United States v. Mi Sun Cho

• Decision Date: 16 April 2013
• Docket Number: Docket No. 12–1084–cr.
• Citation: 713 F.3d 716
• Parties: UNITED STATES of America, Appellee, v. MI SUN CHO, also known as Sealed Defendant 12, also known as General, also known as FNU LNU 3, Defendant–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

713 F.3d 716

UNITED STATES of America, Appellee,

v.MI SUN CHO, also known as Sealed Defendant 12, also known as General, also known as FNU LNU 3, Defendant–Appellant.^*

Docket No. 12–1084–cr.

United States Court of Appeals,Second Circuit.

Argued: March 7, 2013.

Decided: April 16, 2013.

Donald DuBoulay, Law Office of Donald DuBoulay, New York, NY, for Defendant–Appellant Mi Sun Cho.

Rahul Mukhi, Assistant United States Attorney (Jennifer G. Rodgers, Assistant United States Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY.

Before: WALKER, SACK, and LYNCH, Circuit Judges.

PER CURIAM:

Defendant-appellant Mi Sun Cho was convicted by a jury in the United States District Court for the Southern District of New York (Kimba M. Wood, Judge ) of one count of conspiring to violate sex trafficking laws in violation of 18 U.S.C. §§ 2241 and 2422 and two substantive sex trafficking counts in violation of 18 U.S.C. §§ 2241 and 2. Cho raises several challenges to her conviction. First, she contends that there was insufficient evidence to establish that she transported Mei Hua Jin, a prostitute, in interstate commerce in violation of 18 U.S.C. § 2421 or caused Jin to be so transported under 18 U.S.C. § 2(b). Second, Cho contends that the district court made erroneous evidentiary rulings that, taken together, violated her due process right to present a defense. Finally, Cho challenges her sentence, arguing that the district court committed procedural error by applying a four-level leadership enhancement under U.S.S.G. § 3B1.1(a) and that the resulting sentence was substantively unreasonable. Finding no error, we AFFIRM the judgment of the district court.

BACKGROUND

Because Cho appeals from a judgment of conviction entered after a jury trial, the following facts are drawn from the trial evidence and described in the light most favorable to the government. United States v. Bahel, 662 F.3d 610, 617 (2d Cir.2011).¹

In October 2010, after losing money gambling at a casino, Mei Hua Jin telephoned Cho from Atlantic City to see whether Cho could find her employment as a prostitute. Cho was aware that Jin was calling from Atlantic City. Cho had extensive contacts in the sex-trafficking industry and worked to provide prostitutes to brothels, often determining prostitutes' placement based on their age and physical appearance. Cho and Jin had previously worked together at a Connecticut brothel and at a prostitution business that Cho operated in Manhattan. After receiving Jin's phone call, Cho arranged to have one of her contacts inform Jin that a position at a Manhattan brothel was available. This contact was a confidential informant (“CI”) for law enforcement who had a lengthy relationship with Cho in the sex-trafficking industry. On October 7, 2010, the CI spoke with Jin about traveling from Atlantic City to New York so that she could be placed at the Manhattan brothel designated by Cho. On October 8, after speaking to Cho and the CI, Jin bought a bus ticket with her own money and traveled from Atlantic City to Manhattan. She then took the subway to Flushing, where Cho and the CI awaited her arrival. The three then began driving to the Manhattan brothel, though Cho was dropped off at home before Jin and the CI reached their destination. The brothel rejected Jin because she was too old, and Jin then returned to Flushing.

On October 25, 2011, the Government filed a three-count Superseding Indictment. As relevant to this appeal, Count Two charged Cho with transporting Jin from New Jersey to New York to work at a brothel, and willfully causing her to be so transported in violation of 18 U.S.C. §§ 2241 and 2. On November 7, 2011, after a five-day trial, the jury convicted Cho of all three counts. After the verdict, Cho renewed her motion under Rule 29 of the Federal Rules of Criminal Procedure for a judgment of acquittal on Counts Two and Three. In the alternative, Cho requested a new trial on those counts pursuant to Rule 33. The district court denied Cho's motion, finding that there was ample evidence to support the jury's verdict. Applying a four-level leadership enhancement under U.S.S.G. § 3B1.1(a), the district court sentenced Cho to an aggregate term of 70 months' imprisonment, to be followed by two years of supervised release, and a $300 special assessment.

DISCUSSION

I. Sufficiency of the Evidence

Cho argues that the district court erred in denying her Rule 29 motion for judgment of acquittal on Count Two, because there was insufficient evidence to establish that she transported Jin in interstate commerce or caused her to be so transported. We disagree.

“In challenging the sufficiency of the evidence, the defendant faces an uphill battle, and bears a very heavy burden....” United States v. Crowley, 318 F.3d 401, 407 (2d Cir.2003) (citation omitted) (internal quotation marks omitted). Although we review sufficiency challenges de novo, the evidence must be viewed in the light most favorable to the government, with all reasonable inferences drawn in its favor. See United States v. Henry, 325 F.3d 93, 103 (2d Cir.2003). The question is “not whether this [C]ourt believes that the evidence at trial established guilt beyond a reasonable doubt,” United States v. Brown, 937 F.2d 32, 35 (2d Cir.1991), but rather, whether “ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Persico, 645 F.3d 85, 105 (2d Cir.2011), quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original).

Under 18 U.S.C. § 2421, it is a crime to “knowingly transport[ ] any individual in interstate or foreign commerce ... with intent that such individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense.” 18 U.S.C. § 2421. “A defendant will be deemed to have transport[ed] an individual under Section 2421 where evidence shows that the defendant personally or through an agent performed the proscribed act of transporting.” United States v. Holland, 381 F.3d 80, 86 (2d Cir.2004) (alteration in original) (internal quotation marks omitted). As the district court properly instructed the jury, without objection from defense counsel:

The prosecution does not need to prove that the defendant personally transported the individual across a state line. This element is satisfied if you find that the defendant prearranged the transportation of a person across a state line and that the defendant personally or through an agent arranged intrastate transportation as a continuation of the interstate travel.

J. App'x 97.

Similarly, and also without objection, the district court instructed the jury that Cho could be found guilty under 18 U.S.C. § 2(b) “even if she acted through someone who was entirely innocent of the crimes charged in the indictment, even if [she] acted through a government agent.” See United States v. Ordner, 554 F.2d 24, 29 (2d Cir.1977) (“It is ... well recognized that the guilt or innocence of the intermediary under a § 2(b) charge is irrelevant”).

Viewed in the light most favorable to the government, the evidence at trial established that Jin called Cho from Atlantic City, seeking a job as a prostitute. Cho put Jin in contact with the CI, who spoke with her about traveling to New York to engage in prostitution. Jin traveled from Atlantic City to New York, where Cho and the CI picked her up. Cho then had the CI drive Jin to Manhattan so that Jin could work in a brothel.

Cho does not dispute that one who arranges another's transportation across state lines for purposes of prostitution violates § 2421. She contends, however, that she did not “arrange” Jin's interstate travel because she did not pay for Jin's ticket or book her passage. We disagree. By agreeing, either directly or through the CI, to provide a prostitution job for Jin, and by coordinating and prearranging the date and time on which she would travel, Cho arranged for Jin to travel from New Jersey to New York to engage in prostitution. Moreover, by providing the CI to drive Jin on the last, intrastate leg of her interstate trip, Cho directly organized Jin's transportation in interstate commerce.² Like the Fifth Circuit, which reached the same result on indistinguishable facts, we conclude that this was sufficient evidence from which a rational jury could find the elements of the offense satisfied. See, e.g., United States v. Clemones, 577 F.2d 1247, 1253 (5th Cir.1978) (holding that defendant transported prostitute under 18 U.S.C. § 2421, where defendant arranged via telephone for prostitute to cross state line, then drove prostitute to defendant's brothel upon her arrival in defendant's state). Accordingly, we decline to disturb the jury's verdict.

II. Trial Rulings

Cho next argues that the district court violated her due process rights by prohibiting her from introducing evidence that the complainants voluntarily traveled to New York. Once again, we disagree.

A defendant has a fundamental due process right to present a defense. Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). That right, of course, is not absolute, for a defendant “must comply with established rules of procedure and evidence designed to assure both fairness and reliability.” Washington v. Schriver, 255 F.3d 45, 56 (2d Cir.2001) (internal quotation marks omitted). Thus, a defendant does not have an unfettered right to offer testimony that is inadmissible under the rules of evidence. See Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988); cf. Williams v. Lord, 996 F.2d 1481, 1483 (2d Cir.1993) (noting that restrictions on the right to present a defense may not be “arbitrary or disproportionate to the purposes they are designed to serve”) (internal quotation marks omitted).

A district court has “wide discretion to exclude proffered...