    14-1015 (L)
    United States v. Tien


                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER 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 ASUMMARY ORDER@). A PARTY CITING TO 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
    New York, on the 15th day of December, two thousand fifteen.

    PRESENT:
                       PETER W. HALL,
                       DENNY CHIN,
                       SUSAN L. CARNEY,
                            Circuit Judges.

    _____________________________________

    United States of America,

                             Appellee,

                       v.                                          14-1015, 14-2036, 14-2242

    Yang Chia Tien aka Andrew Tien,

                             Defendant-Appellant,

    _____________________________________

    FOR APPELLEE:                                           SEAN O’DOWD, Assistant United
                                                            States Attorney, for Richard S.
                                                            Hartunian, United States Attorney for
                                                            the Northern District of New York,
                                                            Albany, NY.

    FOR DEFENDANT-APPELLANT:                                ROBERT A. CULP, Law Office of
                                                            Robert A. Culp, Garrison, NY.
           Appeal from a judgment of the United States District Court for the Northern District of

New York (Sharpe, C.J.).

           UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

           Following a jury trial, defendant-appellant Yang Chia Tien appeals his conviction on three

counts of bribery of a public official, in violation of 18 U.S.C. § 201(b)(1)(A). In a counseled

brief, Tien claims the district court erred in denying his motion for a mistrial based on prejudicial

testimony, permitting government witnesses to testify as to their understanding of recorded

conversations, denying his motion for acquittal based on insufficient evidence of his

predisposition to commit the charged offense, and denying his request for a jury instruction on the

lesser included charge of giving an illegal gratuity. Tien additionally submits a pro se brief in

which he challenges the denial of his post-conviction pro se motions to dismiss the indictment and

for discovery in anticipation of a § 2255 habeas petition. Tien seeks to have his judgment of

conviction reversed and his case dismissed, or, alternatively, his conviction vacated and his case

remanded for a new trial. He also argues that on any remand the case should be assigned to a

different judge. We assume the parties’ familiarity with the underlying facts, the procedural

history of the case, and the issues on appeal.

      I.      Denial of Motion for Mistrial Based on Prejudicial Testimony

           “A district court’s denial of a motion for mistrial is reviewed for abuse of discretion.”

United States v. Rodriguez, 587 F.3d 573, 583 (2d Cir. 2009). Similarly, this court “review[s]

evidentiary rulings only for abuse of discretion. A district court abuses its discretion if it commits

an error of law, makes a clearly erroneous assessment of the evidence, or renders a decision that

                                                    2
cannot be located within the range of permissible decisions.” United States v. Komasa, 767 F.3d

151, 155 (2d Cir. 2014) (quotation omitted). Additionally, the district court’s denial of a motion

for mistrial and its evidentiary ruling both are subject to harmless-error analysis. See United

States v. Apuzzo, 555 F.2d 306, 308 (2d Cir. 1977) (mistrial); United States v. Rea, 958 F.2d 1206,

1220 (2d Cir. 1992) (evidentiary ruling).

       “Generally, a party introducing evidence cannot complain on appeal that the evidence was

erroneously admitted.” Ohler v. United States, 529 U.S. 753, 755 (2000). Defense counsel

knew of Tien’s prior conversations with informant French Brady about human trafficking, and yet

he made the choice to question Investigator Sullivan about Brady’s involvement with human

trafficking. It was foreseeable that Investigator Sullivan would eventually give a more-detailed

answer, which in turn entailed some risk of obliquely suggesting some connection between Tien

and human trafficking. Tien cannot elicit testimony and then complain of its prejudicial effect.

Furthermore, the statement that was elicited did not directly implicate Tien; Sullivan merely

testified that “[Brady] was interested in [smuggling people over the Canadian border] with Mr.

Tien.” J.A. at 71 (emphasis added). The jury would have had to infer Tien’s possible

involvement. See Rodriguez, 587 F.3d at 583 (lower risk of prejudice where jury had to make

inference in order to connect appellant to potentially prejudicial statement). Finally, this

statement was one among a plethora of recordings and other evidence presented over the course of

the three-day trial. See United States v. Ivezaj, 568 F.3d 88, 98 (2d Cir. 2009) (noting that

strength of government’s case supports finding harmless error). The district court did not abuse

its discretion in overruling Tien’s objection to Sullivan’s answer or in denying Tien’s motion for a



                                                 3
mistrial, and any error in that regard was harmless, given the quantity and strength of the evidence

against Tien.

     II.      Government Witnesses Testifying as to Their Understanding of Recorded

              Conversations

           Tien claims that the district court abused its discretion and committed reversible error

when it overruled his objection to government witnesses being permitted to testify as to their

understanding of excerpts of recorded conversations with Tien that had been played for the jury.

Specifically, the court permitted Investigator Sullivan and Agent O’Brien to testify as to their own

understanding of conversations for which they were present, but not as to what they perceived to

be Tien’s understanding.

           This court “review[s] evidentiary rulings only for abuse of discretion.” Komasa, 767 F.3d

at 155.

           To support this argument, Tien relies entirely on one case, United States v. Dukagjini, 326

F.3d 45 (2d Cir. 2002). Dukagjini involved a drug-conspiracy prosecution in which the

government qualified the case agent as its expert witness to explain drug dealers’ code and jargon.

Although we noted the value of using an expert to explain the meanings of code words, we

expressed caution at using the supervising case agent as the expert because those dual roles give

the witness “the aura of special reliability and trustworthiness,” which “creates a risk of prejudice

because the jury may infer that the agent’s opinion about the criminal nature of defendant’s

activity is based on knowledge of the defendant beyond evidence at trial, a risk that increases when

the witness has supervised the case.” Id. at 53 (quotation omitted). Yet, while we ultimately

found that the district court in that case erred and ran afoul of Fed. R. Evid. 702 (expert testimony)

                                                    4
and 403 (balancing probative value and unfair prejudice) in allowing the case agent/expert witness

“to stray from his proper expert function,” we “decline[d] to prohibit categorically the use of case

agents as experts.” Id. at 55-56.

       Dukagjini is inapposite here because the case agents, Sullivan and O’Brien, were not

qualified as experts, as Tien concedes. Moreover, the agent in Dukagjini, unlike Sullivan and

O’Brien, was not a participant in the conversations about which he testified. The testimony to

which Tien objected at trial consisted of case agents describing their personal perceptions of

meetings and conversations at which they were present. Such testimony is admissible under Fed.

R. Evid. 602, which permits a witness to testify about a matter on which she has personal

knowledge, and Rule 701, which allows a lay witness to offer non-technical opinion testimony

based on her perception where it would be helpful to understanding the witness’s testimony or

determining a fact in issue. Tien argues that allowing Sullivan and O’Brien to describe their

understanding of conversations was especially prejudicial because Tien is not a native English

speaker. While it is true that the jury might have relied more heavily on Sullivan and O’Brien’s

summary testimony because it was difficult to understand Tien, we think that the garbled nature of

Tien’s recorded speech weighed in favor of allowing Sullivan and O’Brien’s summary testimony

precisely because it was helpful to the jury. See Fed. R. Evid. 701. For these reasons, the district

court did not abuse its discretion in overruling Tien’s objections to case agents testifying as to their

understanding of conversations that had been replayed for the jury.




                                                   5
    III.   Sufficiency of the Evidence of Tien’s “Predisposition” to Commit the Charged

           Offense

       In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the

light most favorable to the government and “construe[] all permissible inferences in its favor.”

United States v. Jackson, 345 F.3d 59, 65 (2d Cir. 2003) (quotation omitted). Ultimately, we will

“uphold a conviction if any rational trier of fact could have found the essential elements of the

charged crime beyond a reasonable doubt.” Id. (quotation omitted).

       Entrapment is an affirmative defense with two elements: (1) “government inducement of

the crime, and [(2)] a lack of predisposition on the part of the defendant to engage in the criminal

conduct.” United States v. Cromitie, 727 F.3d 194, 204 (2d Cir. 2013) (quoting Mathews v.

United States, 485 U.S. 58, 63 (1988)). Where a defendant shows credible evidence of

inducement, the government has the burden to prove beyond a reasonable doubt that the defendant

was disposed to commit the charged crime prior to being contacted by government agents.

Jacobson v. United States, 503 U.S. 540, 548 (1992). The government may prove predisposition

by evidence of:

       (1) an existing course of criminal conduct similar to the crime for which the
       defendant is charged, (2) an already formed design on the part of the accused to
       commit the crime for which he is charged, or (3) a willingness to commit the crime
       for which he is charged as evidenced by the accused’s ready response to the
       inducement.

United States v. Brunshtein, 344 F.3d 91, 101-02 (2d Cir. 2003) (quotation and alteration omitted).

Although the government may rely upon “what a defendant says after [being] contacted by

agents,” Cromitie, 727 F.3d at 209, it may do so only to the extent that such evidence is probative

of the “[defendant]’s state of mind prior to the commencement of the government’s investigation,”

                                                 6
Jacobson, 503 U.S. at 549 n.2. A defendant’s “prompt acceptance of [a] government-sponsored

invitation” provides sufficient evidence for a jury to find predisposition beyond a reasonable

doubt. United States v. Brand, 467 F.3d 179, 192-95 (2d Cir. 2006) (citing cases). Here, the

government concedes inducement, so we analyze only that evidence which is probative of

predisposition.

       Tien argues that evidence of his having weekly customers apart from his dealings with

Brady, Sullivan, and O’Brien, and charging $30,000 to $70,000 for green cards—as well as

evidence of any “ready response” to the agents’ inducement—shows at most predisposition to

commit the crime of giving an illegal gratuity, and does not show predisposition amounting to the

requisite “corrupt intent” for a bribery charge. But the fact that evidence of Tien’s prior

knowledge of green-card prices and willingness to accept the government’s invitation could

indicate his predisposition to commit the related crime of giving an illegal gratuity does not mean

that the evidence fails to show predisposition to commit bribery. Cf. United States v. Bala, 236

F.3d 87, 94 (2d Cir. 2000) (“The government’s proof need not exclude every possible hypothesis

of innocence.” (quoting United States v. Desimone, 119 F.3d 217, 223 (2d Cir. 1997))).

       Here, the government presented evidence of Tien’s persistent and eager willingness to

accept the agents’ invitations. The persistent, persevering nature of his willingness is important

in this case, as over seven months passed between the first time Brady contacted Tien and the

occurrence of the conduct resulting in the first charges. While an extended time between

inducement and conduct usually weighs against a finding of predisposition, for most of that

one-year period Tien and either Sullivan or Brady were in contact on approximately a weekly

basis, and often more frequently, and at no point did Tien express any hesitancy or reject an

                                                 7
invitation for a green-card deal. Tien was neither passive nor apprehensive. Tien and the agents

each contributed to the planning for the green-card scheme, which was developed through

communication at regular intervals, and throughout, Tien was ever eager to involve new clients.

        In contrast, the cases that Tien cites—in which long periods of time pass between

inducement and alleged criminal acts and the government thus fails to present sufficient evidence

of predisposition—involve defendants who over many months repeatedly rejected government

propositions to engage in criminal behavior. See Jacobson, 503 U.S. at 546, 550 (government

mailed defendant questionnaires and free-speech propaganda regarding sexual expression and

collected information from defendant indicating his interest in youthful homosexual materials, but

government did not offer to sell defendant illicit materials until it had tried to pique his interest for

26 months); Sherman v. United States, 356 U.S. 369, 373 (1958) (defendant rejected and evaded

multiple propositions by informant to sell drugs before finally acquiescing).

        Tien also argues there was no evidence that he raised the topic of selling green cards, but

the government need not make such a showing. A defendant’s ready response to a government

agent’s proposition may show the defendant’s predisposition, even where the government agent,

rather than the defendant, first broaches the subject of the illegal scheme. See Jacobson, 503 U.S.

at 549-50 (“[W]here the defendant is simply provided with the opportunity to commit a crime, the

entrapment defense is of little use because the ready commission of the criminal act amply

demonstrates the defendant's predisposition.”).

        Considering the timeline of contacts and meetings among Tien and government agents,

Tien’s eager entrance into the green-card scheme, the evidence of Tien’s knowledge of green-card

prices, and his ready list of customers, there was sufficient evidence for a rational juror to

                                                   8
determine beyond a reasonable doubt that Tien was predisposed to commit the charged bribery

offenses.



    IV.      Tien’s Request for Jury Instruction on Lesser Included Illegal Gratuity Charge

          In denying Tien’s request for an instruction on the offense of giving an illegal gratuity, the

district court stated that “there is no evidence in the record that would permit the jury to conclude

that this was anything other than a quid pro quo.” J.A. at 104.

          We review a district court’s denial of a request for a jury instruction on a lesser included

offense for abuse of discretion. See United States v. Garcia Abreu, 342 F.3d 183, 188-89 (2d Cir.

2003). “[A] criminal defendant is entitled to a lesser included offense instruction if the evidence

at trial permits a rational jury to find the defendant guilty of the lesser offense and acquit him of the

greater.” Garcia Abreu, 342 F.3d at 189 (quotation omitted). Although defendants are

ordinarily entitled to a lesser-included-offense instruction, such an instruction “is not proper

where, on the evidence presented, the factual issues to be resolved by the jury are the same as to

both the lesser and greater offenses.” United States v. Busic, 592 F.2d 13, 24 (2d Cir. 1978)

(quotation omitted).

          The bribery statute under which Tien was charged and convicted, 18 U.S.C.

§ 201(b)(1)(A), prohibits any person from “directly or indirectly, corruptly giv[ing], offer[ing] or

promis[ing] anything of value to any public official . . . with intent . . . to influence any official

act.” The gratuity statute, 18 U.S.C. § 201(c)(1)(A), makes it illegal to “directly or indirectly

give[], offer[], or promise[] anything of value to any public official . . . for or because of any

official act performed or to be performed.” Our case law explains that an illegal gratuity is a

                                                    9
lesser-included offense of bribery that lacks bribery’s “corrupt intent” element—in other words,

bribery requires that the defendant specifically intend a quid pro quo, while an illegal gratuity does

not. See United States v. Alfisi, 308 F.3d 144, 149 (2d Cir. 2002). This court has also explained

that “[t]he offense of giving a gratuity was designed primarily to apply to situations where

payment is not made until after official action is taken and the element of a corrupt bargain is

absent or unprovable.” United States v. Harary, 457 F.2d 471, 476 n.11 (2d Cir. 1972). On

appeal, Tien must therefore point to some evidence that creates a factual issue as to whether Tien’s

payments were given as rewards for issuing green cards and not given in exchange for green cards.

           Tien argues that the language of the illegal-gratuity statute covers situations in which

payment is made to reward future acts. While the statute does mention acts “to be performed,”

logic dictates that a defendant’s knowledge that an official act will be done regardless of his

payment is an essential difference between a reward and a quid pro quo. Tien points to no

evidence by which the jury could have concluded that he knew the government was going to issue

green cards to his clients and sought to reward government agents for doing so, as opposed to

concluding that Tien paid government officials in exchange for their issuing green cards to his

clients.

           Furthermore, the cases Tien cites are unpersuasive. In United States v. Zacher, 586 F.2d

912 (2d Cir. 1978), involving bribery of a public official, this court reversed a conviction of a

nursing-home operator who charged private fees over and above Medicaid compensation rates.

The court reasoned that the nursing-home operator did not have the ultimate authority to determine

his patients’ eligibility for Medicaid, and thus the supplemental payments his patients made to him

could not have corruptly influenced an official government act. Id. at 916. That case, however,

                                                    10
did not involve the distinction between an illegal gratuity paid to a government agent and a bribe

paid to a government agent; rather it turned on the defendant’s lack of authority to influence

government acts. United States v. Porter, 591 F.2d 1048 (5th Cir. 1979), another case cited by

Tien, similarly did not distinguish between a reward and a quid pro quo. Instead it held that a

payment made by a laboratory to a doctor who referred a specimen to the laboratory—after the

laboratory had received a fee from a government agency—could not constitute an illegal kickback

because “there was no outstanding restriction on what the lab could do with the money once it

received it.” Id. at 1054. Here, in contrast, it is undisputed that Tien made payments to a

government official, and Tien argues only that a jury could have found that his payments were a

reward rather than a quid pro quo. Tien neither cites helpful case law nor points to evidence

indicating that his payments were rewards rather than quid pro quo. He fails to show that the

district court abused its discretion in denying his request for an instruction on giving an illegal

gratuity.

     V.      Issues Raised in Tien’s Pro Se Motions and Pro Se Appellate Brief

          The district court did not abuse its discretion in denying Tien’s post-conviction motions

because (1) it was not required to consider pro se submissions from a represented defendant; (2)

the motion to dismiss the indictment was untimely and rendered harmless by the guilty verdict; and

(3) Tien was not entitled to discovery because the right to discovery for a § 2255 petition arises

only after the petition is filed, and he has never filed one. Tien’s Brady and/or Giglio claims are

conclusory and unsupported by the record, and if they require further factual development, Tien

can raise them in a § 2255 petition. Finally, Tien’s claim that he was absent for jury selection is

belied by the record.

                                                 11
        Tien’s argument that on any remand his case should be assigned to a different judge is

moot. We have considered all of Tien’s remaining arguments and find them to be without merit.

The judgment of the district court is AFFIRMED.

                                           FOR THE COURT:
                                           Catherine O’Hagan Wolfe, Clerk




                                             12
