United States v. Stephen Tse

Citations: 135 F.3d 200; 1998 WL 32509Docket: 97-1103

Court: Court of Appeals for the First Circuit; February 24, 1998; Federal Appellate Court

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Stephen Tse was convicted under 18 U.S.C. 1959(a)(5) for attempted murder and conspiracy to murder two rival gang members, Chao Va Meng and Dai Keung, and sentenced to 188 months in prison. Tse was the leader of the Ping On crime organization in Boston, which had ties to Hong Kong criminal groups and engaged in various illegal activities including gambling and extortion. 

Upon returning to Boston after a period away, Tse was frustrated by rival gangs encroaching on his territory, particularly Meng and Keung, who were demanding payments from members of his gang. Tse perceived these actions as threats to his leadership. On December 29, 1988, he ordered gang members Jimmy Soo Hoo and Kwok-Wah Chan to kill Meng and Keung, providing them with weapons and instructing them on how to carry out the attack. Although they attempted to shoot the targets outside a gambling den, they missed.

In December 1993, a multi-count indictment against Tse included charges of participating in a RICO conspiracy, operating an illegal gambling business, extortion, assault with a dangerous weapon, attempted murder, and conspiracy to commit murder, among other federal offenses.

In February 1994, the United States requested the extradition of Tse from Hong Kong for charges numbered 12 through 17, which was referred to a Hong Kong magistrate. On March 31, 1994, an Assistant United States attorney submitted affidavits to support the conspiracy to murder charge in Count 16, indicating that extradition was sought only for that count. After an evidentiary hearing, Tse was committed for extradition to face trial on Count 16, to which he later entered a guilty plea. However, the district court rejected the plea agreement, prompting Tse to withdraw his plea.

On May 20, 1996, following the discovery of new evidence, the U.S. Consul General requested permission to prosecute Tse for the attempted murder charges in Counts 14 and 15, which the Hong Kong Government Secretariat consented to in an official note. Subsequently, Tse was tried and found guilty on all three counts (14-16).

Tse appeals, arguing that the district court erred in denying his motion to dismiss Counts 14 and 15 based on the doctrine of specialty, which prohibits prosecuting a defendant for offenses not covered by the extradition request. The government counters that Hong Kong's consent to prosecute for Counts 14 and 15, as stated in their note, waives the specialty rule. Tse challenges the validity of this consent, arguing that the note is unsigned and lacks proper authority. However, the court finds the note to be an official response, with no jurisdiction to impose procedural requirements on Hong Kong regarding diplomatic requests.

The diplomatic note from Hong Kong did not waive the doctrine of specialty, but the circumstances of the attempted murder charges were sufficiently similar to those of the conspiracy charge to satisfy this doctrine. The key consideration is whether the acts for which the defendant is prosecuted are interconnected with those for which extradition was granted. The doctrine requires that the prosecution be based on the same facts outlined in the extradition request, which in this case were identical for both charges, stemming from a single event on December 29, 1988. The treaty between Hong Kong and the U.S. permits prosecution for multiple extraditable offenses arising from the same facts, thus the prosecution of Tse for attempted murder did not breach the doctrine of specialty.

Regarding jury instructions on the purpose of the crimes, Tse challenged the court's instruction, which stated that it was not necessary for the prosecution to prove that maintaining his position in the enterprise was his sole or principal motive for committing the crimes under 18 U.S.C. § 1959(a). Tse argued otherwise, but the court's interpretation aligns with precedent from the Second and Fourth Circuits, which have ruled that the government need not demonstrate that maintaining or increasing position was the primary motive for a conviction under this statute. The courts emphasized that violent crimes committed as an aspect of membership in a racketeering organization are proscribed, and the actions must merely be shown to further the defendant's membership or be expected of them due to that membership.

Congress intended to reduce violent crime linked to racketeering through the enactment of 1959, and there is no requirement for the government to prove that a crime was motivated solely by a desire to maintain a position within an enterprise. Evidence indicated that Tse ordered attempted murders to secure his leadership position, and the district court appropriately instructed the jury on Tse's general motive related to his enterprise role. 

The court used a Pinkerton instruction, allowing the jury to hold Tse accountable for his co-conspirators' crimes of attempted murder, based on the existence of a conspiracy. Tse argued this instruction was improper under 1959 because it undermined the need to demonstrate his intent to maintain a position within the enterprise. However, the Pinkerton doctrine establishes that the intent arises from the conspiracy itself, meaning the jury had to find that Tse conspired to commit murder to maintain his position before attributing the co-conspirators' crimes to him. 

Additionally, the court clarified that a Pinkerton theory could only apply if the jury found Tse could reasonably foresee the attempted murders committed by his co-conspirators. There was no error in applying this instruction. 

Tse also claimed the introduction of co-defendant Kwok-Wah Chan's guilty plea was improper as substantive evidence of his own guilt. Tse's defense suggested the crimes were typical street crimes, not violent racketeering acts. He believed Chan's plea, which indicated a motive to further the enterprise, improperly influenced the jury to attribute that motive to him under Pinkerton. However, several factors mitigate Tse's arguments regarding this issue.

Tse did not object to the introduction of Chan's guilty plea, which was deemed relevant to counteract Tse's credibility attacks on government witnesses. The prosecution preemptively had witnesses acknowledge their past criminal conduct and plea deals that could influence their testimonies. The court upheld the admission of Chan's plea as it served to mitigate the impact of Tse’s cross-examination, which suggested coercion. The government further clarified Chan's plea details on redirect examination, reinforcing the integrity of his admissions. The court provided a cautionary instruction to the jury, emphasizing that Chan's guilty plea should not be interpreted as evidence of Tse's guilt, addressing concerns about potential misuse of this evidence. 

Furthermore, Tse's pretrial motion to exclude evidence of uncharged prior criminal activities was denied, with the court finding that the probative value of this evidence outweighed its prejudicial effect, as per Federal Rule of Evidence 403. The government argued that evidence of Tse's other crimes was essential to demonstrate that Ping On operated as an enterprise engaged in racketeering, fulfilling the evidentiary requirements under 18 U.S.C. 1959(a) and 1961(1). Thus, the admission of Chan's plea and evidence of Tse's criminal history was ruled appropriate, with no plain error found in the court's decisions.

Tse did not dispute the existence of a racketeering enterprise or its involvement in racketeering activities, yet no formal stipulations or concessions were made during the trial. His defense aimed to characterize the attempted murders as state crimes, emphasizing the government's burden to establish the racketeering enterprise's existence. The court found no error in the government's thorough approach, as any less could have led to challenges regarding evidence sufficiency. Although evidence of Tse's previous and subsequent crimes was potentially prejudicial, it did not outweigh its relevance, and the district court properly denied Tse's motion in limine.

Tse also challenged the admission of hearsay statements made by co-conspirator Jimmy Soo Hoo, which were made to Albert Cheung, a gang member involved in the incident. The government argued these statements were admissible under Federal Rule of Evidence 801(d)(2)(E) as they were made in furtherance of the conspiracy. Tse's failure to object at the time the statements were introduced limited his ability to contest their admission later. The court reviewed the admission for plain error, affirming that for the hearsay to be admissible under Rule 801(d)(2)(E), the conspiracy must still be active, which the content of Soo Hoo's statements indicated. The statements reported ongoing issues, suggesting the conspiracy had not ended, thereby supporting their admissibility as they reported significant events relevant to the co-conspirators.

Tse argues that statements made to a government informant could not serve a conspiratorial purpose. However, prior cases, including Machor and U.S. v. Cresta, have accepted such statements as co-conspirator remarks. Other circuits emphasize that the intent of the declarant is critical, not that of the informant. The Supreme Court's ruling in Bourjaily v. U.S. supports this view. 

Regarding Howard Lo's testimony about the murder of Michael Kwong, Tse objected to its admission, which the court reviewed for abuse of discretion. The conversations reported by Lo occurred eight months after the attempted murders and while Tse was in Hong Kong, indicating they were outside the conspiracy's timeframe. Thus, Lo's statements were not admissible under Rule 801(d)(2)(E), but their admission was deemed a harmless error as the government did not connect Tse to Kwong's death or retaliation, and substantial evidence supported the jury's verdict. The court concluded that it was highly improbable that the outcome would have changed without Lo's testimony. All issues were affirmed by the court, with one judge from the Eleventh Circuit sitting by designation.