11-4167(L)
United States v. Jiau
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
"SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York, on
the 23rd day of October, two thousand thirteen.
PRESENT: AMALYA L. KEARSE,
JOHN M. WALKER, JR.,
DENNY CHIN,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
-v- 11-4167-cr
12-2222-con
WINIFRED JIAU, AKA WINI, AKA SEALED
DEFENDANT 1,
Defendant-Appellant,
DONALD LONGUEUIL, SON NGOC NGUYEN, AKA
SONNY,
Defendants.
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FOR APPELLEE: DAVID I. MILLER, Assistant United
States Attorney (Jenna M. Dabbs
and Diane Gujarati, Assistant
United States Attorneys, on the
brief), for Preet Bharara, United
States Attorney for the Southern
District of New York, New York,
New York.
FOR DEFENDANT-APPELLANT: RANDA D. MAHER, Law Office of
Randa Maher, Great Neck, New York,
and Winifred Jiau, pro se, Dublin,
California.
Appeal from the United States District Court for the
Southern District of New York (Rakoff, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED, except that the order of forfeiture and the order
denying Jiau's May 2012 pro se Rule 33 motion is VACATED and the
case is REMANDED for further proceedings.
Defendant-appellant Winifred Jiau appeals from a
judgment entered October 4, 2011, after a jury convicted her of
conspiracy to commit securities and wire fraud, in violation of
18 U.S.C. § 371, and securities fraud, in violation of 15 U.S.C.
§§ 78j(b) and 78ff, 17 C.F.R. 240.10b-5, and 18 U.S.C. § 2. The
district court sentenced Jiau to concurrent forty-eight-month
terms of imprisonment and two years of supervised release, and
ordered her to pay the mandatory special assessment of $200 and
forfeit $3,118,000. We assume the parties' familiarity with the
facts, procedural history, and issues for review.
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On appeal, Jiau primarily challenges the district
court's ruling denying her motion to suppress certain recorded
telephone conversations and related evidence, and the
sufficiency of the evidence at trial. These are addressed in a
separate opinion issued simultaneously with this summary order.
We now address Jiau's remaining challenges to: (1) two
supplemental jury instructions; (2) her sentence of forty-eight
months' imprisonment, on both procedural and substantive
grounds; (3) the district court's forfeiture order; and (4) the
district court's denial of her pro se Rule 33 motion.
1. Jiau challenges the propriety of two of the
district court's supplemental jury instructions. "A jury
instruction is erroneous if it misleads the jury as to the
correct legal standard or does not adequately inform the jury on
the law." United States v. Wilkerson, 361 F.3d 717, 732 (2d
Cir. 2004) (internal quotation marks omitted). We conclude that
the two supplemental instructions correctly stated the law.
Moreover, we reject Jiau's arguments that the instructions
suggested a result to the jury and were therefore prejudicial.
2. Jiau challenges her sentence as both
substantively and procedurally unreasonable. We review Jiau's
sentence "under a deferential abuse-of-discretion standard,"
Gall v. United States, 552 U.S. 38, 41 (2007), and the district
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court's calculation of the gain attributable to Jiau's conduct,
for purposes of determining her base offense level under the
U.S. Sentencing Guidelines, for clear error, see United States
v. Gotti, 459 F.3d 296, 349 (2d Cir. 2006) (adopting a "clear
error" approach when the determination was primarily factual).
We conclude that the district court did not abuse its discretion
in finding Jiau's circumstances distinguishable from those of
other insider trading defendants. We note that the district
court still imposed a sentence substantially below the
recommended Guidelines range. Moreover, the court's findings
that both Sonar Capital and Barai made their trades on the basis
of Jiau's information, making her responsible for all their
gains and avoided losses for sentencing purposes, were not
clearly erroneous.
3. Jiau argues that the district court erroneously
calculated the amount of forfeiture. In light of our
intervening decision in United States v. Contorinis, 692 F.3d
136 (2d Cir. 2012), the government agrees that at least a
limited remand is necessary because the order of forfeiture
should not have included the $2.2 million attributable to Sonar
Capital's avoided losses. See Contorinis, 692 F.3d at 146 n.3.
Rather than engage in piecemeal review of the forfeiture order,
we remand for the district court to reconsider the entire amount
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of forfeiture, after giving the parties an opportunity to
address the impact of Contorinis on this case.
4. Jiau argues in her supplemental pro se and
counseled briefs that the district court erred in denying her
2012 pro se Rule 33 motion for lack of jurisdiction. When a
defendant files a Rule 33 motion while the case is pending on
direct appeal, "[t]he District Court ha[s] jurisdiction to
entertain the motion and either deny the motion on its merits,
or certify its intention to grant the motion to the Court of
Appeals, which c[an] then entertain a motion to remand the
case." United States v. Cronic, 466 U.S. 648, 667 n.42 (1984);
see also United States v. Camacho, 302 F.3d 35, 36-37 (2d Cir.
2002) (per curiam). To "den[y] that motion for lack of
jurisdiction because the case was pending on direct appeal at
the time . . . [is] erroneous." Cronic, 466 U.S. at 667 n.42.
Even though the district court acknowledged that it was not
necessary to deny the motions on this basis and that it only did
so for reasons of efficiency, it was erroneous to deny the 2012
pro se Rule 33 motion on the ground of efficiency, given that
the motion raised questions as to the effective assistance of
counsel, rather than any issues that were before this Court on
the then-pending appeal from the judgment.
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We have considered Jiau's remaining arguments and find
them to be without merit. For the reasons set forth in both the
accompanying opinion and this summary order, we AFFIRM the
judgment of the district court except to the extent that it
ordered forfeiture; we VACATE the order of forfeiture and the
order denying Jiau's May 2012 pro se Rule 33 motion and REMAND
for further proceedings consistent with today's rulings.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
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