Ping v. United States - Opposition

No. 07-1453

In the Supreme Court of the United States

CHENG CHUI PING, AKA SISTER PING, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

GREGORY G. GARRE
Acting Solicitor General
Counsel of Record
MATTHEW W. FRIEDRICH
Acting Assistant Attorney
General
JOEL M. GERSHOWITZ
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals correctly held that petitioner's forfeited claim that the district court erred in instructing the jury on the "specified unlawful ac tivity" element of the international promotional money laundering statute, 18 U.S.C. 1956(a)(2)(A), was not reversible plain error.

In the Supreme Court of the United States

No. 07-1453

CHENG CHUI PING, AKA SISTER PING, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The summary order of the court of appeals (Pet. App. 1a-7a) is unreported but is available at 2007 WL 4102736.

JURISDICTION

The judgment of the court of appeals was entered on November 19, 2007. A petition for rehearing was denied on February 11, 2008 (Pet. App. 8a-9a). The petition for a writ of certiorari was filed on May 12, 2008 (Monday). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

After a jury trial in the United States District Court for the Southern District of New York, petitioner was convicted of conspiracy to engage in alien smuggling, trafficking in ransom proceeds, hostage taking, and money laundering, in violation of 18 U.S.C. 371; money laundering, in violation of 18 U.S.C. 1956(a)(2)(A); and trafficking in ransom proceeds, in violation of 18 U.S.C. 1202. Pet. App. 3a. Petitioner was sentenced to aggre gate terms of 420 months of imprisonment, to be fol lowed by a three-year term of supervised release, and was fined $250,000. Gov't C.A. Br. 3. The court of ap peals affirmed. Pet. App. 1a-7a.

1. Petitioner was the leader of a large and profitable alien smuggling operation. Petitioner and her associates would recruit alien "customers" in China, obtain false travel documents for them, transport them to the United States along dangerous routes and in inhumane condi tions, and then hold them hostage in the United States until their smuggling fees were paid. Gov't C.A. Br. 3-4.

The operation began in the early 1980s, when peti tioner would smuggle villagers from China's Fujian Pro vince into the United States in exchange for thousands of dollars. By the early 1990s, petitioner was smuggling thousands of illegal aliens into the United States, often hundreds at a time on cargo ships. Petitioner operated her business out of a small storefront in Chinatown in New York City. From there, petitioner also operated a money-transmitting business through which she laun dered smuggling proceeds for herself and other alien smugglers and trafficked in ransom money. Petitioner had "employees" in China, Thailand, Hong Kong, Guate mala, Mexico, and Kenya, among other countries. Peti tioner also enlisted the help of the Fuk Ching Gang, a violent criminal enterprise responsible for murders, rob beries, and other crimes. Gang members offloaded ali ens from arriving cargo ships. On one occasion in 1993, the gang members failed to meet a cargo ship (the Gol den Venture) on which petitioner and other alien smug glers had transported a group of aliens to New York. At the smugglers' instruction, the captain ran the ship aground and instructed the passengers to wade or swim to shore. Dozens of aliens did so, and ten of them drowned. On another occasion in approximately 1998, 14 aliens being smuggled by petitioner drowned off the coast of Guatemala. Gov't C.A. Br. 4-12.

2. On June 6, 2000, a federal grand jury in the Southern District of New York filed a seven-count su perseding indictment charging petitioner with conspir acy to engage in alien smuggling, trafficking in ransom proceeds, hostage taking, and money laundering, in vio lation of 18 U.S.C. 371; two counts of hostage taking, in violation of 18 U.S.C. 1203(a); two counts of money laun dering, in violation of 18 U.S.C. 1956(a)(2)(A); operating an illegal money transmitting business, in violation of 18 U.S.C. 1960(a); and trafficking in ransom proceeds, in violation of 18 U.S.C. 1202. Petitioner was extradited from Hong Kong on five of those counts (excluding one count of hostage taking and the single count of operating an illegal money transmitting business, which were not submitted to the Hong Kong magistrate for con sideration). Gov't C.A. Br. 1-2.

a. Count 3 of the indictment charged petitioner with money laundering in connection with petitioner's trans mittal of $30,000 from the United States to Thailand in March 1991 on behalf of Weng Yu Hui (Weng). Gov't C.A. Br. 17.1 The indictment alleged that petitioner transmitted the funds "with the intent to promote the carrying on of specified unlawful activity, to wit, the smuggling by airplane of four aliens from the PRC to New York where they would be held hostage until money was paid." Gov't C.A. App. A37-A38.

b. The evidence at trial in support of Count 3 established that in 1984, Weng had hired petitioner to smuggle him to the United States from China for an $18,000 fee. Petitioner held Weng hostage, first in Gua temala and then in New York, until Weng's and his brother-in-law's smuggling fees were paid or guaran teed. Weng and petitioner then became friends. Gov't C.A. Br. 5-6.

In 1991, Weng decided to enter the alien smuggling business. His first operation involved smuggling four individuals from Thailand into the United States. To finance the operation, Weng's associates in Thailand needed $30,000. Weng brought $30,000 in cash to peti tioner's store. Weng gave the cash, passport numbers, and a cell phone contact number to petitioner and told petitioner that the money was needed in Thailand in a few days. After Weng handed petitioner the cash, peti tioner remarked, "[N]ow you're my competitor." Weng successfully smuggled the four individuals into the Unit ed States. Weng brought them to petitioner's restau rant, pointed them out to petitioner, and remarked that his operation had been successful. Petitioner had no comment. Gov't C.A. Br. 5-7, 34 (quoting 5/16/05 Tr. 121-122).

c. In instructing the jury on Count 3, the district court read the narrative description of the specified un lawful activity that was contained in the indictment. The court then instructed the jury that, in order to convict petitioner of the charge, it was required to find, among other things, that "the defendant acted with the intent to promote the carrying on of specified unlawful activity, namely the acts of alien smuggling or hostage taking specified in [Count 3]." Gov't C.A. Br. 19-20. The court also instructed the jury that it was required to be unani mous as to which specified unlawful activity (i.e., alien smuggling or hostage taking) it found. Id. at 20. The district court did not further define "alien smuggling" in that instruction. In connection with the conspiracy charge, however, the court informed the jury that alien smuggling has three elements: (1) the defendant "brought an alien to the United States, in any manner whatsoever, and did so at a place that was not a desig nated port of entry;" (2) "the defendant knew that the person brought to the United States was an alien;" and (3) "the defendant acted wil[l]fully." Ibid.

3. On appeal, petitioner contended, inter alia, that the district court constructively amended the indictment by failing to instruct the jury that, in order to constitute a "specified unlawful activity" for purposes of the money laundering statute, alien smuggling must be "committ- ed for the purpose of financial gain." Pet. C.A. Br. 27 (quoting 18 U.S.C. 1961(1) (Supp. V 2005)). The court of appeals affirmed. Pet. App. 1a-7a.

a. The international money laundering statute, 18 U.S.C. 1956(a)(2)(A), makes it a crime to "transport[], transmit[], or transfer[] * * * a monetary instrument or funds from a place in the United States to or through a place outside the United States * * * with the intent to promote the carrying on of specified unlawful activ ity." Section 1956(c)(7)(A) defines the term "specified unlawful activity" to include, inter alia, "any act or ac tivity constituting an offense listed in" 18 U.S.C. 1961(1) (Supp. V 2005), which is the definition of "racketeering activity" for purposes of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1961 et seq. RICO defines "racketeering activity" to include any act indictable under certain provisions of the Immi gration and Nationality Act (including alien smuggling) if the act "was committed for the purpose of financial gain." 18 U.S.C. 1961(1)(F) (Supp. V 2005).

b. The court of appeals observed that petitioner had failed to object at trial to the district court's omission of the "financial gain" component of alien smuggling as a specified unlawful activity. Pet. App. 3a-4a. The court first rejected petitioner's claim that the omission from the jury charge resulted in a constructive amendment of the indictment. Id. at 4a. The court noted that the dis trict court had instructed the jury that in order to con vict petitioner of money laundering, it was required to find that the evidence proved the particular specified unlawful activity that was charged in the text of the money laundering count. Ibid. The court held that, al though the indictment did not allege the "purpose of financial gain" requirement "in so many words," that re quirement "was consistent with, and implied by" the allegation in the indictment that the four aliens being smuggled would be held hostage until money was paid. 2007 WL 4102736, at *1.2 The court then rejected peti tioner's constructive amendment claim because the court "discern[ed] no risk that [petitioner] was either con victed of an offense that was not charged in the indict ment or that she lacked sufficient notice to prepare for trial." Pet. App. 4a.

In the alternative, the court construed petitioner's claim of error as a challenge to the jury instruction. Pet. App. 5a. Because petitioner failed to object to the money laundering instruction on the ground that she asserted on appeal, the court concluded that the plain- error standard of review applied. Ibid. The court ob served that "overwhelming evidence" established that petitioner knew that the alien smuggling activities at issue "were engaged in for purposes of profit" and held that "any error in the charge was not only not plain, it was harmless." Ibid.

ARGUMENT

Petitioner contends (Pet. 16-23) that the court of ap peals erred in its application of the plain-error standard to petitioner's forfeited claim of instructional error. Petitioner asserts (Pet. 18) that the instructional error in this case "create[d] an alternative, unconstitutional theory" of conviction on the money laundering count that requires reversal. Petitioner also contends (Pet. 18) that there is a conflict among the courts of appeals on "the standard of review to be used where an omission or misdescription of an element of the offense permits a conviction on an alternative invalid theory." Further review is unwarranted. The court of appeals did not err, and the arguments for further review that petitioner raises in this Court were neither raised in nor addressed by the court below. It is therefore not necessary to hold this case for Hedgpeth v. Pulido, cert. granted, No. 07-544 (oral argument scheduled for Oct. 15, 2008).

1. Petitioner concedes (Pet. 13, 19-23) that she did not object at trial to the omission of the "financial gain" requirement from the jury instruction on money laun dering premised on the specified unlawful activity of alien smuggling and that the plain-error standard ap plies. In Johnson v. United States, 520 U.S. 461, 466- 470 (1997), this Court applied the plain-error analysis of United States v. Olano, 507 U.S. 725 (1993), to a for feited claim that the district court erroneously failed to submit the materiality element of perjury to the jury. The Court upheld the perjury conviction, finding that the evidence of materiality was "overwhelming" and the error therefore did "not meet the final requirement of Olano," i.e., that the forfeited error "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." 520 U.S. at 469-470 (citation omitted). The Court did not decide whether the failure to submit an offense element to the jury is "structural" error in the sense that it necessarily affects substantial rights and, if the claim is preserved, requires automatic rever sal. Id. at 468-469. In Neder v. United States, 527 U.S. 1, 8-15 (1999), the Court decided the issue left open in Johnson and held that the omission of an offense ele ment from a jury instruction is subject to harmless-er ror review. The Court held that the error at issue in Neder-the omission of the materiality element from the jury instruction on the offense of tax fraud-was harm less beyond a reasonable doubt because the evidence of materiality was "uncontested and supported by over whelming evidence." Id. at 17.

The court of appeals correctly applied the plain-error standard of Olano to petitioner's forfeited claim and did not err by upholding petitioner's money laundering con viction under that standard. Although it was error to exclude the "for financial gain" requirement from the jury instruction, it is not clear or obvious that the dis trict court's instructions failed to apprise the jury of that requirement nonetheless. Count 3 charged peti tioner with transferring money to Thailand with the in tent to promote the smuggling of aliens from China to New York "where [the aliens] would be held hostage until money was paid." Gov't C.A. App. A37-A38. The district court read this description of the charged speci fied unlawful activity to the jury. Id. at A718. And the court instructed the jury that, in order to convict peti tioner, it was required to find "the acts of alien smug gling or hostage taking specified in" the indictment. Id. at A719. As the court of appeals observed in rejecting petitioner's constructive amendment claim, the jury in structions, viewed as a whole, required the jury to find that Weng's alien smuggling venture involved the pay ment of money and thus was "for financial gain."

Moreover, as the court of appeals held, petitioner cannot carry her burden under the plain-error standard of demonstrating that the instructional omission af fected her substantial rights or "seriously affect[ed] the fairness, integrity or public reputation" of her trial. Johnson, 520 U.S. at 469-470 (citation omitted). The court correctly found (Pet. App. 5a), in a fact-bound rul ing that does not warrant this Court's review, that the evidence that petitioner "knew [Weng's] smuggling ac tivities were engaged in for purposes of profit" was "overwhelming."

While petitioner's current theory (Pet. 22) is that the jury might have concluded that petitioner believed We ng was smuggling his own relatives, the evidence show ed that the smuggling mission involving the four aliens was the beginning of Weng's ongoing business enter prise with petitioner, which later resulted in both of their "customers" being stranded off the coast of New York on the Golden Venture. Gov't C.A. Br. 8-11. Peti tioner's knowledge of the "financial gain" motive of Weng's smuggling activities is best demonstrated by her response to receiving Weng's $30,000 for transmittal to Thailand: she stated that Weng was "now [her] competi tor." Id. at 6 (quoting 5/16/05 Tr. 121-122). As the court of appeals observed, the trial record is "replete with evidence that these smuggling rings were operated as commercial enterprises" and that petitioner knew of that fact. Pet. App. 6a. Indeed, petitioner's defense to the money laundering charge at trial was not that Weng's alien smuggling venture was not for financial gain, but that she lacked knowledge that Weng was smuggling aliens at all. Gov't C.A. Br. 33. The court of appeals did not err in finding that the evidence of peti tioner's knowledge of Weng's profit motive was uncon tested and overwhelming and that the district court's omission of the "for financial gain" requirement from the jury instruction was therefore not reversible plain error.

2. Relying on this Court's decision in Stromberg v. California, 283 U.S. 359 (1931), petitioner contends (Pet. 18-21) that the district court's jury instruction "created an alternative improper theory of conviction" that requires reversal because it is "impossible to ascer tain whether [petitioner] has been punished for non- criminal conduct." Petitioner further contends (Pet. 18- 19) that there is a conflict among the courts of appeals concerning the standard of review that applies "where an omission or misdescription of an element of the of fense permits a conviction on an alternative invalid the ory."

In Hedgpeth v. Pulido, cert. granted, No. 07-544 (oral argument scheduled for Oct. 15, 2008), the question presented is whether the Ninth Circuit erred in granting habeas relief on the ground that the submission of two alternative theories of guilt to the jury, one of which was legally erroneous, constituted structural error. Al though petitioner's arguments for further review impli

cate the underlying legal issue presented in Hedgpeth, this case need not be held pending the outcome of that case. First, this case arises in the federal plain-error context because petitioner did not raise her current claim in the district court. Hedgpeth arises in federal habeas review under 28 U.S.C. 2254(d), and the resolu tion of that issue raises distinct questions from applica tion of federal plain-error standards. For example, as Johnson establishes, when the plain-error standard ap plies, the characterization of an error as "structural" does not warrant relief unless the final requirement of Olano also is satisfied. Johnson, 520 U.S. at 468-470. Second, petitioner did not cite Stromberg in the court of appeals, nor did she argue (Pet. 18) that the district court's jury instruction created "an alternative, uncon stitutional theory," which therefore was "qualitatively different from erroneous instructions which merely omit or misdescribe an element." Because the question on which petitioner seeks the Court's review was not pre sented to or decided by the court of appeals, it is not properly before this Court.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

GREGORY G. GARRE
Acting Solicitor General
MATTHEW W. FRIEDRICH
Acting Assistant Attorney
General
JOEL M. GERSHOWITZ
Attorney

SEPTEMBER 2008

1 The 1991 money laundering count was originally Count 4 in the superseding indictment. It was subsequently renumbered as Count 3. Gov't C.A. Br. 2.

2 The reproduction of the court of appeals' opinion in petitioner's appendix (at 4a) omits some of the text. We therefore cite to this portion of the opinion as it appears in Westlaw.