Petition for Writ of Certiorari — Chang An-Lo v. United States

et

Ne, Supreme Court, U.S.

TEE D

IN THE SEP 23 1388

SEPH F. SPANIOL, JR,

Supreme Court of the Unite

OctoBerR TERM, 1987

CuanG An-Lo and CuHen Cur-Y1,

Petitioners,

THe Unitep States or AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

omen en

coe

WiuiaMm M. Kunstier

13 Gay Street

New York, New York 10014

(212) 924-5661

Attorney for Petitioners

Chang An-Lo and Chen Chi-Yi

Of Counsel:

RonaLp L. Kusy

a] =

Questions Presented

l. Did the trial judge have a

duty to permit defense counsel and

their clients to be present in the

first instance when he interviewed the

two jurors here involved?

2 Did the trial judge have the

duty, if it were permissible for him

to interview the jurors in question

out of the presence of the parties and

their counsel, to do so on the record?

36 Does the failure of the

trial judge to follow either procedure

mandate a reversal of petitioners'

judgments of conviction?

sa Die

Parties

Defendants-Petitioners were

convicted in the United States

District Court for the Southern

District of New York after a jury

trial as follows: Chang An-Lo of a

conspiracy to possess and distribute

heroin and cocaine; and Chen Chi-Yi of

a RICO conspiracy as well as a number

of conspiracy and substantive counts

as more fully set forth in the

Statement of the Case.

Plaintiff-Respondent is’ the

United States of America.

Table of Contents

Questions Presented . ..+ + « -» 1

Parties - a ° * ~ — a * — _ aa > — 2

Table of Contents . 2 ee ae

=-3-

wenaee OF Gutnorities ...+.ss-3

co et ae a ae er a a a a ee

Jurisdictional Statement. .... 6

Constitutional Provisions . ... 7

Statement of the Case ....s4.- 8

Stacement Of Facts . ...es« «10

Reasons for Granting the Writ

PETITIONERS WERE DENIED A FAIR

TRIAL BY AN IMPARTIAL JURY . .13

ee ae ae ee ee ee

Appendix

Table of Authorities

Cases

Ah Fook Chang v. United States,

7a. Scan ees (sen Civ. 1937). . 17

Arrington v. Robertson,

Da ae Meee lg gg lg lw ct lt

Chapman v. California,

386 U.S. 18 (1987) . ..... 18

Chicago Rock Island & Pacific

Railroad Co. v. Speth,

404 F.2d 291 (8th Cir. 1968) . .17,21

Evans v. United States,

284 F.2d 393 (6th Cir. 1960) . .17

a4=

Fillipon v. Albicn Vein

Slate Co er

250 UcB. 76 (1939) « « « © «@

Glasser v. United States,

3he Use OO thBeal 46 © © @ «

Gagliardi v. United States,

366 F.2d 720 (9th Cir. 1937)

Gomila v. United States,

146 F.2d 372 (5th Cir. 1944)

Jones v. United States,

308 FcaG 307: Getwee GSE. 1962)

Kersey Manufacturing Co.

v. Rozic,

aaa mom 743 (2966): « « « «

Little v. United States,

73 F.2d 861 (10th Cir. 1934)

Patton v. Yount,

467 U.S. 1015 (1984) ... .

Phillips v. Smith,

455 U.S. 209 (1982) ... -

Remmer v. United States,

347 U.S. 227 (1954) ... .-

Rice v. United States,

356 F.2d 709 (8th Cir. 1066)

Sher v. Stoughton,

666 F.2d 791 (2d Cir. 1981)

Shields v. United States,

273 Uses BES UASZT) 2 2 2

-18

-18

-17

17

Pye

22

-17

16

-13,24

021

17

18

=5—=

United States v. Chang An-Lo,

et al.,

Docket Nos. 86-1506, 1507, 1509,

1510, 1511, 1512, 87-1001, 1002,

BOLDs 3029 (26-Citud. acc.

United States v. Compa na,

146 F.2d 524 (2d Cir. 1944).

United States v. D'Antonio,

342 F.2d 667 (7th Cir. 1965)

United States v. Dellinger,

472 F.2d 140 (7th Cir. 1972)

United States ex rel. Toth

v. Quarles,

Sam Wate BL 43955) » cc ec

United States v. Hillard,

701 F.2d 1054 (2d Cir. 1983)

United States v. Neal,

320 F.2d 533 (3d Cir. 1963)

United States v. Schor,

418 F.2d 26 (2d Cir. 1969) .

Other Authorities

United States Constitution

Fifth Amendment ......

Sixth Amendment .....

6 U8 .Ce F308? 6 5 Seo oe

o 6

~17

-16

my ®

~15

-19

ae i |

~~

Federal Practice & Procedure,

§ 724 a o > * _ al 7 o . . . . >. 21

The Federalist, No. 83 ..... 15

The New York Times, editorial,

~“*Compromised Justice,"

2/2/02, Bc BE cis we wh ec st

Opinion Below

The opinion of the United States

Court of Appeals for the Second

Circuit in United States v. Chang

An-Lo, et al, Docket Nos. 86-1506,

1507, 1509, 1510, 1511, 1512, and

87-1001, 1002, 1013, and 1029 is not

yet published. The slip opinion is

annexed hereto as la.

Jurisdictional Statement

The judgment of the United States

Court of Appeals for the Second

Circuit was entered on June 27, 1988.

On August 23, 1988, the Hon. Thurgood

Marshall signed an order extending

~ =

petitioners time in which to file a

petition for a writ of certiorari up

to, and including September 25, 1988.

(App. at 29a).

This Court has jurisdiction to

review the judgment pursuant to 28

U.S.C. § 1254.

Constitutional Provisions Involved

The Fifth Amendment to the

Constitution provides, in pertinent

part, “No person shall be ...

deprived of life, liberty or property

without due process of law."

The Sixth Amendment to the

Constitution provides, in pertinent

part, that “in all criminal

prosecutions, the accused shall enjoy

the right to . . . an impartial jury

of the State and district wherein the

crime shall have been committed. . ."

Statement of the Case

Petitioner Chen Chi-Yi (Chen) was

indicted by a Grand Jury of the

Southern District of New York, along

with petitioner Chang An-Lo (Chang),

and nine other co-defendants. Chen

was indicted on nine of the

indictment's fourteen counts (Nos. l,

20 Fe 8. 9 10, li, 12 and 14) and

charged with violations of RICO,

federal drug, firearms, and travel

laws. Chang was indicted on four of

said counts (Nos. 1, 2, 3 and 11} and

charged with violations of RICO and

federal drug laws.

On Friday, September 19, 1986,

after an eight-week jury trial,

partial verdicts were returned,

convicting Chen of conspiring to

violate RICO and of the substantive

=9o

violation of the racketeering statute

(Counts 1 and 2), as well as of two

counts cf narcotics conspiracy and one

of narcotics distribution (Counts 7, 8

and 10); and Chang of conspiracy to

distribute heroin and cocaine (Count

3). The latter was acquitted of

Counts 1 and 2. On September 22,

1986, the trial judge dismissed the

jury which had been unable to reach

verdicts on Counts 11 and 14.

On December 17, 1986, Chang was

sentenced to a fifteen-year term of

imprisonment and a special assessment

of $50.00. On January 9, 1987, Chen

was sentenced to a twenty-year term of

imprisonment, to be followed by a

lifetime special parole term, and a

special assessment of $50.00.

=10—

Petitioners duly appealed to the

United States Court of Appeals for the

Second Circuit, which heard oral

argument on August 10, 1987, but did

not render its decision until June 27,

1988, more than ten months later.

Upon timely application to Hon.

Thurgood Marshall, petitioners' time

to file this Petition for a Writ of

Certiorari was, on August 23, 1988,

extended up to and including September

25, 1988.

Statement of Facts

On Monday, September 22, 1986,

while the jury was still deliberating,

the trial judge informed counsel that

he had received a note from one juror

(Ms. Geels) which stated:

An incident happened in the

jury room on Friday [September

19, 1986] which I feel dutybound

to report. One of the jurors

aie

announced to all of us that [s]he

had read an article in Thursday's

[September 18, 1986] paper

regarding this trial and that

[s]he wanted to tell the jurors

what the article said.

At that point, I spoke up and

said that I was astounded, first

of all, that [s]he had read the

article, and secondly that [s]he

would tell us what had been read.

I have been very perterbed about

this incident and question

whether this juror can be an

impartial one in this case.

TT. 5733 (emphasis added) .!

At the same time, he informed

counsel that he had received another

note from the jury foreman, a Mr.

West, who was the person referred to

by Ms. Geels. He also stated that he

had interviewed both jurors ex parte

1puring the trial, the court had

regularly admonished the jurors to

avoid any media references to it.

See, e.g., TT. 340, 500-01, 708-09.

wie

and in camera, and that Mr. West had

told him that the article had appeared

in either the New York Times or the

Daily News, that he found it

"interesting," bat that it hadn't

"atfected my judgment one way or the

other." TT. 5732. During the court's

interview of Ms. Geels, she stated:

"They are all talking about what they

read in the article over the weekend."

TT. 5299 (emphasis added). Counsel

for all defendants, after declining to

interview the jurors in question, then

moved for a mistrial, which motion was

denied. TT. 5739-40.

the trial judge then reviewed an

article in the New York Times of

~13-

September 18, 1986, at p. A-27,° and

concluded that it had only set forth

what has been in the charges or what

has been said in this courtroom,

nothing else." MTT. 5741.

Reasons for Granting the Writ

PETITIONERS WERE DENIED A FAIR

TRIAL BY AN IMPARTIAL JURY.

In Phillips v. Smith, 455 U.S.

209 (1982), this Court held that a

criminal defendant was not denied a

fair trial simply because one of his

petit jurors persistently sought a

position with the prosecutor all

during his trial. While counsel, like

2tt was never determined by the trial

judge whether the article read by Mr.

West was in the New York Times or the

Daily News, or his information was

from some other source. TT. 5731.

=j4-

the New York Times, strenuously

disagrees with the result in that

case, the situation here is a far

different one and certainly merits

this Court's attention. The

fundamental issue here presented is

whether the blatant disregard by the

foreman of a deliberating jury of the

court's instructions as to avoiding

media coverage about the case in

question, followed by his discussion

of said coverage with his fellow

jurors, and the trial judge's ex parte

3see editorial, 2/2/82, p. 24,

entitled "Compromised Justice,"

Stating, in part, "If the High Court

lets the Manhattan District Attorney's

office get away with such cover-ups,

there's little incentive for

government to behave justly. The

Court is a powerful teacher and this

is the wrong lesson."

= ace

=} 5-

and in camera interview of that juror

and one who disclosed the _ said

violation can be tolerated by the

Judicial Branch.

Mindful of the awesome

responsibility resting upon the jury

as "a barrier to the tyranny of

popular magistrates" (The Federalist,

No. 83), and "designed to protect

defendants against oppressive

government practice," United States ex

rel. Toth v. Quarles, 350 U.S. 11, 16

(1955), the courts have _ long

recognized that therefrom flows the

compulsion of independent jury

deliberations free from the slightest

tinge of bias and outside influence.

As the Seventh Circuit once stated:

At no time is it more essential

that the jury should be immunized

from outside influences than when

it is engaged in deliberating

=16=<

upon what its verdict should be.

During that critical period, when

the jurors are engaged in

resolving vital issues between

the government and the defendant,

the judge should certainly not

relax the traditional safeguards

against outside intrusion.

United States v. D'Antonio, 342 F.2d

667, 670 (7th Cir. 1965). Likewise,

to this Court, the question of outside

juror influence and prejudice, as well

as the factual determination thereof,

has long been of paramount concern.

Patton v. Yount, 467 U.S. 1015, 1036

(1984).

It has therefore long been an

unquestioned judicial mandate that

communications between a trial judge

and a deliberating jury, without the

knowledge, presence or consent of the

defendant or his counsel are entirely

improper and are grounds for the

reversal of a conviction. See, e.g.,

a] Ja

Shields v. United States, 273 U.S. 583

(1927); United States v. Schor, 418

F.2d 26 (2d Cir. 1969); United States

v. Compagna, 146 F.2d 524 (2d Cir.

1944); United States v. Neal, 320 F.2d

533 (3d Cir. 1963); Arrington v.

Robertson, 114 F.2d 821 (1940); Gomila

v. United States, 146 F.2d 372 (5th

Cir. 1944); Evans v. United States,

284 F.2d 393 (6th Cir. 1960); Rice v.

United States, 356 F.2d 709 (8th Cir.

1966); Chicago Rock Island & Pacific

Railroad Co. v. Speth, 404 F.2d 291

(8th Cir. 1968); Gagliardo v. United

States, 366 F.2d 720 (9th Cir. 1937);

Ah Fook Chang v. United States, 91

F.2d 805 (9th Cir. 1937); Little v.

United States, 73 F.2d 861 (10th Cir.

1934); Jones v. United States, 308

F.2d 307 (D.C. Cir. 1962); United

=} 9-

States v. Dellinger, 472 F.2d 140 (7th

Cir. 1972); and Fillipon v. Albion

Vein Slate Co., 250 U.S. 76, 81

(1919). Moreover, the “harmless

error" rule does not apply in cases,

as here, where there has been a

deprivation of fundamental

constitutional rights. See, e.g.,

Chapman v. California, 386 U.S. 18

(1987), and Glasser v. United States,

315 U.S. 60, 67 (1942). Secret

communications between utes and jury

as presumed to be prejudicial, but,

even if the “harmless error" rule were

applicable, the burden would be on the

government to prove that affected

defendants were not prejudiced.

Chapman, 386 U.S. at 24. See also

Sher v. Stoughton, 666 F.2d 791, 793

=19=

(2d Cir. 1981); and United States v.

Hillard, 701 F.2d 1054 (2d Cir. 1983).

The Court of Appeals did not, in

any way, address the issue of the

trial judge's ex parte and in camera

interviews with Ms. Geels and Mr.

West. Instead, it confined itself to

stressing that "[T]he trial court has

wide discretion in determining how to

pursue an inquiry into the effects of

extra-record information upon a jury."

App. at 22a. Granted that this may be

the law, it does not go to the

question of the secret communications

between the trial judge and the two

jurors.

The post-interview offer by Judge

Carter to defense counsel granting

them the right to interrogate the

jurors cannot make up for the fact

-20-

that the former questioned them first

dehors the record. If counsel had

accepted the offer, they would have

been in the position of inquiring

after the judge had done so first and

obtained mindsets that would make

further interviewing less’ than

useless. The judge had plainted the

seed and watered the soil, thus

neutralizing the efforts of other

gardeners. Moreover, interviewing the

jurors concerned without anything more

than the court's recollection of what

they said to him in the privacy of his

robing room makes no~- sense

whatsoever.“

4counsel has been informed by one of

the trial attorneys that the judge's

interviews of Mr. West and Ms. Geels

(Footnote Continued)

=21<

In Remmer v. United States, 347

U.S. 227, 229 (i954) ("Remmer I"),

this Court found interference with the

inviolability of the jury and its need

to reach a fair decision to be

presumptively prejudicial. It

reminded us that “the trial court

should not decide and take final

action ex parte on information such as

was received in this case, but should

determine the circumstances, the

(Footnote Continued)

were not recorded. If they were not,

as stated in Wright, Federal Practice

and Procedure, § 724, where “it is

impossible to be sure exactly what was

said to the jury, either because the

message was delivered orally through a

third person or for some other reason

the communication is not part of the

record, reversal must follow."

(emphasis added). See also, Chicago

Rock Island & Pacific Railroad Co. v.

Speth, 404 F.2d 291, 294 (8th Cir.

1986).

=22=

impact thereof upon the juror, and

whether or not it was prejudicial to a

hearing with all interested parties

permitted to participate." Ibid.

This simply was not done here and this

Court should not permit any

convictions obtained herein to stand.

As stated many years ago by the

Supreme Court of Pennsylvania, “It is

the possibility, rather than the

actual fact which leads us to condemn

communications vis-a-vis the trial

judge and the jury made other than in

open court and counsels' presence."

Kersey Manufacturing Company v. Rozic,

222 A.2d 713, 715 (1966) (emphasis in

original).

This case presents an ideal

opportunity for this Court to

establish the criteria governing the

=23<

procedure to be followed by federal

trial judges when confronted with the

type of circumstances here involved.

IT is obvious that Judge Carter

created his own impromptu scenario

when he received the first note from

Ms. Geels and the second one from Mr.

West.” Granted, he wanted nothing to

interfere with a jury which was

deliberating following a two-month

long trial and was determined to avoid

any possibility of a mistrial. °

It might be here pointed out that Mr.

West apparently made his remarks prior

to the jury's verdicts on twelve of

the fourteen counts on Friday

afternoon. Significantly, the trial

judge did not even know of the

situation set forth in Ms. Geels' note

until Monday morning, September 22nd.

Ort must be borne in mind that

appellants did not receive the type of

(Footnote Continued)

=24¢=

However, such considerations simply

outs be permitted to derrick

fundamental constitutional rights and

liberties. When expediency becomes

the law of the land, then the law of

the land no longer is viable.

(Footnote Continued)

"hearing" relied upon by this Court in

deciding Phillips. 455 U.S. at 218.

EEE

o3S=

Conclusion

For the above reasons, a writ of

certiorari should issue to review the

judgment and opinion of the United

States Court of Appeals for the Second

F Circuit.

Dodi’

Dv

Dated: New York, N.Y.

September 23, 1988

ea MAC Neils

Respectfully submitted,

WILLIAM M. KUNSTLER

13 Gay Street

New York, N.Y. 10014

(212) 924-5661

Attorney for Petitioners

Chang An-Lo and Chen Chi-Yi

Of Counsel:

RONALD L. KUBY

Table of Contents

Appendix

Slip Opinion, United States

v. Chang An-Lo, et al.,

United States Court of

Appeals for the Second

Ciseuit,. 6/27/08. « 6. us «

Order of the United States

Supreme Court, Chang An-Lo

v. United States, 8/23/88.

ela

29a

ghd

et Dales A teem lL g

-la-

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

+>

No. 1318—August Term, 1987

(Argued: August 10, 1987 Decided: June 27, 1988)

Docket Nos. 86-1506, 86-1507, 86-1509, 86-1510,

86-1511, 86-1512, 87-1001, 87-1002, 87-1013, 87-1029

~

UNITED STATES OF AMERICA,

Appellee,

—

CHANG AN-LO, a/k/a ‘‘WHITE WOLF’’, SHIANG BAO-

JING, a/k/a ‘‘CRIPPLE’’, GEORGE QI LU, PETER

YANG, LAM TSO, a/k/a ‘‘SAMMY LAM’’, JOHN

KIRKPATRICK, AH MIN, JACK MA, a/k/a ‘‘JACK

LI’’, TUNG KUEI-SEN and CHEN CHIH-YI, a/k/a

‘“YELLOW BIRD’’,

: Defendants-Appellants.

>

Before:

WINTER and MAHONEY, Circuit Judges,

and STEWART, District Judge.*

oe

* The Honorable Charles E. Stewart, Jr., of the United States District

Court for the Southern District of New York, sitting by designation.

4521

-2a-

Appeals from judgments of conviction entered after a

jury trial in the United States District Court for the South-

ern District of New York, Robert L. Carter, Judge. Af-

firmed, but remanded for compliance with Fed. R. Crim.

P. 32(c)(3)(D) with respect to defendants-appellants

George Qi Lu and Tung Kuei-Sen.

meal

WILLIAM M. KUNSTLER, New York, New

York (Jay Gregory Horlick, Brooklyn,

New York, of counsel for Defendant-

Appellant Chang An-Lo; Jeffrey A.

Lazroe, Buffalo, New York, of counsel

for Defendant-Appellant Chen Chih-Y)),

for Defendants-Appellants Chang An-Lo

and Chen Chih- Yi.

PHILIP KATOWITZ, Brooklyn, New York, for

Defendant-Appellant Shiang Bao-Jing.

BOBBI C. STERNHEIM, New York, New York,

for Defendant-Appellant George Qi Lu.

LORIN DUCKMAN, New York, New York, for

Defendant-Appellant Peter Yang.

MICHELLE S. JACOBS, Bronx, New York, for

Defendant-Appellant Lam Tso.

ROBERT E. PRECHT, New York, New York

(The Legal Aid Defender Services Unit,

New York, New York, of counsel), for

Defendant-Appellant John Kirkpatrick.

4522

-3a-

LEE A. GINSBERG, New York, New York

(Freeman, Nooter & Ginsberg, New

York, New York, of counsel), for

Defendant-Appellant Ah Min.

EUGENE BOGAN, New York, New York, for

Defendant-Appellant Jack Ma.

LAWRENCE GROSS, Elmhurst, New York

(Gering, Gross & Gross, Elmhurst, New

York, of counsel), for Defendant-

Appellant Tung Kuei-Sen.

ANNE T. VITALE, Assistant United States

Attorney for the Southern District of New

York, New York, New York (Rudolph W.

Giuliani, United States Atrorney for the

Southern District of New York, Bruce

Green, Assistant United States Attorney

for the Southern District of New York,

New York, New York, of counsel), for

Appellee.

MAHONEY, Circuit Judge:

Defendants-appellants appeal from judgments entered

upon their convictions by a jury after an eight week trial in

the United States District Court for the Southern District

of New York, Robert L. Carter, Judge. They were charged

in a fourteen count indictment. Count one alleged a RICO

conspiracy to conduct the affairs of United Bamboo, a

criminal enterprise which originated in Taiwan approxi-

mately thirty years ago and is active in the United States,

through a pattern of racketeering activity involving the

murder of journalist Henry Liu in Daly City, California

4523

-4a-

on October 15, 1984, various narcotics conspiracies and

distributions, and interstate travel in aid of racketeering.

Count two alleged the conduct of that enterprise’s affairs

as aforesaid. Counts three through ten alleged various nar-

cotics conspiracies and distributions. Count eleven

charged interstate travel in aid of racketeering, counts

twelve and thirteen charged illegal transportation and re-

ceipt of firearms in interstate commerce, and count four-

teen charged a conspiracy to counterfeit a United States

passport. All defendants-appellants were charged with and

convicted of one or more crimes, and sentenced to terms

ranging from twenty-five years for Lam Tso to time served

of one year for Peter Yang.

Appellants raise numerous issues on appeal. We affirm,

except that we remand as to defendants-appellants George

Qi Lu and Tung Kuei-Sen for compliance with Fed. R.

Crim. P. 32(c)(3)(D). We consider herein defendants-

appellants’ contentions concerning the sufficiency of the

evidence as to certain defendants, the refusal of the trial

judge to grant certain defendants’ motions for severance

which allegedly resulted in an unfair trial, the admissibility

of a duplicate foreign business record when the supporting

witness had never seen the original, the propriety of the

trial judge’s ex parte examination of certain jurors con-

cerning one juror’s reading a newspaper report concerning

the case prior to allowing defense counsel the opportunity

to interview the jurors, whether the alleged inconsistency

between verdicts on RICO counts and non-RICO counts

charging identical conduct requires reversal of conviction,

and the conduct of the sentencing proceedings with respect

to defendants George Qi Lu and Tung Kuei-Sen.

4524

ss i i tt

-5a-

I. Background

A. The United Bamboo.

This case involves the activities of a Chinese organized

crime syndicate, the United Bamboo. The United Bamboo

was founded in Taiwan approximately three decades ago.

Over the years, the enterprise has extended its activities to

Hong Kong, Japan, the Philippines, Singapore, and most

recently the United States. In this country, the United

Bamboo has established its operations in Houston, Los

Angeles, San Francisco and New York. The members

and associates of the organization in the United States

established the United Bamboo’s presence here through

involvement in various illegal activities such as prostitu-

tion, illegal gambling, assisting fugitives from justice,

extortion, kidnapping, murder, and trafficking in guns

and narcotics.

The United Bamboo’s international leader, Chen Chi-

Li, came to Los Angeles in September, 1984 for a series of

meetings with members and associates of the United Bam-

boo, including the defendant Chang An-Lo, the leader of

the United Bamboo in the United States; the defendant

Chen Chih-Yi, the financial leader of the organization in

the United States; and the defendant Tung Kuei-Sen,

among others, to discuss plans that would expand the

group’s activities here.

To demonstrate its strength and capability, the United

Bamboo planned to murder Henry Liu, a Taiwanese jour-

nalist who had written critically of the Taiwanese govern-

ment. After careful planning by Chen Chi-Li and his

associates, one Wu Tun and defendant Tung Kuei-Sen

murdered Henry Liu during the early morning hours of

October 15, 1984 at Liu’s home in Daly City, California.

4525

-6a-

Four days after the murder, Chen Chi-Li, Wu Tun and

Tung Kuei-Sen fled the United States and returned to Tai-

wan with the help of Chen Chih-Yi.

As a result of the shock and outcry over Henry Liu’s

murder, Taiwan began the ‘‘I Ching,’’ a crackdown on the

_ underworld in Taiwan. The ‘‘I Ching’’ was successful in

arresting numerous Chinese underworld figures, including

Chen Chih-Yi. As a result of the disruption of the United

Bamboo’s activities caused by the ‘‘I Ching,’’ the organi-

zation sought to raise money in support of members and

associates who had been arrested and further sought to aid

fugitives who had left Taiwan.

In furtherance of United Bamboo’s expansion plan,

Chang An-Lo contacted one Steven Wong, a United Bam-

boo member, numerous times and asked him to provide

specific information about the street gangs and their crimi-

nai activity in New York’s Chinatown. Chang An-Lo

intended to use that information to take over and profit

from criminal activities in Chinatown.

In March, 1985, however, Steven Wong began to work

in an undercover capacity for the New York City Police

Department, and thereafter for the Federal Bureau of

Investigation. After providing the authorities with infor-

mation pertaining to the murder of Henry Liu and the

United Bamboo’s proposed activities in Chinatown, Wong

proceeded to record numerous conversations with various

defendants during the course of a five month investiga-

tion, some hundred of which were used as evidence at

trial. The investigation revealed separate but related

schemes to acquire and distribute narcotics in order to

raise money for United Bamboo.

4526

~J7a-

B. The Heroin-Cocaine Conspiracy.

The first plan involved a conspiracy to obtain and dis-

tribute heroin and cocaine between April and September,

1985. Defendants Chang An-Lo, Shiang Bao-Jing, George

Qi Lu, Lam Tso and Tony Wong’ participated in this con-

spiracy, which, while ultimately unsuccessful, resulted in

the sale of one pound of heroin and the distribution of

three additional samples cf heroin to undercover law

enforcement officers.

The government proved the existence of the conspiracy

through the surveillance of numerous meetings between

certain of the defendants and Steven Wong (and other

undercover officers) during the period in question. At

those meetings, many of which took place in April and

May, 1985, matters relating to the attempted establish-

ment of a substantial narcotics trade were revealed. Chang

An-Lo made several statements about his ‘‘connections’’

in the Golden Triangle, an area in Southeast Asia known

for heroin production. He also told Wong of his plans to

“take over’’ Chinatown. Moreover, Chang gave Wong ex-

press authority to arrange narcotics transactions with the

defendant Lam Tso. Throughout May and June, 1985,

Lam Tso, who was based in New York, continuously

attempted to secure a source for heroin through the help

of defendant George Qi Lu.

In this connection, Lam Tso told Steven Wong on May

24, 1985, that George Qi Lu would be meeting a heroin

source in Los Angeles and arranging narcotics trans-

actions on behalf of Lam Tso and Steven Wong. In addi-

tion, George Qi Lu arranged on one occasion for Chang

1 Although a defendant and convicted below, Tony Wong is not a

party to this appeal.

4527

-8a-

An-Lo to meet with Lu’s heroin source from the Golden

Triangle.

On June 6, 1985, Chang An-Lo was arrested on charges

of kidnapping and extortion.” Defendant Shiang Bao-Jing

then became the leader of the United Bamboo in Los

Angeles, and contin:ed to carry out Chang’s plan for the

organization’s development.’ On June 19, 1985, at a meet-

ing in Los Angeles with Steven Wong, two undercover of-

ficers and defendant George Qi Lu, Shiang Bao-Jing told

of a ten point plan that he had designed to carry out the

development of United Bamboo in the United States that

Chang had initiated. One of the elements of the plan was

narcotics trafficking. In that connection, on June 20,

1985, Shiang discussed available sources for narcotics.

On the evening of June 19, 1985, Steven Wong dis-

cussed narcotics sources with defendant George Qi Lu, as

well. Lu told Wong that he too had available sources for

heroin. Lu described how he had brought a particular

source to New York to meet with Lam Tso on two occa-

sions in order to arrange a drug deal. Concurrently, over

the next several days, Shiang indicated his awareness of his

2 Chang’s arrest stemmed from an attempt to extort money from a

merchant who owed a debt to members of the United Bamboo. Chang

organized the kidnapping of Wang Chuo Tao, an employee of the mer-

chant, in order to extort the money. Tao was released because she rec-

ognized Chang. After the release, Chang spoke with Wang Chuo Tao

by telephone. During that conversation, which was recorded, Chang

admitted his role in the kidnapping, and was subsequenily arrested.

3. While Shiang only assumed control over the Los Angeles operation

after Chang’s arrest, Shiang had been a trusted associate and had fully

participated in the conspiracy, prior to that time. Shiang partook in

‘several of the aforementioned meetings and conversations in April and

May, 1985. Specifically, Shiang discussed taking over Chinatown, and

said that he believed New York was a good place to ‘‘hustle.’’ He also

told Wong that he could easily smuggle narcotics and other contraband

into the United States in his metal crutches without being detected.

4528

-~9Ja-

associates’ efforts to bring about narcotics sales, and be-

gan to pursue the opportunities available to secure narcot-

ics by personally dealing with Lu’s source, despite

Shiang’s distrust of that source.

Upon his return to New York, Wong kept in touch with

Shiang Bao-Jing regarding the proposed narcotics trans-

actions. On July 15, 1985, Shiang advised Wong that he

would set up meetings for Wong with narcotics sources

when Wong next returned to the west coast area, and that

samples of both heroin and cocaine would be readily avail-

able. On July 20, 1985, Shiang Bao-Jing actually brought

a narcotics source to Las Vegas to meet with other mem-

bers of the conspiracy, but that meeting went awry.

The defendants’ efforts to obtain heroin and cocaine

from their contact from the Golden Triangle never came

to fruition. However, Lam Tso was able to make arrange-

ments through other sources, which resulted in a sale of

354 grams of heroin for $48,000 by Tony Wong and Lam

Tso to Steven Wong and two undercover law enforcement

associates on July 26 and 27, 1985. Further, Lam Tso

delivered two more samples of heroin to Steven Wong on

July 30, and another sample on August 15, 1985.

C. The Marijuana-Cocaine Conspiracy.

The second conspiracy involved the efforts of defen-

dants Chen Chih-Yi, Jack Ma, John Kirkpatrick, Lam

Tso and Tony Wong to distribute one hundred fifty

pounds of marijuana between June and September, 1985.

In addition, there was a plan to distribute cocaine, which

resulted in Chen Chih-Yi supplying undercover officers

with a sample of the drug. Once again, the government

was able to prove the conspiracy largely through the ef-

forts of Steven Wong and the other undercover officers.

4529

-10a-

On June 25, 1985, Steven Wong met with Chen Chih-Yi

in New York. At that meeting, among other things, Chen

told Steven Wong of his capabilities of dealing in mari-

juana and cocaine. On June 26, 1985, Steven Wong pre-

sented Chen with a $5,000 deposit for one hundred pounds

of marijuana that was eventually to be shipped from Texas

to New York City. On July 1, 1985, Steven Wong, along

with two undercover associates, went to Texas at Chen’s

invitation, where they were introduced to Chen’s mari-

juana sources. Wong and his colleagues also met defen-

dant Jack Ma for the first time during that trip, as well as

other United Bamboo members. On July 2, 1985, Chen

supplied Steven Wong with samples of marijuana and

cocaine.

On July 31, 1985, Steven Wong wired Chen a further

partial payment for the marijuana. In addition, Chen

thereafter agreed to give the defendant Lam Tso an extra

fifty pounds of marijuana on consignment, as well as six

firearms. On August 7, 1985, the defendant John Kirk-

patrick arrived by car in New York with the marijuana and

firearms. After contacting Chen, who had been dining

with Jack Ma, Lam Tso, Tony Wong, Steven Wong and

Steven Wong’s undercover associates, Kirkpatrick waited

for them at a designated site. The parties then proceeded

to a secluded area on the west side of Manhattan, where

one of the undercover agents gave Jack Ma $25,000 in

exchange for the marijuana and guns.

D. The Conspiracy to Import and Distribute Three

Hundred Kilograms of Heroin.

The third phase of the United Bamboo plan involved a

conspiracy to import and distribute three hundred kilo-

grams of heroin into the United States in which defendants

4530

-lla-

Chen Chih-Yi, Tung Kuei-Sen, Jack Ma, Peter Yang and

Ah Min participated from June through September, 1985.

Steven Wong was first made aware of the details of the

plan to obtain heroin on July 24, 1985. On that day, Chen

told Wong that Tung Kuei-Sen had assured Chen that the

**stuff’’ would be forthcoming from Thailand. At that

point, Chen believed that after a smaller purchase, the

conspiracy could obtain one hundred to two hundred kilo-

grams of heroin for distribution. Thereafter, on August

13, 1985, Chen flew to Brazil to meet with Tung Kuei-Sen

in Rio de Janeiro. Telephone calls were made to the tele-

phone number of defendant Ah Min, the purported heroin

source, in Thailand on August 13 and 15, 1985 from

Tung’s hotel room in Rio de Janeiro.

The negotiations for this transaction subsequently con-

tinued in New York City. At a meeting there on August

20, 1985, Chen introduced Peter Yang to Steven Wong,

describing Yang as a trusted associate and one of the

toughest members of the United Bamboo; an enforcer.

The next day, Chen, accompanied by Yang, held another

meeting regarding the heroin transaction, at which he re-

viewed the details of the transaction with two undercover

agents who were the purported purchasers.

On September 13, 1985, Chen and Jack Ma arrived in

New York with Ah Min. The three hundred kilogram

heroin transaction was finalized during the next, three

days. On the morning of September 15, 1985, the pur-

chasers handed over $50,000 to Chen to make any ar-

rangements necessary to conclude the transaction. Shortly

thereafter, the defendants were arrested.

As described earlier, the indictment, trial and conviction

of the defendants-appellants ensued.

4531

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Il. Discussion

A. Sufficiency of the Evidence.

Defendants Shiang Bao-Jing, George Qi Lu, Peter Yang

and Jack Ma contend that the evidence introduced by the

Government at trial was insufficient to support their re-

spective convictions. We address these claims individually.

The rules for determining appellate sufficiency claims

are well settled. First, the defendant bears a ‘‘very heavy

burden”’ in challenging the sufficiency of the evidence.

United States v. Buck, 804 F.2d 239, 242 (2d Cir. 19%6);

United States v. Grubczak, 793 F.2d 458, 462-63 (2d Cir.

1986) (citations omitted). The test is ‘‘whether the jury,

drawing reasonable inferences from the evidence, may

fairly and logically have concluded that the defendant was

guilty beyond a reasonable doubt.’’ Grubczak, 793 F.2d at

463 (citations omitted). In making such a determination,

the evidence is viewed in the light most favorable to the

government, and all permissible inferences are construed

in its favor. Grubczak, 793 F.2d at 463; see United States

v. Nersesian, 824 F.2d 1294, 1324 (2d Cir.), cert. denied,

108 S. Ct. 355 (1987). If any rational trier of fact could

have found the essential elements of the crime beyond a

reasonable doubt, the conviction must be sustained.

United States v. Fiore, 821 F.2d 127, 128 (2d Cir. 1987)

(citing Jackson v. Virginia, 443 U.S 307, 319 (1979);

United States v. Badalamenti, 794 F.2d 821, 828 (2d Cir.

1986); Grubczak, 793 F.2d at 462-63). Nor is the govern-

ment required to preclude every reasonable hypothesis

which is consistent with innocence. Fiore, 821 F.2d at 128.

Defendants Shiang Bao-Jing and George Qi Lu chal-

lenge the sufficiency of the evidence with respect to their

convictions on count three of the indictment, the only

4532

-l3a-

count of which they were convicted, which relates to the

heroin-cocaine conspiracy described supra in Section IB.

Since ‘‘conspiracy by its very nature is a secretive opera-

tion,’’ United States v. Provenzano, 615 F.2d 37, 45 (2d

Cir.), cert. denied, 446 U.S. 953 (1980), the elements of a

conspiracy may be established through circumstantial evi-

dence. United States v. Soto, 716 F.2d 989, 991 (2d Cir.

1983) (quoting United States v. Sanzo, 673 F.2d 64, 69 (2d

_ Cir.), cert. denied, 459 U.S. 858 (1982)). However, ‘‘ab-

sent evidence of purposeful behavior, mere presence at the

scene of a crime, even when coupled with knowledge that a

crime is being committed, is insufficient to establish mem-

bership in a conspiracy; and mere association with con-

spirators is similarly insufficient.’’ United States v.

Martino, 759 F.2d 998, 1002 (2d Cir. 1985) (citations omit-

ted); United States v. Johnson, 513 F.2d 819, 823-24 (2d

Cir. 1975). Thus, evidence of purposeful behavior de-

signed to further a conspiracy must be shown to prove

membership in that conspiracy. See United States v.

Torres, 519 F.2d 723, 726 (2d Cir.), cert. denied, 423 U.S.

1019 (1975); Johnson, 513 F.2d at 823.

Considering first Shiang Bao-Jing, in addition to his

presence at preliminary discussions in April, 1985, re-

corded conversations in June and July, 1985 indicate that

Shiang played an active role in the scheme to distribute

heroin and cocaine. For example, Shiang stated that after

Chang’s arrest, it was Shiang’s intention to develop the

profitable ventures that Chang had planned for United

Bamboo. These included, in addition to gambling, extor- ©

tion and prostitution, the arrangement of heroin and

cocaine transactions. Shiang revealed that such activities

were a part of a ten point plan to establish United Bam-

boo’s presence in the United States.

4533

-l4a-

In furtherance of this plan, Shiang arranged for Steven

Wong and his undercover colleagues to meet George Qi Lu

in Los Angeles on June 19, 1985. Shiang discussed his

sources for cocaine and heroin with Wong at that meeting.

In addition, over the next several days, Shiang discussed

his awareness of his associates’ dealings with at least one

source regarding possible narcotics transactions. Soon

thereafter, Shiang began to deal with the source himself

with respect to potential narcotics transactions. On July

15, 1985, Shiang told Steven Wong that samples of heroin

and cocaine were available from this source, and five days

later brought his connection to Las Vegas in an unsuccess-

ful effort to set up a meeting with Wong and Lam Tso to

arrange narcotics transactions.

In summary, there was ample evidence of Shiang Bao-

Jing’s purposeful activity in furtherance of the conspiracy

charged in count three of the indictment.

The evidence was also sufficient to sustain defendant

George Qi Lu’s conviction. Although Lu argues that he

cannot be convicted of conspiracy because the evidence

established only that he was helping a willing buyer to lo-

cate a willing seller, see United States v. Tyler, 758 F.2d

66, 68-69 (2d Cir. 1985), this contention is belied by Lu’s

own recorded statements, as well as several recorded state-

ments of his associates, which convincingly demonstrate a

considerably broader participation in the heroin-cocaine

conspiracy.

For example, on June 19, 1985, after Lu was met at the

Los Angeles airport by Shiang and Steven Wong, Lu and

Wong discussed narcotics transactions at length en route

to a meeting at a Los Angeles restaurant. Specifically, Lu

told Wong of his heroin source from the Golden Triangle,

whom Lu had brought to New York on two prior occa-

4534

-

-15a-

sions to introduce the source to defendant Lam Tso so that

heroin sales could be arranged. In exchange for these ser-

vices, Lu expected a ‘‘red envelope,’’ the traditional con-

tainer for remuneration among United Bamboo members

and associates. These statements alone place the instant

case in a different posture from cases where a defendant is

merely helping a willing buyer to find a willing seller on an

isolated occasion, see Tyler, 758 F.2d at 69; United States

v. Torres, 519 F.2d 723, 726 (2d Cir.), cert. denied, 423

U.S. 1019 (1975), and ‘‘more than adequately establish[ ]

his status as a conspirator.’’ Torres, 519 F.2d at 726.

Moreover, in addition to Lu’s own statements, defen-

dant Lam Tso told Steven Wong on May 24, 1985 that

George Qi Lu would be meeting a heroin source in Los

Angeles and arranging narcotics transactions on behalf of

Lam Tso and Steven Wong. Significantly, it was Lam Tso

who was originally to meet with the source and arrange

transactions the previous day. As the government argues,

it would certainly be reasonable for the jury to infer that

Lu’s substitution for Lam Tso at the meeting indicated

that Lu was acting in concert with Lam Tso in the conspir-

acy. Finally, Lu arranged for defendant Chang An-Lo to

meet with Lu’s source from the Golden Triangle, thus

bringing Lu again within the scope of the conspiracy. In

sum, there was sufficient evidence to convict George Qi Lu

on count three.

Peter Yang contends that there was insufficient evidence

to convict him on count ten of the indictment, the conspir-

acy to import and distribute three hundred kilograms of

heroin described supra in section ID. This was the only

count on which Yang was convicted. His claim is without

merit.

4535

-l6a-

The evidence establishes that Yang was a participant in

the August 20, 1985 meeting in New York at which he and

several members of the United Bamboo discussed, among

other things, the three hundred kilogram deal. Yang was

introduced to those unfamiliar with him as one of the

toughest of the United Bamboo. Yang told Steven Wong

during the course of the meeting that the three hundred

kilograms of heroin was ‘‘worthwhile fighting over.’’

Immediately after the meeting, while discussing the

crackdown in Taiwan on United Bamboo following the

murder of Harry Liu, Yang affirmatively acknowledged

his association with United Bamboo, stating: ‘“They catch

a lot of peoples this time, they really hurt us.’’ Yang also

participated in a meeting the next day at which the details

of the importation scheme were reviewed.

Yang claims that his presence at these meetings, and any

comments made thereat, pertained solely to his desire to

be employed at a Las Vegas gambling casino, and thus

were not related to the heroin conspiracy. However,

Yang’s presence and active participation in the meetings,

which explicitly concerned the heroin scheme, in conjunc-

tion with his comments relating to that subject matter,

would certainly allow a rational juror to find Yang guilty

of conspiracy.

Jack Ma challenges the sufficiency of the evidence

underlying his conviction on counts one, seven, eight, ten

and twelve of the indictment, relating to the general RICO

conspiracy, the narcotics conspiracies described supra in

sections IC and ID, and illegal interstate transportation

and delivery of firearms. His claim cannot be sustained.

Ma was not only present at, and a participant in, the

meetings at which these conspiracies and transactions were

discussed, but was present at the actual delivery of the one

4536

-l7a-

hundred fifty pounds of marijuana and six firearms which

are the subject of counts seven, eight, and twelve. The

final $25,000 payment for the marijuana was made to

Ma. He was also present at the meetings at the Vista Hotel

in Manhattan on September 13, 14 and 15 at which the

transaction involving three hundred kilograms of heroin,

the subject of count 10, was conducted. Finally, he was the

personal bodyguard for defendant Chen Chih-Yi, a major

leader of United Bamboo in the United States. In short,

there was ample evidence to support his several

convictions.

B. Denial of Severance Motion.

Defendants Ah Min and John Kirkpatrick argue that

Judge Carter improperly denied their motion for sever-

ance in violation of Fed. R. Crim. P. 14, thereby depriving

them of a fair trial.* Their claim is without merit.

Rule 14 of the Federal Rules of Criminal Procedure

authorizes a trial judge to grant a severance of defendants

if it appears that a defendant will be prejudiced by a join-

der of defendants.’ Motions to sever under Rule 14 are

4 Fed. R. Crim. P. 14 provides in pertinent part:

If it appears that a defendant. . . is prejudiced by a joinder of of-

fenses or of defendants in an indictment or information or by such

joinder for trial together, the court may order an election or sepa-

rate trials of counts, grant a severance of defendants or provide

whatever other relief justice require.

5S Fed. R. Crim. P. 8(b) states that:

Two or more defendants may be charged in the same indictment or

information if they are alleged to have participated in the same act

or transaction or in the same series of acts or transactions constitut-

ing an offense or offenses. Such defendants may be charged in one

Or more counts together or separately and all of the defendants

need not be charged in each count.

Similarly, Rule 8(a) allows for joinder of two or more offenses in an

indictment or information.

4537

-18a-

committed to the sound discretion of the trial judge, and a

denial of such a motion will be reversed only upon a show-

ing of clear abuse of that discretion. United States v.

Cody, 722 F.2d 1052, 106i (2d Cir. 1983), cert. denied,

467 U.S. 1226 (1983); 1 C. Wright, Federal Practice &

Procedure § 227, at 854 (2d ed. 1982 & Supp. 1987). In

seeking to overturn the denial of a Rule 14 motion,

‘*(t]he burden is upon a moving defendant to show

facts demonstrating that he will be so severely preju-

diced by a joint trial that it would in effect deny him a

fair trial. The defendant must demonstrate that he

suffered such prejudice as a result of the joinder, not

that he might have had a better chance for acquittal at

a separate trial.”’

United States v. Burke, 700 F.2d 70, 83 (2d Cir.) (quoting

United States v. Rucker, 586 F.2d 899, 902 (2d Cir. 1978)),

cert. denied, 464 U.S. 816 (1983).

Ah Min and Kirkpatrick simply do not meet this heavy

burden. They argue that the overwhelming majority of the

evidence introduced at trial was not admissible against

them, but rather was relevant only to the other defen-

dants. This, they assert, resulted in a spillover effect so

prejudicial that it denied defendants a fair trial. They con-

tend this was especially so with respect to the evidence of

Henry Lui’s murder.

We find this argument unpersuasive. First, ‘‘the fact

that evidence may be admissible against one defendant but

not another does not necessarily require a severance.’’

United States v. Carson, 702 F.2d 351, 367, (2d Cir.) (cita-

tions omitted), cert. denied, 462 U.S. 1108 (1983); see

United States v. Losada, 674 F.2d 167, 171 (2d Cir.), cert.

denied, 457 U.S. 1125 (1982). Second, the evidence with

respect to each of the defendants was adequately straight-

4538

OO

-19a-

forward that the jury could consider it without any signifi-

cant spillover effect. Jd. Finally, Judge Carter carefully

instructed the jury to consider the case against each defen-

dant separately, and explained that a person may associate

with or even be friendly with a criminal without being one

himself. See id.; United States v. Weisman, 624 F.2d 1118,

1130 (2d Cir.), cert. denied, 449 U.S. 871 (1980).

Ah Min and Kirkpatrick advance a related argument,

contending that their less important roles in the conspira-

cies required a separate trial in order to avoid improper in-

ferences being drawn against them. However, it is well

established that ‘‘differing levels of culpability and proof

are inevitable in any multi-defendant trial and, standing

alone, are insufficient grounds for separate trials.’’ United

States v. Carson, 702 F.2d at 366-67; see United States v.

Aloi, 511 F.2d 585, 598 (2d Cir.), cert. denied, 423 U.S.

1015 (1975). We conclude that Judge Carrer did not abuse

his discretion in denying severance. See United States v.

Herrera, 584 F.2d 1137, 1143 (2d Cir. 1978).

C. Admission of Duplicate Copies of Telephone Records

as Evidence.

Defendant Tung Kuei-Sen contends that the trial court

erroneously admitted into evidence certain telephone logs

that showed two telephone calls to defendant Ah Min’s

telephone number in Bangkok, Thailand from Tung’s

hotel room in Rio de Janeiro, Brazil on August 13 and 15,

1985. Tung argues that the records were inadmissible

because they were duplicates rather than the original hotel

records, and were not sufficiently authenticated to be

deemed reliable. This claim is without merit.

** *The admissibility of secondary evidence is within the

broad discretion of the trial judge.’ ’’ Ruberto v. Commis-

4539

-20a-

sioner, 774 F.2d 61, 64 (2d Cir. 1985) (per curiam) (quot-

ing United States v. Covello, 410 F.2d 536, 543 (2d Cir.)

(citations omitted), cert. denied, 396 U.S. 879 (1969)).

Tung has failed to demonstrate that there was any abuse

of that discretion.

The government introduced the duplicate telephone logs

pursuant to the business records exception to the rule

against hearsay stated in Fed. R. Evid. 803(6). That rule

provides in pertinent part that a record, ‘‘made at or near

the time by . . . a person with knowledge, if kept in the

course of a regularly conducted business activity, and if it

was the regular practice of that business activity to make

the. . . record,’’ is admissible upon ‘‘the testimony of the

custodian or other qualified witness,’’ absent some indica-

tion of untrustworthiness. That is, ‘‘someone who is suffi-

ciently familiar with the business practice must testify that

[the] records were made as part of that practice.’’ United

States v. Rosenstein, 474 F.2d 705, 710 (2d Cir. 1973).

Moreover, ‘‘[a] duplicate is admissible to the same ex-

tent as an original unless (1) a genuine question is raised as

to the authenticity of the original or (2) in the circum-

stances it would be unfair to admit the duplicate in lieu of

the original.’’ Fed. R. Evid. 1003. Thus, Tung has the bur-

den of demonstrating ‘‘a genuine issue as to the authentic-

ity of the unintroduced original, or as to the trustworthi-

ness of the duplicate, or as to the fairness of substituting

the duplicate for the original.’’ United States v. Georgalis,

631 F.2d 1199, 1205 (Sth Cir. 1980).

Tung raises no genuine issue with respect to any of these

concerns. Instead, he simply speculates that there is no

assurance that the proffered document is actually a dupli-

cate of the original. The government called Jose Candido

Novais Courinko, the deputy manager of the Grand Hotel

4540

-2la-

OK, where Tung stayed in Rio de Janeiro, as a witness to

testify as to the records. He identified the logs as those

kept in the normal course of business at the hotel. As a

deputy manager of the hotel, he was certainly qualified as

a witness to testify about the records. While he had not

compared the specific page of the duplicate with the origi-

nal, he did recognize the names and signatures of the tele-

phone operators and the handwriting, room numbers and

printed format used on the logs.

In addition, the American Consulate in Rio de Janiero

affixed a certification under seal to the duplicate copies of

the logs which stated that the duplicates were a ‘“‘true and

faithful copy of the original . . . [that] were carefully

examined by me and compared with the original and

found to agree therewith word for word and figure for fig-

ure.’’ This would appear to dispose of any issue as to the

authenticity of the telephone logs. In any event, the defen-

dant has not met his burden by making a showing to the

contrary. The trial judge was clearly justified in admitting

the duplicate logs as evidence.

D. Trial Publicity.

Defendant Chen Chi-Yi claims that the trial judge erred

in denying his motion for a mistrial based upon (1) a ju-

ror’s having read a newspaper article about the trial during

the jury’s deliberations, and (2) the procedures followed

by the trial judge in dealing with that situation. Chen con-

tends that Judge Carter’s inquiry into the matter was too

narrow in scope, and that it was error for him not to pro-

vide defense counsel an opportunity from the outset to

participate in what turned out to be an ex parte colloquy

with the jurors involved.

4541

——e kK . eee

-22a-

On Monday, September 22, 1986, during the jury’s

deliberations, Judge Carter received a note from each of

two jurors. The first note from juror Geels stated:

An incident happened on Friday that I feel duty

bound to report. One of the jurors announced to all

of us that that he had read an article in Thursday’s

paper regarding this trial and that he wanted to tell

the jurors what the article said . . . . I have been

very perturbed about this incident and question

whether this juror can be an impartial one in this case.

After reading the note, Judge Carter called juror Geels

into his robing room and inquired about the incident. The

judge ascertained that Geels interrupted the other juror

before he could relate the subject matter of the story to the

remaining members of the jury. Immediately after speak-

ing with Ms. Geels, Judge Carter questioned juror West,

who conceded in the second note that he was the person

who read the newspaper article. West stated unequivocally

that reading the article had not affected his judgment of

the case in any way. He also confirmed Ms. Geels’ state-

ment that no one else had been told about the contents of

the article.

Shortly thereafter, Judge Carter convened all the parties

in open court and told them about the incident. He ex-

plained his actions with respect to the ex parte examina-

tions of the jurors, and asked for further suggestions from

counsel. Defense counsel objected to not being apprised of

the situation until after Judge Carter had questioned the

jurors. In response, Judge Carter offered all counsel the

opportunity to interview the jurors. Counsel declined this

offer and moved unsuccessfully for a mistrial.

The trial court has wide discretion in determining how

to pursue an inquiry into the effects of extra-record infor-

4542

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mation upon a jury. United States v. Hillard, 701 F.2d

1052, 1064 (2d Cir.), cert. denied, 461 U.S. 958 (1983).

This circuit has set forth general guidelines that a trial

judge should follow in exercising that discretion where the

problem of media trial publicity surfaces. United States

v. Gaggi, 811 F.2d 47, 51 (2d Cir.), cert. denied, 107

S.Ct. 1314 (1987); see United States v. Lord, 565 F.2d 831,

838-39 (2d Cir. 1977); United States v. Pfingst, 477 F.2d

177, 186, (2d Cir.), cert. denied, 412 U.S. 941 (1973);

United States v. Bentvena, 319 F.2d 916, 934 (2d Cir.),

cert. denied, 375 U.S. 940 (1963); United States v. Agueci,

310 F.2d 817, 831-32 (2d Cir. 1962), cert. denied, 372 U.S.

959 (1963).

The trial judge should first determine whether the cover-

age has a potential for unfair prejudice. Gaggi, 811 F.2d at

51. “‘If the broadcast or article contains no information

beyond the evidence in the case, or if the information is

clearly innocuous. . . , further inquiry may not be neces-

sary.’’ Lord, 565 F.2d at 838; United States v. Carrode-

guas, 747 F.2d 1390, 1395 (11th Cir. 1984), cert. denied,

474 U.S. 816 (1985). Next, the jury should be canvassed to

ascertain if they have learned of the potentially prejudical

publicity (an inquiry that would have been superfluous

here in view of the jury’s bringing the matter to Judge

Carter’s attention). Gaggi, 811 F.2d at 51; Lord, 565 F.2d

at 838. If it is ascertained that any juror has been exposed

to such publicity, he or she ‘‘should be examined individu-

ally, out of the presence of the other jurors, to determine

the extent of the exposure and its effect on the juror’s atti-

tude toward the trial.’’ Lord, 565 F.2d at 838-39; Gaggi,

811 F.2d at 51. Finally, the trial judge can then determine

whether any further steps are necessary to ensure a fair

trial. Lord, 565 F.2d at 839.

4543

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Judge Carter substantially followed these guidelines.

Upon learning about the incident, he called the two

affected jurors into his robing room and questioned them

individually. He asked juror West about the article and its

contents, and its effect upon his judgment. West claimed

that the article would not affect his impartiality, and

Judge Carter concluded that the article was innocuous

after reviewing it. The judge was also satisfied, after

speaking with Ms. Geels, that the other jurors had not

seen the article and were not influenced in any way by

West’s observations. Under these circumstances, we can-

not say that Judge Carter abused his discretion by allow-

ing the jurors to continue to deliberate, especially given his

face-to-face assessment of the jurors’ demeanor and credi-

bility. See Patton v. Yount, 467 U.S. 1025, 1038 n.14

(1984). Furthermore, the matter was put before defen-

dants and their counsel, and they were provided with an

opportunity to interview the jurors. In sum, Judge Carter

acted well within his discretion, and there is no reversible

error.

E. Inconsistent Verdicts.

Detendants Chang An-Lo, Tung Kuei-Sen and Jack Ma

challenge their convictions on the grounds that some of

the jury verdicts were inconsistent. Lam Tso makes an

analogous argument that the jury manifestly failed to fol-

low the court’s instructions, in view of the jury verdicts.

Specifically, Chang was convicted on count three, the con-

spiracy to distribute heroin and cocaine, and was acquitted

on the RICO charges in counts one and two. Tung was

convicted on count ten, the conspiracy to import and dis-

tribute three hundred kilograms of heroin, and was also

acquitted on the RICO charges. Ma was convicted on

counts seven and ten, relating to narcotics conspiracies,

4544

-25a-

and on count one, the RICO conspiracy count that alleged

these narcotics conspiracies as predicate acts, but was ac-

quitted on count two, the substantive RICO count which

alleged the same narcotics conspiracies as predicate acts.

There is no discernible inconsistency in the verdicts

rendered as to Lam Tso.

Chang, Tung and Ma argue that conviction on the vari-

ous conspiracy counts, which involve conduct identical to

that charged as predicate acts of racketeering in the RICO

counts, is so logically inconsistent with acquittal on the

RICO counts that reversal of the conspiracy convictions is

warranted.

In Dunn v. United States, 284 U.S. 390 (1932), the Su-

preme Court held that a defendant will not be allowed to

attack a conviction on the ground of inconsistent verdicts.

The rule has been recently reaffirmed in United States v.

Powell, 469 U.S. 57 (1984). The Supreme Court there ex-

plained that inconsistent verdicts may be the product of

compromise, mistake or lenity on the part of the jury.

Id. at 65-66 & n.7; see Dunn, 284 U.S. at 394.

‘**Inconsistent verdicts therefore present a situation where

‘error,’ in the sense that the jury has not followed the

court’s instructions, most certainly has occurred, but it is

unclear whose ox has been gored.’’ Powell, 469 U.S. at 65.

The Court noted further that the government cannot at-

tack an inconsistent acquittal, even if palpably erroneous,

because of the Constitution’s double jeopardy provision.

Id.

The Court also found that a defendant should not be

allowed to challenge inconsistent verdicts on the ground

that they resulted not from lenity, but rather from some

error that worked to the defendant’s disadvantage. /d. at

66. Such challenges would either be based upon pure spec-

4545

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ulation or would improperly intrude upon the jury’s delib-

erations. Jd. Finally, the Court noted that a defendant is

protected from jury irrationality or error by independent

review of the sufficiency of the evidence by trial and appel-

late courts. Jd. at 67.

These precedents clearly preclude the challenges pre-

sented here as to the alleged inconsistency of the verdicts

reached by the jury in this case. Even assuming that some

of the verdicts are inconsistent, which is less than certain

where the allegedly inconsistent acquittals occur on RICO

counts implicating the special and distinct requirements of

that statute, there is no basis for reversal of the assertedly

offensive guilty verdicts.

F. Sentencing Matters.

Defendant Tung Kuei-Sen contends that the district

court failed, in sentencing Tung, to comply with Fed. R.

Crim. P. 32(c)(3)(D), which provides:

If the comments of the defendant and the defendant’s

counsel or testimony or other information introduced

by them allege any factual inaccuracy in the presen-

tence investigation report or the summary of the re-

port or part thereof, the court shall, as to each matter

controverted, make (i) a finding as to the allegation,

or (ii) a determination that no such finding is neces-

sary because the matter controverted will not be taken

into account in sentencing. A written record of such

findings and determinations shall be appended to and

accompany any copy of the presentence investigation

report thereafter made available to the Bureau of

Prisons or the Parole Commission.

4546

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Tung accordingly seeks ‘‘remand [ ] for a hearing on the

allegations contained in the presentence report and for

sentencing.”’

Defendant George Qi Lu contends that he contested

allegations in his presentence report and requested a hear-

ing with respect to them which hearing the district court

improperly denied. He requests vacation of his sentence

and remand for a hearing.

Our review of the transcript of the sentencing hearing

does not indicate any explicit, on-the-record compliance

with Rule 32(c)(3)(D) with respect to these defendants in

the course of that hearing, and the government does not

contend in its brief that there has been such compliance,

which is mandatory in this circuit. United States v.

Weichert, 836 F.2d 769, 771 (2d Cir. 1988); United States

v. Bradley, 812 F.2d 774, 781-82 (2d Cir.), cert. denied,

108 S.Ct. 107 (1987); United States v. Ursillo, 786 F.2d 66,

71 (2d Cir. 1986). Out of an abundance of caution, we ac-

cordingly remand for findings or determinations as to

these defendants pursuant to Fed. R. Crim. P. 32(c)(3)(D).

If the district court elects to make findings as to any con-

troverted allegations in either of these defendants’ presen-

tence reports, it should then determine, in the exercise of

its discretion, whether a hearing is required with respect to

those matters. See United States v. Fatico, 603 F.2d 1053,

1057 n.9 (2d Cir. 1979); see also United States v. Bradley,

812 F.2d at 783 n.10.

G. Other Contentions.

We have considered defendants’ other contentions, and

find them to be without merit.

4547

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III. Conclusion

The judgments of conviction are affirmed. The case is

remanded for compliance with Fed. R. Crim. P.

32(c)(3)(D) with respect to defendants Tung Kuei-Sen and

George Qi Lu.

4548

710—6-29-88 * USCA—80004

-29a-

SUPREME COURT OF THE UNITED STATES

No. A-158

Chang An-Lo, aka White Wolf and

Chen Chih-Yi, aka Yellow 3ird,

Petitioners,

Vv.

United States

ORDER

UPON CONSIDERATION of the

application of counsel for the

petitioners,

IT IS ORDERED that the time for

filing a petition for a writ of

certiorari in the above-entitled case,

be and the same is hereby, extended to

and including September 25, 1988.

/s/ Thurgood Marshall

Associate Justice of the

Supreme Court of the

United States

Dated this 23rd day

of August, 1988