Opinion
No. 06-1996-cr.
November 19, 2007.
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
For Defendant-Appellant: JAY GOLBERG (Scott B. Tulman, Jared M. Lefkowitz, Susan G. Papano, on the brief) New York, NY.
For Appellee: LESLIE C. BROWN, Assistant United States Attorney (Diane Gujarati, Assistant United States Attorney, on the brief) for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, NY.
Defendant Cheng Chui Ping ("Cheng") appeals from a judgment of conviction in the United States District Court for the Southern District of New York (Mukasey, J.).
Following a four-week jury trial, Cheng was convicted of (1) conspiracy to engage in alien smuggling, trafficking in ransom proceeds, hostage taking, and money laundering, in violation of 18 U.S.C. § 371 ("Count One"), (2) money laundering, in violation of 18 U.S.C. 1956(a)(2)(A) ("Count Three"), and (3) trafficking in ransom proceeds, in violation of 18 U.S.C. § 1202 ("Count Five"). On appeal, she challenges the verdict only with respect to Counts Three and Five, raising various objections. We assume the parties' familiarity with the underlying facts and procedural history in this case.
As to Count Three, Cheng principally contends that the operative indictment filed against her was "constructively amended" because (due in part to her failure to object) the charge given to the jury on this count did not instruct that where a conviction for money laundering is based on the specified unlawful activity of alien smuggling, such smuggling must be engaged in for the purpose of "financial gain." See 18 U.S.C. §§ 1956(c)(7)(A) 1961(1)(F).
We have observed, in a related context, that the "focal point of the [money laundering] statute is the laundering process, not the underlying unlawful conduct that soiled the money." United States v. Stavroulakis, 952 F.2d 686, 691 (2d Cir. 1992). In this case, the jury was charged that it may only convict Cheng of money laundering if it found the evidence proved the specific unlawful activity charged in Count Three of the indictment, which specified the amount, date, and location of the transfer, and alleged that the purpose of the funds transfer was to promote the illegal activity "smuggling by airplane of four aliens." The requisite purpose of financial gain, though not alleged in so many words in the indictment, was consistent with, and implied by, its allegations regarding the fees demanded from the aliens. See id. at 693 (stating that we read an indictment "to include facts which are necessarily implied by the specific allegations made") (quotation marks omitted). Accordingly, we must reject the claim of a constructive amendment because we discern no risk that Cheng was either convicted of an offense that was not charged in the indictment or that she lacked sufficient notice to prepare for trial. See United States v. Patino, 962 F.2d 263, 266 (2d Cir. 1992) (noting the case law regarding constructive amendment "permit[s] significant flexibility of proof, provided that the defendant was given notice of the `core of criminality' to be proven at trial") (quotation marks omitted).
The more natural way to understand this argument is as a challenge to the jury charge. But were we to treat it as such, the result would be the same. Despite making various objections to the instruction on Count Three, Cheng's trial counsel did not preserve a valid objection on this ground. See United States v. Lanza, 790 F.2d 1015, 1021 (2d Cir. 1986) (observing that the objecting party must point to "the precise contention now being urged upon appeal"). Our review is therefore limited to whether the omission constituted plain error, i.e., "an error so egregious and obvious as to make the trial judge and prosecutor derelict in permitting it, despite the defendant's failure to object." United States v. Tillem, 906 F.2d 814, 825 (2d Cir. 1990). Given the overwhelming evidence that Ping knew such smuggling activities were engaged in for purposes of profit, any error in the charge was not only not plain, it was harmless. See Napoli v. United States, 32 F.3d 31, 36 (2d Cir. 1994).
Cheng also challenges the "conscious avoidance" charge given by the district court on the ground that it lacks a sufficient factual predicate. See generally United States v. Nektalov, 461 F.3d 309, 316 (2d Cir. 2006). Although, once again, she did not object to this aspect of the charge below, we find that the instruction was appropriate judged by any standard. Among other evidence, the jury heard testimony that Cheng joked with the person for whom she made the transfer that he had become one of her competitors in the smuggling trade. Assuming, arguendo, that this testimony failed to establish Cheng knew the transfer would promote alien smuggling, it suggested at least that she "suspected, but was not completely certain" of it, yet "deliberately avoided asking any questions . . . that might have confirmed [her] suspicions." Id. at 317.
Such testimony, viewed in the larger context of the government's case, serves as well to defeat Cheng's final challenge to Count Three that no "rational trier of fact could have found the . . . elements of [Count Three] beyond a reasonable doubt." United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Cheng presses on appeal that the evidence failed to demonstrate that she knew at the time that the smuggling involved was pursued for financial gain. But as discussed, supra, the record at trial was replete with evidence that these smuggling rings were operated as commercial enterprises.
Lastly, we conclude that Cheng has not carried the "heavy burden" of demonstrating that the evidence was insufficient to support a conviction on Count Five. Id. As Judge Mukasey noted, "holding smuggled aliens against their will until their passage was paid was a uniform feature" of the alien smuggling business, a fact that would surely have been known to Cheng given her own experience with this practice. A reasonable juror could therefore have found that Cheng knew, even without having to ask, that the funds being transferred by relatives in China were functioning as ransom. See United States v. MacPherson, 424 F.3d 183, 189 (2d Cir. 2005) ("The law . . . recognizes that the mens rea elements of knowledge and intent can often be proved through circumstantial evidence and the reasonable inferences drawn therefrom.").
We have carefully considered the appellant's remaining arguments and find them to be without merit. The judgment of the district court is therefore AFFIRMED.