United States v. Guang Ju Lin

SUMMARY ORDER Guang Ju Lin appeals a December 8, 2011 judgment of the District Court convicting him, after a fifteen-day jury trial, of one count of racketeering, in violation of 18 U.S.C. § 1962(c), and one count of racketeering conspiracy, in violation of 18 U.S.C. § 1962(d), and sentencing him principally to two life sentences to run concurrently. We assume familiarity with the underlying facts and procedural history of this case. BACKGROUND On August 4, 2009, a grand jury returned an indictment charging Lin and a co-defendant, Yudi Liu, in one count, with murdering Daniel Cabezas in aid of racketeering. On December 15, 2010, a grand jury returned a superseding indictment, termed the “SI Indictment,” charging Lin and Liu in three counts with (1) substantive racketeering; (2) racketeering conspiracy; and (3) the murder of Cabezas in aid of racketeering. In support of the substantive racketeering charge, the SI Indictment included six specific predicate acts: (1) conspiracy to murder and murder of Daniel Cabezas; (2) conspiracy to murder and attempted murder of Jian G. Liu; (3) extortion conspiracy relating to the extortion of bus company operators; (4) operating illegal gambling businesses; (5) narcotics (ecstasy) trafficking; and (6) robbery conspiracy. On February 3, 2011, the District Court held a pretrial conference and set trial for June 20, 2011. Twenty-seven days prior to the scheduled start of trial, on May 24, 2011, a grand jury returned another superseding indictment, termed the “S3 Indictment.” 1 The S3 Indictment added an additional predicate act in support of the substantive racketeering charge: the conspiracy to murder and murder of Xui Kang Xiao, who *12 had a series of personal disputes with one of Lin’s associates. On June 10, 2011, Lin moved to strike the Xiao murder from the S3 Indictment or to exclude all evidence relating to the Xiao murder. The District Court denied Lin’s motion on the record and in open court on June 17, 2011. Lin’s trial proceeded as scheduled on June 20, 2011. At trial, the District Court admitted into evidence ten telephone calls between Lin and two associates identified by the Government as members of his criminal enterprise that were recorded while Lin was incarcerated and awaiting trial at the Metropolitan Correctional Center (“MCC”). The Government offered the calls as evidence of the continued operation of Lin’s criminal enterprise. On July 18, 2011, at the conclusion of trial, the jury found Lin guilty on Count One (substantive racketeering) and Count Two (racketeering conspiracy), and acquitted Lin on Count Three (the murder of Daniel Cabezas). Under Count One, the jury found that the Government had proved four of the seven racketeering acts beyond a reasonable doubt: (1) the attempted murder of Jian G. Liu; (2) operation of illegal gambling businesses; (3) narcotics trafficking; and (4) the murder of Xui Kang Xiao. On December 7, 2011, the District Court sentenced Lin to two life sentences, to run concurrently. DISCUSSION Lin now appeals his judgment of conviction on two grounds. First, he contends that the District Court erred in failing to strike that portion of the S3 Indictment, or exclude all evidence, relating to the Xiao murder. Second, he argues that the District Court improperly admitted the MCC calls. A. The S3 Indictment Lin argues that the addition of the Xiao murder as a racketeering act less than one month before the scheduled start of trial was unfairly prejudicial, and that the District Court should therefore have stricken that portion of the S3 Indictment. Lin claims that the Government should not be permitted to tack on “substantive charges” at such a late hour. Lin identifies no authority for the proposition that new “substantive charges” should be stricken when they are added less than a month before trial, and we decline to craft such a rule now. Certainly, we have expressed some concern over potential prejudice of a superseding indictment returned shortly before trial. See United States v. Mulder, 273 F.3d 91, 99 (2d Cir.2001); United States v. Grossman, 843 F.2d 78, 84 (2d Cir.1988). Notably, however, Lin has made no serious claim, much less any showing, of bad faith or dilatory motive on the part of the Government, c f. United States v. Kelly, 45 F.3d 45, 48 (2d Cir.1995) (excluding the time between the filing of a second superseding indictment and the defendant’s arraignment on that superseding indictment from the speedy trial clock, absent bad faith or dilatory motive), nor did Lin attempt to cure potential prejudice by moving for a reasonable continuance or any other remedy short of striking the relevant portion of the indictment, see Mulder, 273 F.3d at 99 (holding that defendants could not show prejudice after declining additional time to prepare for trial). We have never held that an indictment should be dismissed in such a situation and we do not do so now. See United States v. Skinner, 946 F.2d 176, 178 (2d Cir.1991) (identifying “no legal authority for the proposition that the district court should ... dismiss[ ] the su-perceding indictment” when returned shortly before trial); see also United States v. Stewart, 590 F.3d 93, 122 (2d Cir.2009) (“The decision as to whether to *13 prosecute generally rests within the broad discretion of the prosecutor, and a prosecutor’s pretrial charging decision is presumed legitimate.” (internal alteration and quotations marks omitted)). To the extent that Lin relies on Federal Rule of Evidence 403 2 to argue that evidence relating to the Xiao murder should have been excluded as unfairly prejudicial, we review the District Court’s admission of the evidence for abuse of discretion. United States v. Al Kassar, 660 F.3d 108, 123 (2d Cir.2011); see In re Sims, 534 F.3d 117, 132 (2d Cir.2008) (A district court abuses its discretion if it “base[s] its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or render[s] a decision that cannot be located within the range of permissible decisions.” (internal citation and quotation marks omitted)). Lin claims that the evidence was unfairly prejudicial solely on the ground that he had a limited time to prepare his response to it. Inasmuch as he did have a month to prepare and did not make any request, such as for a reasonable continuance, which might have eased his burden, we cannot say that the District Court abused its discretion in admitting the evidence. In sum, while a continuance — which was not sought by Lin — was arguably in the discretion of the District Court, we see no reason, in the circumstances presented here, that the District Court should have dismissed the relevant portion of the S3 Indictment or excluded relevant evidence. B. The MCC Calls Lin next argues that the District Court erred in admitting the MCC calls. As noted, we review the District Court’s evidentiary rulings for abuse of discretion. Id. In his opening brief, Lin contends that the calls were improperly admitted pursuant to the coconspirator exception to the hearsay rule under Federal Rule of Evidence 801(d)(2)(E). 3 Def.’s Br. 25. It is clear from the record, however, that the District Court in fact admitted the statements made by Lin on the calls as party admissions, under Federal Rule of Evidence 801(d)(2)(A), 4 and the statements made by other parties on the calls as necessary context and not for their truth. Joint App’x 294. In his reply brief, Lin argues that the calls were improperly admitted under Rule 801(d)(2)(A) because he “makes no substantive statements [on the calls] whatsoever.” Def.’s Reply Br. 6. This argument is irrelevant. The question under Rule 801(d)(2)(A) is simply whether the District Court abused its discretion in finding that the statements were not hearsay because they were made by a party opponent and offered against the opposing party. Lin does not contest the District Court’s conclusion on this issue — nor would he prevail on such a claim. Finally, Lin argues that the District Court should have excluded the statements as unfairly prejudicial under Rule 403. In sum, Lin has failed to make any demon *14 stration of unfair prejudice sufficient to demonstrate that the District Court abused its discretion. CONCLUSION 5 We have reviewed the record and the parties’ arguments on appeal, and for the reasons stated above we AFFIRM the December 8, 2011 judgment of the District Court. Footnotes [1] The "S2 Information” was filed on March 11, 2011, and pertained only to Lin’s co-defendant, Yudi Liu, who pleaded guilty to one count of attempted murder in aid of racketeering activity. [2] In full. Rule 403 reads: "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” [3] In relevant part, Rule 801(d)(2)(E) reads: "A statement that meets the following conditions is not hearsay: ... The statement is offered against an opposing party and ... was made by the party's coconspirator during and in furtherance of the conspiracy.” [4] In relevant part, Rule 801(d)(2)(A) reads: “A statement that meets the following conditions is not hearsay: ... The statement is offered against an opposing party and ... was made by the party in an individual or representative capacity.” [5] We note, with appreciation and thanks, the service of defense counsel, in the District Court as well as before us, by appointment under the Criminal Justice Act.