                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-16-2004

USA v. Lin
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1973




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                                           NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                         No. 03-1973


              UNITED STATES OF AMERICA

                              v.

                       LONG FEI LIN
                    a/k/a LIM LONG FER

                        Long Fei Lin,
                                 Appellant




                         No. 03-1982


              UNITED STATES OF AMERICA

                              v.

                     KONG ZHEN CHEN
                  a/k/a KONG CHEN ZHEN

                      Kong Zhen Chen,
                                Appellant




        On Appeal from the United States District Court
            for the Eastern District of Pennsylvania
         (D.C. Nos. 01-cr-00787-2 and 01-cr-00787-1)
          District Judge: Hon. Clarence C. Newcomer
                      Submitted Under Third Circuit LAR 34.1(a)
                                   July 15, 2004

                Before: SLOVITER, BARRY and WEIS, Circuit Judges

                                  (Filed July 16, 2004)


                              OPINION OF THE COURT




SLOVITER, Circuit Judge.

      Appellant Kong Zhen Chen (“Chen”) appeals his conviction for conspiracy

to commit hostage taking and hostage taking in violation of 18 U.S.C. § 1203(a);

conspiracy to communicate in interstate commerce a demand for ransom in violation of

18 U.S.C. § 371; and communication in interstate commerce of a demand for ransom in

violation of 18 U.S.C. § 875(a). Appellant Long Fei Lin (“Lin”) appeals the sentence

imposed by the District Court for his conviction for conspiracy to commit hostage taking

and hostage taking in violation of 18 U.S.C. § 1203(a). The District Court had subject

matter jurisdiction pursuant to 18 U.S.C. § 3231 and we have jurisdiction pursuant to 28

U.S.C. § 1291 and 18 U.S.C. § 3742(a). For the reasons set forth below, we will affirm.

                                            I.

      On November 29, 2001, Yi Kai Li (“Li”) went to the Tropicana Casino in Atlantic

City, New Jersey to gamble. Li lost money and asked Mei Zhu Zheng (“Zheng”), Chen’s

girlfriend, if he could borrow $1,000 to continue gambling. Zheng telephoned and Chen



                                            2
then came to the casino. Li had previously borrowed money from Chen and his associates

three times. Li told Chen that he had paid back all of the three prior loans. Chen stated

that he would lend Li the requested $1,000 and told Li to follow him to his apartment to

get the money.

       Once they were in the apartment, Chen announced that he would not lend Li the

$1,000 because Li had not repaid a previous debt that now totaled $18,600: $3,000

borrowed a year ago plus $15,600 in interest. Li insisted that he had repaid the earlier

loan, but Chen claimed that he had not received the money. Chen then made several

phone calls and additional people came to the apartment, one of whom was Lin.

       Chen locked the door to his apartment, demanded immediate payment and forced

Li to call his son, Feng Li, to secure the money. After Li informed his son that he was

being detained and needed to repay $18,600, Chen told Feng Li if he did not receive the

money the next day by 10:00 p.m., Chen would take Li to New York and he would be

beaten to death or something else would happen.

       While Li was in the apartment, Zheng did household chores, Lin guarded Li, and

Chen repeatedly hit Li and questioned his desire to repay the money. At one point, Li

went to the bathroom and used his own phone to call his son and tell him to call the

police. That night, Chen, Lin, Zheng, and Li left the apartment to collect the money from

Feng Li in Philadelphia, but they returned to Atlantic City before reaching Philadelphia or

meeting Feng Li.



                                             3
      Late in the evening on November 30, 2001, FBI agents traveled with Feng Li from

Philadelphia to Atlantic City to meet with Chen on the boardwalk. At approximately 3:00

a.m. on December 1, 2001, Chen, Lin, and Zheng were arrested by the FBI on the

boardwalk.

      In statements made after the arrest, Chen told FBI agents that Li owed him $3,000

and had been in his apartment to discuss the debt. Lin told FBI agents that he had been at

Chen’s apartment with Li since November 30 around 12:30 a.m., but claimed to know

nothing about the kidnapping or ransom demand.

      Chen, Lin and Zheng were indicted for conspiracy to commit hostage taking and

hostage taking (Counts 1 and 2), and conspiracy to communicate in interstate commerce a

demand for ransom for release of a kidnapped person and communication in interstate

commerce of this demand for ransom (Counts 3 and 4). Chen was convicted by a jury on

all four counts. Lin was found guilty on counts 1 and 2 only. Zheng was acquitted on all

counts. The District Court sentenced Chen to 168 months in prison. Lin was sentenced

to 97 months in prison. Both Chen and Lin filed timely notices of appeal.

                                            II.

      Chen raises three issues on appeal.

      A. Ineffective Assistance of Counsel

      Chen asserts that his trial counsel was ineffective because she: (1) failed to move

to have Chen’s trial severed from his co-defendant Zheng; (2) introduced good character



                                             4
evidence that led to admission of information regarding Chen’s conviction for assault for

impeachment purposes and (3) opened the door for the government to introduce evidence

that Chen was a loan shark.

       It has been this court’s position that claims for ineffective assistance of counsel

should be raised in a collateral proceeding so that the factual basis for the claim may be

developed. See, e.g., United States v. Haywood, 155 F.3d 674, 678 (3d Cir. 1998). That

was the approach taken more recently by the Supreme Court in Massaro v. United States,

538 U.S. 500 (2003), where the Court held that, in most cases, ineffective assistance of

counsel claims should be litigated in collateral proceedings, rather than on direct appeal.

Chen seeks to come within the narrow exception to our rule whereby we may address

claims of ineffective assistance of counsel on direct appeal if the record is sufficiently

developed to allow determination of the issue. United States v. Headley, 923 F.2d 1079,

1083 (3d Cir. 1991). This is not such a case because the record is insufficient for us to

determine whether there was a reasonable basis for Chen’s counsel’s trial tactics or

whether any of her strategic decisions or performance resulted in prejudice to Chen. We

will deny Chen’s claim for ineffective assistance of counsel without prejudice to his right

to pursue the claim in a collateral proceeding.

       B. Admission of Prior Uncharged Conduct

       Chen next argues that the District Court erred in permitting the introduction of

evidence concerning his prior acts of violence against Zheng. Chen did not object at trial,



                                              5
and therefore we review the District Court’s admission of the evidence for plain error.

See United States v. McGlory, 968 F.2d 309, 346 n.24 (3d Cir. 1992). “[P]lain error

occurs only when there is ‘egregious error or a manifest miscarriage of justice.’” United

States v. Tsai, 954 F.2d 155, 161 (3d Cir. 1992) (quoting United States v. Thame, 846

F.2d 200, 204 (3d Cir. 1988)).

       Chen asserts that the admission of evidence of his prior violent acts against Zheng

was plain error because it was introduced to show his bad character and propensity to

commit crime. Evidence of other crimes may be admitted for the purposes of proving,

among other things, motive, opportunity and intent. Fed. R. Evid. 404(b). Although

evidence of other crimes can be relevant, it may be “excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury . . . .” Fed. R. Evid. 403.

       In this case, the District Court allowed counsel for Zheng to introduce evidence of

Chen’s prior assault to establish her intent pursuant to Rule 404(b). Zheng was seeking to

prove that she did not intend to participate in the kidnapping, was merely present, and did

not try to stop Chen or leave because she was afraid of him due to past domestic violence.

This evidence was not introduced to impugn the character of Chen, but rather to establish

Zheng’s defense of mere presence at the kidnapping. See, e.g., United States v. McGlory,

968 F.2d 309, 325 (3d Cir. 1992). The admission of Zheng’s intent evidence was thus in

accord with Rule 404(b).



                                              6
       Furthermore, any potential prejudice or jury confusion that may have been caused

by the introduction of evidence of Chen’s prior assault on Zheng was addressed by the

District Court’s instructions to the jury that it could consider Zheng’s defense of mere

presence, but “not consider evidence that a defendant may have committed an act at one

time . . . to determine that a defendant acted in conformity with that act in this case.”

Chen App. at 292. These instructions direct the jury to consider evidence of Chen’s prior

assault on Zheng only as it relates to Zheng’s intent and presence during the kidnapping.

Therefore, any prejudice that may have resulted from admitting evidence of Chen’s prior

assault was cured by the jury charge.

       C. Jury Instructions Regarding Character Evidence

       At trial, Chen did not properly object to the District Court’s jury instructions on the

use of character evidence. We therefore review the District Court’s jury charge for plain

error. See United States v. Gordon, 290 F.3d 539, 542-543 (3d Cir. 2002).

       Chen contends that the District Court plainly erred in failing to instruct the jury

that good character evidence, standing alone or with other evidence, may create a

reasonable doubt as to a defendant’s guilt. Our decision in United States v. Spangler, 838

F.2d 85 (3d Cir. 1988), is dispositive of this issue. In Spangler, we held that a jury charge

on character evidence must only call the jury’s attention to its duty to take character

evidence into account with all other evidence in deciding whether the government has

proved its charge beyond a reasonable doubt. Id. at 86-87. However, district courts are



                                              7
not required to instruct a jury that character evidence, standing alone, is sufficient to

create a reasonable doubt. Id. at 87. In the present case, the District Court charged the

jury on character evidence as follows:

       You have heard testimony that a defendant has a good reputation in his
       community for being honest and law-abiding. You may consider such
       evidence, along with all other evidence in the case, in reaching your verdict.
       Evaluate such character evidence, along with all of the other evidence in
       this case, in deciding whether the government has proved the crime charged
       beyond a reasonable doubt.

Chen App. at 291-92. This charge clearly drew the jury’s attention to its duty to properly

consider character evidence and largely mirrors the jury charge that we upheld in

Spangler. The District Court’s jury instruction on the use of character evidence was not

clearly erroneous.

                                             III.

       We exercise plenary review where a district court’s denial of a downward

adjustment is based primarily on a legal interpretation of the Sentencing Guidelines.

United States v. Isaza-Zapata, 148 F.3d 236, 237 (3d Cir. 1998). However, where a

district court’s decision rests on factual determinations, we review the decision for clear

error. Id. Because the District Court’s denial of Lin’s motion for downward reduction

rested upon factual determinations, we undertake clear-error review.

       Lin contends that the District Court erred in refusing to grant him a two-level

minor role adjustment pursuant to Section 3B1.2(b) of the United States Sentencing

Guidelines. Lin claims that the District Court failed to consider all relevant evidence in

                                               8
denying his motion for a minor role adjustment and simply adopted the prosecutor’s

characterization of Lin as “integral in the conspiracy.” Lin Br. at 18.

       In Headley, supra, we considered the following principles as relevant to the

determination of whether a defendant is a minor participant in an offense: “‘the nature of

the defendant’s relationship to the other participants, the importance of the defendant’s

actions to the success of the venture, and the defendant’s awareness of the nature and

scope of the criminal enterprise.’” 923 F.2d at 1084 (quoting United States v. Garcia, 920

F.2d 153 (2d Cir. 1990)). The district court need not explicitly weigh each Headley factor

independently, but the record should support its decision. United States v. Carr, 25 F.3d

1194, 1208 (3d Cir. 1994).

       First, Lin argues that there is no evidence in the record that he had any prior

dealings with Li. However, the first Headley factor focuses upon a defendant’s

relationship with other participants, not with the victim. The relevant inquiry thus focuses

upon Lin’s prior dealings with Chen, not Li. Lin stayed overnight at Chen’s apartment

during Li’s detention, accompanied Chen and Li on the failed trip to Philadelphia, and

walked with Li and Chen on the boardwalk to meet with Feng Li and receive the ransom.

These facts taken together suggest that Li had a pre-existing relationship with Chen.

       Second, Lin’s role as Li’s guard was integral to the success of this kidnapping.

Because Li was not physically restrained during his detention, it was imperative that

someone watch him to prevent his escape. Lin performed this function and ensured that



                                              9
Li did not escape before Feng Li delivered the money. According to Li, Lin watched him

the entire night, did not sleep, and remained in close proximity to him during the

detention, thus performing a critical role.

       Third, Lin argues that, at most, he had only a passing understanding of the nature

and scope of Chen’s criminal objective. While Lin may not have known a great deal

about Chen’s loan shark activities, it is highly unlikely that he had only a passing

understanding of why Li was being detained. The same facts that suggest he had some

type of relationship with Chen also suggest that he had an understanding of why Li was

being held captive. In particular, Lin’s presence in the car to Philadelphia and on the

boardwalk suggest that Lin knew Li was being held to pay an outstanding debt and would

only be released upon payment. Based on these three factors the District Court did not

clearly err by denying Lin’s motion for a downward departure. See Carr, 25 F.3d at 1208.

                                              IV.

       For the foregoing reasons, we will affirm the judgments of the District Court.




                                              10
