U.S. v. Li

• Decision Date: 07 December 1999
• Docket Number: 97-2413,Nos. 97-2034,98-1229,98-1230,98-1303,98-1447,s. 97-2034
• Citation: 2000 WL 217891,206 F.3d 56
• Parties: (1st Cir. 2000) UNITED STATES, APPELLEE, v. NAI FOOK LI, DEFENDANT, APPELLANT. UNITED STATES, APPELLEE, v. YIU MING KWAN, DEFENDANT, APPELLANT. UNITED STATES, APPELLEE, v. JU LIN, DEFENDANT, APPELLANT. UNITED STATES, APPELLEE, v. BEN LIN, DEFENDANT, APPELLANT. UNITED STATES, APPELLEE, v. HUI LIN, DEFENDANT, APPELLANT. UNITED STATES, APPELLEE, v. MAO BING MU, DEFENDANT, APPELLANT. UNITED STATES, APPELLEE, v. SANG LI, DEFENDANT, APPELLANT. , and 98-1448. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 56

206 F.3d 56 (1st Cir. 2000)

UNITED STATES, APPELLEE, v. NAI FOOK LI, DEFENDANT, APPELLANT.

UNITED STATES, APPELLEE, v. YIU MING KWAN, DEFENDANT, APPELLANT.

UNITED STATES, APPELLEE, v. JU LIN, DEFENDANT, APPELLANT.

UNITED STATES, APPELLEE, v. BEN LIN, DEFENDANT, APPELLANT.

UNITED STATES, APPELLEE, v. HUI LIN, DEFENDANT, APPELLANT.

UNITED STATES, APPELLEE, v. MAO BING MU, DEFENDANT, APPELLANT.

UNITED STATES, APPELLEE, v. SANG LI, DEFENDANT, APPELLANT.

Nos. 97-2034, 97-2413, 98-1229, 98-1230, 98-1303, 98-1447, and 98-1448.

United States Court of Appeals, First Circuit

Heard December 7, 1999

Decided February 29, 2000

George F. Gormley and Edward P. Ryan, Jr., with whom George F. Gormley, P.C., Paul J. Garrity, O'Connor & Ryan, Chris H. Mangos, Charles W. Rankin, Catherine J. Hinton, Rankin & Sultan, Sara A. Rapport, Perkins, Smith & Cohen, and Heidi B. Shore were on brief for appellants.

William J. Aceves, Martin J. Newhouse, and Ropes & Gray on brief for the Human Rights Committee of The American Branch of the International Law Association, amicus curiae.

Thomas H. Speedy Rice, John T. Lu, Jean Terranova, and Silverglate & Good on brief for the National Association of Criminal Defense Lawyers, Massachusetts Association of Criminal Defense Lawyers and Amnesty International, amicus curiae.

Deborah Watson, Attorney, with whom Donald K. Stern, United States Attorney, Alex Whiting, Assistant United States Attorney, and Susan Hanson-Philbrick, Assistant United States Attorney, were on brief for appellee.

Before Torruella, Chief Judge, Selya, Boudin, Lynch, Stahl, and Lipez, Circuit Judges.

Stahl, Circuit Judge.

OPINION EN BANC

Defendants-appellants Hui Lin, Nai Fook Li, Yiu Ming Kwan, Ju Lin, Mao Bing Mu, Sand Li, and Ben Lin (the "appellants") appeal their convictions and sentences, which arose from a failed attempt to smuggle Chinese aliens into the United States. This opinion addresses their claim that the convictions and sentences should be overturned because the United States violated their purported rights under two international treaties.¹ We hold that even if the treaties granted individual rights to the appellants, the remedies they seek would be unavailable. Therefore, we reject the treaty-based challenges. A companion opinion issued today by the panel that originally heard the appeals addresses the various other claims raised by the appellants.

Factual Background

In December, 1995, Yiu Ming Kwan, a Chinese national, met in Boston with Michael Rendon, whom he believed owned a boat which could be hired to meet a freighter transporting illegal aliens from the People's Republic of China ("China") to the United States. Rendon was actually an undercover agent of the Immigration and Naturalization Service ("INS"). At the first meeting, Kwan told Rendon that his associates wished to smuggle about 100 illegal aliens into the United States. Rendon proposed a price of $500,000 to meet the smugglers' ship at sea, take in the aliens, and bring them into the United States on his vessel. After this preliminary discussion, Kwan asked Rendon to meet him and two associates at Logan International Airport the following day.

The next day, Rendon, along with Coast Guard Agent Rick Cox and two other agents, brought Kwan, Hui Lin, and another male -- the latter two also Chinese nationals -- to view Rendon's craft. The vessel had a fifty-foot hold with a single light and a partial wooden plank floor. The hold contained no tables, chairs, windows, bathroom, or kitchen. The smugglers told the agents they were satisfied with the boat's accommodations.

On July 22, 1996, Rendon and Cox met with Kwan, Hui Lin, Nai Fook Li, and an unidentified man. At this meeting a site about 180 miles north of Bermuda was chosen as a rendezvous point. A discussion ensued about the spartan conditions in the hold of Rendon's vessel, and Hui Lin stated that the aliens "will have to sit there" and would not be able to sleep for the two days it would take for the craft to return to port. Nai Fook Li told Rendon that life jackets for each smuggled alien would not be necessary. Rendon sought and received assurances that the smugglers would assign individuals to his ship to control the aliens. A final price of $500,000 was agreed upon for the offloading of 120 aliens, plus $4,000 for each additional person. The smugglers also agreed to pay a $35,000 deposit to cover Rendon's expenses.

Meanwhile, defendant Sang Li and others contacted individuals in China offering passage to the United States. Sang Li quoted prices between $20,000 and $30,000 per person, to be lent to the emigrants at very high interest rates. On or about August 11, 1996, those who took up the offer were loaded into the XING DA, a 210-foot freighter that had previously carried agricultural chemicals. Among the passengers were Sang Li, Mao Bing Mu, Ju Lin, and Ben Lin.

Eighty-three aliens were confined to the XING DA's hold for approximately 54 days as the ship traveled to the Bermuda rendezvous. Food in the hold consisted of buckets of rice and turnips lowered below twice each day. About once every ten days, each emigrant was given one bottle of water. The aliens were allowed above deck to use the bathrooms only during the daytime. The living area, which was never cleaned, thus became littered with urine and feces. Apparently, Sang Li and Mao Bing Mu directed one of the aliens on four or five occasions to ladle the human waste into a bucket. Several times, aliens in the hold attempted to steal additional food and water. Those who were caught were beaten. One alien as punishment was denied food for two days. Twenty-six of the passengers lived above deck.

Kwan kept Rendon apprised of the XING DA's position. On September 23, 1996, Rendon and Cox met with Kwan, Hui Lin, and Nai Fook Li. Li gave Cox the XING DA's current location and told him that approximately 120 people would be transferred from the XING DA to Rendon's vessel. Li agreed to board Rendon's vessel to help control the passengers. The men met again on September 25, 1996 and decided that Rendon's vessel would leave port on September 28 to meet the XING DA. Lin gave $5,000 to Nai Fook Li, who then gave it to Rendon to be used to obtain temporary shelter for the passengers upon arrival in the United States. At Cox's request, Hui Lin provided him another $1,000 for food. On September 27, 1996, the five men met again, and Hui Lin gave Rendon $29,000 to complete the deposit. It was agreed that the aliens would live in a warehouse until the defendants had paid the remainder of the $500,000 to Rendon, at which time the aliens would be taken to New York City.

On September 28, 1996, Rendon, Cox, Nai Fook Li, and four undercover agents apparently posing as Rendon's crew departed in the vessel heading for the rendezvous with the XING DA. The agents also had arranged for a Coast Guard cutter to trail their boat and intercept the XING DA.

On October 2, 1996, a different Coast Guard cutter -- the RELIANCE -- spotted the XING DA and followed it for about three miles. After the RELIANCE crew attempted to make contact several times, the XING DA finally responded and consented to be boarded by the Coast Guard. Officer Patrick Hilbert and seven other Coast Guard officers boarded the XING DA. When Hilbert asked who was in charge, Ju Lin represented that he was the ship's master. After Hilbert viewed the ship's documentation, a second boarding party came on board and discovered the eighty-three aliens in the hold.

The XING DA was taken to Bermuda. During this trip, the XING DA's crew retained operational control, and Ben Lin steered and handled the navigation. All aboard the XING DA were offloaded in Bermuda and flown to Guantanamo Bay, Cuba, where they were interviewed by INS officers. During the week of November 18, 1996, after negotiations between the United States Department of State and the government of China, ninety-three aliens were repatriated and returned to China.

Meanwhile, on October 3, 1996, Hui Lin, Yiu Ming Kwan, and Nai Fook Li (the "land-based defendants") were arrested, and on October 8, 1996, an indictment was returned against them. On November 5, 1996, a superceding indictment was returned, adding Ju Lin, Ben Lin, Mao Bing Mu, and Sang Li (the "shipboard defendants") as defendants. The shipboard defendants, who had been detained at Guantanamo, were arrested on November 15, 1996 and were provided with counsel five days later. A final superceding indictment was issued on March 18, 1997, charging all defendants with (1) conspiracy to bring aliens into the United States for purposes of commercial advantage, in violation of 18 U.S.C. § 371; (2) alien smuggling in violation of 8 U.S.C. § 1324(a)(2)(B)(ii); (3) conspiracy to bring aliens into the United States at a place other than a designated port of entry in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(II); and (4) attempting to bring aliens into the United States at a place other than a designated port of entry in violation of 8 U.S.C. §§ 1324(a)(1)(A)(i), (v)(II).

On March 27, 1997, all seven defendants moved to dismiss the indictment on the grounds that the government failed to comply with the provisions of (1) Article 36 of the Vienna Convention on Consular Relations, April 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261, 1967 WL 18349 (ratified November 24, 1969) (the "Vienna Convention") and (2) Article 35 of the United States - People's Republic of China Bilateral Convention on Consular Relations, September 17, 1980, 33 U.S.T. 2973, 1982 WL 212240 (ratified February 19, 1982) (the "Bilateral Convention"). The shipboard defendants subsequently moved, on the same grounds, to suppress (1) all physical evidence seized from the XING DA; (2) all identifications made by any Chinese national who had not been notified of his or her purported rights under the treaties; and (3) all testimony regarding the events of the voyage by any Chinese national who had not been...