UNITED STATES OF AMERICA, Appellee, v. CHI PING PATRICK HO, AKA PATRICK C.P. HO, Defendant-Appellant.
No. 19-761
United States Court of Appeals For the Second Circuit
Argued: March 11, 2020 Decided: December 29, 2020
August Term 2019
Before: RAGGI, CHIN, AND SULLIVAN, Circuit Judges.
Defendant-Appellant Chi Ping Patrick Ho appeals his conviction after trial in the Southern District of New York (Preska, J.) on charges of conspiracy to violate the Foreign Corrupt Practices Act (“FCPA“), conspiracy to commit money laundering, substantive money laundering, and violations of the FCPA. Ho argues that (1) the evidence was insufficient to support his FCPA conviction under
AFFIRMED.
BENJAMIN E. ROSENBERG, Dechert LLP, New York, New York (Katherine M. Wyman, Dechert LLP, New York, New York, Edward Y. Kim, Jonathan F. Bolz, Krieger Kim & Lewin LLP, New York, New York, on the brief), for Defendant-Appellant Chi Ping Patrick Ho.
DOUGLAS ZOLKIND, Assistant United States Attorney (Daniel C. Richenthal, Catherine E. Ghosh, Anna M. Skotko, Assistant United States Attorneys, for Audrey Strauss, Acting United States Attorney for the Southern District of New York, Paul A. Hayden, Trial Attorney, Fraud Section, Criminal Division, United States Department of Justice, on the brief), for Appellee United States of America.
RICHARD J. SULLIVAN, Circuit Judge:
Defendant-Appellant Dr. Chi Ping Patrick Ho, a citizen of Hong Kong, appeals from a judgment of conviction entered March 27, 2019, in the United States District Court for the Southern District of New York (Preska, J.), following a jury
On appeal, Ho challenges his conviction on several grounds, maintaining that (1) there was insufficient evidence supporting his convictions under
The evidence at trial established that Ho used his position as an officer or director of a U.S.-based non-governmental organization (“NGO“) to engage in two bribery schemes for the benefit of China CEFC Energy Company Limited (“CEFC Energy“), a for-profit conglomerate based in Shanghai. CEFC Energy funded a non-profit NGO in Hong Kong known as the China Energy Fund Committee, or CEFC Limited (“CEFC NGO“). That entity, in turn, funded a non-profit U.S. entity, China Energy Fund Committee (USA) Inc. (the “U.S. NGO“), which was incorporated in Virginia, where it had an office, and which used a suite affiliated with CEFC Energy in Trump World Tower in New York. A former employee of CEFC NGO testified that CEFC NGO treated the U.S. NGO as the U.S. arm of its organization. See App‘x at 194-204; see also discussion infra Section III.A. Beyond funding the U.S. NGO, CEFC NGO held itself out as an organization “headquartered in Hong Kong” with an office “in the United States,” App‘x at 731, and touted itself as a “Chinese think tank registered in Hong Kong and also in the
Ho served as an officer and the principal director of CEFC NGO, holding the title of Secretary General. He was also an officer and director of the U.S. NGO, and ran the daily operations of both entities. As part of his work with CEFC NGO (including through the U.S. arm), Ho often visited the United Nations and made contacts with high-ranking officials, including Presidents of the UN General Assembly, to help CEFC Energy find business opportunities. As relevant to this case, Ho engaged in two schemes – the “Chad scheme” and the “Uganda scheme” – to advance CEFC Energy‘s commercial interests.
A. Chad Scheme
Around September 2014, a CEFC Energy official asked Ho to arrange a meeting with the President of Chad, Idriss Déby (“Déby“), to help CEFC Energy pursue business in Chad. Ho agreed and asked a former President of the UN General Assembly, Vuk Jeremić, for an introduction to Cheikh Gadio, a former Foreign Minister of Senegal who knew Déby. Jeremić contacted Gadio and suggested that he meet Ho, his “friend[] from China who was doing a lot of work with the United Nations” and working at a Chinese oil company. App‘x at 250.
Later that year, Ho and a delegation from CEFC Energy met with Déby in Chad on several occasions. At the first meeting, in November 2014, Déby invited CEFC Energy to consider an opportunity to acquire an oilfield in Chad. He noted that other oil companies were interested in that block and suggested next steps to enable CEFC Energy to advance a bid. About a week later, Ho asked Gadio to arrange another meeting with Déby. Gadio advised against a second meeting at that time, but in the face of Ho‘s insistence, set up the meeting.
The second meeting took place on December 8, 2014, at Déby‘s presidential compound and involved a delegation from CEFC Energy, Ho, Gadio, and Gadio‘s son and business partner, Boubker Gadio, as well as Déby and his chief of staff. The participants discussed the Chadian oilfield opportunity, and at the end of the meeting, the CEFC delegation presented Déby with wrapped gift boxes. Déby did
When Gadio arrived, Déby expressed outrage that the boxes contained cash. Déby asked Gadio if he knew in advance about the cash gift, and Gadio responded that he did not. At Déby‘s request, Ho, Gadio, and the CEFC delegation met with Déby and his chief of staff the next day, December 9, 2014. At that meeting, Déby expressed shock and anger at receiving cash, and explained that he did not know “why people believe all African leaders are corrupt.” Id. at 300.
Ho responded that he was “very impressed by [Déby‘s] reaction and . . . attitude,” id. at 301, while members of the CEFC delegation insisted that the cash had been intended as a donation to the country, not as a bribe to Déby. Déby replied that “donations are not made this way” and again refused to accept the cash. Id. at 304. Ultimately, the delegation promised a formal letter of donation to be used for Chad. Ho subsequently drafted a letter to that effect, which Gadio revised and delivered to Déby.
In exchange for setting up the meetings in Chad, Gadio sought a written contract with CEFC Energy to formalize his role and ensure his compensation for
B. Uganda Scheme
Also in 2014, Ho sought an introduction to Sam Kutesa – the Minister of Foreign Affairs for Uganda, who had recently begun a one-year term as the President of the UN General Assembly – for the purpose of helping CEFC Energy develop business in Uganda‘s oil fields. Ho contacted Kutesa‘s office at the UN in New York and introduced himself as the “Deputy Chairman and Secretary
Around February 2016 – by which time Kutesa had completed his term as President of the General Assembly and returned to Uganda as Foreign Minister – Kutesa, through his wife, solicited a bribe from Ho to be disguised as a payment to a charitable foundation. Ho requested, and ultimately received, authorization from the chairman of CEFC Energy to make a half million dollar payment to Kutesa‘s charity. Ho then contacted Kutesa to advise him that the payment would be made and to procure an invitation to the inauguration of Ugandan President Yoweri Museveni, who was Kutesa‘s brother-in-law. Ho told Kutesa that he would bring executives from CEFC Energy to discuss business opportunities in Uganda.
On May 5, 2016, Ho caused a wire transfer of $500,000 to be sent from CEFC NGO to an account belonging to the Food Security and Sustainable Energy Foundation at Stanbic Bank in Kampala, Uganda, as a donation to the foundation designated by the Kutesas. Specifically, the wire originated “from HSBC Hong Kong on behalf of CEFC [NGO] as the originator, through to HSBC Bank US as the
II. PROCEDURAL HISTORY
In 2017, a grand jury in the Southern District of New York returned an indictment charging Ho with eight crimes: conspiracy to violate the FCPA in violation of
Ho moved to dismiss Count One and Counts Four through Eight of the indictment on April 16, 2018. As to Counts One, Four, and Five, Ho argued that because the indictment contained language stating that he was a domestic concern under
Trial began on November 26, 2018 and ended on December 5, 2018, when the jury returned guilty verdicts against Ho on Counts One through Six and Count Eight, while acquitting him on Count Seven. On December 18, 2018, Ho moved for a judgment of acquittal on all counts of conviction under Rule 29(c), “[i]n order to preserve all arguments as to the sufficiency of the evidence to convict.” No. 17-cr-779 (LAP), Doc. No. 218. The district court denied that motion, and ultimately sentenced Ho to 36 months’ imprisonment, and fined him $400,000. Ho is currently serving his sentence.
III. DISCUSSION
Ho raises several arguments on appeal. First, Ho contends that there was insufficient evidence to establish that he acted on behalf of a “domestic concern,” as required to convict under
A. The Evidence Supports Ho‘s Convictions Under 15 U.S.C. § 78dd-2 (Counts Two And Three)
As relevant here,
Ho challenges the sufficiency of the evidence underlying his
“We review sufficiency of evidence challenges de novo, but defendants face a heavy burden,” because our framework for evaluating such challenges “is
In challenging the sufficiency of the evidence supporting his
We conclude that the evidence introduced at trial was more than sufficient to prove that Ho acted on behalf of the U.S. NGO to assist it in obtaining business for CEFC Energy. Contrary to Ho‘s assertion that “at most a reasonable juror could find that . . . [he] worked for” the Hong Kong-based CEFC NGO, Ho Br. at 21, the government presented ample evidence demonstrating that the U.S. NGO operated as an arm of CEFC NGO and that Ho‘s actions in furtherance of the scheme were conducted in his capacity as officer or director of the U.S. arm to steer business to CEFC Energy.
For example, David Wen Riccardi-Zhu testified that he was a volunteer and employee of a CEFC entity classified as an NGO, which he described as based in Hong Kong but with “offices in the United States.” App‘x at 198. He later specifically identified the U.S. NGO as “the NGO that [he] worked for,” id. at 202, and he acknowledged the existence of “an office in Virginia [that] we used a few times,” id. at 204, in addition to a space in Trump World Tower in New York, id. at 206. In addition to testifying in general terms that Ho “ran the day-to-day operations of the NGO,” id. at 198, Riccardi-Zhu further affirmed that, in his
And while Ho complains that the government “deliberately conflated” the NGOs at trial, Reply Br. at 1, the evidence, viewed most favorably to the government, indicates that it was the NGOs themselves that maintained overlapping identities in order to take advantage of each as best served particular interests. Thus, evidence showed that CEFC NGO held itself out as a single organization with a branch in the United States. The website, “cefc-ngo.co” – which Riccardi-Zhu described as “one of the websites that the NGO had,” App‘x at 215, without distinguishing between the Hong Kong and U.S. entities – described the NGO as one organization with operations in multiple countries. The jury also saw a screenshot of the website stating that “CEFC is headquartered in Hong Kong with more than 10 offices in the United States, Canada and other countries and regions.” Id. at 731.
The government also introduced an email from Ho to Kutesa‘s UN office in which Ho held himself out as an officer of “a Chinese think tank registered in Hong Kong and also in the USA as a public charity.” Gov. Addendum at 11; see
Viewing this evidence in the light most favorable to the government, and drawing all inferences in support of the verdict, we find that the jury reasonably concluded that Ho acted on behalf of a domestic concern in directing business to CEFC. We therefore reject Ho‘s sufficiency challenge to Counts Two and Three.
B. Ho Offers No Basis To Disturb His Money Laundering Convictions (Counts Six And Eight)
Ho next argues that his money laundering convictions must be reversed because (1) a violation of
1. A Violation Of 15 U.S.C. § 78dd-3 Is Sufficient To Establish Specified Unlawful Activity Under The Money Laundering Statute
Ho asserts that the jury was improperly charged when it was told that a violation of
We review this question of statutory interpretation de novo. United States v. Epskamp, 832 F.3d 154, 160 (2d Cir. 2016). “We ordinarily assume, absent a clearly expressed legislative intention to the contrary, that the legislative purpose is expressed by the ordinary meaning of the words used.” Jam, 139 S. Ct. at 769 (internal quotation marks omitted). “When the language of the statute is clear . . ., our inquiry is complete and the language controls.” United States v. Kinzler, 55 F.3d 70, 72 (2d Cir. 1995). In that case, “we have no reason to apply canons of construction.” New York ex rel. N.Y. State Off. of Child. & Fam. Servs. v. U.S. Dep‘t of Health & Hum. Servs.’ Admin. for Child. & Fams., 556 F.3d 90, 98 (2d Cir. 2009).
The money laundering statute criminalizes the transfer of funds “with the intent to promote the carrying on of specified unlawful activity.”
Applying the same principles here, we find that
Moreover, that reading is consistent with the statutory context. As we previously recognized, the money laundering statute “takes dead aim at the attempt to launder dirty money,” while leaving “[w]hy and how that money got
In light of the money laundering statute‘s “unambiguous . . . incorporation by reference” of the FCPA “in its entirety,” see N.Y. State Off. of Child. & Fam. Servs., 556 F.3d at 98, we reject Ho‘s suggestion that Congress was obliged to specify that its reference to the FCPA expressly included subsequent amendments to the statute. We likewise reject his suggestion that because Congress could have amended the money laundering statute to specifically include later FCPA amendments, its failure to do so reflects an intent to exclude those subsequent amendments. Given that
Our approach is not inconsistent with the Supreme Court‘s recent analysis in Jam v. International Finance Corp., 139 S. Ct. 769 (2019), in which the Supreme Court turned to the reference canon to “confirm[]” what it determined was the “more natural reading” of the statute at issue, recognizing that courts usually assume that the ordinary meaning of a statute reflects the legislative intent. Id. at 769. Nothing in Jam compels us to depart from the ordinary meaning of
18 U.S.C. § 1956(a)(2)(A)
Next, we turn to Ho‘s argument that his money laundering convictions on Counts Six and Eight must be vacated because the wire transfers on which they were based went from Hong Kong to Uganda through the United States, and thus, did not go “to” or “from” the United States. In other words, Ho asserts that the money laundering statute does not cover wire transfers where the United States is neither the point of origination nor the end destination for the money, but is instead just an intermediate stop along the way. As relevant to this challenge, the money laundering statute makes it illegal for a person to “transport[], transmit[], or transfer[] . . . funds from a place in the United States to or through a place outside the United States or to a place in the United States from or through a place outside the United States” under certain circumstances.
On appeal, Ho does not dispute that he caused a wire transfer of $500,000 to be sent from CEFC NGO “to an account belonging to the Food Security and Sustainable Energy Foundation at Stanbic Bank in Kampala, Uganda.” Ho Br. at 14. Nor does he dispute that the $500,000 went “[f]rom HSBC Hong Kong on behalf of CEFC Limited as the originator, through to HSBC Bank US as the US correspondent for credit to Deutsche Bank in New York[,] US as a correspondent
Instead, Ho contends that the wire underlying his conviction on Count Eight “was a single, continuing, transaction from Hong Kong to Uganda,” and that under
We reject Ho‘s claim that the charged wire transfer, which took advantage of U.S.-based correspondent accounts to conduct a dollar-denominated transaction, is barred from coverage under
Describing the government‘s interpretation as being “that anytime a transfer goes ‘through’ the United States, it also goes ‘to’ it and ‘from’ it,” Ho argues that such a reading “would render the term ‘through’ superfluous.” Id. at 32 (emphasis added). But the government does not go so far, and neither do we. We do not reach, for example, whether the transportation of cash from Hong Kong in an airplane over the United States to a final destination in Uganda would be properly said to have gone “through,” “from,” or “to” the United States - let alone whether more than one of those prepositions could apply. We simply acknowledge that some schemes that colloquially go “through” the United States - in the sense that
The wire sent by Ho involved (1) HSBC Hong Kong debiting CEFC NGO‘s account in Hong Kong; (2) HSBC Hong Kong sending a payment message to HSBC Bank US, asking it to debit $500,000 from HSBC Hong Kong‘s correspondent account in New York; (3) HSBC Bank US debiting HSBC Hong Kong‘s same correspondent account; (4) HSBC Bank US and Deutsche Bank, New York settling a $500,000 transfer through a payment system; (5) Deutsche Bank crediting Stanbic Bank‘s correspondent account in New York; and (6) Stanbic Bank crediting Food Security and Sustainable Energy Foundation‘s account in Uganda. See App‘x at 848-57 (showing wire transfers at issue broken into component parts); see also Rena S. Miller, Cong. Rsch. Serv., IF0873, Overview of Correspondent Banking and “De-Risking” Issues (Apr. 20, 2018).
Recognizing that a subset of this series of transactions went from or to the United States does not conflict with
Indeed, courts - including the Second Circuit - have long conceived of transfers from one place to another as being severable, and resting in the United States, when moving through correspondent banks. See United States v. Daccarett, 6 F.3d 37, 54 (2d Cir. 1993) (“With each EFT at least two separate transactions occurred: first, funds moved from the originating bank to the intermediary bank; then the intermediary bank was to transfer the funds to the destination bank, a correspondent bank in Colombia.“); United States v. Prevezon Holdings, Ltd., 251 F. Supp. 3d 684, 693 (S.D.N.Y. 2017) (noting that “international wire transfers do not
Consequently, we disagree with Ho‘s view “that the government‘s strategy to separate the wire into discrete transactions was contrary to binding Second Circuit authority.” Reply Br. at 9. Indeed, Ho‘s reliance on United States v. Harris, 79 F.3d 223 (2d Cir. 1996), is misplaced. To be sure, the Harris court found, on the facts of that case, that two transactions (one from New York to Connecticut, the other from Connecticut to Switzerland) were two stages “of a single plan to transfer funds from a place in the United States to or through a place outside the United States.” Id. at 231 (internal quotation marks omitted). But Harris involved a
Ho‘s reliance on United States v. Dinero Express, Inc., 313 F.3d 803 (2d Cir. 2002), and United States v. Moloney, 287 F.3d 236 (2d Cir. 2002), is also misplaced. Ho argues that these cases stand for the proposition that the movement of funds in intermediate steps as part of a larger scheme can constitute only one transfer, regardless of how the wires are divided as a practical matter. But again, these
Dinero Express held merely that a four-step money laundering transaction could constitute a “transfer” even though there was “no individual step” that “involved the direct wiring of money from the United States to the Dominican Republic.” 313 F.3d at 805-06 (emphasis added). And Moloney likewise held “that a single money laundering count can encompass multiple acts provided that each act is part of a unified scheme.” 287 F.3d at 241. Both cases found that composite steps could permissibly comprise a scheme giving rise to liability under
Moreover, in finding that an indictment may charge in one count an overarching transaction made up of multiple transfers, Moloney emphasized that “[t]his conclusion is particularly sound because money laundering frequently involves extended sequences of acts designed to obscure the provenance of dirty money.” Id. That observation sheds light on the often complex nature of money laundering, and absent an express indication from Congress to the contrary, we
C. Ho‘s Evidentiary Challenges Are Meritless
Ho argues that the district court abused its discretion by admitting certain out-of-court statements and summary charts into evidence at trial. First, he argues that the district court erred in permitting Gadio to testify about statements made by Déby at the Chad meetings on December 8 and December 9. Second, Ho objects to the admission of Boubker Gadio‘s text message to his father concerning the Chad contract. Third, he challenges the admission of two summary charts that
We review a district court‘s evidentiary rulings for abuse of discretion. See United States v. Taubman, 297 F.3d 161, 164 (2d Cir. 2002). “To find such an abuse we must be persuaded that the trial judge ruled in an arbitrary and irrational fashion.” United States v. Pipola, 83 F.3d 556, 566 (2d Cir. 1996); see also United States v. Monsalvatge, 850 F.3d 483, 493 (2d Cir. 2017). Even if a district court abused its discretion in making an evidentiary ruling, we will not grant a new trial where the errors are harmless. See
1. The District Court Did Not Abuse Its Discretion In Admitting Déby‘s Out-of-Court Statements About Cash Payments
Ho challenges the admission of statements made by Déby to Gadio on December 8, in which Déby expressed concern about finding cash in gift boxes, as well as Déby‘s similar statements to Ho and members of the CEFC delegation on
The district court did not abuse its discretion in admitting the statements. As to the December 9 statement, in which Déby conveyed to the delegation his anger about receiving cash payments, the district court admitted the testimony as an adoptive admission by Ho under
Ho argues that his statement was merely “an effort to smooth things over diplomatically, or as a statement that Ho was and would have been impressed by Déby‘s rejection of any gift.” Ho Br. at 40. But “[w]here the defendant‘s adoption . . . purportedly is manifested by . . . ambiguous conduct,” we consider the statement‘s incriminatory content and whether it is of the type that a person would respond to with a denial “or at least with some indication that he objects to the statement as untrue.” United States v. Shulman, 624 F.2d 384, 390 (2d Cir. 1980). Here, the district court reasonably concluded that if Ho did not agree with Déby‘s representation or had not been aware of the alleged cash bribes, he would have
And because the district court appropriately admitted the December 9 statement, it also acted within its discretion in admitting the earlier December 8 statement “as context and to tell the story.” Special App‘x at 21. “When statements by an out-of-court declarant are admitted as background, they are properly so admitted not as proof of the truth of the matters asserted but rather to show the circumstances surrounding the events, providing explanation for such matters as the understanding or intent with which certain acts were performed.” United States v. Pedroza, 750 F.2d 187, 200 (2d Cir. 1984). Déby‘s statements provided context about the understanding and intent of those involved, and was relevant to contextualize the nature of the relationship among Déby, Gadio, and Ho, as well
In any event, because the substance of Déby‘s December 8 statement to Gadio reiterated Déby‘s admissible statement to Ho the following day, any error would necessarily have been harmless. See United States v. Dukagjini, 326 F.3d 45, 62 (2d Cir. 2003) (finding harmless error where jury would have reached same verdict in absence of case agent‘s hearsay testimony).
2. The District Court Properly Admitted Boubker Gadio‘s Text Message
Ho next challenges the admission of the text message from Boubker to his father referring to “our friends in China” and “their attempt to buy the president” of Chad. Ho Br. at 40. Contending that this message was “plainly hearsay,” Ho argues that the district court erroneously admitted the statement under the rule of completeness and as a prior consistent statement. Id. As to the former, Ho contends that the “rule of completeness” does not apply because “only the party adverse to the party who introduced a document” may invoke it. Id. at 41. Ho
We have previously held that statements made by third parties - here, Boubker - can constitute prior consistent statements of a testifying witness - here, Gadio - if the witness adopted the third-party statement. In United States v. Rubin, we held that notes recounting an interview with the defendant were admissible as a prior consistent statement of a testifying witness named Cox, where a different person took the notes but Cox adopted them “as accurate and in accord with his own recollection.” 609 F.2d 51, 62 (2d Cir. 1979), aff‘d, 449 U.S. 424 (1981). As in Rubin, the witness here could be said to have adopted, at the time, the view expressed in the text. Gadio, like the witness in Rubin, testified to the adoption; that is, his silence in response to Boubker‘s text reflected his contemporaneous agreement with a statement he would otherwise have been expected to dispute or refute.
Moreover, once Gadio‘s adoption of his son‘s statement is recognized, it was admissible as a prior consistent statement if the prior statement was: (1) “consistent with the witness’ in-court testimony,” (2) “‘offered to rebut an express
3. The District Court Did Not Err In Admitting The Summary Charts
Ho also challenges the admission of two summary charts that provided timelines of certain text messages, emails, and other documents admitted into evidence. He concedes that the charts accurately quote the underlying emails and text messages and could be used as demonstratives, but objects to their admission as trial exhibits available to the jury in its deliberations. Ho argues that
Under
Here, the jury was properly advised that the charts themselves did not constitute independent evidence and that it was the jury‘s duty to first determine that they accurately reflected the evidence on which they were based. And while it is true that summary charts are sometimes used to synthesize even larger volumes of documentary evidence than was the case here, see, e.g., Casamento, 887 F.2d at 1151, it was clearly not an abuse of discretion for the district court to conclude that hundreds of pages of evidence merited the use of summary charts
D. The Indictment Properly Charged Ho Under Different Sections Of The FCPA (Counts One, Four, And Five)
Ho argues that the indictment was “‘repugnant’ because it contain[ed] [a] ‘contradiction between material allegations‘” when it alleged that Ho was “a domestic concern” in one count while bringing charges that did not apply to domestic concerns in another. Ho Br. at 51-52 (quoting United States v. Cisneros, 26 F. Supp. 2d 24, 52 (D.C. Cir. 1998)); see also Malvin v. United States, 252 F. 449, 456 (2d Cir. 1918) (suggesting that “averments of [an] indictment” may be “repugnant” where they are inconsistent). He also argues that the indictment was invalid because it charged Ho under two mutually exclusive sections of the FCPA,
1. The Indictment Was Not Repugnant
Ho argues that the indictment was facially inconsistent as to material allegations, thus rendering Counts Four and Five defective, because the grand jury determined that he was a “domestic concern,” to which
We are not persuaded by Ho‘s argument that the grand jury found that Ho was himself a domestic concern. Our case law, which upholds the practice of pleading in the conjunctive without requiring that the government prove all possibilities at trial, undermines the view that the grand jury “finds” each fact alleged conjunctively in a charge on which the grand jury indicts. In United States v. McDonough, 56 F.3d 381 (2d Cir. 1995), we rejected the defendant‘s argument that because “the [grand jury] indictment charged him with two purposes in the conjunctive, the government was required to prove both at trial.” Id. at 390.
Nor is there any reason to believe that Ho was confused as to the government‘s theory of liability in Counts Four and Five. Ho clearly knew that the government was not alleging that he was a domestic concern, and the parties in fact stipulated that he “was not a citizen, national, or resident of the United States.” Tr. 829-30; see also Special App‘x at 9 (district court noting that the complaint on which Ho was arrested alleged that he “was an officer, director, employee, and agent of a domestic concern” while charging that the “NGO was a domestic concern“). Moreover, the district court expressly instructed the jury that “Counts Two and Three charge the defendant based on his status as an alleged
But even if it could be argued that the conjunctive language inserted error in the grand jury process, such error clearly would have been harmless. The Supreme Court has held that “the petit jury‘s verdict of guilty beyond a reasonable doubt demonstrates a fortiori that there was probable cause to charge the defendants with the offenses for which they were convicted,” and that “the convictions must [therefore] stand despite” error in the grand jury process. United States v. Mechanik, 475 U.S 66, 67 (1986) (upholding indictment where tandem witnesses testified before the grand jury); see also United States v. Friedman, 854 F.2d 535, 541, 583 (2d Cir. 1988) (upholding indictment even assuming government repeatedly leaked grand jury information, resulting in extensive publicity surrounding grand jury proceedings).
While Mechanik and Friedman involved errors in or surrounding the proceedings in which the grand jury reached its decision -- rather than an allegedly duplicitous indictment -- the reasoning behind those cases applies equally here.
Here, as noted, Ho was informed well before trial of the particular way in which he was alleged to have violated the FCPA, and he had ample opportunity to prepare his defense in response to that theory. We therefore cannot say that any purported inconsistency in the indictment caused him prejudice at trial, and Ho does not do much to suggest otherwise. He instead seeks to distinguish this case from Friedman and Mechanik by suggesting that “[a] procedural error in the grand jury‘s process (such as the presence of an unauthorized person in the grand jury, or a violation of grand jury secrecy rules)” is less central to the “heart of the grand jury‘s assignment” than a purportedly “fundamental contradiction in the indictment itself.” Reply Br. at 23. But this proposition is easily dismissed, since an indictment‘s purported inconsistency caused by conjunctive pleading poses no greater “theoretical potential to affect the grand jury‘s determination whether to
2. Sections 78dd-2 And 78dd-3 Of The FCPA Are Not Mutually Exclusive
But the FCPA‘s statutory language contains no indication that the provisions are mutually exclusive, or that both sections would not cover a director, like Ho, who acts on behalf of both a domestic concern -- here, the U.S. NGO -- and
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court‘s judgment.