                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 05a0702n.06
                             Filed: August 12, 2005

                                 Case Nos. 03-4091, 03-4092, 03-4093

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT

 UNITED STATES of AMERICA,                                   )
                                                             )
           Plaintiff-Appellee,                               )
                                                             )        ON APPEAL FROM THE
                  v.                                         )        UNITED STATES DISTRICT
                                                             )        COURT FOR THE NORTHERN
 PIN YEN YANG, HWEI-CHEN SALLY                               )        DISTRICT OF OHIO
 YANG and FOUR PILLARS ENTERPRISE                            )
 COMPANY, LTD.,                                              )
                                                             )
           Defendants-Appellants.                            )
                                                             )
 _______________________________________                     )

BEFORE: GUY, BATCHELDER, and GIBSON*, Circuit Judges.

       ALICE M. BATCHELDER, Circuit Judge. Defendants-Appellants Pin Yen Yang (“PY”),

his closely-held corporation, Four Pillars Enterprise Co., Ltd. (“Four Pillars”), and his daughter

Hwei-Chen Yang (“Sally”) appeal their sentences following their convictions for conspiracy to steal

trade secrets. Because the Yangs are currently fugitives from justice we will, as more fully

explained below, dismiss their appeal unless they submit themselves to the custody of the United

States Marshal. Because Four Pillars’s sentence was imposed in violation of its Sixth Amendment

rights, see United States v. Booker, 125 S. Ct. 738 (2005), we will VACATE its sentence and

REMAND for resentencing.

       Following their convictions for attempting to receive, and conspiring to steal, trade secrets


       *
        The Honorable John R. Gibson, United States Circuit Judge for the Eighth Circuit, sitting by designation.
in violation of 18 U.S.C. § 1832(a)(4)-(5), the district court initially sentenced P.Y. to two years’

probation with a condition of six months’ home confinement and a fine of $250,000 and sentenced

Sally to one year’s probation and a fine of $5,000. The district court sentenced Four Pillars to pay

a fine of $5 million dollars. After the Yangs and Four Pillars appealed, this court affirmed their

convictions, vacated their sentences, and remanded for resentencing. See United States v. Yang, 281

F.3d 534 (6th Cir. 2002). The Yangs, however, were out of the country when their resentencing

hearing was held on July 25, 2003, having fled to Taiwan shortly after their initial sentences were

imposed.1 The district court resentenced P.Y., Sally, and Four Pillars in absentia and issued a bench

warrant for the Yangs’ arrest. As of the date of filing of this opinion, the Yangs remain fugitives.

        P.Y. and Sally appeal various aspects of the sentences that the district court imposed on July

25, 2003. In response, the United States has filed a motion to dismiss the Yangs’ appeal under the

fugitive disentitlement doctrine because they remain outside of the country despite the district

court’s having issued a warrant for their arrest. “The fugitive disentitlement doctrine limits access

to courts in the United States by a fugitive who has fled a criminal conviction in a court in the

United States. The doctrine is long-established in the federal and state courts, trial and appellate.”

Prevot v. Prevot, 59 F.3d 556, 562 (6th Cir. 1995). Though a fugitive’s status “does not strip the

case of its character as an adjudicable case or controversy . . . it disentitles the defendant to call upon

the resources of the Court for determination of his claims.” Molinaro v. New Jersey, 396 U.S. 365,

366 (1970).

        The Sixth Circuit has not hesitated to apply the doctrine of fugitive disentitlement to dismiss

the direct appeals of defendants who fled the jurisdiction during the appeal process and remained

        1
         Taiwan, which is nominally a part of the People’s Republic of China, has no extradition treaty with the
United States.

                                                         2
at large. See e.g., United States v. Lanier, 123 F.3d 945, 946 (6th Cir. 1997) (en banc). The Yangs

remain outside of the district court’s jurisdiction despite the issuance of a bench warrant. Therefore,

unless they submit themselves to the custody of the United States Marshal for the Northern District

of Ohio within thirty days of the filing date of this order, we will dismiss their appeals with prejudice

and the mandate shall issue at that time.

        On February 2, 2004, a motions panel of this court held that Four Pillars, as a corporate

defendant, is not subject to dismissal under the fugitive disentitlement doctrine. Accordingly, we

proceed to the merits of Four Pillars’s appeal.

        Four Pillars argues that the district court violated its Sixth Amendment rights under Booker

by applying upward departures based on judge-found facts. We must first decide whether the Sixth

Amendment right to a trial by jury applies to corporations and we begin our analysis with the

observation that nothing in the text of the Amendment, which provides that “the accused shall enjoy

the right to a speedy and public trial,” limits the right to a trial by jury to natural persons. U.S.

CONST. amend. VI (emphasis added). Though the Supreme Court has provided little guidance on

the Sixth Amendment’s applicability to corporations and business associations, see Muniz v.

Hoffman, 422 U.S. 454, 476-77 (1975), three courts of appeals, including our own, have held that

the Sixth Amendment guarantees a business association the right to a trial by jury in “serious”

criminal contempt cases. United States v. R.L. Polk & Co., 438 F.2d 377, 379 (6th Cir. 1971)

(recognizing the “fundamental principle that corporations enjoy the same rights as individuals to

trial by jury . . . .”); United States v. Twentieth Century Fox Film Corp., 882 F.2d 656, 663 (2d Cir.

1989); United States v. Troxler Hosiery Co., 681 F.2d 934, 935 n.1 (4th Cir. 1982) (“[a] corporation

does not have the same right not to incriminate itself as does a natural person, but it does enjoy the


                                                   3
same rights as an individual to a trial by jury”). In light of these precedents, we conclude that Four

Pillars’s status as a corporation does not render the Sixth Amendment inapplicable.

       The Sixth Amendment’s guarantee of a jury trial is limited to “serious” offenses. Baldwin

v. New York, 399 U.S. 66, 68-69 (1970). “Petty” criminal offenses may be tried without a jury.

Taylor v. Hayes, 418 U.S. 488, 495 (1974). The penalty actually imposed is “the best evidence of

the seriousness of the offense.” Bloom v. Illinois, 391 U.S. 194, 211 (1968). Though a fine alone

can trigger the Sixth Amendment right to a jury trial, see International Union, United Mine Workers

of America v. Bagwell, 512 U.S. 821, 838 n. 5 (1994), it is unclear how expensive the fine must be

to pull this trigger. Relying on 18 U.S.C. § 1, which defines “petty” offenses, this court in R.L. Polk

held that any fine in excess of $500 imposed on a corporation is sufficiently “serious” to implicate

the Sixth Amendment. But in TWM Mfg. Co., Inc. v. Dura Corp., 722 F.2d 1261, 1272 n. 11 (6th

Cir. 1983), we stated that R.L. Polk’s reasoning was eclipsed by Muniz, which did not employ a

bright line rule and instead held that a $10,000 fine on a labor union with 13,000 members did not

require a trial by jury. Muniz, 422 U.S. at 477. The TWM court suggested that the $10,000 fine

imposed on the corporation did not trigger the right to a trial by jury. The Second Circuit, on the

other hand, has established a bright line rule guaranteeing a corporation the right to a jury trial in

criminal contempt cases that expose the corporation to $100,000 or more in fines, regardless of the

corporation’s ability to pay. Twentieth Century Fox, 882 F.2d at 663.

       We have no occasion to define precisely the standard against which to judge the seriousness

of a fine imposed on a corporation because, under any measure, the $2 million fine imposed on Four

Pillars after this court’s remand is stringent enough to implicate the right to trial by jury. Four

Pillars is a closely held corporation with $2,175,979 in assets and liabilities of $2,625,145. A $2


                                                  4
million fine would be more than 20 times greater than the $91,677 net profit that Four Pillars made

in fiscal year 1998. Accordingly, we hold that Four Pillars may invoke the Sixth Amendment right

to trial by jury.

         In a letter brief Four Pillars argues, citing Booker, 125 S. Ct. at 756, (holding that the

mandatory federal sentencing guidelines violated the Sixth Amendment by requiring judges to

enhance the sentences of defendants based on facts not found by a jury or admitted by the defendant)

that the district court violated its Sixth Amendment rights by enhancing its sentence based on judge-

found facts. It is undisputed that, pursuant to the mandatory federal sentencing guidelines in place

at the time, the district court enhanced Four Pillars’s sentence based on the court’s factual finding

that Four Pillars’s criminal acts caused over $800,000 in loss. See U.S.S.G. § 2B1.1(b)(1). Since

Four Pillars failed to make a Sixth Amendment objection at sentencing, however, we conduct plain

error review to determine if it must be resentenced. Under that test, there must be (1) error, (2) that

is plain, (3) and that affects substantial rights. United States v. Oliver, 397 F.3d 369, 378 (6th Cir.

2005). If these three conditions are met, an appellate court may then exercise its discretion to notice

the forfeited error if (4) the error seriously affects the fairness, integrity, or public reputation of

judicial proceedings. Id.

         Four Pillars’s sentence in violation of the Sixth Amendment constitutes error that is plain.

Id. at 378-79. Moreover, according to Oliver, a sentence enhancement based on judge-found facts

under a mandatory guidelines system necessarily affects Four Pillars’s substantial rights.2 Id. at 379-


         2
          Speaking only for myself, I note my disagreement with Oliver’s unwarranted departure from traditional
plain error review. Despite purporting to apply plain error review, Oliver fails even to discuss, much less enforce,
the defendant’s traditional burden of proving that the district court’s error prejudiced him. Oliver reasoned that since
the defendant received a sentence “beyond that which was supported by the jury verdict and [his] criminal history,”
he was necessarily prejudiced because he “arguably received a sentence that was longer than his sentence would
have been absent a Sixth Amendment violation.” Oliver, 397 F.3d at 379-80 (emphasis added). “Arguably” is not

                                                           5
80. Finally, Oliver dictates that any sentencing error that leads to a violation of the Sixth

Amendment automatically diminishes the integrity and reputation of the judicial system. Id. at 380.

Therefore, we VACATE Four Pillars’s sentence and REMAND for resentencing.




enough, however. Under the ordinary plain error review that Booker requires, 125 S. Ct. at 769, a defendant bears
the burden of proving that he was prejudiced by the error, United States v. Olano, 507 U.S. 725, 734 (1993): i.e.,
that absent that error, he would more likely than not have received a lower sentence. By simply ignoring this
requirement, Oliver effectively holds that every Sixth Amendment violation in a Booker-type case automatically
prejudices a defendant, a holding that does not comport with Supreme Court precedent.

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