U.S. v. Moe, s. 1123

• Decision Date: 05 September 1995
• Docket Number: Nos. 1123,D,1124,s. 1123
• Citation: 65 F.3d 245
• Parties: UNITED STATES of America, Appellee, v. Zaw MOE, Defendant, Amir Humuntal Lubman Tobing, San Lwin, Defendants-Appellants. ockets 95-1419 to 1422.
• Court: U.S. Court of Appeals — Second Circuit

Page 245

65 F.3d 245

UNITED STATES of America, Appellee, v. Zaw MOE, Defendant Amir Humuntal Lubman Tobing, San Lwin, Defendants-Appellants.

Nos. 1123, 1124, Dockets 95-1419 to 1422.

United States Court of Appeals Second Circuit.

Argued March 21, 1995.

Decided Sept. 5, 1995.

Alan Drezin, Brooklyn, NY (Office of Alan Drezin, of counsel), for defendant-appellant Tobing.

Joel R. Weiss, Manhasset, NY (Law Office of Joel R. Weiss, of counsel), for defendant-appellant Lwin.

Judith Lieb, Assistant U.S. Attorney, Brooklyn, NY (Zachary W. Carter, U.S. Attorney, Julie Katzman, Assistant U.S. Attorney, of counsel), for appellee.

Before: OAKES, KEARSE and LEVAL, Circuit Judges.

OAKES, Senior Circuit Judge:

Amir Tobing and San Lwin appeal from judgments of conviction entered on July 20, 1994, and July 28, 1994, by the United States District Court for the Eastern District of New York, Reena Raggi, Judge, after their guilty pleas to one count of conspiring to smuggle aliens into the United States in violation of 18 U.S.C. Sec. 371 and 8 U.S.C. Secs. 1324 & 1325. Tobing was sentenced to 48 months' imprisonment, and Lwin to 54 months.

In imposing both sentences, the district court upwardly departed pursuant to Application Note 5 of the alien smuggling guideline, U.S.S.G. Sec. 2L1.1, which provides that an upward departure may be warranted "[i]f the offense involved dangerous or inhumane treatment, death or bodily injury, possession of a dangerous weapon, or substantially more than 100 aliens." Tobing and Lwin appeal, challenging both the factual underpinnings of the departures and the magnitude of the upward adjustments. We affirm both sentences.

Background

Amir Tobing and San Lwin were each, at different times, captain of a cargo ship called the Golden Venture, which traveled from Singapore, Thailand and Kenya to the shores of New York smuggling over 290 Chinese nationals in its hold. The boat was intentionally grounded off the Gateway National Recreation Area in Queens in turbulent waters, and ten of the passengers died trying to swim ashore.

I. The Voyage

The smuggling scheme began in January 1993, when a smuggler known as "Charlie" arranged for the purchase of the Golden Venture to be used for transporting Chinese nationals to the United States. Charlie leased space on the boat to other smugglers known as "snakeheads." The snakeheads, in turn, recruited passengers for the voyage. The average smuggling fee per passenger was approximately $30,000. Charlie planned that the Golden Venture would set sail from Bangkok, Thailand, pick up approximately 150 Chinese nationals off the coast of Thailand, and then travel to Mombasa, Kenya, where it would pick up 200 additional Chinese nationals.

A man named Kin Sin Lee who worked for Charlie was placed in charge of the Golden Venture. In January 1993, Kin Sin Lee went to Singapore to finalize the purchase of the boat. Through a shipping agent in Singapore, Charlie hired a full crew of twelve Indonesian seamen, headed by defendant Tobing, who was named captain. Kin Sin Lee and the crew sailed the Golden Venture from Singapore to Bangkok.

When the ship arrived in Bangkok, six of the crew members resigned and were replaced with seven Burmese seamen, including the defendant San Lwin, who was made first officer. According to Kin Sin Lee, Lwin represented the Burmese crew members in discussions concerning their employment. This was corroborated by Zaw Moe, one of the Burmese crew members, and by Lwin himself, in an unmailed letter he wrote to his wife during the voyage.

Kin Sin Lee testified that before the boat left Bangkok, he informed the crew that the purpose of the voyage was to transport Chinese nationals to the United States. He specifically told them that the vessel was to pick up one set of Chinese nationals off the coast of Thailand and another set which had been stranded in Africa. Crew members were offered substantial bonuses for their participation in the illegal activity. Tobing was to receive a salary of $2,000 per month plus a $40,000 bonus if the enterprise succeeded. Lwin was to receive $1,600 per month--double his usual monthly salary--plus an $8,000 bonus for successful completion of the voyage.

The Golden Venture sailed from Bangkok in February 1993, carrying Kin Sin Lee, Captain Tobing, First Officer Lwin and the eleven other crew members. A few days later, approximately ninety Chinese passengers--about sixty less than anticipated--boarded the boat offshore near Pattaya, Thailand. The boat then traveled to Mombasa, Kenya, where approximately 200 more Chinese nationals boarded the boat as scheduled. At this point in the voyage, Kin Sin Lee recruited twelve of the passengers to act as managers to help him maintain order.

Conditions on the Golden Venture, which was designed to carry cargo, were wretched. While the crew members, including Tobing and Lwin, enjoyed their own cabins and use of a private kitchen, the nearly 300 passengers were crammed into the forty-foot-by-twenty-foot hold of the vessel. A single stationary ladder provided access to the deck. No life boats or life preservers were available. Water and food were severely rationed. The single toilet on board was reserved for Kin Sin Lee, Tobing, Lwin, and the eleven other crew members, and the twelve Chinese managers, as well as the few female passengers, while the male passengers were required to use the deck of the boat as a latrine.

During the initial phase of the voyage, Captain Tobing, under the direction of Kin Sin Lee, was in charge of the crew. Zaw Moe testified, however, that the Burmese crew members received most of the captain's orders through San Lwin. Additionally, Kin Sin Lee testified that he generally spoke to Lwin directly in matters relating to the Burmese crew members.

Several weeks after the Golden Venture left Mombasa, a series of events transpired which culminated in the violent removal of Captain Tobing from his command. The boat sailed from Mombasa to a designated point in the Atlantic Ocean where it was scheduled to rendezvous with smaller boats which would ferry the passengers to the United States. When no boats arrived, Kin Sin Lee tried to pressure the shore-based snakeheads into sending boats by falsely informing them that food and fuel supplies were low. Instead of sending out boats, however, the snakeheads arranged for the Golden Venture to obtain additional supplies on the island of Madeira before attempting another mid-Atlantic rendezvous.

Kin Sin Lee testified that Captain Tobing favored the trip to Madeira because he believed that, once in Madeira, they could lure one of Charlie's employees aboard and hold him hostage until the smaller boats were dispatched. Kin Sin Lee further testified, however, that he (Lee) believed that if the boat turned back east toward Madeira the passengers would revolt. Thus, Kin Sin Lee testified, he consulted with the twelve Chinese managers and together they plotted to take over the boat from Captain Tobing.

The "mutiny" took place on May 17, 1993. Kin Sin Lee provided the managers with a gun, six knives and three sticks to use in the mutiny. He told the managers to guard the captain with a gun and to kill him if necessary. During the mutiny, the crew was handcuffed by the managers and guarded by men wielding knives and sticks. Captain Tobing and the chief engineer were relieved of their duties for the duration of the voyage.

After the mutiny, Kin Sin Lee presented First Officer Lwin with two options: Lwin could continue on the voyage, essentially as a passenger, and remain unharmed, or he could take on the position of captain and be guaranteed his salary and bonus. According to Kin Sin Lee's testimony, San Lwin accepted Lee's offer and was named captain.

Lwin sailed the Golden Venture west toward New York harbor. As they sailed, Kin Sin Lee contacted Charlie and was informed that the small boats would not be meeting them. He was instructed to sail to New York harbor and moor in the East River. Lwin objected to this plan, and some snakeheads instructed Lee to sail instead to Rockaway Point and run the ship aground. Lwin's only question at this stage was whether Rockaway Point had a sandy bottom, and Charlie confirmed that it did.

The passengers were given special instructions in preparation for the grounding. They were told to crouch down on the floor of the hold at the moment of impact. They were also told that, after the grounding, every passenger who knew how to swim should swim to shore. The others were told to stay on board and someone on shore would arrange to have them picked up.

Late in the evening of June 5, 1993, Kin Sin Lee ordered Lwin to run the boat aground. Kin Sin Lee and Lwin instructed the crew to sail full speed to shore, but, at the last minute, Lwin grabbed the helm and turned the ship back, apparently because he had seen a breakwater ahead, making it too dangerous to proceed. From the sea charts, Lwin selected an alternate location that appeared to have a sandy bottom. Lwin sailed the boat to that location, and, under the orders of Kin Sin Lee, ran the boat aground. As soon as the boat hit a sandbar, most of the passengers, as instructed, jumped into the water, and Lwin also jumped overboard and began swimming to shore. The sea was extremely rough, and ten of the people who jumped off the boat eventually drowned or died from hypothermia.

II. The Prosecution

In the months following the grounding, Tobing, Lwin, and ten lower-ranking crew members were indicted for their participation in the smuggling operation. Kin Sin Lee and seven of the Chinese managers were also indicted. On January 5, 1994, Tobing pled guilty to one count of conspiracy to smuggle aliens into the United States in violation of 18 U.S.C. Sec. 371 and 8 U.S.C. Secs. 1324 and 1325, pursuant to a cooperation agreement with the government. On January 13, 1994, Lwin pled guilty to the same count, pursuant to a plea agreement made...