11-5366-cr
U.S. v. Lin

                                      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 “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 10th day of December, two thousand and twelve.

PRESENT:

           JOSÉ A. CABRANES,
           REENA RAGGI,
           SUSAN L. CARNEY,
                                Circuit Judges.
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UNITED STATES OF AMERICA,

                     Appellee,

                               -v.-                                                              No. 11-5366-cr

GUANG JU LIN, also known as Ah Gui, also known as Yi Gui,
also known as Ah Tian, also known as Tian Hao Lin, also
known as Yalan Ding,

                     Defendant-Appellant,

YUDI LIU, also known as Tae Bo, also known as Ah Bo, JUN YUN
XIAO, also known as Hung Xiao, also known as Ai Yun, also
known as Alex, JUN QI XIAO, also known as To Guang, also
known as Baldy, also known as Johnny,

                      Defendants.*
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*
    The Clerk of Court is directed to amend the official caption in this case to conform to the listing of the parties above.
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FOR APPELLANT:                               ADAM PEKOR (Don D. Buchwald, on the brief), Kelley Drye &
                                             Warren LLP, New York, NY.

FOR APPELLEE:                                NATALIE LAMARQUE, Assistant United States Attorney (Daniel P.
                                             Chung, Elie Honig, Assistant United States Attorneys, on the brief),
                                             for Preet Bharara, United States Attorney, United States
                                             Attorney’s Office for the Southern District of New York.


       Appeal from a December 8, 2011 judgment of conviction entered by 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 December 8, 2011 judgment of the District Court be AFFIRMED.

         Guang Ju Lin appeals a December 8, 2011 judgment of the District Court convicting him, after
a fifteen-day jury trial, of one count of racketeering, in violation of 18 U.S.C. § 1962(c), and one count
of racketeering conspiracy, in violation of 18 U.S.C. § 1962(d), and sentencing him principally to two life
sentences to run concurrently. We assume familiarity with the underlying facts and procedural history
of this case.

                                                  BACKGROUND

        On August 4, 2009, a grand jury returned an indictment charging Lin and a co-defendant, Yudi
Liu, in one count, with murdering Daniel Cabezas in aid of racketeering. On December 15, 2010, a
grand jury returned a superseding indictment, termed the “S1 Indictment,” charging Lin and Liu in
three counts with (1) substantive racketeering; (2) racketeering conspiracy; and (3) the murder of
Cabezas in aid of racketeering.

        In support of the substantive racketeering charge, the S1 Indictment included six specific
predicate acts: (1) conspiracy to murder and murder of Daniel Cabezas; (2) conspiracy to murder and
attempted murder of Jian G. Liu; (3) extortion conspiracy relating to the extortion of bus company
operators; (4) operating illegal gambling businesses; (5) narcotics (ecstasy) trafficking; and (6) robbery
conspiracy. On February 3, 2011, the District Court held a pretrial conference and set trial for June 20,
2011.

       Twenty-seven days prior to the scheduled start of trial, on May 24, 2011, a grand jury returned
another superseding indictment, termed the “S3 Indictment.”1 The S3 Indictment added an additional

         1 The “S2 Information” was filed on March 11, 2011, and pertained only to Lin’s co-defendant, Yudi Liu, who

pleaded guilty to one count of attempted murder in aid of racketeering activity.
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predicate act in support of the substantive racketeering charge: the conspiracy to murder and murder of
Xui Kang Xiao, who had a series of personal disputes with one of Lin’s associates. On June 10, 2011,
Lin moved to strike the Xiao murder from the S3 Indictment or to exclude all evidence relating to the
Xiao murder. The District Court denied Lin’s motion on the record and in open court on June 17,
2011.

        Lin’s trial proceeded as scheduled on June 20, 2011. At trial, the District Court admitted into
evidence ten telephone calls between Lin and two associates identified by the Government as members
of his criminal enterprise that were recorded while Lin was incarcerated and awaiting trial at the
Metropolitan Correctional Center (“MCC”). The Government offered the calls as evidence of the
continued operation of Lin’s criminal enterprise.

        On July 13, 2011, at the conclusion of trial, the jury found Lin guilty on Count One (substantive
racketeering) and Count Two (racketeering conspiracy), and acquitted Lin on Count Three (the murder
of Daniel Cabezas). Under Count One, the jury found that the Government had proved four of the
seven racketeering acts beyond a reasonable doubt: (1) the attempted murder of Jian G. Liu; (2)
operation of illegal gambling businesses; (3) narcotics trafficking; and (4) the murder of Xui Kang Xiao.
On December 7, 2011, the District Court sentenced Lin to two life sentences, to run concurrently.

                                              DISCUSSION

         Lin now appeals his judgment of conviction on two grounds. First, he contends that the
District Court erred in failing to strike that portion of the S3 Indictment, or exclude all evidence,
relating to the Xiao murder. Second, he argues that the District Court improperly admitted the MCC
calls.

A.      The S3 Indictment

        Lin argues that the addition of the Xiao murder as a racketeering act less than one month before
the scheduled start of trial was unfairly prejudicial, and that the District Court should therefore have
stricken that portion of the S3 Indictment. Lin claims that the Government should not be permitted to
tack on “substantive charges” at such a late hour.

         Lin identifies no authority for the proposition that new “substantive charges” should be stricken
when they are added less than a month before trial, and we decline to craft such a rule now. Certainly,
we have expressed some concern over potential prejudice of a superseding indictment returned shortly
before trial. See United States v. Mulder, 273 F.3d 91, 99 (2d Cir. 2001); United States v. Grossman, 843 F.2d
78, 84 (2d Cir. 1988). Notably, however, Lin has made no serious claim, much less any showing, of bad
faith or dilatory motive on the part of the Government, cf. United States v. Kelly, 45 F.3d 45, 48 (2d Cir.
1995) (excluding the time between the filing of a second superseding indictment and the defendant’s
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arraignment on that superseding indictment from the speedy trial clock, absent bad faith or dilatory
motive), nor did Lin attempt to cure potential prejudice by moving for a reasonable continuance or any
other remedy short of striking the relevant portion of the indictment, see Mulder, 273 F.3d at 99 (holding
that defendants could not show prejudice after declining additional time to prepare for trial). We have
never held that an indictment should be dismissed in such a situation and we do not do so now. See
United States v. Skinner, 946 F.2d 176, 178 (2d Cir. 1991) (identifying “no legal authority for the
proposition that the district court should . . . dismiss[] the superceding indictment” when returned
shortly before trial); see also United States v. Stewart, 590 F.3d 93, 122 (2d Cir. 2009) (“The decision as to
whether to prosecute generally rests within the broad discretion of the prosecutor, and a prosecutor’s
pretrial charging decision is presumed legitimate.” (internal alteration and quotations marks omitted)).

         To the extent that Lin relies on Federal Rule of Evidence 4032 to argue that evidence relating to
the Xiao murder should have been excluded as unfairly prejudicial, we review the District Court’s
admission of the evidence for abuse of discretion. United States v. Al Kassar, 660 F.3d 108, 123 (2d Cir.
2011); see In re Sims, 534 F.3d 117, 132 (2d Cir. 2008) (A district court abuses its discretion if it “base[s]
its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or
render[s] a decision that cannot be located within the range of permissible decisions.” (internal citation
and quotation marks omitted)). Lin claims that the evidence was unfairly prejudicial solely on the
ground that he had a limited time to prepare his response to it. Inasmuch as he did have a month to
prepare and did not make any request, such as for a reasonable continuance, which might have eased his
burden, we cannot say that the District Court abused its discretion in admitting the evidence.

        In sum, while a continuance—which was not sought by Lin—was arguably in the discretion of
the District Court, we see no reason, in the circumstances presented here, that the District Court should
have dismissed the relevant portion of the S3 Indictment or excluded relevant evidence.

B.       The MCC Calls

        Lin next argues that the District Court erred in admitting the MCC calls. As noted, we review
the District Court’s evidentiary rulings for abuse of discretion. Id. In his opening brief, Lin contends
that the calls were improperly admitted pursuant to the coconspirator exception to the hearsay rule
under Federal Rule of Evidence 801(d)(2)(E).3 Def.’s Br. 25. It is clear from the record, however, that
the District Court in fact admitted the statements made by Lin on the calls as party admissions, under

          2 In full, Rule 403 reads: “The court may exclude relevant evidence if its probative value is substantially outweighed

by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.”
         3 In relevant part, Rule 801(d)(2)(E) reads: “A statement that meets the following conditions is not hearsay: . . . The
statement is offered against an opposing party and . . . was made by the party’s coconspirator during and in furtherance of
the conspiracy.”

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Federal Rule of Evidence 801(d)(2)(A),4 and the statements made by other parties on the calls as
necessary context and not for their truth. Joint App’x 294.

        In his reply brief, Lin argues that the calls were improperly admitted under Rule 801(d)(2)(A)
because he “makes no substantive statements [on the calls] whatsoever.” Def.’s Reply Br. 6. This
argument is irrelevant. The question under Rule 801(d)(2)(A) is simply whether the District Court
abused its discretion in finding that the statements were not hearsay because they were made by a party
opponent and offered against the opposing party. Lin does not contest the District Court’s conclusion
on this issue—nor would he prevail on such a claim.

        Finally, Lin argues that the District Court should have excluded the statements as unfairly
prejudicial under Rule 403. In sum, Lin has failed to make any demonstration of unfair prejudice
sufficient to demonstrate that the District Court abused its discretion.

                                                     CONCLUSION5

       We have reviewed the record and the parties’ arguments on appeal, and for the reasons stated
above we AFFIRM the December 8, 2011 judgment of the District Court.

                                                         FOR THE COURT,
                                                         Catherine O’Hagan Wolfe, Clerk of Court




         4 In relevant part, Rule 801(d)(2)(A) reads: “A statement that meets the following conditions is not hearsay: . . . The
statement is offered against an opposing party and . . . was made by the party in an individual or representative capacity.”
         5 We note, with appreciation and thanks, the service of defense counsel, in the District Court as well as before us,

by appointment under the Criminal Justice Act.
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