U.S. v. Tin Yat Chin
| Decision Date | 02 June 2004 |
| Docket Number | Docket No. 03-1621. |
| Parties | UNITED STATES of America, Appellee, v. TIN YAT CHIN, aka Tan C. Dau, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Brendan White (Diarmuid White, of counsel), White & White, New York, NY, for Defendant-Appellant.
Margo K. Brodie, Assistant United States Attorney (Peter A. Norling, Lara Treinis Gatz, Assistant United States Attorneys, of counsel), for Roslynn R. Mauskopf, United States Attorneys Office for the Eastern District of New York, Brooklyn, NY, for Appellee.
Before: McLAUGHLIN, SACK, SOTOMAYOR, Circuit Judges.
Tin Yat Chin was convicted of one count of impersonating a federal officer and three counts of tax evasion after a jury trial in the United States District Court for the Eastern District of New York (Gershon, J.). To support his claim that he was misidentified before and at trial, Tin Yat Chin proffered: (1) customer copies of credit card transaction receipts as part of an alibi notice; and (2) the testimony of a language expert that Tin Yat Chin, a native Cantonese speaker, could not have faked the Mandarin accent attributed to the impersonator by Government witnesses. The district court excluded the receipts as unauthenticated under Fed.R.Evid. 901; and it limited the expert testimony to the linguistic differences between Cantonese and Mandarin and the expert's opinion that Tin Yat Chin is a native Cantonese speaker.
On appeal, Tin Yat Chin contends that the receipts were authenticated and admissible, and that the district court's limitation on his language expert's testimony was an abuse of discretion. We agree, in part. Specifically, we hold that: (1) the receipts were authenticated and admissible as non-hearsay, and the erroneous exclusion was not harmless; but (2) the limitation on the expert testimony was proper. Based on the district court's exclusion of the receipts, we vacate Tin Yat Chin's conviction and remand for a new trial.
Between 1997 and 1999, a swindler, simultaneously impersonating both an immigration lawyer and an officer of the Immigration and Naturalization Service ("INS"), promised Chinese immigrants work visas for their foreign relatives in exchange for cash payments. Primarily through intermediaries, the swindler collected various documents and information from victims, prepared written contracts, and provided receipts for the payments, but he never produced a visa for any of his victims.
In 1997, the swindler rented an apartment from Sui Seng Wong, on 86th Street in Brooklyn, New York, under the pseudonym "Qing Zhao." In furtherance of the scheme, he opened an office, hiring Lai Fan Lok Lao as a secretary to answer the telephone, accept cash payments, write receipts, and collect documents from the victims. Using another pseudonym, "Mok Wah," the swindler promised Chinese immigrants visas in exchange for about $30,000 each. He usually demanded half the money in advance.
The following year, the swindler closed the 86th Street office and disappeared with his victims' payments. Then, using yet another pseudonym, "Jun Li," he rented an apartment on Fourth Avenue in Brooklyn from Lolita Eng, who testified that: (1) her tenant held a copy of the lease in an unusual manner (the purpose of which the Government claims was designed to avoid leaving his fingerprints on the document); and (2) he rented month-to-month and paid her by money order.
At the Fourth Avenue location, the swindler established a new office, "Mei Dong Immigration Service," where he used the pseudonym "Tan C. Dau." The swindler retained Wan Yi Li as his secretary to prepare form contracts, provide receipts for cash payments, and translate Cantonese. According to the testimony of Wan Yi Li and numerous victims, the swindler spoke Chinese, primarily in the Mandarin dialect, but occasionally in Cantonese with a Mandarin accent.
In June 1999, Wan Yi Li accompanied the swindler to China, where she acted as a translator and escorted customers to the Chinese consulate. One of the victims, Chau Hoang Dang, who had already paid the swindler tens of thousands of dollars, also went to China to meet the swindler. In July, Wan Yi Li brought Chau Hoang Dang to a hotel to meet the swindler. In Wan Yi Li's presence, the swindler demanded that Chau Hoang Dang pay an additional $150,000 or else her relatives would not get their visas. He also threatened to hire someone to murder Chau Hoang Dang on her return to New York if she failed to produce the cash within two weeks.
Wan Yi Li returned from China in August. By this time, the swindler had closed his Fourth Avenue office and disconnected his beeper.
In 2001, Tin Yat Chin was arrested as the suspected swindler. Chau Hoang Dang and other witnesses identified Tin Yat Chin as the swindler. Tin Yat Chin acknowledged the potential existence of a swindler, but claimed that he had been misidentified by a group of victims desperate to recover their money or to minimize their own criminal liability for participating in a scheme with the swindler to bribe Chinese immigration officials.
The Government indicted Tin Yat Chin for: (1) one count of impersonating a federal employee (of the INS), in violation of 18 U.S.C. § 912; and (2) three counts of tax evasion for failing to declare his illegally acquired payments as income in 1997, 1998, and 1999, in violation of 26 U.S.C. § 7201.
In January 2003, following a jury trial, Tin Yat Chin was convicted on all four counts. He was sentenced to 120 months' imprisonment, three years' supervised release, a $400 special assessment, and $653,450 in restitution. The district court declined to "group" the four counts and enhanced Tin Yat Chin's sentence for various reasons, including "sophisticated concealment" on the tax evasion counts.
Twenty-seven witnesses, primarily victims and their relatives and others with business connections to the swindler, testified at trial. Eleven victims and their relatives identified Tin Yat Chin as the swindler. However, two of these witnesses admitted that, before picking Tin Yat Chin out of a photo array, they had viewed a photograph of him that appeared in a November 2001 newspaper article about the immigration scheme. Two other victims who had limited or no contact with the swindler were unable to identify Tin Yat Chin. The daughter of one of the victims, who was ten years old when she saw the swindler, selected Tin Yat Chin from a photo array, but was unable to identify him at trial. At trial, another victim misidentified a Deputy United States Marshal as the swindler.
Tin Yat Chin was also identified by Wan Yi Li, who worked as his secretary for almost a year, and by Eng, his landlady at the Fourth Avenue apartment. Eng's contact with the swindler was limited, however. The swindler's first landlord, Sui Seng Wong, identified Tin Yat Chin with difficulty from a photo array, but was unable to confirm her identification in court.
Based on perceived weaknesses in the witnesses' identifications at trial, Tin Yat Chin energetically pressed his central defense theory: misidentification.
Before trial, the Government alleged that between June and August 1999, Tin Yat Chin traveled in China under the pseudonym "Tan C. Dau." The Government also noted that Tin Yat Chin had been unemployed between 1997 and 1999.1 Tin Yat Chin responded with an alibi notice and moved in limine to admit into evidence copies of credit card transaction receipts, allegedly bearing his signature, showing that he was in a Queens, New York, P.C. Richard & Sons store and a Queens Key Food supermarket at the time Government witnesses would testify that he was in China. A collection of receipts, including the P.C. Richard's receipt, dated July 7, and the Key Food receipts, dated July 8, 10, and 26, were produced by Tin Yat Chin's wife while Tin Yat Chin was detained in a federal correctional facility pending trial. At the time of his arrest, Tin Yat Chin had on his person a September 2001 Key Food receipt similar to the ones from July 1999.
Tin Yat Chin and his wife are joint holders of the credit cards at issue. Both the merchants and the credit card companies routinely destroyed their copies of the receipts eighteen months after the relevant purchases in accordance with standard industry practice. Tin Yat Chin, however, proffered that: (1) his wife would testify that she had not made the purchases in question; (2) the store managers would testify about how the customer receipts were produced, including that: (a) the terminal generated a two-part credit card transaction slip which the customer had to sign to complete the transaction; and (b) the merchant's (white) copy contains the customer's ink signature and the customer's (yellow) copy contains an impression of the customer's signature; and finally, (3) a handwriting expert would testify that Tin Yat Chin's signatures on the yellow receipts were genuine.
Trolling the Federal Rules of Evidence, Tin Yat Chin argued that the receipts were admissible as (1) non-hearsay or, in the alternative, as (2) "business records" (Fed.R.Evid.803); (3) "duplicates" (Fed.R.Evid.1003); or (4) under the "residual" hearsay exception (Fed.R.Evid.807). However, the district court excluded the receipts as unauthenticated under Fed.R.Evid. 901 and therefore refused to admit them under any other evidentiary rationale.
Specifically, the court held that "[Tin Yat Chin's] proffer fail[s] to provide a rational basis for concluding that the receipts are in fact customer copies of records of purchases made on particular dates at particular stores by [Tin Yat Chin]." United States v. Tin Yat Chin, 288 F.Supp.2d 240, 241 (E.D.N.Y.2003). The court appeared to question the authenticity of the receipts in general, but emphasized, in particular, that "[Tin Yat Chin]...
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