United States v. Chang An-Lo, A/K/A "White Wolf", Shiang Bao-Jing, A/K/A "Cripple", George Qi Lu, Peter Yang, Lam Tso, A/K/A "Sammy Lam", John Kirkpatrick, Ah Min, Jack Ma, A/K/A "Jack Li", Tung Kuei-Sen and Chen Chih-Yi, A/K/A "Yellow Bird"

Citations: 851 F.2d 547; 1988 U.S. App. LEXIS 8958Docket: 87-1013

Court: Court of Appeals for the Second Circuit; June 27, 1988; Federal Appellate Court

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Defendants-appellants, convicted after an eight-week jury trial in the Southern District of New York, appeal their convictions on a fourteen-count indictment related to RICO activities of the United Bamboo criminal enterprise, which began in Taiwan and operates in the U.S. The indictment's first count charged a RICO conspiracy tied to the murder of journalist Henry Liu, along with various drug conspiracies and racketeering activities. Subsequent counts included narcotics-related offenses, interstate travel in aid of racketeering, illegal firearm transportation, and a passport counterfeiting conspiracy. Sentences for the defendants varied significantly, with Lam Tso receiving twenty-five years and Peter Yang serving one year.

On appeal, the court affirms most convictions but remands the cases of George Qi Lu and Tung Kuei-Sen for compliance with Federal Rule of Criminal Procedure 32(c)(3)(D). The appellants' arguments included claims regarding the evidence sufficiency for certain defendants, denial of motions for severance leading to an unfair trial, the admissibility of foreign business records without original evidence, an ex parte juror examination by the judge regarding media exposure, inconsistencies in verdicts between RICO and non-RICO counts, and the conduct of sentencing proceedings for the remanded defendants.

The United Bamboo, a Chinese organized crime syndicate founded in Taiwan about thirty years ago, has expanded its operations internationally, including to the United States where it is active in cities such as Houston, Los Angeles, San Francisco, and New York. The organization engages in a range of illegal activities, including prostitution, illegal gambling, extortion, kidnapping, murder, and drug trafficking. Its international leader, Chen Chi-Li, traveled to Los Angeles in September 1984 to meet with key members, including U.S. leader Chang An-Lo and financial leader Chen Chih-Yi, to strategize on expanding their activities.

A significant incident involved the planned murder of Taiwanese journalist Henry Liu, executed on October 15, 1984, as a demonstration of the syndicate's power. Following public outrage, Taiwan initiated a crackdown on organized crime, leading to the arrest of many members, including Chen Chih-Yi. In the wake of these events, the United Bamboo sought financial support for arrested members and attempted to aid fugitives.

To further their expansion into New York’s Chinatown, Chang An-Lo sought information from Steven Wong about local street gangs. Wong, however, became an undercover informant for law enforcement and provided critical evidence regarding Liu's murder and the United Bamboo's plans. His five-month investigation yielded numerous recorded conversations that formed part of the trial evidence.

Additionally, there was a conspiracy to obtain and distribute heroin and cocaine between April and September 1985, involving defendants Chang An-Lo, Shiang Bao-Jing, George Qi Lu, Lam Tso, and Tony Wong. Although this plan was ultimately unsuccessful, it resulted in the sale of one pound of heroin and the distribution of three samples to undercover officers.

The government established the existence of a conspiracy involving several defendants and undercover officers, primarily through surveillance of meetings in April and May 1985. Significant discussions centered on the establishment of a narcotics trade, with Chang An-Lo boasting about his connections in the Golden Triangle and expressing intentions to dominate Chinatown. Chang authorized Wong to facilitate narcotics transactions with Lam Tso. Throughout May and June 1985, Tso, assisted by George Qi Lu, sought heroin sources, including arranging meetings in Los Angeles for Chang and a heroin supplier.

Following Chang's arrest on June 6, 1985, Shiang Bao-Jing took over leadership of the United Bamboo organization in Los Angeles, continuing Chang's narcotics trafficking plans. During a meeting on June 19, Shiang presented a ten-point development plan that included narcotics trafficking, and he discussed narcotics sources with Wong and Lu. Shiang indicated he would arrange future meetings for Wong with narcotics sources and mentioned the availability of heroin and cocaine samples.

Despite attempts to secure narcotics from the Golden Triangle, the conspiracy ultimately led to Lam Tso arranging a sale of 354 grams of heroin for $48,000 on July 26-27, 1985, with further samples provided subsequently. Additionally, a second conspiracy emerged involving defendants Chen Chih-Yi, Jack Ma, John Kirkpatrick, Lam Tso, and Tony Wong, aimed at distributing 150 pounds of marijuana and cocaine, with Chen supplying an undercover officer with a cocaine sample. The government's evidence largely relied on the activities of Wong and other undercover officers.

On June 25, 1985, Steven Wong met with Chen Chih-Yi in New York, where Chen expressed his ability to deal in marijuana and cocaine. The following day, Wong paid Chen a $5,000 deposit for 100 pounds of marijuana intended for shipment from Texas to New York City. On July 1, Wong, accompanied by two undercover associates, visited Texas at Chen's invitation, meeting Chen's marijuana suppliers and defendant Jack Ma for the first time. On July 2, Chen provided Wong with samples of marijuana and cocaine. 

Later, on July 31, Wong sent a partial payment to Chen for the marijuana, while Chen agreed to provide defendant Lam Tso with an additional 50 pounds of marijuana on consignment and six firearms. On August 7, defendant John Kirkpatrick drove to New York with the marijuana and firearms, where he met Chen and others. At a designated location, one undercover agent exchanged $25,000 with Jack Ma for the drugs and weapons.

The conspiracy evolved to involve the import and distribution of 300 kilograms of heroin, with defendants Chen Chih-Yi, Tung Kuei-Sen, Jack Ma, Peter Yang, and Ah Min participating from June to September 1985. Wong learned about the heroin plan on July 24, when Chen mentioned Tung Kuei-Sen’s assurance that the heroin would arrive from Thailand. After further discussions and a trip by Chen to Brazil to meet Tung, negotiations continued in New York. On August 20, Chen introduced Peter Yang to Wong, describing him as a key enforcer in the operation. 

The heroin transaction was finalized in New York from September 13 to 15, 1985, during which $50,000 was handed to Chen to secure the deal. The defendants were subsequently arrested, leading to their indictment, trial, and conviction. The sufficiency of the evidence for the convictions of defendants Shiang Bao-Jing, George Qi Lu, Peter Yang, and Jack Ma is under scrutiny, with individual claims being addressed.

Defendants Shiang Bao-Jing and George Qi Lu assert that the evidence is insufficient to uphold their conviction for conspiracy related to heroin and cocaine trafficking. The appellate standard for sufficiency claims places a heavy burden on the defendant, requiring that the jury could reasonably infer guilt beyond a reasonable doubt when viewing the evidence favorably for the government. Conspiracy can be proven through circumstantial evidence, given its inherently secretive nature. However, mere presence at a crime scene or association with conspirators does not suffice to establish conspiracy membership; purposeful behavior aimed at advancing the conspiracy must be demonstrated.

Specifically regarding Shiang Bao-Jing, evidence indicates his active involvement in the drug distribution scheme. Recorded conversations from June and July 1985 reveal his intention to continue profitable ventures, including drug transactions planned by Chang after his arrest. Shiang orchestrated meetings with George Qi Lu, discussing narcotics sources and actively engaging in arrangements for heroin and cocaine transactions. His communications included details about potential narcotics dealings and efforts to facilitate meetings with associates to further these plans.

Sufficient evidence established Shiang Bao-Jing's active involvement in the conspiracy outlined in count three of the indictment, as well as supporting George Qi Lu's conviction. Lu's argument that he was merely assisting a buyer and seller is contradicted by his recorded conversations, which reveal extensive participation in the heroin-cocaine conspiracy. For instance, during a June 19, 1985 meeting, Lu detailed his heroin source from the Golden Triangle and mentioned previous introductions to Lam Tso for arranging sales, expecting a "red envelope" as compensation. This indicates a deeper involvement than simply facilitating a transaction. Additionally, Lam Tso informed Wong that Lu would meet a heroin source to organize deals, suggesting that Lu was acting collaboratively within the conspiracy. Lu also coordinated a meeting between Chang An-Lo and his heroin source, reinforcing his conspiratorial role.

Peter Yang's challenge to his conviction on count ten, related to the conspiracy to import and distribute 300 kilograms of heroin, is unsubstantiated. Evidence shows Yang participated in an August 20, 1985 meeting with United Bamboo members, discussing the heroin deal, where he was introduced as a prominent member and remarked that the heroin was "worthwhile fighting over." Following the meeting, Yang acknowledged the impact of law enforcement actions against United Bamboo, further affirming his involvement. Yang's claim that his participation was unrelated to the conspiracy is undermined by his active engagement in discussions centered on the heroin scheme, allowing a rational juror to find him guilty of conspiracy.

Jack Ma contests the adequacy of evidence supporting his convictions on various counts related to RICO conspiracy, narcotics, and illegal firearms transportation. The court finds his claims unpersuasive, noting that Ma was actively involved in the conspiracies, including participating in the delivery of marijuana and firearms and being present at significant meetings regarding heroin transactions. Additionally, he served as the bodyguard for a key figure in the criminal organization.

Defendants Ah Min and John Kirkpatrick argue that their motion for severance was improperly denied, claiming it violated their right to a fair trial. The court states that under Fed. R. Crim. P. 14, severance is at the trial judge's discretion, and such a denial can only be overturned upon clear abuse of discretion. The burden lies with the defendants to prove substantial prejudice from a joint trial, rather than a mere possibility of a better outcome in separate trials.

The defendants assert that much of the evidence was inadmissible against them and that it led to prejudicial spillover effects, particularly concerning evidence related to a murder. The court rejects this argument, clarifying that the admissibility of evidence against different defendants does not necessitate severance. It concludes that the evidence presented was clear enough for the jury to consider each defendant's case separately and that the judge's instructions to the jury further mitigated any potential prejudice.

Ah Min and Kirkpatrick argue for a separate trial due to their lesser roles in the conspiracies, claiming that a joint trial may lead to improper inferences against them. However, the court cites established precedent indicating that varying levels of culpability in multi-defendant trials do not justify separate trials. As a result, Judge Carter's denial of their request for severance is upheld, showing no abuse of discretion.

Defendant Tung Kuei-Sen contests the admission of duplicate telephone records, which indicate calls made from his hotel room in Rio de Janeiro to Ah Min in Bangkok. Tung argues these records lack reliability because they are duplicates and not the originals. The court finds this argument unpersuasive, noting that the admissibility of secondary evidence lies within the trial judge's discretion. The government presented the logs under the business records exception to the hearsay rule, which allows such records if made by someone with knowledge during regular business operations.

The court further clarifies that duplicates are generally admissible unless authenticity is genuinely questioned or it would be unfair to use them instead of the originals. Tung failed to raise valid concerns regarding authenticity or trustworthiness of the duplicates, relying instead on speculation. The government provided testimony from a qualified witness, the deputy manager of the hotel, who confirmed the logs were maintained as part of the hotel's normal business practice. Thus, the court finds no basis for Tung's objection to the evidence.

The American Consulate in Rio de Janeiro certified the duplicate copies of telephone logs as true and faithful reproductions of the originals, affirming their authenticity. The defendant failed to challenge this authenticity effectively, justifying the trial judge's decision to admit the duplicates as evidence.

Defendant Chen Chi-Yi argued that the trial judge improperly denied his motion for a mistrial due to a juror reading a newspaper article about the trial during deliberations. Chen claimed that Judge Carter's inquiry into the matter was insufficient and that defense counsel should have been allowed to participate in discussions with the jurors involved.

On September 22, 1986, during deliberations, juror Geels reported that another juror had read a newspaper article and expressed concerns about that juror's impartiality. Judge Carter privately questioned both jurors, confirming that the article’s contents were not shared with the rest of the jury and that the juror who read it asserted it did not affect his judgment.

Subsequently, Judge Carter informed all parties in open court about the incident and invited further suggestions from counsel. Defense counsel objected to not being notified before the jurors were questioned and declined the judge's offer to interview the jurors themselves, subsequently moving for a mistrial, which was denied. The trial court has broad discretion in handling inquiries regarding the influence of outside information on a jury, guided by established circuit precedents.

The trial judge must first assess the potential for unfair prejudice from media coverage related to the case. If the coverage does not exceed the evidence presented or is deemed innocuous, further investigation may not be required. The jury should be questioned individually to determine if any member has been exposed to prejudicial publicity, which necessitates evaluating the impact on their impartiality. Judge Carter adhered to these protocols by individually questioning affected jurors and determining that the article in question would not affect their impartiality. He concluded that the article was innocuous and found no influence on the rest of the jurors. Consequently, he acted within his discretion by allowing the jury to continue deliberating without reversible error.

Defendants Chang An-Lo, Tung Kuei-Sen, and Jack Ma contest their convictions on the basis of inconsistent jury verdicts. Specifically, they were convicted of conspiracy charges while being acquitted of RICO charges related to the same conduct. They argue that the inconsistency warrants reversal of their conspiracy convictions. However, established precedent from Dunn v. United States and reaffirmed in United States v. Powell indicates that a defendant cannot challenge a conviction based on the inconsistency of verdicts. Thus, no reversible error is found regarding the jury's verdicts.

Inconsistent verdicts can arise from jury compromise, mistake, or lenity, as established by the Supreme Court, which indicated that such inconsistencies are often a result of jury error that does not clearly disadvantage either party. The Court emphasized that the government cannot challenge an inconsistent acquittal due to the double jeopardy clause. Furthermore, defendants cannot contest inconsistent verdicts on the grounds of jury lenity or alleged errors that negatively impact them, as such challenges would be speculative and intrude upon jury deliberations. Defendants are protected from irrational jury decisions through independent reviews of evidence sufficiency by trial and appellate courts.

In this case, even if some verdicts appear inconsistent, particularly regarding RICO counts, it does not warrant reversal of the guilty verdicts. Additionally, defendant Tung Kuei-Sen asserted that the district court did not adhere to Fed. R. Crim. P. 32(c)(3)(D) regarding alleged inaccuracies in the presentence investigation report. Tung seeks a remand for a hearing to address these allegations. Similarly, defendant George Qi Lu claimed his contested allegations in the presentence report were improperly denied a hearing by the district court, seeking vacation of his sentence and remand for a hearing. The review of the sentencing transcript reveals a lack of explicit compliance with Rule 32(c)(3)(D) for these defendants, and since such compliance is mandatory in this circuit, the court has decided to remand for the necessary findings or determinations.

The district court may choose to make findings on disputed allegations in the defendants' presentence reports and must then decide if a hearing is necessary. The court has determined that other claims made by the defendants are without merit and has affirmed the convictions. The case is remanded for compliance with Federal Rule of Criminal Procedure 32(c)(3)(D) for defendants Tung Kuei-Sen and George Qi Lu. Notably, Tony Wong is not part of this appeal despite being a convicted defendant. The excerpt details Chang's arrest related to a kidnapping intended to extort money and describes Shiang's involvement in the criminal conspiracy, including discussions of drug smuggling. Additionally, it references Federal Rules of Criminal Procedure regarding the joinder of offenses and defendants in indictments, highlighting the court's discretion to separate trials if necessary to avoid prejudice.