U.S. v. Hsieh Hui Mei Chen

• Decision Date: 25 February 1985
• Docket Number: Nos. 83-1143,83-1159,s. 83-1143
• Citation: 754 F.2d 817
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. HSIEH HUI MEI CHEN and Tsang-Chi Chen, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 817

754 F.2d 817

UNITED STATES of America, Plaintiff-Appellee, v. HSIEH HUI MEI CHEN and Tsang-Chi Chen, Defendants-Appellants.

Nos. 83-1143, 83-1159.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 9, 1984.

Decided Feb. 25, 1985.

Jon R. Cooper, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellee.

John H. Messing, Tucson, Ariz., for defendant-appellant Hsieh Hui Mei Chen.

John G. Bogart, Gerson & Bogart, Tucson, Ariz., for defendant-appellant Tsang-Chi Chen.

Appeal from the United States District Court for the District of arizona.

Before TANG, CANBY, and BEEZER, Circuit Judges.

BEEZER, Circuit Judge:

Hsieh Hui Mei Chen ("Amey") and Tsang-Chi Chen ("James") appeal their convictions on several counts of bribery and aiding and abetting another to commit bribery. We affirm in part, reverse in part, and remand.

FACTS

The Chens owned a Chinese restaurant in Tucson, Arizona. They had both been in the United States for approximately five years on non-immigrant visas from Taiwan. United States Border Patrolman Theodore Nordmark went to the Chens' restaurant in July 1982, where he attempted to arrest illegal aliens. On August 5, 1982, Amey Chen called Nordmark and told him that if he stayed away from her restaurant she would make it "good" for him. Nordmark told this to his supervisor, and it was decided that Nordmark would tape record his meetings with Amey Chen.

Between August 20 and October 6, Agent Nordmark met with Amey ten times, primarily to discuss illegally obtaining immigration documents. Amey's husband, James Chen, was present at five of these meetings. Several payments ranging between $100.00 to $500.00 were made at the meetings. Moreover, Amey Chen made two $1,000.00 payments to William Johnston, the director of the Immigration and Naturalization Service ("INS"), to obtain a green card for her cook.

On December 7, 1982, Amey was indicted on twelve counts of bribery or aiding and abetting bribery of INS officials, Ted Nordmark and William Johnston, in violation of 18 U.S.C. Secs. 201(b)(2) and (3). James Chen was charged in the same indictment with four counts of bribery or aiding and abetting bribery.

ANALYSIS

I. Entrapment

The Chens contend that they were either entrapped as a matter of law or that the evidence was insufficient to support a finding of predisposition to commit the crime. They therefore argue that their motions for judgment of acquittal were improperly denied and that the trial judge erred in denying James' motion for a new trial.

a. Standard of Review

On appeal, this court must determine, after reviewing the evidence in the light most favorable to the government, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Federico, 658 F.2d 1337, 1343 (9th Cir.1981). Moreover, in reviewing the denial of a motion for a new trial, this court applies an abuse of discretion standard and will only grant such a motion in exceptional circumstances in which the evidence weighs heavily against the verdict. United States v. Pimentel, 654 F.2d 538, 545 (9th Cir.1981).

b. Entrapment as a Matter of Law

In order to show that entrapment exists as a matter of law, there must be undisputed testimony making it patently clear that an otherwise innocent person was induced to commit the act complained of by trickery, persuasion, or fraud of a government agent. United States v. Rangel, 534 F.2d 147, 149 (9th Cir.), cert. denied, 429 U.S. 854, 97 S.Ct. 147, 50 L.Ed.2d 129 (1976); see United States v. Abushi, 682 F.2d 1289, 1297 (9th Cir.1982). The controlling question on review is whether the defendant lacks the predisposition to commit the act. Id. at 1297.

With regard to Amey Chen, there was clearly no entrapment as a matter of law. She contacted Nordmark and told him that if he stayed away from her restaurant she would do something good for him.

                This initial statement to Nordmark shows a predisposition to commit bribery.   See United States v. Tatar, 439 F.2d 1300, 1302 (9th Cir.1971).  Although Amey did not engage in the activity for profit and had a good reputation for honesty, the fact that the initial suggestion of bribery came from her shows she was predisposed to commit the crime
                

As to James, there was no evidence showing that he was not predisposed to commit the crime. There was no evidence that James was reluctant to pay Nordmark or that Nordmark had to use undue inducements. Although James did not initiate contact, he acquiesced in the meetings set up with Nordmark. There was, therefore, no entrapment as a matter of law and it was proper to submit the issue to the jury.

c. Sufficiency of the Evidence

There was also sufficient evidence to support the jury's finding that the defendants were predisposed to commit the crimes charged. As to Amey, there was repeated evidence that she gave Nordmark money or was present when others did. Moreover, Amey's own statements show that she knew her conduct was illegal.

In James's case, he was repeatedly informed by Nordmark that the law would have to be broken to obtain the green cards. Furthermore, Nordmark used no undue inducements and James was at several of the meetings when money was received by Nordmark. Moreover, James assured Nordmark that they, the Chens, did not keep records of their payments to him, because Chinese people know not to do that.

II. Elements of the Crime

a. Corrupt Intent

The crime of bribery requires that an individual corruptly give money to an official to influence him or her in the performance of his or her duties. 18 U.S.C. Sec. 201(b). Thus, bribery requires "corrupt intent," which is a higher degree of intent than is required under the provision outlawing gratuities to public officials. United States v. Strand, 574 F.2d 993, 995 (9th Cir.1978). Both James Chen and Amey Chen contend that the evidence was insufficient to show corrupt intent.

We find that there was sufficient evidence to support the jury's finding that the Chens had the requisite corrupt intent. Amey initially indicated that she would do something for Nordmark if he would do something for her. Her own statements show that she was aware of the illegality of the transaction. Similarly, Nordmark repeatedly told James that the law would have to be broken to obtain the green cards. Because James was present when money was given to Nordmark on several occasions, a jury could reasonably find that he knew that Nordmark was being paid to obtain the cards in violation of the law.

b. Gratuity in Count 10

Count 10 is based on the payment of $100 by Pao Shih to Nordmark in the presence of Amey Chen. Amey contends that the $100 was a mere gratuity because Pao Shih had already paid Nordmark the full price of $500. Although Nordmark testified that the payment was a tip, he gave Pao Shih her temporary immigration card at that meeting. Thus, a reasonable jury could find that the payment was for the service Nordmark provided.

III. Severance

The trial court denied James Chen's motion for a severance of his trial from that of Amey Chen. James contends that this was an abuse of discretion.

First, James contends that the district court's decision prevented him from testifying in his own behalf due to Amey's privilege against adverse spousal testimony. See United States v. Lefkowitz, 618 F.2d 1313, 1317-18 (9th Cir.), cert. denied, 449 U.S. 834, 101 S.Ct. 86, 66 L.Ed.2d 27 (1980). This argument was not raised in the district court and is not properly before this court. See United States v. Saavedra, 684 F.2d 1293, 1297 (9th Cir.1982). Even if Second, James contends that the denial of the severance was unfairly prejudicial because the jury could not separate the evidence against Amey from the evidence against him. The standard of review for a denial of a motion to sever is abuse of discretion. United States v. Abushi, 682 F.2d 1289, 1296 (9th Cir.1982). The burden falls on the defendant to show that the prejudice was so manifest as to constitute an abuse of discretion. United States v. Armstrong, 621 F.2d 951, 954 (9th Cir.1980). The ultimate issue is whether the jurors could follow the court's instructions and appraise the evidence against each defendant separately. United States v. Rasheed, 663 F.2d 843, 854 (9th Cir.1981), cert. denied, 454 U.S. 1157, 102 S.Ct. 1031, 71 L.Ed.2d 315 (1982). Although the jurors were properly instructed to keep the evidence separate, James contends that a note from the jury to the judge shows that the jurors could not separate the evidence. In fact, the note shows that the jury was aware of the need to separate the evidence. In the absence of any evidence that the jury actually confused the evidence, James has failed to meet his burden of proving that the denial of his motion was manifestly prejudicial.

                it had been raised properly, it would be meritless because James was not prevented from testifying.   Trammel v. United States, 445 U.S. 40, 53, 100 S.Ct. 906, 913, 63 L.Ed.2d 186 (1980) (holding that the privilege can only be asserted by the witness-spouse)
                

IV. Evidentiary Rulings

a. Expert on Chinese Customs

The district court refused to receive the testimony of an expert on Taiwanese customs, who would have testified that persons of Asian extraction are more susceptible to inducement by government officials, because the defendants had not established an adequate foundation. This court may only overturn that ruling upon finding an abuse of discretion. United States v. Hanigan, 681 F.2d 1127, 1131 (9th Cir.1982), cert. denied, 459 U.S. 1203, 103 S.Ct. 1189, 75 L.Ed.2d 435 (1983). If the testimony of the expert had been based on a personal examination of the Chens, we would give the matter more serious consideration. See United States v. Hill, 655 F.2d 512, 516 (3d Cir.1981), cert. denied, --- U.S. ----, 104 S.Ct. 699, 79 L.Ed.2d 165 (...