Court: Court of Appeals for the Second Circuit; January 13, 1994; Federal Appellate Court
The appeal involves Johnny Eng, convicted of drug offenses, specifically heroin trafficking, and sentenced to a lifetime term of supervised release. Eng challenged the legality of this sentence, citing a general statute that limits supervised release terms for Class A and B felonies to five years (18 U.S.C. § 3583(b)). However, the statute governing drug offenses mandates a minimum five-year supervised release term for serious violations, suggesting longer terms are permissible (21 U.S.C. § 841(b)(1)(A)). The court ruled that Congress intended the latter statute to take precedence in such cases, affirming the lifetime supervised release sentence.
Eng's drug trafficking operation involved importing heroin from Hong Kong through various methods, including couriers and concealed shipments. The evidence showed he paid couriers substantial sums for multiple shipments totaling 66 kilograms of heroin. Additionally, 78 kilograms concealed in a washing machine were considered during sentencing, despite Eng's acquittal on related charges. Eng's operation included recruiting individuals to receive heroin packages for payment, demonstrating a coordinated effort in the trafficking scheme. The court found sufficient evidence to uphold Eng's conviction and sentence.
Following a second delivery of heroin, Lee and Yu traveled to Hong Kong with Eng, who introduced them to a contact named Ming, responsible for sending heroin parcels. Lee provided Eng with names of four additional recipients. Shortly after their return, four more parcels, each containing seven kilograms of heroin, were delivered, with one parcel going to Cathy Leung's home. With Eng's approval, Lee sold part of the heroin to Ching-Yi Chen, and subsequently, Lee and Yu began selling heroin independently. They traveled back to Hong Kong under Eng's direction, carrying over half a million dollars for Ming.
Further deliveries included parcels sent to "Helen" and Agnes Chin's residence, from which Lee sold portions to Chen. The delivery of the sixth parcel occurred in late 1987 or early 1988, while the seventh went to Gwendolyn Chan's home. The eighth parcel arrived in early 1988 at Agnes Chin's residence and was delivered to Eng by Lee.
On February 9 and 10, 1988, three additional heroin packages addressed to locations in New York arrived at customs in California, one meant for M. Hsieh at Chan's address. A controlled delivery led to Chan's arrest, after which she cooperated with authorities, resulting in the arrests of Leung, Lee, Yu, and Tina Wong by early March 1988.
In a related case, United States v. Michael Yu, the government charged Lee, Yu, and others with conspiracy to distribute heroin. The government presented a different narrative regarding Tina Wong's involvement, initially claiming she delivered the first two packages to Chen, but later asserting she delivered them to Eng and another individual. This shift in the narrative followed a reevaluation of Wong's credibility, leading to the vacation of Chen's conviction. Notably, Eng's name was not mentioned in the Yu trial, as Lee and Yu had the most direct dealings with him and were the primary defendants.
Eng was in custody in Hong Kong from August 16, 1989, until his extradition to the United States on November 1, 1991. After a four-week jury trial, he was convicted on all counts related to drug courier and mail package importation schemes but acquitted of charges linked to a bean sprout machine scheme. His convictions included continuing criminal enterprise (CCE), conspiracy to distribute heroin, importation of heroin, and distribution and possession with intent to distribute heroin, leading to a sentence of 151 months for CCE and 292 months for the substantive drug offenses, all running concurrently, followed by supervised release.
Eng argued that the District Court abused its discretion by refusing to admit evidence from a prior trial involving witness Tina Wong. In that trial, the government claimed Wong delivered packages to a different individual, whereas in the current case, the evidence suggested she delivered them to Eng. The District Court, presided over by Judge Raggi, denied the motion to admit this evidence, reasoning that the inconsistency could be adequately addressed through Wong's testimony. Judge Raggi emphasized that the jury should evaluate the credibility of witnesses in person rather than relying on extraneous evidence. The Court assured Eng that he would have the chance to highlight the government's inconsistency during Wong's testimony. Eng confirmed Wong was available to testify, either for the government or the defense.
Neither the Government nor Eng called Tina Wong as a witness, and Eng did not renew his motion after realizing she would not testify. Consequently, he waived his right to challenge the District Court's decision not to admit the Government's bill of particulars, summation, and the agent's grand jury testimony. The Seventh Circuit's precedent mandates that if evidence is conditionally admitted, the party seeking its exclusion must renew the objection if the condition is unmet, which applies in this case as the evidence was effectively excluded.
Regarding multi-count sentencing, Eng contends that the District Court incorrectly applied the Sentencing Guidelines by increasing his offense level for leadership in a continuing criminal enterprise (CCE) conviction. The District Court grouped all fourteen counts and calculated a total of 228 kilograms of heroin from non-CCE counts, establishing a base offense level of 36 under U.S.S.G. Sec. 2D1.1(a)(3). The Court then added 4 levels for Eng's leadership role, resulting in an adjusted offense level of 40, which was higher than the level for the CCE count. Eng argues the Court should have used the CCE count's offense level as the most serious conviction, but the Guidelines specify that when counts are grouped based on quantity, the highest offense level from the aggregated counts should be applied. Since the aggregated counts produced a higher offense level than the CCE count, the Court's decision to use 40 as the combined offense level was appropriate. The reference to the CCE count as a serious offense does not obligate it to dictate the group's offense level.
Eng argues that the Court erred in its multi-count analysis by applying the role adjustment under Part B of Chapter Three to the aggregated offense level before comparing it to the CCE count. He contends the proper approach would have been to first compare the base offense levels of the aggregated counts and the CCE count, select a combined offense level, and then make adjustments under Parts A, B, and C. Eng believes this method would have prevented his offense level from being increased by 4 for his leadership role, which he asserts was already reflected in the CCE offense. He cites a note from the 1992 Guidelines to support his position, claiming it necessitates grouping counts and adjusting the combined offense level accordingly. However, it is clarified that the note merely indicates that courts should consider the overall conduct of the defendant when applying Chapter Three adjustments, not that adjustments must apply to the group offense level as a whole.
Additionally, Eng challenges the imposition of a lifetime supervised release term, presenting two arguments for its reversal. He first claims the District Court improperly departed upward from the maximum five-year supervised release term established by the Guidelines, arguing this violated the ex post facto clause since the grounds for departure were only available under the 1988 Guidelines. Eng specifically contends that the upward departure was based on drug quantity, which he argues was already accounted for in the 1987 Guidelines. The Court finds this argument without merit, explaining that Judge Raggi’s rationale for the upward departure was justified by the significant scale of Eng's heroin trafficking. The authority for such departures exists under 18 U.S.C. § 3553(b), which applies to supervised release terms as well as imprisonment.
The District Court issued an upward departure on substantive narcotics counts but did not do so for the continuing criminal enterprise (CCE) count, as the 1987 Guidelines already accounted for drug quantity with an offense level of 43 for 300 kilograms of heroin. For smuggling offenses, the 1987 Guidelines lack differentiation based on quantities exceeding 10 kilograms, indicating that the Sentencing Commission did not sufficiently address the need for longer supervised release terms in large-scale heroin trafficking cases. Consequently, the District Court was justified in exceeding the supervised release Guidelines range to reflect concerns over the scale of Eng's narcotics activities.
A second issue raised was whether a lifetime term of supervised release contravenes 18 U.S.C. Sec. 3583(b), which sets a maximum of five years for Class A or B felonies unless otherwise specified. Eng, convicted under 21 U.S.C. Sec. 841(b)(1)(A), argued that the minimum five-year term coincided with the maximum allowed under section 3583(b)(1), requiring the judge to impose exactly a five-year term. The Government countered that section 841(b)(1)(A) supersedes the five-year maximum. This case presents a novel issue in the Circuit regarding the interplay of supervised release terms under sections 3583(b) and 841(b). Three scenarios arise: 1) a minimum from section 841(b) lower than section 3583(b)'s maximum; 2) a minimum equal to section 3583(b)'s maximum, as in Eng's case; and 3) a minimum greater than section 3583(b)'s maximum, applicable to defendants with prior convictions.
Section 3583(b) establishes maximum terms for supervised release, which can be overridden by other statutes. The excerpt asserts that cases in a specific category necessitate a supervised release term exceeding the general maximum of section 3583(b) and confirms that the second category of cases also falls under this exception. It argues against Eng's interpretation, which would negate the "at least" language in the statute, emphasizing the principle that statutes should not render portions superfluous. The historical context is provided, noting that Congress intended to enhance penalties for drug offenses through the Narcotics Penalties and Enforcement Act of 1986, which included amendments to section 3583(b) to allow for longer supervised release terms as specified in statutes like 21 U.S.C. Sec. 841. The excerpt concludes that the District Court's imposition of a lifetime supervised release term for Eng did not violate section 3583(b), affirming the court's judgment. Additional details include the merging of charges against Eng, the weight of heroin involved in his offenses, and the legal precedents supporting the use of preponderance of evidence at sentencing despite acquittals. The discussion also touches on adjustments for acceptance of responsibility and the implications of amendments to sentencing guidelines. The final note clarifies that no ambiguity exists in the penalty statute, thus negating the need for the rule of lenity.
