United States v. Zhong, 16-cr-614 (DLI)

UNITED STATES OF AMERICA, v. DAN ZHONG, Defendant.

16-cr-614 (DLI)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

November 26, 2018

OPINION & ORDER

DORA L. IRIZARRY, Chief United States District Judge:

Defendant Dan Zhong ("Defendant") currently awaits trial on charges arising out of his alleged involvement in a forced labor conspiracy. On April 27, 2018, Defendant filed two separate briefs containing four motions in limine (collectively, "Defendant's Motions in Limine"). Mot. in Limine ("Def.'s Visa Mot."), Dkt. Entry No. 116; Supplemental Mot. in Limine, ("Def.'s Warrant Mot."), Dkt. Entry No. 117. The same day, the government filed a single brief containing eight motions in limine (collectively, the "Government's Motions in Limine"). First Mot. in Limine ("Gov't Mot."), Dkt. Entry No. 115. The government opposed each of Defendant's Motions in Limine on May 11, 2018. Mem. in Opp. ("Gov't Opp. to Visa Mot."), Dkt. Entry No. 121; Mem. in Opp. ("Gov't Opp. to Warrant Mot."), Dkt. Entry 122. Defendant opposed the Government's Motions in Limine on the same day. Mem. in Opp. ("Def.'s Opp."), Dkt. Entry No. 119. Defendant filed his replies to Defendant's Motions in Limine on May 18, 2018. Reply to Resp. ("Def.'s Visa Mot. Reply"), Dkt. Entry No. 123; Reply to Resp. ("Def.'s Warrant Mot. Reply"), Dkt. Entry No. 125. The government filed its reply to the Government's Motions in Limine the same day. Reply to Resp. ("Gov't Reply"), Dkt. Entry No. 124. The Court heard oral argument on June 20, 2018 (the "Oral Argument") on the Defendant's Motions in Limine and the Government's Motions in Limine. Dkt. Entry No. 129. The Court addresses each of Defendant's Motions in Limine and the Government's Motions in Limine as follows.

Defendant moves, in limine, to preclude the government from offering: (1) evidence or making any argument relating to any alleged conduct by Defendant from 2001 to 2009, while he allegedly enjoyed diplomatic immunity; (2) evidence relating to allegedly false or fraudulently obtained visas that are not A2 or G2 visas; (3) evidence or making any argument relating to any and all allegations referenced in the redacted portions of the search warrant affidavit for Defendant's email account; and (4) evidence or making any argument suggesting that U.S.-based affiliates of China Rilin do not engage in legitimate business. See generally, Def.'s Visa Mot. and Def.'s Warrant Mot.

The government moves, in limine to: (1) admit evidence of Defendant's participation in the alleged forced labor scheme while he was an accredited diplomat of the People's Republic of China ("PRC"); (2) admit PRC legal documents as verbal acts or business records; (3) preclude the introduction of evidence regarding the legality in the PRC of forced labor or debt bondage contracts; (4) permit victims of the alleged forced labor conspiracy to testify using pseudonyms;¹ (5) admit into evidence copies of documents that were in the possession of victim workers when were evacuated from the United States; (6) admit evidence of obstructive conduct to show Defendant's consciousness of wrongdoing; (7) permit government witness Mark Redfield to testify about the role and statements of Defendant's prior counsel in drafting an affidavit signed by Redfield; and (8) provisionally preclude Defendant's introduction of documents or otherexhibits that have not been provided to the government as reciprocal discovery from Defendant. See generally, Gov't Mot.

BACKGROUND²

On November 9, 2016, the government filed a criminal complaint (the "Complaint") against Defendant and codefendant Landong Wang ("Wang") that alleges Defendant and participated in a forced labor conspiracy and visa fraud scheme, among other illegal activities. See Compl. ("Compl."), Dkt Entry No. 1.³ The Complaint describes a construction business based in the PRC ("Rilin") that performs construction work on PRC governmental facilities in the United States, including work for the Permanent Mission of the PRC to the United Nations ("PRC Mission"), the Embassy of the PRC to the United States, and PRC consulates in the United States. Id. ¶ 2. By agreement between the United States and the PRC, PRC nationals enter the United States pursuant to A2 or G2 visas issued by the U.S. Department of State to perform construction work on PRC diplomatic facilities. Id. ¶ 3. The construction workers who enter the United States pursuant to A2 or G2 visas to perform construction work on PRC diplomatic facilities are restricted to work only on project-related construction work and are not permitted to work independently on non-PRC facilities. Id. ¶¶ 4-5.

At the time the government filed the Complaint against him, Defendant was in charge of Rilin's U.S. operations. Id. at 8. Between 2001 and 2006, Defendant was an accredited diplomat to the PRC consulate in New York City. Id. Between 2006 and November 2009, Defendant was an accredited diplomat to the PRC Embassy in Washington D.C. Id. Defendant became a United States permanent resident in May 2010 after he signed an I-508 form, which waived all rights,privileges, exemptions, and immunities that would otherwise accrue to him because of his prior occupational status. Id.; See also, Gov't Opp. to Visa Mot. at Ex. B. Wang was the manager of Rilin's U.S. operations and was responsible for Rilin workers' deployment to the United States. Compl. ¶¶ 9-10.

According to the Complaint, Rilin construction workers who were admitted to the United States pursuant to A2 or G2 visas to work at the PRC Mission or other PRC diplomatic facilities instead performed private contracting work at other sites not owned by the PRC. Id. ¶ 6. The Rilin workers were compelled to perform construction work on private construction projects "by means of physical restraint, serious harm and threat of serious harm, and abuse and threatened abuse of law and legal process . . . In particular, . . . [Rilin] maintains a policy of forcing workers it brings to the United States to work as directed by threatening them with loss of their houses in the PRC as well as the loss of large cash deposits, both of which are pledged as collateral as a condition of their employment in the United States." Id. ¶ 7. The government's investigation into Defendant's alleged criminal activities uncovered multiple A2 or G2 workers who escaped from the custody of the forced labor conspiracy. Id. ¶ 10. With the exception of one worker who escaped in 2010, most of the escapees fled from the labor conspiracy's custody in 2001 and 2002, while Defendant was an accredited PRC diplomat. Gov't Visa Opp. at 2. The government alleges that, during the period Defendant was an accredited diplomat, Defendant helped orchestrate the forced labor scheme. Gov't Mot. at 2. The government further alleges that Defendant continued to act as a principal of the forced labor scheme after he was no longer an accredited diplomat. Id.

According to the government, victims have informed the government that Rilin personnel, including Wang, seized the victims' passports after they arrived in the United States. Id. at 3. The government further submits that Rilin obtained judicial rulings from the PRC government holdingthat the victims breached their contracts with Rilin, resulting in judgments against the victims and seizure of the victims' posted collateral. Id.

On December 1, 2016, a federal grand jury returned an indictment (the "Indictment") charging defendant with: (1) forced labor conspiracy in violation of 18 U.S.C. §§ 1589(d) and 1594(b); (2) forced labor in violation of 18 U.S.C. § 1589(a), (b), and (d); (3) concealing passports and immigration documents in connection with forced labor in violation of 18 U.S.C. §§ 1592(a); (4) alien smuggling conspiracy in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I); and (5) visa fraud conspiracy in violation of 18 U.S.C. § 1546(a). Indictment, Dkt. Entry No. 20.

DISCUSSION

I. Legal Standard

The purpose of a motion in limine is to allow the trial court to rule in advance of trial on the admissibility of certain forecasted evidence. See Luce v. United States, 469 U.S. 38, 40 n.2 (1984); see also Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996); Nat'l Union Fire Ins. Co. v. L.E. Myers Co. Grp., 937 F. Supp. 276, 283 (S.D.N.Y. 1996). Evidence generally should be excluded on a motion in limine only when the evidence is clearly inadmissible on all potential grounds. See Baxter Diagnostics, Inc. v. Novatek Med., Inc., 1998 WL 665138, at *3 (S.D.N.Y. Sept. 25, 1998); Nat'l Union Fire Ins. Co., 937 F. Supp. at 287. Courts considering a motion in limine may reserve judgment until trial so that the motion is placed in the appropriate factual context. See Nat'l Union Fire Ins. Co., 937 F. Supp. at 287. Alternatively, a judge is "free, in the exercise of sound judicial discretion, to alter a previous in limine ruling," particularly in the event that, "when the case unfolds . . . the actual testimony differs from what was contained in the [movant's] proffer." Luce, 469 U.S. at 41-42.

II. Motions in Limine

A. Defendant's Diplomatic Immunity

Defendant moves to preclude the government from offering evidence or making any argument to any of Defendant's alleged conduct from the period in which Defendant enjoyed diplomatic immunity as an accredited diplomat. See Def.'s Visa Mot. at 1-5. The government conversely moves to admit evidence of Defendant's participation in the alleged forced labor scheme while he was an accredited diplomat. See Gov't Mot. at 13-18.

1. Applicable Law

Former diplomats retain limited immunity for their official acts as diplomats, pursuant to the Vienna Convention on Diplomatic Relations ("VCDR") article 39, which provides in pertinent part:

When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until

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