United States v. Kirk Tang Yuk
885 F.3d 57
2d Cir.2018Background
- Defendants Kirk Tang Yuk, Felix Parrilla, and Gary Thomas were convicted by a jury of conspiracy to distribute and possess with intent to distribute five or more kilograms of cocaine based principally on activities in St. Croix and Florida and interactions with co-conspirator Deryck Jackson.
- Jackson transported 80 kg of cocaine from St. Croix to Florida; he kept ~25 kg and drove to the New York area to sell some of it, crossing the Verrazano-Narrows Bridge (within SDNY jurisdiction), and was arrested in Queens.
- After his arrest, at the government's direction Jackson made recorded calls and texts from a Manhattan courthouse to Thomas and Tang Yuk stating he was "in New York."
- The district court instructed the jury that venue in SDNY could be established if an overt act in furtherance of the conspiracy occurred in SDNY and it was reasonably foreseeable to each defendant that such an act would occur there (including use of calls/texts).
- The district court denied motions to transfer venue, denied suppression motions (wiretap, protective sweep, garage search), adopted a drug-quantity finding of 80 kg at sentencing, and applied several Guidelines enhancements; defendants appealed raising venue, suppression, Brady/Giglio, sufficiency and sentencing challenges.
- The Second Circuit majority affirmed convictions and sentences, holding the SDNY venue was proper because Jackson committed an overt act in SDNY and a reasonable jury could find it was reasonably foreseeable to each defendant that SDNY acts would occur; a dissent would have vacated for improper venue.
Issues
| Issue | Government's Argument | Defendants' Argument | Held |
|---|---|---|---|
| Venue (SDNY) | Jackson drove drugs over Verrazano-Narrows (an overt act in SDNY) and then made calls/texts from Manhattan that furthered the conspiracy; it was reasonably foreseeable to defendants that acts would occur in SDNY. | Most conduct occurred in St. Croix/Florida; defendants never traveled to SDNY and Jackson's NYC calls were made at government direction — venue not reasonably foreseeable. | Affirmed: venue proper — Jackson's Narrows crossing and his calls (and defendants' knowledge/use of them) supported venue as reasonably foreseeable. |
| Drug-quantity for sentencing (80 kg) | Jackson's trial testimony and other evidence established the conspiracy involved 80 kg; district court credited his testimony. | Jackson was unreliable; court should not rely on his testimony to attribute 80 kg to defendants. | Affirmed: district court's credibility finding was not clearly erroneous; preponderance standard supports 80 kg finding. |
| Suppression (wiretap, protective sweep, garage search) | Wiretap application satisfied Title III; protective sweep and plain-view seizure of phones lawful; even if canine sniffs were later questionable, good-faith exception applies. | Wiretap and warrantless actions invalid; evidence should be suppressed. | Affirmed: wiretap authorized; protective sweep and plain-view seizures lawful; garage-search evidence admissible under good-faith exception. |
| Brady/Giglio and summation / Cross-examination | Government produced cell‑phone files (images) and summary report; defense had access and used material at trial; summation comment was cured by instruction; cross-examination was ample. | Production format buried impeachment material; government hid Giglio/Brady material; summation comments prejudicial; cross-examination limited. | Rejected: no plain‑error Brady/Giglio showing or prejudice; trial court's limiting instruction and cross-examination preserved rights; conviction stands. |
Key Cases Cited
- United States v. Lange, 834 F.3d 58 (2d Cir. 2016) (venue may lie in more than one district; substantial-contacts factors)
- United States v. Rommy, 506 F.3d 108 (2d Cir. 2007) (telephone calls that further a conspiracy can establish venue if used to further objectives)
- United States v. Tzolov, 642 F.3d 314 (2d Cir. 2011) (overt act in a district by any conspirator can establish venue if in furtherance of conspiracy)
- Maryland v. Buie, 494 U.S. 325 (1990) (scope of protective sweep incident to arrest)
- United States v. Ramirez-Amaya, 812 F.2d 813 (2d Cir. 1987) (flight path over the Narrows can support SDNY venue)
- Kyles v. Whitley, 514 U.S. 419 (1995) (materiality standard for Brady)