United States v. Zhong

26 F.4th 536

UNITED STATES of America, Appellee,

v.Dan ZHONG, Defendant-Appellant.^*

No. 19-4110

August Term 2020

United States Court of Appeals, Second Circuit.

Argued: March 9, 2021

Decided: February 23, 2022

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.

Alexandra A.E. Shapiro (Daniel J. O'Neill, Julian S. Brod, on the brief), Shapiro Arato Bach LLP, New York, New York, for Defendant-Appellant.

Before: Sack, Wesley, and Menashi, Circuit Judges.

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 18 U.S.C. § 1594(b) ; (2) forced labor, in violation of 18 U.S.C. § 1589(a) and (b) ; (3) concealing passports and immigration documents ("document servitude") 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. § 371. These convictions related to Zhong's role as a leading figure in a Chinese construction company named Rilin in the years 2010 to 2016.

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.

Third, the district court permitted the government's forced-labor expert witness not only to explain the workings of forced-labor operations in general but also to provide a detailed commentary on the specific facts of Zhong's alleged forced-labor operation. With this testimony, the expert came "dangerously close to usurping the jury's function" by effectively "providing an overall conclusion of criminal conduct." United States v. Dukagjini , 326 F.3d 45, 54 (2d Cir. 2003). The expert also provided general testimony regarding the emotional pleasure perpetrators of forced labor derive from their activities, the disreputable history of forced labor worldwide, and the Chinese government's poor forced-labor record. This testimony was highly prejudicial and, at best, minimally relevant to Zhong's prosecution.

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 States. 8 U.S.C. § 1324(a)(1)(A)(ii). We disagree. Although the evidence presented at trial showed that Rilin workers were not completely isolated from the public, other evidence demonstrated that Rilin (led by Zhong) engaged in concerted efforts to shield Rilin workers from local Chinese-speaking populations and instructed them not to participate in public events. A reasonable jury could have concluded that the practice of transporting workers directly to and from work sites was part of an effort to limit the opportunities for others to speak to Rilin workers and to discover the workers’ immigration status—and thus to ensure that the workers’ illegal presence continued. We therefore affirm Zhong's conviction and sentence on the alien smuggling count. We also affirm Zhong's conviction for visa fraud conspiracy, although our vacatur of the forced-labor convictions requires us to remand for resentencing on that count.

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 with facts from the evidence that Zhong argues the jury should never have heard.

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.

Rilin structured its employment relationship with its workers as follows. In order to work for Rilin, workers had to pay a substantial security deposit. The workers then agreed to work for Rilin in the United States for a salary that substantially surpassed what they would make in China. Almost all of the salary, however, was to be paid to them only once they completed their service in the United States. Rilin retained the right to determine the workers’ completion dates. While they worked in the United States, the workers’ families could withdraw small sums, equal to about 10 percent of the workers’ salaries, every two months. Zhong held the workers’ passports and visas while they were in the United States. When the workers returned to China, Rilin refunded the security deposit with interest.

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.

Rilin housed its workers in centralized locations and kept a list of employees who absconded. In one instance in 2010, Zhong asked a Rilin employee if he knew the whereabouts of Kai Kang, an employee who had run away. Kang's wife testified that, after Kang absconded, Rilin obtained a judgment against her in China, and Rilin told her that she owed the company one million renminbi (RMB).² After she said she did not have that much money, Kang's wife testified, Rilin personnel "said they would look for my daughter." App'x 640.³

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...