United States v. Ho, No. 19-761

• Citation: 984 F.3d 191
• Decision Date: 29 December 2020
• Docket Number: August Term 2019,No. 19-761
• Parties: UNITED STATES of America, Appellee, v. Chi Ping Patrick HO, aka Patrick C.P. Ho, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

984 F.3d 191

UNITED STATES of America, Appellee,

v.Chi Ping Patrick HO, aka Patrick C.P. Ho, Defendant-Appellant.

No. 19-761

August Term 2019

United States Court of Appeals, Second Circuit.

Argued: March 11, 2020

Decided: December 29, 2020

Benjamin E. Rosenberg, Dechert LLP, New York, New York (Katherine M. Wyman, Dechert LLP, New York, New York, Edward Y. Kim, Jonathan F. Bolz, Krieger Kim & Lewin LLP, New York, New York, on the brief), for Defendant-Appellant Chi Ping Patrick Ho.

Douglas Zolkind, Assistant United States Attorney (Daniel C. Richenthal, Catherine E. Ghosh, Anna M. Skotko, Assistant United States Attorneys, for Audrey Strauss, Acting United States Attorney for the Southern District of New York, Paul A. Hayden, Trial Attorney, Fraud Section, Criminal Division, United States Department of Justice, on the brief), for Appellee United States of America.

Before: Raggi, Chin, and Sullivan, Circuit Judges.

Richard J. Sullivan, Circuit Judge:

Defendant-Appellant Dr. Chi Ping Patrick Ho, a citizen of Hong Kong, appeals from a judgment of conviction entered March 27, 2019, in the United States District Court for the Southern District of New York (Preska, J. ), following a jury trial. The indictment principally alleged that Ho, as an officer or director of a U.S.-based organization, paid bribes on behalf of a Chinese company to the leaders of Chad and Uganda in exchange for commercial advantages. The jury convicted Ho on seven counts charging violations of and conspiracy to violate two provisions of the Foreign Corrupt Practices Act ("FCPA"), 15 U.S.C. §§ 78dd-2 and 78dd-3, and the money laundering statute, 18 U.S.C. § 1956(a)(2)(A). Judge Preska sentenced Ho to 36 months’ imprisonment and imposed a fine of $400,000.

On appeal, Ho challenges his conviction on several grounds, maintaining that (1) there was insufficient evidence supporting his convictions under § 78dd-2 of the FCPA; (2) a violation of § 78dd-3 of the FCPA is not a specified unlawful activity under the money laundering statute; (3) the money laundering statute does not cover a transaction that merely goes "through" correspondent bank transfers in the United States; (4) the district court abused its discretion in admitting certain evidence at trial; and (5) the indictment was defective as it contained material contradictions and charged Ho under mutually exclusive sections of the FCPA. For the reasons set forth below, we reject each of Ho's challenges and affirm the district court's judgment.

I. BACKGROUND ¹

The evidence at trial established that Ho used his position as an officer or director of a U.S.-based non-governmental organization ("NGO") to engage in two bribery schemes for the benefit of China CEFC Energy Company Limited ("CEFC Energy"), a for-profit conglomerate based in Shanghai. CEFC Energy funded a non-profit NGO in Hong Kong known as the China Energy Fund Committee, or CEFC Limited ("CEFC NGO"). That entity, in turn, funded a non-profit U.S. entity, China Energy Fund Committee (USA) Inc. (the "U.S. NGO"), which was incorporated in Virginia, where it had an office, and which used a suite affiliated with CEFC Energy in Trump World Tower in New York. A former employee of CEFC NGO testified that CEFC NGO treated the U.S. NGO as the U.S. arm of its organization. See App'x at 194–204; see also discussion infra Section III.A. Beyond funding the U.S. NGO, CEFC NGO held itself out as an organization "headquartered in Hong Kong" with an office "in the United States," App'x at 731, and touted itself as a "Chinese think tank registered in Hong Kong and also in the USA as a public charity," with "special consultative status" with the United Nations, id. at 592.

Ho served as an officer and the principal director of CEFC NGO, holding the title of Secretary General. He was also an officer and director of the U.S. NGO, and ran the daily operations of both entities. As part of his work with CEFC NGO (including through the U.S. arm), Ho often visited the United Nations and made contacts with high-ranking officials, including Presidents of the UN General Assembly, to help CEFC Energy find business opportunities. As relevant to this case, Ho engaged in two schemes – the "Chad scheme" and the "Uganda scheme" – to advance CEFC Energy's commercial interests.

A. Chad Scheme

Around September 2014, a CEFC Energy official asked Ho to arrange a meeting with the President of Chad, Idriss Déby ("Déby"), to help CEFC Energy pursue business in Chad. Ho agreed and asked a former President of the UN General Assembly, Vuk Jeremic, for an introduction to Cheikh Gadio, a former Foreign Minister of Senegal who knew Déby. Jeremic contacted Gadio and suggested that he meet Ho, his "friend[ ] from China who was doing a lot of work with the United Nations" and working at a Chinese oil company. App'x at 250.

Gadio and Ho eventually met at the Trump World Tower suite used by CEFC Energy and the U.S. NGO. There, Ho explained CEFC Energy's interest in Chad and sought Gadio's assistance in gaining access to Déby. Gadio agreed to help set up meetings between CEFC and Déby. In late October 2014, Gadio met with Déby in Chad, and advised Ho that Déby was interested in working with CEFC Energy.

Later that year, Ho and a delegation from CEFC Energy met with Déby in Chad on several occasions. At the first meeting, in November 2014, Déby invited CEFC Energy to consider an opportunity to acquire an oilfield in Chad. He noted that other oil companies were interested in that block and suggested next steps to enable CEFC Energy to advance a bid. About a week later, Ho asked Gadio to arrange another meeting with Déby. Gadio advised against a second meeting at that time, but in the face of Ho's insistence, set up the meeting.

The second meeting took place on December 8, 2014, at Déby's presidential compound and involved a delegation from CEFC Energy, Ho, Gadio, and Gadio's son and business partner, Boubker Gadio, as well as Déby and his chief of staff. The participants discussed the Chadian oilfield opportunity, and at the end of the meeting, the CEFC delegation presented Déby with wrapped gift boxes. Déby did not open the boxes until after the meeting; when he did, he found that the boxes contained $2 million in cash. Déby called Gadio – who by this time had gone back to his hotel – and demanded that he return to the compound.

When Gadio arrived, Déby expressed outrage that the boxes contained cash. Déby asked Gadio if he knew in advance about the cash gift, and Gadio responded that he did not. At Déby's request, Ho, Gadio, and the CEFC delegation met with Déby and his chief of staff the next day, December 9, 2014. At that meeting, Déby expressed shock and anger at receiving cash, and explained that he did not know "why people believe all African leaders are corrupt." Id. at 300.

Ho responded that he was "very impressed by [Déby's] reaction and ... attitude," id. at 301, while members of the CEFC delegation insisted that the cash had been intended as a donation to the country, not as a bribe to Déby. Déby replied that "donations are not made this way" and again refused to accept the cash. Id. at 304. Ultimately, the delegation promised a formal letter of donation to be used for Chad. Ho subsequently drafted a letter to that effect, which Gadio revised and delivered to Déby.

In exchange for setting up the meetings in Chad, Gadio sought a written contract with CEFC Energy to formalize his role and ensure his compensation for assisting the company in acquiring business in the Chadian oilfields. After the December trip, Boubker Gadio sent a text message to his father asking if he had received "any feedback from our friends in China" regarding the contract. Id. at 736; see also id. at 307. Gadio answered, "No[,] our Chinese friends are strange! Let us give them another week. Otherwise we will go to Chad [in] early January and destroy their reputation and strategies in Chad!" Id. at 736; see also id. at 307–08. Boubker responded, "I sincerely think they will reply favorably ... [.] [T]heir attempt to buy the president to put us to the side did not work. Big companies don[’]t like middle men ... but they don[’]t have a choice with us." Id. at 736 (first ellipsis in original). Ultimately, CEFC NGO paid Gadio $400,000 for his work in Chad. Nevertheless, despite Gadio's connections and Ho's efforts to negotiate a deal for oil rights, the parties failed to secure a deal.

B. Uganda Scheme

Also in 2014, Ho sought an introduction to Sam Kutesa – the Minister of Foreign Affairs for Uganda, who had recently begun a one-year term as the President of the UN General Assembly – for the purpose of helping CEFC Energy develop business in Uganda's oil fields. Ho contacted Kutesa's office at the UN in New York and introduced himself as the "Deputy Chairman and Secretary General" of CEFC NGO, "a Chinese think tank registered in Hong Kong and also in the USA as a public charity" with "special consultative status from UN's Economic and Social Council." App'x at 592.

Around February 2016 – by which time Kutesa had completed his term as President of the General Assembly and returned to Uganda as Foreign Minister – Kutesa, through his wife, solicited a bribe from Ho to be disguised as a payment to a charitable foundation. Ho requested, and ultimately received, authorization from the chairman of CEFC Energy to make a half million dollar payment to Kutesa's charity. Ho then contacted Kutesa to advise him that the payment would be made and to procure an invitation to the inauguration of Ugandan President Yoweri Museveni, who was Kutesa's brother-in-law. Ho told Kutesa that he would bring executives from CEFC Energy to discuss business opportunities in Uganda.

On May 5, 2016, Ho caused a wire transfer of $500,000 to be sent from CEFC NGO to an account belonging to the Food Security and Sustainable Energy Foundation at Stanbic Bank in Kampala, Uganda, as a donation to the foundation designated by the Kutesas. Specifically, the wire...