United States v. Seng

• Decision Date: 09 August 2019
• Docket Number: August Term 2018,No. 18-1725-cr,18-1725-cr
• Citation: 934 F.3d 110
• Parties: UNITED STATES of America, Appellee, v. NG LAP SENG, aka David Ng, aka David Ng Lap Seng, Defendant-appellant, John W. Ashe, Francis Lorenzo, aka Frank Lorenzo, Jeff C. Yin, aka Yin Chuan, Shiwei Yan, Heidi Hong Piao, aka Heidi Park, Defendants.
• Court: U.S. Court of Appeals — Second Circuit

934 F.3d 110

UNITED STATES of America, Appellee,
v.
NG LAP SENG, aka David Ng, aka David Ng Lap Seng, Defendant-appellant,

John W. Ashe, Francis Lorenzo, aka Frank Lorenzo, Jeff C. Yin, aka Yin Chuan, Shiwei Yan, Heidi Hong Piao, aka Heidi Park, Defendants.^*

No. 18-1725-cr
August Term 2018

United States Court of Appeals, Second Circuit.

Argued: November 8, 2018
Decided: August 9, 2019

Daniel C. Richenthal, Assistant United States Attorney (Janis M. Echenberg, Douglas S. Zolkind, Sarah K. Eddy, Assistant United States Attorneys, on the brief), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, New York, for Appellee.

Paul Clement (Viet D. Dinh, Erin E. Murphy, C. Harker Rhodes IV, on the brief), Kirkland & Ellis LLP, Washington, D.C., for Defendant-Appellant.

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

Judge Sullivan concurs in a separate opinion.

Reena Raggi, Circuit Judge:

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Defendant Ng Lap Seng paid two United Nations ("U.N.") ambassadors—one of whom was for a time also serving as President of the General Assembly—more than $1 million to secure a U.N. commitment to use Ng’s Macau real estate development as the site for an annual U.N. conference. Based on this conduct, Ng now stands convicted after a jury trial of paying and conspiring to pay bribes and gratuities in violation of 18 U.S.C. §§ 371, 666, and the Foreign Corrupt Practices Act ("FCPA"), 15 U.S.C. §§ 78dd-2, 78dd-3, as well as of related conspiratorial and substantive money laundering, 18 U.S.C. § 1956(a)(2)(A), (h). A judgment, entered on June 7, 2018, in the United States District Court for the Southern District of New York (Vernon S. Broderick, Judge), orders Ng to serve concurrent 48-month prison terms on each of six counts of conviction,¹ to forfeit $1.5 million, to pay a $1 million fine, and to make restitution to the U.N. in the amount of $302,977.20.

Ng now appeals his conviction, arguing that (1) his conduct cannot have violated § 666 because the U.N. is not an "organization" within the meaning of that statute; (2) the jury instructions as to both § 666 and FCPA bribery were deficient in light of McDonnell v. United States , ––– U.S. ––––, 136 S. Ct. 2355, 195 L.Ed.2d 639 (2016) ; (3) the evidence was insufficient as a matter of law to support a guilty verdict for these crimes; and (4) without valid § 666 and FCPA predicate counts of conviction, his related money laundering convictions cannot stand. For the reasons explained in this opinion, Ng’s arguments fail on the merits. Accordingly, we affirm the judgment of conviction on all counts.

BACKGROUND

I. Prosecution Evidence at Trial

Because Ng appeals a judgment of conviction following a jury trial, we summarize the evidence adduced in the light most favorable to the prosecution. See United States v. Thompson , 896 F.3d 155, 159 (2d Cir. 2018).

A. Ng’s Convention Center Plan

In 2009–10, Chinese national Ng sought to develop his already extensive Macau real estate holdings into a multi-billion-dollar complex that would include hotels, luxury apartment buildings, and a world-class convention center. To ensure the reputation

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of his convention center, and thereby to enhance the use and value of adjacent real estate within his complex, Ng sought to have the U.N. formally designate his center as the permanent site for the annual convention, or "Expo," of its Office for South-South Cooperation ("UNOSSC"), an event with broad attendance throughout the private as well as public sectors.² Toward this end, Ng engaged in a sustained effort over five years to bribe two U.N. officials: (1) Francis Lorenzo, a United States citizen serving as the Dominican Republic’s Deputy Ambassador to the U.N.; and (2) John Ashe, the U.N. Ambassador for Antigua and Barbuda and, for a time during the bribery scheme, President of the General Assembly, the second-ranking position within the U.N.

B. Ng Recruits Lorenzo and Ashe

Ng first met Lorenzo in March 2009, and in December of that year named him president of South-South News ("SSN"), a media organization owned by Ng and incorporated in New York. Lorenzo, who pleaded guilty to bribery and other charges pursuant to a cooperation agreement with the government,³ testified that he understood that a portion of the $20,000 a month that Ng was paying him as SSN salary, as well as other payments described herein—which, by 2015, totaled over $1 million—were in fact bribes to secure for Ng, not merely general U.N. support for UNOSSC’s use of his Macau convention center, but a formal documented commitment to do so. In short, Lorenzo understood that Ng was paying him in order to procure "an official document from the United Nations," Trial Tr. at 652, i.e. , he wanted "a contract," id. at 671.

Ng and Lorenzo agreed that as the first step toward this goal, Lorenzo would host "working sessions" for other ambassadors to discuss issues of South-South cooperation. App’x 1449. The plan was for the sessions to produce a report making it appear that the attending ambassadors were urging the U.N. to designate an official UNOSSC meeting center.

At Lorenzo’s suggestion, Ng recruited Ashe to attend the first meeting, which was held in China in April 2011. To induce Ashe’s attendance, Ng paid for a vacation trip to New Orleans by Ashe’s family. Ng also promised Ashe whatever financial assistance he might need if he were to become President of the U.N. General Assembly.⁴ After the China meeting, at Ashe’s request, Ng began funneling

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$2,500–$6,000 per month to Ashe personally, disguised as payments to Ashe’s wife for consulting services provided to SSN. In fact, as SSN employees testified, Ashe’s wife never performed any such services. Nevertheless, the sham monthly payments continued through early 2015. Indeed, even when SSN was reducing expenses in 2014, Lorenzo told Ng that payments to Ashe’s wife should continue because "we need[ ] John [Ashe] to continue his support on the [E]xpo." Trial Tr. at 1258.

C. Acts in Furtherance of the Expo Scheme

In return for Ng’s payments, Lorenzo and Ashe took various actions to support UNOSSC designating Ng’s convention center as its permanent Expo site. On appeal, as at trial, the government highlights four particular acts taken by the two ambassadors.

1. Placing Documents in the Official Record of the U.N. General Assembly Reporting Ambassadorial Support for Ng’s Convention Center Plan

Following the 2011 working sessions, Ng directed Lorenzo and Ashe to publicize and inflate ambassadorial support for UNOSSC’s use of Ng’s convention center. Toward that end, the ambassadors drafted and, on March 15, 2012, Ashe signed, a letter on U.N. letterhead, addressed to the U.N. Secretary General, reporting that representatives from eight member nations and various U.N. departments had held "high-level meetings and working sessions" that resulted in the launching of a "Global Business Incubator." App’x 1449.⁵ With the assistance of an unwitting U.N. official, Lorenzo and Ashe then had the letter made a part of the official General Assembly record (hereafter "U.N. Document"), a step that could only be taken by an accredited U.N. ambassador and that allows the document to be circulated to all member states.⁶

In December 2012, Ng instructed Lorenzo to revise the March U.N. Document so that it expressly referenced a permanent Expo center to be developed by Ng’s company, Sun Kian Ip Group ("SKI"). Ashe and Lorenzo achieved this objective by securing reissuance of the U.N. Document on June 6, 2013, "for technical reasons." Id. at 1586 (hereafter "Revised U.N. Document"). In fact, changes to the reissued document went well beyond the technical. Consistent with Ng’s instructions, Ashe and Lorenzo added two entirely new substantive paragraphs to the letters, as follows:

In this regard, I am pleased to inform you that in response to the recommendation,

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Sun Kian Ip Group of China has welcomed the initiative and will serve as the representative for the implementation of the Permanent Expo and Meeting Centre for the countries of the South. This is one of the first centres in a network of incubator centres in a public-private partnership with the support of leading partner South-South News.

As envisaged, I foresee that this permanent exposition centre of innovation and excellence will play an important role, not only in accelerating the development and deploying of technologies, including through South-South and triangular cooperation, but also in harnessing the potential of [information and communication technologies] for sustainable growth, investment, capacity-building and job creation, particularly in developing countries.

Id. (emphases added).

2. UNOSSC’s Letter of Support for Ng’s Convention Center Plan

Ng further directed Lorenzo to obtain a letter from UNOSSC endorsing a permanent Expo center,...