Petition for Writ of Certiorari — Hua v. United States (No. 06-1214)

ame Court. U.S.

“_— IL eS

No: ©61214FE58 2 8 2007

=

Is THE OFFICE OF THE CLERK

Supreme Court of the Anited States

Bo WEI HUA

Petitioner

Vv.

UNITED STATES OF AMERICA

On Petition For Writ Of Certiorari

To The United States Court of Appeals for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI |

JOHN O. IWEANOGE, II

Counsel of Record

THE IWEANOGES’ FIRM, P.C.

IWEANOGE LAW CENTER

1026 MONROE STREET, NE,

WASHINGTON, D.C. 20017

Phone: (202) 347-7026

Facsimile: (202) 347-7108

Email: joi @iweanogesfirm.com

QUESTIONS PRESENTED

l. Are the fifth, sixth and fourteenth amendments

violated by failing to set aside a defendant’s conviction

where defendant was precluded from presenting evidence of

her defense?

ul

PAR O THE PROCEEDIN

1. Bo Wei Hua

y = Zhihao Liu

y & United States of America

TABLE OF CONTENTS

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CONSTITUTIONAL PROVISION INVOLVED _........... l

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REASONS FOR GRANTING THE WRIT.................0008 3

(1) | THECOURT SHOULD GRANT THE WRIT TO

DETERMINE WHETHER THE 5™ 6™ AND 14™

AMENDMENTS ARE VIOLATED BY AFFIRMING

CONVICTION OF A DEFENDANT WHEN THE

DEFENDANT WAS PRECLUDED FROM PRESENTING

EVIDENCE OF HER DEFENSE WHICH THE JURY

COULD HAVE RELIED ON IN ENTERING A NOT

GUEST Vaasa 3

I. THE CONVICTION SHOULD BE SET ASIDE

BECAUSE OF VIOLATION OF DEFENDANT’S RIGHT

TO PRESENT EVIDENCE OF HER DEFENSE ......... ... 4

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IV

TABLE OF A

CASES

California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528,

Oe Bic TR Be OE Fa oeceittncrmiscnnvennnticinennncvtinmennivenene

California v. Trombetta, 467 U.S. 479; 104 S. Ct. 2528

Chambers v. Mississippi, 410 U.S. 284, 302-303, 93 S. Ct.

1038, 35 L. Ed. 2d 297 (1973).......sosesseesvecnsesneressnesensesenrenens

Crane v. Kentucky, 476 US..683, 689-690, 106 S. Ct. 2142,

Fe Fee i icttnnsifnctseninsitcneninneneniinmniininipiinninion

Marshail v. Lonberger, 459 U.S._422, 438, n. 6, 103 S. Ct.

843, Fe as HE Fe Co iietcsetiienninntintiiintiviniemesninniveiiins

Rock v. Arkansas, 483 U.S. 44, 58, 56, 107 S. Ct. 2704

CUTIE Uiisactiesccanicch ch ienigaalietvistanisesbansietinbsuahaeidanuasliedhtveaneaniabieaninals

Rock v. Arkansas, 483 U.S. 44; 107 S. Ct. 2705 (1987)..........

Spencer v. Texas, 385 U.S._554, 564, 87 S. Ct. 648, 17 L. Ed.

Fe i ssiciitirciarnibickisdiciebcepunieninnadlagtabeantniinpinticcunteniialea

United States v. Dornhofer, 859 F.2d 1195, 1199 (4" Cir.

1988) cert. denied, 490 U.S. 1005 (1989) ...c..cescsescececesscesseseccessenesece 4

United States v. King, 879 F.2d 137, 138-39 (4th Cir. 1989).............. 6

United States v. Sarno, 24 F.3d 618, 621 (4th Cir. 1994)... 5

United States v. Scheffer, 523 U.S. 303,_308, 118 S. Ct.

Sy Pe as GIES Civic ckssnhecrpicnnseincesominringnitbartnneseneteiies 4

United States v. Sielaff, 615 F.2d 402, 403 (7™ Cir. 1979),

COTE Gamba, GAB U.S. PAO CGD) ws ccssccsissccesccivcssensscnasssusseiscsedorososestoss 6

United States v. Winn, 577 F.2d 86, 90 (9™ Cir. 1978) ........-cesesesceeeee- 6

vi

OPINIONS BELOW

The unreported Opinion of the United States Court of

Appeals which is set forth in the Appendix at Al-3_,

DICTION

The opinion of the United States Court of Appeals for

the Fourth Circuit was issued on November 30, 2006.

Jurisdiction of this Court is invoked under 28 U.S.C.

§1257(a).

vill

“ONSTITUTIONAL PROVISION INVOLVED

FIFTH AMENDMENT: “No person shall be held to answer

for a capital offense, or otherwise infamous crime, unless on

a presentment or indictment of a grand jury, except in cases

arising in the land or naval forces, or in the militia, when in

actual service in time of war or public danger, nor shall any

person be subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in an

criminal case to be a witness against himself, not be deprived

of life, liberty, or property, without due process of law; nor

shall private property be taken for public use without just

compensation.”

SIXTH AMENDMENT: “In all criminal prosecutions, the

accused shall enjoy the right to a speedy and public trial by

an impartial jury of the state and district wherein the crime

shall have been committed, which district shall have been

previously ascertained by law, and to be informed of the

nature and cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for

obtaining witnesses in his favor, and to have the assistance of

counsel for his defense.”

FOURTEENTH AMENDMENT, Section LE “All persons

born or naturalized in the United States and subject to the

jurisdiction thereof are citizens of the United States and of

the state wherein they reside. No state shall make or enforce

any law which shall abridge the privileges or immunities of

citizens of the United States; nor shall any state deprive any

person of life, liberty or property, without due process of law,

nor deny to any person within its jurisdiction the equal

protection of the laws.”

STATEMENT OF THE CASE

Defendant Bo Wei Hua entered the United States on

December 14, 2004. (6/15/05 Tr. 146). Defendant borrowed

$10,000.00 from Mr. Ah Lee in California. (6/16/05 Tr. 34).

On or about April 7, 2005, Mr. Ah Lee gave Defendant credit

cards in an envelope at the airport to take to Washington,

D.C. and advised Defendant that the cards belonged to his

sister and that Defendant should use the cards to purchase

items for the sister. (6/16/05 Tr. 34-39). Defendant while in

Virginia went to Best Buy on April 8, 2005 and purchased

some electronic equipment with the credit card given to her

by Mr. Ah Lee.

At trial, Mr. Zhihao Liu and Jin Liu testified that they

did not conspire with Bo Wei Hua. Defendant Hua testified

in her own defense and Counsel for Defendant Hua sought to

elicit testimony from Defendant Hua on her defense of

duress and coercion. The Government moved orally and in

written motion for the Court to preclude testimony regarding

coercion and testimony. (6/15/05 Tr. 147-182; 6/16/05 Tr. 4-

14). Attomey for the Defendant Hua proffered to the Court

that the testimony of Defendant Hua would -be that she

borrowed $10,000.00 from Mr. Ah Lee to be repaid in three

to four months. However, Mr. Ah Lee demanded his money

and threatened physical harm to Defendant and her daughter.

(6/15/05 Tr. 148-151; 159-163). The Court granted

governments motion to preclude the duress and coercion

testimony by Defendant Hua. (6/16/05 Tr. 14).

REASONS FOR GRANTING THE WRIT

(1) The Court should grant the writ to determine

whether the 5", 6" and 14* Amendments are violated by

affirming conviction of a defendant when the defendant

was precluded from presenting evidence of her defense

which the jury could have relied on in entering a not

guilty verdict.

The Court has previously recognized that the truth is

more likely to be arrived at by hearing the testimony of all

persons of competent understanding who may seem to have

knowledge of the facts involved in a case, leaving the credit

and weight of such testimony to be determined by the jury or

by the court. Rock v. Arkansas, 483 U.S. 44; 107 S. Ct. 2705

(1987).

Under the Due Process Clause of the Fourteenth

Amendment, criminal prosecutions must comport with

prevailing notions of fundamental fairness. We have long

interpreted this standard of fairness to require that criminal

defendants be afforded a meaningful opportunity to present a

complete defense. California v. Trombetta, 467 U.S. 479;

104 S. Ct. 2528 (1984).

Several disadvantages arise when a defendant’s

fundamental right to testify and present her defense is limited

by a ruling that violates that fundamental right and deprives

her right to exercise her constitutional privilege to speak in

the unfettered exercise of her own will.

I, THE CONVICTION SHOULD BE SET ASIDE

BECAUSE OF VIOLATION OF DEFENDANT’S

RIGHT TO PRESENT EVIDENCE OF HER DEFENSE

The prejudice from limiting defendant’s testimony

relating to her defense of duress and coercion is great where

the evidence is defendant’s theory of the case and if credited

by the jury could lead to a different outcome. The trial Court

precluded the Defendant from presenting evidence of duress

and/or coercion because “it doesnot present a basis under

settled Virginia or settled Fourth Circuit law of duress or

coercion. (6/15/05 Tr. 14; 06/15/05 Tr. 162-179; 6/16/05 Tr.

4-13). "[S]tate and federal rulemakers have broad latitude

under the Constitution to establish rules excluding evidence

from criminal trials." United States v. Scheffer, 523 U.S.

303, 308, 118 S. Ct. 1261, 140 L. Ed. 2d 413 (1998); see also

Crane v. Kentucky, 476 U.S._683, 689-690, 106 S. Ct. 2142,

90 L. Ed. 2d 636 (1986); Marshall v. Lonberger, 459 U.S.

422, 438, n. 6, 103 S. Ct. 843, 74 L. Ed. 2d 646 (1983);

Chambers v. Mississippi, 410_U.S. 284, 302-303, 93 S. Ct.

1038, 35 L. Ed. 2d 297 (1973); Spencer v. Texas, 385 U.S.

554, 564, 87 S. Ct. 648, 17 L. Ed. 2d 606 (1967). This

latitude, however, has limits. "Whether rooted directly in the

Due Process Clause of the Fourteenth Amendment or in the

Compulsory Process or Confrontation clauses of the Sixth

Amendment, the Constitution guarantees criminal defendants

‘a meaningful opportunity to present a complete defense.”

Crane, supra, 476 U.S. at 690, 106 S. Ct. 2142, 90 L. Ed. 2d

636 (quoting California v. Trombetta, 467 U.S. 479, 485,

104 S. Ct. 2528, 81 L. Ed. 2d 413_(1984); citations omitted).

This right is abridged by evidence rules that "infring[e}] upon

a weighty interest of the accused" and are “‘arbitrary’ or

‘disproportionate to the purposes they are designed to serve."

Scheffer, supra, 523 U.S. at 308, 118 S. Ct. 1261, 140 L. Ed.

2d 413 (quoting Rock v. Arkansas, 483 U.S. 44, 58, 56, 107

S. Ct. 2704 (1987).

Just as a state may not apply an arbitrary hearsay rule

that abridges a defendant’s right to present witnesses in his

own defense, Chambers v. Mississippi, 410 U.S. 284, 302

(1973), a Court may not also exercise his discretion by

applying a rule of evidence that permits a defendant to take

the stand, but arbitrarily excludes material portions of her

testimony regarding her defense.

Although the right to present relevant testimony

cannot be without limitation, but he limitation to a

defendant’s right to testify may not be arbitrary or

disproportionate to the purpose they are intended to serve.

See Id. at 295. The ruling of the Court that precluded

defendant’s defense does not serve any interest in the case

but instead disposes of defendant’s defense and theory of the

case and also the right to request a jury instruction regarding

her theory of the case. Moreover, the ruling by the Court

could not assure

Duress is an affirmative defense and presents a

question of law as to whether the proffered evidence makes

out the defense. See United States v. Sarno, 24 F.3d 618, 621

(4th Cir. 1994). In order to establish a claim of duress, the

defendant must show that: (1) she acted under an immediate

threat of serious bodily injury; (2) she had a well-grounded

belief that the threat would be carried out; and (3) she had no

reasonable opportunity to avoid violating the law and the

threatened harm. See United States v. King, 879 F.2d 137,

138-39 (4th Cir. 1989). A defendant has the burden of

establishing sufficient evidence of the defense to warrant its

submission of the claim to the jury. See id. In this case, the

Court precluded testimony of coercion and duress during

Defendant Hua’s testimony based on the proffer by

Defendant’s counsel. (6/15/05 Tr. 169- 182; 6/16/05 Tr. 7-

14). Defendant was not allowed to testify as to how she was

coerced by Mr. Ah Lee to commit the crime charged in the

indictment. The preclusion of the testimony and evidence

was prejudicial to Defendant because she was unable to

testify on the important element of willful participation in the

alleged conspiracy.

The general principle is well established that a

defendant is entitled to have a jury instruction on any defense

which provides a legal defense to the charge against him and

which has some foundation in evidence, even though the

evidence may be weak, insufficient, inconsistent, or doubtful

credibility. United States v. Sielaff, 615 F.2d 402, 403 (7"

Cir. 1979), cert denied, 446 U.S. 940 (1980); United States

v. Winn, 577 F.2d 86, 90 (9™ Cir. 1978). It is also well

settled in this Circuit that “upon proper request, a defendant

is entitled to an instruction submitting to the jury any theory

of defense for which there is evidentiary foundation.” United

States v. Dornhofer, 859 F.2d 1195, 1199 (4 Cir. 1988)

cert. denied, 490 U.S. 1005 (1989). However, in this case,

the Court precluded testimony on coercion and duress, which

invariably precluded Defendant from requesting

coercion/duress instruction.

Defendant Hua testified in her own defense that she

was compelled to travel to Washington area with the credit

cards by Mr. Ah Lee. (6/16/05 Tr. 34-37). Had the Court

allowed Defendant Hua to testify to those facts supporting

her coercion and duress defense, Defendant would not have

been found guilty.

If Defendant Hua were allowed to testify on the issue

of coercion and duress, she would have presented sufficient

testimony to support each element of duress and coercion

defense.

CONCLUSION

For the foregoing reasons, this Court must grant certiorari.

i a ese

John O. Iweanoge, I

IWEANOGE LAW CENTER

1026 Monroe Street, NE

Washington, D.C. 20017

Phone: (202) 347-7026

Fax: (202) 347-7108

Email: joi @iweanogesfirm.com

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4947

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

BO WEI HUA,

Defendant - Appellant.

No. 05-5001

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

~ versus

ZHIHAO LIU,

Defendant - Appellant.

Appeals from the United States District Court for the Eastern

District of Virginia, at Alexandria. T. S. Ellis, I, District

Judge. (CR-05-193)

—

Submitted: October 11,2006 Decided: November 30, 2006

Before WILKINSON, WILLIAMS, and TRAXLER, Circuit

Judges.

Affirmed by unpublished per curiam opinion.

John O. Iweanoge, THE IWEANOGES FIRM, P.C.,

Washington, D.C.; Michael S. Nachmanoff, Acting Federal

Public Defender, Geremy C. Kamens, Assistant Federal-

Public Defender, Frances H. Pratt,Research and

1

Writing Attorney, Alexandria, Virginia, for Appellants.

Chuck Rosenberg, United States Attorney, Paul Ahem,

Special Assistant United States Attorney, Alexandria,

Virginia, for Appellee.

Unpublished opinions are not binding precedent in this

circuit. See Local Rule 36(c).

PER CURIAM:

Bo Wei Hua and Zhihao Liu appeal their jury convictions

and resulting sentences for conspiring to commit access

device fraud, in violation of 18 U.S.C. § 1029(b)(2) (2000).

We affirm.

Liu contends the district court erroneously instructed

the jury that concealment of the crime was part of the

conspiracy.This court reviews a contested jury instruction for

abuse of discretion. United States v. Park, 421 U.S. 658, 675

(1975). The judgment is not subject to reversal if, given the

full context of the trial, “the charge was not misleading and

contained an adequate statement of the law to guide the

jury’s determination.” United States _v. United Med. &

Surgical Supply Corp., 989 F.2d 1390, 1406-

07 (4th Cir. 1993) (quoting United States v. Park, 421 U.S. at

675). Because concealment of identity is central to the

objective of using fraudulent credit cards, we conclude that

the district court correctly instructed the jury that

concealment was a central part of this conspiracy. See

Grunewald v. United States, 353 U.S. 391, 399-402, 405

(1957); United States v. Rabinowitz, 56 F.3d 932,

934 (8th Cir. 1995).

Hua contends the evidence was insufficient to sustain

her conviction. This court must affirm Hua’s jury conviction

if there is substantial evidence, when viewed in the light

most favorable to the Government, to support the

2

jury’s verdict. Glasser v. United States, 315 U.S. 60, 80

(1942). In determining whether the evidence is substantial,

this court views the evidence in the light most favorable to

the government and inquires whether there is evidence

sufficient to support a finding of guilt beyond a reasonable

doubt. United States v. Burgos, 94 F.3d 849, 862 (4th Cir.

1996). In evaluating the sufficiency of the evidence, the court

does not review witness credibility and assumes the jury

resolved all contradictions of the evidence in the

government’s favor. United States v. Romer, 148 F.3d 359,

364 (4th Cir. 1998). The jury, not the reviewing court,

weighs the credibility of the evidence and resolves any

conflicts in the evidence presented, and if the evidence

supports different reasonable interpretations, the jury decides

which to believe. United States v. Murphy, 35 F.3d 143, 148

(4th Cir. 1994). Circumstantial as well as direct evidence is

considered, and the government is given the benefit of all

reasonable inferences from the facts proven to the facts

sought to be established. United States v. Tresvant, 677 F.2d

1018, 1021 (4th Cir. 1982). After careful consideration of the

record, we find the evidence sufficient to sustain Hua’s

conviction.

Finally, Hua asserts that the trial court abused its

discretion by refusing to allow her to present evidence and

instruct the jury on the defense of duress. “In order to

establish duress the defendant must show that he acted under

a reasonable fear of an imminent threat of bodily harm and

that he had no reasonable choice but to commit the illegal

act.” United States v. King, 879 F.2d 137, 139 (4th Cir.

1989) (emphasis in original) (citations omitted). However,

duress “is limited to very narrow circumstances.” Id. at 138.

Hua contends she was “‘compelled” to use fraudulent credit

cards under threat of harm to her daughter. Even assuming

Hua’s testimony is credible, as the district court noted, any

alleged threat of harm was not imminent. See, e.g., Buczek v.

Continental Cas. Ins. Co., 378 F.3d 284, 291 (3d Cir.

3

2004) (employing dictionary definitions of “ready to take

place; near at hand” and “likely to occur at any moment,

impending”)

(citations omitted); United States v. Tokash, 282 F.3d 962,

970 (7th Cir. 2002) (noting that “future” or “later” and

“jmminent” are opposites). Furthermore, Hua possessed the .

reasonable alternative of reporting the threat to local or

federal authorities. Therefore, we hold that the district court

did not err in refusing the duress instruction.

Accordingly, we affirm Hua’s and Liu’s convictions

and

sentences. We dispense with oral argument because the facts

and legal contentions are adequately presented in the

materials before the court and argument would not aid the

decisional process.

AFFIRMED