United States Court of Appeals
For the First Circuit
No. 00-2540
STEPHEN TSE,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Selya, Lynch and Lipez,
Circuit Judges.
Stephen Tse on Application for Certificate of Appealability,
pro se.
May 17, 2002
Per Curiam. Stephen Tse has filed a pro se
application for a certificate of appealability ("COA") from the
denial of his petition under 28 U.S.C. § 2255. The underlying
facts are straightforward. Following extradition from Hong
Kong on one count of a multi-count federal indictment, Tse was
tried and convicted on three counts, namely, two counts of
attempted murder in aid of a racketeering enterprise in
violation of 18 U.S.C. § 1959(a)(5) (counts 14 and 15), and one
count of conspiracy to murder in aid of a racketeering
enterprise in violation of 18 U.S.C. § 1959(a)(5) (count 16).
We affirmed these convictions on direct appeal. United States
v. Tse, 135 F.3d 200 (1st Cir. 1998). The instant petition
alleges a variety of substantive and ineffective assistance of
counsel claims concerning his extradition and trial.
To obtain a COA, an applicant must make "a
substantial showing of the denial of a constitutional right."
28 U.S.C. § 2253(c)(2). Upon review of the underlying criminal
record and § 2255 proceedings, as well as the moving papers, we
are persuaded that Tse has failed to meet this standard with
respect to the majority of his claims. However, as discussed
more fully below, we conclude that a COA is warranted with
respect to one claim, and, indeed, that vacation and summary
remand are appropriate because further proceedings are
necessary in respect to that issue. We address the latter
claim first.
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I.
In his COA application, Tse renews his claim that
counsel rendered ineffective assistance in advising him
regarding the doctrine of specialty and, relatedly, regarding
the potential consequences of rejecting the government's plea
offer. Tse claims that he was offered a deal by the
government: plead guilty to count 16 in exchange for a 97-
month sentence and dismissal of the remaining counts. In a
declaration under pains of perjury pursuant to 28 U.S.C. §
1756, Tse stated that his attorney advised him that, if he
proceeded to trial, there was "no way" that he would or could
receive more than a 10-year sentence (the maximum penalty on
count 16). Tse elaborated further in a second declaration,
stating that counsel advised him that the "Government was
prevented by law from taking [him] to trial on Counts Fourteen
or Fifteen, or any other Count."
If counsel gave this advice--and at this stage of the
proceedings we must assume that he did--it turned out to be
incorrect. After Tse rejected the plea offer (purportedly in
reliance on his counsel's advice),1 the government sought and
obtained consent from Hong Kong to prosecute him on counts 14
and 15 in addition to count 16. Tse, 135 F.3d at 204. Tse was
1
Tse initially pled guilty but withdrew his plea after the
district court rejected the plea agreement. The parties filed a
joint motion for reconsideration of that decision, but Tse claims
that he withdrew from the joint motion despite having been informed
by his lawyer that the district court was inclined to grant it and
accept the plea agreement. This occurred, Tse intimates, as a
result of counsel's incorrect advice.
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convicted on all three counts and sentenced to a 188-month
incarcerative term. On appeal, this court upheld the validity
of the consent. Id. at 205. We also stated that, in any
event, permission was not necessary because the attempted
murder charges (counts 14 and 15) were interconnected with the
conspiracy to murder charge (count 16). Id.
The district court summarily denied Tse's ineffective
assistance of counsel claim. The court stated in pertinent
part that:
At the time of plea
negotiations, this Court
concludes that it was reasonable
for Attorney O'Dea to believe
that the United States Attorney
could not prosecute Tse on
additional counts. Attorney
O'Dea could reasonably have
concluded that the Government
Secretariat of Hong Kong would
not waive the doctrine of
specialty and thus that Tse
could be prosecuted only on
Count 16.
Tse v. United States, 112 F. Supp. 2d 189, 193-94 (D. Mass.
2000). The district court did not address our conclusion that
a waiver of the doctrine of specialty was unnecessary to permit
the government to try Tse on the additional counts.
We conclude that the district court erred in
dismissing Tse's claim without holding an evidentiary hearing
to determine what advice counsel gave. We need not
definitively decide at this juncture what advice would amount
to ineffective assistance of counsel and what would not. Tse's
complaint, in part, is that counsel informed him that there was
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"no way" that the government could prosecute him on counts
other than count 16. But the law was well-established that
"the principle of specialty may be waived by the asylum state,"
United States v. Saccoccia, 58 F.3d 754, 766 (1st Cir. 1995),
and our decision in Tse that a waiver was unnecessary was
foreshadowed by existing case law. Under the circumstances, a
blanket assurance by counsel that Tse could not be prosecuted
on counts other than count 16 might fall "below an objective
standard of reasonableness." Strickland v. Washington, 466
U.S. 668, 688 (1994).
We note, too, that the district court made no final
determination as to whether Tse demonstrated prejudice. This
question should be further explored by the district court on
remand. There is a split among the courts of appeals as to
whether a defendant's post-conviction testimony that he would
have accepted a plea offer is sufficient to show prejudice, or,
conversely, whether the defendant must adduce objective
evidence to that effect. Compare Paters v. United States, 159
F.3d 1043, 1047 (7th Cir. 1998) (objective evidence required),
and United States v. Gordon, 156 F.3d 376, 381 (2d Cir. 1998)
(same), with Magana v. Hofbauer, 263 F.3d 542, 547 n.1 (6th Cir.
2001) (objective evidence not required). This court has not
spoken to the issue. Although we do not resolve it now, this
is another valid reason for holding an evidentiary hearing and
affording the district court an opportunity to make specific
findings as to prejudice vel non.
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II.
Tse also renews a variety of substantive claims, each
of which is alternatively framed as an ineffective assistance
of counsel claim. These claims are:
C The district court erred in denying
counsel's request for an entrapment
instruction, and counsel rendered
ineffective assistance in failing to
argue the issue on appeal.
C Section 1959 of Title 18 is facially
unconstitutional as violative of the
First Amendment, and counsel rendered
ineffective assistance in failing to
argue the issue at trial and on
appeal.
C The trial judge gave erroneous
instructions in defining "enterprise"
and counsel rendered ineffective
assistance in failing to object at
trial and in failing to pursue the
issue on appeal.
C The trial judge erred in failing to
instruct the jury that a government
agent cannot be a co-conspirator, and
counsel erred in failing to object at
trial and in failing to pursue the
issue on appeal.
C Title 18 U.S.C. § 1959 is
unconstitutional as applied in this
case for lack of sufficient nexus
between the crime and interstate
commerce, and counsel rendered
ineffective assistance in failing to
argue the issue at trial and on
appeal.
C The district court erred in denying
trial counsel's request for a jury
instruction on the "lesser-included"
offense of assault with a dangerous
weapon in aid of a racketeering
enterprise, and counsel rendered
ineffective assistance in failing to
argue the issue on appeal.
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Arguably, Tse has procedurally defaulted all of the
substantive claims by failing to raise them at trial and/or on
direct review. See Bousley v. United States, 523 U.S. 614, 621
(1998) ("Habeas review is an extraordinary remedy and 'will not
be allowed to do service for an appeal.'") (citation omitted).
But because we are persuaded that each of these claims is
meritless, we need not decide whether any of them is immune to
principles of default, or, alternatively, whether Tse can
establish "cause and actual prejudice" under United States v.
Frady, 456 U.S. 152, 167 (1982), to excuse any such default.
Since Tse's claims fail on the merits, his related claims that
counsel rendered ineffective assistance in failing to press the
claims at trial or on appeal must also fail. We briefly
explain.
First, the evidence at trial did not come close to
demonstrating the sort of government overreaching that would
warrant an entrapment instruction. See United States v. Young,
78 F.3d 758, 761 (1st Cir. 1996) (giving examples of improper
inducement). Second, Tse has failed to make a substantial
showing that 18 U.S.C. § 1959 is violative of the First
Amendment. Third, contrary to Tse's suggestion, that statute
contains no requirement that the government establish a pattern
of racketeering activity. See, e.g., United States v. Bracy,
67 F.3d 1421, 1430 (9th Cir. 1995). Fourth, Tse has failed to
demonstrate that an instruction that government agents cannot
be coconspirators was warranted under the circumstances of this
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case, and, in all events, any error was harmless in light of
the overwhelming evidence of a conspiracy between Tse and non-
government actors. Fifth, Tse's Commerce Clause claim fails in
light of this court's recent holding in United States v.
Marino, 277 F.3d 11, 35 (1st Cir. 2002) (stating that § 1959's
requirements are met if the government establishes a connection
between the § 1959 act of violence and a RICO enterprise which
has a de minimis interstate commerce connection). Finally, Tse
has failed to demonstrate that the requested lesser-included-
offense instruction passes the "elements test" of Schmuck v.
United States, 489 U.S. 705 (1989), or that this test does not
apply.
We need go no further. For the foregoing reasons, we
grant a COA as to Tse's claim that the district court
improperly decided the issue discussed in Part I without
holding an evidentiary hearing, summarily vacate the decision
of the district court insofar as it resolved this issue, and
remand for an evidentiary hearing limited to this issue. See
1st Cir. R. 27(c). We deny a COA as to the issues discussed in
Part II (and as to those issues, the district court's decision
stands). The appeal is terminated.
It is so ordered.
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