1951. And finally, Counts Six, Nine, and Twelve charged Appellants with using a firearm during and in relation to the crimes charged in Counts Four, Five, Seven, Eight, Ten, and Eleven, in violation of § 924(c)(1)(A)(ii).
The charges in the Indictment have their genesis in a series of robberies and related incidents that occurred in Manhattan's "Chinatown" during a six-month period between the summer of 2001 and the early months of 2002.2 The first such incident occurred in or around July 2001 at 75 Eldridge Street — an illegal gambling parlor located behind a clothing store.3 On or about July 23, 2001, at approximately 6:00 p.m., an unknown caller telephoned Chen Tin Hua ("Hua"), a "shareholder" in the gambling operation, and identified himself as being associated with "Vietnamese Boy" — presumably, co-defendant/cooperating witness Xiao Qin Zhou ("Xiao"). The caller stated that Vietnamese Boy would come to the gambling parlor later that day to pick up $10,000, which the caller instructed Hua to place in a red envelope. Hua told the caller that he had no money and hung up.
Later that evening, while in the parlor, Hua was summoned outside by a group of men demanding to speak with him. Awaiting Hua were Appellants — Chen and Lin — along with Xiao and co-defendant Li Wei. All four pointed guns at Hua, and Xiao demanded that he give them $10,000. Hua told the group that he had no money. Xiao struck Hua on the head, and Li Wei, using his gun, struck Hua in the stomach. Xiao then ripped a necklace from around Hua's neck, and the group fled the scene in a vehicle.
Following this foray, the gang began to terrorize the neighborhood systematically. On or about September 30, 2001, Appellants, together with Xiao and co-defendant Li Xin Ye, robbed an illegal gambling parlor located at the back of a barbershop at 21 Eldridge Street, again using guns, and this time making off with more than $10,000.
On or about November 21, 2001, Chen, Lin, Xiao, and co-defendants Chun Rong Chen and Hing Wah Gau attempted to rob the illegal gambling parlor at 75 Eldridge Street but failed because they could not gain entry. Later that same day, the same gang succeeded in robbing another such parlor — this one located inside a florist shop at 109 East Broadway. The five had split up earlier in the day, and only Chen, Xiao, and Chun Rong Chen actually entered the 109 East Broadway gambling parlor during the robbery. Afterwards, however, the five gangsters reconvened and split the $3000 "take" from the robbery.
Finally, on January 23, 2002, Appellants, Xiao, and co-defendant Lin Li robbed an illegal gambling parlor located at the back of a barbershop at 85 Allen Street. Chen and Lin Li entered the gambling parlor first, followed by Lin and Xiao. Appellants and Lin Li, brandishing guns, announced a robbery and the four then proceeded to make off with approximately $10,000. During the robbery, Lin Li pistol-whipped one of the victims in the head.
Prior to trial, the Government moved to admit the testimony of Xiao, Chun Rong Chen, and Li Xin Ye that, between 2000 and 2002, they participated with Appellants in fourteen robberies that were not charged in the Indictment. The Government offered the testimony to demonstrate the criminal relationships among the Appellants and the cooperating witnesses. The Government also sought to introduce this evidence, pursuant to Federal Rule of Evidence Rule 404(b), to prove Appellants' knowledge, intent, preparation, and plan. Appellants did not object to any of the purposes for which the Government offered the evidence of the prior acts, but sought to exclude the evidence on the grounds that the probative value of the evidence was substantially outweighed by its potential for prejudice. Appellants argued (i) that the evidence would "convince the jury of [Appellants'] propensity to commit crimes and lead [the jury] to `punish the bad m[e]n' rather than deliberate upon the facts of the charged crime" and (ii) that "the danger of the jury inferring `propensity' to commit the same kind of criminal acts as those charged [was] just to[o] great to justify admission for the purposes set forth by the [G]overnment."
Thereafter, the Government, "in an effort to streamline the trial," amended its motion so as to request admission of evidence relating to only six of the fourteen prior acts.4 The Government also sought to introduce the plea allocution of co-defendant Li Wei — as a statement against penal interest, pursuant to Federal Rule of Evidence 804(b)(3) — to prove the existence of the extortion conspiracy charged in Count One of the Indictment. Chen objected to the admission of the plea allocution on Rule 403 grounds. At a conference held on May 15, 2003, the District Court heard argument on the Government's motion to admit the six prior uncharged crimes and the plea allocution of Li Wei, and on the motions of Appellants to preclude certain evidence.
On May 16, 2003, in a six-page unpublished Memorandum Decision and Order, the District Court denied the preclusion motions of Appellants and granted the Government's motion to admit (i) the plea allocution of Li Wei and (ii) evidence of the prior uncharged crimes. Regarding the plea allocution, the District Court noted that Li Wei had already been sentenced and that, if asked to testify, he would assert his Fifth Amendment privilege. Thus, the court found, Li Wei was unavailable within the meaning of Federal Rule of Evidence 804. Moreover, the court found, a plea allocution qualified as a declaration against penal interest under Rule 804.
Regarding the uncharged-crimes evidence, the court found that the prior uncharged crimes were no more inflammatory than the crimes charged in the Indictment and, moreover, would not have a cumulative effect because the Government sought "to introduce evidence of uncharged crimes that occurred a short period before the charged crimes and [that] were therefore part of the same transaction or series of events." The court found that the crimes were "remarkably similar" to the charged crimes but that, "[i]nasmuch as there [was] any prejudice to defendants, it [was] outweighed by the probativeness [sic] of the uncharged crimes evidence." The court further found that the Government intended to use the facts of the uncharged crimes "as background evidence of the...
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