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United States v. An-Lo

decided: June 27, 1988.

UNITED STATES OF AMERICA, APPELLEE,
v.
CHANG AN-LO, A/K/A "WHITE WOLF", SHIANG BAO-JING, A/K/A "CRIPPLE", GEORGE QI LU, PETER YANG, LAM TSO, A/K/A "SAMMY LAM", JOHN KIRKPATRICK, AH MIN, JACK MA, A/K/A "JACK LI", TUNG KUEI-SEN AND CHEN CHIH-YI, A/K/A "YELLOW BIRD", DEFENDANTS-APPELLANTS



Appeals from judgments of conviction entered after a jury trial in the United States District Court for the Southern District of New York, Robert L. Carter, Judge. Affirmed, but remanded for compliance with Fed. R. Crim. P. 32(c)(3)(D) with respect to defendants-appellants George Qi Lu and Kuei-Sen.

Winter and Mahoney, Circuit Judges, and Stewart, District Judge.*fn*

Author: Mahoney

MAHONEY, Circuit Judge:

Defendants-appellants appeal from judgments entered upon their convictions by a jury after an eight week trial in the United States District Court for the Southern District of New York, Robert L. Carter, Judge. They were charged in a fourteen count indictment. Count one alleged a RICO conspiracy to conduct the affairs of United Bamboo, a criminal enterprise which originated in Taiwan approximately thirty years ago and is active in the United States, through a pattern of racketeering activity involving the murder of journalist Henry Liu in Daly City, California on October 15, 1984, various narcotics conspiracies and distributions, and interstate travel in aid of racketeering. Count two alleged the conduct of that enterprise's affairs as aforesaid. Counts three through ten alleged various narcotics conspiracies and distributions. Count eleven charged interstate travel in aid of racketeering, counts twelve and thirteen charged illegal transportation and receipt of firearms in interstate commerce, and count fourteen charged a conspiracy to counterfeit a United States passport. All defendants-appellants were charged with and convicted of one or more crimes, and sentenced to terms ranging from twenty-five years for Lam Tso to time served of one year for Peter Yang.

Appellants raise numerous issues on appeal. We affirm, except that we remand as to defendants-appellants George Qi Lu and Tung Kuei-Sen for compliance with Fed. R. Crim. P. 32(c)(3)(D). We consider herein defendants-appellants' contentions concerning the sufficiency of the evidence as to certain defendants, the refusal of the trial judge to grant certain defendants' motions for severance which allegedly resulted in an unfair trial, the admissibility of a duplicate foreign business record when the supporting witness had never seen the original, the propriety of the trial judge's ex parte examination of certain jurors concerning one juror's reading a newspaper report concerning the case prior to allowing defense counsel the opportunity to interview the jurors, whether the alleged inconsistency between verdicts on RICO counts and non-RICO counts charging identical conduct requires reversal of conviction, and the conduct of the sentencing proceedings with respect to defendants George Qi Lu and Tung Kuei-Sen.

I. Background

A. The United Bamboo.

This case involves the activities of a Chinese organized crime syndicate, the United Bamboo. The United Bamboo was founded in Taiwan approximately three decades ago. Over the years, the enterprise has extended its activities to Hong Kong, Japan, the Philippines, Singapore, and most recently the United States. In this country, the United Bamboo has established its operations in Houston, Los Angeles, San Francisco and New York. The members and associates of the organization in the United States established the United Bamboo's presence here through involvement in various illegal activities such as prostitution, illegal gambling, assisting fugitives from justice, extortion, kidnapping, murder, and trafficking in guns and narcotics.

The United Bamboo's international leader, Chen Chi-Li, came to Los Angeles in September, 1984 for a series of meetings with members and associates of the United Bamboo, including the defendant Chang An-Lo, the leader of the United Bamboo in the United States; the defendant Chen Chih-Yi, the financial leader of the organization in the United States; and the defendant Tung Kuei-Sen, among others, to discuss plans that would expand the group's activities here.

To demonstrate its strength and capability, the United Bamboo planned to murder Henry Liu, a Taiwanese journalist who had written critically of the Taiwanese government. After careful planning by Chen Chi-Li and his associates, one Wu Tun and defendant Tung Kuei-Sen murdered Henry Liu during the early morning hours of October 15, 1984 at Liu's home in Daly City, California. Four days after the murder, Chen Chi-Li, Wu Tun and Tung Kuei-Sen fled the United States and returned to Taiwan with the help of Chen Chih-Yi.

As a result of the shock and outcry over Henry Liu's murder, Taiwan began the "I Ching," a crackdown on the underworld in Taiwan. The "I Ching" was successful in arresting numerous Chinese underworld figures, including Chen Chih-Yi. As a result of the disruption of the United Bamboo's activities caused by the "I Ching," the organization sought to raise money in support of members and associates who had been arrested and further sought to aid fugitives who had left Taiwan.

In furtherance of United Bamboo's expansion plan, Chang An-Lo contacted one Steven Wong, a United Bamboo member, numerous times and asked him to provide specific information about the street gangs and their criminal activity in New York's Chinatown. Chang An-Lo intended to use that information to take over and profit from criminal activities in Chinatown.

In March, 1985, however, Steven Wong began to work in an undercover capacity for the New York City Police Department, and thereafter for the Federal Bureau of Investigation. After providing the authorities with information pertaining to the murder of Henry Liu and the United Bamboo's proposed activities in Chinatown, Wong proceeded to record numerous conversations with various defendants during the course of a five month investigation, some hundred of which were used as evidence at trial. The investigation revealed separate but related schemes to acquire and distribute narcotics in order to raise money for United Bamboo.

B. The Heroin-Cocaine Conspiracy.

The first plan involved a conspiracy to obtain and distribute heroin and cocaine between April and September, 1985. Defendants Chang An-Lo, Shiang Bao-Jing, George Qi Lu, Lam Tso and Tony Wong*fn1 participated in this conspiracy, which, while ultimately unsuccessful, resulted in the sale of one pound of heroin and the distribution of three additional samples of heroin to undercover law enforcement officers.

The government proved the existence of the conspiracy through the surveillance of numerous meetings between certain of the defendants and Steven Wong (and other undercover officers) during the period in question. At those meetings, many of which took place in April and May, 1985, matters relating to the attempted establishment of a substantial narcotics trade were revealed. Chang An-Lo made several statements about his "connections" in the Golden Triangle, an area in Southeast Asia known for heroin production. He also told Wong of his plans to "take over" Chinatown. Moreover, Chang gave Wong express authority to arrange narcotics transactions with the defendant Lam Tso. Throughout May and June, 1985, Lam Tso, who was based in New York, continuously attempted to secure a source for heroin through the help of defendant George Qi Lu. In this connection, Lam Tso told Steven Wong on May 24, 1985, that George Qi Lu would be meeting a heroin source in Los Angeles and arranging narcotics transactions on behalf of Lam Tso and Steven Wong. In addition, George Qi Lu arranged on one occasion for Chang An-Lo to meet with Lu's heroin source from the Golden Triangle.

On June 6, 1985, Chang An-Lo was arrested on charges of kidnapping and extortion.*fn2 Defendant Shiang Bao-Jing then became the leader of the United Bamboo in Los Angeles, and continued to carry out Chang's plan for the organization's development.*fn3 On June 19, 1985, at a meeting in Los Angeles with Steven Wong, two undercover officers and defendant George Qi Lu, Shiang Bao-Jing told of a ten point plan that he had designed to carry out the development of United Bamboo in the United States that Chang had initiated. One of the elements of the plan was narcotics trafficking. In that connection, on June 20, 1985, Shiang discussed available sources for narcotics.

On the evening of June 19, 1985, Steven Wong discussed narcotics sources with defendant George Qi Lu, as well. Lu told Wong that he too had available sources for heroin. Lu described how he had brought a particular source to New York to meet with Lam Tso on two occasions in order to arrange a drug deal. Concurrently, over the next several days, Shiang indicated his awareness of his associates' efforts to bring about narcotics sales, and began to pursue the opportunities available to secure narcotics by personally dealing with Lu's source, despite Shiang's distrust of that source.

Upon his return to New York, Wong kept in touch with Shiang Bao-Jing regarding the proposed narcotics transactions. On July 15, 1985, Shiang advised Wong that he would set up meetings for Wong with narcotics sources when Wong next returned to the west coast area, and that samples of both heroin and cocaine would be readily available. On July 20, 1985, Shiang Bao-Jing actually brought a narcotics source to Las Vegas to meet with other members of the conspiracy, but that meeting went awry.

The defendants' efforts to obtain heroin and cocaine from their contact from the Golden Triangle never came to fruition. However, Lam Tso was able to make arrangements through other sources, which resulted in a sale of 354 grams of heroin for $48,000 by Tony Wong and Lam Tso to Steven Wong and two undercover law enforcement associates on July 26 and 27, 1985. Further, Lam Tso delivered two more samples of heroin to Steven Wong on July 30, and another sample on August 15, 1985.

C. The Marijuana-Cocaine Conspiracy.

The second conspiracy involved the efforts of defendants Chen Chih-Yi, Jack Ma, John Kirkpatrick, Lam Tso and Tony Wong to distribute one hundred fifty pounds of marijuana between June and September, 1985. In addition, there was a plan to distribute cocaine, which resulted in Chen Chih-Yi supplying undercover officers with a sample of the drug. Once again, the government was able to prove the conspiracy largely through the efforts of Steven Wong and the other undercover officers.

On June 25, 1985, Steven Wong met with Chen Chih-Yi in New York. At that meeting, among other things, Chen told Steven Wong of his capabilities of dealing in marijuana and cocaine. On June 26, 1985, Steven Wong presented Chen with a $5,000 deposit for one hundred pounds of marijuana that was eventually to be shipped from Texas to New York City. On July 1, 1985, Steven Wong, along with two undercover associates, went to Texas at Chen's invitation, where they were introduced to Chen's marijuana sources. Wong and his colleagues also met defendant Jack Ma for the first time during that trip, as well as other United Bamboo members. On July 2, 1985, Chen supplied Steven Wong with samples of marijuana and cocaine.

On July 31, 1985, Steven Wong wired Chen a further partial payment for the marijuana. In addition, Chen thereafter agreed to give the defendant Lam Tso an extra fifty pounds of marijuana on consignment, as well as six firearms. On August 7, 1985, the defendant John Kirkpatrick arrived by car in New York with the marijuana and firearms. After contacting Chen, who had been dining with Jack Ma, Lam Tso, Tony Wong, Steven Wong and Steven Wong's undercover associates, Kirkpatrick waited for them at a designated site. The parties then proceeded to a secluded area on the west side of Manhattan, where one of the undercover agents gave Jack Ma $25,000 in exchange for the marijuana and guns.

D. The Conspiracy to Import and Distribute Three Hundred Kilograms of Heroin.

The third phase of the United Bamboo plan involved a conspiracy to import and distribute three hundred kilograms of heroin into the United States in which defendants Chen Chih-Yi, Tung Kuei-Sen, Jack Ma, Peter Yang ...


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