12-1084-cr
United States v. Cho




                          UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT


                                      August Term, 2012

                       (Argued: March 7, 2013       Decided: April 16, 2013)

                                    Docket No. 12-1084-cr


                                 UNITED STATES OF AMERICA,

                                                            Appellee,

                                           — v. —

 MI SUN CHO, also known as Sealed Defendant 12, also known as General, also known as
                                   FNU LNU 3,

                                                            Defendant-Appellant.*


B e f o r e:

                           WALKER, SACK, and LYNCH, Circuit Judges.

                                     __________________

          Defendant-appellant Mi Sun Cho appeals from a judgment of conviction entered

on March 15, 2012, following a five-day jury trial in the United States District Court for



          *
        The Clerk of Court is respectfully directed to amend the official caption in this case
to conform with the caption above.

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the Southern District of New York (Kimba M. Wood, Judge). The jury found Cho guilty

of one count of conspiring to violate sex trafficking laws in violation of 18 U.S.C.

§§ 2241 and 2422 and two substantive sex trafficking counts in violation of 18 U.S.C.

§§ 2241 and 2. On appeal, Cho contends, among other things, that the evidence was

insufficient to establish one of the substantive counts of transporting a prostitute in

interstate commerce in violation of 18 U.S.C. § 2421. We disagree, and because we find

all of Cho’s remaining arguments to be meritless, we affirm the judgement of the district

court.
         AFFIRMED.



               DONALD DUBOULAY, Law Office of Donald DuBoulay, New York, New
                    York, for Defendant-Appellant Mi Sun Cho.

               RAHUL MUKHI, Assistant United States Attorney (Jennifer G. Rodgers,
                    Assistant United States Attorney, on the brief), for Preet Bharara,
                    United States Attorney for the Southern District of New York, New
                    York, New York.



PER CURIAM:

         Defendant-appellant Mi Sun Cho was convicted by a jury in the United States

District Court for the Southern District of New York (Kimba M. Wood, Judge) of one

count of conspiring to violate sex trafficking laws in violation of 18 U.S.C. §§ 2241 and

2422 and two substantive sex trafficking counts in violation of 18 U.S.C. §§ 2241 and 2.

Cho raises several challenges to her conviction. First, she contends that there was


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insufficient evidence to establish that she transported Mei Hua Jin, a prostitute, in

interstate commerce in violation of 18 U.S.C. § 2421 or caused Jin to be so transported

under 18 U.S.C. § 2(b). Second, Cho contends that the district court made erroneous

evidentiary rulings that, taken together, violated her due process right to present a

defense. Finally, Cho challenges her sentence, arguing that the district court committed

procedural error by applying a four-level leadership enhancement under U.S.S.G.

§ 3B1.1(a) and that the resulting sentence was substantively unreasonable. Finding no

error, we AFFIRM the judgment of the district court.

                                     BACKGROUND

       Because Cho appeals from a judgment of conviction entered after a jury trial, the

following facts are drawn from the trial evidence and described in the light most

favorable to the government. United States v. Bahel, 662 F.3d 610, 617 (2d Cir. 2011).1

       In October 2010, after losing money gambling at a casino, Mei Hua Jin telephoned

Cho from Atlantic City to see whether Cho could find her employment as a prostitute.

Cho was aware that Jin was calling from Atlantic City. Cho had extensive contacts in the

sex-trafficking industry and worked to provide prostitutes to brothels, often determining

prostitutes’ placement based on their age and physical appearance. Cho and Jin had

previously worked together at a Connecticut brothel and at a prostitution business that


       1
        Cho has not challenged the sufficiency of the evidence to support her convictions
on Counts One and Three of the Superseding Indictment. We therefore limit our background
discussion to the factual and procedural history relevant to the issues Cho actually raises on
appeal.

                                              3
Cho operated in Manhattan. After receiving Jin’s phone call, Cho arranged to have one

of her contacts inform Jin that a position at a Manhattan brothel was available. This

contact was a confidential informant (“CI”) for law enforcement who had a lengthy

relationship with Cho in the sex-trafficking industry. On October 7, 2010, the CI spoke

with Jin about traveling from Atlantic City to New York so that she could be placed at the

Manhattan brothel designated by Cho. On October 8, after speaking to Cho and the CI,

Jin bought a bus ticket with her own money and traveled from Atlantic City to Manhattan.

She then took the subway to Flushing, where Cho and the CI awaited her arrival. The

three then began driving to the Manhattan brothel, though Cho was dropped off at home

before Jin and the CI reached their destination. The brothel rejected Jin because she was

too old, and Jin then returned to Flushing.

       On October 25, 2011, the Government filed a three-count Superseding Indictment.

As relevant to this appeal, Count Two charged Cho with transporting Jin from New

Jersey to New York to work at a brothel, and willfully causing her to be so transported in

violation of 18 U.S.C. §§ 2241 and 2. On November 7, 2011, after a five-day trial, the

jury convicted Cho of all three counts. After the verdict, Cho renewed her motion under

Rule 29 of the Federal Rules of Criminal Procedure for a judgment of acquittal on Counts

Two and Three. In the alternative, Cho requested a new trial on those counts pursuant to

Rule 33. The district court denied Cho’s motion, finding that there was ample evidence

to support the jury’s verdict. Applying a four-level leadership enhancement under

U.S.S.G. § 3B1.1(a), the district court sentenced Cho to an aggregate term of 70 months’

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imprisonment, to be followed by two years of supervised release, and a $300 special

assessment.

                                       DISCUSSION

I.     Sufficiency of the Evidence

       Cho argues that the district court erred in denying her Rule 29 motion for judgment

of acquittal on Count Two, because there was insufficient evidence to establish that she

transported Jin in interstate commerce or caused her to be so transported. We disagree.

       “In challenging the sufficiency of the evidence, the defendant faces an uphill

battle, and bears a very heavy burden . . . .” United States v. Crowley, 318 F.3d 401, 407

(2d Cir. 2003) (citation omitted) (internal quotation marks omitted). Although we review

sufficiency challenges de novo, the evidence must be viewed in the light most favorable

to the government, with all reasonable inferences drawn in its favor. See United States v.

Henry, 325 F.3d 93, 103 (2d Cir. 2003). The question is “not whether this [C]ourt

believes that the evidence at trial established guilt beyond a reasonable doubt,” United

States v. Brown, 937 F.2d 32, 35 (2d Cir. 1991), but rather, whether “any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.”

United States v. Perisco, 645 F.3d 85, 105 (2d Cir. 2011), quoting Jackson v. Virginia,

443 U.S. 307, 319 (1979) (emphasis in original).

       Under 18 U.S.C. § 2421, it is a crime to “knowingly transport[] any individual in

interstate or foreign commerce . . . with intent that such individual engage in prostitution,

or in any sexual activity for which any person can be charged with a criminal offense.”

                                              5
18 U.S.C. § 2421. “A defendant will be deemed to have transport[ed] an individual under

Section 2421 where evidence shows that the defendant personally or through an agent

performed the proscribed act of transporting.” United States v. Holland, 381 F.3d 80, 86

(2d Cir. 2004) (alteration in original) (internal quotation marks omitted). As the district

court properly instructed the jury, without objection from defense counsel:

               The prosecution does not need to prove that the defendant
               personally transported the individual across a state line. This
               element is satisfied if you find that the defendant prearranged
               the transportation of a person across a state line and that the
               defendant personally or through an agent arranged intrastate
               transportation as a continuation of the interstate travel.
J. App’x 97.

       Similarly, and also without objection, the district court instructed the jury that Cho

could be found guilty under 18 U.S.C. § 2(b) “even if she acted through someone who

was entirely innocent of the crimes charged in the indictment, even if [she] acted through

a government agent.” See United States v. Ordner, 554 F.2d 24, 29 (2d Cir. 1977) (“It

is . . . well recognized that the guilt or innocence of the intermediary under a § 2(b)

charge is irrelevant”).

       Viewed in the light most favorable to the government, the evidence at trial

established that Jin called Cho from Atlantic City, seeking a job as a prostitute. Cho put

Jin in contact with the CI, who spoke with her about traveling to New York to engage in

prostitution. Jin traveled from Atlantic City to New York, where Cho and the CI picked

her up. Cho then had the CI drive Jin to Manhattan so that Jin could work in a brothel.



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       Cho does not dispute that one who arranges another’s transportation across state

lines for purposes of prostitution violates § 2421. She contends, however, that she did not

“arrange” Jin’s interstate travel because she did not pay for Jin’s ticket or book her

passage. We disagree. By agreeing, either directly or through the CI, to provide a

prostitution job for Jin, and by coordinating and prearranging the date and time on which

she would travel, Cho arranged for Jin to travel from New Jersey to New York to engage

in prostitution. Moreover, by providing the CI to drive Jin on the last, intrastate leg of her

interstate trip, Cho directly organized Jin’s transportation in interstate commerce.2 Like

the Fifth Circuit, which reached the same result on indistinguishable facts, we conclude

that this was sufficient evidence from which a rational jury could find the elements of the

offense satisfied. See, e.g., United States v. Clemones, 577 F.2d 1247, 1253 (5th Cir.

1978) (holding that defendant transported prostitute under 18 U.S.C. § 2421, where

defendant arranged via telephone for prostitute to cross state line, then drove prostitute to

defendant’s brothel upon her arrival in defendant’s state). Accordingly, we decline to

disturb the jury’s verdict.




       2
        This understanding of “transport[ed]” under 18 U.S.C. § 2421 is consistent with our
understanding of similar terms in other federal statutes. See, e.g., McElroy v. United States,
455 U.S. 642, 654 (1982) (noting that trial judge properly instructed jury that transportation
of a forged security within boundaries of a single state violates 18 U.S.C. § 2314 if jury
found the movement to be a “continuation of the movement that began out of state”); Project
Hope v. M/V IBN Sina, 250 F.3d 67, 75 (2d Cir. 2001) (“[T]he Carmack Amendment applies
throughout the shipment, even as to a carrier that is only responsible for an intrastate leg of
the shipment”).

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II.    Trial Rulings

       Cho next argues that the district court violated her due process rights by

prohibiting her from introducing evidence that the complainants voluntarily traveled to

New York. Once again, we disagree.

       A defendant has a fundamental due process right to present a defense. Washington

v. Texas, 388 U.S. 14, 19 (1967). That right, of course, is not absolute, for a defendant

“must comply with established rules of procedure and evidence designed to assure both

fairness and reliability.” Washington v. Schriver, 255 F.3d 45, 56 (2d Cir. 2001) (internal

quotation marks omitted). Thus, a defendant does not have an unfettered right to offer

testimony that is inadmissible under the rules of evidence. See Taylor v. Illinois, 484

U.S. 400, 410 (1988); cf. Williams v. Lord, 996 F.2d 1481, 1483 (2d Cir. 1993) (noting

that restrictions on the right to present a defense may not be “arbitrary or disproportionate

to the purposes they are designed to serve”) (internal quotation marks omitted).

       A district court has “wide discretion to exclude proffered evidence that is

collateral, rather than material, to the issues in the case.” United States v. Scopo, 861

F.2d 339, 345 (2d Cir. 1988). Even erroneous evidentiary rulings rarely result in

depriving a defendant of the fundamental constitutional right to present a meaningful

defense. See Schriver, 255 F.3d at 56.

       Here, we find no error in the district court’s evidentiary rulings, much less that the

district court’s rulings denied Cho due process of law. Cho concedes, as she must, that

the victim’s consent is not a defense under the Mann Act. See Holland, 381 F.3d at 84-85


                                              8
(2d Cir. 2004). Evidence of the victim’s consent is therefore immaterial to the charges

brought in this case. Accordingly, the district court properly sustained objections when

the defendant sought to elicit testimony that Jin consented to interstate travel, and tried to

comment on the issue of Jin’s consent. The first objection occurred during Jin’s cross-

examination when defense counsel asked whether it was Jin’s “desire to come to New

York.” J. App’x 51. The second objection occurred during summation where defense

counsel again commented that “[t]he young lady apparently wanted to come to New

York.” J. App’x 60. In each instance, the question or comment to which an objection

was sustained focused specifically on Jin’s subjective willingness to travel, a matter that

the district court reasonably construed as going to the irrelevant issue of her consent. By

contrast, immediately prior to each excluded question or comment, defense counsel was

permitted to pursue, without objection, lines of inquiry or argument that properly focused

on whether Cho had arranged Jin’s transportation. Counsel was thus able to introduce

evidence, and to argue to the jury, in defense of her contention that Cho “did not arrange

the transportation of this woman . . . . She didn’t pay for [it]. She didn’t facilitate it . . . .”

J. App’x 59-60. Cho has pointed to no other ruling that limited her ability to pursue this

argument or present evidence in its support. Because the district court did not err in

excluding this proffered evidence, we reject Cho’s claim that her due process rights were

violated.




                                                9
III.   Sentencing

       Finally, Cho challenges her sentence, arguing that the district court committed

procedural error by applying a four-level leadership enhancement under U.S.S.G.

§ 3b1.1(a) and that the resulting sentence was substantively unreasonable under the

factors set forth in 18 U.S.C. § 3553(a). We are not persuaded.

       “We review the reasonableness of a district court’s sentence under a deferential

abuse of discretion standard . . . .” United States v. Hernandez, 604 F.3d 48, 52 (2d Cir.

2010). This review “encompasses two components: procedural review and substantive

review.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc). A district

court commits procedural error when it fails to properly calculate the guideline range or

rests its sentence on a clearly erroneous finding of fact. Id. at 190.

       We “review the sentencing court’s interpretation of the Sentencing Guidelines de

novo, but review its related findings of fact only for clear error.” United States v. Potes-

Castillo, 638 F.3d 106, 108 (2d Cir. 2011). Under the clear error standard, “[i]f the

district court’s account of the evidence is plausible in light of the record viewed in its

entirety, the court of appeals may not reverse it even though convinced that had it been

sitting as the trier of fact, it would have weighed the evidence differently.” Anderson v.

City of Bessemer City, N.C., 470 U.S. 564, 573-74 (1985). The district court must find

the facts relevant to a sentencing enhancement by a preponderance of the evidence. See

United States v. Hertular, 562 F.3d 433, 447 (2d Cir. 2009).

       The sentencing guidelines provide for a four-level enhancement “[i]f the defendant

was an organizer or leader of a criminal activity that involved five or more participants or


                                              10
was otherwise extensive.” U.S.S.G. § 3B1.1(a). A defendant may be subject to a four-

level enhancement even if the defendant managed only one other participant. United

States v. Zichettello, 208 F.3d 72, 107 (2d Cir. 2000), citing U.S.S.G. § 3B1.1, cmt. n.2.

Here, the district court cited evidence that “six or seven prostitutes were provided by the

defendant to brothels.” J. App’x 124. Cho, the district court found, “worked to provide

prostitutes to brothels and decided where she would try to place them based on the

prostitute’s personal characteristics, such as how old they were, how beautiful they were.”

J. App’x 124. The district court also heard evidence that Cho used many taxi drivers who

transported prostitutes to various brothels around the East Coast. Such evidence amply

supports the district court’s findings that Cho had a “leadership role in the conspiracy and

that the conspiracy was extensive.” J. App’x 125. Because these findings are not clearly

erroneous, we cannot conclude that the district court abused its discretion in applying the

four-level leadership enhancement.

       Having determined that there was no procedural error, we must “consider the

substantive reasonableness of the sentence imposed under an abuse-of-discretion

standard.” Gall v. United States, 552 U.S. 38, 51 (2007). The substantive

unreasonableness standard “provide[s] a backstop for those few cases that, although

procedurally correct, would nonetheless damage the administration of justice because the

sentence imposed was shockingly high, shockingly low, or otherwise unsupportable as a

matter of law.” United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009). Substantive

reasonableness review, therefore, is not an invitation for us to “substitute our own

judgment for the district court’s on the question of what is sufficient to meet the § 3553(a)


                                             11
considerations in any particular case.” Cavera, 550 F.3d at 189. We cannot conclude that

the 70-month sentence imposed here was substantively unreasonable. The district court

conscientiously balanced the factors under § 3553(a), and the sentence, though stringent,

is not “unsupportable as a matter of law,” Rigas, 583 F.3d at 123.

                                     CONCLUSION

       We have considered all of Cho’s remaining arguments and find them to be without

merit. Accordingly, for the reasons discussed above, we AFFIRM the judgment of the

district court.




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