                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-21-2005

USA v. Kong
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2433




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NOT PRECEDENTIAL

             IN THE UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT


                             Case No: 04-2433


                     UNITED STATES OF AMERICA

                                       v.

                                SAM KONG,
                                    a/k/a
                               Sam Yee Kong,
                                    a/k/a
                                Siu Yee Kong


                                    Sam Kong,
                                      Appellant



              On Appeal From the United States District Court
                  For the Eastern District of Pennsylvania
                   (D.C. Criminal Action No.03-241-01)
               District Judge: The Honorable J. Curtis Joyner


              Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                            December 15, 2005

      Before: SLOVITER, SMITH and VAN ANTWERPEN, Circuit Judges

                         (Filed: December 21, 2005)




                         OPINION OF THE COURT
SMITH, Circuit Judge.

       Sam Kong, the owner and President of Sam Kong Fashions, Inc., a garment sewing

business in Philadelphia, Pennsylvania, was indicted and charged with two counts of

willfully making and subscribing to false corporate income tax returns in violation of 26

U.S.C. § 7206(1). On October 30, 2003, a jury found him guilty on both counts. The

District Court sentenced Kong to thirty months imprisonment for each count and one year

of supervised release, imposed a fine of $5000, and ordered him to pay $426,851 in

outstanding taxes. Kong appeals his conviction and sentence. He contends that the

District Court improperly conducted voir dire and wrongly instructed the jury regarding a

defense which he had not raised. For the reasons set forth below, we will affirm Kong’s

conviction. Consistent with this Court’s decision in United States v. Davis, 407 F.3d 162

(3d Cir. 2005) (en banc), however, we will remand this case to the District Court for

resentencing.

                                               I.

       Kong is a native of China and has a limited command of the English language. In

order to ferret out any biases of the prospective jurors at his trial–and at the request of

defense counsel–the District Court asked the venire persons whether any of them “would

require everybody that comes to this country to learn the English language?” Twelve

individuals raised their hands in response to the question. The Court then explained to the

first prospective juror who raised his hand:


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              There is no requirement under law that requires everyone that
              comes to this country to learn English. There are generations
              of people that have come here long before either one of us
              that never learned the language. That does not make them not
              good citizens. They just have an inability to learn the
              language. Would you deny an of–all of you, any of you, deny
              a person their rights as a citizen because they don’t speak
              English? That’s the question here.


Subsequently, the Court questioned each of the prospective jurors individually. When the

third prospective juror, Juror No. 217, indicated that she did not believe she could be

impartial in a case involving a non-English speaking defendant, the District Judge called

her to sidebar. At sidebar, the juror suggested that a citizen should speak English, for

example, in order to vote, to which the Judge responded that her view “totally shock[ed]”

him. He did not make this statement in front of the other prospective jurors. The Judge

dismissed Juror 217 for cause, but requested that she return to the courtroom after lunch.

He instructed her not to discuss the sidebar with the other prospective jurors. The Court

continued voir dire after the lunch break, and all of the other prospective jurors except

one–Juror No. 152–indicated that Kong’s inability to speak English would not affect their

impartiality. Juror No. 152 was dismissed from the panel for cause.

       The gist of Kong’s appeal with respect to the voir dire issue is that the District

Court Judge interjected his own views while questioning the prospective jurors, and

thereby, influenced their answers. Kong contends that the District Judge subsequently

failed to adequately determine the impartiality of the venire persons. Because defense

counsel did not object to the composition of the jury or the Court’s line of questioning at

                                              3
the time of trial, we review the District Court’s voir dire procedure for plain error. Fed.

R. Crim. P. 52(b); see United States v. Salamone, 800 F.2d 1216, 1222 (3d Cir. 1986).

The burden of establishing entitlement to relief for plain error is on the party claiming

such error. See United States v. Dominguez Benitez, 542 U.S. 74, 81 (2004).

       Kong has failed to establish that the District Court plainly erred in conducting voir

dire. First, the District Court’s statements to Juror No. 217 are irrelevant to Kong’s

appeal. These statements were made at sidebar and the Court instructed Juror No. 217

not to discuss that sidebar with the other prospective jurors. Second, with respect to those

statements made to the entire panel, Kong fails to meet his burden of proving that the

statements were prejudicial. Despite Kong’s claim that the District Court’s comments

were “strong-handed,” those comments appeared to be designed to clarify any

misapprehension of the law and the Court’s questions were gauged to assess the panel

members’ ability to be fair and impartial. The District Court has wide latitude in

conducting voir dire and is ultimately in the best position to evaluate the credibility and

demeanor of prospective jurors. Kirk v. Raymark Industries, Inc., 61 F.3d 147, 153 (3d

Cir. 1995). In this case, there is no evidence in the record to suggest that the Court was

incorrect in its assessment of the prospective jurors’ impartiality. Nor, for that matter, is

there any evidence in the record that any of twelve individuals who raised their hands

were actually selected to be members of the jury that presided at Kong’s trial. Therefore,

even assuming that the District Court erred in the manner in which he explained the legal

rights of non-English speaking citizens, Kong has failed to show how these statements

                                              4
affected his “substantial rights.” Fed. R. Crim. P. 52(b). Thus, Kong has not established

that the District Court committed plain error in conducting voir dire.

                                            II.

       Kong also argues that the District Court erred in instructing the jury on the defense

of reliance on advice of accountants. For purposes of reviewing jury instructions, we

must determine whether the District Court abused its discretion in giving an instruction,

and “‘whether, viewed in light of the evidence, the charge as a whole fully and adequately

submits the issues in the case to the jury.’” United States v. Thayer, 201 F.3d 214, 221

(3d Cir. 1999) (quoting United States v. Zehrbach, 47 F.3d 1252, 1264 (3d Cir. 1995)).

       In this case, Kong’s defense to the criminal charges was that the false statements in

his tax returns were made in good faith. The Government charged Kong with

underreporting his business’s sales and gross receipts and understating the amount of

wages he paid to employees. Kong admitted that he deposited checks for services

provided by the business into his personal checking account and paid employees in cash

and personal checks, but claimed that because of his misunderstanding of the American

tax system, he did not realize that he needed to give his accountants information related to

the money in his personal account. Kong’s testimony at trial regarding the information he

provided his accountants was evasive. On the one hand, he testified that his accountants

requested information regarding business income and that he knew what business income

was. On the other hand, Kong testified that he gave his accountants that information

which they specifically requested, stating, “I give him what he asked.”

                                             5
       The District Court properly instructed the jury regarding the good faith defense.

At the request of the Government, however, the Court also instructed the jury regarding a

defendant’s reliance on accountants’ advice. Kong contends that because he did not claim

to rely on the advice of his accountants, the District Court abused its discretion.

       Kong claimed he did not understand the American tax system and repeatedly

stated that he gave his accountants any document for which they asked. Implicit in his

testimony is the suggestion that he was relying on his accountants to tell him specifically

which documents they needed to calculate his tax liability and file his return, and because

they did not request his personal bank statements, he had no reason to believe that he

needed to provide these documents. In that respect, the jury could infer from his

testimony that had his accountants provided Kong with more specific direction, he would

not have violated the tax laws. In light of Kong’s statements at trial, the District Court’s

construction of his testimony as an assertion that he relied on the advice of his

accountants was not unreasonable, and the instruction with respect to that defense does

not constitute an abuse of discretion.



                                             III.

       Kong was sentenced on May 12, 2004 under the mandatory sentencing guidelines

regime. The Government stipulates that pursuant to Davis, Kong is entitled to

resentencing. The case therefore shall be remanded for this purpose alone.




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