United States v. Yang

19-734
United States v. Yang


                                  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 28th day of July, two thousand twenty-one.

PRESENT:            JOHN M. WALKER, JR.,
                    PIERRE N. LEVAL,
                    DENNY CHIN,
                                Circuit Judges,

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UNITED STATES OF AMERICA,
                    Appellee,

                              -v-                                                  19-734

PAI YANG,
                                        Defendant-Appellant.

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FOR APPELLEE:                                                TIMOTHY V. CAPOZZI, Assistant United
                                                             States Attorney (Jonathan Rebold and Danielle
                                                             R. Sassoon, Assistant United States Attorneys,
                                                             on the brief), for Audrey Strauss, United States
                                           Attorney for the Southern District of New
                                           York, New York, New York.

FOR DEFENDANT-APPELLANT:                   DANIEL S. NOOTER, Washington, D.C.

              Appeal from the United States District Court for the Southern District of

New York (Wood, J.).

              UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

              Defendant-appellant Pai Yang appeals the district court's judgment

entered March 11, 2019, following his guilty plea, convicting him of money laundering

in violation of 18 U.S.C. § 1956(a)(3)(A). The district court sentenced Yang principally to

70 months' imprisonment. On appeal, Yang argues that the district court erred in

accepting his guilty plea because the magistrate judge erred in advising him on the

elements of the crime and the plea was not supported by a factual basis. He also

contends that his trial attorney provided ineffective assistance of counsel. We assume

the parties' familiarity with the underlying facts, procedural history of the case, and

issues on appeal.

              We review the district court's acceptance of a guilty plea for plain error

where, as here, the defendant did not raise any Rule 11 objections before the district

court. See United States v. Rodriguez, 725 F.3d 271, 276 (2d Cir. 2013); United States v.

Torrellas, 455 F.3d 96, 103 (2d Cir. 2006). To establish plain error, Yang must




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demonstrate that "(1) there was error, (2) the error was plain, (3) the error prejudicially

affected his substantial rights, and (4) the error seriously affected the fairness, integrity

or public reputation of judicial proceedings." United States v. Pattee, 820 F.3d 496, 505

(2d Cir. 2016) (internal quotation marks omitted) (quoting United States v. Youngs, 687

F.3d 56, 59 (2d Cir. 2012)). In the context of a Rule 11 challenge, a defendant's

substantial rights are affected only where there exists a "reasonable probability that, but

for the error, he would not have entered the plea." United States v. Vaval, 404 F.3d 144,

151 (2d Cir. 2005) (internal quotation marks omitted) (quoting United States v.

Dominguez Benitez, 542 U.S. 74, 83 (2004)). The defendant must satisfy the plain-error

test. See Greer v. United States, 141 S. Ct. 2090, 2100 (2021) (applying plain-error test to

review an error in defendants' plea colloquies).

              We affirm. First, although the magistrate judge did make an error in the

plea allocution, Yang's substantial rights were not affected. In describing the third

element of the crime, the magistrate judge stated:

              THE COURT: Do you understand that in order to establish
              your guilt at trial, the government would have to prove the
              following elements beyond a reasonable doubt:

              ....

              Third, that you intended to promote the carrying on of the
              specified unlawful activity, that you intended to conceal or
              disguise the nature, location, source, ownership or the control of
              property believed to be the proceeds of a specified unlawful activity.




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App'x at 31-32 (emphasis added). The highlighted language was not necessary, as Yang

was charged specifically with laundering narcotics proceeds with "the intent to promote

the carrying on of that specified unlawful activity," and not with concealing property.

App'x at 14. The additional language was of no moment, however, as the magistrate

judge correctly instructed Yang that the government had to prove intent to promote the

carrying on of the unlawful activity. See United States v. Moore, 703 F.3d 562, 570-71

(D.C. Cir. 2012) (affirming conviction, despite district court's error in allocution, on basis

that there was no substantial prejudice). Yang has not shown a reasonable probability

that, but for the errant addition of the concealment language, he would not have

pleaded guilty. See Torrellas, 455 F.3d at 105; see also United States v. Lloyd, 901 F.3d 111,

122 (2d Cir. 2018); Rodriguez, 725 F.3d at 276. Indeed, he received significant benefits

from pleading guilty, including acceptance of responsibility credit, dismissal of the

conspiracy charge, and a limiting of the loss amount.

              Second, Yang's contention that the record lacked a sufficient factual basis

as to his intent to promote narcotics activity also fails. As noted above, a conviction for

promotional money laundering under 18 U.S.C. § 1956(a)(3)(A) requires more than an

intent to simply "conceal or disguise" the proceeds of the specified unlawful activity.

Cf. 18 U.S.C. § 1956(a)(3)(B). Instead, it requires "evidence that the receipt and deposit

of laundered funds was made with the intent to promote the specified underlying

unlawful activity, be it, for example, by promoting continued illegal activity or by being



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essential to the completion of the scheme." See United States v. Thorn, 317 F.3d 107, 133

(2d Cir. 2003) (emphasis added). While we acknowledge that, during his plea colloquy,

Yang stated only that he intended to "conceal" funds that were represented to be

proceeds of narcotics transactions, see App'x 39-40, the record as a whole provides an

adequate factual basis for his plea.

              Yang admitted to laundering more than $250,000 of what he believed to be

drug proceeds. 1 Yang's contributions to the operation -- multiple transfers of proceeds

to place them beyond government reach -- were essential to the success and

continuation of what he believed to be a narcotics scheme, and thus he had the intent to

promote the apparent illegal activity. See United States v. Piervinanzi, 23 F.3d 670, 679

(2d Cir. 1994) (where defendant's actions were integral to illegal scheme's success,

defendant did "promote" underlying conduct); Lloyd, 901 F.3d at 123-24. Nor are we

required "to rely solely on the defendant's own admissions." United States v. Maher, 108

F.3d 1513, 1524 (2d Cir. 1997) (permitting reliance on the government's factual proffers

and the presentence report, when available). Accordingly, we may consider the




1       It is of no significance that the money Yang laundered was provided to him as part of a
government sting operation, such that Yang was not "in fact" promoting narcotics activity. The
statute prohibits transactions involving property "represented to be" the proceeds of specified
unlawful activity. 18 U.S.C. § 1956(a)(3) (defining "represented" to include representations
"made by a law enforcement officer"). We have held that a government sting qualifies for a
conviction under 18 U.S.C. § 1956(a)(3) when the record shows that the defendant believed the
funds were proceeds of an unlawful activity and acted with the requisite intent. See United
States v. Nektalov, 461 F.3d 309, 314 (2d Cir. 2006).


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government's proffer at sentencing that Yang "held himself out as someone who had

contact to international narcotics, kilo weight traffickers, and offered to the agents if

they needed assistance having drugs moved, he could put them in touch with his

contacts throughout the world." App'x 67-68. Neither Yang nor his attorney disputed

these factual allegations, which support the reasonable inference that Yang intended to

"promote," not merely "conceal," what he believed to be the distribution of narcotics. As

Yang acknowledged at his sentencing, money laundering "[n]ot only . . . helps criminals

to legitimatize illegal proceeds, . . . it also helps furtherance of crime." App'x 63.

              Third, as to Yang's ineffective assistance claim, because the record in this

respect is not fully developed, we decline to hear the claim, leaving it to Yang to raise

the issue as part of a subsequent motion for relief pursuant to 28 U.S.C. § 2255. See

United States v. DeLaura, 858 F.3d 738, 743 (2d Cir. 2017); accord United States v.

Oladimeji, 463 F.3d 152, 154 (2d Cir. 2006) (where facts necessary for resolution of the

claim do not appear in the record, "our usual practice is not to consider the claim on the

direct appeal, but to leave it to the defendant to raise the claims on a petition for habeas

corpus under 28 U.S.C. § 2255").

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             We have considered Yang's remaining arguments and conclude they are

without merit. Accordingly, we AFFIRM the judgment of the district court.

                                       FOR THE COURT:
                                       Catherine O'Hagan Wolfe, Clerk




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