United States v. Li Xin Wu

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2055

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

L I X IN W U,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 07 CR 799-8—Ronald A. Guzmán, Judge.

A RGUED N OVEMBER 2, 2011—D ECIDED D ECEMBER 28, 2011

Before E ASTERBROOK, Chief Judge, and P OSNER and

W OOD , Circuit Judges.

W OOD , Circuit Judge. Li Xin Wu was convicted after

a jury trial on one count of conspiracy to possess a con-

trolled substance with intent to distribute, in violation of

21 U.S.C. §§ 841 and 846, and 18 U.S.C. § 2, and one

count of conspiracy to import a controlled substance

into the United States, in violation of 21 U.S.C. §§ 952,

960, and 963, and 18 U.S.C. § 2. On appeal, Wu raises a

2 No. 11-2055

variety of arguments challenging both his conviction

and sentence: he takes issue with the district court’s

rejection of two of his proposed jury instructions; he

asserts that immunized statements were used against

him at trial; he contends that alternate jurors inappro-

priately deliberated with the petit jury; and finally,

he challenges his guidelines calculation. We find no

error, however, and therefore affirm.

I

Beginning in late 2003, several people in Chicago’s

Chinatown neighborhood began importing large quan-

tities of marijuana and methylene-dioxymethamphet-

amine (MDMA, or as it is commonly known, Ecstasy)

from Canada into Chicago. Wu started participating in

this operation a few months after it began. Initially,

he rented a warehouse in Chinatown for the group to use

to store the drugs. Over the course of the next year, Wu

received multiple loads of marijuana and MDMA from

the drug ring’s Canadian suppliers. He purchased some

of it for resale to his own customers and stored the rest

for his codefendants to sell to their customers. Wu, who

is fluent in both English and Cantonese, also served as

a translator for participants in the operation.

Federal agents learned about the drug ring in early 2005

when one of its members sold MDMA to a government

informant. Agents later met with Wu, who at first denied

involvement but eventually, over the course of eight

meetings, provided the government with many details

about the operation and its members. At Wu’s trial the

No. 11-2055 3

government offered uncontroverted evidence that Wu

voluntarily participated in these meetings and that its

agents never made any promises to Wu nor offered him

immunity. Although at first Wu was very cooperative,

by the final meeting in July 2007 he denied his role in

the offense and minimized his conduct.

In September 2008, a grand jury returned a 13-count

indictment charging 20 people with various federal

offenses relating to the drug ring. Wu was named in two

of those counts. All of Wu’s codefendants either fled the

jurisdiction or reached agreements with the govern-

ment. Wu opted for a trial and was found guilty by a

jury of both counts charged in the indictment.

II

A

Wu first contends that the district court erred by

rejecting two of his requested jury instructions, covering

the topics of aiding and abetting and multiple conspira-

cies. We review instructions de novo to determine

whether they were correct and complete statements of

the law. United States v. Tanner, 628 F.3d 890, 904 (7th

Cir. 2010). If the instructions as given were accurate, we

will defer to the district court’s choice of language and

not disturb them. United States v. Ashqar, 582 F.3d 819,

822 (7th Cir. 2009). The government argues that we

should review in this instance only for plain error

because (it says) Wu failed to object to the final instruc-

tions after the court rejected his requested versions. See,

4 No. 11-2055

e.g., United States v. Mims, 92 F.3d 461, 465 (7th Cir. 1996)

(“The court’s refusal to give a tendered instruction

does not automatically preserve an objection to the in-

struction actually given.”). Given our conclusion that

there was no error at all, however, we need not worry

here about the difference between plain error and the

ordinary standard of review.

With respect to aiding and abetting, Wu asked the

court to give the Seventh Circuit’s pattern instruction,

which instructs the jury that a defendant must “knowingly

associate with the criminal activity, participate in the

activity, and try to make it succeed,” in order to be liable

as an accomplice. P ATTERN C RIMINAL F EDERAL J URY IN-

STRUCTIONS OF THE S EVENTH C IRCUIT § 5.06. The district

court rejected this request and instead told the jury that

a defendant can be convicted of aiding and abetting if

“he or she tries to help the conspiracy succeed by com-

mitting an act in furtherance of the conspiracy and had

knowledge of the conspiracy’s purpose at the time he

commits the act.”

Wu argues that the district court’s instruction left out

the element of “knowing association.” Knowing associa-

tion is important for accessory liability because it pre-

vents the conviction of a person on a guilt-by-associa-

tion theory: someone who is “simply passively present

during the transaction” should not be convicted of

aiding and abetting that transaction. United States v.

Heath, 188 F.3d 916, 921 (7th Cir. 1999). The prosecution

must instead also “show that the defendant shared the

principal’s criminal intent,” United States v. Sewell, 159 F.3d

No. 11-2055 5

275, 278 (7th Cir. 1998); it does so by proving “knowing

association.”

But a judge is not limited to the exact phrase “knowing

association” in order to convey this concept to the jury.

Elsewhere we have explained that aiding and abetting

“requires knowledge of the illegal activity that is being

aided and abetted, a desire to help the activity succeed,

and some act of helping.” United States v. Zafiro, 945

F.2d 881, 887 (7th Cir. 1991); see also United States v.

Peoni, 100 F.2d 401, 402 (2d Cir. 1938) (L. Hand, J.) (acces-

sory liability requires that a defendant “in some sort

associate himself with the venture, that he participate

in it as in something that he wishes to bring about, that

he seek by his action to make it succeed”).

Although we would have preferred something closer

to the Zafiro or Hand formulation, the court’s instruc-

tion adequately captured the required meaning. The

jury here was told that the government had to prove

that Wu had knowledge of the conspiracy’s purpose, that

he tried to help the conspiracy succeed, and that he

committed some act in furtherance of the conspiracy.

The phrase “tries to help” may not as clearly evoke

intent as the words “desire to help.” But the district

court’s choice of words here conveyed the critical idea

to the jury: that Wu could be convicted only if he

sought to advance the conspiracy’s criminal goal. The

court was also careful to instruct the jury that “associa-

tion with conspirators is not by itself sufficient to

prove [Wu’s] participation in a conspiracy.” In the

final analysis, we find nothing in this instruction that

6 No. 11-2055

warrants reversal of Wu’s conviction for aiding and

abetting.

Second, Wu challenges the district court’s rejection of

his request for an instruction on multiple conspiracies.

Wu wanted the following instruction:

You must decide whether the conspiracy charged

in the indictment existed, and if it did, who at least

some of its members were. If you find that the con-

spiracy charged did not exist, then you must return

a not guilty verdict, even though you may find

that some other conspiracy existed. Similarly, if you

find that the defendant was not a member of the

charged conspiracy, then you must find the de-

fendant not guilty, even though the defendant

may have been a member of some other conspiracy.

The district court refused to give this instruction;

indeed, it gave no instruction on multiple conspiracies.

This was exactly the right thing to do, because Wu’s

requested instruction on multiple conspiracies was not

an accurate statement of the law. See, e.g., United States

v. Wilson, 134 F.3d 855, 865 (7th Cir. 1998). Wu’s

proposal implies that the jury must acquit if the govern-

ment does not prove that the conspiracy as charged in

the indictment existed, even if it proves that some

other conspiracy existed. As we have repeatedly ex-

plained, this is incorrect because the government is free

to proceed on a subset of allegations in the indictment

and prove a conspiracy smaller than the one alleged. See

id.; see also United States v. Duff, 76 F.3d 122, 126 (7th

Cir. 1996); United States v. Townsend, 924 F.2d 1385, 1410

No. 11-2055 7

(7th Cir. 1991). In order for a defendant to be entitled to

an instruction, she must first show that it is an accurate

statement of the law. United States v. Knope, 655 F.3d

647, 662 (7th Cir. 2011). Wu has not met this require-

ment and thus we find no error in the court’s rejection

of his proposed instruction.

B

Wu next takes issue with the government’s introduc-

tion of his statements against him at trial. He asserts

that the government granted him use immunity and

thus that the admission of his statements violated his

Fifth Amendment right against self-incrimination. See

generally United States v. Cozzi, 613 F.3d 725, 730 (7th

Cir. 2010) (discussing the relation between use im-

munity and the Fifth Amendment as established by

Kastigar v. United States, 406 U.S. 441, 453 (1972)). We

normally review a district court’s factual determination

that a defendant had not been granted use immunity

for clear error, United States v. Nelson, 851 F.2d 976, 978

(7th Cir. 1988), but because Wu did not object to the

admission of his statements at trial, our review here is

only for plain error. United States v. Olano, 507 U.S. 725,

731 (1993); United States v. Stark, 507 F.3d 512, 520 (7th

Cir. 2007). In any event, the two inquiries overlap

because for error to be plain it must be “clear or obvious.”

United States v. Turner, 651 F.3d 743, 748 (7th Cir. 2011).

The district court’s determination that Wu had not

been granted use immunity was not clearly erroneous.

At trial, an FBI agent testified under oath in response to

8 No. 11-2055

both direct and cross-examination that the government

did not make any promises to Wu or offer him immu-

nity. Wu did not present any evidence to the con-

trary or move to exclude the statements. The court was

entitled to credit the agent’s testimony. Once it did so,

there was a solid basis for the court to conclude that

Wu had not been offered use immunity. Wu has pointed

to nothing on appeal that suggests this decision was

erroneous. There is thus no need for a remand for an

evidentiary hearing.

C

Wu also argues that we should reverse, or at least

remand for an evidentiary hearing, because two

alternate jurors may have deliberated with the petit jury.

Wu failed to raise this issue until his post-trial motions

and thus we again review for plain error. Wu would

meet this standard if he could show that alternate

jurors were in fact present with the jury when delibera-

tions began. See United States v. Ottersburg, 76 F.3d 137,

138 (7th Cir. 1996). The Federal Rules of Criminal Proce-

dure prohibit alternate jurors from deliberating with

the petit jury: a district court must “ensure that a

retained alternate does not discuss the case with anyone

until that alternate replaces a juror or is discharged.”

F ED. R. C RIM. P. 24(c)(3). We have held that a violation

of this rule is plain error. Ottersburg, 76 F.3d at 139 (con-

sidering an earlier version of Rule 24(c), which required

the court to discharge alternate jurors after the jury

begins deliberation). If the defendant can show that the

No. 11-2055 9

“substantive participation of alternates” has taken place,

this is “sufficient to establish prejudice.” Id. at 140; see

also Manning v. Huffman, 269 F.3d 720, 726 (6th Cir.

2001) (“[W]e hold that Manning’s evidence that an alter-

nate juror participated in jury deliberations is sufficient

to demonstrate prejudice.”); United States v. Acevedo, 141

F.3d 1421, 1424 (11th Cir. 1998) (“[O]nce the alternate

participates in any way—whether through words or

gestures—prejudice is manifest.”).

If the evidence in this record established that the alter-

nates had actually engaged in substantive deliberations

with the jurors, as in Ottersburg, then we would find

plain error and reverse. If the record suggested that

the alternates may have so participated, then we could

remand for an evidentiary hearing under Remmer v.

United States, 347 U.S. 227 (1954), to determine whether

this in fact occurred. We are satisfied, however, that

the evidence in this record, if it does anything at all,

points the other way and indicates that no meaningful

interactions could have occurred between the

alternates and the petit jury that would require either

reversal or a hearing. Only 10 to 15 minutes elapsed

after the jurors were dismissed from the courtroom to

begin deliberations until the alternate jurors were

brought back to the courtroom. Even if we assume that

the two alternate jurors left the courtroom with the

petit jury and headed with them to the jury deliberation

room, they would have had to spend time traveling

between the 17th floor of the Dirksen Courthouse, where

the courtroom was located, and the 12th floor jury room,

before any deliberations could have started. In addition,

10 No. 11-2055

the record reflects that the alternate jurors spent some

of that 15-minute period apart from the petit jury,

waiting in a separate room to be brought back into

the courtroom.

We do not know anything more than this, unfortunately,

because Wu failed to raise the issue in a timely fashion.

If he had, the district court could have asked the

alternate jurors whether they had ever entered the de-

liberation room, and if so, whether the jury had moved

past discussing preliminary matters (or, perhaps, having

its afternoon snack). Wu thus bears some of the responsi-

bility for whatever opacity there is in the record. Common

sense tells us, however, that there was literally not

enough time for the jury to begin deliberating, once

the entire group headed down five floors, found the

new room, and settled down. Especially because we

know that the alternates were separated from the jury

for at least part of the time, we conclude that there was

no plain error here and no need for an evidentiary hearing.

D

Finally, Wu challenges his sentence. He argues that

the district court should have reduced his offense level

by two under the Sentencing Guidelines’s “safety valve”

provision. See 18 U.S.C. § 3553(f). The district court

found Wu ineligible for the safety valve because in

its view he did not meet the requirement of Sec-

tion 3553(f)(5): “not later than the time of the sen-

tencing hearing, the defendant has truthfully provided

to the Government all information and evidence the

No. 11-2055 11

defendant has concerning the offense.” We review a

district court’s determination that a defendant is

ineligible for the safety valve reduction for clear error.

United States v. Gonzalez, 319 F.3d 291, 299 (7th Cir. 2003).

Wu relies on United States v. Shrestha, 86 F.3d 935 (9th

Cir. 1996), to argue that defendants who ultimately

recant some of their earlier, truthful statements to the

government should not be ineligible for the safety valve

reduction. But Shrestha did not hold that defendants

who recant truthful statements must be given a safety

valve reduction. It held only that those defendants are

not rendered “ineligible for the safety valve reduction as

a matter of law.” Id. at 940. The Ninth Circuit thus

upheld a district court’s grant of the safety valve adjust-

ment to a recanting defendant. Id. Here, in contrast,

the district court denied the reduction. It believed

that Wu’s credibility had been undermined by incon-

sistencies in his statements and his ultimate retraction.

As the district court explained, “The problem comes in

where you have a defendant whose final and last state-

ment is a retraction and a denial of his previous disclo-

sures, however honest those may have been.”

As in Shrestha, it would likely have been within the

district court’s discretion in this case to conclude that

Wu had been truthful with the government in his

earlier proffers. It thus could have decided that Wu was

eligible for the safety valve reduction despite his

ultimate recantation. Wu’s problem is that the district

court came to the opposite conclusion. The court is

entitled to refuse to apply the safety valve adjustment

12 No. 11-2055

when it finds that “[the defendant’s] proffer was no

longer reliable” because the defendant “dishonestly

claimed to have forgotten the information previously

conveyed.” Gonzalez, 319 F.3d at 299. Given the incon-

sistencies in Wu’s statements to the government and

his ultimate recantation, we cannot say that the district

court’s decision that Wu was ineligible for the safety

valve reduction was clearly erroneous.

* * *

We A FFIRM Wu’s conviction and sentence.

12-28-11