United States v. Xing Lin
683 F. App'x 41
| 2d Cir. | 2017Background
- Defendant Xing Lin was tried in S.D.N.Y.; a jury convicted him of racketeering, conspiracy to commit racketeering, extortion (substantive), and murder via use of a firearm in relation to a crime of violence; acquitted on conspiracy to commit extortion. Sentenced principally to life plus concurrent 20 years.
- The charged conduct centers on a July 2004 nightclub shooting: Lin’s bodyguard shot three people, killing two; testimony included witnesses claiming Lin ordered the shooting and a post-shooting statement by Lin about intending only nonfatal wounds.
- At a pretrial hearing Lin attempted to plead guilty but withdrew the plea the next day after the court requested further allocution and authorities.
- At trial the jury found multiple predicate acts for RICO, including murder, extortion (Hobbs Act), and several gambling-related acts; the special verdict listed five racketeering acts.
- On appeal Lin raised multiple claims: improper rejection of guilty plea, whether Hobbs Act extortion is a "crime of violence" under 18 U.S.C. § 924(c), erroneous Rosemond-related jury instructions on § 924(c) aiding and abetting, insufficiency of gambling predicates for RICO, prosecutorial misconduct in summation, and sentencing challenges.
Issues
| Issue | Plaintiff's Argument (United States) | Defendant's Argument (Lin) | Held |
|---|---|---|---|
| Court’s handling of Lin’s attempted guilty plea | Court permissibly sought fuller allocution; plea process proper | Court improperly rejected his plea | No abuse of discretion; plea not rejected by court — Lin withdrew it |
| Whether Hobbs Act extortion is a "crime of violence" under § 924(c)(3)(B) | Predicate crime can be a crime of violence in the ordinary case | Ordinary-case Hobbs Act extortion can be nonviolent; thus § 924(c) invalid as applied | No plain error; unsettled question so error not "clear or obvious" |
| Rosemond error in § 924(c) aiding-and-abetting instruction (advance knowledge) | Evidence supports advance knowledge (witnesses testified Lin ordered shooting; post-shooting statement) | Jury lacked proof Lin had advance knowledge; instruction omission was prejudicial | Instructional error conceded, but not reversible under plain error — no reasonable probability of different outcome |
| Sufficiency of gambling predicates for RICO | Even if gambling acts invalid, other valid predicates remain (murder, extortion) | Gambling predicates insufficient under state law; their invalidation might require vacatur of RICO verdict | Court declined vacatur; murder and extortion predicates sufficient; gambling issues did not eclipse case |
| Prosecutorial misconduct in summation | Summation responded to defense attacks on witness credibility and was permissible rebuttal | Summation shifted burden, vouched for witnesses, disparaged counsel, warranting new trial | No reversible misconduct; comments not so prejudicial in context |
| Sentencing challenges (procedural & substantive) | Sentence within permissible range; court considered factors; guideline application reasonable | Guideline keyed to first-degree murder, inadequate explanation, possible race influence, and substantive unreasonableness of life term | Reviewed for plain error; no clear error in guideline reference, explanation adequate, no racial bias, life sentence reasonable |
Key Cases Cited
- United States v. Severino, 800 F.2d 42 (2d Cir.) (plea acceptance reviewed for abuse of discretion)
- Johnson v. United States, 135 S. Ct. 2552 (Sup. Ct.) (ordinary-case approach to assessing risk under a crime-of-violence clause)
- Rosemond v. United States, 134 S. Ct. 1240 (Sup. Ct.) (advance-knowledge requirement for aiding and abetting § 924(c) firearm use)
- United States v. Prado, 815 F.3d 93 (2d Cir.) (plain-error prejudice standard post-Rosemond)
- United States v. Vilar, 729 F.3d 62 (2d Cir.) (plain error test and requirement that error be clear under current law)
- United States v. Whab, 355 F.3d 155 (2d Cir.) (plain-error and unsettled-question guidance)
- United States v. Biaggi, 909 F.2d 662 (2d Cir.) (when invalidated predicates may require vacatur of RICO verdict)
- United States v. Delano, 55 F.3d 720 (2d Cir.) (same; invalidated predicates that "eclipsed" others warrant reversal)
- United States v. Farhane, 634 F.3d 127 (2d Cir.) (standard for overturning conviction based on prosecutorial misconduct in summation)
- United States v. Rigas, 490 F.3d 208 (2d Cir.) (substantive-reasonableness review of sentences)