Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
7-16-2004
USA v. Lin
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-1973
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 03-1973
UNITED STATES OF AMERICA
v.
LONG FEI LIN
a/k/a LIM LONG FER
Long Fei Lin,
Appellant
No. 03-1982
UNITED STATES OF AMERICA
v.
KONG ZHEN CHEN
a/k/a KONG CHEN ZHEN
Kong Zhen Chen,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Nos. 01-cr-00787-2 and 01-cr-00787-1)
District Judge: Hon. Clarence C. Newcomer
Submitted Under Third Circuit LAR 34.1(a)
July 15, 2004
Before: SLOVITER, BARRY and WEIS, Circuit Judges
(Filed July 16, 2004)
OPINION OF THE COURT
SLOVITER, Circuit Judge.
Appellant Kong Zhen Chen (“Chen”) appeals his conviction for conspiracy
to commit hostage taking and hostage taking in violation of 18 U.S.C. § 1203(a);
conspiracy to communicate in interstate commerce a demand for ransom in violation of
18 U.S.C. § 371; and communication in interstate commerce of a demand for ransom in
violation of 18 U.S.C. § 875(a). Appellant Long Fei Lin (“Lin”) appeals the sentence
imposed by the District Court for his conviction for conspiracy to commit hostage taking
and hostage taking in violation of 18 U.S.C. § 1203(a). The District Court had subject
matter jurisdiction pursuant to 18 U.S.C. § 3231 and we have jurisdiction pursuant to 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a). For the reasons set forth below, we will affirm.
I.
On November 29, 2001, Yi Kai Li (“Li”) went to the Tropicana Casino in Atlantic
City, New Jersey to gamble. Li lost money and asked Mei Zhu Zheng (“Zheng”), Chen’s
girlfriend, if he could borrow $1,000 to continue gambling. Zheng telephoned and Chen
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then came to the casino. Li had previously borrowed money from Chen and his associates
three times. Li told Chen that he had paid back all of the three prior loans. Chen stated
that he would lend Li the requested $1,000 and told Li to follow him to his apartment to
get the money.
Once they were in the apartment, Chen announced that he would not lend Li the
$1,000 because Li had not repaid a previous debt that now totaled $18,600: $3,000
borrowed a year ago plus $15,600 in interest. Li insisted that he had repaid the earlier
loan, but Chen claimed that he had not received the money. Chen then made several
phone calls and additional people came to the apartment, one of whom was Lin.
Chen locked the door to his apartment, demanded immediate payment and forced
Li to call his son, Feng Li, to secure the money. After Li informed his son that he was
being detained and needed to repay $18,600, Chen told Feng Li if he did not receive the
money the next day by 10:00 p.m., Chen would take Li to New York and he would be
beaten to death or something else would happen.
While Li was in the apartment, Zheng did household chores, Lin guarded Li, and
Chen repeatedly hit Li and questioned his desire to repay the money. At one point, Li
went to the bathroom and used his own phone to call his son and tell him to call the
police. That night, Chen, Lin, Zheng, and Li left the apartment to collect the money from
Feng Li in Philadelphia, but they returned to Atlantic City before reaching Philadelphia or
meeting Feng Li.
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Late in the evening on November 30, 2001, FBI agents traveled with Feng Li from
Philadelphia to Atlantic City to meet with Chen on the boardwalk. At approximately 3:00
a.m. on December 1, 2001, Chen, Lin, and Zheng were arrested by the FBI on the
boardwalk.
In statements made after the arrest, Chen told FBI agents that Li owed him $3,000
and had been in his apartment to discuss the debt. Lin told FBI agents that he had been at
Chen’s apartment with Li since November 30 around 12:30 a.m., but claimed to know
nothing about the kidnapping or ransom demand.
Chen, Lin and Zheng were indicted for conspiracy to commit hostage taking and
hostage taking (Counts 1 and 2), and conspiracy to communicate in interstate commerce a
demand for ransom for release of a kidnapped person and communication in interstate
commerce of this demand for ransom (Counts 3 and 4). Chen was convicted by a jury on
all four counts. Lin was found guilty on counts 1 and 2 only. Zheng was acquitted on all
counts. The District Court sentenced Chen to 168 months in prison. Lin was sentenced
to 97 months in prison. Both Chen and Lin filed timely notices of appeal.
II.
Chen raises three issues on appeal.
A. Ineffective Assistance of Counsel
Chen asserts that his trial counsel was ineffective because she: (1) failed to move
to have Chen’s trial severed from his co-defendant Zheng; (2) introduced good character
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evidence that led to admission of information regarding Chen’s conviction for assault for
impeachment purposes and (3) opened the door for the government to introduce evidence
that Chen was a loan shark.
It has been this court’s position that claims for ineffective assistance of counsel
should be raised in a collateral proceeding so that the factual basis for the claim may be
developed. See, e.g., United States v. Haywood, 155 F.3d 674, 678 (3d Cir. 1998). That
was the approach taken more recently by the Supreme Court in Massaro v. United States,
538 U.S. 500 (2003), where the Court held that, in most cases, ineffective assistance of
counsel claims should be litigated in collateral proceedings, rather than on direct appeal.
Chen seeks to come within the narrow exception to our rule whereby we may address
claims of ineffective assistance of counsel on direct appeal if the record is sufficiently
developed to allow determination of the issue. United States v. Headley, 923 F.2d 1079,
1083 (3d Cir. 1991). This is not such a case because the record is insufficient for us to
determine whether there was a reasonable basis for Chen’s counsel’s trial tactics or
whether any of her strategic decisions or performance resulted in prejudice to Chen. We
will deny Chen’s claim for ineffective assistance of counsel without prejudice to his right
to pursue the claim in a collateral proceeding.
B. Admission of Prior Uncharged Conduct
Chen next argues that the District Court erred in permitting the introduction of
evidence concerning his prior acts of violence against Zheng. Chen did not object at trial,
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and therefore we review the District Court’s admission of the evidence for plain error.
See United States v. McGlory, 968 F.2d 309, 346 n.24 (3d Cir. 1992). “[P]lain error
occurs only when there is ‘egregious error or a manifest miscarriage of justice.’” United
States v. Tsai, 954 F.2d 155, 161 (3d Cir. 1992) (quoting United States v. Thame, 846
F.2d 200, 204 (3d Cir. 1988)).
Chen asserts that the admission of evidence of his prior violent acts against Zheng
was plain error because it was introduced to show his bad character and propensity to
commit crime. Evidence of other crimes may be admitted for the purposes of proving,
among other things, motive, opportunity and intent. Fed. R. Evid. 404(b). Although
evidence of other crimes can be relevant, it may be “excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury . . . .” Fed. R. Evid. 403.
In this case, the District Court allowed counsel for Zheng to introduce evidence of
Chen’s prior assault to establish her intent pursuant to Rule 404(b). Zheng was seeking to
prove that she did not intend to participate in the kidnapping, was merely present, and did
not try to stop Chen or leave because she was afraid of him due to past domestic violence.
This evidence was not introduced to impugn the character of Chen, but rather to establish
Zheng’s defense of mere presence at the kidnapping. See, e.g., United States v. McGlory,
968 F.2d 309, 325 (3d Cir. 1992). The admission of Zheng’s intent evidence was thus in
accord with Rule 404(b).
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Furthermore, any potential prejudice or jury confusion that may have been caused
by the introduction of evidence of Chen’s prior assault on Zheng was addressed by the
District Court’s instructions to the jury that it could consider Zheng’s defense of mere
presence, but “not consider evidence that a defendant may have committed an act at one
time . . . to determine that a defendant acted in conformity with that act in this case.”
Chen App. at 292. These instructions direct the jury to consider evidence of Chen’s prior
assault on Zheng only as it relates to Zheng’s intent and presence during the kidnapping.
Therefore, any prejudice that may have resulted from admitting evidence of Chen’s prior
assault was cured by the jury charge.
C. Jury Instructions Regarding Character Evidence
At trial, Chen did not properly object to the District Court’s jury instructions on the
use of character evidence. We therefore review the District Court’s jury charge for plain
error. See United States v. Gordon, 290 F.3d 539, 542-543 (3d Cir. 2002).
Chen contends that the District Court plainly erred in failing to instruct the jury
that good character evidence, standing alone or with other evidence, may create a
reasonable doubt as to a defendant’s guilt. Our decision in United States v. Spangler, 838
F.2d 85 (3d Cir. 1988), is dispositive of this issue. In Spangler, we held that a jury charge
on character evidence must only call the jury’s attention to its duty to take character
evidence into account with all other evidence in deciding whether the government has
proved its charge beyond a reasonable doubt. Id. at 86-87. However, district courts are
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not required to instruct a jury that character evidence, standing alone, is sufficient to
create a reasonable doubt. Id. at 87. In the present case, the District Court charged the
jury on character evidence as follows:
You have heard testimony that a defendant has a good reputation in his
community for being honest and law-abiding. You may consider such
evidence, along with all other evidence in the case, in reaching your verdict.
Evaluate such character evidence, along with all of the other evidence in
this case, in deciding whether the government has proved the crime charged
beyond a reasonable doubt.
Chen App. at 291-92. This charge clearly drew the jury’s attention to its duty to properly
consider character evidence and largely mirrors the jury charge that we upheld in
Spangler. The District Court’s jury instruction on the use of character evidence was not
clearly erroneous.
III.
We exercise plenary review where a district court’s denial of a downward
adjustment is based primarily on a legal interpretation of the Sentencing Guidelines.
United States v. Isaza-Zapata, 148 F.3d 236, 237 (3d Cir. 1998). However, where a
district court’s decision rests on factual determinations, we review the decision for clear
error. Id. Because the District Court’s denial of Lin’s motion for downward reduction
rested upon factual determinations, we undertake clear-error review.
Lin contends that the District Court erred in refusing to grant him a two-level
minor role adjustment pursuant to Section 3B1.2(b) of the United States Sentencing
Guidelines. Lin claims that the District Court failed to consider all relevant evidence in
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denying his motion for a minor role adjustment and simply adopted the prosecutor’s
characterization of Lin as “integral in the conspiracy.” Lin Br. at 18.
In Headley, supra, we considered the following principles as relevant to the
determination of whether a defendant is a minor participant in an offense: “‘the nature of
the defendant’s relationship to the other participants, the importance of the defendant’s
actions to the success of the venture, and the defendant’s awareness of the nature and
scope of the criminal enterprise.’” 923 F.2d at 1084 (quoting United States v. Garcia, 920
F.2d 153 (2d Cir. 1990)). The district court need not explicitly weigh each Headley factor
independently, but the record should support its decision. United States v. Carr, 25 F.3d
1194, 1208 (3d Cir. 1994).
First, Lin argues that there is no evidence in the record that he had any prior
dealings with Li. However, the first Headley factor focuses upon a defendant’s
relationship with other participants, not with the victim. The relevant inquiry thus focuses
upon Lin’s prior dealings with Chen, not Li. Lin stayed overnight at Chen’s apartment
during Li’s detention, accompanied Chen and Li on the failed trip to Philadelphia, and
walked with Li and Chen on the boardwalk to meet with Feng Li and receive the ransom.
These facts taken together suggest that Li had a pre-existing relationship with Chen.
Second, Lin’s role as Li’s guard was integral to the success of this kidnapping.
Because Li was not physically restrained during his detention, it was imperative that
someone watch him to prevent his escape. Lin performed this function and ensured that
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Li did not escape before Feng Li delivered the money. According to Li, Lin watched him
the entire night, did not sleep, and remained in close proximity to him during the
detention, thus performing a critical role.
Third, Lin argues that, at most, he had only a passing understanding of the nature
and scope of Chen’s criminal objective. While Lin may not have known a great deal
about Chen’s loan shark activities, it is highly unlikely that he had only a passing
understanding of why Li was being detained. The same facts that suggest he had some
type of relationship with Chen also suggest that he had an understanding of why Li was
being held captive. In particular, Lin’s presence in the car to Philadelphia and on the
boardwalk suggest that Lin knew Li was being held to pay an outstanding debt and would
only be released upon payment. Based on these three factors the District Court did not
clearly err by denying Lin’s motion for a downward departure. See Carr, 25 F.3d at 1208.
IV.
For the foregoing reasons, we will affirm the judgments of the District Court.
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