United States v. Approximately $299,873.70 Seized from A Bank of Am. Account

15 F.4th 1332

UNITED STATES of America, Plaintiff-Appellee,

v.APPROXIMATELY $299,873.70 SEIZED FROM A BANK OF AMERICA ACCOUNT, ending in the number 5538 held by an individual identified as P.Q., et al., Defendants,Approximately $281,110.00 Seized From an East West Bank Account, ending in the number 2471 held by an individual identified as Z.D., Approximately $297,110.00 Seized From an East West Bank Account, ending in the number 4817 held by an individual identified as W.H., Approximately $249,816.00 Seized From an East West Bank Account, ending in the number 8289 held by an individual identified as H.C., Approximately $299,983.49 Seized From A J.P. Morgan Chase Account, ending in the number 0350 held by an individual identified as L.G., Approximately $278,952.11 Seized From an East West Bank Account, ending in the number 4841 held by an individual identified as M.Y., Defendants-Appellants.

No. 20-11107

United States Court of Appeals, Eleventh Circuit.

Date Filed: October 13, 2021

Christopher John Bodnar, Scott Alan Gray, U.S. Attorney Service - Southern District of Alabama, U.S. Attorney's Office, Mobile, AL, for Plaintiff-Appellee.

Richard Earl Shields, Richard E. Shields, Esquire, Mobile, AL, Robert G. Amsel, Ross Amsel Raben Nascimento, PLLC, Miami, FL, for Defendants-Appellants Approximately $281,110.00 Seized From an East West Bank Account, Approximately $297,110.00 Seized From an East West Bank Account, Approximately $249,816.00 Seized From an East West Bank Account, Approximately $299,983.49 Seized From a J.P. Morgan Chase Account.

Theodor Bruening, David Hecht, Minyao Wang, Hecht Partners, LLP, New York, NY, Steven J. Pritchett, Townsend & Lockett, LLC, Atlanta, GA, for Defendant-Appellant Approximately $278,952.11 Seized From an East West Bank Account.

Before William Pryor, Chief Judge, Lagoa, Circuit Judge, and Schlesinger,^* District Judge.

William Pryor, Chief Judge:

The main issue on appeal is whether foreign nationals have a constitutional right to enter the United States to attend a civil forfeiture trial involving their property. Several Chinese nationals paid hundreds of thousands of dollars to an expansive, multinational criminal enterprise to obtain immigration visas based on non-existent employment at non-existent businesses. The United States brought an in rem action to forfeit money the Chinese nationals deposited in American bank accounts as part of the visa scam. Some of the Chinese nationals were unable to enter the United States to attend the trial, but they were represented by counsel throughout the proceedings. Five Chinese nationals who received unfavorable verdicts argue that their inability to attend trial violated the Due Process Clause of the Fifth Amendment. Because the district court did not violate the Due Process Clause and we discern no other basis to disturb the jury's verdict, we affirm.

I. BACKGROUND

The EB-1C immigration visa permits "[c]ertain multinational executives and managers" to move to the United States "to continue to render services to the same employer" for whom they worked abroad "or to a subsidiary or affiliate thereof." 8 U.S.C. § 1153(b)(1)(C). Like other employment-based visas, the EB-1C visa provides the recipient a basis for becoming a lawful permanent resident and perhaps later a citizen.

A group of Americans and co-conspirators based in China schemed to obtain EB-1C visas fraudulently for Chinese nationals. The conspirators would solicit from an American business certain "business documents, including tax returns[ ] [and] invoices." United States v. Jimenez , 972 F.3d 1183, 1187 (11th Cir. 2020). The conspirators would then file an immigration-visa petition on behalf of a Chinese client, falsely representing in the petition that the client's Chinese employer had entered into a joint venture with the American business. Id. at 1185, 1187–89. After the government granted the petition, the "Chinese-national beneficiary [would] obtain[ ] an EB-1C work visa and immigrate[ ] to the United States but [would] never actually work[ ] for the [domestic] business or the fictitious joint venture." Id. at 1185. To make the joint venture appear legitimate, the conspirators instructed each client to deposit about $300,000 into an American bank account that the client owned. The clients complied.

Investigators from the Department of Homeland Security and the Internal Revenue Service learned of the scheme after hearing about an individual in Alabama soliciting American businesses to petition for foreign nationals to come into the United States to work for them. The United States secured the conviction of four of the leaders of the criminal scheme, but it did not prosecute any of the Chinese clients. Instead, it brought an in rem action in the district court seeking forfeiture of the funds the clients had moved into domestic bank accounts as part of the scheme. Fourteen Chinese nationals filed claims for the funds in thirteen of the seized accounts.

In August 2019, the attorney for some of the Chinese nationals told the district court that the State Department had denied four of his clients a visa to attend the forfeiture trial, set for October. The Assistant United States Attorney explained that his office had no power to direct the State Department to grant the visas and that it understood the denials "were, at least in part, because [the Chinese nationals] had previously attempted to obtain EB-1C immigration visas through a proven criminal fraud scheme." The United States Attorney worked with the Chinese nationals’ attorney and the Department of Homeland Security to try and obtain parole letters granting the four Chinese nationals entry into the country without a visa, but there was insufficient time before trial to complete the process.

On October 8, 2019, a week before trial, the four Chinese nationals filed a motion to dismiss the forfeiture claims against their funds. The Chinese nationals argued that their inability to attend trial in person violated the Due Process Clause of the Fifth Amendment by preventing them from presenting a statutory "innocent-owner" defense. See 18 U.S.C. § 983(d)(1) ("An innocent owner's interest in property shall not be forfeited[.]"). The district court denied the motion. The district court explained that the Chinese nationals had not "sought other means to present their testimony," such as by video conference, and that their counsel would be able "to present their ... innocent owner defense, and cross examine the witnesses."

At trial, the United States presented evidence of the criminal scheme, the Chinese nationals’ involvement in the scheme, and their transfer of funds into domestic bank accounts as part of the scheme. All the Chinese nationals were represented by counsel at trial. Four Chinese nationals attended the trial in person and testified on their own behalf. None of the others called witnesses as part of their case-in-chief.

Min Yang, one of the Chinese nationals, asked the district court to instruct the jury that the government bore the burden of proving that the Chinese nationals transferred the money into the United States "with the intent to promote the carrying on of the alleged criminal visa fraud scheme." The district court rejected the request. Instead, it instructed the jury that the government bore the burden of proving that the "funds made the ... visa fraud scheme easy or less difficult or ensured that the scheme would be more or less free from obstruction or hinderance." In their closing statements to the jury, all the Chinese nationals argued that the government had not satisfied its burden of proof and that they were entitled to recover the seized funds because they were innocent owners who were unaware of the criminal conduct.

The jury found that the United States had satisfied its burden of proof as to all the funds. The jury also found that five Chinese nationals—four of whom had testified—had proved that they were innocent owners entitled to the return of their funds. It rejected the innocent-owner defense of the remaining Chinese nationals. And the district court denied a motion by Min Yang for judgment as a matter of law or for a new trial.

II. STANDARDS OF REVIEW

Two standards govern our review. We review whether a due process violation occurred de novo . Stansell v. Revolutionary Armed Forces of Colom. , 771 F.3d 713, 725 (11th Cir. 2014). We also review de novo a ruling on a motion for judgment as a matter of law. See Lamonica v. Safe Hurricane Shutters, Inc. , 711 F.3d 1299, 1312 (11th Cir. 2013). And we review for abuse of discretion both a refusal to give a requested jury instruction, id. at 1309, and a denial of a motion for a new trial, Lipphardt v. Durango Steakhouse of Brandon, Inc. , 267 F.3d 1183, 1186 (11th Cir. 2001).

III. DISCUSSION

Five Chinese nationals who lost at trial—Dai Ze, Hong Wei, Hongtu Chen, Linlin Guo, and Min Yang—ask us to vacate the judgment in favor of the government. They argue that their absence from trial violated the Due Process Clause of the Fifth Amendment. Min Yang also argues that the jury instruction was incorrect and that he is entitled to judgment as a matter of law or a new trial because the evidence establishes that he was an innocent owner entitled to the return of his funds.

We divide our discussion in three parts. We first explain why there was no violation of the Due Process Clause. Next, we explain that the district court correctly denied Min Yang's challenge to a jury instruction regarding the government's burden of proof. Finally, we reject Min Yang's argument that he is entitled to judgment as a matter of law or a new trial.

A. The Chinese Nationals Had No Due Process Right To Enter the Country To Attend Trial in Person.

The Due Process Clause of the Fifth Amendment provides that "[n]o person shall be ... deprived of ... property, without due process of law."

U.S. CONST. amend. V. It guarantees "notice and an opportunity to be heard" to "[i]ndividuals whose...