U.S. v. Shan Wei Yu, 06-1273.

• Decision Date: 02 May 2007
• Docket Number: No. 06-1273.,06-1273.
• Citation: 484 F.3d 979
• Parties: UNITED STATES of America, Appellee, v. SHAN WEI YU, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

484 F.3d 979

UNITED STATES of America, Appellee, v. SHAN WEI YU, Appellant.

No. 06-1273.

United States Court of Appeals, Eighth Circuit.

Submitted: March 13, 2007.

Filed: May 2, 2007.

Nicholas W. Chase, Asst. U.S. Attorney, argued, Fargo, ND, for Appellee.

Scott Duncan McGregor, Viken & Viken, argued, Rapid City, SD, for Appellant.

Shan Wei Yu, McRae, GA, pro se.

Before WOLLMAN, JOHN R. GIBSON, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Shan Wei Yu was convicted by a jury of one count of conspiring to transport illegal aliens in violation of 8 U.S.C. § 1324(a)(1) and one count of conspiring to launder money in violation of 18 U.S.C. § 1956(a)(1). The district court¹ sentenced him to 108 months imprisonment. Yu appeals, arguing that the court erred in denying his suppression motion, that the prosecutor engaged in misconduct, that the court should have held a competency hearing, and that his sentence is unreasonable. We affirm.

I.

Yu owned and operated the Great Texas Employment Agency (Great Texas) along with his girlfriend, Ya Cao. Great Texas was in the business of supplying Chinese restaurants in several states with immigrant workers. Yu advertised Great Texas to Chinese restaurant owners through direct mailings and in the Midwest edition of a Chinese periodical, agreeing to supply "Hispanic and Middle Southern American workers" for "odd jobs" or positions such as "dishwashers" or "busboys." Upon receiving an order from a restaurant owner, Great Texas would recruit immigrant workers from Texas, and arrange for their transportation to the restaurants. The driver would collect a $450 fee upon delivery of the worker, keep $300, and transmit $150 to Great Texas. The restaurant owner would then deduct the $450 from the employee's first pay check. Yu testified at trial that Great Texas placed at least 6,000 workers in restaurants since the agency opened in 1998.

Authorities began investigating Yu after a border patrol agent encountered two men riding bicycles on Interstate 29 in North Dakota in June 2004. The two men admitted that they were Mexican citizens who were in the country illegally and who had been working at a Chinese restaurant in Grand Forks, North Dakota. One of the men had an employment contract, written in both Chinese and Spanish, which provided that the employee would receive a salary of $1,000 per month. The contract also listed a 312 area code telephone number for an employment agency.

The Bureau of Immigration and Customs Enforcement (ICE) investigated the matter and obtained a search warrant for the Buffet House restaurant, the former employer for the two men, and the apartment where they were staying. Agents found two more illegal Mexican aliens and similar employment contracts for the two men except their contracts listed a 713 phone number for the employment agency. Agents also found a copy of the World Journal, a Chinese language newspaper, which included an advertisement for Great Texas and the same 312 phone number as found in the first individual's employment contract. Agents arrested the two restaurant owners, who admitted that they preferred to hire illegal aliens.

Agents served administrative subpoenas to telephone companies and learned that the 713 and 312 numbers were both assigned to Yu's home in McKinney, Texas and that there had been 275 phone calls between these numbers and various Chinese restaurants in the previous eight months, including two with other North Dakota restaurants. At one of these restaurants agents found another employee forwarded by Yu who was in the country illegally.

Based on this information, agents obtained and executed a search warrant at Yu's house in Texas where they found numerous employment contracts similar to those discovered in North Dakota. Some of the contracts uncovered in Texas listed different phone numbers for the employment agency, but the new numbers were also assigned to Yu. Agents also uncovered business journals which recorded transactions between Great Texas and numerous Chinese restaurants for the prior fifteen months. Entries in those journals indicated that restaurants had ordered approximately 1,528 workers from Great Texas in that period and that Great Texas had delivered approximately 1,072 workers. Also discovered were records from bank accounts owned jointly by Yu and his girlfriend, Ya Cao, with a total value of about $150,000, comprised almost entirely of cash deposits. In addition there were copies of direct mailings sent to Chinese restaurant owners and of advertisements placed in the World Journal which listed the 713 area code phone number and Ms. Chen (Lily) as the contact person.

Agents asked to interview Yu, and he consented. After receiving his Miranda warnings, Yu explained that he lived at the residence with Ya Cao (whom he referred to as Lily) and that Ya Cao and a Spanish speaking recruiter would go to street corners to find workers to fill requests. He said that he paid $20 for each worker recruited. Yu admitted that some of the workers were illegal but said that he assumed most were legal and that the restaurants would check on the workers' immigration status. He estimated that over the last 30 to 60 days five of the workers placed through Great Texas were in the country illegally. He also explained to the agents how the workers were transported to the restaurants and how each person involved in the operation was paid.

A grand jury indicted Yu on one count of engaging in a conspiracy to transport illegal aliens for private financial gain and commercial advantage and one count of conspiracy to launder money, knowing that the funds involved were proceeds of transporting illegal aliens for financial gain. Many others, including Ya Coa, were charged with similar crimes in connection with Great Texas.

Prior to trial, Yu moved to suppress statements made to the law enforcement agents in Texas, asserting that his statements were not voluntary because he had not comprehended his Miranda warnings. He said that he did not understand his rights because the Miranda warnings were given in English and he was under the influence of prescription medications. The district court concluded that Yu understood English at a sufficient level, pointing to the facts that Yu had written the court letters in English, that Yu had responded to English questions in court, and that Yu had attended an English speaking college and had been in this country for over 20 years. It noted that Yu had taken 50 mg of Ambien, 20 mg of Prozac, and 100 mg of Seriquel at 5:00 a.m., two hours prior to officers performing the search, but concluded that his consent was voluntary based on the testimony of one of the agents that Yu was lucid throughout the conversation, that the residence was orderly, and that Yu had been able to provide detailed information during the interview, including specifics about his business and health condition.

At trial, the government introduced evidence that the two telephone numbers found on the contracts and at least two others attributed to Great Texas had been documented in several previous traffic stops throughout the country and that in each case illegal aliens had been discovered. There was evidence of nine different police encounters with employees contracted through Great Texas and 23 of the 24 workers involved were in the country illegally. Xin Min Li, one of Yu's former drivers, testified that Yu was in charge of Great Texas but that he mainly corresponded with Ya Coa, whom he knew as Lily. He said that Ya Cao had told him that restaurant owners preferred illegal immigrants and that the workers were found on street corners. He estimated that fewer than 20% of the workers used by Great Texas were in the country legally. Another former driver, An Dong Ceng, testified that most of the workers being transported were in the country illegally, based on his experience that they packed few belongings and could not speak English. There was also evidence that the workers would often be forced to work long hours for low salaries and no overtime pay.

Yu testified through an interpreter. He testified that he was not aware that the agency placed illegal aliens in positions because his poor health (cancer and obsessive compulsive disorder) made it impossible for him to remain active in the business. He estimated that Great Texas had placed at least 6,000 workers since he opened it and admitted that he reviewed and paid for the advertisements placed in the World Journal. Yu attributed some of the success of Great Texas to his policy of ensuring free delivery of as many as two substitutes for any worker who left the restaurant within the first month. He testified that Ya Cao and an interpreter would find workers at the Salvation Army or missions and that he had used more than 200 different drivers to deliver workers to the various restaurants. He also told the jury that he never answered the phones because of his social anxiety disorder and that he had begun Great Texas in the aim of providing opportunities for immigrants. According to his testimony, Yu had no knowledge any of the workers were illegal and took efforts to ensure that his company did not transport illegal aliens.

During closing arguments, Yu's counsel argued to the jury that Great Texas had been taken over by rogue employees and that Ya Cao had been at the center of the enterprise but that the government had failed to call her as a witness even though "they can get her if they want her." Defense counsel also argued that the government routinely endangers citizens by giving people drugs during investigations and then following the drug carriers. In response to these arguments, the prosecutor pointed out in his rebuttal argument that Yu also had power to subpoena Ya Cao to testify and referred to the other arguments as red herrings. The jury found Yu guilty on both counts charged in the indictment, and the case proceeded to sentencing.

The...