United States v. Chon

• Decision Date: 10 April 2013
• Docket Number: No. 11–50143.,11–50143.
• Citation: 713 F.3d 812
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Song U. CHON, also known as The Korean; Alejandro Garcia–Rico; Manuel Cardoza; YCL Corporation, doing business as The Gateway Hotel, Defendants–Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

713 F.3d 812

UNITED STATES of America, Plaintiff–Appellee,

v.Song U. CHON, also known as The Korean; Alejandro Garcia–Rico; Manuel Cardoza; YCL Corporation, doing business as The Gateway Hotel, Defendants–Appellants.

No. 11–50143.

United States Court of Appeals,Fifth Circuit.

April 10, 2013.

Joseph H. Gay, Jr., Mark Randolph Stelmach, Assistant U.S. Attorneys, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff–Appellee.

James Darrell Lucas, Leonard Christopher Morales, Counsel, Leon Schydlower, Mario A. Gonzalez, El Paso, TX, for Defendants–Appellants.

Appeals from the United States District Court for the Western District of Texas.

Before HIGGINBOTHAM, SMITH, and ELROD, Circuit Judges.

PER CURIAM:

A jury convicted Defendants–Appellants Song U. Chon (“Chon”), Alejandro Garcia–Rico (“Garcia–Rico”), Manuel Cardoza (“Cardoza”), and YCL Corporation (“YCL”) of conspiring to smuggle, transport, and harbor illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I). A jury also convicted Chon of money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i) and (B)(i), and three counts of willfully aiding and assisting in the filing of a false tax return in violation of 26 U.S.C. § 7206(2). Chon, Cardoza, and YCL each challenge their convictions and Chon and Garcia–Rico challenge their sentences. For the reasons that follow, we find no reversible error and, therefore, AFFIRM.

I.

The facts of this case ¹ involve the use of the Gateway Hotel, which is located in close proximity to the United States–Mexico border in El Paso, Texas, as a location to harbor illegal aliens beginning in 2003 and continuing through May 2009. YCL owned the Gateway Hotel until Chon, one of the four directors of YCL, purchased it in February 2004.² Chon, as owner of the Gateway Hotel, worked on a daily basis in an office near the front desk. During the years in question, the Gateway Hotel employed Armondo Arzate (“Arzate”) as its general manager, Garcia–Rico as a front-desk clerk, and Jose Herrera (“Herrera”) as a maintenance man. The Gateway Hotel also rented its restaurant area to Juo–Hsuan Hsu (“May”) who ran May's Café.

Overwhelming, undisputed evidence was offered at trial that individuals conducting alien-smuggling operations (“alien smugglers”), including Cardoza, utilized the Gateway Hotel as a location to harbor illegal aliens who had just crossed the border before they were transported to other locations in the United States. The prosecution offered evidence that Chon, Garcia–Rico, Arzate, Herrera, and May cooperated with the alien smugglers to facilitate their use of the Gateway Hotel to harbor illegal aliens. For example, Herrera made arrangements to allow illegal aliens to sneak into rooms at the Gateway Hotel without law enforcement noticing and to wash the dirty clothing of the illegal aliens once they made it into their rooms. At the phone requests of the alien smugglers, Gateway Hotel employees would regularly agree to deliver food from May's Café directly to illegal aliens who were hiding inside hotel rooms. The front-desk clerks also facilitated the alien smuggler's use of the Gateway Hotel by allowing alien smugglers to pay for rooms used by illegal aliens. Immigration and Customs Enforcement (“ICE”) agents testified that during several raids, Garcia–Rico, who was working at the front desk, called the rooms where illegal aliens were located, presumably to warn the illegal aliens of the raid. Law enforcement recorded numerous telephone calls between Gateway Hotel employees and the alien smugglers, including a telephone call between Garcia–Rico and an alien smuggler during which Garcia–Rico agreed to pay $850 to transport an illegal alien who was staying at the Gateway Hotel out of El Paso. Moreover, evidence established that Garcia–Rico, Arzate, and Herrera all received tips from the alien smugglers for their cooperation in harboring illegal aliens in the Gateway Hotel.

ICE conducted raids of the Gateway Hotel throughout the duration of the alleged conspiracy, resulting in the discovery of hundreds of illegal aliens. Chon, who admitted that he knew illegal aliens were being housed at the Gateway Hotel, was often present when ICE conducted raids of the Gateway Hotel. ³ After more than 100 illegal aliens were removed from the Gateway Hotel in a single raid in 2006, Arzate suggested to Chon that they change the path of the business away from renting to illegal aliens. Chon rejected this suggestion by responding that they had “no authority to request papers.” Chon and Arzate occasionally discussed the credit situation of the alien smugglers who were longstanding clients of the Gateway Hotel. Herrera, in a recorded conversation with an alien smuggler, explained that Chon “was making a big deal about” money an alien smuggler owed for rooms illegal aliens used at the Gateway Hotel.

Chon was responsible for maintaining the books for the Gateway Hotel throughout the duration of the conspiracy. Chon created two sets of books: one that accurately portrayed the gross receipts, and another that substantially understated gross receipts. To facilitate this underreporting of gross receipts, Chon directed Arzate to set aside $300 to $400 each day from the Gateway Hotel's gross receipts. Chon also signed and prepared YCL's 2005, 2006, and 2007 corporate tax returns. In each year, the gross receipts from the Gateway Hotel were substantially understated.

In 2009, Chon, Garcia–Rico, Cardoza, YCL, Arzate, Herrera, and May, among others, were charged with conspiring to smuggle, transport, and harbor illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I) (“Count I”). Chon was also charged with money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i) and (B)(i) (“Count II”), and three counts of willfully aiding and assisting in the filing of a false tax return in violation of 26 U.S.C. § 7206(2) (“Counts III, IV, and V”). Arzate, Herrera, and May each pled guilty prior to trial. A jury found Chon, Garcia–Rico, Cardoza, and YCL guilty on all charges. The district court sentenced Chon to 120 months of imprisonment on Count I, 180 months on Count II, which was an upward departure from the Guidelines range of 108 to 135 months, and 36 months on Counts III, IV, and V, all to be served concurrently, and ordered Chon to pay restitution of $481,812.32. The district court sentenced Garcia–Rico to fifty-one months' imprisonment on Count I. Chon, Garcia–Rico, Cardoza, and YCL each timely filed a notice of appeal.

II.

Chon, Cardoza, and YCL each contend that there was insufficient evidence to sustain their convictions.⁴ Each defendant properly preserved their insufficiency-of-the-evidence claim; therefore, we review each sufficiency challenge de novo. United States v. Grant, 683 F.3d 639, 642 (5th Cir.2012) (citation omitted). Our review of the sufficiency of the evidence is “highly deferential to the verdict.” United States v. Harris, 293 F.3d 863, 869 (5th Cir.2002). “[V]iewing the evidence in the light most favorable to the prosecution,” we consider 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, 61 L.Ed.2d 560 (1979) (emphasis in original). We “accept[ ] all credibility choices and reasonable inferences made by the trier of fact which tend to support the verdict,” United States v. Asibor, 109 F.3d 1023, 1030 (5th Cir.1997) (citation omitted), and resolve “any conflicts in the evidence ... in favor of the verdict.” United States v. Duncan, 919 F.2d 981, 990 (5th Cir.1990) (citing United States v. Clark, 741 F.2d 699, 703 (5th Cir.1984)).

A.

We first consider Chon, Cardoza, and YCL's sufficiency challenges to their conspiracy convictions. To obtain a conviction under § 1324(a)(1)(A)(v)(I), the government must establish that the defendant:

[A]greed with one or more persons to transport or move illegal aliens within the United States in furtherance of their unlawful presence, or to conceal, harbor, or shield from detection such aliens, knowingly or in reckless disregard of the fact that such aliens had come to, entered, or remained in the United States in violation of law.

United States v. Ahmed Khan, 258 Fed.Appx. 714, 717 (5th Cir.2007) (unpublished but persuasive).

In order to prove a conspiracy, the government must prove beyond a reasonable doubt that an agreement existed to violate the law and each conspirator knew of, intended to join, and voluntarily participated in the conspiracy. United States v. Davis, 226 F.3d 346, 354 (5th Cir.2000). The agreement to violate the law does not have to be “explicit or formal;” a tacit agreement is sufficient. United States v. Freeman, 434 F.3d 369, 376 & n. 5 (5th Cir.2005). The existence of an agreement to violate the law may be established solely by circumstantial evidenceand may be inferred from “concert of action.” See, e.g., United States v. Bieganowski, 313 F.3d 264, 277 (5th Cir.2002). Voluntary participation in the conspiracy “may be inferred from a collocation of circumstances,” and knowledge of the conspiracy “may be inferred from surrounding circumstances.” Id. (citation and internal quotation marks omitted). While a conspirator must knowingly participate in some way in the larger objectives of the conspiracy, he does not need to know all details of the unlawful enterprise or have a major role in the unlawful enterprise. Davis, 226 F.3d at 354. We consider in turn each defendant's sufficiency challenge to their conspiracy conviction.

1.

Chon primarily argues that the evidence is insufficient to prove that he engaged in any conduct that manifested an intent to conceal, harbor, or shield aliens from detection or that he agreed with one or more co-conspirators to violate § 1324(a)(1)(A)(v)(I). We disagree.

Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could infer that Chon agreed...