09-1156-cr
United States v. Cao

                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to summary orders filed on or after
January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this
court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party
must cite either the Federal Appendix or an electronic database (with the notation “summary order”).
A party citing a summary order must serve a copy of it on any party not represented by counsel.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
the 22nd day of February, two thousand eleven.

PRESENT:

      JOSÉ A. CABRANES,
      DENNY CHIN,
                   Circuit Judges,
      JOHN F. KEENAN,
                   District Judge.*
------------------------------------------------x
UNITED STATES OF AMERICA,

                     Appellee,

                     -v.-                                                                      No. 09-1156-cr
YI GUO CAO,

                     Defendant-Appellant.
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FOR DEFENDANT-APPELLANT:                                       JOEL S. COHEN, New York, NY.
FOR APPELLEES:                                                 BRIAN R. BLAIS, Assistant United States
                                                               Attorney (Preet Bharara, United States Attorney, on
                                                               the brief; and Michael D. Maimin, Assistant United
                                                               States Attorney, of counsel), United States Attorney’s
                                                               Office for the Southern District of New York, New
                                                               York, NY.


          *
          The Honorable John F. Keenan, of the United States District Court for the Southern
District of New York, sitting by designation.
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        Appeal from a March 10, 2009, order of the United States District Court for the Southern
District of New York (Sidney H. Stein, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the District Court be AFFIRMED.

Defendant-Appellant Yi Gua Cao appeals from his conviction, following a jury trial, of assault in
retaliation for another person’s provision of information to a law enforcement officer about the
commission of a federal offense and because that person testified as a witness at a trial, in violation
of 18 U.S.C. § 1513(b)(1) and (2).1 On appeal, Cao argues that the jury lacked sufficient evidence
to support the inference that he intended to retaliate against Lin Fan Yu in response to Yu’s
provision of assistance and testimony in the government’s prosecution of Cao’s cousin, Chen Hui,
and her husband, Oh-Yang Heng De. We assume the parties’ familiarity with the facts, procedural
history, and the issues presented on appeal.

While we review a district court’s determination with regard to the sufficiency of the evidence de
novo, a defendant challenging the sufficiency of the evidence to support his conviction bears a
“heavy burden.” United States v. Gaskin, 364 F.3d 438, 459 (2d Cir. 2004). That is because, when
reviewing such a challenge, “we must credit every inference that could have been drawn in the
government’s favor” and “defer to the jury’s determination of the weight of the evidence and the
credibility of witnesses, and to the jury’s choice of the competing inferences that can be drawn
from the evidence,” and we affirm “where viewed in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements” of the crime charged. United
States v. Miller, 626 F.3d 682, 691 (2d Cir. 2010) (quotation marks and citations omitted). After
such a review of the record on appeal, we hold that a rational jury could find Cao guilty of the
offense for which he was convicted, substantially for the reasons stated by the District Court in its
decision from the bench denying Cao’s motion for a judgment of acquittal pursuant to Federal

        1
            18 U.S.C. § 1513(b) provides, in relevant part:

        Whoever knowingly engages in any conduct and thereby causes bodily injury
        to another person . . . or threatens to do so, with intent to retaliate against
        any person for –

        (1) the attendance of a witness or party at an official proceeding, or any
        testimony given or any record, document, or other object produced by a
        witness in an official proceeding; or

        (2) any information relating to the commission or possible commission of a
        Federal offense or a violation of conditions of probation, supervised release,
        parole, or release pending judicial proceedings given by a person to a law
        enforcement officer;

        or attempts to do so, shall be fined under this title or imprisoned not more
        than 20 years, or both.

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Rule of Civil Procedure 29, or, in the alternative, for a new trial pursuant to Federal Rule of Civil
Procedure 33. See Transcript of Rule 29 and Rule 33 Decisions 3-10, United States v. Cao, 08-CR-
368 (S.D.N.Y. Nov. 12, 2008).

Cao’s primary argument on appeal is that the only evidence of his retaliatory motive consisted of
the victim’s testimony regarding explicit threats made by Cao, and that because Cao was acquitted
of that threat, the evidence supporting his retaliatory intent is insufficient for a jury to convict Cao
of that charge. We disagree. First, we agree with the District Court that the evidence presented by
the government was more than sufficient to adequately connect Cao’s assault on Lin to Chen and
Oh Yang. Id. at 6-7. The fact that this evidence—consisting of repeated visits and telephone calls,
including immediately following Cao’s assault against Lin—was “circumstantial” does not render it
insufficient. See, e.g., United States v. Brown, 937 F.2d 32, 36 (“Since direct evidence of retaliatory
intent is rarely available to prosecuting attorney . . . courts have long since held it proper for a jury
to base its verdict wholly on reliable inferences deduced from circumstantial evidence.”).; see
generally Fed. R. Evid. 901 (“The requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in
question is what its proponent claims.”); accord. United States v. Tin Yat Chin, 371 F.3d 31, 37 (2d
Cir. 2004) (“Rule 901 does not erect a particularly high hurdle, and that hurdle may be cleared by
circumstantial evidence.” (quotation marks omitted)).
Second, the jury’s decision to acquit Cao for threatening on February 9, 2008, to retaliate against
Lin (Court One) does not mean that the jury was required to acquit Cao for actual retaliation on
March 18, 2008. It is beyond question in this Circuit that a jury is free to believe some parts of the
victim’s testimony and not believe others. See, e.g., United States v. Gleason, 616 F.2d 2, 15 (2d Cir.
1979). Moreover, even if the verdicts were actually inconsistent, “it has long been established that
inconsistency in jury verdicts of guilty on some counts and not guilty on others is not a ground for
reversal of the verdicts of guilty,” United States v. Acosta, 17 F.3d 538, 545 (2d Cir.1994), because
“[e]ach count in an indictment is regarded as if it was a separate indictment,” United States v. Powell,
469 U.S. 57, 62 (1984) (internal quotations and citations omitted). Accordingly, in light of the
ample evidence to support the jury’s determination and our obligation to “defer to the jury’s
resolution of the weight of the evidence and the credibility of the witnesses,” United States v. Payne,
591 F.3d 46, 60 (2d Cir. 2010), we conclude that Cao has failed to meet the high bar set under our
precedent to establish that the evidence presented at trial was legally insufficient to sustain his
conviction for assault in retaliation in violation of 18 U.S.C. § 1315(b)(1) and (2).

                                           CONCLUSION

        We have considered each of Cao’s arguments on appeal and find them to be without merit.
For the reasons stated above, the judgment of the District Court is AFFIRMED.

                                                 FOR THE COURT
                                                 Catherine O’Hagan Wolfe, Clerk




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