                                                                           FILED
                           NOT FOR PUBLICATION                              OCT 20 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-10462

              Plaintiff - Appellee,              D.C. No. 1:10-cr-00031-PMP-4

  v.
                                                 MEMORANDUM *
PINGPING ZHANG,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 10-10463

              Plaintiff - Appellee,              D.C. No. 1:10-cr-00031-PMP-1

  v.

SHIÈU HUANG,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 10-10466

              Plaintiff - Appellee,              D.C. No. 1:10-cr-00031-PMP-2

  v.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
LIHUA YI,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 10-10467

              Plaintiff - Appellee,              D.C. No. 1:10-cr-00031-PMP-5

  v.

ZHANSHAN ZHANG,

              Defendant - Appellant.



                   Appeal from the United States District Court
                  for the District of the Northern Mariana Islands
                       Philip M. Pro, District Judge, Presiding

                       Argued and Submitted October 7, 2011
                                Honolulu, Hawaii

Before: O'SCANNLAIN, TALLMAN, and M. SMITH, Circuit Judges.

       Shixu Huang, Lihua Yi, Pingping Zhang, and Zhanshan Zhang appeal their

convictions for conspiracy to defraud the United States in violation of 18 U.S.C. y

371.

       The indictment against appellants was sufficient because when 'read in its

entirety' it 'contain[ed] the elements of the charged crime in adequate detail to

inform the defendant[s] of the charge and to enable [them] to plead double


                                          2
jeopardy.' United States v. Awad, 551 F.3d 930, 935 (9th Cir. 2009) (internal

quotation marµs omitted); see also United States v. Caldwell, 989 F.2d 1056 (9th

Cir. 1993).

      The government was not required to prove 'separate and distinct' conduct

from conduct that would support a conviction for conspiracy to commit a

substantive offense because the crime of conspiracy is complete when an

individual enters into an agreement to obstruct a lawful function of the government

by deceitful or dishonest means and maµes at least one overt act in the furtherance

of the conspiracy. Caldwell, 989 F.2d at 1059. The 'defraud' clause of section

371 'criminalizes any willful impairment of a legitimate function of government,

whether or not the improper acts or objective are criminal under another statute.'

United States v. Tuohey, 867 F.2d 534, 537 (9th Cir. 1989). Therefore, proof of

'separate and distinct' conduct is not required because '[t]he overt act need not be

criminal itself.' Id.; see also Caldwell, 989 F.2d at 1059 ('Neither the

conspiracy's goal nor the means used to achieve it need to be independently

illegal.'); see generally United States v. Li, 643 F.3d 1183, 1184 (9th Cir. 2011)

(holding that an alien does not enter or attempt to enter the United States for

purposes of section 1325(a)(1) when traveling by boat from the Commonwealth of

the Northern Mariana Islands to Guam) (internal quotation marµs omitted).


                                           3
       There was sufficient evidence of Lihua Yi and Pingping Zhang's µnowing

participation in the conspiracy. United States v. Moreland, 622 F.3d 1147, 1168

(9th Cir. 2010) ('There is sufficient evidence to support a conviction if, viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact

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

(internal quotation marµs omitted)); United States v. Perry, 550 F.2d 524, 528-29

(9th Cir. 1977). Relatedly, there was sufficient evidence of both deceit and an

agreement to obstruct a lawful immigration function of the government to sustain

the conspiracy convictions. Moreland, 622 F.3d at 1168; see also 8 U.S.C. y

1182(d)(7); 8 C.F.R. y 235.5.

       The district court did not err in refusing to adopt Lihua Yi's proposed

specific unanimity instruction because there was not a sufficient possibility of juror

confusion in this case. United States v. Kim, 196 F.3d 1079, 1082-83 (9th Cir.

1999). Nor did the district court err in informing the jury of the duties of aliens

traveling from the Commonwealth of the Northern Mariana Islands to Guam. The

district court's instruction was not an 'incorrect statement of law' warranting

reversal. United States v. Redlightning, 624 F.3d 1090, 1122 (9th Cir. 2010).

Similarly, the district court did not err in failing to inform the jury that the

Commonwealth of the Northern Mariana Islands is part of the United States, as


                                            4
such an instruction was irrelevant to the appellants' defense at trial. See 8 U.S.C. y

1182(d)(7); 8 C.F.R. y 235.5. And the district court did not abuse its discretion in

failing to provide the jury with additional instructions on the 'deceit' element of a

section 371 violation. Redlightning, 624 F.3d at 1122.

      Appellants' remaining arguments are without merit.

      AFFIRMED.




                                           5
                                                                               FILED
USA v. Zhang, et al.     10-10462                                               OCT 20 2011

                                                                           MOLLY C. DWYER, CLERK
M. Smith, Circuit Judge, concurring:                                         U.S . CO U RT OF AP PE A LS




      This is a disturbing case. Although I feel compelled by precedent to agree with

the judgment and reasoning of the memorandum disposition, I write separately to

highlight what I consider to be the highly questionable tactics used by the prosecutors

in this case. Those tactics arguably frustrate Congress's purpose in enacting 18 U.S.C.

y 371, and also undermine the United States Sentencing Commission's judgment in

establishing a range of reasonable sentences. Moreover, they are more consistent with

an approach of seeµing to obtain a conviction with the longest possible sentence than

seeing that justice is done, an approach which is in tension with prosecutors' role as

public fiduciaries. See The Supreme Court, 2009 Term--Leading Cases, 124 Harv.

L. Rev. 360, 367 (2010) ('[P]rosecutors have a . . . role as public fiduciary. In this

capacity, the prosecutor occupies a quasi-judicial position in which the goal is not to

win a case, but [to see] that justice shall be done. Thus, [t]o this extent, our so-called

adversary system is not adversary at all; nor should it be.') (citations and internal

quotation marµs omitted).

      The government initially charged each defendant with one count of attempting

to enter the United States in violation of 8 U.S.C. y 1325(a)(1). The penalty for

violation of Section 1325(a)(1) is a term of imprisonment of not more than six months


                                            1
for the first commission of the offense when an alien attempts to enter the United

States at a time or place other than as designated by immigration officers. 8 U.S.C.

y 1325(a)(1). Later, the government obtained an indictment charging each defendant

with one count of conspiracy to commit offenses and to defraud the United States, in

violation of 18 U.S.C. y 371; eluding examination and inspection, in violation of 8

U.S.C. y 1325(a)(2); and attempted improper entry by an alien, in violation of 8

U.S.C. y 1325(a)(1). One defendant agreed to cooperate with the government and

pled guilty to one count of eluding examination and inspection, in violation of 8

U.S.C. y 1325(a)(2), a misdemeanor carrying a maximum of six-months'

imprisonment. See 8 U.S.C. y 1325(a)(2). However, the government became aware

that United States v. Li, 643 F.3d 1183 (9th Cir. 2011), which addressed the question

of whether defendants performing similar conduct had violated 8 U.S.C. y 1325(a)(1),

was pending before our court, and preemptively moved just before the trial began to

dismiss all charges against each remaining defendant other than the alleged violation

of 18 U.S.C. y 371. During argument, the government conceded that its fear of the

outcome in Li was the reason why it had dropped the y 1325(a)(1) charges.1 The

      1
        The government's fear was well-founded. Li held that the defendants did not
violate 8 U.S.C. y 1325(a)(1) by attempting to travel by boat from the Commonwealth
of the Northern Mariana Islands to Guam because both places are part of the United
States. Li, 643 F.3d at 1189. That holding and reasoning would have required a
reversal of any conviction against the defendants in this case for violation of

                                         2
district court granted the government's motion, and the case proceeded to trial on the

defendants' alleged violations of y 371.

      At trial, the defendants were all convicted of violating y 371. Judge Alsup was

troubled enough about the government's approach to the case that he commented:

      This is not an isolated scenario and this case is emblematic of a larger
      human heartbreaµ. It stems from the way in which immigration has been
      handled in the CNMI. Prior to the passage of the Consolidated Natural
      Resources Act of 2008, the Commonwealth operated under its own
      immigration policies which were largely welcoming to foreign migrant
      worµers such as defendants. Much of the garment worµ that defendants
      legitimately came to Saipan to perform, however, disappeared under
      pressure from mainland U.S.A. labor interests. Under the 2008 Act, the
      Commonwealth transitioned to the stricter immigration laws of the
      United States. Nearby Guam is said to have jobs and that belief attracts
      the unemployed in the CNMI.

      Some claim that they will face persecution if they are forced to return to
      China. By law, asylum applications are not available to individuals in
      the CNMI. Caught in a 'Catch 22' scenario, defendants and others have
      determined that their only recourse is to enter the United States through
      Guam, which does have an asylnm application process. Ordinarily, it is
      a misdemeanor for an alien to attempt to enter Guam (or anywhere else
      in the United States) other than at a designated facility. 8 U.S.C. 1325.
      One interesting issue posed herein is whether this conduct, in conspiracy
      form, is also a felony under Section 371.

      The defendants' conduct forming the basis of the y 371 charge, a felony

carrying up to five-years' imprisonment, was identical to the conduct forming the



y 1325(a)(1). See id.


                                           3
basis of the original y 1325(a) charges, i.e., secretly attempting to enter the United

States by boat at night to avoid examination or inspection by immigration officers.

      The 'defraud clause' of y 371 criminalizes conspiracies 'to defraud the United

States.' 18 U.S.C. y 371. It 'is a very broad provision, which subjects a wide range

of activity to potential criminal penalties.' United States v. Caldwell, 989 F.2d 1056,

1059 (9th Cir. 1993). Although the government established the necessary elements

in this case under our case law, the outcome is very troubling. It essentially maµes y

1325(a) redundant. The conduct y 1325(a) proscribes, such as an alien's attempting

to enter the United States at a time or place not designated by immigration officers,

or an alien's eluding examination or inspection by immigration officers, can almost

always be characterized as falling within the scope of y 371. See 18 U.S.C. y 371;

Caldwell, 989 F.2d at 1059. Such an outcome allows prosecutors to resort to the

vaguer provisions of y 371 to evade Congress's choice of punishing the conduct

described in y 1325(a) as a misdemeanor and the United States Sentencing

Commission's choices in establishing a sentencing range for y 1325(a) violations. It

also allows prosecutors to evade the will of Congress by prosecuting a conspiracy to

violate y 1325(a), which would be a misdemeanor, see 18 U.S.C. y 371; United States

v. Little, 753 F.2d 1420, 1444 (9th Cir. 1984), as a felony under the 'defraud clause'

of y 371.


                                          4
       The government's approach of prosecuting novel theories of criminal liability

under y 371 threatens to criminalize conduct that people have no reason to believe is

unlawful. If left unchecµed, it could lead down the proverbial slippery slope of

criminalizing conduct we have stated y 371 does not criminalize, such as a husband

asµing his wife to buy him a radar detector for his car, or executives of a business that

competes with a government enterprise lowering prices to gain customers at the

government enterprise's expense. See Caldwell, 989 F.2d at 1059-60. It could also

lead to (a) an attorney who advises a client to establish a trust to minimize tax liability

being guilty of a felony; (b) a pro bono attorney who thinµs a criminal defendant is

probably guilty, but nevertheless represents him, of being guilty of a felony himself;

or (c) an attorney's ethical duty of zealous representation meaning one thing in the

context of dealings with a private party and something less in the context of dealings

with the government.

       Many years ago, Professor Abraham S. Goldstein warned of the possible misuse

of y 371:

       [T]he federal conspiracy statute has become another governmental
       weapon in the eternal conflict between authority and the individual. By
       maµing unclear the line between what is permitted and what is
       prohibited, by conceiving the statute's reach to be as broad as that of an
       expanding government, present doctrine places within the power of
       police and prosecutor an instrument for intruding upon Everyman. The
       instrument is all the more dangerous because it wears the garb of


                                             5
       conspiracy, with all the tactical and evidentiary benefits that that
       doctrine implies. Imprecise definition and procedural advantages
       combine to maµe it virtually certain that a charge of conspiracy to
       defraud the United States will get to the jury--where a showing of
       suspicious behavior by the sort of people who ought to µnow better and
       who least appeal to that body's occasional empathy for those who
       commit crimes of passion and violence, is very liµely to produce
       conviction.

       ...

       It will taµe every bit as much ingenuity to find a way out of the maze as
       it tooµ unconcern with the larger values of the criminal law and with the
       usual bounds of statutory definition to enter it. Doctrines must be
       reshaped with bold stroµes and within a much larger frame than has
       hitherto characterized analysis in this branch of federal criminal law.
       Until this is done, 'conspiracy to defraud the United States' will remain
       on the booµs as a Kafµaesque crime, unµnown and unµnowable except
       in terms of the facts of each case--and even then, not until the verdict
       has been handed down.

Abraham S. Goldstein, Conspiracy To Defraud the United States, 68 Yale L.J. 405,

462-63 (1959).

      I do not suggest that the government may not prosecute only the most serious

offenses when multiple statutes criminalize the same conduct, or that the penalties

available on conviction may not influence prosecutors. The Supreme Court has held

otherwise. See United States v. Batchelder, 442 U.S. 114, 123-24 (1979) ('This Court

has long recognized that when an act violates more than one criminal statute, the

Government may prosecute[] under either so long as it does not discriminate against


                                          6
any class of defendants. Whether to prosecute and what charge to file or bring before

a grand jury are decisions that generally rest in the prosecutor's discretion.') (citations

omitted).     Nevertheless, I pause to inquire whether Congress intended for

prosecutors to use the 'defraud clause' of y 371 as they did in this case. I question

whether it did.

       Future adventurous prosecutors could easily abuse the 'defraud clause' in such

a way as to create the Kafµaesque scenario envisioned by Professor Goldstein if they

do not have a clear vision of their role as public fiduciaries, with the goal of seeing

justice done. Without such a vision, future government victories could be society's

loss. See Brady v. Maryland, 373 U.S. 83, 87 (1963) ('Society wins not only when

the guilty are convicted but when criminal trials are fair; our system of the

administration of justice suffers when any accused is treated unfairly. An inscription

on the walls of the Department of Justice states the proposition candidly for the

federal domain: 'The United States wins its point whenever justice is done its citizens

in the courts.'').

       I reluctantly concur.




                                            7
