United States v. Tee
Decision Date | 06 February 2018 |
Docket Number | No. 16-3243,16-3243 |
Citation | 881 F.3d 1258 |
Parties | UNITED STATES of America, Plaintiff–Appellee, v. Kay TEE, Defendant–Appellant. |
Court | U.S. Court of Appeals — Tenth Circuit |
Kurt P. Kerns of Ariagno, Kerns, Mank & White, LLC, Wichita, Kansas (Melanie S. Morgan of Morgan Pilate LLC, Kansas City, Missouri, with him on the brief), for Defendant–Appellant.
Jason W. Hart, Assistant United States Attorney (Thomas E. Beall, United States Attorney, with him on the brief), Wichita, Kansas, for Plaintiff–Appellee.
Before BACHARACH, McKAY, and MURPHY, Circuit Judges.
Mr. Kay Tee appeals his conviction on three federal criminal counts: (1) attempted coercion and enticement to travel to engage in prostitution, (2) interstate transportation in aid of racketeering enterprises, and (3) money laundering. These counts grew out of Mr. Tee's discussions with a government informant (known as "Lucy") who had contacted Mr. Tee, ostensibly for help in opening a massage parlor in Wichita, Kansas. The government's trial theory was that Mr. Tee had tried to help Lucy, thinking that she wanted to buy a massage parlor and operate it as a prostitution business. Mr. Tee denied guilt and pressed an affirmative defense of entrapment. The jury rejected the entrapment defense and found guilt on the three counts, leading Mr. Tee to appeal.
This appeal involves four issues:
Mr. Tee was a Wichita businessman. Being Chinese and bilingual, Mr. Tee often worked as a middleman between Mandarin-speaking business owners and local vendors. Some of the businesses were massage parlors that were suspected fronts for prostitution.
To investigate these suspicions, the Wichita police arranged a series of telephone calls between Mr. Tee and Lucy. Lucy pretended to be a New York businesswoman interested in buying a massage parlor in Wichita. For over two months, Mr. Tee advised Lucy by telephone as she pretended to look for a massage parlor to buy.
The police also used another informant, a prostitute known as "Jenny," to investigate Mr. Tee. The police directed Jenny to seek Mr. Tee's help in selling her business. When Mr. Tee did not try to connect Lucy and Jenny, the police instructed Jenny to tell Mr. Tee that she had found a buyer. Jenny complied, telling Mr. Tee that the buyer was Lucy.
Mr. Tee tried to discourage Lucy from buying Jenny's business. He explained that Jenny had been busted once for prostitution and that another bust would lead the police to close the business. Instead, Mr. Tee encouraged Lucy to look for other available shops. But when Lucy continued to express interest in buying Jenny's massage parlor, Mr. Tee assured Lucy that he would help her finalize the purchase. In their last telephone call, Mr. Tee agreed to pick up Lucy at the airport.
Afterward Jenny paid Mr. Tee $100, but the parties disagree on the purpose of the payment. Mr. Tee told authorities that the fee was to pick up Lucy at the airport; the government characterizes the payment as a fee to broker the sale of Jenny's prostitution business to Lucy.
When Mr. Tee arrived at the airport to pick up Lucy, he was arrested. He was later convicted on the three counts.
A. Standard of Review
Sufficiency of the evidence entails a legal issue that we review de novo. See United States v. Thomas , 849 F.3d 906, 909 (10th Cir. 2017). In undertaking this review, we consider the evidence in the light most favorable to the government, asking whether any rational trier of fact could find every element of a given offense. Id. In answering this question, we cannot weigh conflicting testimony or consider the credibility of witnesses. United States v. Rodebaugh , 798 F.3d 1281, 1296 (10th Cir. 2015).
B. Entrapment
To find Mr. Tee guilty, the jury had to find each element of the crimes beyond a reasonable doubt. Alleyne v. United States , 570 U.S. 99, 104, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). Mr. Tee pleaded an entrapment defense; therefore, the government also had to disprove entrapment beyond a reasonable doubt. United States v. Nguyen , 413 F.3d 1170, 1178 (10th Cir. 2005).
Id. (quoting United States v. Duran , 133 F.3d 1324, 1335 (10th Cir. 1998) ) (quotation marks omitted).
C. Persuasion of Interstate Travel To Engage in Prostitution
See id. ; United States v. Rashkovski , 301 F.3d 1133, 1136 (9th Cir. 2002). And to overcome Mr. Tee's entrapment defense, the government needed to prove beyond a reasonable doubt that Mr. Tee had been predisposed to commit the crime. See Part II(B), above.
We reject Mr. Tee's contentions.
First, the government presented sufficient evidence that Mr. Tee had tried to persuade Lucy to travel from New York to Wichita. Mr. Tee argues that it was Lucy's idea to come to Wichita. Because the idea to travel originated with Lucy, he claims that a reasonable jury could not have found guilt. Mr. Tee is mistaken. Regardless of who originated the idea, Mr. Tee consistently encouraged Lucy to come to Wichita, boasting about how quickly and cheaply he could get her massage parlor ready:
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