UNITED STATES OF AMERICA, Appellee, v. DAN ZHONG, Defendant-Appellant.*
No. 19-4110
United States Court of Appeals FOR THE SECOND CIRCUIT
AUGUST TERM 2020
ARGUED: MARCH 9, 2021
DECIDED: FEBRUARY 23, 2022
On Appeal from the United States District Court for the Eastern District of New York
Dan Zhong appeals his conviction, after a jury trial, on five counts: (1) forced-labor conspiracy in violation of
ALEXANDER A. SOLOMON, Assistant United States Attorney (David C. James, Jo Ann M. Navickas, Ian C. Richardson, Craig R. Heeren, Assistant U.S. Attorneys, on the brief), for Breon Peace, United States Attorney for the Eastern District of New York, Brooklyn, New York, for Appellee.
MENASHI, Circuit Judge:
Dan Zhong appeals his conviction in the U.S. District Court for the Eastern District of New York (Donnelly, J.), after a jury trial, on five counts: (1) forced-labor conspiracy, in violation of
Zhong contends that the district court committed evidentiary errors. We agree. First, before the case was transferred, the district court (Irizarry, J.) held that it was permissible for the government to introduce evidence of uncharged criminal conduct. That evidence, however, was “significantly more sensational and disturbing than the charged crimes.” United States v. Curley, 639 F.3d 50, 62 (2d Cir. 2011).
Second, the government called one witness—and one witness only—to provide testimony of Zhong‘s personal involvement in that uncharged conduct. Yet, in violation of Rules 608(a) and 803(21), the district court did not permit Zhong to elicit testimony from other witnesses regarding that key witness‘s reputation for truthfulness.
Because “we cannot conclude with fair assurance” that “the cumulative effect of” the district court‘s erroneous evidentiary rulings “did not substantially influence the jury” in its decision to convict Zhong of the three forced-labor charges, we vacate those convictions. United States v. Al-Moayad, 545 F.3d 139, 159, 169 (2d Cir. 2008) (internal quotation marks omitted). Because the government‘s properly admitted trial evidence could support Zhong‘s forced-labor convictions, we remand for a new trial on those counts.
The erroneously admitted evidence, however, did not bear on the alien smuggling and visa fraud charges the government leveled against Zhong. Zhong separately argues that the government failed to present sufficient evidence to allow a jury to convict him on the alien smuggling count. Specifically, Zhong contends that—although the evidence shows that Rilin workers overstayed their visas and worked on projects outside the scope of their visas—the government failed to produce evidence that Zhong conspired to transport Rilin workers “in furtherance of” their unlawful presence in the United
In sum, we affirm in part, vacate in part, and remand for further proceedings consistent with this opinion.
BACKGROUND
A jury convicted Dan Zhong of five charges: (1) forced-labor conspiracy, (2) forced labor, (3) document servitude in connection with forced labor, (4) alien smuggling conspiracy, and (5) visa fraud conspiracy. The government charged Zhong with these crimes based on his work for Rilin from 2010 to 2016. To illustrate why we cannot conclude with fair assurance that the district court‘s erroneous evidentiary rulings did not substantially influence the jury‘s decision to convict Zhong of the three forced-labor charges, we first present the facts as demonstrated by the trial evidence that Zhong appears to concede was rightfully admitted. We then supplement that narrative
I
Dan Zhong served as an accredited diplomat of the People‘s Republic of China from 2001 to 2009. During that time, he held a management-level position at a Chinese construction and real estate company named Rilin, which was owned and operated by his uncle, Wenlaing Wang. Rilin employed many of Zhong‘s family members in executive-level positions. In November 2009, Zhong ended his diplomatic status and became the official head of Rilin‘s operations in the United States.
Rilin entered into agreements with the United States to bring Chinese workers to the United States to work on two projects at Chinese diplomatic facilities. The U.S. State Department approved one of these projects in 2010 and the other in 2012, and it issued visas to Rilin employees that allowed the employees to come to the United States to work on these projects. Zhong coordinated the visa applications. Once these workers were in the country, however, Rilin transported them to work at nine other worksites, including a twelve-story building on Fifth Avenue.1 These construction projects lay outside the scope of the workers’ visas. Zhong was aware of and directed this activity.
When in America, workers were subject to prohibitions against “[w]ords and deeds that are detrimental to national prestige or [Rilin‘s] reputation,” “[c]ommunicating with overseas relations (or organizations) without permission,” “stirring up trouble,” “slacking at work,” “[w]orking for a third party without permission,” “[l]eaving ... worksites and living quarters without permission,” “separat[ing] from [Rilin‘s] management and runaway to the United States,” and “[r]unning away.” App‘x 990-92. If a worker violated these prohibitions, the contract provided that the worker would be subject to “administrative sanctions and monetary penalties,” which included forfeiture of the security deposit and unpaid wages, and “repatriat[ion] to [China].” App‘x 991. In addition, the contract stipulated that the workers would reimburse Rilin for “monetary losses” that Rilin incurred as a result of the workers’ violation of these prohibitions—monetary losses that included the cost associated with, among other things, “dispatching people for search.” App‘x 991.
A government cooperating witness, Ken Wang, testified that he once heard Zhong describe what happened to a worker who escaped, saying something to the effect of “we found him, and we punish him. We want to set up a good example to the rest of workers. And if they dare to escape, or try to follow that guy‘s steps, we will beat him up badly.” App‘x 435. It is not clear when this conversation took place. In 2009, another Rilin worker, Guoliang Yan, told his co-workers that he once tried to “bring ... back” a former Rilin employee. App‘x 213.
At all times, Zhong and Rilin attempted to ensure that the workers would not reside near local Chinese communities. Rules posted in the workers’ residences prohibited them from “[c]ontacting local Chinese, overseas Chinese and overseas Chinese students” as well as from “[p]articipating in any type of parades and public gatherings, as well as accepting any type of social surveys and free tickets.” Gov‘t App‘x 218. When workers left their residences, they were to “[g]o out with at least two other people and report to the
In 2011, local law enforcement in New Jersey was called to two houses in which Rilin lodged its workers. One was a single-family residence that had been configured to accommodate twenty-eight workers and twelve workstations with computers in the basement. The doors to both houses were equipped with double-cylinder locks, which meant the doors could be locked from the outside. The officers issued violations relating to overcrowding, unsafe wiring, and other safety infractions.
After these incidents, Rilin moved the workers to more spacious residences that did not feature the same double-cylinder locks. When local authorities inspected the Rilin living premises in 2016, the authorities found that the premises were clean and not overcrowded. They also found bicycles and fishing equipment.
Rilin workers visited landmarks in New York and various other locations in the United States. They also, on at least one occasion, attended a holiday party with neighbors and helped a neighbor shovel snow. The evidence also showed that the workers had access to mobile phones.
Zhong offered stipulated testimony from three former Rilin employees,4 two of whom served as personal drivers to either Zhong or Wenliang Wang, Zhong‘s uncle and Rilin‘s owner. These former employees testified that they had positive experiences and earned
II
Zhong challenges the introduction of two categories of evidence that the district court admitted over his objection: (1) testimony about the experiences of three Rilin workers in 2001 and 2002, almost a decade before the indictment period, and (2) testimony of the government‘s forced-labor expert, Luis C. DeBaca.
A
The government called three witnesses—Kevin Liu, Zhaoyou Li, and Yuansheng Chu—to testify about their attempts to escape from Rilin in 2001 and 2002. Liu testified that after the second of two escapes, he was apprehended by a group of people, including Li, whom Rilin sent to recover him. Liu testified that these Rilin employees “mobbed” him and injured his face; “there was blood everywhere.” App‘x 271-73. He was then confined in a room at the Chinese consulate, where other Rilin workers monitored him. While imprisoned, Liu received a phone call from Wenliang Wang, who warned Liu not to flee again, lest he suffer a broken leg or risk harm to his family in China.
Li testified that Rilin directed him to help apprehend Liu and to guard Liu‘s room. Li also confirmed the substance of Wenliang Wang‘s threatening call to Liu. Li further testified that a Rilin crew tried to apprehend him when Li subsequently defected and that the crew lacerated his back with a construction tool during this attempt. The government showed pictures of the injury. Finally, Chu testified
When Zhong objected before the trial to the introduction of this evidence, the government said the witnesses would establish that Zhong was personally involved in the conduct. At trial, however, none of these witnesses testified to Zhong‘s personal involvement. The government repeatedly invoked these witnesses’ testimony in its opening and closing statements and asserted that Zhong was responsible for sending “rendition squads” to abduct these workers. App‘x 755. In fact, the government began its opening statement with its own dramatic recounting of Liu‘s abduction. Additionally, although the government did not prosecute Zhong for these alleged incidents,5 the district court instructed the jury that it could consider this testimony as direct evidence of Zhong‘s participation in a forced-labor conspiracy from 2010 to 2016.
The government called a former prosecutor and diplomat, Luis C. DeBaca, as an expert witness to describe “the complex nature of forced labor and human trafficking operations” and “particular aspects of human trafficking and forced labor that are prevalent in, or unique to, the People‘s Republic of China.” App‘x 113.1. DeBaca was a fellow at Yale University who studied “Modern Slavery.” App‘x 113.1. Previously, he served as ambassador-at-large for the U.S. State Department Office to Monitor and Combat Trafficking in Persons, which coordinates U.S. government activities involving international forced-labor practices.
DeBaca offered testimony covering topics including forced labor, document servitude, alien smuggling, and debt bondage; he provided definitions for those terms in his testimony. He testified about why organizations engage in forced labor, the emotional pleasure that perpetrators of forced-labor operations derive from their activities, the typical methods used to perpetrate forced labor, and reasons why workers may remain in servitude. He discussed the Rilin employment contracts already in evidence and identified aspects he labeled “red flags” or “troubling.” App‘x 375-76, 384. To provide background for his expert views, he discussed the history of slavery and sharecropping in the United States. He also told the jury that forced-labor schemes involving migrant Chinese labor and Chinese businesses operating abroad are common, especially in the construction industry. He testified about the prevalence of forced labor in China, including “reeducation through labor camps” for Uighur Muslims and forced labor for the mentally and physically disabled, whom, DeBaca reported, Chinese businessmen “scoop[] up
The government referenced DeBaca‘s testimony numerous times in its closing statement, asking the jurors to rely on that testimony in determining whether Zhong‘s actions constituted forced labor.
III
In addition to objecting to the admission of the two categories of evidence, Zhong sought to impeach the credibility of the government‘s cooperating witness, Ken Wang. No other witness provided testimony that Zhong engaged in conduct that was similar to the pre-indictment conduct described by Liu, Li, and Chu. Yet the district court prevented Zhong from introducing evidence regarding Wang‘s reputation for truthfulness as well as evidence from a separate proceeding to which Wang was a party in which the court had ruled against Wang and questioned his testimony.
Zhong also asked the district court to instruct the jury that one does not violate the forced-labor statute when he warns an employee of “adverse but legitimate consequences” of violating an employment agreement. The court rejected this request.
The jury returned a verdict of guilty on all five counts. The district court sentenced Zhong to 190 months in prison on the forced-labor and forced-labor-conspiracy counts. In doing so, it rejected Zhong‘s argument that his sentence should be reduced due to the conditions of his confinement before and during trial. The district court also sentenced Zhong to a concurrent 108-month sentence for his alien smuggling conspiracy conviction. Finally, the district court
Zhong timely appealed, challenging his conviction and his sentence.
DISCUSSION
Zhong disputes his conviction and his sentence on several grounds. First, Zhong claims that the district court erred by refusing to give an “adverse but legitimate consequences” jury instruction with respect to the forced-labor charges. Second, Zhong argues that the district court committed three sets of evidentiary errors that led the jury to convict him: allowing testimony of the 2001 and 2002 pre-indictment conduct, preventing Zhong‘s attempts to impeach Ken Wang, and permitting DeBaca‘s testimony. Third, Zhong insists that the government presented insufficient evidence to allow a reasonable jury to convict him either of the forced-labor or of the alien smuggling counts. Fourth, Zhong claims that his sentence is unreasonable.
We find merit in Zhong‘s second argument—but not in the remaining arguments—and therefore vacate Zhong‘s conviction on the three forced-labor counts and remand for a new trial on those charges. We affirm Zhong‘s alien smuggling and visa fraud convictions. While our vacatur of the forced-labor convictions requires us to remand for resentencing on the visa fraud count, Zhong‘s alien smuggling sentence remains intact.
I
Zhong argues that the district court erred by refusing to instruct the jury that it could not convict him of forced labor if it found
We review challenges to jury instructions de novo. United States v. Quattrone, 441 F.3d 153, 177 (2d Cir. 2006). “A jury instruction is erroneous if it misleads the jury as to the correct legal standard or does not adequately inform the jury on the law.” United States v. Dinome, 86 F.3d 277, 282 (2d Cir. 1996). We consider a challenged jury instruction “not in isolation but as a whole to see if the entire charge delivered a correct interpretation of the law.” United States v. Ng Lap Seng, 934 F.3d 110, 129 (2d Cir. 2019) (internal quotation marks omitted). A harmless error standard of review applies if the defendant objected to the instruction, which Zhong did. Id.
The forced-labor statute penalizes any person who “knowingly provides or obtains the labor or services of a person” through, among other things, “serious harm or threats of serious harm to that person or another person.”
While there may be some forced-labor prosecutions in which a court would abuse its discretion by failing to give such an instruction—such as one in which the government presented evidence of employer conduct that had a coercive effect but was undeniably legitimate as a matter of law—Zhong has failed to demonstrate that this case required such an instruction. Zhong argues that without the instruction the jury could have convicted him of forced labor based solely on the threatened consequences provided in Rilin workers’ “voluntarily entered into employment agreement[s].” App‘x 113.58; Appellant‘s Br. 57. Perhaps. But Zhong offers no support for his implicit assumption that the consequences of a “voluntarily entered into employment agreement” are always legitimate and can never amount to serious harm. That assumption is inconsistent with case law recognizing that a victim‘s initial willingness to perform certain labor does not preclude the possibility that the victim‘s continued labor may become forced. See United States v. Marcus, 628 F.3d 36, 45 (2d Cir. 2010); see also United States v. Mussry, 726 F.2d 1448, 1454 n.6 (9th Cir. 1984) (“Even though a person may come to a job voluntarily, subsequent coerced service constitutes involuntary servitude.“) (citing United States v. Harris, 701 F.2d 1095, 1100 (4th Cir. 1983)), abrogated on other grounds, United States v.
II
We turn next to Zhong‘s claim that the district court made erroneous and prejudicial evidentiary decisions. We review evidentiary rulings for abuse of discretion. United States v. Scully, 877 F.3d 464, 473 (2d Cir. 2017). “A district court has abused its discretion if it has (1) based its ruling on an erroneous view of the law, (2) made a clearly erroneous assessment of the evidence, or (3) rendered a decision that cannot be located within the range of permissible decisions.” Warren v. Pataki, 823 F.3d 125, 137 (2d Cir. 2016).
A
Zhong argues that the district court should not have permitted the introduction of evidence regarding violence and threats visited upon Liu, Li, and Chu in 2001 and 2002, eight years before the indictment period began. We agree.
Our cases applying Rules 403 and 404(b) of the Federal Rules of Evidence guide our decision. Rule 404(b) provides that “[e]vidence of any other crime, wrong, or act is not admissible to prove a person‘s character in order to show that on a particular occasion the person
Still, a district court may not freely admit evidence of conduct simply because it relates to the charged crimes or the government offers it for a purpose other than to demonstrate the defendant‘s propensity to commit the alleged conduct. Our “inclusionary rule is not a carte blanche to admit prejudicial extrinsic act evidence [that] is offered to prove propensity,” id., or otherwise to allow “propensity evidence in sheep‘s clothing,” United States v. McCallum, 584 F.3d 471, 477 (2d Cir. 2009).
Additionally, the rule permits the government to offer “‘other act’ evidence ... to show knowledge or intent” only when “such evidence [is] ‘sufficiently similar to the conduct at issue’ to permit the
In this case, the government charged Zhong for his Rilin-related activities between 2010 and 2016. The government‘s trial evidence showed that during the 2010-16 period, Rilin and Zhong used harsh employment contracts, held workers’ passports and visas, housed workers in crowded residences that could be locked from the outside, and, in one instance, obtained a judgment against the family of an escaped employee and told the family that they owed 1 million RMB.
Nevertheless, the government sought to bolster its case by presenting evidence of coercive measures that were more extreme—and that took place almost a decade before the indictment period—including kidnappings, weapon use, imprisonment, threats of physical injury, and evictions of workers’ families. The government argues that this evidence of uncharged criminal conduct was admissible both to “complete the story” of Zhong‘s charged crimes, Robinson, 702 F.3d at 37, and to prove Zhong‘s “intent,” “knowledge,” and “plan[ning]” of the charged crimes of forced labor during the indictment period,
If “necessary,” the government may introduce evidence of uncharged criminal conduct “to complete the story of the crime on trial,” not to tell a new one. Robinson, 702 F.3d at 37. Here, the government‘s evidence from the indictment period—drawing all inferences in its favor—tells a story of a forced-labor scheme accomplished through lopsided employment contracts, travel
restraints, restrictive living conditions, threats of financial ruin, and other vague threats. The pre-indictment evidence from 2001 and 2002, on the other hand, conveys a grimmer narrative—a forced-labor scheme perpetrated through force, violence, evictions of workers’ families from their homes, and threats of physical injury.8 The government might have better connected the narratives if it demonstrated—as it promised the district court it would—that Zhong was personally involved with these specific acts, but the government did not do so. The testimony the government offered established only that some of Zhong‘s family members participated in these events. While the government claims that its evidence demonstrated that Zhong was “a principal” in Rilin‘s U.S. operations at the time, the evidence it marshals does not connect Zhong personally to the actions described by the government‘s witnesses.
Our precedents demand that “[w]hen ‘other act’ evidence is offered to show knowledge or intent“—or, by extension, planning—that “evidence must be ‘sufficiently similar to the conduct at issue’ to permit the jury to draw a reasonable inference of knowledge or intent from the other act.” Cadet, 664 F.3d at 32. Yet the conduct that the government proved occurred during the indictment period—the use of allegedly coercive contracts, holding Rilin workers’ passports and visas, housing workers in overcrowded conditions with doors that
Even if the evidence from 2001 and 2002 completed the story of the crimes charged against Zhong, we would nevertheless conclude that the district court abused its discretion in admitting that evidence. We have approved the admission of evidence of uncharged crimes when the uncharged crimes “did not involve conduct more inflammatory than the charged crime.” United States v. Paulino, 445 F.3d 211, 223 (2d Cir. 2006) (quoting United States v. Livoti, 196 F.3d 322, 326 (2d Cir. 1999)); see also United States v. Reichberg, 5 F.4th 233, 242 (2d Cir. 2021) (holding that the district court did not abuse its discretion to admit evidence of uncharged conduct because, inter alia, that evidence “was no more inflammatory than the facts of the charged scheme“); United States v. Roldan-Zapata, 916 F.2d 795, 804 (2d Cir. 1990) (holding that prior act evidence was not unfairly prejudicial because it “did not involve conduct any more sensational or disturbing than the crimes charged“). Here, by contrast, the evidence of uncharged crimes described conduct that was “significantly more sensational and disturbing than the charged crimes,” Curley, 639 F.3d at 62, and could “lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged,” Paulino, 445 F.3d at 223 (quoting Old Chief v. United States, 519 U.S. 172, 180 (1997)). Under these circumstances,
B
Next, Zhong contends that the district court erred by preventing his efforts to impeach Ken Wang by offering testimony regarding Wang‘s reputation for truthfulness. We agree.
These rulings were erroneous. One portion of the trial transcript suggests that the district court disallowed this evidence because it was hearsay. See App‘x 225. But reputation evidence “must be based on hearsay,” United States v. Lynch, 366 F.2d 829, 832 (3d Cir. 1966), and
The government attempts to defend these decisions on two alternative grounds, but neither is persuasive. First, the government argues that Zhong‘s witnesses lacked personal knowledge of Wang‘s reputation for truthfulness. See
Zhong also sought to impeach Wang by cross-examining him about an alleged adverse credibility determination that a New Jersey court made against Wang during a hearing on Wang‘s application for a firearms permit. See
C
Zhong additionally challenges Luis DeBaca‘s expert testimony. Under
Zhong argues that the issue before the jury for the forced-labor charges—whether Zhong “obtain[ed] the labor or services” of Rilin workers through actual or threatened force, physical restraint, or other serious harm sufficient “to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing labor or services in order to avoid incurring that harm,”
Insofar as Zhong argues that forced labor is categorically an improper subject for expert testimony, we disagree. As DeBaca‘s testimony illustrates, forced-labor enterprises, especially those involving foreign workers, may involve complex activities that jurors
While the district court therefore did not err in allowing the government to call DeBaca to testify, it still had a duty to ensure that DeBaca‘s testimony did not exceed its proper scope. Expert witnesses may not “usurp[] the jury‘s function” by “providing an overall conclusion of criminal conduct.” Dukagjini, 326 F.3d at 54. It is important to distinguish “the legitimate use of an ... expert ... to explicate an organization‘s ... structure” from “the illegitimate and
In this case, DeBaca not only explained the inner workings of forced-labor operations in general; he also provided a detailed analysis of the employment contract Rilin used, App‘x 372-88, commenting that one clause was “troubling” and another raised “major red flags,” App‘x 375-76, 384. Having already heard DeBaca‘s expert explanations regarding forced-labor schemes in general, the jury did not need his analysis of the Rilin contract in order to determine whether that contract was sufficiently coercive to cause Zhong to violate the forced-labor statute. The jury had no legitimate use for DeBaca‘s color commentary about its “troubling” and “red
Most importantly, portions of DeBaca‘s testimony severely prejudiced Zhong. Those portions bore, at best, tangential relevance to his case. DeBaca did not limit his testimony to explaining the details of forced-labor operations in general and the facts of Zhong‘s case. He specifically discussed the motivations for such organizations and China‘s human rights record with respect to forced labor. At one point, DeBaca said that people employ forced labor due to a “combination of profit maximization [objectives] on the one hand, and almost a pleasure that is taken in being able to have this type of control over other people.” App‘x 328-29. He discussed the history of slavery and sharecropping in the United States as providing background for his opinions. App‘x 311-12, 337, 346. After the government “turn[ed his] focus to forced labor issues specific to or particularly problematic in China,” App‘x 361, DeBaca highlighted China‘s poor record with respect to forced labor. He testified that “Chinese labor trafficking” was a “routine problem” that “cropp[ed] up” “all over the world.” App‘x 364. He spoke about how Chinese businessmen would “scoop[] up” “mentally” and “physically challenged” people who were “begging” “in railway stations” and “take[] [them] out to brick kilns ... or to other very dangerous and
Much of this evidence is hardly relevant to Zhong‘s case. See
Yet even if some of the testimony might have been relevant, as the government argues, to enable the jury to understand “the unique social, political and economic factors that can render Chinese workers initially susceptible to joining a forced labor scheme and to fear leaving the scheme,” Gov‘t Br. 57, the testimony improperly risked prejudicing the jury against Zhong, a Chinese man who was associated with the Chinese government. We have held that an expert may not “[i]nject[] ... a defendant‘s ethnicity into a trial as evidence of criminal behavior” because such testimony “is self-evidently improper and prejudicial.” United States v. Cruz, 981 F.2d 659, 664 (2d Cir. 1992); see also Jinro Am. Inc. v. Secure Investments, Inc., 266 F.3d 993, 1007 (9th Cir. 2001) (holding that the district court erred in “[a]llowing an expert witness in a civil action” brought against a Korean business
The government also may not invite the jury to find guilt based on a defendant‘s associations. See Cruz, 981 F.2d at 663 (“[G]uilt may not be inferred from the conduct of unrelated persons.“); United States v. Castillo, 924 F.2d 1227, 1231 (2d Cir. 1991) (suggesting that “expert testimony was employed not for the permissible purpose of assisting the jury to understand the facts at issue, but rather for the impermissible purpose of encouraging the inference of appellants’ guilt from the behavior of unrelated persons“); see also United States v. Lopez-Medina, 461 F.3d 724, 741-42 (6th Cir. 2006) (“Evidence that demonstrates only ‘guilt by association’ ... is irrelevant to the question of a defendant‘s actual guilt.“); United States v. Polasek, 162 F.3d 878, 884 n.2 (5th Cir. 1998) (citing cases). The prejudicial nature of this testimony is further heightened by the fact that the government questioned DeBaca about the Rilin employment contract immediately following the general testimony about forced labor in China. See App‘x 369-70. This testimony, therefore, improperly invited the jury to find Zhong guilty by association and the district court should have excluded it under
D
Having concluded that the district court made erroneous evidentiary rulings, we now address whether those errors warrant vacating Zhong‘s convictions. Even if a district court errs, a defendant ordinarily is not entitled to a new trial if those errors were “harmless—i.e., ... unimportant in relation to everything else the jury considered on the issue in question.” Cameron v. City of New York, 598 F.3d 50, 61 (2d Cir. 2010).14 We may hold that an evidentiary error is harmless only “if we can conclude with fair assurance” that the wrongly excluded or admitted evidence would not have or “did not substantially influence the jury.” Id. at 61 (internal quotation marks omitted); see also Kotteakos v. United States, 328 U.S. 750, 765 (1946) (“[I]f one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected ... [and] the conviction cannot stand.“). In applying that standard, we consider “(1) the overall strength of the prosecution‘s case; (2) the prosecutor‘s conduct with respect to the improperly admitted evidence; (3) the importance of the wrongly admitted evidence; and (4) whether such evidence was cumulative of other properly admitted evidence.” Al-Moayad, 545 F.3d at 164. Additionally, “the cumulative effect of a trial court‘s errors, even if they are harmless when considered singly, may requir[e] reversal” or vacatur of a conviction. Id. at 178. The government bears the burden of proving
In this case, “we cannot conclude with fair assurance” that “the cumulative effect of” the district court‘s erroneous evidentiary rulings “did not substantially influence the jury” in its decision to convict Zhong of the three forced-labor charges. Al-Moayad, 545 F.3d at 169, 178 (internal quotation marks omitted). The testimony about the events of 2001 and 2002 formed a central component of the government‘s case. In fact, the story of one 2001 abduction was “quite literally the first thing mentioned in the government‘s opening statement.” United States v. Stewart, 907 F.3d 677, 689 (2d Cir. 2018) (holding that such use of inadmissible evidence undermines any argument that its admission was harmless); see App‘x 124. The government mentioned these events multiple times in its opening and its closing and told the jury on multiple occasions that Zhong himself was personally responsible for ordering these actions. Furthermore, if Zhong had been able to impeach Wang with reputation testimony, the jury might have had trouble connecting Zhong with the violence that occurred in 2001 and 2002. No other government witness testified that Zhong participated in or knew about actions like those described as having occurred in that period. Finally, the prejudicial portions of DeBaca‘s testimony likely tainted the jury‘s assessment of the forced-labor-related evidence the government presented from the indictment period. Accordingly, we vacate Zhong‘s convictions for forced labor, forced-labor conspiracy, and document servitude in connection with forced labor.
We reach a different conclusion, however, with respect to Zhong‘s alien smuggling and visa conspiracy convictions. The prejudicial effect of the district court‘s evidentiary errors was to lead
With Zhong‘s evidentiary objections resolved, we address his sufficiency-of-the-evidence claims. “We review de novo challenges to the sufficiency of the evidence,” viewing “the evidence in the light most favorable to the government, drawing all inferences in the government‘s favor and deferring to the jury‘s assessments of the witnesses’ credibility.” United States v. Sabhnani, 599 F.3d 215, 241 (2d Cir. 2010). In undertaking this review, we “consider the government‘s case in its totality rather than in its parts,” mindful that the sufficiency-of-the-evidence test may be “satisfied by circumstantial evidence alone.” United States v. Hawkins, 547 F.3d 66, 70-71 (2d Cir. 2008) (alteration omitted). A defendant, moreover, cannot prevail on a sufficiency-of-the-evidence challenge “if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Kozeny, 667 F.3d 122, 139 (2d Cir. 2011) (internal quotation marks omitted).
Zhong argues that the government did not present sufficient admissible evidence to allow a reasonable jury to convict him of either the forced-labor or the alien smuggling charges and that we therefore must reverse the district court‘s decision to deny Zhong‘s motion for an acquittal. We disagree.
A
To convict Zhong of the forced-labor charges, the jury needed to conclude that, through Rilin‘s actions, Zhong “knowingly provide[d] or obtain[ed] the labor or services” of Rilin workers through one or more of the methods prohibited by the forced-labor statute.
Even without the erroneously admitted material, the government‘s evidence would allow a reasonable jury to come to those conclusions. That evidence showed that (1) Rilin workers had to tender a large security deposit before they could join the company; (2) even though Rilin workers’ wages are higher than one would expect from domestic construction work, Rilin workers’ families received only a small portion of that income while the workers were in the United States, and Rilin paid the bulk of that income only upon the workers’ return; (3) Rilin had the authority to decide when a worker‘s tour of duty ended; (4) Rilin imposed rules limiting its
Based on this evidence, a “rational trier of fact could have found,” Kozeny, 667 F.3d at 139, that Zhong knowingly or intentionally visited harm on Rilin workers or threatened them with harm in a manner “sufficiently serious to compel a reasonable person in [the Rilin workers‘] position to remain in [Rilin‘s] employ, against [their] will and in order to avoid such threats of harm, when [they] otherwise would have left,” Muchira, 850 F.3d at 620 (emphasis omitted). And a jury could further conclude that Zhong‘s actions did, in fact, compel Rilin workers to remain working for Rilin when they otherwise would have left, and Zhong thus “obtain[ed] the[ir] labor or services” in violation of the forced-labor statute.
Zhong protests that a reasonable jury could not so conclude unless it heard testimony from Rilin workers that Zhong‘s actions compelled them to work for Rilin against their will. The government
B
As for the alien smuggling count, the government charged Zhong with conspiring to violate
The alien smuggling statute‘s “in furtherance” element requires that—to give rise to liability under the statute—the transportation at issue must “help, advance, or promote the alien‘s illegal entry or continued illegal presence in the United States.” United States v. Barajas-Chavez, 162 F.3d 1285, 1288 (10th Cir. 1999); see also Furtherance, Black‘s Law Dictionary (11th ed. 2019) (defining “furtherance” as “[t]he act or process of facilitating the progress of something or of making it more likely to occur; promotion or advancement“). On this understanding, transporting illegal aliens to work and back does not qualify as alien smuggling unless the transportation helped the illegal alien to maintain his illegal presence.
Our sister circuits have variously described what additional showing the in-furtherance element requires. Some require that the transportation have a “direct or substantial” (as opposed to an “incidental“) relationship to maintaining the alien‘s illegal presence. United States v. Moreno, 561 F.2d 1321, 1323 (9th Cir. 1977); see also United States v. Velasquez-Cruz, 929 F.2d 420, 422-23 (8th Cir. 1991) (adopting Moreno as the “[p]roper [t]est” for applying the in-furtherance element). Others have adopted an intent-based requirement pursuant to which a defendant must “transport[] the illegal aliens for the purpose of furthering their illegal presence in the United States.” Stonefish, 402 F.3d at 699 (emphasis added). Still others articulate less demanding intent-based variations of these approaches, see Barajas-Chavez, 162 F.3d at 1288 (“The statute requires that a defendant know or act in reckless disregard of the fact that an
Our court has yet to take a position on this issue, and we need not do so here. In this case, the government‘s evidence was sufficient to allow the jury to convict Zhong of the alien smuggling charge under any of these approaches. The government presented evidence of the lengths to which Rilin would go to limit the contact its workers would have with members of the community and how it policed the outside contact that might occur. Rilin and Zhong purposefully housed Rilin employees away from local Chinese communities and instructed the employees not to speak with local Chinese speakers. House rules required that workers not venture out alone, report their destinations when they went out as a group, and refrain from participating in large public events. And at least until 2011, Rilin housed workers in facilities that locked from the outside. As the government explains, a jury could have concluded from this evidence that Zhong led an “effort to conceal and isolate the workers from social contact” at least in part to “limit[] the opportunities for others to speak to them and learn” about their circumstances, which might lead to actions that would disturb Rilin‘s operation. Gov‘t Br. 85. Furthermore, the jury could have reasonably concluded that Rilin‘s decision to transport its workers directly to and from the unapproved worksites formed “an integral part of the bubble that Zhong and his
Zhong argues that other evidence demonstrates that he did not seek to shield Rilin workers from public view and that Rilin‘s transportation of workers could not have been part of any effort to ensure they avoided detection. Specifically, Zhong points to the facts that Rilin workers sometimes mingled with their neighbors, toured the country, and, when they were at the illegal worksites, worked openly, wore Rilin jackets, and attended OSHA trainings. While this evidence might point in the other direction, it did not require the jury to acquit Zhong on the alien smuggling charge. A “rational trier of fact could have found,” Kozeny, 667 F.3d at 139, that Rilin did not conceal its workers entirely but that controlling the workers’ transportation to and from the worksites was still part of the effort to limit the workers’ exposure. The jury might have concluded, for example, that Rilin did not conceal the workers under every circumstance for fear of raising suspicion or for other prudential considerations, but it nevertheless did so under these circumstances. Because a rational juror could have concluded that the transportation was in furtherance of the workers’ illegal presence, the district court did not err in denying Zhong‘s motion for acquittal on the alien smuggling conspiracy charge. Because we have determined that the district court‘s evidentiary errors had little—if any—impact on the jury‘s decision to convict Zhong on that count, we affirm that conviction.
Finally, we address Zhong‘s sentence. The district court imposed a 190-month term of imprisonment for Zhong‘s forced-labor and forced-labor-conspiracy convictions. Our decision to vacate those convictions extinguishes that sentence. The district court imposed a sixty-month term of imprisonment—or perhaps two concurrent sixty-month terms, the judgment is unclear, see App‘x 1514—for Zhong‘s convictions for document servitude in connection with forced labor and for visa fraud conspiracy, to run concurrently with his other sentences. Our decision to vacate the document servitude conviction requires us to vacate the sixty-month sentence and remand Zhong‘s visa fraud conspiracy conviction for resentencing. Finally, the district court imposed a concurrent sentence with a 108-month term of imprisonment for Zhong‘s alien smuggling conviction, which we have affirmed. Finding no procedural unreasonableness with this sentence, we affirm.17
“Procedural error occurs in situations where, for instance, the district court miscalculates the Guidelines; treats them as mandatory; does not adequately explain the sentence imposed; does not properly consider the
Zhong argues that the district court improperly applied a
Before the district court, Zhong requested that his sentence be reduced because of the conditions of his pretrial confinement at MDC-Brooklyn. We have recognized that the “severity of the conditions of
Zhong argues that the district court improperly failed to “go further and explain why [it] ... rejected” this “nonfrivolous reason[] for imposing a different sentence.” Corsey, 723 F.3d at 377. Even assuming the argument was “nonfrivolous” and merited a response, the district court explained why it rejected the argument when it said the argument was hypocritical. Regardless, our recognition that the “severity of the conditions of confinement” is a “not unreasonable” basis for a shorter sentence, Stewart, 590 F.3d at 144, does not mean a district court must impose a lower sentence in such a scenario.
Zhong also argues that the district court failed “to adequately explain the chosen sentence.” United States v. Pugh, 945 F.3d 9, 27 (2d Cir. 2019) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). Zhong is incorrect. The district court reviewed the
A district court may apply an enhancement if it concludes—based on its own assessment—that the preponderance of the evidence demonstrates that the enhancement should apply. See United States v. Ryan, 806 F.3d 691, 693-94 (2d Cir. 2015);
CONCLUSION
To summarize, we hold:
- The district court did not err in failing to give an “adverse but legitimate consequences” jury instruction.
- The district court erred when it made evidentiary errors including:
- allowing the government to present evidence relating to Rilin‘s violent and threatening activity in 2001 and 2002,
- preventing Zhong from introducing evidence regarding Ken Wang‘s reputation for truthfulness, and
- allowing expert Luis DeBaca to interpret the government‘s evidence and give prejudicial testimony that was largely irrelevant,
respect to Zhong‘s alien smuggling and visa fraud convictions. - The district court did not err in refusing to allow Zhong to cross-examine Ken Wang about his New Jersey court proceeding or in concluding that forced-labor operations are a proper subject for expert testimony.
- Even shorn of the erroneously admitted evidence, the government presented sufficient evidence to allow a reasonable jury to convict Zhong of the forced-labor charges.
- The government presented sufficient evidence to allow a reasonable jury to convict Zhong of the alien smuggling charge.
- Zhong‘s sentence for the alien smuggling charge was not unreasonable.
Accordingly, we VACATE Zhong‘s convictions and the associated sentences on the three forced-labor counts: forced labor, forced-labor conspiracy, and document servitude in connection with forced labor, and REMAND for a new trial on those counts consistent with this opinion. At that trial, the government may not introduce evidence of Rilin‘s violent and threatening activity in 2001 and 2002. Furthermore, if the government calls DeBaca to testify, the district court must ensure that DeBaca does not venture into topics inappropriate for expert testimony. Additionally, we AFFIRM Zhong‘s conviction for alien smuggling conspiracy and its associated sentence. Finally, we AFFIRM Zhong‘s visa fraud conspiracy conviction. Because the district court may have imposed a single