                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-1273
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the District
                                        * of North Dakota.
Shan Wei Yu,                            *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: March 13, 2007
                                Filed: May 2, 2007
                                 ___________

Before WOLLMAN, JOHN R. GIBSON, and MURPHY, Circuit Judges.
                          ___________

MURPHY, Circuit Judge.

       Shan Wei Yu was convicted by a jury of one count of conspiring to transport
illegal aliens in violation of 8 U.S.C. § 1324(a)(1) and one count of conspiring to
launder money in violation of 18 U.S.C. § 1956(a)(1). The district court1 sentenced
him to 108 months imprisonment. Yu appeals, arguing that the court erred in denying
his suppression motion, that the prosecutor engaged in misconduct, that the court
should have held a competency hearing, and that his sentence is unreasonable. We
affirm.


      1
       The Honorable Ralph R. Erickson, United States District Judge for the District
of North Dakota.
                                          I.

       Yu owned and operated the Great Texas Employment Agency (Great Texas)
along with his girlfriend, Ya Cao. Great Texas was in the business of supplying
Chinese restaurants in several states with immigrant workers. Yu advertised Great
Texas to Chinese restaurant owners through direct mailings and in the Midwest
edition of a Chinese periodical, agreeing to supply "Hispanic and Middle Southern
American workers" for "odd jobs" or positions such as "dishwashers" or "busboys."
Upon receiving an order from a restaurant owner, Great Texas would recruit
immigrant workers from Texas, and arrange for their transportation to the restaurants.
The driver would collect a $450 fee upon delivery of the worker, keep $300, and
transmit $150 to Great Texas. The restaurant owner would then deduct the $450 from
the employee's first pay check. Yu testified at trial that Great Texas placed at least
6,000 workers in restaurants since the agency opened in 1998.

       Authorities began investigating Yu after a border patrol agent encountered two
men riding bicycles on Interstate 29 in North Dakota in June 2004 . The two men
admitted that they were Mexican citizens who were in the country illegally and who
had been working at a Chinese restaurant in Grand Forks, North Dakota. One of the
men had an employment contract, written in both Chinese and Spanish, which
provided that the employee would receive a salary of $1,000 per month. The contract
also listed a 312 area code telephone number for an employment agency.

      The Bureau of Immigration and Customs Enforcement (ICE) investigated the
matter and obtained a search warrant for the Buffet House restaurant, the former
employer for the two men, and the apartment where they were staying. Agents found
two more illegal Mexican aliens and similar employment contracts for the two men
except their contracts listed a 713 phone number for the employment agency. Agents
also found a copy of the World Journal, a Chinese language newspaper, which
included an advertisement for Great Texas and the same 312 phone number as found


                                         -2-
in the first individual's employment contract. Agents arrested the two restaurant
owners, who admitted that they preferred to hire illegal aliens.

       Agents served administrative subpoenas to telephone companies and learned
that the 713 and 312 numbers were both assigned to Yu's home in McKinney, Texas
and that there had been 275 phone calls between these numbers and various Chinese
restaurants in the previous eight months, including two with other North Dakota
restaurants. At one of these restaurants agents found another employee forwarded by
Yu who was in the country illegally.

       Based on this information, agents obtained and executed a search warrant at
Yu's house in Texas where they found numerous employment contracts similar to
those discovered in North Dakota. Some of the contracts uncovered in Texas listed
different phone numbers for the employment agency, but the new numbers were also
assigned to Yu. Agents also uncovered business journals which recorded transactions
between Great Texas and numerous Chinese restaurants for the prior fifteen months.
Entries in those journals indicated that restaurants had ordered approximately 1,528
workers from Great Texas in that period and that Great Texas had delivered
approximately 1,072 workers. Also discovered were records from bank accounts
owned jointly by Yu and his girlfriend, Ya Cao, with a total value of about $150,000,
comprised almost entirely of cash deposits. In addition there were copies of direct
mailings sent to Chinese restaurant owners and of advertisements placed in the World
Journal which listed the 713 area code phone number and Ms. Chen (Lily) as the
contact person.

       Agents asked to interview Yu, and he consented. After receiving his Miranda
warnings, Yu explained that he lived at the residence with Ya Cao (whom he referred
to as Lily) and that Ya Cao and a Spanish speaking recruiter would go to street corners
to find workers to fill requests. He said that he paid $20 for each worker recruited.
Yu admitted that some of the workers were illegal but said that he assumed most were


                                         -3-
legal and that the restaurants would check on the workers' immigration status. He
estimated that over the last 30 to 60 days five of the workers placed through Great
Texas were in the country illegally. He also explained to the agents how the workers
were transported to the restaurants and how each person involved in the operation was
paid.

       A grand jury indicted Yu on one count of engaging in a conspiracy to transport
illegal aliens for private financial gain and commercial advantage and one count of
conspiracy to launder money, knowing that the funds involved were proceeds of
transporting illegal aliens for financial gain. Many others, including Ya Coa, were
charged with similar crimes in connection with Great Texas.

       Prior to trial, Yu moved to suppress statements made to the law enforcement
agents in Texas, asserting that his statements were not voluntary because he had not
comprehended his Miranda warnings. He said that he did not understand his rights
because the Miranda warnings were given in English and he was under the influence
of prescription medications. The district court concluded that Yu understood English
at a sufficient level, pointing to the facts that Yu had written the court letters in
English, that Yu had responded to English questions in court, and that Yu had
attended an English speaking college and had been in this country for over 20 years.
It noted that Yu had taken 50 mg of Ambien, 20 mg of Prozac, and 100 mg of Seriquel
at 5:00 a.m., two hours prior to officers performing the search, but concluded that his
consent was voluntary based on the testimony of one of the agents that Yu was lucid
throughout the conversation, that the residence was orderly, and that Yu had been able
to provide detailed information during the interview, including specifics about his
business and health condition.

      At trial, the government introduced evidence that the two telephone numbers
found on the contracts and at least two others attributed to Great Texas had been
documented in several previous traffic stops throughout the country and that in each


                                         -4-
case illegal aliens had been discovered. There was evidence of nine different police
encounters with employees contracted through Great Texas and 23 of the 24 workers
involved were in the country illegally. Xin Min Li, one of Yu's former drivers,
testified that Yu was in charge of Great Texas but that he mainly corresponded with
Ya Coa, whom he knew as Lily. He said that Ya Cao had told him that restaurant
owners preferred illegal immigrants and that the workers were found on street corners.
He estimated that fewer than 20% of the workers used by Great Texas were in the
country legally. Another former driver, An Dong Ceng, testified that most of the
workers being transported were in the country illegally, based on his experience that
they packed few belongings and could not speak English. There was also evidence
that the workers would often be forced to work long hours for low salaries and no
overtime pay.

       Yu testified through an interpreter. He testified that he was not aware that the
agency placed illegal aliens in positions because his poor health (cancer and obsessive
compulsive disorder) made it impossible for him to remain active in the business. He
estimated that Great Texas had placed at least 6,000 workers since he opened it and
admitted that he reviewed and paid for the advertisements placed in the World
Journal. Yu attributed some of the success of Great Texas to his policy of ensuring
free delivery of as many as two substitutes for any worker who left the restaurant
within the first month. He testified that Ya Cao and an interpreter would find workers
at the Salvation Army or missions and that he had used more than 200 different
drivers to deliver workers to the various restaurants. He also told the jury that he
never answered the phones because of his social anxiety disorder and that he had
begun Great Texas in the aim of providing opportunities for immigrants. According
to his testimony, Yu had no knowledge any of the workers were illegal and took
efforts to ensure that his company did not transport illegal aliens.

      During closing arguments, Yu's counsel argued to the jury that Great Texas had
been taken over by rogue employees and that Ya Cao had been at the center of the


                                         -5-
enterprise but that the government had failed to call her as a witness even though
"they can get her if they want her." Defense counsel also argued that the government
routinely endangers citizens by giving people drugs during investigations and then
following the drug carriers. In response to these arguments, the prosecutor pointed
out in his rebuttal argument that Yu also had power to subpoena Ya Cao to testify and
referred to the other arguments as red herrings. The jury found Yu guilty on both
counts charged in the indictment, and the case proceeded to sentencing.

       The district court initially calculated a guideline range of 70 to 87 months based
on an offense level of 27 and category I criminal history. That offense level included
a nine point increase pursuant to USSG § 2L.1.1(b)(2)(C) for the transportation of 100
or more illegal aliens. The government requested an upward departure and that Yu
be sentenced to the statutory maximum of 120 months imprisonment because the
offense involved "significantly more than 100 aliens." See USSG § 2L1.1, comment.
(n.4) (2005). The court concluded that the offense involved at least 1,000 illegal
aliens and departed upward to an offense level of 29, which resulted in a guideline
range of 87 to 108 months. The court then sentenced Yu to 108 months, noting that
it would have sentenced Yu to the statutory maximum but for his poor health.

       Yu appeals. He argues that he is entitled to a new trial because the court failed
to hold a hearing sua sponte to assess his competency to stand trial and erred in
denying his motion to suppress evidence obtained the morning of the search. He
argues that a new trial is also warranted because of prosecutorial misconduct during
the government's rebuttal closing argument. Yu also alleges that the court erred in
sentencing him. He claims that the court miscalculated his guideline range because
the upward departure for the number of illegal aliens transported was unsupported by
the facts and that his sentence was unreasonable because the court failed to analyze
the factors outlined in 18 U.S.C. § 3553(a).




                                          -6-
       The government responds that Yu's arguments are without merit because there
was not a reasonable doubt as to whether Yu was competent to stand trial, Yu's
statements made to the agents were voluntary and therefore admissible, and any error
in admitting the statements would be harmless in light of the overwhelming evidence
of guilt. The government also maintains that Yu's sentence was not unreasonable
given that the district court's finding Yu transported substantially more than 100
illegal aliens was not clear error and that the court considered the § 3553(a) factors.

                                             II.

        Yu argues that we should remand for a new trial because he was denied due
process of law by the district court's failure to order a competency hearing sua sponte
to assess whether he was able to understand the proceedings against him and to assist
his trial counsel. He asserts that his complaints about his attorneys, the fact that he at
least once refused to meet with one of them, and the court's knowledge of his mental
health condition and use of prescription medications put the court on notice that a
competency hearing was warranted. The government responds that there was no
evidence that Yu lacked the competency to stand trial and that the facts of this case
do not necessitate a competency hearing. We review a court's decision not to order
a competency hearing de novo. See United States v. Gary, 341 F.3d 829, 835 (8th Cir.
2003).

        Trial courts have a constitutional duty to order a competency hearing sua sponte
"when there is a reasonable doubt about the defendant's competency to stand trial."
Campbell v. Lockhart, 789 F.2d 644, 646 (8th Cir. 1986). To be competent to stand
trial a defendant must have, at the time of his trial, "sufficient present ability to consult
with his lawyer with a reasonable degree of rational understanding" and a "rational as
well as factual understanding of the proceedings against him." Griffin v. Lockhart,
935 F.2d 926, 930 n.1 (8th Cir. 1991) (citation omitted). Competence is presumed
"absent some contrary indication" arising from irrational behavior, the defendant's


                                            -7-
demeanor, and any prior medical opinions addressing the defendant's competency.
United States v. Long Crow, 37 F.3d 1319, 1325 (8th Cir. 1994).

        Yu contends that the court should have ordered a competency hearing because
he was taking prescription medications for mental health problems and because he had
complained to the court about the conduct of his attorneys. No party suggested at
trial, however, that Yu was incompetent or unable to understand the proceedings, see
Crenshaw v. Wolff, 504 F.2d 377, 379 (8th Cir. 1974), and Yu testified coherently as
to the nature of his defense, his lack of knowledge as to whether the workers were
illegal, and the events on the morning of the search. See Long Crow, 37 F.3d at 1326.
Yu's complaints about his attorneys – that one attorney failed to retrieve his medical
records in a timely manner and that the other pressured him to plead guilty – evidence
that Yu understood the case against him and was capable of consulting with counsel.
The district court observed Yu testify and directly conversed with him at the status
conference. It saw no basis for holding a competency hearing, and the fact that Yu
was taking medications (Prozac, Seroquel, Ativan, and sleeping pills) did not
necessarily require such a hearing. See Lewis v. United States, 542 F.2d 50, 51 (8th
Cir. 1976). The district court did not err by not holding a competency hearing.

       Yu also maintains that a new trial is warranted because the district court erred
in denying his motion to suppress statements he made on the morning officers
searched his house. He argues that he did not voluntarily waive his Fifth Amendment
rights because the Miranda warnings were given in English instead of in Chinese and
because he was under the influence of prescription medications when he agreed to talk
to the officers. He asserts that the early time at which the search was performed along
with the fact that several armed agents performed the search made his consent
involuntary. The government responds that Yu understood the Miranda warnings and
that Yu had a full, coherent conversation with them that morning. The government
also maintains that any error in admitting the statements is harmless given the
overwhelming evidence of Yu's guilt.


                                         -8-
       We review the legal question of voluntariness de novo and review the factual
findings for clear error. United States v. Luker, 395 F.3d 830, 833 (8th Cir. 2005).
Voluntariness is determined by "the totality of the circumstances," Blackburn v.
Alabama, 361 U.S. 199, 206 (1960), taking into consideration both the "conduct of the
officers and the characteristics of the accused." Wilson v. Lawrence County, 260 F.3d
946, 952 (8th Cir. 2001). Statements made to officers are voluntary unless, "in light
of the totality of the circumstances," the defendant's power of self determination was
critically impaired. United States v. Judan, 472 F.3d 575, 581-82 (8th Cir. 2007).

       The district court considered the testimony of the interviewing officer at the
suppression hearing who believed that Yu did not appear to be under the influence of
medication or drugs at the time of the search. The officer conversed with Yu for two
full hours without a misunderstanding based on language, and Yu provided him with
detailed information in English regarding the nature of the business and his personal
background. The court also noted that Yu had participated in other court proceedings
in English and that it had observed Yu's ability to understand English. Moreover,
there is no evidence that coercion or inappropriate tactics were used the morning of
the search, and Yu does not deny that he received Miranda warnings. We conclude
that the court did not err when it found the officer's testimony credible, see United
States v. Contreras, 372 F.3d 974, 977 (8th Cir. 2004), and denied the suppression
motion. It is therefore unnecessary for us to reach the government's harmless error
argument.

       Yu also contends that the prosecutor made improper remarks during the rebuttal
phase of closing arguments and that he is entitled to a new trial as a result. He
believes a mistrial is warranted because during the government's rebuttal argument the
prosecutor brought to the jury's attention that Yu had failed to call Ya Coa as a witness
and three times referred to his defense as a "red herring." The government responds
that the prosecutor was permitted to make the statements because they were a fair
response to arguments made during Yu's closing argument.


                                          -9-
       We will reverse a conviction for prosecutorial misconduct if (1) the prosecutor's
remarks were improper and (2) the remarks prejudicially affected the defendant's
substantial rights. United States v. Beckman, 222 F.3d 512, 526 (8th Cir. 2000). If we
reach the second step, we consider “(1) the cumulative effect of the misconduct, (2)
the strength of the properly admitted evidence of the defendant's guilt, and (3) any
curative actions taken by the trial court.” Id. Yu did not raise these issues below, so
we review the claimed errors for plain error. See United States v. Young, 470 U.S. 1,
6-7 (1985).

       During Yu's closing argument, his attorney told the jury that Ya Cao was at the
center of the criminal enterprise but that she had not been called as a witness even
though "they (the government) can get her if they want her." In response, the
prosecutor informed the jury that charges were pending against Ya Cao and that there
was no evidence that she would testify had the government requested her appearance.
The prosecutor also told the jury that both parties had "equal access" to witnesses and
that the defendant also had power to request a subpoena for her testimony. It is a "fair
response" for a prosecutor to refer to the subpoena power of a defendant where the
defendant has first emphasized the government's failure to call a witness. See,e.g.,
United States v. Ziesman, 409 F.3d 941, 954 (8th Cir. 2005); United States v. Flynn,
196 F.3d 927, 930-31 (8th Cir. 1999). Because Yu first brought to the jury's attention
that the government had failed to call Ya Cao as a witness, it was not misconduct for
the prosecutor to inform the jury that Yu also had power to subpoena her. See United
States v. Lee, 743 F.2d 1240, 1253-54 (8th Cir. 1984).

       Yu also argues that he is entitled to a mistrial because the prosecutor used the
term "red herring" three times in the rebuttal argument. He characterizes the
government's argument as an attack on the character of opposing counsel and argues
that such attacks are improper, see United States v. Holmes, 413 F.3d 770, 774-75 (8th
Cir. 2005), especially when made during the rebuttal phase of closing argument. See
United States v. Cannon, 88 F.3d 1495, 1503 (8th Cir. 1996). We have found use of


                                         -10-
the term "red herring" in the government's rebuttal argument to be improper, but only
where that phrase was combined with other statements alluding to defense counsel and
deceitful trial tactics. See Holmes, 413 F.3d at 774-75. Use of the term red herring is
not improper where, as here, the prosecutor only used the term to argue that some of
the issues raised by the defense were not central to the ultimate finding of guilt beyond
a reasonable doubt. See United States v. Milk, 447 F.3d 593, 604-606 (8th Cir. 2006)
(Gruender and Colloton, J.J.., concurring).

       Yu raises two issues in regard to his sentence. He first argues that the court
erred by ordering an upward departure and by increasing his sentence based on the
number of aliens transported because there was no proof supporting the departure for
having transported substantially more than 100 illegal aliens. The government
responds that ample evidence supports the court's conclusion. The reasonableness of
the district court's sentencing departures are generally reviewed for abuse of
discretion, and whether the district court based its departures on a permissible factor
is reviewed de novo. United States v. Long Turkey, 342 F.3d 856, 859-61 (8th Cir.
2006). Here, however, Yu does not argue that the court could not have departed
upward had it correctly found that he transported 1,000 aliens; he argues instead that
this factual finding is not supported by the evidence. We review a challenge to the
factual conclusions of a sentencing court for clear error. See United States v. Killgo,
397 F.3d 628, 631 (8th Cir. 2005); see also United States v. Haack, 403 F.3d 997,
1004 (8th Cir. 2005) (holding that sentencing court abuses its discretion by
committing a "clear error of judgment").

       The sentencing guidelines provide that an "upward departure may be
warranted" if "the offense involved substantially more than 100 aliens." USSG §
2L1.1, comment. (n.4) (2005). This court has never determined how many aliens
constitute "substantially more than 100 aliens" for these purposes. The United States
Court of Appeals for the Second Circuit has concluded that 300 aliens is "certainly
substantially more than 100," see United States v. Moe, 65 F.3d 245, 251 (2d Cir.


                                          -11-
1995), but the Ninth Circuit has suggested that an offense must involve more than 400
aliens to qualify a defendant for such a departure. United States v. Nagra, 147 F.3d
875, 886 (9th Cir. 1998). We need not settle on an appropriate number in this case,
however, because the parties agree that transportation of over 1,000 aliens is
"substantially more than 100" and that a departure is warranted if this finding is not
clearly erroneous.

       Yu challenges the district court's conclusion that "there are at least 1,000 illegal
aliens that were transported" as pure speculation, pointing to the fact that no
government witness ventured to guess as to an exact number of illegal aliens involved
in his scheme. It is undisputed that Yu provided jobs for at least 6,000 workers in
Chinese restaurants over the period alleged in the indictment and that 23 of the 24
workers identified in this case were in the United States illegally. Yu cannot avoid
application of the guidelines because his illegal scheme involved so many illegal
aliens that it is unreasonable for a court to specify an exact number of aliens
transported. We conclude that there is ample evidence supporting the district court's
conclusion that over 1,000 illegal aliens were transported and that the court did not
abuse its discretion by departing upward.

       Yu also claims that his sentence was unreasonable because the district court
failed to consider the 18 U.S.C. § 3553(a) factors. We review the reasonableness of
a sentence for abuse of discretion. United States v. Little Hawk, 449 F.3d 837, 840
(8th Cir. 2006). The district court abuses its discretion by failing to consider a
relevant factor that should have received significant weight, giving significant weight
to an improper or irrelevant factor, or committing a clear error of judgment. See
United States v. Davidson, 437 F.3d 737, 741 (8th Cir. 2006).

      Yu does not assert that he is entitled to a downward departure or that his
sentence should have been decreased because of any specific § 3553(a) factor; he
instead argues that he is entitled to resentencing because the court did not explicitly


                                           -12-
mention the factors when it sentenced him. It is not necessary for the district court to
"provide a mechanical recitation of the § 3553(a) factors" so long as it is "clear from
the record" that the court considered them. Little Hawk, 449 F.3d at 840. In this case,
the district court discussed the "nature and circumstances of the offense," see §
3553(a)(1), and the "seriousness of the offense," see § 3553(a)(2)(A), when it noted
that the crime involved the trading of persons as "commodities" to work for "slave
labor." It also considered the "kinds of sentences available," § 3553(a)(3), and the
applicable "sentencing range," § 3553(a)(4), when it observed that Yu's crime
involved ten times the number of victims necessary to receive the top guideline
sentence. Moreover, the court determined that it would not sentence Yu to the
statutory maximum sentence based on his personal "characteristics," see § 3553(a)(1),
specifically that he was in poor physical and mental health. Given that the court did
not consider any impermissible factors and gave weight to all the relevant factors, we
conclude that the district court's decision to sentence Yu to 108 months imprisonment
was a reasonable application of the § 3553(a) factors. See Little Hawk, 449 F.3d at
841.

      Accordingly, we affirm the judgment of the district court.
                     ______________________________




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