              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE FIFTH CIRCUIT


                  ______________________________

                             No. 90-2976

                  ______________________________

UNITED STATES OF AMERICA,
                                                Plaintiff-Appellee,
versus

AN CHYI LIU ,
a/k/a FAT FRANK, and
AI-TI-TING, a/k/a EDDIE,


                                              Defendants-Appellants.



          Appeal from the United States District Court
               for the Southern District of Texas


                           (April 30, 1992)


Before WILLIAMS and WIENER, Circuit Judges, and LITTLE, District
Judge.1


LITTLE, District Judge:

     Appellants Liu and Ting were found guilty by a jury of

conspiring to bribe a public official, 18 U.S.C. § 201(b)(1)(C) and

aiding and abetting the commission of the substantive offense of

bribery of the same public official, 18 U.S.C. § 201(b)(1)(C).

Liu was convicted of a separate bribery offense, and being an alien

in possession of a firearm on two separate occasions.    18 U.S.C. §


     1
          District Judge of the Western District of Louisiana,
sitting by designation.
992(g)(5) and § 924(a)(2).          Subsequent to sentencing, Liu and Ting

lodged a timely appeal with this court. Appellants raised a number

of issues that they argue justify conviction reversal or sentence

reduction.    We decline to grant any relief to either appellant and

affirm their convictions and sentence.

     An Chi Liu, born in Burma and now a Taiwan national, lived in

Houston, Texas and operated a modeling studio in that city.              During

times material to this matter, Liu, as an alien, was without proper

credentials to remain in this country.             Thus, he is classified as

an alien illegally and unlawfully in the United States.              In late

January, 1988, Houston police arrested Liu claiming that the

modeling studio was a facade to mask the real operation on the

premises--a whorehouse.       After the arrest, Liu was approached by

one of the Houston police arresting officers, Jeffrey Shaffer. Liu

was asked to reveal any criminal activity of which he was aware

occurring in the Houston-Asian community. Shaffer wanted Liu to be

an informant.      Liu accepted, and for a period of months Liu was

paid to inform the Houston police department, through Shaffer, of

criminal activities.      Liu also provided, for pay, information to

the F.B.I.

     Liu admitted to Shaffer that he was a member of a notorious

group known as the United Bamboo Gang.               Moreover, Liu was the

bodyguard    for   one   of   the    gang   king    pins--Fargo   Chen   a/k/a

Yellowbird.   Liu's knowledge of the group's illicit activities was

the subject for sale to the police.

     On one occasion, Liu and Shaffer met at an oriental restaurant


                                        2
in Houston.      Liu told Shaffer that he had purchased an Uzi

automatic weapon, a prohibited act for an alien illegally and

unlawfully in the United States.           18 U.S.C. § 922 (g)(5) and 924

(a)(2).   Liu admitted that the acquisition was accomplished by use

of false identification. He surrendered the weapon to Shaffer who,

unbeknown to Liu, had it examined by the U.S. Bureau of Alcohol,

Tobacco and Firearms.     The weapon was then returned to Liu.

     Shaffer, through admissions from Liu, knew that Liu was in the

United States illegally and needed a "green card" to authorize his

continued stay and legalize his desired trip to Asia.            Shaffer told

Liu that he could arrange a meeting with an individual who could

sell Liu a "green card."        Shaffer's seemingly corrupt contact was

actually a straight I.N.S. agent, Tom Cason.

     Cason met with Liu, and Liu agreed to buy five green cards.

Liu coordinated a meeting among himself, five potential card

purchasers, Cason, and Shaffer, but the transaction cratered when

one of the would be purchasers was arrested on a smuggling charge

by another governmental entity.

     This did not deter Liu from buying, by bribery, a green card

for himself from Cason.          During the period between March and

November of 1989, Liu and Shaffer met many times.              Liu's interest

in marketing, at a great profit, albeit illegal, green cards, was

unsatisfied.

     Asians, living in the United States and desiring to purchase

green   cards,   were   known    to   Liu,   and   Liu   was   interested   in

satisfying their needs.     Fellow defendant, Ai-Ti-Ting, was also in


                                       3
need of a green card.            Ting, in this country illegally, had

knowledge    of    immigration    procedures,       a   knowledge   which    was

essential to the sale of green cards to illegal aliens.                     In a

Houston restaurant, Shaffer and Cason met with Liu, Ting, and a man

known as Steve Huang.      Huang was steamed with Liu as Liu collected

a "green card" acquisition fee, but did not deliver as promised.

Huang's presence at the meeting was to insure receipt of the

previously   paid    for   document.        Ting,   the   more   credible    and

knowledgeable of the Ting-Liu duo, assured the group that Ting and

Liu could sell ten green cards without any difficulty whatsoever.

They agreed to acquire a ten-pack for $120,000.00 by paying cash

upon receipt of the cards.          The sale was set for sometime in

January, 1990.       Shaffer and Cason required that Ting and Liu

prepare proper application documents for all the vendees, including

a photograph of each prospective transferee.

      The show and tell event took place in a Houston motel and was

recorded on video tape.      Each candidate for green card acquisition

was brought to the room.           Forms were completed, and pictures

provided.    Ting and Liu supplied translations for those without a

working knowledge of the English language.              The film reveals that

the   purchasers    were   informed    of    the    illegal   nature   of    the

transaction and that Shaffer and Cason were officers of the law.

Officer Shaffer received $108,000 from Ting and Liu and, in their

presence, called Cason to produce and deliver the green cards.

Cason received the message and arrived at the Houston motel to make

delivery. No cards were delivered. The purchasers had been duped.


                                       4
Liu, Ting and the others were arrested.    The sting was complete.

As an aside, the authorities obtained a general warrant to inspect

Liu's residence in search of the Uzi that Liu illegally possessed.

The gun was located and confiscated.

                          THE LIU APPEAL

     Liu raises two issues on appeal.      We shall deal with each

separately.

               EVIDENTIARY RULING DENYING TESTIMONY
           AS TO LIU'S STATED REASONS FOR BEING FEARFUL

     One of the defenses asserted by defendant Liu is that he

played along with Shaffer and Cason not out of a desire to make

money by distributing illegally acquired green cards, but out of

fear of suffering injury or death at the hands of Shaffer.   Without

a knowledgeable person, such as Liu, Shaffer and Cason could not

make money.   Merely having green cards did not produce any cash.

There had to be a purchaser, and that purchaser needed to be an

Asian knowledgeable about illegal immigrants needing valid green

cards.   Thus, according to this argument, if Liu didn't perform,

Shaffer would physically abuse and possibly kill Liu.

     Liu now argues that the district court's refusal to admit

certain testimony on this issue constitutes reversible error.

Liu's cousin, Tung Shu, appeared as a witness at Liu's trial.   Shu

testified that Liu told him that he was fearful for his life and

that he was in a life threatening situation.    Shu was prohibited

from relating to the jury what Liu said to Shu about the cause of

Liu's fear.   The evidence of what was said by Liu was offered, not

for the truth of the statements, but to show Liu's state of mind--

                                 5
i.e., the state of being fearful and what caused that fear.              The

ruling to exclude that evidence was subject to Liu's objection and

offer of proof.

     Liu link's his quest for reversible error to Federal Rule of

Evidence 803(3), an exception to the rule against admission of

hearsay testimony.

          The following are not excluded by the hearsay rule, even
     though the declarant is available as a witnesses:

           (3)     Then existing mental, emotional or physical
                   condition.   A statement of the declarant's
                   then   existing   state  of   mind,   emotion,
                   sensation or physical condition (such as
                   intent, plan, motive, design, mental feeling,
                   pain, and bodily health), but not including
                   the statement of memory or belief to prove the
                   fact remembered or believed unless it relates
                   to the execution, revocation, identification,
                   or terms of the declarant's will.

Federal Rules of Evidence 803(3)

     We   review    evidentiary   rulings   by   applying   an   abuse    of

discretion standard. If abuse is found, then the error is reviewed

under the harmless error doctrine. United States v. Capote-Capote,

946 F.2d 1100, 1105 (5th Cir. 1991); United States v. Moody, 903

F.2d 321, 326 (5th Cir. 1990); United States v. Jimenez Lopez, 873

F.2d 769, 771 (5th Cir. 1989).

     At trial Shu testified that during the four meetings that Liu

had with Shu over a period of time, Liu "was scared" and that he

had a fear of getting killed.     The district court did not allow the

witnesses to say that Liu was fearful because a governmental agent

would do bad things to him, nor was he allowed to testify as to

generalized conversations with Liu at indefinite times about Liu's


                                    6
fear about injury to be received from a corrupt government agent.



     There was no abuse of discretion in the ruling by the district

judge.   Evidence of Liu's fear was admitted.        Properly excluded

were the alleged reasons for that fear.       We find guidance in the

apt analysis of Federal Rule of Evidence 803(3), given by this

court in 1980.

     That rule (referring to 803(3)) by its own terms excepts
     from the ban on hearsay such statements as might have
     been made by Cohen of his then existing state of mind or
     emotion, but expressly excludes from the operation of the
     rule a statement of belief to prove the fact believed.
     ... But the state-of-mind exception does not permit the
     witness to relate any of the declarant's statements as to
     why he held the particular state of mind, or what he
     might have believed that would have induced the state of
     mind. If the reservation in the text of the rule is to
     have any effect, it must be understood to narrowly limit
     those admissible statements to declarations of condition-
     -`I'm scared'--and not belief--`I'm scared because Galkin
     threatened me.'

United States v. Cohen, 631 F.2d 1223, 1225 (5th Cir. 1980) reh'g

denied 636 F.2d 315 (5th Cir. 1981) (footnote omitted).         Evidence

was admitted as to Liu's state of mind but not hearsay evidence as

to the exact nature of the cause of that condition.          There was no

error in the evidentiary ruling.

                     JURY INSTRUCTION ON DURESS

     Liu's submitted jury instruction on the issue of duress or

justification (counsel for Liu uses both interchangeably) was

rejected by   the   court.   The   tendered   but   denied    instruction

provided:

     One of the issues that the government must prove is that
     the defendant was not forced to commit the offenses
     charged in the indictment. The defendant was forced if:

                                   7
     (1) He reasonably believed that participating in the
     offense was necessary to avoid specific and immediate
     threat of serious harm to himself or to another; and (2)
     He reasonably believed that participating in the offense
     was the only way to avoid this harm.

     The fact the defendant may have been wrong in what he
     believed does not matter so long as there was a
     reasonable basis for what he believed and he acted
     reasonably under the circumstances as they existed at
     that time.

     It is not up to the defendant to prove that he was forced
     to commit the offense as charged in the indictment. It
     is up to the government to prove that he was not.

     Failure to deliver an instruction constitutes reversible error

when three conditions exist:

     1)   The instruction is substantially correct;

     2)   It is not substantially covered          in   the   charge
          actually given the jury; and

     3)   It concerns an important point in the trial so that
          the failure to give it seriously impairs the
          defendant's ability to present a given defense
          effectively.

United States v. Hunt, 794 F.2d 1095, 1097 (5th Cir. 1986).             We

have not been cited to, nor has our research unearthed, any Fifth

Circuit case that defines a proper jury instruction on the issue of

duress or justification.    Although the Pattern Jury Instructions

(Criminal Cases) prepared by the District Judges Association of the

Fifth Circuit, 1990 Edition, published by West Publishing Company,

is an excellent tool for the trial court, it does not contain a

recommended   instruction   for   the   specific   defense    of   duress,

justification or coercion.        The essential elements of such a

defense, however, have been described in Fifth Circuit opinions.

The prerequisites for entitlement to an instruction on duress were


                                   8
recently set forth in U.S. v. Harvey, 897 F.2d 1300 (5th Cir.

1990).

            Before a defendant charged with such an offense is
       entitled to a jury instruction on the defense of
       justification, however, he must show: (1) that defendant
       was under an unlawful and `present, imminent, and
       impending (threat) of such a nature as to induce a well-
       grounded apprehension of death or serious bodily
       injury.'; (2) that defendant had not `recklessly or
       negligently placed himself in a situation in which it was
       probable that he would be (forced to choose the criminal
       conduct)'; (3) that defendant had no `reasonable legal
       alternative to violating the law; a chance both to refuse
       to do the criminal act and also to avoid the threatened
       harm'; and (4) `that a direct causal relationship may be
       reasonably anticipated between the (criminal) action
       taken and the avoidance of (threatened) harm.'

Id. at 1304-5 quoting United States v. Harper, 802 F.2d 115, 117

(5th     Cir.   1986).   The   genesis   of   those   four   essential

characteristics of duress or coercion in this circuit is United

States v. Gant, 691 F.2d 1159, 1162 (5th Cir. 1982).            Other

circuits describe the defense in a nearly identical manner.        See,

e.g., United States v. Michelson, 559 F.2d 567, 569 (9th Cir.

1977); United States v. Lee, 694 F.2d 649, 654 (11th Cir.), cert.

denied 460 U.S. 1086, 103 S. Ct. 1779, (1983); United States v.

Campbell, 675 F.2d 815, 820-821 (6th Cir.), cert. denied 459 U.S.

850, 103 S. Ct. 112, 74 L. Ed. 2d 99 (1982).

       With that background we are not surprised to find that Pattern

Jury Instructions for use in criminal cases in the Sixth, Seventh,

Ninth and Eleventh Circuits adopt virtually identical instructions

on coercion, intimidation, and duress.     For example, the Eleventh

Circuit adopts language that contains all of the elements required

by this circuit's jurisprudence:


                                   9
          It is the theory of the defense in this case that
     although the Defendant may have committed the acts
     charged in the indictment, he did not do so voluntarily,
     but only because of force or coercion in the form of
     intimidation and threats of bodily harm to himself (or
     his family).

          As you have already been instructed willfulness is
     an essential element of the crime charged in the
     indictment, and acts done involuntarily because of
     coercion are not done willfully.

          In order to excuse an act that would otherwise be
     criminal, however, the intimidation or coercion must be
     present and immediate, and must be of such a nature that
     it induces a reasonable and well-founded fear of death or
     serious bodily injury to one's self or someone else; and
     there must be no reasonable opportunity to escape from
     coercion without participating in the crime.

          If the evidence in the case leaves you with a
     reasonable doubt that the Defendant acted willfully as
     charged, then it is your duty to find the Defendant not
     guilty.

Pattern Jury Instructions, Criminal Cases (U.S. 11th Cir., West

Publishing Co. 1985).

     The charge submitted by Liu and Ting on the affirmative

defense of duress does not comport with the requirements created by

Fifth Circuit jurisprudence.   It is clear that the jury should be

informed that the defense is available if the defendant proves that

he, or a member of his family, was under a present, imminent, or

impending threat of death or serious bodily injury; that he had not

recklessly or negligently placed himself in a situation in which it

was probable that he would be forced to choose the criminal

conduct; that he had no reasonable opportunity to escape from the

situation and avoid the threatened harm; and that a direct causal

relationship may be reasonably anticipated between the criminal act

taken and the avoidance of the threatened harm.      The submitted

                                10
instruction is deficient because it contains no reference to the

defendant's burden to show proof that he did not negligently or

recklessly place himself in a situation in which it was possible

that he would be forced to choose the criminal conduct.                  Moreover,

there    is    no   specific     reference      in   the   instruction     to   the

requirement that the defendant prove that he did not have a

reasonable legal alternative to violating the law, i.e., a chance

both to refuse to do the criminal act, and to avoid the threatened

harm.     In the submitted instruction the sentence, "He reasonably

believed that participating in the offense was the only way to

avoid this harm", is opaque and lacks the direction for analysis

that a jury is entitled to receive.                  Having concluded that the

submitted instruction is not a correct statement of the law, we are

not required to adjudicate the legal consequence of failing to give

the instruction.

     We do note in passing, however, that a thorough review of the

record leads the court to conclude that there is no evidence upon

which a reasonable juror could find that Liu was laboring under a

present, imminent and impending threat of such a nature as to

indicate a well grounded apprehension of death or serious bodily

injury.        The testimony of fellow defendant Ting that Liu was

concerned that his Quisling status would be disclosed to his fellow

Asians    by    Shaffer,   and    that   such    action    would    mean   serious

retribution by the Asians, lacks any merit as being a present,

imminent, impending threat of death or injury.                     Ting's further

testimony that Liu was afraid that Agent Shaffer would wipe him out


                                         11
if Liu failed to cooperate, reveals nothing definite as to when the

damaging event would take place.

     Of even greater significance is the fact that the record does

not reveal that Liu was without a reasonable legal alternative to

violating the law, or that he had no chance to refuse to do the

criminal act, or to avoid the threatened harm.     Liu purchased a

green card for himself.   He used that card to travel between Asia

and the United States.    He returned to Houston from Taiwan and

actively sought to market green cards to illegal aliens.   Liu had

a number of reasonable alternatives to the continued illegality.

He could have surrendered to federal officials in any city in the

United States.   He could have communicated with federal officials

in any city in the United States.    He could have remained abroad.

He could have sought protection in another city.   We must remember

that the initial meeting between Shaffer and Liu occurred in

January of 1988.   The arrest, as a result of presentation of cash

for more green cards, was made in January of 1990.     For obvious

reasons, the record is a fertile field to find many reasonable

legal alternatives to violating the law over a two year period.

Liu is not entitled to an instruction on duress.

                          THE TING APPEAL

                    JURY INSTRUCTION ON DURESS

     Ai-Ti-Ting raises the same complaint voiced by Liu over the

trial court's failure to submit the duress instruction to the jury.

For the reasons previously given, we find the instruction is

incorrect as a matter of law and therefore need not have been


                                12
given.

     We   take   this   opportunity      to    observe   that    even       if   the

instruction   were   correct,   Ting     was    not   entitled   to     a   duress

instruction. Ting had ample opportunity to absent himself from the

criminal surroundings.     Ting met with agent Shaffer in November of

1989 at Steven Huang's urgings.       Others than Shaffer were the prime

movers in getting Ting involved; for it was Ting who knew the

immigration procedures, knew foreigners in need of green cards, and

had a good community reputation.         He traveled the crooked path not

because he was forced to do so, but because he elected to do so.

Ting had police connections of his own.          He could have reported the

crooked cop but chose not to do so.            Instead, Ting called no less

than forty of his friends in hopes of finding customers for the

illicitly obtained green cards.        Ting even accepted a reduced fee

charge for a green card for himself.

                                ENTRAPMENT

     Ting's second argument is that he was the victim of the

government's entrapment and that he was never predisposed to

traffic in green cards.

     Recently this court summarized the law of entrapment.

          Entrapment is an affirmative defense that requires
     a defendant to show he was induced to commit a criminal
     act by a government agent and that he was not predisposed
     to commit the act without the inducement. See Mathews v.
     United States, 485 U.S. 58, 63, 108 S.Ct. 883, 886, 99
     L.Ed.2d 54 (1988). `Entrapment, as a doctrine, asks ...
     what was the defendant's mind before he did the charged
     acts.' United States v. Kang, 934 F.2d 621, 624 (5th
     Cir. 1991) (quoting United States v. Henry, 749 F.2d 203,
     213 (5th Cir. 1984) (en banc) emphasis in original)).
     `The critical determination is whether the criminal
     intent or design originated with the defendant or with

                                    13
      the government agents.' Id. (citing United States v.
      Nations, 764 F.2d 1073, 1079 (5th Cir. 1985)). To rely
      upon the entrapment defense, the defendant must as a
      threshold matter `present evidence that government
      conduct created a substantial risk that an offense would
      be committed by a person other than one ready to commit
      it.' Id. (quoting United States v. Johnson, 872 F.2d
      612, 620 (5th Cir.), reh'g denied, 880 F.2d 413 (1989)).
      This requires the defendant to establish (1) that he
      lacked predisposition to commit the crime and (2) that
      government involvement and inducement amount to more than
      just an opportunity to commit the crime. Id. `If the
      defendant succeeds in meeting his burden, the government
      must prove beyond a reasonable doubt that the defendant
      was predisposed to commit the offense.' Id.

U.S. v. Pruneda-Gonzalez, 953 F.2d 190, 197 (5th Cir. 1992).

      The defendant failed to present evidence that he lacked a

predisposition to commit the crime. The evidence reveals that Ting

had a job that afforded him a position of respect and one that

allowed him to make acquaintances with orientals of substance.             He

was in a position to provide important services to Taiwan nationals

in this country.       The dark side of Ting's Texas life was that he

did   not   posses     the    one   thing   necessary   to   perpetuate   his

comfortable status--a green card.           He attempted to marry a partner

with credentials to give him the protected status, but without

success. With a green card, Ting could cement his presence in this

country and also could travel to Taiwan.           Thus, Ting was ripe for

the enlistment by Liu (not a government agent) to participate in

the green card scam.         As a matter of law, Ting was not entrapped.

The trial judge did not err in so ruling.

                     STATUS AS A MANAGER OR SUPERVISOR

      Ting argues on appeal, as he did prior to his sentencing, that

he was not a manager or supervisor of any co-conspirators.                He


                                       14
takes umbrage with the trial court awarding him a three level

upward adjustment pursuant to U.S.S.G. § 3B1.1(b).    The finding of

the trial court resulted in a sentence more severe than that which

Ting might have received had he not been a manager or supervisor.

     We review the trial court's determination that Ting was a

manager or supervisor under a clearly erroneous standard.    United

States v. Barreto, 871 F.2d 511 (5th Cir. 1989); United States v.

Alfaro, 919 F.2d 962 (5th Cir. 1990).    While admitting that we are

not controlled or governed by the Commentary to the Sentencing

Guidelines, we observe that that source suggests that the court

consider the following factors when making its decision:

          Factors the court should consider include the
     exercise of decision making authority, the nature of
     participation in the commission of the offense, the
     recruitment of accomplices, the claimed right to a larger
     share of the fruits of the crime, the degree of
     participation in planning or organizing the offense, the
     nature and scope of the illegal activity, and the degree
     of control and authority exercised over others.

Commentary, U.S.S.G. § 3B1.1(b).

     Although Ting contends that he did no more than translate, the

facts paint a picture of a manager, not a minion.    The success of

the caper was bottomed on customers willing to engage in an illicit

transaction.   Ting had the credentials, the contacts, and the

reputation to find accomplices.      Ting produced seven customers,

administered the application process, provided a sense of safety

and solace to his fellow conspirators, and stood to gain a green

card for himself at little cost.     The facts set forth in the PSI

have not been assailed as unreliable, only the court's conclusion

drawn from those facts.   We are not convinced that the findings by

                                15
the district court are clearly erroneous. The sentence need not be

vacated.

     For the foregoing reasons, the convictions are AFFIRMED.




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