UNITED STATES DISTRICT COURT
FOR 'I`HE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

crim. No. 02-434-01 (TFH)
VS.

CHI FAI CHENG,

Defendant.

\./§/\./\./\./\/\y\./\./\z

ORDER

Pending before the Court is Mr. Cheng’s Motion to Vacate, Set Aside, or Correct Sentence
Pursuant to 28 U.S.C. § 2255. Dkt. # 145. The Govemment filed an Opposition. Dkt. # 148. The
motion is DENIED because it is procedurally barred and/or meritless. No hearing is required
because "the motion and the files and records of the case conclusively show that the prisoner is

entitled to no relief." 28 U.S.C. § 2255(b).

I. BACKGROUND
On July 25, 2003 a jury convicted Mr. Cheng of conspiracy to defraud the United States in

violation of 18 U.S.C. § 371. On October l7, 2003 this Court sentenced Mr. Cheng to 51 months in
prison followed by a 3-year tenn of supervised release and ordered forfeiture of $350,000. Defendant
appealed the sentence and was later released pending the appeal. According to the motion, the
opposition and the exhibits thereto, in February 2005, while waiting for a decision on his appeal, Mr.
Cheng apparently participated in a debriefing with the U.S. Attomey’s Office ("l") for the

Eastem District of Virginia ("EDVA") in which he provided certain assistance to the government

with respect to another investigation targeting a Mr. George Tsai, among others (the "L
Debriefing”). This debriefing was apparently a follow-up to an interview that Mr. Cheng gave the
EDVA USAO in August 2003 and possibly another in September 2003 regarding the same
investigation (the "2003 Interviews").

The D.C. Circuit affirmed Mr. Cheng’s conviction on September 21, 2006 but remanded the
case for resentencing as consistent with United States v. Booker, 543 U.S. 220 (2005). Dkt. # 140.
On March l, 2007, the Court resentenced Mr. Cheng to 37 months in prison followed by a 3-year
tenn of supervised release. At the resentencing the Court had before it a letter from the EDVA
USAO confinning the invitation for-but not the outcome of_the 2005 Debriefing. Letter from J.
Gillis (EDVA USAO) to J. Rudasill, Jr. (Counsel for Mr. Cheng) (Feb. l2, 2005) (the "February
2005 Proffer Letter"). Mr. Cheng did not appeal his new sentence. On March 30, 2007, apparently
in response to a request from defense counsel, the EDVA USAO sent a letter to defense counsel
detailing the assistance Mr. Cheng provided in the 2005 Debriefing. Letter from J. Gillis to J.
Rudasill, Jr., copying J. Malis (D.C. AUSA) (Mar. 30, 2007) (the "March 2007 Letter").

On October 31, 2007 Mr. Cheng filed this motion in which he claims that (i) the government
should have discovered and presented the details of Mr. Cheng’s assistance to the EDVA USAO at
the March l, 2007 resentencing hearing, and (ii) the March 2007 Letter, in bad faith and to his

detriment, minimized the value of Mr. Cheng’s assistance rendered in the 2003 lnterviews.

II. DISCUSSION
Mr. Cheng first argues that a generic duty to act in good faith created a government duty to
discover and present the details of his assistance to the EDVA USAO at his resentencing Mot. at

4. Mr. Cheng offers no precedent for this theory and the Court declines to create one. Moreover,

Mr. Cheng’s counsel was admittedly fully aware of Mr. Cheng’s meetings with the EDVA USAO
and explained them to the Court. Tr. at 8-9, 26-27 (Mar. l, 2007). The Court never indicated that
it wouldn’t consider such activities under the section 3553 factors because it lacked a government
account of them. Furthermore, the Court finds nothing in the record indicating that the prosecutor
misled the Court regarding Mr. Cheng’s assistance to the EDVA USAO or otherwise interfered
with defense counsel’s efforts to relay descriptions of such assistance to the Court. See Tr. at 20-
2l. Thus, a summary of Mr. Cheng’s activities with the EDVA USAO were before the Court at
resentencing. This claim is thus meritless.

The claim is also procedurally barred. Mr. Cheng obviously knew that the government did
not present the details of his assistance to the EDVA USAO to the Court during resentencing. He
therefore could have raised this claim on appeal. "Where a defendant has procedurally defaulted a
claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant
can first demonstrate either cause and actual prejudice, . . . or that he is actually innocent." Bousley
v. United States, 523 U.S. 614, 622 (1998) (internal quotation marks omitted); see also United
States v. Spadaro, No. 10-3005, 2010 U.S. App. LEXIS 20552, at *2 (D.C. Cir. Oct. l, 20l0). Mr.
Cheng offers no "cause" for his failure to raise this argument on appeal and the Court conceives
none. Mr. Cheng also does not assert that he is "actually innocent." The claim is thus procedurally
barred.

Mr. Cheng also appears to argue (or at least imply) that the government improperly failed
to make a motion to the Court for a reduction of sentence under Fed. R. Crim. P. 35(b) ("Reducing
a Sentence for Substantial Assistance"). The motion references two possible theories of why such
a decision was improper. First, the bad faith that the Washington, D.C. USAO displayed in not

presenting Mr. Cheng’s assistance to the EDVA spilled over into its decision to not grant him a

Rule 35(b) motion. Mot. at 4. Second, because the March 2007 Letter, in bad faith, fails to
describe his assistance to the EDVA USAO in the 2003 Interviews, and because the prosecution
relied on the letter in denying him a Rule 35(b) motion, the letter’s bad faith spilled over into the
prosecutor’s decision to not grant a Rule 35(b) motion. Id. at 4-5.

"[F]ederal district courts have authority to review a prosecutor's refusal to file a substantial-
assistance motion and to grant a remedy if they find that the refusal was based on an
unconstitutional motive." Wade v. United States, 504 U.S. 181, 185-86 (1992). "[A] defendant is
not entitled to a remedy or even to discovery or an evidentiary hearing merely by alleging an
unconstitutional motive. Rather, the defendant must make a substantial threshold showing of
improper motive." United States v. White, 71 F.3d 920, 924 (D.C. Cir. l995) (citing Waa’e). Mr.
Cheng has made no such "substantial threshold showing." Thus, the Court has no authority to
question the govemment’s decision regarding Rule 35(b), as defense counsel recognized at the
resentencing hearing, Tr. at 27.

The Court also notes, however, that Mr. Cheng’s theories in this context are flawed. First,
as discussed above, there was no bad-faith failure of the government to present the Court with
details of Mr. Cheng’s assistance to the EDVA USAO at the resentencing hearing, Second, the
March 2007 Letter omits details of the 2003 Interviews not out of bad faith but because the
meeting was outside its scope. The February 2005 Proffer Letter generally limits its terms to
"statements made . . . at the . . . meeting scheduled for February 15, 2005", and excludes
statements made "either before or after the referenced meeting." 11 4. The letter further promised
that "[i]f requested, the govemment will bring its view of the nature and extent of your client’s
cooperation to the attention of other prosecuting offices." 1[ 5. The EDVA USAO sent defense

counsel the March 2007 Letter pursuant to that promise. Thus, the March 2007 Letter naturally

limited itself to discussing the 2005 Debriefing. No bad faith was involved. The C ourt thus

perceives no improper motive on the part of either the D.C. AUSA or the EDVA USAO in this
context.
The motion is therefore DENIED.

SO ORDERED.

November 17, 2010   x f

Thomas F. Hogan
UNITED STATES DisrRr 15

