Petition for Writ of Certiorari — Jiyao Jiang, Petitioner v. United States

No._____________

In The

Supreme Court of the United States

_______________

JIYAO JIANG

Petitioner,

v.

UNITED STATES OF AMERIA,

Respondent.

__________________________

On Petition for a Writ of Certiorari to the United States Court of

Appeals for the Second Circuit

_________________________________________

PETITION FOR A WRIT OF CERTIORARI

_________________________________________

Richard Ware Levitt

LEVITT & KAIZER

40 Fulton Street, 23rd Floor

New York, NY 10038

(212) 480-4000

Counsel of Record

For Petitioner Jiyao Jiang

QUESTION PRESENTED

Whether, as a matter of law, multiple conspiracies exist when the

person who formed the “hub” of an extortion conspiracy affirmatively

abandons the two persons he initially enlisted to achieve the conspiratorial

goal and, months later, independently enlists other persons to attempt to

achieve the same goal?

PARTIES TO THE PROCEEDINGS BELOW

Petitioner Jiyao Jiang and the United States of America.

i

Table of Contents

QUESTIONS PRESENTED......................................................................... i

PARTIES TO THE PROCEEDINGS BELOW ........................................... i

TABLE OF AUTHORITIES ........................................................................ iv

PETITION FOR A WRIT OF CERTIORARI ............................................. 1

OPINIONS BELOW..................................................................................... 1

JURISDICTION ........................................................................................... 1

STATEMENT OF THE CASE .................................................................... 2

A. The Trial Evidence ......................................................................... 2

1. Introduction ................................................................................. 2

2. Billy Chen, Tai Bo and Jiang’s initial effort to secure

repayment of a loan allegedly owed by Guo .............................. 3

3. Chen loses confidence in Jiang’s willingness to use

violence against Guo to collect the debt and severs

all contact with Jiang and Tai Bo ............................................... 5

4. Petitioner Jiang has several telephone conversations

with Guo and Guo’s wife, and Guo agrees to pay

Jiang $2,000 ................................................................................ 6

5. Chen enlists “Cash” and two other “gangsters”

to extract money from Guo ....................................................... 8

6. Jiang is arrested in Ocala, Florida and voluntarily

gives a full statement ................................................................ 10

B. Rule 29 Motion .............................................................................. 11

C. The Verdict and Sentence .............................................................. 12

ii

D. The Second Circuit’s Affirmance .................................................. 12

REASONS FOR GRANTING THE WRIT ................................................. 13

THE EVIDENCE, IF BELIEVED, ESTABLISHED TWO

CONSPIRACIES AS A MATTER OF LAW, AND THE TRIAL

COURT THEREFORE SHOULD HAVE EXCLUDED ALL

EVIDENCE REGARDING THE DECEMBER 2013 CONDUCT ......... 13

CONCLUSION ............................................................................................. 20

APPENDIX

U.S. Court of Appeals Decision/Order ......................................................... A.1

U.S. Court of Appeals Docket Sheet ............................................................ A.4

U.S. Court of Appeals Mandate .................................................................... A.11

iii

TABLE OF AUTHORITIES

Cases

Page(s)

Berger v. United States, 295 U.S. 78 (1935) .................................... 13, 14, 19

Kotteakos v. United States, 328 U.S. 750 (1946) ....................... 14, 15, 18, 19

United States v. Bertolotti, 529 F.2d 149 (2d Cir. 1975)........................ 16, 17

United States v. Geibel, 369 F.3d 682 (2d Cir. 2004) .................................. 15

United States v. Sperling, 506 F.2d 1323 (2d Cir. 1974), cert.

denied, 420 U.S. 962 (1975) .............................................................. 16, 17

Statutes

18 U.S.C. § 88 ............................................................................................... 14

28 U.S.C. § 391 ............................................................................................. 14

28 U.S.C. § 1254 ..............................................................................................1

iv

PETITION FOR A WRIT OF CERTIORARI

Jiyao Jiang respectfully petitions for a Writ of Certiorari to review the

judgment of the United States Court of Appeals for the Second Circuit in

this case, dated March 20, 2018.

OPINIONS BELOW

The judgment from which a Writ of Certiorari is sought is the decision

of the United States Court of Appeals for the Second Circuit in United States

v. Jiang, 715 Fed.Appx 91 (2d Cir. March 20, 2018) (Pet. Appx. “A. 1”).1

JURISDICTION

The judgment of the United States Court of Appeals for the Second

Circuit was entered on March 20, 2018 (A. 1). This Petition is timely filed

within the 90-day statutory time limitation. This Court has jurisdiction to

review the judgment below on a writ of certiorari pursuant to Title 28 U.S.C.

§ 1254(1).

1

Numbers in parentheses preceded by “A” refer to the appendix herein;

numbers in parentheses preceded by “TR” refer to the minutes of the trial

and numbers preceded by GX refer to government trial exhibits. Transcripts,

minutes and the Second Circuit appendix are available to the Court should it

wish to review them at this stage of the proceedings.

1

STATEMENT OF THE CASE

A. The Trial Evidence

1. Introduction

Tian Long Guo, aka Yi Long, allegedly owed money to others relating

to his failure to repay loans. One of the creditors asked government witness

Billy Chen to attempt to recoup the funds from Guo. Chen then recruited

“Tai Bo” to help obtain repayment and Tai Bo recruited Petitioner Jiyao

Jiang – a restaurant worker -- to whom Tai Bo was related by marriage, and

who knew Guo from their village in China. After an initial effort to collect

the money from Guo in Guo’s home town of New Rochelle, New York,

failed, Chen lost confidence in Jiang’s willingness to use force against Guo

and therefore had no further contact with either Jiang or Tai Bo. Thereafter,

Petitioner Jiang – still working with Tai Bo but not with Chen -- had several

phone conversations with Guo and Guo’s wife and Guo eventually agreed to

deposit $2,000 into a certain bank account controlled by Tai Bo.

Proceeding along an entirely separate track, Chen recruited a new

crew consisting of the gangster “Cash” – a colleague of Chen’s from their

alien smuggling days – and two of Cash’s associates. Together they

travelled to New Rochelle, in December 2013, to confront Guo at his

2

residence. Upon seeing Chen and the others Guo became frightened and

called 911. Police responded but no arrests were made.

The issue on appeal concerns whether the trial court should have

excluded evidence of Chen’s conspiratorial conduct with Cash and Cash’s

associates, which was entirely separate from Chen’s alleged conspiratorial

conduct with Jiang and Tai Bo and which Guo described as “very terrible”

and “worse” than the events two months previous.

2. Billy Chen, Tai Bo and Jiang’s initial effort to secure

repayment of a loan allegedly owed by Guo.

Government cooperator Billy Chen testified that at some point in 2013

his older brother’s ex-girlfriend, Xiu Ling Wang, informed him that Guo

owed her between $600,000 to $700,000 and asked Chen if he was “able to

get the gangsters from the Society to go to the restaurant to get the money

back for her” (Tr. 205). She thereafter gave him Guo’s phone number as

well as a menu from Guo’s restaurant in New Rochelle, the Queens City

Super Buffet, that included the restaurant’s address (Tr. 207-8). Chen drove

to the restaurant to verify its location and followed a vehicle transporting the

restaurant’s employees to a location where they apparently were residing,

believing that location was probably where Guo lived as well (Tr. 209-10).

He then called his “very good friend” Lagor, aka Tian Si Lu (Tr. 213), with

whom he had previously worked as an alien smuggler, and Lagor introduced

3

Chen to “Tai Bo,” who, according to Chen, was a member of the criminal

“Dark Society” in Hong Kong (Tr. 214). The three met in Chinatown, where

they discussed how to collect Guo’s debt (Tr. 219-20).

A few days later Chen met in a Chinatown restaurant with Tai Bo,

Ms. Wang’s younger sister Xiu Xin, Xiu Xin’s husband, and Petitioner

Jiang, who was introduced to Chen by Tai Bo (Tr. 221-22). After the

meeting, Chen, Tai Bo and Jiang drove to the Queens City Super Buffet in

New Rochelle. During the car ride the three “discussed about talking to him

[Guo] nicely when [they] get there.” (Tr. 227).

Guo’s sister-in-law, Mei Xiu Li testified she was working as a cashier

at the Queens City Super Buffet in October 2013, when three or four

Chinese individuals entered and ate a meal, and that one of them asked her if

Guo was present. Li said he wasn’t, and the three left (Tr. 162; 165-67). Guo

testified that Li called him and said three people had come to the restaurant

asking for him. He proceeded to the restaurant and reviewed video footage

(images of which were introduced as GX-3-A, 3-B), recognizing Jiang, who

he said he had known from their village in China (Tr. 52-55). On crossexamination, he reluctantly acknowledged having seen Petitioner Jiang

several times in the United States, including at his own son’s wedding, to

which Guo had invited Jiang (Tr. 83-85).

4

Chen explained that after determining that Guo was not in the

restaurant, the three drove to Guo’s house. Not seeing him there, they drove

back to Queens. During the ride, Jiang received a telephone call from Guo’s

wife, Min Hua Li, who had returned Jiang’s earlier call (Tr. 238-39). Chen

explained that he overheard Jiang’s side of the call and was dissatisfied by

its friendly tone (Tr. 238).

3. Chen loses confidence in Jiang’s willingness to use

violence against Guo to collect the debt and severs all

contact with Jiang and Tai Bo.

The day following their trip to New Rochelle, Chen received a phone

call from Tai Bo, who asked Chen to pay Jiang $500 to compensate him for

the work he had missed trying to obtain payment from Guo, but Chen

demurred, saying he “would not be able to pay that $500 since [Petitioner

Jiang] ha[d] not resolved the matter for” him (Tr. 237) and was “being too

nice to” Guo’s wife (Tr. 368). Chen further acknowledged he had previously

told the government – truthfully – that he “believed that ‘Cousin’ [i.e.,

Petitioner Jiang] was simply using [him] to make quick money and had no

intent or ability to collect” from Guo (Tr. 373-74).

After this conversation with Tai Bo, Chen stopped working with

Petitioner Jiang:

Q Did there come a time when you stopped working with the

defendant to collect this money from Tian Long Guo?

5

A It stopped.

Q Was that after he asked you for money even though he

Couldn’t collect any?

A Correct.

(Tr. 238).

Chen elaborated:

Because when [Tai Bo] asked me for $500, I thought that he didn’t

really want to help me out with this matter. Because when he spoke

with his wife, he didn’t – when he spoke with Guo Tian long, he

didn’t mention about the fact that they owe us money.

(Tr. 238).

Chen had no further contact with Petitioner Jiang and each went their

separate ways. As discussed further below, Jiang thereafter had several

phone calls with Guo and Guo’s wife, and Guo eventually agreed to deposit

$2,000 into a certain bank account, which in fact was controlled by Tai Bo

(Tr. 63). Chen – as further discussed below -- separately enlisted Chinatown

gangsters to return to Guo’s home in New Rochelle, in December 2013, in

an aborted attempt to collect money from him (Tr. 239; 253-54).

4. Petitioner Jiang has several telephone conversations with

Guo and Guo’s wife, and Guo agrees to pay Jiang $2,000.

According to Guo, he and Jiang spoke by phone approximately four to

five times (Tr. 57). He explained that Jiang “didn’t threaten me. On the

surface, he called me ‘Uncle’” (Tr. 159), but he also said that “his cousin

from Hong Kong” who had come with him to the restaurant [an apparent

6

reference to Tai Bo] was a member of the Dark Society” and that this made

him “scared” (Tr. 58; 60). The first time Guo spoke to Jiang on the phone

“[h]e asked me, he said, you owe money to Xiao Xing. He said that I owe

Xiao Xing and I have to pay back a certain amount to her.” (Tr. 57). Guo

replied that he had already repaid the money, although he had no receipt. He

explained that “Xiao Xing was a friend of [his] wife from work” (Tr. 58) and

that he “had borrowed money from her, paid her back, but she did not give

[him] back the receipt.” (Tr. 58). He added that his wife might have called

and spoken to Jiang too, but he was not certain, although this claim of

ignorance was almost certainly false.2 After several phone calls Guo agreed

to pay Petitioner Jiang $2,000 to keep him away and because he was afraid

that if he did not pay “the members of the Dark Society would have

kidnapped [his] family members and [his] son in mainland China.” (Tr. 65).3

A few days later, on November 15, 2013, his wife deposited $2,000 into a

Chase bank account provided to Guo by Jiang, and which was controlled by

Tai Bo (Tr. 65; 452-54).

2

Referencing a phone record summary chart admitted into evidence as

GX 25B, FBI Special Agent Terry Jeng testified that Jiang first called Guo

or his wife, Min Hua Li, on October 30, 2013, and that the total number of

phone calls between either Jiang and Guo or Jiang and Guo’s wife between

October 30, 2013, and November 15, 2013, was 23.

3

At every opportunity, Guo told the jury that the “Dark Society” was

like the “mafia.” E.g., Tr. 59, 60, 61, 65, 97, 159.

7

5. Chen enlists “Cash” and two other “gangsters” to

extract money from Guo.

Chen testified that after he severed contact with Petitioner Jiang he

asked his former employer in the alien smuggling business, Lagor, to find

him gangsters from Chinatown who could help him collect the money from

Guo, and Lagor put Chen in touch with Qian Zheng, aka “Cash,” with whom

Chen and Lagor had previously worked in the smuggling business (Tr. 239;

303).4 In their alien smuggling days Cash had been “responsible for

collecting the money” from the aliens’ families in China (Tr. 306), which

involved “using violence” (Tr. 306). Together with Cash and two of Cash’s

gangster-thugs, Chen returned to the Queens City Super Buffet, in December

of 2013, some two months after cutting off contact with Tai Bo and

Petitioner Jiang (Tr. 253-54). Not finding Guo in the restaurant the group

drove to his house. There, they saw Guo, who appeared to be “very nervous”

(Tr. 259) and who “drove his vehicle to block [them] in the front trying to

prevent [them] from leaving.” (Tr. 258). Guo then called the police and

Chen left the vehicle and took a cab back to Queens (Tr. 259).

4

At this point in the proceedings defense counsel moved to exclude

further testimony regarding Chen’s recruitment of Cash and their subsequent

efforts to extort money from Guo, and to strike related previous testimony,

because these efforts were unrelated to Chen’s conduct with Jiang. (Tr. 240

et seq.). These proceedings are addressed in detail in the argument portion of

this petition.

8

Testifying regarding this encounter, Guo explained that on December

12, 2013, two months after he had viewed the videotape at his restaurant

depicting Jiang and two others, his wife or sister-in-law telephoned him and

said that people had come to the restaurant looking for him (Tr. 65-66).

Asked how he felt when he got this phone call, he answered, “it was very

terrible and it was worse than those two people from before.” (Tr. 67).

Shortly after Guo received the phone call, he looked out his window

and saw a black Mercedes Benz. He spotted a bald man walking towards his

house, saying, “Yes, this is the house. This is the house.” (Tr. 68). At first,

he did not recognize the man, who was wearing a hat, but later recognized

him as one of the three persons who had previously come to the restaurant

with Jiang. Guo exited his home, intending to enter his Hummer, when he

observed the Mercedes Benz return. Guo explained:

As soon as I got downstairs and before I even got to the vehicle,

and then four people with the Benz, Mercedes Benz, came back

in from there and they came in and directly approached me and

I got scared and I left my Hummer car. And then when they saw

my Hummer car, then they drove further in because – because

they couldn’t go further. They had to drive further in order to

turn around.

(Tr. 71).

Guo then entered his Hummer, parked it horizontally to block the

Mercedes Benz and called 911 (Tr. 72). The 911 tape was played to the jury

9

during the testimony of FBI Special Agent Shi Yeng Jeng (GX-9; Tr. 43940, 457, 466-68). By the time the police arrived the bald man had departed

(Tr. 74). Guo had difficulty making himself understood to the police (Tr.

73). According to New Rochelle Police Officer Edward Martinez, who

responded to Guo’s 911 call, Guo appeared “very upset” and agitated and

was “yelling at the driver” of the Mercedes Benz (Tr. 182; 184). The police

eventually told everyone to depart and nothing further happened, although

officer Martinez later responded to the Queens City Super Buffet where he

saw Guo, who was now “calm” (Tr. 193). That evening, Guo called Jiang who had not been one of the four persons in the Mercedes Benz (Tr. 142-43)

- telling him about the incident and asking him why the people had come

back. Jiang responded that he had nothing to do with those events (Tr. 73;

149-50).

After this incident, Chen stopped trying to collect money from Guo

(Tr. 259).

6. Jiang is arrested in Ocala, Florida and voluntarily gives

a full statement.

On December 15, 2015, FBI agents arrested Petitioner Jiang in Ocala,

Florida, after following him back from the Japanese restaurant where he

worked, to the apartment he shared with other restaurant employees. Jiang

immediately agreed to speak with the agents and, with the assistance of an

10

interpreter, explained to FBI Agent Ray Yuen that “two years prior he

received a phone call from a person […] nicknamed Brother Chen” (the

name Jiang used for Tai Bo; not witness Billy Chen) and that “Brother Chen

called him and wanted Mr. Jiang to collect a debt … from a person named

Guo.” (Tr. 417). Jiang agreed to help Brother Chen collect the debt and went

together with others to the restaurant that Guo supposedly owned. The group

was not able to find Guo in the restaurant so “Brother Chen decided to go,

because they also had the address of Guo’s home, they drove to his house

nearby and they sat outside, waited for him a little bit. They didn’t see Guo,

and they returned back to Flushing, New York.” (Tr. 422). Jiang explained

that he received a phone call from Guo shortly after and “Guo told Mr. Jiang

that he recognized him from the camera at the restaurant and told him not to

get involved with this matter.” (Tr. 423). “Mr. Jiang told Guo that he’s got a

debt he’s got to pay up, and he offer[ed] Guo an installment plan, to pay in

installments.” (Tr. 423). Guo eventually deposited $2,000 into a bank

account and Jiang said he received a portion of the money (Tr. 423-24).

A. Rule 29 Motion

At the close of the government’s case and before he rested, Jiang,

through counsel, moved under Fed.R.Crim.P. 29 to dismiss the indictment

for insufficient evidence. The motions were denied (Tr. 478-80).

11

B. The Verdict and Sentence

On November 10, 2016, the jury returned a verdict of guilty (Tr. 623).

On March 21, 2017, the court sentenced Jiang to 28 months’

imprisonment and two years’ supervised release.

C. The Second Circuit’s Affirmance

On March 30, 2018, the Second Circuit issued a summary order

affirming Jiang’s conviction and sentence. It stated the applicable rules as

follows:

“Whether the government has proven the existence of the

conspiracy charged in the indictment and each defendant’s

membership in it, or, instead, has proven several independent

conspiracies is a question of fact for a properly instructed jury.”

United States v. Johansen, 56 F.3d 347, 350 (2d Cir. 1995).

Where a defendant contends that multiple conspiracies were

proven at trial, rather than the single conspiracy charged in the

indictment, the defendant bears the burden of showing that “no

rational trier of fact could have concluded that a single

conspiracy existed based on the evidence presented.” United

States v. Sureff, 15 F.3d 225, 230 (2d Cir. 1994) (citations

omitted).

A. 3. Noting “there is no requirement in conspiracy law that the same

individuals be involved throughout the duration of the conspiracy, the court

rejected Petitioner’s argument that there were multiple conspiracies as a

matter of law, finding:

The evidence presented at trial established the existence of a

single conspiracy, of which Jiang was a part, to collect an

alleged debt from Guo by the unlawful use of violence and/or

12

the threat of violence. At no point did that common purpose

change, even if different actors were involved in accomplishing

this goal at different times. Nonetheless, Jiang’s principal

argument on appeal is that he had no interaction with some of

the other members of the single charged conspiracy. This

argument is without merit.

REASONS FOR GRANTING THE WRIT

This Court should grant certiorari because the Second Circuit’s

decision reflects a recurring error among the lower courts to disregard this

multiple conspiracy law, particularly as it concerns “wheel” conspiracies.

THE EVIDENCE, IF BELIEVED, ESTABLISHED TWO

CONSPIRACIES AS A MATTER OF LAW, AND THE TRIAL

COURT THEREFORE SHOULD HAVE EXCLUDED ALL

EVIDENCE REGARDING THE DECEMBER 2013 CONDUCT

In Berger v. United States, 295 U.S. 78 (1935), Berger was charged

with having conspired with seven other persons named in the indictment –

including Rice, Jones and Katz -- to utter counterfeit notes purporting to be

issued by designated federal reserve banks, with knowledge that they had

been counterfeited. Katz cooperated with the government and testified at

trial. The trial evidence, however, showed the existence of two conspiracies,

“one between Rice and Katz and another between Berger, Jones and Katz.

The only connecting link between the two was that Katz was in both

conspiracies and the same counterfeit money had to do with both.” Id. at 80.

This Court, having found that one conspiracy was charged but two were

13

proved, then considered whether this “variance” affected Berger’s

“substantial rights,” as required under 28 U.S.C. § 391, and found that it did

not (although the conviction was reversed for prosecutorial misconduct).

A decade after Berger, the Court again addressed multiple

conspiracies, in Kotteakos v. United States, 328 U.S. 750 (1946). There,

petitioners Kotteakos, Lekacos and Regenbogen were convicted under 18

U.S.C. § 88 for conspiring to obtain loans under the National Housing Act

by false and fraudulent statements. The evidence, however, showed there

were multiple, separate illicit agreements to do so with only government

cooperating witness Brown common to each. Brown, then, was the center, or

“hub,” of a “wheel” with one “spoke” consisting of the petitioners and

several other “spokes” consisting of groups of other co-defendants. All

groups were dealing independently with Brown as their agent. The Court

acknowledged the concept of the “wheel conspiracy” (i.e. multiple

conspiracies of a similar nature linked by a common participant) as argued

by the government but concluded that “the rim of the wheel to enclose the

spokes” was missing. Id. at 755. The trial court therefore erred when it

admitted evidence residing on the other “spokes” of the wheel, and the only

question, therefore, was “whether petitioners have suffered substantial

prejudice from being convicted of a single general conspiracy by evidence

14

which the Government admits proved not one conspiracy, but some eight or

more different ones of the same sort executed through a common key figure,

Simon Brown.” Id. at 752. The Court answered this question in the

affirmative, and therefore reversed defendants’ convictions.

Wheel-type conspiracies, such as those in Kotteakos and Berger are

often susceptible to multiple conspiracy analysis as a matter of law, even

though in many other instances the existence vel non of multiple

conspiracies is appropriately left to the jury. This is so because the

government’s evidence, even if accepted as true, may be insufficient to

prove the existence of a “rim” to connect the “spokes” of the alleged

conspiratorial wheel. Kotteakos, 328 U.S. 750 at 755 (“As the Government

puts it, the pattern was ‘that of separate spokes meeting at a common center,’

though we may add without the rim of the wheel to enclose the spokes. The

proof therefore admittedly made out a case, not of a single conspiracy, but of

several, notwithstanding only one was charged in the indictment.”).

Multiple conspiracy analysis “as a matter of law” is not confined to

wheel conspiracies, however. For example, in United States v. Geibel, 369

F.3d 682, 691 (2d Cir. 2004), the Second Court found multiple conspiracies

as a matter of law in an insider trading case, where defendants, remote

tippees, participated in a much narrower scheme to trade on inside

15

information that did not include the original tipper. There, the agreement

between the tipper and the original tippee -- Cooper -- did not encompass

disclosure of information to remote tippees, such as defendants. Nor was it

reasonably foreseeable that inadvertent disclosure to remote tippees was a

necessary or natural consequence of this trading scheme. Defendants’

awareness of Freeman, the source of information, was found to not be

sufficient evidence to link defendants in a conspiracy with Freeman because

mere awareness does not satisfy the conspiracy requirement that two parties

act in concert toward a common goal. Additionally, there was lack of mutual

dependence. See also United States v. Bertolotti, 529 F.2d 149, 151 (2d Cir.

1975) (“Because of the Government's failure to heed our admonition in

United States v. Sperling, 506 F.2d 1323 (2d Cir. 1974), cert. denied, 420

U.S. 962 (1975), that it cease combining in an alleged single conspiracy,

criminal acts loosely, if at all, connected,[5] we are compelled to accede to

appellants’ request” to reverse their convictions).

5

The court’s fn 5, inserted at this point in the text, states:

In Sperling, Judge Timbers issued forth a clear warning to the United

States Attorney's office:

In view of the frequency with which the single conspiracy vs.

multiple conspiracies claim is being raised on appeals before this

court, (citations omitted) we take this occasion to caution the

government with respect to future prosecutions that it may be

unnecessarily exposing itself to reversal by continuing the indictment

format reflected in this case. . . . (I)t has become all too common for

16

In the instant case the government’s proof suggested a wheel

conspiracy, consisting of a hub, i.e. Billy Chen, and two spokes, one

consisting of Tai Bo and Jiang and the other consisting of Cash and Cash’s

associates. But no rim connected these spokes. This is apparent from the

facts, as previously recited, reflecting that after the November 2013 trip to

New Rochelle, Cash ceased all contact with Tai Bo and Jiang and, after a

two-month hiatus, commenced with Cash a second, separate conspiracy:

Q Did you get in contact with Cash?

A Yes.

Q And that was after you refused to give Mr. Jiang the

$500; correct?

A I waited a long time afterward, about two to three months

later, to contact Cash.

Q And then you and he planned to go up to New Rochelle

again; correct?

A Correct.

(Tr. 375-76).

The “Tai Bo-Jiang” spoke of the wheel and the “Cash plus associates”

spoke of the wheel shared Chen – the “hub” – and the goal of obtaining

Guo’s money. But this is not sufficient to establish a “rim.” After all, Chen,

the government to bring indictments against a dozen or more

defendants and endeavor to force as many of them as possible to trial

in the same proceeding on the claim of a single conspiracy when the

criminal acts could be more reasonably regarded as two or more

conspiracies, perhaps with a link at the top. 506 F.2d at 1340-41.

United States v. Bertolotti, 529 F.2d 149, 151 (2d Cir. 1975).

17

as hub, is not himself the “rim.” And the mere existence of a common goal is

obviously insufficient as well, as is clear from Kotteakos, where the separate

conspiracies shared the common goal of fraudulently obtaining loans.

During the argument upon defense counsel’s application to exclude

the evidence regarding the Chen-Cash conspiracy the government argued

that Petitioner Jiang was not absolved of responsibility for the events of

December 2013 because conspiracies are presumed to continue and Jiang

did not formally withdraw (Tr. 243), and the court echoed this sentiment (Tr.

242) (“I’m not sure [], Mr. Levitt, that you’ve shown a withdrawal from the

conspiracy such that he’s no longer a member of the conspiracy…”). This

argument, however, misses the point and misapprehends this Court’s

teachings on multiple conspiracies. Although the alleged Chen-Tai Bo-Jiang

conspiracy was presumed to continue until its termination, the Chen-Cash

conspiracy was not a continuation of the Chen-Tai Bo-Jiang conspiracy, but

rather was a separate conspiracy, which Jiang never joined.

The Second Circuit’s observation, in its decision affirming Petitioner

Jiang’s conviction, that “There is no requirement in conspiracy law that the

same individuals be involved throughout the duration of the conspiracy,” is

beside the point; true, no such requirement exists, but this Court’s teachings

do require that there be something other than a common conspiratorial

18

object to find a single conspiracy where diverse persons act entirely

independently of one another, and during entirely different periods of time,

with only a common leader or “hub.” The Second Circuit’s reasoning,

applied to this Court’s decisions in Berger and Kotteakos, would upend the

holdings of those cases; after all, there was a common object in Berger to

utter counterfeit notes to obtain things of value, and a common object in

Kotteakos to obtain fraudulent loans under a common government program.

That there was but a single intended victim in the instant case is not a factor

that distinguishes this Court’s multiple conspiracy law. If, instead of waiting

months after parting ways with Jiang to recruit Cash and his crew, Billy

Chen had waited years, surely the conclusion of multiple conspiracies would

be apparent. Yet why, for purposes of conspiracy law, should it matter how

much time transpired between the two events? What is significant is that

Billy Chen recruited Cash after entirely severing his relationship with

Petitioner Jiang and there was nothing that connected Jiang and Cash;

“Nothing in the evidence connected petitioner[] with [Cash], except [Billy

Chen], in the slightest way.” Kotteakos, 328 U.S. at 777.

19

CONCLUSION

For all the foregoing reasons this Court should grant Mr. Jiang’s

Petition for a Writ of Certiorari.

Dated: New York, New York

June 13, 2018

Respectfully submitted,

_____________________________

RICHARD LEVITT

Attorney for Petitioner Jiyao Jiang

LEVITT & KAIZER

40 Fulton Street, 23rd Floor

New York, New York 10038

(212) 480-4000

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