Petition for Writ of Certiorari — Eng v. United States

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In The OFFICE OF THe Ciena

Supreme Court

of the Gnited States

No. 93 -

October Term, 1993

a oe

JOHNNY ENG,

Petitioner,

-against-

UNITED STATES: OF AMERICA,

Respondent.

On Petition For a Writ of Certiorari to The United

States Court of Appeals For The Second Circuit

PETITION FOR WRIT OF CERTIORARI

JoHN L. POLLoK

Attorney for the Petitioner

Johnny Eng

260 Madison Avenue

New York, New York 10016

(212) 679-2900

—s-

St. Louis & Westervelt, Inc.

NY (212) 684-3117 NJ (201) 863-8133

Printed on Recycled Paper (4282)

QUESTIONS PRESENTED For REVIEW

1. Should This Court Review a Significant

Expansion of The Concept of Waiver Which Requires

Renewal of an Offer of Evidence "Conditionally Excluded"

Particularly When The Record Does Not Support The

Underlying Proposition That The Exclusion Was in Fact

Conditional?

2. Did The Court of Appeals’ Circumvention of The

Plain Language And Mandate of U.S.S.G. §$§3D1.1, et seq.,

Conflict With Decisions of This Court Governing Statutory

Construction?

3. Should This Court Resolve a Direct Conflict

Among The Circuit Courts of Appeals Regarding Whether

Title 18 U.S.C. §3583(b) Limits Supervised Release For

Class A or B Felonies to Terms of Five Years Unless The

Sentencing Statute Specifically Requires a Term in Excess

of Five Years?

4. Did The Court of Appeals’ Decision That Title

18 U.S.C. §3583(b) Does Not Establish a Maximum

Supervised Release Term of Five Years For Violations of

21 U.S.C. §841(b)(1)(A), Transgress The Rule of Lenity?

TABLE OF CONTENTS

Questions Presented For Review ...................cccsscesse

Table of Contents

Appendix Contents Ssiniinneiipiiaicneiniiiiilitaiiaiiaia

ee OD ® cassis snceccstndichcncnnttnasinebscictibiissuiiateis

CD FR crececcersccsovsseranpemnoonessccsevceconinenteesnestenstioneanee

Jurisdiction potion dana

Statutory Provisions Involved. ..................:sssessssseseees

Statement

A. Introduction... i Pas ea MT ee Se ae

B. The Government’s Theory And Proof in

The Present Case ........-.0000.0.

C. The Government’s Theory in United

States v. Yu siaiicchehjabiasiipeiasanniiaeeanmamaionpiasatiions

D. The District Court’s Decision. ................0..

Ae STR CeO cee Hee te

Reasons For Granting The Writ

I, The Second Circuit’s Decision Requiring

Renewal of an Offer of Evidence "Condi-

tionally Excluded," Marks a Significant

Expansion of The Concept of Waiver And

Was Based Upon a Factual Record Which

Simply Does Not Support The Underlying

Proposition That The Exclusion Was

Conditional

II. The Decision of The Court of Appeals

Circumventing The Plain Language of The

Sentencing Guidelines And Commentary

Conflicts With Decisions of This Court

Governing Statutory Construction ................

III. The Second Circuit’s Determination That

18 U.S.C. §3583(b) Does Not Establish a

Maximum Supervised Release Term of Five

Years For Class A or B Felonies, Violates

The Rule of Lenity

Conclusion... ii ecbicuiini

Page

ArPpENDIX CONTENTS

APPENDIX A

The Opinion of The United States Court of

Appeals For The Second Circuit, Decided January

CG, ROPE CE Bgttl WU Prctinsercscsecanieatncnptncccengenpnivansineans la

APPENDIX B

Decision of The United Stated District Court

For The Eastern District of New York, Read

Into The Record on November 24, 1997............. 19a

teeta aati aietian

Page

Cases Crrep:

Andrews v. Metro North,

SS FAG FOS (26 CW. 19GD) vsceiccssasssscsitsssssssrrnsesii 18

Blue Chip Stamps v. Manor Drug Stores,

er a | 7, SR inetd 22

Bourjaily v. United States,

RP SM ee INE Piitintuncinintctesdicsitctsticinincenasiiineindt 26

Crandon v. United States,

BF SS |__| ao Tae a y+ ye

Diamond v. Chakrabarty,

| 8 __, SPE RIE ee eed nee annie 22, 26

Garcia v. United States,

I a IT ic sieseticcceiiirnnnsceshdotbichanonns 26

Landreth Timber Co. v. Landreth,

a I I alien trccnsensestntnissaciensitioesaimuiniieds 22

Mistretta v. United States,

A ke, SE a NR 27

North Dakota v. United States,

A I 26

Rodriguez v. United States,

ee 26

Page

Cases CITED: (continued)

Schiavone v. Fortune,

S77 OB. BE CER sinicirsciressineeemnenimennnen 26

Stinson v. United States,

US. NES BOR IFES CUFT) cretetrocsescssecicien 27

United States v. Dougherty,

895 F.2d 399 (7th Cir.), cert. denied, 497 US.

1008. (1990) ..icccsoccecosnssssornencocesssteotanneoneasadscdsoneneesesseites 17, 19, 20

United States v. GAF Corp.,

G28 F.2d 1253 (BO Cie. BRB E) ccecescessceserecesecseseeseoes 17, 18

United States v. Garcia,

SES F2G GES (See Cap. GIG reicerssesecnsssctescenesicnre 28

United States v. Kattar,

SAO F.2d 116 (1st Cir, 19GB) ccccccscsvsicescresececcvsccvses 17

United States v. Kelly,

F7I4 F.2d ZS (Se Cae. TOT) aecccetarcceeescvissconcavecvceees 28

United States v. LeMay,

G52 F226. DOS CBU Cas. SGPT prccicscccicccsewensescsccsesiee 28

United States v. Margiotta,

662 F.2d 131 (2d Cir. 1981), cert. denied, 461

U.S, DIS (IDES) snicciccsnrcscncniigesiitiilienteietnitiinitetiintiiitie 18

United States v. McKeon,

FIR F268 BB (36 Cos.. 19G4) .cccrceisnttiiocsinnsttiintincninn 18

United States v. Morgan,

581 F.2d 933 (D.C. Cir. 1978) 17

ities |

vii

Page

Cases CITED: (continued)

United States v. Plaza Health Laboratories, Inc.,

ee fF BR | BRE eae ees 22

United States v. Ramirez,

ee ae BO Ce Ges SFI eccccccnccrecsserssscsscnencesee 18, 19

United States v. Yu, etal,

No. 88-CR 138(S) (E.D.N.Y. August 31, 1988).... 4, Passim

United States v. Williams,

ae ers She GR. BEEZ (IGF Ecce 27

Statutes Citep:

Title 18 U.S.C.,

eee Oe aaa 28

SSS Saree Ae a 2, Passim

SERGE SARE TNC Ca ae 16

Title 21 U.S.C.,

EE SN 15

a ciiemiiniaie 15, 28, 29

SES 28, 29

FREER LEC a 28, 29

SERRE 15

SS ee 15

APSE A ee 15

vila

Page

Orner AuTHorities Cirep:

Federal Rules of Evidence:

I I iiss cirineenscincatmeniatictanpinenieinine 16

ae cere 17

I viv, ccistiisitpiclieninsineciicienddistnibensiall 17, 19

isin ccicectnipitbcienicciescienipadanidnaa 17,18

Sentencing Guidelines:

a i 23, 25

ERS eRe ae nOeenn, Oe See ean rare 23, 25, 26

i 2, Passim

ESO One RM RNB! LE 2, Passim

IITs schicitciicienietetainapisiensinibasiiuimaciiiieidecniane 4, 23, 24

Ee ere ne re | 3, 22, 23

STITT iesiiaissiniesesisbonnesicavibietneanipskeesdaassibieisiaiabae 3, Passim

AS ARREARS A ne Ege ROMEO MRS FT > 3, 22

McCormick, Evidence, § 58 (1954) ..........cccccecesesessees 20

In The

Supreme Court

of the Gniled States

October Term, 1993

—@—

JOHNNY ENG,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Johnny Eng petitions for a writ of certiorari to

review the judgment of the United States Court of Appeals

for the Second Circuit in this case.

OPINION BELOW

The Opinion of the Court of Appeals (Appendix A,

infra) is reported at 14 F.3d 165. The decision of the

district court (Appendix B, infra) is unreported.

J UBISDICTION

The judgment of the Court of Appeals was entered

on January 14, 1994. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

Title 18, United States Code, § 3583(b) provides:

(b) Authorized terms of supervised release.

Except as otherwise provided, the authorized

terms of supervised release are --

(1) for a Class A or Class B felony,

not more than five years;

(2) for a Class C or Class D felony, not

more than three years; and

(3) for a Class E felony, or for a

misdemeanor (other than a petty offense),

not more than one year.

The 1987 United States Sentencing Guidelines, §3D1.1

provides:

§3D1.1 Procedures for Determining Offense

Level on Multiple Counts

When a defendant has been convicted of

more than one count, the court shall:

(a) Group the counts resulting in conviction

into distinct Groups of Closely-Related

Counts ("Groups") by applying the rules

specified in §3D1.2.

‘

(b) Determine the offense level applicable

to each Group by applying the rules

specified in §3D1.3.

applicable to all Groups taken together by

applying the rules specified in §3D1.4.

The 1987 United States Sentencing Guidelines, §3D1.2,

as pertinent, provides:

§3D1.2 Groups of Closely-Related Counts

All counts involving substantially the

same harm shall be grouped together

into a single Group. * * * Counts involve

substantially the same harm within the

meaning of this rule:

***

(d) When counts involve the same general

type of offense and the guidelines for

that type of offense determine the

offense level primarily on the basis of

the total amount of harm or loss, the

quantity of a substance involved, or some

other measure of aggregate harm. Offenses

of this kind are found in Chapter Two

*** Part D (except $§2D1.6-2D3.4). * * *

The 1987 United States Sentencing Guidelines,

§3D1.3(b), as pertinent, provides:

§3D13(b) Offense Level Applicable to Each

Group of Closely-Related Counts

Determine the offense level applicable to

each of the Groups as follows:

(b) In the case of counts grouped

together pursuant to §3D1.2(d), the

offense level applicable to a Group is

the offense level corresponding to the

aggregated quantity, determined in

accordance with Chapter Two and Parts

A, B and C of Chapter Three. When

the counts involve varying offenses, apply

the offense guidelines that produces the

highest offense level.

STATEMENT

A. Introduction

The Petitioner was charged with importing heroin

from Hong Kong for distribution in the United States from

1987 to 1988 by utilizing couriers, parcels delivered by mail,

and a bean sprout washing machine in which there was

secreted 78 kilograms of heroin.

Petitioner was acquitted of all charges related to the

bean sprout machine importation scheme. He was convicted

of a continuing criminal enterprise, conspiracy and twelve

counts of either importation, distribution or possession of

heroin with intent to distribute. All of the substantive

charges related solely to the mail parcel delivery scheme.

In the present case, the government's theory was

that Eng arranged for certain individuals to receive packages

of heroin mailed from Hong Kong and either personally

took possession of the heroin or arranged for its delivery to

others.

In a prior case, however, the government embraced

a much different theory of prosecution. In United States v.

Michael Yu, et al, No. 88-CR 138(S) (E.D.N.Y. August 31,

1988), the government claimed that all of the heroin

imported through the mails was delivered to or controlled

by the defendants then on trial which did not include Eng.

Consequently, the Petitioner Eng’s name was _ never

mentioned. And, in the case agent’s grand jury testimony,

the bill of particulars and the prosecutor's summation, the

government repeatedly and consistently proffered that the

heroin was delivered to the defendants then charged and to

no one else.

In the present case, Petitioner attempted to place

this reversal of field before the jury by cross-examining the

case agent based upon his grand jury testimony in the Yu

case and by offering to introduce into evidence the bill of

Particulars and portions of the government's summation

from Yu. The trial court ruled that Eng could do none of

these but that he could call a witness, Tina Wong, who had

testified in Yu that she delivered the mail parcels in

question to individuals other than Petitioner Eng.

On appeal, the court of appeals held that the issue

had been waived because Eng failed to renew his motion

after it became clear that neither the government nor Eng

would call Tina Wong as a witness.

This novel waiver approach marks a significant

departure from well-established evidence jurisprudence and

will have a significant impact on the fair administration of

justice in the federal courts. It therefore, warrants review

by this Court.

Two Sentencing Guidelines’ issues also warrant

consideration by this Court. The first involves interpretation

of the grouping provision of §3D1.1. ef seq. Contrary to the

express provisions of those sections, the court of appeals

sanctioned the bifurcation of a single group of offenses in

order to circumvent a limitation imposed upon one offense

within the group. The court correctly held that all of the

counts of conviction should be grouped in a single Group

pursuant to Guidelines §3D1.1 as they all involved the same

basic conduct, importation and distribution of heroin and

the related offenses of conspiracy and continuing criminal

enterprise. Inexplicably, the court of appeals then stated

that the CCE count could be split off from the remaining

counts, thus creating two groups, one comprised solely of

the CCE count and the other comprised of the conspiracy

and all substantive importation or distribution counts. The

1987 Guidelines specifically prohibited an upward adjustment

for role in the offense for CCE offenses but permitted an

adjustment for substantive narcotics offenses.

The court of appeals held that removing the CCE

count from the remaining counts with which it had properly

been grouped, permitted the trial court to adjust for role in

the offense with respect to the substantive counts. This

procedure, however, is contrary to the explicit provisions of

the statute. This holding renders the express statutory

provision a nullity, violates the separation of powers

doctrine, and invites chaos in the imposition of sentences in

multi-count cases.

The second sentencing issue is whether the

imposition of a lifetime term of supervised release violates

18 U.S.C. §3583(b), which sets a maximum supervised

release term of five years for Class A or B felonies, "except

as otherwise provided.”

B. The Government’s Theory And Proof in The Present Case.

The government’s theory in the present case was

that the Petitioner Eng controlled the mail parcel

importation scheme chiefly through the activities of its

prime witnesses Wah Tom Lee and Michael Yu.!

The evidence concerning this scheme, as summarized

by the Court of Appeals, is as follows:

Sometime in mid-1987, Eng asked Wah

Tom Lee and Michael Yu to recruit

individuals to receive drugs sent in parcels

from Hong Kong. Yu and Lee procured

the names of three _ individuals, Tina

Wong, Cathy Leung, and a woman known

as Helen (or "Ah Ling"), who were willing

to receive the packages in return for

$20,000 a piece. After Wong received the

first parcel, Eng instructed Yu and Lee to

go to Wong’s apartment to inspect it.

They found that the parcel contained

stuffed animals, peppers, and numerous tea

boxes. The tea boxes contained seven

kilograms of heroin. Several days later,

Eng instructed Lee to deliver the heroin

to him near a bakery in New York City’s

Chinatown. At Lee’s instruction, Wong

brought the heroin to a meeting place

near the bakery, met Wong and Eng

there, and then transferred the package to

Eng. Eng paid Lee and Yu $50,000, of

which $20,000 was given to Wong.

1 their stories, which formed the linchpin of the government's

case against Petitioner, were rife with self-contradiction and of

dubious credibility. See comments by Judge Raggi at TR. 830-

31 and 1075-76.

A week later, Eng called Lee to inform

her that a second parcel would arrive

soon. Lee, in turn, called Tina Wong,

who notified Cathy Leung. After receiving

the package, Leung took it to Wong's

apartment. Wong examined its contents

and informed Lee how much heroin it

contained. Lee called Eng to confirm the

delivery. Eng instructed her to leave the

heroin in Wong’s apartment. Later at a

party at his house, Eng asked Lee to

deliver the parcel to someone named

"Lap." Lee arranged for Wong to deliver

the heroin to Lap the following day. Eng

again gave Lee and Yu $50,000 for the

delivery, and Lee in turn gave $20,000 to

Leung and $10,000 to Wong.

Following the second delivery, Lee and Yu

accompanied Eng to Hong Kong at Eng’s

expense. Eng introduced Lee and Yu to

"Ming," the person who was sending the

heroin parcels and told Ming to contact

Yu and Lee if he was not available. Lee

provided Eng with a list of four more

people willing to receive packages.

Shortly after the group returned from

Hong Kong, four more packages were

delivered, each containing seven kilograms

of heroin. The third parcel was delivered

to Cathy Leung’s residence. With Eng’s

permission, Lee sold a portion of the

heroin to Ching-Yi Chen. Sometime

around the delivery of the third parcel,

Lee and Yu, with Eng’s permission, began

selling the heroin themselves. Also, at

about this time, Lee and Yu _ again

traveled to Hong Kong, at Eng’s direction,

this time accompanied by Tina Wong and

two other women. The five of them

concealed more than half-a-million dollars

on their persons for delivery to Ming.

The fourth parcel was delivered to

"Helen," and then transferred to Wong's

residence. Lee again sold part of the

heroin in this parcel to Ching-Yi-Chen.

The fifth parcel arrived at Agnes Chin’s

residence, and was stored in Wong's

house. Once again, Lee sold part of the

heroin in the parcel to Chen. The sixth

parcel was delivered in December 1987 or

January 1988 to "Helen," who transferred

it to Lee. The seventh parcel arrived at

Gwendolyn Chan’s residence and was later

delivered by Lee to a man named Dai

Gow.

4 The eighth shipment arrived in January or

4 February of 1988 at Agnes Chin's

: residence. The package was transferred to

; Lee, who delivered it to Eng by placing it

; in his jeep.

On February 9 and 10, 1988, three more

boxes from Hong Kong containing heroin

and addressed to residences in the New

York metropolitan area arrived at customs

in California. One of these packages was

marked for delivery to a "M. Hsieh" at

Gwendolyn Chan's address. The Drug

Enforcement Administration then

conducted a "controlled delivery," which

resulted in Chan’s arrest when she

‘ accepted delivery of the parcel. Chan

agreed to cooperate, and the conspiracy

began to unravel. Chan's cooperation led

to the arrest of Leung, who also agreed

to cooperate. Leung’s cooperation led to

the arrest of Lee, Yu, and Tina Wong in

early March, 1988.

» NL sees *, er on AT: are F p

Mee RIN Bs Seb ah ped’ On A pha, oe ee a Ft cl Wek Tn ge Oe ee

(App. A at 3a - 6a).

C. The Government’s Theory in United States v. Yu.

In August, 1988, six defendants, including Wah Tom

Lee and Michael Yu, were tried for conspiracy to distribute

and to possess with intent to distribute narcotics along with

a number of substantive charges of importing and

distributing heroin concealed in eight mail parcels shipped

to the United Stated from Hong Kong from in or about

mid-June, 1987, through the end of February, 1988. The

basis for these charges were precisely the same as those in

Counts 3 through 18 of the indictment against the

Petitioner. Indeed, the Petitioner Eng is charged with

importing and distributing the very same eight mail parcels

which were involved in the Yu case (A 75).2

During the prosecution of Yu and Lee, three

accomplice witnesses, including Tina Wong, Cathy Leung,

and Gwendolyn Chan, testified for the government. Though

Leung also testified in this case, the government did not

call Tina Wong whose testimony in the Yu trial was wholly

contrary to the government’s theory in the instant

prosecution. In Yu, Tina Wong testified that she was

recruited by Lee to accept mail parcels and that the first

mail parcel, with which she was involved, was mailed

directly to her home in Chinatown. Wong also admitted

that she accepted delivery of the second, third and fourth

mail parcels from Cathy Leung and a Chinese woman named

Helen, which she stored at her apartment. Significantly,

Wong testified that at the instructions of Lee, she delivered

the heroin contained in these four separate mail parcels to

2 =A" refers to the Joint Appendix.

a woman named Ching-Yi Chen, a defendant in the Yu

case. (Id).

In this case, Lee testified in a wholly contrary

manner. She maintained that the heroin mailed to the

United States was delivered not to Chen but to the

defendant at a restaurant on Lafayette Street or to an

individual named “Lap” at the defendant’s direction (TR.

610-613, 615-617). Based upon all of the testimony given at

the Yu trial, including the testimony of Tina Wong, the

prosecutrix, in summation in that case, stated to the jury

that:

ee ee ae, |

[Tina Wong] kept the [first] box in her

house for approximately three days when

Wah Tom Lee called and told her to take

out one or two of the tea boxes and to

deliver them to a girl named Ching-Yi at

50 Bayard Street. Wah Tom Lee gave

Tina Wong these telephone instructions

several times until all the tea boxes from

within the box from Hong Kong were

delivered to Ching-Yi Chen’s house.

(A. 107).

teal S Fie Sy APR Rad cing ae DRS Ka

Nt ete Pa eS

Regarding the delivery of the second box, the

prosecutrix argued:

Now, Tina Wong opened this second box

that was delivered to her house by Cathy

Leung. They found inside stuffed animals,

herbs, dried peppers and tea boxes just as

in the other box. At Wah Tom Lee’s

instructions, Tina Wong delivered one or

two of the tea boxes at a time to Ching-

Yi Chen’s apartment at 50 Bayard Street,

Apt. 7A.

Si SABES: Me My Ri LAGNA BE Hi

; (A 113).

In addition, the government relied on Ms. Wong to

support an entirely different theory concerning these

deliveries then was alleged in Petitioner’s case. For

example, the prosecutrix described the "ring leaders” of this

heroin conspiracy as Michael Yu and Wah Tom Lee. In

her rebuttal summation, the prosecutrix argued "in a classic

tactic to divert your attention from the defendants sitting at

this table, what the defense counsel have tried to do is to

say there were other people involved in the heroin

conspiracy and who could those other people be? (A 151).

The government’s argument went on to establish that there

were no other possible conspirators (A. 160).

Finally, Ms. Wong’s credibility was strongly affirmed

by the government. In the Yu case, the government repeatedly

argued in support of Tina Wong’s credibility, emphasizing

the witness’ plea agreement as a guarantor of reliability.

Now the motive for Tina Wong,

Gwendolyn Chan and Cathy Leung to do

that is their cooperation agreements with

the government. Each one of these

witnesses in their cooperation agreements

with the government were allowed to

plead guilty to a reduced charge that

carries a penalty of zero to 20 years in

prison. In return they had to testify

truthfully, and they told you that.

The plea agreements between the

government, Tina Wong, Cathy Leung and

Gwendolyn Chan are all in evidence and I

encourage you to read these agreements,

and you can read them carefully and you

can see what the agreement is between

the government and these three witnesses.

(A. 98).

This was not simply a matter of commenting on the

credibility of a witness. Rather, the government argued that

Ms. Wong’s truthful testimony supported the very charges

brought against the defendants then on trial.

In addition the government in the Yu case submitted

a bill of particulars indicating that the heroin obtained from

the first two mail parcels was delivered to Ching-Yi Chen

and not as claimed here to Petitioner Eng (A 84-85).

Finally, Petitioner sought to cross examine Special

Agent Mitesser in connection with his grand jury testimony

in the Yu case regarding the disposition of the heroin

contained in the first several mail parcels. That grand jury

testimony was as follows: On March 14, 1988, agent

Mitesser testified in the grand jury in summary fashion that

Cathy Leung and Tina Wong had told him that Tina Wong

"delivered to an individual by the name of Ching-Yi Chen

all four boxes of heroin that she had received in the mail.”

(A. 193). On April 4, 1988, Agent Mitesser further testified

that “approximately in June or July of 1987, Tina Wong

received a box at her residence that she signed for.

Eventually that box was delivered to Ching-Yi Chen... The

second box was July or August, 1987. This box was

received by Kathy [sic] Leung at her residence and

eventually the box was delivered to Tina Wong and Tina

Wong eventually delivered the contents of that box to

Ching-Yi Chen.” (A. 210-11).

D. The District Court’s Decision.

After written submissions and extensive argument,

the district court denied Eng’s motion to examine the case

agent based upon his grand jury testimony and to accept

into evidence the bill of particulars and portions of the

prosecutrix’ summation in the Yu case (App. B). While the

trial court did think it significant that Eng was prepared to

call Tina Wong as a witness if the government did not (/d.

at 22a), she did not make a provisional determination.

Rather, Judge Raggi held that the Petitioner was absolutely

precluded from offering this evidence but could explore

inconsistencies in the witnesses’ versions of events by

examining those witnesses, including Tina Wong:

I do not want the focus to turn on

who the government believed, when and

why they believed that person. Just as I

would never allow the government to

vouch for a witness, whether that witness

had appeared for the first time or six

times previously and believed all the other

times, so I will not allow the defense to

put in what I see as really extraneous

factors with considerable risks for

prejudice, when in essence it can make it’s

argument __ effectively _by __ calling _ the

witnesses themselves and having them

testify about the prior occasion on which

they have testified.

(App.B at 26a-27a) (emphasis added).

The trial court did not make its ruling contingent

upon the defense calling Tina Wong, but rather, held that

the defense could call Tina Wong and that it would not

permit the introduction of "extraneous factors."

Indeed, the trial court and the parties clearly

believed that this decision was final and _ sufficiently

preserved the issue for appellate review. Thus, the court

stated at the conclusion of its decision:

a oe ee

sees SS.

re ee ee Py BaP ee

I'm sure that is not the clearest

[Jenunciation of my ruling because of the

time. I think you have the general idea

wi eal aan

reviewed.

(Id. at 28a) (emphasis added).

E. The Sentence

Eng was convicted of the continuing criminal

enterprise count, 21 U.S.C. §848(a), one count of conspiracy

to distribute and possess with intent to distribute heroin, 21

U.S.C $846, 841(b), and twelve counts of either importation,

21 U.S.C. $952(a), or distribution and possession with intent

to distribute heroin, 21 U.S.C. §841(a)(1). He was

sentenced under the 1987 version of the Sentencing

Guidelines, on the CCE count to 151 months imprisonment

and 3 years supervised release. On the conspiracy and each

of the substantive drug offenses, he was sentenced to 292

months imprisonment followed by a life term of supervised

release, all of the sentences to run concurrently (App. A at

7a).

REASONS For GRANTING THE PETITION

This case presents several important questions of

federal law. First, whether a decision that a litigant is

precluded from introducing relevant evidence because there

is available an alternative means of presenting some aspects

of that proof, constitutes a conditional ruling which is

waived if the offer is not renewed at the close of the case.

Second, whether Sentencing Guidelines §3D1.1, et seq.,

require that like counts be grouped into a single Group or

whether it permits counts properly grouped to be

subsequently severed if the result of grouping is deemed

unsatisfactory by the court; And, third, whether a life term

of supervised release violates 18 U.S.C. $3583(b)(1), which

sets a maximum supervised release term of five years for

Class A or B felonies, "[e]xcept as otherwise provided.”

In addition to the intrinsic importance of these

issues, they require the attention of this court to resolve a

conflict of decisions among the circuits in addressing the

third issue.

Finally, this court’s intervention is required to

remedy the court of appeals’ resolution of the second issue,

regarding interpretation of Guidelines §3D1.1, in a manner

that conflicts with decisions of this court governing statutory

construction.

I. The Second Circuit’s Decision Requiring Renewal of an

Offer of Evidence “Conditionally Excluded,” Marks a

Significant Expansion of The Concept of Waiver And

Was Based Upon a Factual Record Which Simply Does

Not Support The Underlying Proposition That The

Exclusion Was Conditional.

The Second Circuit expanded the concept of waiver

by holding that motions to admit relevant evidence

conditionally excluded must be renewed if the condition is

not met or the issue is waived. The court reasoned by

analogy to a Seventh Circuit decision which held that when

evidence is admitted conditional (see Rule 104(b),

F.R.Evid.), the party seeking to exclude the evidence must

renew the objection if the condition is not satisfied. United

States v. Dougherty, 895 F.2d 399, 403-04 (7th Cir.), cert.

RE ROT ee ae

denied, 497 U.S. 1008 (1990), (App. A at 9a-10a). This

significant expansion of evidence jurisprudence should not

rest upon a factual foundation which simply does not

support the underlying predicate, ie., that the district court's

ruling was conditional.

Based upon written submissions and extensive oral

argument (A. 217-59), the Petitioner sought to introduce

portions of the prosecutrix’ summation, the bill of

particulars and the case agent’s grand jury testimony in

United States v. Yu, which concededly are in conflict with

the government’s theory in the petitioner’s case.

The prosecutrix’ summation was offered pursuant to

Federal Rules of Evidence 801(d)(2)(B), as a statement of

a party opponent of which the party has manifested an

adoption of belief in its truth; and second, the summation is

admissible pursuant to 801(d)(2)(D), as a statement by a

party's agent concerning a matter within the scope of the

agency.

It is now well established that the government is a

"party opponent" for purposes of rule 801(d)(2) in a

criminal case. United States v. GAF Corp., 928 F.2d 1253,

1259-1260 (2d Cir. 1991), United States v. Kattar, 840 F.2d

118, 130 (ist Cir. 1988) and United States v. Morgan, 581

F.2d 933, 937n.10 (D.C. Cir. 1978). Consequently, the

statements of a Justice Department attorney acting within

the scope of his employment, which manifest an adoption or

belief in the truth of a statement makes those statements

admissible against the government as a party-litigant.

The United States Attorney's statements during closing

argument are also admissible pursuant to Rule 801(d)(2)(D),

because such "statements made by an attorney, including

arguments to a jury concerning a matter within his

employment, may be admissible against the party retaining

the attorney." United States v. McKeon, 738 F.2d 26, 30 (2d

Cir. 1984); United States v. Margiotta, 662 F.2d 131, 142

(2d Cir. 1981) cert. denied, 461 U.S. 913 (1983).

The bill of particulars from the Yu case was also

submitted.

Paragraphs one and two of the Yu bill of particulars

stated that the heroin from the first two mail parcels were

delivered to Ching-Yi Chen. This, of course, was wholly

inconsistent with the prosecution’s theory against the

Petitioner and should have been admitted as an inconsistent

prior pleading by a party. United States v. GAF Corp., 928

F.2d 1253, 1259-1262 (2d Cir. 1991). Citing McKeon, the

GAF Court noted that "the law is quite clear that

superseded pleadings in civil cases may constitute admissions

of party opponents admissible in the case in which they

were originally filed, as well as any subsequent litigation

involving the party.” Jd. at 1259. As the GAF-McKeon

Courts made clear, the rationale for the rule is to prevent

a party (here the government) from advancing one version

of the facts in a pleading, change versions and amend

pleadings "safe in the belief that the trier of fact will never

learn of the change in stories." Id. See also Andrews v.

Metro North, 882 F.2d 705 (2d Cir. 1989) and United States

v. Ramirez, 894 F.2d 565, 570 (2d Cir. 1990) (hearsay

Statements of government agent in sworn search warrant

application may constitute admissions of a party opponent

and may be used against the government).

Finally, the Petitioner sought to cross-examine Agent

Mitesser in connection with portions of his grand jury

testimony relating to the receipt of the mail parcels. (A.

222-38).

Second Circuit precedent suggests that such cross-

examination was proper. Thus in United States v. Ramirez,

894 F.2d 565, 570 (2d Cir. 1990), the court stated:

When the government advances a statement

of its agent in a judicial proceeding to

obtain a search warrant, the government

has adopted the content of the statement,

and a criminal defendant may introduce the

Statement as a party admission under Fed.

R. Evid. 801(d)(2)(B).” (citations omitted)

The court of appeals, however, never reached this

issue. It determined that the proffered evidence had been

"in effect, conditionally excluded," (App. A at 10a). By

analogy to a Seventh Circuit decision that if evidence is

admitted conditionally, the party seeking its exclusion must

renew the objection if the condition is not met, United

States v. Dougherty, 895 F.2d 399, 403-04 (7th Cir.), cert.

denied, 497 U.S. 1008 (1990), the court of appeals held the

Petitioner had waived any objection to the exclusion of this

evidence by failing to renew his offer at the conclusion of

the case (App. A at 9a - 10a).

When evidence is conditionally admitted, all parties

clearly understand that the condition must be satisfied or,

upon motion, it will be excluded. This is patent when

evidence is admitted subject to connection, or subject to a

proper foundation later being established or, as in Dougherty,

subject to a certified copy being substituted for an

uncertified copy. All concerned and particularly the

objecting party, are on notice that unless the condition is

fulfilled, the evidence is subject to exclusion provided the

party seeking exclusion renews the objection and moved to

strike the evidence at the appropriate time. McCormick,

Evidence, §58 (1954).

A conditional exclusion is a horse of a much

different stripe. Unless the court states that the evidence is

excluded subject to a specific condition, how are the parties

to know that the offer will be re-considered upon failure of

that condition?

In the present case, the trial court never said that it

was excluding the evidence conditionally. It never said that

the proffered evidence could be admitted if Tina Wong was

not called as a witness, or even that it would reconsider its

ruling if she was not called. Furthermore, a conditional

ruling was clearly unnecessary. The issue could have been

and was finally determined based wpon the availability of

Wong as a witness and not whether any party actually called her

to the witness stand.

This was the clear import of the district court’s

decision. Indeed, at the conclusion of her decision, Judge

Raggi stated:

I think you have the general idea and will

have it preserved if it has to be reviewed.

(App. B at 28a).

When a trial court explicitly states that its

determination has preserved an issue for review, it is

singularly inappropriate for an appellate court to “read” into

that decision an implied condition. The more so when that

implication involved a condition of exclusion, which is rarely

encountered in the law.

Le EOE Ne a Ee eR RAY Se Sia 8 ly SBF SPS

An expansion of the waiver concept to preclude an

issue of conditional exclusion of evidence unless the party

proponent has renewed the application for its admission,

should not rest upon so broken a reed. This Court should

consider this issue in order to insure that an expansion of a

federal rule of evidence is not based upon an inadequate

factual predicate. This particular issue should be remanded

for a determination of the underlying issues. An expansion,

if any, of the waiver concept to include failure to renew a

motion to admit conditionally excluded evidence, should

await an appropriate vehicle, which perforce excludes the

present litigation.

Il. The Decision of The Court of Appeals Circumventing

The Plain Language of The Sentencing Guidelines And

Commentary Conflicts With Decisions of This Court

Governing Statutory Construction.

The express language of the Sentencing Guidelines

and Commentary require that all counts of conviction be

grouped together to determine the offense level. Because

in this case that singular Group included Petitioner's CCE

conviction, the Guidelines applicable thereto specifically

preclude an adjustment for his role in the offense.

Dissatisfied with this result, the court of appeals in

derogation of long-standing precedents of this court

governing statutory construction, disregarded the explicit

statutorily mandated procedure. Thus, the court split the

single Group mandated by the Guidelines into two

subgroups: one comprised of only the CCE count and the

other comprised of the remaining offenses; subjected the

subgroup sans the CCE count, to a four-point adjustment

for role in the offense; and only then recombined the groups.

As this court has repeatedly observed, the starting

point of statutory construction is the statute itself, Landreth

Tunber Co. v. Landreth, 471 U.S. 681, 685 (1985); Diamond

v. Chakrabarty, 447 U.S. 303, 308 (1980); Blue Chip Stamps

v. Manor Drug Stores, 421 U.S. 723, 756 (1975) (Powell, J.,

concurring). And, when the statute is penal in nature, any

ambiguities must be resolved in the defendant’s favor.

United States v. Plaza Health Laboratories, Inc., 3 F.3d 643,

649 (2d Cir. 1993), citing inter alia, Crandon v. United

States, 494 U.S. 152, 168 (1990).

The procedure for determining offense levels when a

defendant has been convicted of multiple counts is governed

by U.S.S.G. §3D1.1, which provides:

§3D1.1 Procedure for Determining Offense

Level on Multiple Counts

When a defendant has been convicted of

more than one count, the court shall:

(a) Group the counts resulting in conviction

into distinct Groups of Closely-Related

Counts ("Groups") by applying the rules

specified in §3D1.2.

(b) Determine the offense level applicable

to each Group by applying the rules

specified in §3D1.3.

applicable to all Groups taken together by

applying the rules specified in §3D1.4.

In this case, all concerned agreed that all fourteen

counts of which Petitioner was convicted, should be part of

a single Group pursuant to U.SS.G. §3D1.2(d). That

section provides, in pertinent part: ;

§3D1.2 Groups of Closely-Related Counts

All counts involving substantially the same

harm shall be grouped together into a

single Group. * * * Counts involve

substantially the same harm within the

meaning of this rule:

** *

(d) When counts involve the same general

type of offense and the guidelines for that

type of offense determine the offense level

primarily on the basis of the total amount

of harm or loss, the quantity of a

substance involve, or some other measure

of aggregate harm. Offenses of this kind

are found in Chapter Two *** Part D

(except §$§2D1.6-2D3.4). * * *

The next procedural step was to "[djetermine the

offense level applicable to each group by applying the rules

specified in §3D1.3." [U.S.S.G. §3D1.1(b) (emphasis added)].

As all of Petitioner's counts are found in Chapter

Two, Part D §§2D1.1-2D1.5, they were correctly grouped

together into a "single Group" and when the counts of

conviction comprise a single Group pursuant to U.S.S.G.

§3D1.2(d), the applicable offense level is controlled by

U.S.S.G. $3D1.3(b):

§3D13(b) Offense Level Applicable to Each

Group of Closely-Related Counts

Determine the offense level applicable to

each of the Groups as follows:

(b) In the case of counts grouped together

pursuant to §3D1.2(d), the offense level

applicable to a Group is the offense level

corresponding to the aggregated quantity,

determined in accordance with Chapter Two

and Parts A, B and C of Chapter Three.

When the counts involve varying offenses,

apply the offense guideline that produces

the highest offense level. (emphasis added).

The plain language of §3D1.3(b) mandates application of

Parts A, B, & C, which include adjustments for role in the

offense to “a Group" in the singular. There is no provision

for the creation of sub-groups and, a fortiori, no procedure to

apply Parts A, B & C adjustments to sub-groups.

The plain language of §3D1.3(b) is reinforced by the

Commentary. Thus, Application Note 3 provides as follows:

3. When counts are grouped pursuant to

§3D1.2(d), the offense guideline applicable

to the aggregate behavior is used. If the

counts in the Group are covered

different guidelines (e.g., theft and fraud),

use the guideline that produces the highest

offense level. Determine whether the

fic off ae i

from Chapter Three, Parts A. B and C

behavior taken as a whole. (emphasis added)

Applying the precise language of the statute and

Application Note results in the following calculation of

Petitioner’s offense level. All counts are combined into a

single Group. The offense level for the Continuin,, Criminal

Enterprise count is 32 pursuant to U.S.S.G. §2D1.5.> The

3 The 1987 Guideline for CCE was 32 for a first conviction, 38

for any subsequent CCE conviction, and 43 if the defendant was

"the principal administrator, leader or organizer” and the

amount involved was at least 300 kilograms of heroin.

Offense level for the remaining counts based upon the

aggregate amount of drugs is 36, U.S.S.G. §2D1.1

Because "the counts in the Group are covered by

different guidelines,” we use the guideline that produces the

highest offense level of 36, see USSG. §3D1.3(b) and

Application Note 3. Only then do we "[djetermine whether

the specific offense characteristics or adjustments from

Chapter Three, Parts A, B and C apply based upon the

combined offense behavior taken as a whole.” The

combined offense behavior of the Group necessarily includes

the CCE count. In formulating Guidelines for Continuing

Criminal Enterprise offenses, the Sentencing Commission

fully and adequately reflected the participant’s leadership

role in a “large scale drug operation.” Therefore, the

Guidelines specifically prohibit any adjustment for a

defendant’s role in the offense when he has been convicted

of a CCE violation:

The base offense levels for continuing

criminal enterprises are mandatory

minimum sentences provided by the statute

that mandate imprisonment for leaders of

large scale drug enterprises. A conviction

establishes that the defendant controlled

and exercised decision-making authority

over one of the most serious forms of

ongoing criminal activity. Therefore an

ajustmentfor_—role inthe offense in Tl Part B. j Sicabic

U.S.S.G. §2D1.5, Background Note. Therefore, the

Petitioner was not subject to an adjustment for role in the

offense. This result may not have accorded with the court

of appeals’ view of an appropriate sentencing range in this

case. Nevertheless, the court of appeals was bound to

follow the clear language of the statute.

The plain meaning of a statute must control absent a

clearly expressed legislative intention to the contrary. North

Dakota v. United States, 460 U.S. 300, 312 (1983); Garcia v.

United States, 469 U.S. 70, 75 (1984) (when the terms of a

statute are unambiguous, judicial inquiry is complete; "only the

most extraordinary showing of contrary intentions would

justify a limitation of the plain meaning’ of the statutory

language"); see also Bourjaily v. United States, 483 U.S. 171

(1987) ("It would be extraordinary to require legislative

history to confirm the plain meaning of Rule 104 ... we

think that the Rule is sufficiently clear that .. the rule

prevails." (footnote omitted) (emphasis in _ original));

Rodriguez v. United States, 480 U.S. 522 (1987) (per curiam)

(where "the language of a provision is sufficiently clear in its

context and not at odds with the legislative history, ‘[there

is no occasion] to examine the additional considerations of

"policy" ... that may have influenced the lawmakers in their

formulation of the statute.'" (citations omitted)); Schiavone

v. Fortune, 477 U.S. 21 (1986) (courts must follow "plain

language” of F.R.Civ.P.15 (c); “accept the Rule as meaning

what is says”); cf., Diamond v. Chakrabarty, 447 U.S. at 308

("Unless otherwise defined, words [in a statute] will be

interpreted as taking their ordinary, contemporary, common

meaning...").

The Sentencing Guidelines have the force of law in

that they "bind judges and courts in the exercise of their

uncontested responsibility to pass sentence in criminal

cases." Stinson v. United States, US... 113 S.C.

1913, 1917 (1993), quoting Mistretta v. United States, 488

U.S. 361, 391 (1989). Thus, the Guidelines themselves are

Re DE 8 I PRT hg. He gs ane

FRE ENR OS PLS OE

binding upon the courts as are policy statements and even

commentary to the extent that commentary "functions to

interpret [a] guideline or explain how it is to be applied."

Id. at 1917-20, quoting United States vy. Williams, 503

US.___, 112 S.Ct. 1112, 1120 (1992).

Moreover, because the Sentencing Guidelines are

penal in nature, the court of appeals’ expansive reading

conflicts with the well-established doctrine that penal

Statutes should be strictly construed and any ambiguities

resolved in favor of lenity. Crandon v. United States, supra.

III. The Second Circuit's Determination That 18 U.S.C.

§$3583(b) Does Not Establish a Maximum Supervised

Release Term of Five Years For Class A or B

Felonies, Violates The Rule of Lenity.

The final issue requiring this Court's attention,

involves the court of appeals’ refusal to follow established

precedents of this court holding that penal statutes are

Subject to the rule of lenity. Thus, the Second Circuit held

that 18 U.S.C. §3583(b) does not limit supervised release

for Class A or B felonies to terms to five years. This issue

also should be addressed to resolve a split of opinion

among the circuit courts of appeal. The Eighth Circuit

agrees with the Second, see United States v. LeMay, 952

F.2d , 995, 998 (8th Cir. 1991), While the Fifth Circuit has

held that 18 U.S.C. § 3583 does limit to five years

supervised release terms for Class C felonies. See United

States v. Garcia, 983 F.2d 625, 630 (Sth Cir. 1993), United

States v. Kelly, 974 F.2d 22, 24-25 (Sth Cir. 1992).

As noted by the court of appeals, the interplay of

18 U.S.C. §3583(b), which establishes a maximum supervised

release term of five years for Class A or B felonies,

"[e}xcept as otherwise provided,” and 21 U.S.C. §841(b),

results in three variations of the problem. The first occurs

when the minimum period of supervised release is less than

the five-year maximum. (See, 21 U.S.C. §$841(b)(1)(B)

establishing a four-year minimum term.) The second is

when the minimum and maximum terms are identical as in

the instant case, where the minimum, pursuant to 21 U.S.C.

§ 841(b)(1)(A) for a first offender, is five years and the

maximum is also five years. The third category arises when

the minimum term exceeds the maximum, such as occurs

when the defendant is a _ repeat offender under

§841(b)(1)(A) (10-year minimum term of supervised release)

or §$841(b)(1)(B) (8-year minimum) (App. A at 16a).

The petitioner below contended the phrase "except

as otherwise provided..." is ambiguous and that the rule of

lenity requires that it be limited to cases in which the

minimum term of supervised release is longer than five

years, ie., the third category under §841(b).

The court of appeals agreed that cases within the

third category come within the exception to the five-year

maximum "because they require a supervised release term

higher than the maximum allowed by $3583(b).” (/d. at 16a-

17a) (emphasis in original). The court also conceded that

Petitioner’s reading of the statute presented one valid

interpretation of its language but rejected that interpretation

because the court believed that this is not what Congress

expected:

Though it would be possible, as Eng

argues, to interpret the "except as

‘ otherwise provided" clause to authorize

longer supervised release terms only where

another statute specifically requires such

terms (ie, the third category, described

above), we think it is evidence that

Congress expected the proviso to have a

broader effect.

(App. A at 18a). 4

Having found that Petitioner’s understanding of the

Statute is one valid interpretation, the court of appeals

surprisingly refused to apply the rule of lenity in

Petitioner's favor "[blecause we do not find the penalty

statute to be ambiguous.” (/d. n.7).

This Court should address this issue to resolve the

conflicting interpretations of $3583(b) among the circuit

courts of appeals and to correct the failure to apply the

rule of lenity to this clearly ambiguous statute.

CONCLUSION

For The Reasons Stated, This Court Should

Grant The Petition For Certiorari to

Consider The Important Questions Presented.

Dated: New York, New York

April 14, 1994

Respectfully submitted,

Joun L. PoLitox

Attorney for the Petitioner

Johnny Eng

260 Madison Avenue

New York, New York 10016

(212) 679-2900

No. 93 -

In The

Supreme Court

of the Gnited States

October Term, 1993

—--~

JOHNNY ENG,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

On Petition For a Writ of Certiorari to The United

States Court of Appeals For The Second Circuit

eee

APPENDIX

A- Order of Affirmance of The United

States Court of Appeals For The Second Circuit,

Decided January 14, 1994 [Pages 1a- 18a]

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 229—August Term 1993

Argued: October 15, 1993 Decided: January 14, 1994

Docket No. 93-1197

UNITED STATES OF AMERICA,

Appellee,

—_—V —

JOHNNY ENG,

Defendant-Appellant.

Before:

NEWMAN, Chief Judge, KEARSE, Circuit Judge,

and TENNEY,* District Judge.

Appeal from the March 18, 1993, judgment of the

United States District Court for the Eastern District of

New York (Reena Raggi, Judge) convicting defendant of

The Honorable Charles H. Tenney of the United States District Court

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

2a Aprenpix A

{Order of Affirmance of The USCA For The Second Circuit]

narcotics offenses and imposing a sentence that includes

a lifetime term of supervised release.

Affirmed.

JOHN L. POLLOK, New York, N.Y. (Susan C.

Wolfe, Hoffman & Pollok, New York,

N.Y., on the brief), for defendant-appel-

lant.

CATHERINE E. PALMER, Asst. U.S. Atty.,

Brooklyn, N.Y. (Zachary W. Carter, U.S.

Atty., Susan Corkery, Asst. U.S. Atty.,

Brooklyn, N.Y., & Karen Patton Sey-

mour, Asst. U.S. Atty., New York, N.Y.,

on the brief), for appellee.

JON O. NEWMAN, Chief Judge:

This appeal primarily concerns the authorized terms of

supervised release for those convicted of drug offenses.

The general statute establishing supervised release terms

provides that for Class A and Class B felonies, the max-

imum supervised release term is five years. 18 U.S.C.

§ 3583(b) (1988). However, the statute establishing drug

offense penalties provides that, for offenses above stated

minimum quantities, a sentence must include a term of

supervised release of at least five years, implying that a

longer term is permissible. 21 U.S.C. § 841(b)(1)(A)

(1988). Johnny Eng appeals from the March 18, 1993,

judgment of the District Court for the Eastern District of

New York (Reena Raggi, Judge) convicting him of drug

APPENDIX A Ja

[Order of Affirmance of The USCA For The Second Circuit]

offenses and imposing a sentence that includes a lifetime

term of supervised release. We conclude that Congress

intended the sentencing authority granted in section

841(b)(1)(A) to override the limitations in section

3583(b), at least in cases such as Eng’s, reject Eng’s other

contentions, and therefore affirm.

Background

The Government charged Eng with running a heroin

trafficking operation that imported heroin from Hong

Kong for distribution in the United States from 1987 to

ferent methods to import the drugs—possession by couri-

ers who flew into John F. Kennedy International Airport,

packaging in parcels mailed from Hong Kong, and con-

cealment inside a bean Sprout washing machine imported

from Hong Kong.

In early 1987, Eng paid Wah Tom Lee $50,000 for each

of six shipments of heroin that she picked up from couri-

ers traveling through Kennedy Airport. The total amount

of heroin delivered through this method was 66 kilo-

grams. The bean sprout washing machine was used to

conceal 78 kilograms of heroin sent from Hong Kong.

Though Eng was acquitted of the charges related to the

washing machine importation scheme, the 78 kilograms of

heroin were considered by the Judge at sentencing.

The details of the mail package smuggling scheme are

pertinent to the evidentiary issue in this case. Sometime

in mid-1987, Eng asked Wah Tom Lee and Michael Yu to

recruit individuals to receive drugs sent in parcels from

Hong Kong. Yu and Lee Procured the names of three indi-

viduals, Tina Wong, Cathy Leung, and a woman known as

4a APPENDIX A

(Order of Affirmance of The USCA For The Second Circuit]

Helen (or “Ah Ling”), who were willing to receive the

packages in return for $20,000 apiece. After Wong

received the first parcel, Eng instructed Yu and Lee to go

to Wong’s apartment to inspect it. They found that the

parcel contained stuffed animals, peppers, and numerous

tea boxes. The tea boxes contained seven kilograms of

heroin. Several days later, Eng instructed Lee to deliver

the heroin to him near a bakery in New York City’s

Chinatown. At Lee’s instruction, Wong brought the heroin

to a meeting place near the bakery, met Wong and Eng

there, and then transferred the package to Eng. Eng paid

Lee and Yu $50,000, of which $20,000 was given to

Wong.

A week later, Eng called Lee to inform her that a sec-

ond parcel would arrive soon. Lee, in turn, called Tina

Wong, who notified Cathy Leung. After receiving the

package, Leung took it to Wong’s apartment. Wong exam-

ined its contents and informed Lee how much heroin it

contained. Lee called Eng to confirm the delivery. Eng

instructed her to leave the heroin in Wong’s apartment.

Later, at a party at his house, Eng asked Lee to deliver the

parcel to someone named “Lap.” Lee arranged for Wong

to deliver the heroin to Lap the following day. Eng again

gave Lee and Yu $50,000 for the delivery, and Lee in turn

gave $20,000 to Leung and $10,000 to Wong.

Following the second delivery, Lee and Yu accompa-

nied Eng to Hong Kong at Eng’s expense. Eng introduced

Lee and Yu to “Ming,” the person who was sending the

heroin parcels, and told Ming to contact Yu and Lee if he

was not available. Lee provided Eng with a list of four

more people willing to receive packages.

Shortly after the group returned from Hong Kong, four

more packages were delivered, each containing seven

APPENDIX A Sa

[Order of Affirmance of The USCA For The Second Circuit]

kilograms of heroin. The third parcel was delivered to

Cathy Leung’s residence. With Eng’s permission, Lee sold

a portion of the heroin to Ching-Yi Chen. Sometime

around the delivery of the third parcel, Lee and Yu, with

Eng’s permission, began selling the heroin themselves.

Also, at about this time, Lee and Yu again traveled to

Hong Kong, at Eng’s direction, this time accompanied by

Tina Wong and two other women. The five of them con-

cealed more than half-a-million dollars on their persons

for delivery to Ming.

The fourth parcel was delivered to “Helen,” and then

transferred to Wong’s residence. Lee again sold part of the

heroin in this parcel to Ching- Yi Chen. The fifth parcel

arrived at Agnes Chin’s residence, and was stored in

Wong’s house. Once again, Lee sold part of the heroin in

the parcel to Chen. The sixth parcel was delivered in

December 1987 or January 1988 to “Helen,” who trans-

ferred it to Lee. The seventh parcel arrived at Gwendolyn

Chan’s residence, and was later delivered by Lee to a man

named Dai Gow.

The eighth shipment arrived in January or February of

1988 at Agnes Chin’s residence. The package was trans-

ferred to Lee, who delivered it to Eng by placing it in his

jeep.

On February 9 and 10, 1988, three more boxes from

Hong Kong containing heroin and addressed to residences

in the New York metropolitan area arrived at customs in

California. One of these packages was marked for deliv-

ery to a “M. Hsieh” at Gwendolyn Chan’s address. The

Drug Enforcement Administration then conducted a “con-

trolled delivery,” which resulted in Chan’s arrest when

she accepted delivery of the parcel. Chan agreed to coop-

erate, and the conspiracy began to unravel. Chan’s coop-

6a Aprenpix A

{Order of Affirmance of The USCA For The Second Circuit)

eration led to the arrest of Leung, who also agreed to

cooperate. Leung's cooperation led to the arrest of Lee, ©

Yu, and Tina Wong in early March 1988.

The Government presented a somewhat different ver-

sion of events in United States v. Michael Yu, et al., No.

88-CR-138(S) (E.D.N.Y. Aug. 31, 1988). In that case, the

Government prosecuted Eng’s co-conspirators in the

heroin importation scheme. The Government charged Wah

Tom Lee and Michael Yu, along with four others, with

conspiracy to distribute drugs and importation and dis-

tribution of heroin imported via mail parcels shipped to

the United States from Hong Kong. The charges stemmed

from the same mail parcel deliveries that formed the basis

for the indictment against Eng.

In Yu, the Government argued that Tina Wong had

delivered the first two packages to Ching- Yi Chen, while

in the instant case the Government claimed that Wong

delivered the first package to Eng (via Lee) and the sec-

ond package to “Lap” (at Eng’s direction). In the Gov-

ernment’s version of events as portrayed at the instant

trial, Ching- Yi Chen shows up as a buyer only late in the

scheme when Yu and Lee had begun selling the drugs

themselves.

The Government explains its changed version of Chen’s

role as resulting from a reevaluation of Tina Wong’s

veracity. After the Yu trial, the Government interviewed

Wong and gave her a polygraph examination. Following

its reconsideration of Wong’s testimony, the Government

agreed to the vacation of Ching-Yi Chen’s conviction in

light of the new information. On this appeal, the Gov-

ernment admits that Johnny Eng’s name was not men-

tioned in the earlier trial: “At no time during the Yu trial

was Johnny Eng’s name mentioned, since Lee and Yu

APPENDIX A 7a

{Order of Affirmance of The USCA For The Second Circuit}

were the persons in the heroin conspiracy with the most

direct dealings with Eng, and they were defendants.”

Brief for United States at 20, n.8.

Eng was in custody in Hong Kong from August 16,

1989, until he was extradited to the United States on

November 1, 1991. He was convicted following a four

week jury trial on all counts related to the drug courier

and mail package importation schemes, but was acquitted

on the charges stemming from the alleged bean sprout

machine scheme. Eng was convicted of the following

crimes: continuing criminal enterprise (“CCE”), 21

U.S.C. § 848(a); conspiracy to distribute and possess with

intent to distribute heroin, 21 U.S.C. § 846, 841(b);

importation of heroin, 21 U.S.C. § 952(a); and distribu-

tion and possession with intent to distribute heroin, 21

U.S.C. § 841(a)(1). He was sentenced on the CCE count

under the 1987 version of the Sentencing Guidelines to

151 months imprisonment followed by 3 years of super-

vised release. He was sentenced on each of counts 3

through 14 (the substantive drug offenses) to 292 months

imprisonment followed by a life term of supervised

release. All the sentences run concurrently.

Discussion

I. Evidence from prior trial

Eng contends that the District Court abused its discre-

tion when it refused to admit the Government’s summa-

tion, bill of particulars, and grand jury testimony from the

Yu trial. The evidence that Eng sought to introduce

showed that the Government had argued in Yu that Tina

Wong had delivered the first two packages to Ching-Yi

Chen; in the instant case, the Government’s evidence

showed that Wong had delivered the first package to Eng

8a ApPEnpIxX A

[Order of Affirmance of The USCA For The Second Circuit]

believed all the other times, so I will not allow the

defense to put in what I see as really extraneous fac-

tors with considerable risks for prejudice, when in

essence it can make it{ ]s argument effectively by

calling the witnesses themselves and having them tes-

tify about the prior occasion on which they have tes-

tified [emphasis added].

The District Court did not exceed its discretion in refus-

ing to admit the evidence at that stage on the basis of

defendant’s assurance that Tina Wong would testify. The

Court assured the defendant that he would have a full

opportunity to present the issue of the Government’s

inconsistency when Tina Wong took the stand. Eng had

represented to the Court that Tina Wong was available,

and that she would be called to testify. Eng Memorandum

to the District Court at 3, n.1 (Nov. 19, 1992) (“It is

expected that Tina Wong will be called as a witness at this

trial, if not by the government, then certainly by the

defense.”’).

As it turned out, neither the Government nor Eng called

Tina Wong to the witness stand. Because Eng failed to

renew his motion once it became clear that Wong was not

going to be called by either side, he never afforded the

District Court an opportunity to consider the need for the

evidence from the prior trial under the changed circum-

stances. He thereby waived his right to object to the Dis-

trict Court’s failure to admit the Government’s bill of

particulars and summation, along with the agent’s grand

jury testimony. To hold otherwise would allow a defen-

dant to trap the District Court into creating reversible

error. The Seventh Circuit has held that if evidence is

admitted conditionally, the party seeking to exclude the

evidence has the burden of renewing its objection if the

APPEenpix A 9a

(Order of Affirmance of The USCA For The Second Circuit]

(via Lee), and the second package to “Lap” (at Eng’s

direction). Tina Wong had testified in Yu that she had

delivered the first two packages to Ching-Yi Chen. When

Eng first moved to admit the evidence from the earlier

trial, Judge Raggi denied the motion primarily because

she believed that the inconsistency between the Govern-

ment’s position at the two trials would be fully presented

to the jury when Tina Wong was called to testify. Judge

Raggi explained:

Most importantly, I think, this issue doesn’t have to

be addressed because witnesses whose credibility is,

after all, at issue, are all available for this jury to

hear.

Indeed, defense has candidly stated it will call Tina

Wong if the government does not? {punctuation in

original]

This is the witness that the government put for-

ward at the Yu trial who has not told the truth or

affirmatively perjured her[ }s{elf].

I think the appropriate way to present this whole

conflict to the jury is to have all of these witnesses

testify before it and let the jury s{ee) them, their rel-

ative demeanors, their credibility in light of other

evidence and resolve the question whether or not the

government has sustained its burden of proof.

As I indicated the other day, I will allow the

defense to explore with Ms. Wong, if she’s called, the

fact that she was called by the government in the

prior trial, she did receive a 5K1.1 letter. . ‘Fy

Just as I would never allow the government to

vouch for a witness, whether that witness had

appeared for the first time or six times previously and

10a APPENDIX A

{Order of Affirmance of The USCA For The Secunad Circuit]

condition is not satisfied. See United States v. Dougherty,

895 F.2d 399, 403-04 (7th Cir.), cert. denied, 497 U.S.

1008 (1990). The same reasoning applies with equal force

here where evidence was, in effect, conditionally

excluded.

II. Multi-count sentencing

Eng argues that, in calculating the appropriate offense

level, the District Court misapplied the multi-count pro-

visions of the Sentencing Guidelines. Eng claims that

because he was convicted of the continuing criminal

enterprise offense, which includes a leadership role within

its elements, the District Court could not make a four-

level increase in his offense level for his leadership role

in the crime.

The District Court, applying the multiple-count sen-

tencing guidelines, U.S.S.G. § 3D1.1 - .5 (1987), treated

all fourteen counts as being part of one “group.” The

Court then aggregated the drug quantities under counts 3

through 14 (the non-CCE counts),' producing a total of

228 kilograms of heroin. See id. § 3D1.2(d).2 The Court

then observed that the guideline for the substantive drug

offenses under 21 U.S.C. §§ 952, 846, and 841(a)(1) is

section 2D1.1(a)(3). That guideline provides a base

offense level of 36 for offenses involving at least 10 kilo-

1 Count 2, charging a conspiracy to distribute and possess heroin with

intent to distribute, was merged into count 1, the CCE count.

2 The 228 kilograms consists of heroin imported in all of Eng’s various

drug-smuggling schemes. It includes 78 kilograms of heroin smuggled

in through the bean sprout washing machine, even though Eng was

acquitted of the charges related to the washing machine. We have ruled

that facts established by a preponderance of the evidence may generally

be used af sentencing. notwithstanding an acquittal for lack of proof that

persuaded the trier beyond a reasonable doult. See United States v. Con-

cepcion, 983 F.2d 369, 387 (2d Cir. 1992), reh'g in banc denied, 983

F.2d 395 (24 Cir.), cert. denied, 114 $.Ct. 163 (1993).

Naan ies

APPENpIx A Ia

[Order of Affirmance of The USCA For The Second Circuit}

grams of heroin. Because the offenses involved 228 kilo-

grams of heroin, the base offense level was 36. The Court

then .incad tha nftrac.lwe'y icratcoun 1&t int

defendant’s leadership role in the crime. See id.

§ 3B1.1(a). The Court then compared this adjusted offense

level of 40 with the offense level of 32 produced by the

remaining, non-aggregated count of the group, the CCE

count. Because the offense level produced by the aggre-

gated drug offenses was higher than that produced by the

CCE count, the Court used the higher offense level of 40

as the combined offense level for the entire group. See id.

§ 3D1.3(b).

Eng argues that the Court erred in using the offense

level for a substantive count as the offense level for the

group. He argues that the Court should have used the

offense level for the CCE count because that was the most

serious count of conviction. We disagree. The Guidelines

establish that when counts are grouped together under the

quantity aggregating principles of section 3D1 .2(d), the

offense level for the group is

the offense level corresponding to the aggregated

quantity, determined in accordance with Chapter Two

and Parts A, B and C of Chapter Three. When the

counts involve varying offenses, apply the offense

guideline that produces the highest offense level.

Id. § 3D1.3(b). Thus, the CCE offense could have served

as the basis for the combined offense level for the group

only if it carried an offense level greater than that carried

by the aggregated substantive counts. Because “the

offense level corresponding to the aggregated quantity,”

adjusted for leadership role under Part B of Chapter

Three, was greater than the offense level for the CCE

offense, the Court properly used it as the basis for the

12a APPENDIX A

{Order of Affirmance of The USCA For The Second Circuit}

group. Though the Guidelines refer to the CCE count as

“one of the most serious forms of ongoing criminal activ-

ity,” U.S.S.G. § 2D1.5, commentary (1987), that reference

does not mean that the CCE count must always determine

the offense level for a group.

Eng also contends that the Court made a second mis-

take in its multi-count analysis. The Court applied the role

adjustment under Part B of Chapter Three to the offense

level for the aggregated counts, and then compared that

offense level with the offense level for the CCE count,

before arriving at the combined offense level for the

group. Eng argues that the Court should have first com-

pared the base offense levels for the aggregated counts

and the CCE count, picked a combined offense level for

the group, and then made any adjustments under Parts A,

B, and C of Chapter Three. If the Court had done so, Eng

continues, it would not have increased his offense level by

4 for his leadership role because that role would have

already been accounted for by the inclusion of the CCE

offense. Eng relies on a note in the 1992 Guidelines to

support his theory that the Guidelines require the Court to

group the counts and then adjust the combined offense

level for the group according to the requirements of Parts

A, B, and C of Chapter Three. See U.S.S.G. § 3D1.3,

comment. (n.3) (1992). The note advises that offense level

adjustments under Parts A, B, and C of the Guidelines

should be made “based upon the combined offense behav-

ior taken 2s a whole.” Jd. Eng misunderstands this note’s

direction, which simply means that courts should consider

more than just a defendant’s conduct on a particular count

when applying Chapter Three, Parts A, B, and C adjust-

ments. See United States v. Fells, 920 F.2d 1179, 1184

(4th Cir. 1990), cert. denied, 111 S.Ct. 2831 (1991). The

note does not suggest that a court must apply Chapter

APPENDIX A 13a

(Order of Affirmance of The USCA For The Second Circuit}

Three, Parts A, B, and C adjustments to the offense level

for the group as a whole.? See also U.S.S.G. § 1B1.1(d)

(1987) (requiring sentencing court to apply Chapter

Three, Parts A, B, and C adjustments before applying

Chapter Three, Part D grouping analysis).

Ill. The lifetime Supervised release term

Finally, Eng contends that the District Court erred in

imposing a lifetime Supervised release term. He offers two

separate arguments for a reversal of the lifetime term, the

second of which he makes in response to an issue we

raised at oral argument.

1. Improper departure claim

First, Eng argues that the District Court erred in depart-

ing upward from the Guidelines’ maximum of five years

supervised release. See U.S.S.G. § 5D3.2(a) (1987). He

contends that the District Court violated the ex Post facto

Clause of the Constitution by departing upward on a

ground not available under the 1987 Guidelines, but only

under the 1988 Guidelines. Specifically, Eng asserts that

Judge Raggi departed upward because of the quantity of

the drugs involved in Eng’s drug-smuggling operation. He

Says that this was an improper ground for departure under

the 1987 Guidelines because they already took the amount

of drugs into account in setting offense levels. Because of

this, Eng concludes that when Judge Raggi departed

upward, she must have relied on a 1988 amendment that

allowed such upward departures.‘ This argument is with-

3 We note, however, that adjusuments for acceptance of responsibility

under Part E of Chapter Three are made only after the counts are com-

bined. See United States v. Kleinebreil, 966 F.2d 945, 953 (Sth Ciz.

1992); United States v. McDowell, 888 F.2d 285, 293 (34 Cir. 1989).

: Eng apparently thinks the Judge relied on an amendment to U.S.S.G.

§ 2D1.5, comment. (n.2) (1988), which specifically permitted a depar-

14a Aprennix A

[Order of Affirmance of The USCA For The Second Circuit]

out merit because Judge Raggi could have departed

upward on the basis of the amount of drugs even under

the 1987 Guidelines.

Judge Raggi explained her departure as follows: “I

know that Mr. Eng’s criminal history category is one, but

the facts in this case do show to the Court that he was

involved in large scale heroin trafficking for a consider-

able period of time, and I do think that the five year

supervised release term is inadequate.” Thus, Judge Raggi

departed upward because of the scale of Eng’s smuggling

operation.

A sentencing judge may depart from the Guidelines

range when “there exists an aggravating or mitigating cir-

cumstance of a kind, or to a degree, not adequately taken

into consideration by the Sentencing Commission in for-

mulating the guidelines.” 18 U.S.C. § 3553(b) (1988).

This departure authority applies to terms of supervised

release just as it does to terms of imprisonment. United

States v. Marquez, 941 F.2d 60, 64 (2d Cir. 1991).

We first note that the District Court departed upward on

the substantive narcotics counts, not on the CCE count.

The Court could not have departed upward on the CCE

offense based on the quantity of heroin involved here (228

kilograms) because the 1987 Guidelines for the CCE

offense already accounted for drug quantity. See U.S.S.G.

§ 2D1.5(a)(3) (1987) (imposing offense level of 43 for

CCE offense involving 300 kilograms of heroin).

However, with respect to smuggling offenses, the 1987

Guidelines do not make any distinctions between defen-

ture above the offense level for a continuing criminal enterprise offense

if “the quantity of drugs substantially exceeds that required for level 36.”

Id. App. C. no. 66 (1988). This language was removed the following

year. ld. App C. no. 139 (1989).

Aprennix A 15a

[Order of Affirmance of The USCA For The Second Circuit]

dants based on quantities in excess of 10 kilograms. Thus,

in the 1987 Guidelines, the Sentencing Commission did

not adequately consider the propriety of terms of super-

vised release beyond those in the Guidelines range to deal

with an extremely large heroin trafficking operation. The

District Court was therefore entitled to depart from the

supervised release Guidelines’ range in order to devise a

sentence that reflected its concern over the scale of Eng’s

narcotics activities.

2. Lifetime supervised release violates statutory

maximum claim

At oral argnment, we raised a second issue concerning

the lifetime erm of supervised release— whether the term

violates 16 U.S.C. § 3583(b), which appears to set max-

imum terms of supervised release.5 The specific question

is whether a life term of supervised release violates 18

U.S.C. § 3583(b)(1), which sets a maximum supervised

release term of five years for Class A or B felonies,®

“[e}xcept as otherwise provided.”

Eng was convicted under 21 U.S.C. § 841(b)(1)(A),

subjecting him to a supervised release term of “at least 5

years” as a first offender. Eng contends that because the

minimum term (under section 841(b)(1)(A)) coincides

with the maximum term (under section 3583(b)(1)) at five

years, Judge Raggi should have set the supervised release

term at exactly that period. The Government disagrees,

arguing that section 3583(b)( 1)’s general maximum of

s We inquired about this issue sua sponte because an imposition of a

sentence in violation of law would be plain error. See United States v.

Pico, 966 F.2d 91, 92 (2d Cir. 1992).

é Class A felonies are those for which a maximum punishment of life

imprisonment or death is authorized; Class B felonies are those for

which a maximum penalty of 20 years or more is authorized. 18 U.S.C.

§ 3559(a)(1)(A), (B).

16a Aprenpix A

[Order of Affirmance of The USCA For The Second Circuit}

five years does not apply in Eng’s case because section

841(b)(1)(A) overrides that maximum. We agree with the

Government.

The question of how to reconcile the supervised release

maximums of section 3583(b) with the supervised release

terms allowed under section 841(b) is one of first impres-

sion in this Circuit. There are three variations of the prob-

lem. The first variation arises where section 841(b)

provides a minimum term of supervised release that is /ess

than the maximum term of supervised release specified in

section 3583(b). This can happen when a defendant faces

a four-year supervised release maximum under section

841(b)(1)(B) and a five-year supervised release maximum

under section 3583(b)(1). A second category of cases,

which includes the instant case, arises where the mini-

mum term specified in section 841(b) is the same as the

maximum term specified in section 3583(b). This can

occur when the defendant is sentenced for a class A

felony under section 841(b)(1)(A), and is thus subject (as

a first-time offender) to a minimum supervised release

term of five years and a maximum term also of five years

(for a class A offense). The third category arises where

section 841(b) provides a minimum term of supervised

release that is more than the maximum specified in sec-

tion 3583(b). That can occur when a defendant has a prior

conviction; for example, section 841(b)(1)(A) sets the

minimum supervised release term for a repeat offender at

10 years and section 841(b)(1)(B) sets the minimum at

eight years, both above the five year maximum of section

3583(b).

Section 3583(b)’s maximums apply unless other

statutes provide otherwise. 18 U.S.C. § 3583(b) (“Except

as otherwise provided, the authorized terms of supervised

release are. . . .”). Cases in the third category described

APPENDIX A 17a

[Order of Affirmance of The USCA For The Second Circuit}

above clearly fall under the “except as otherwise pro-

vided” exception to the general maximum of section

3583(b) because they require a supervised release term

higher than the maximum allowed by section 3583(b).

The question presented is whether the second category

also falls under that exception to section 3583(b) require-

ments. We hold that it does. Eng’s reading of this provi-

sion would render the “at least” portion of the statute

irrelevant. We generally avoid constructions that render

portions of a statute superfluous. See United States v.

Menasche, 348 U.S. 528, $38-39 (1955). More impor-

tantly, Eng’s construction ignores the fact that the super-

vised released terms authorized by Congreess for drug

offenses, including section 841, were added in the same

statute that amended section 3583(b) by adding the inrro-

ductory phrase “Except as otherwise provided.” Act of

Oct. 27, 1986, Pub. L. No. 99-580, 1986 U.S.C.C.A.N.

(100 Stat.) 3207. It is apparent that in enacting the Nar-

cotics Penalties and Enforcement Act of 1986 (a subtitle

under the Anti-Drug Abuse Act of 1986), Congress

intended to enhance the penalties available to combat

drug offenses. That Congress intended these penalties to

Override the maximums set by 18 U.S.C. § 3583(b) is

Clear from the fact that Congress simultaneously amended

that section to add the phrase “[e]xcept as otherwise pro-

vided.” See United States v. LeMay, 952 F.2d 995, 998

(8th Cir. 1991) (“It is obvious to us that the phrase ‘except

as otherwise provided’ was added to § 3583(b) so that this

statute would not conflict with statutes such as 21 U.S.C.

§ 841(b)(1)(A) thar authorize supervised release terms in

excess of five years.”); United States vy. Salazar, 784

F.Supp. 1366, 1367 (N.D Il. 1992); see also United States

v. Cardenas, 917 F.2d 683, 687 (2d Cir. 1990) (noting, in

dictum, that defendant could receive a life term of super-

18a APPENDIX A

[Order of Affirmance of The USCA For The Second Circuit]

vised release under section 841(b)(1)(C)’s mandate of a

term of “at least 3 years”). Though it would be possible,

as Eng argues, to interpret the “except as otherwise pro-

vided” clause to authorize longer supervised release terms

only where another statute specifically requires such

terms (i.e., the third category, described above), we think

it is evident that Congress expected the proviso to have a

broader effect. But see United States v. Gracia, 983 F.2d

625, 630 (Sth Cir. 1993) (section 3583(b) applies to set

maximum supervised release term for defendant sen-

tenced for Class C felony); United States v. Kelly, 974

F.2d 22, 24-25 (Sth Cir. 1992) (same). Accordingly, we

hold that the District Court did not violate 18 U.S.C.

§ 3583(b) when it sentenced Eng to a lifetime term of

supervised release following his term of incarceration.’

The judgment of the District Court is affirmed.

7 Because we do not find the penalty statute to be ambiguous, we have

no occasion to apply the rule of lenity in Eng's favor. See United States

v. Concepcion, 983 F.2d at 380.

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NEW YORK

Docket No.

89CR 255

Reena Raggi, USDJ

UNITED STATES OF AMERICA,

-¥V.-

JOHNNY ENG,

Defendant.

THE COURT: All right. This is a difficult issue

principally because the three cases that deal with the

problem most directly, McKeon, GAF and Salerno, all come

at it from different angles, and I suspect the Second Circuit

has not had the last word on this problem.

But considering the cases carefully and the facts

before me, I am going to rule against the defendant's

application, because this comes up in the midst of a trial

and [I must rule quickly to allow you to develop your

strategies. I’m going to give you my reasons today, orally,

though I’m sure that the benefit of time would result in my

views being more polished if I were to write.

20a Aprenvix B

[Decision of The USDC For The Eastern District of New York]

I want to deal with this question on two levels.

First, with the overall concept of dealing with the problem

of credibility when the government has put on at one trial

a witness, or a group of witnesses, who are its accomplice

witnesses in that case, and then at another trial, dealing

with the same criminal conduct, put on a different group of

witnesses who take a different view of the evidence, after I

do that, I then want to discuss the three types of evidence

that the defense has sought to put forward, both argument

by the Government, testimony by the government agent

before a Grand Jury and a bill of particulars.

First of all, with respect to the primary issue that

all of this gets to, which is the jurors’ assessment of the

credibility of a variety of witnesses, some of whom have

only recently begun to cooperate with the government.

I do think that we all have to start with the

discussion in McKeon of what is properly admissible against

the government by way of argument and, as I said the

other day, it seems to me that the circuit opinion does seek

to distinguish between a lawyer putting forward facts in

argument, which could be seen to be within the personal

knowledge of that party, and legitimate advocacy by a

lawyer.

That is, the urging of inferences to be drawn

from facts that are before the jury.

It does seem to me and I think that the court in

McKeon recognized that advocacy as to the credibility of

APPENDIx B 2la

[Decision of The USDC For The Eastern District of New York]

witnesses, falls into the second rather than the first

category, and is not generally admissible against a party.

I would find that a lawyer, whether representing

the government or a defendant, in arguing the credibility of

witnesses who appear at a trial, act as advocates and not as

agents for their sides, stating facts. This seems to be

particularly the case when credibility is at issue, because no

lawyer can vouch for the credibility of a witness and, to

that extent, these arguments urging certain conclusions are

advocacy, they are not statements of fact akin to what was

concern to the court in McKeon.

I also think the probative central hub of a

lawyer's arguments on credibility, has to be viewed as

minimal, because of the inability to vouch. It is just an

argument to be accepted or rejected by a jury based upon

its Own assessment of the witness and the other evidence

before it.

The prejudice of allowing a lawyer's arguments to

be used in a case, when it relates to credibility, I think is

considerable because it injects into the trial issues that are

not properly considered or views not properly considered by

a jury in assessing credibility. Namely, the opinions of the

lawyers, either at this trial or some past trial.

And so that is why I think that this is not

properly seen as the type of facts that would come before

a jury in light of the analysis in McKeon. Even though if

this issue were properly before the jury, I think the

22a Aprenpix B

[Decision of The USDC For The Eastern District of New York)

circumstances of this case suggests, that to go into it would

open a door as to testimony about why the government

changed its views with respect to the witnesses at the

earlier trial, as opposed to now, that were specifically

cautioned against in McKeon.

In this case, for the government to have to put

on an Assistant U.S. Attorney of an agent, to start to

discuss how it came to the views it had in the Yu case or

to the views it has now with respect to its witnesses, |

think risks diverting the jury’s attention from the issues it

must properly resolve and risks prejudice to the defendant

by allowing the government to bolster its witnesses and |

would not allow it.

On the other hand, to gO forward with what the

defense process says and not pefmit the government to

explain its position is prejudicial to them. Most importantly,

I think, this issue doesn’t have to Pe addressed because the

witnesses whose credibility is, after all, at issue, are all

available for this jury to hear.

Indeed, defense has candidly stated it will call

Tina Wong if the government does not?

This is the witness that the government put

forward at the Yu trial who has not told the truth or.

affirmatively perjured her’s. eo

I think the appropriate way to present this whole

conflict to the jury is to have all of these witnesses testify

APPENDIX B 23a

(Decision of The USDC For The Eastern District of New York]

before it and let the jury says them, their relative

demeanors, their credibility in light of other evidence and

resolve the question whether or not the government has

sustained its burden of proof.

As I indicated the other day, I will allow the

defense to explore with Ms. Wong, If she’s called, the fact

that she was called by the government in the prior trial,

she did receive a 5K1. letter.

I note, I allow this because it’s relevant to her

relationship with the parties and her motives in testifving all

of which would also properly be before the jury.

The bottom line, by allowing that testimony, it

allows the defense to put before the jury the fact that she

had at one point been Supported, so to speak, by the

Government, who, after all, called her to the witness stand,

she did get to benefit from her cooperation.

In other words, what I'm Saying, there is very

little lost to the defense by what it has to do in this case

to get the point before the jury.

Now, If we talk about the particular -types of

evidence that the defense has sought to get this before the

jury on, I would say the easiest it appears is Agent

Mitesser’s testimony. He testified before a Grand Jury as

to certain facts relying, as I understand it, on what Ms.

Wong had been telling to the government.

24a ApreNDIx B

[Decision of The USDC For The Eastern District of New York]

This is permissible. In the Grand Jury, as we all

know, hearsay is allowed.

For that evidence to come before this jury would

require me to explain that whole principle to this jury,

explain that Ms. Wong was the source of the information,

and then allow the credibility arguments to be made.

For all the reasons I have just stated, since the

only reason I see for allowing his testimony to come in is

to raise this whole credibility issue, | would not allow it.

The other type of evidence that is sought to be

offered is the summation of the government, in which it

urged that Ms. Wong's testimony be credited, in which it

recounted her version of events as the one that the jury

should adopt.

For the reasons I just stated, I would not allow

that to come in.

Most troubling is the bill of particulars. A bill of

particulars is a very particular type of legal document. Its

purpose is to advise a defendant charged with criminal acts

of certain facts about the crimes that are essential to that

defendant being able to prepare a defense.

It’s not simply an opportunity for the government

to state its theory of the case. Indeed, the government has

no obligation to do that before trial.

ape eee

APPENDrx B 25a

[Decision of The USDC For The Eastern District of New York]

The bill of particulars, again, has, as its purpose,

allowing a defendant to know sufficient facts about his case

to prepare a defense.

Now, in Salerno, as I said the other day, the bill

of particulars that --

I'm sorry in GAF.

In GAF, the bill of particulars given that was at

issue was swiinst the very same defendant, that then sought

to use it against the government at trial.

I think this makes a difference, because what

appears to be underlying all of these cases, but particularly

GAF and Salerno, is the sense that the government should

not be able to treat a defendant unfairly by engaging in

radical switches in its theory of the case as against him or

it.

In GAF, the circuit viewed what the government

did as precisely that. Having tried a case initially on one

bill of particulars, and then when a retrial was necessary,

switching gears entirely against the same defendant.

In this case, the bill of particulars that the

government -- that would be sought to be offered against

the government was not given as against Mr. Eng, it was

not produced to allow Mr. Eng to prepare a defense.

It was, however, produced in a case in which the

26a APPENDIX B

[Decision of The USDC For The Eastern District of New York]

same criminal acts are at issue. That is why this is not easy

for me to resolve.

I do not see the same basic unfairness going on.

Moreover, and this is where I must start to rely on Salerno

for its discussion of where unfairness begins to come into a

case. The government is not simply taking the same

evidence and switching its theories entirely with no rhyme

or reason, there is a major distinction that happened

between the Yu case and this case, and that is the

government has now spoken to people who were defendants

in that case who are now cooperating in this case.

It has polygraphed its former witness in that case

and I gather has not received an encouraging report about

her credibility.

I am not resolving which witnesses are telling the

truth. It’s the cross-examination of the last several days has

shown, the government’s witnesses would have to be viewed

cautiously by any fact-finder. But that is what I want to

focus the jury’s attention on.

Is there assessment of these people who have

appeared before them, and the other evidence that is

properly before the jury?

I do not want the focus to turn on who the

government believed, when and why they believed that

person. Just as I would never allow the government to

vouch for a witness, whether that witness had appeared for

APPENDIX B 27a

[Decision of The USDC For The Eastern District of New York]

the first time or six times previously and believed all the

other times, so I will not allow the defense to put in what

I see as really extraneous factors with considerable risks for

Prejudice, when in essence it can make it's argument

effectively by calling the witnesses themselves and having

them testify about the prior occasion on which they have

testified.

Mr. Shargel, you spoke this afternoon about not

giving the government the benefit of a clean slate. Maybe

this case will not go to the jury with all the facts and

details that you think are relevant and that you argued for.

This won't be a clean slate.

This is not a jury that will be ignorant of the use

of Mr. Yu, Ms. Lee, how they came to be cooperating, the

Stages at which certain things came about, the fact that

Tina Wong testified before and she is now not a

government witness. All of that will be before this jury.

I don’t see this as being a case in which the

government is starting on a clean slate and hiding

everything that you argued to me.

Also, with respect to the second point that you

made this afternoon, about the government being led by its

witnesses and the problems of jurors not knowing that.

That is of course something that I'm sure will trouble many

defendants and many defense counsel, just as the defense

could not seek to offer evidence about how the government

has dealt with accomplices generally and whether anybody

28a APPENDIX B

[Decision of The USDC For The Eastern District of New York]

has been prosecuted in the Eastern District or Southern

District for perjury, however relevant defense counsel might

be able to argue that perhaps should be, I think in this

case the fact that the government believed somebody at one

time or another I won’t let come in except as to Ms. Wong

who will be able to testify.

I'm sure that is not the clearest denunciation of

my ruling because of the time. I think you have the

general idea and will have it preserved if it has to be

reviewed.

I thank you.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.