United States v. Li Xiang Feng

Citation: 25 F. App'x 635Docket: No. 00-50063, 00-50077, 00-50089, 00-50178. D.C. No. CR-98-2812-BTM

Court: Court of Appeals for the Ninth Circuit; January 17, 2002; Federal Appellate Court

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Li Xiang Feng, Chen Biao, Tu Yu Piao, and Hui Lin were convicted by a jury for conspiracy to bring aliens into the United States and attempting to do so for financial gain, violating various U.S. statutes. They appealed the convictions, asserting insufficient evidence to support the charges. The court reviewed the sufficiency of evidence under a de novo standard, determining that a rational trier of fact could find the essential elements of the crime proven beyond a reasonable doubt.

To establish an attempt, the government must demonstrate culpable intent and conduct that constitutes a substantial step toward committing the crime. A substantial step is defined as conduct that strongly supports the defendant’s criminal intent, and mere preparation is insufficient; there must be an appreciable fragment of the crime in progress.

The appellants contended that they had not taken a substantial step since they did not successfully bring any aliens into the U.S. or even Mexico. However, the court found this argument unpersuasive. Evidence indicated that the appellants transported over 100 aliens on a fishing vessel from China toward a point near San Diego and Mexico, intending to smuggle them into the U.S. for payment. The operation would have proceeded without interruption from law enforcement, affirming that sufficient evidence existed to demonstrate their substantial step and intent to commit the crime. Thus, the court affirmed the convictions for all appellants.

The appellants contend that the lack of an express aiding and abetting provision in 8 U.S.C. 1324(a)(2) necessitates the reversal of their convictions for attempting to bring aliens into the U.S. for financial gain under 8 U.S.C. 1324(a)(2)(B)(ii) and 18 U.S.C. 2. However, prior case law, specifically United States v. Angwin, clarifies that this absence does not warrant reversal, as Congress did not intend to exclude subsection (a)(2) from the general principle that an aider and abettor can be punished similarly to a principal.

Appellant Biao argues that the government acted in bad faith by depriving the defense of crucial testimonial evidence, specifically the loss of Chen Siao Biao, who could have provided exculpatory information. Biao also claims that the government improperly released other aliens from detention without adequate notice. The standard for dismissing an indictment due to the government's failure to retain a witness is reviewed de novo. A two-pronged test is applied to evaluate whether the absence of testimony violated due process rights: the defense must demonstrate government bad faith and resulting prejudice. Bad faith can be shown if the government deviates from normal procedures or deports witnesses to gain a trial advantage. Prejudice requires a plausible indication that the lost testimony would have been material and favorable, not merely cumulative to existing witness testimonies. In this case, after three months in custody, the INS set bond for the witnesses, and the defense was permitted to read Chen Siao Biao's testimony into the record due to his unavailability.

The district court designated several witnesses as material for both the government and the defense, finding no evidence of improper deportation practices by the government that would indicate bad faith. Biao failed to demonstrate any prejudice from the witnesses’ deportation, as compelling evidence supported his conviction and Chen Siao Biao’s statement was admitted. The defense could not show that the released aliens’ potential testimonies would differ from existing corroborative evidence. 

Regarding the sufficiency of evidence for conspiracy convictions, Appellant Feng contended that he lacked involvement in the conspiracy due to insufficient evidence of an agreement or knowledge concerning the aliens’ travel. Appellant Lin similarly argued insufficient evidence regarding his involvement. The standard of review is de novo, requiring evidence to be viewed favorably for the prosecution. The government provided adequate evidence to support the conspiracy claims, showing that the defendants intended to bring illegal aliens into the U.S. The uncertainty about their entry method was deemed irrelevant. Evidence indicated that the defendants traveled extensively with over 100 aliens, intending to off-load them in Mexico for smuggling into the U.S. Specific actions by Feng, such as carrying a pipe and directing aliens, were found sufficient to further the conspiracy. The jury's assessment of evidence and testimony conflicts supported the convictions. Feng also argued that the conspiracy charge must be dismissed due to a variance between trial proof and indictment, which alleged reckless disregard for the aliens' lack of authorization to enter the U.S.

The district court did not require the jury to find that the defendants personally entered into an agreement to transport aliens into the United States. Under the Fifth Amendment's grand jury clause, defendants can only be tried based on the grand jury's indictment. A variance occurs when trial evidence significantly diverges from the indictment's allegations. The district court concluded that the evidence presented did not materially differ from the indictment, which described the defendants' collective intent to bring aliens into the U.S., and thus upheld the conspiracy count.

In addressing claims of prosecutorial misconduct, the appellants argued for a new trial based on alleged misleading jury statements regarding asylum letters. The court found no abuse of discretion in denying the motion for a new trial, noting that the government did not mislead the jury and provided asylum letters to both defense and government witnesses as needed. The trial context showed no prejudice to the appellants, as the jury was made aware of witness motivations, and a limiting instruction was provided.

Appellant Feng's argument that 8 U.S.C. § 1324 is unconstitutionally overbroad was deemed without merit. The appellants were convicted of multiple felony counts for bringing aliens into the U.S. for financial gain, not the challenged misdemeanor. Furthermore, the constitutionality of § 1324 has been consistently upheld by the court in previous rulings.

The Speedy Trial Act mandates that any information or indictment against an individual must be filed within thirty days of their arrest or service of summons, as specified in 18 U.S.C. § 3161(b). Questions of law under this Act are reviewed de novo. In this case, Appellants contended that a superseding indictment filed after the thirty-day period was untimely and should be dismissed. However, this argument was rejected, as the Act does not prohibit the government from filing a superseding indictment with additional charges beyond the thirty days, provided it is filed before the original indictment is dismissed, as established in United States v. Orbino.

Regarding state of mind evidence, Appellant Lin challenged the exclusion of testimony from former defendant Yan Xiu Zhi, who would recount Lin's statements made twenty days into their journey. Lin asserted that this testimony was critical to understanding his state of mind and would support his defense. The district court ruled the statements inadmissible under the hearsay exception for state of mind (Federal Rule of Evidence 803(3)), finding that they did not explain Lin’s continued participation in the conspiracy. The court considered factors such as contemporaneousness and relevance, concluding that the testimony did not meet the necessary criteria for admissibility.

Lastly, the trial court’s admission of prior bad act evidence under Federal Rule of Evidence 404(b) was deemed appropriate and not prejudicial, as evidenced by testimony regarding Captain Ho's past involvement in alien smuggling, with no demonstrated prejudice arising from this evidence. As a result, the court found no error in admitting this prior bad act evidence.

Appellant Lin challenges a district court sentence that included a two-level upward adjustment for obstruction of justice under USSG 3C1.1. The court’s decision is reviewed for clear error, requiring factual findings from the sentencing phase to be supported by a preponderance of the evidence. Witness Xu Ting Jin testified that Lin instructed him not to discuss the case, suggesting that failure to comply would lead to mutual incrimination. The district court determined that Lin intended to dissuade Jin from testifying, finding the government's evidence sufficient to support the upward adjustment. Consequently, the court's decision was affirmed. This ruling is not for publication and cannot be cited, with additional issues regarding venue and the anti-gratuity statute covered in a separate opinion.