United States v. Ying Wai Phillip Ng

13-4042-cr
United States v. Ng

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.

1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 19th day of September, two thousand fourteen.
5
6 PRESENT: DENNIS JACOBS,
7 CHRISTOPHER F. DRONEY,
8 Circuit Judges,
9 LEWIS A. KAPLAN,*
10 District Judge.
11
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13 UNITED STATES OF AMERICA,
14 Appellant,
15
16 -v.- 13-4042-cr
17
18 YING WAI PHILLIP NG, PUI KUEN NG,
19 Defendants-Appellees.
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21
22 FOR APPELLANT: PAUL TUCHMANN (with David C.
23 James on the brief), for Loretta

*
Judge Lewis A. Kaplan, of the United States District
Court for the Southern District of New York, sitting by
designation.
1
 1 E. Lynch, United States
2 Attorney, Eastern District of
3 New York, Brooklyn, New York.
4
5 FOR APPELLEES: MICHELLE A. GELERNT (with David
6 A. Lewis on the brief), Federal
7 Defenders of New York, Inc., New
8 York, New York.
9
10 ZACHARY MARGULIS-OHNUMA (with
11 Sharlene Morris on the brief),
12 New York, New York.
13
14 Appeal from a judgment of the United States District
15 Court for the Eastern District of New York (Glasser, J.).
16
17 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
18 AND DECREED that the judgment of the district court is
19 VACATED and REMANDED for further proceedings.
20
21 The United States appeals from the judgment of the
22 United States District Court for the Eastern District of New
23 York (Glasser, J.), dismissing the Information filed against
24 defendants Ying Wai Phillip Ng and Pui Kuen Ng.
25
26 The Ngs, a husband and wife who owned and operated a
27 commercial driving school in Brooklyn, devised a scheme to
28 help their Chinese clients cheat on the written test
29 administered, in English only, by the Department of Motor
30 Vehicles (“DMV”), for a commercial driver’s license (“CDL”).
31
32 Posing as a Mandarin-speaking client, an undercover
33 agent with the Homeland Security Investigations unit (the
34 “UC”) visited the Ngs’ driving school, informed Mrs. Ng that
35 a potential employer wanted to hire him to drive a bus, and
36 arranged for assistance in taking the written CDL exam.
37 Upon urging by the UC, the Ngs both promised not to tell any
38 potential employer how the UC passed the CDL written exam.
39
40 Mr. Ng helped the UC take and pass the CDL exam by use
41 of a paging device and video camera. The UC paid Mr. Ng for
42 his services after completing the test. An applicant who
43 passes the test receives a temporary Class B permit from the
44 DMV; the permit is subsequently mailed to the applicant.
45
46 The Ngs were arrested, waived their right to indictment
47 and pleaded guilty to an Information charging them with a

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 1 single count of conspiracy to commit mail fraud. The
2 Information charged that the Ngs:
3
4 knowingly and intentionally conspire[d]
5 to devise a scheme and artifice to
6 defraud prospective employers of
7 individuals with CDLs, and to obtain
8 money and property from those prospective
9 employers by means of materially false
10 and fraudulent pretenses, representations
11 and promises, and for the purpose of
12 executing such scheme and artifice, to
13 place and to cause to be placed in a post
14 office and authorized depository for mail
15 matter, one or more matters and things to
16 be sent and delivered by the United
17 States Postal Service, to wit: envelopes
18 sent by the DMV containing fraudulently
19 obtained CDLs and commercial CDL Class B
20 permits.
21
22 The district court accepted the Ngs’ guilty pleas, but later
23 questioned the legal sufficiency of the Information. The
24 court ultimately permitted the Ngs to withdraw their pleas
25 and dismissed the Information.
26
27 In finding the Information legally insufficient, the
28 district court recognized that “[i]t is not disputed that
29 the CDL license was not ‘property’ in the hands of the New
30 York DMV.” United States v. Ng, 973 F. Supp. 2d 217, 219
31 (E.D.N.Y. 2013); see Cleveland v. United States, 531 U.S.
32 12, 15 (2000) (“We conclude that permits or licenses of this
33 order do not qualify as ‘property’ within [18 U.S.C.]
34 § 1341's compass.”). The district court, however, did not
35 determine whether the salary to be paid to the Ngs’
36 customers by a hypothetical employer could properly be
37 considered “money or property” within the meaning of the
38 mail fraud statute, Ng, 973 F. Supp. 2d at 222, or whether
39 (as urged by the Ngs) the only loss incurred by a potential
40 employer who hired a customer of the Ngs would be the
41 “‘honest services’ of the imaginary employee which would not
42 be ‘property’ within the meaning of the statute.” Id.
43 (citing Skilling v. United States, 561 U.S. 358 (2010)).
44
45 The district court did not reach these questions
46 because it dismissed the Information on the ground that
47 “[t]he objective of the scheme here was to deceive the DMV,”

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 1 that this end “was accomplished when the CDL test was passed
2 and not when the mailing occurred,” id., and “that this was
3 not the fraud by mail the statute was aimed at,” id. at 226.
4
5 In the district court, the Ngs “concede[d] the
6 government has satisfied the mail element of the mail fraud
7 statute.” Therefore, we may properly conclude that any
8 argument to the contrary was waived. See Sompo Japan Ins.
9 Co. of Am. v. Norfolk S. Ry. Co., 2014 WL 3844155, at *18-19
10 (2d Cir. Aug. 6, 2014). In any event, “[t]he gravamen of
11 the [mail fraud] offense is the scheme to defraud, and any
12 ‘mailing that is incident to an essential part of the scheme
13 satisfies the mailing element.’” Bridge v. Phoenix Bond &
14 Indem. Co., 553 U.S. 639, 647 (2008) (quoting Schmuck v.
15 United States, 489 U.S. 705, 712 (1989)). True, the Ngs
16 “act[ed] with knowledge that the use of the [mails] w[ould]
17 follow in the ordinary course of business.” United States
18 v. Reifler, 446 F.3d 65, 96 (2d Cir. 2006) (citation
19 omitted). But, this was sufficient to satisfy the mailing
20 element of the mail fraud statute.
21
22 We remand for the district court to determine whether
23 the Information sufficiently charges that the object of the
24 alleged conspiracy was to deprive its alleged victims –
25 prospective employers – of “money or property” within the
26 meaning of the mail fraud statute and, if so, for further
27 proceedings as may be appropriate. The district court on
28 remand of course will be aware that, after Skilling, no mail
29 fraud conspiracy conviction could stand on a deprivation of
30 honest services theory; proof of the intended deprivation of
31 money or property would be essential.
32
33 For the foregoing reasons, the judgment of the district
34 court is VACATED and this matter is REMANDED for further
35 proceedings before the district court.
36
37 FOR THE COURT:
38 CATHERINE O’HAGAN WOLFE, CLERK
39

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