Yu v. U.S.
| Citation | 183 F.Supp.2d 657 |
| Decision Date | 28 January 2002 |
| Docket Number | No. 99 CIV. 10272(RWS).,99 CIV. 10272(RWS). |
| Parties | Kwok Ching YU, Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Linda S. Sheffield, Esq., Atlanta, GA, for Petitioner.
James B. Comey, United States Attorney for the Southern District of New York by David C. Esseks, Esq., Assistant U.S. Attorney, New York City, for Respondent.
Kwok Ching Yu ("Yu") has petitioned for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241(c)(3), contending that under Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999), his conviction after trial of engaging in a continuing criminal enterprise (CCE), in violation of 21 U.S.C. § 848(a) ("CCE"), was flawed because the jury was not instructed that it had to unanimously agree on the components of the "continuing series violations" that constituted the continuing criminal enterprise. The Government opposes the petition. For the reasons set forth below, Yu's petition is denied.
The facts and prior proceedings in this action are fully set forth in prior opinions of this Court and the Court of Appeals, familiarity with which is presumed. See United States v. Yu, 1994 WL 579308, 41 F.3d 1501 (1994); Yu v. United States, No. 99 Civ. 10272(RWS), 2000 WL 1844763 (S.D.N.Y. Dec. 15, 2000); Kwok Ching Yu v. United States, No. 97 Civ. 2816(RWS), 1998 WL 160964 (S.D.N.Y. Apr. 7, 1998); United States v. Yu, 902 F.Supp. 464 (S.D.N.Y.1995).
On December 4, 1990, an indictment was filed against Yu and three other co-defendants: Davies Yu ("Davies"), Simon Lai ("Lai"), and Moni Chan ("Chan"). Count One charged Yu and his three co-defendants with conspiracy to distribute heroin, in violation of 21 U.S.C. § 846. Count Two charged all defendants with conspiracy to import heroin in violation of 21 U.S.C. § 963. Count Five charged Yu with conducting a continuing criminal enterprise (CCE), in violation of 21 U.S.C. §§ 848(a), (b). Counts Six and Eight charged Yu and his co-defendants with importing heroin on two separate occasions, in violation of 21 U.S.C. §§ 812, 952, 960(a)(1), 960(b)(1)(A), and 18 U.S.C. § 2. Counts Seven and Nine charged Yu and certain of his co-defendants with distributing heroin on two separate occasions, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(a) and 18 U.S.C. § 2.1
Yu was tried on the indictment in April 1992. The jury deadlocked near the end of the third week of the trial, resulting in a mistrial. Yu's second trial, ending on December 15, 1992, resulted in his conviction on all counts. Because of the large quantity of heroin involved, Yu was sentenced on December 3, 1993 to mandatory life imprisonment, to be followed by five years of supervised release, and mandatory special assessments totaling $350.
Yu appealed his conviction on grounds including ineffective assistance of trial counsel, insufficient evidence, and prosecutorial misconduct. The Second Circuit affirmed his convictions in a summary order dated September 20, 1994. United States v. Yu, 1994 WL 579308, at *5, 41 F.3d 1501 (2d Cir.1994). On December 21, 1994, the Court of Appeals denied Yu's Petition for Rehearing and Suggestion for Rehearing En Banc.
On June 21, 1995, Yu filed a motion for a new trial, pursuant to Rule 33, Fed. R.Crim.P., based on allegedly "newly discovered evidence" concerning a cooperating witness who did not testify at trial. This Court denied the motion on October 25, 1995. United States v. Yu, 902 F.Supp. 464 (S.D.N.Y.1995). On July 25, 1996, the Second Circuit affirmed that decision by summary order. Kwok Ching Yu v. United States, 101 F.3d 1393 (2d Cir.1996) (Table).
On April 21, 1997, Yu moved to vacate his conviction pursuant to 28 U.S.C. § 2255. Yu's motion raised the following grounds for relief: (1) his dual conviction for conspiracy and participating in a continuing criminal enterprise (CCE) violated the Supreme Court's holding in Rutledge v. United States, 517 U.S. 292, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996); (2) the Government failed to disclose material exculpatory evidence; (3) the trial court improperly instructed the jury; (4) the prosecution conducted improper cross examination; and (5) prosecutorial misconduct during the trial summation. On April 7, 1998, after submissions by the parties, Yu's conspiracy convictions were vacated in light of Rutledge, and the motion was denied in all other respects. An Amended Judgment reflecting the fact that the conspiracy convictions on Counts One and Two had been vacated was issued on January 24, 2000. See Docket # 142.
Yu moved again for relief pursuant to 28 U.S.C. §§ 2241(c)(3) and 2255 on October 5, 1999, raising the following claims: (1) the jury charge on the CCE count, Count Three, did not require the jury to agree unanimously on the specific violations making up the "continuing series of violations" and therefore violated the Supreme Court's subsequent decision in Richardson; (2) the convictions on the remaining counts must be vacated under Rutledge because the jury was improperly instructed to consider all counts of the indictment as lesser-included offenses in finding the continuing series of violations necessary to convict on the CCE charge. The petition was transferred to the Court of Appeals to determine whether the petition met the "gatekeeping" provisions of § 2255. On April 28, 2000, the Second Circuit issued an order barring relief under § 2255 because the successive petition did not raise any claim of newly discovered evidence or turn on a new rule of constitutional law.
Yu thereafter sought permission to pursue his petition under 28 U.S.C. § 2241(c)(3), the other provision under which the petition had been filed. By opinion dated December 15, 2000, Yu's attack on his CCE conviction was to be considered on the merits pursuant to 28 U.S.C. § 2241, but not his petition to vacate the remaining substantive counts of the indictment pursuant to Rutledge. Yu v. United States, No. 99 Civ. 10272(RWS), 2000 WL 1844763, at *5. (S.D.N.Y. Dec. 15, 2000). The parties were instructed to brief the merits of Yu's CCE claim, including arguments relating to Richardson and the factual components of the "series of violations" element. Yu filed his brief on February 15, 2001, and the Government filed its opposition on June 29, 2001, as agreed to by the parties. On September 20, 2001, Yu filed his reply, at which time the motion was deemed fully submitted.
In Richardson v. United States, the Supreme Court held that "a jury in a federal criminal case brought under § 848 must unanimously agree not only that the defendant committed some `continuing series of violations' but also that the defendant committed each of the individual `violations' necessary to make up that `continuing series.'" 526 U.S. at 815, 119 S.Ct. 1707. Given this holding, a jury considering a CCE charge must be instructed that it was required to agree unanimously upon the specific violations that make up the series of continuing violations that constitute the continuing criminal enterprise.
Despite the fact that Yu's trial jury was not so instructed, the Government has argued that Yu's CCE conviction need not be vacated because the Supreme Court's decision in Richardson, decided seven years after Yu's conviction, does not apply retroactively. While this question had yet to be resolved in this Circuit at the time the parties in this action submitted their initial memoranda of law, a recent decision by the Court of Appeals makes it clear that Richardson does in fact have retroactive effect. In Santana-Madera v. United States, 260 F.3d 133 (2d Cir.2001), the Second Circuit held that the rule announced in Richardson was a new "substantive" rule of criminal law and therefore was retroactively applicable on collateral review.2 The Court explained:
By deciding that the jury had to agree unanimously on each of the offenses comprising the "continuing series" in a CCE count, Richardson interpreted a federal criminal statute and, in doing so, changed the elements of the CCE offense. In other words, it altered the meaning of the substantive criminal law.
Id. at 139 (citing Bousley v. United States, 523 U.S. 614, 620, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)).
Under the rule established in Santana-Madera, because Richardson established a new substantive rule of criminal law, Yu's challenge to the CCE conviction pursuant to Richardson is not precluded by the doctrine of retroactivity.
There is no dispute that the jury instructions issued by this Court on the CCE count did not conform to the requirements established by Richardson. Given Richardson's retroactive application, this constituted error. However, before deciding whether the instructions constituted reversible error, it must next be determined whether this court's instructional error "was of sufficient magnitude to justify issuance of the writ without regard to prejudice, or whether it may be subjected to a harmless error review." Santana-Madera, 260 F.3d at 139.
While it is well-settled that most constitutional errors can be harmless, some errors are so intrinsically harmful that they require automatic reversal. See Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). These so-called "structural errors" are defects "affecting the framework within which the trial proceeds," and are to be distinguished from "simply an error in the trial process itself." Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Structural errors deprive defendants of "basic protections" without which "a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence ... and no criminal punishment may be regarded as fundamentally fair." Neder, 527 U.S. at 8-9, 119 S.Ct. 1827 (quoting Rose v....
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