                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-18-2009

USA v. Andrew Yao
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1977




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009

Recommended Citation
"USA v. Andrew Yao" (2009). 2009 Decisions. Paper 1174.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1174


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                 __________

                                      No. 08-1977
                                      __________

                           UNITED STATES OF AMERICA

                                            v.

                                  ANDREW N. YAO,
                                                         Appellant


                    On Appeal from the United States District Court
                              for the District of Delaware
                             (D. C. No. 01-06-cr-00027-001)
                        District Judge: Hon. Gregory M. Sleet


                               Argued on May 12, 2009

              Before: AMBRO, ROTH and ALARCÓN*, Circuit Judges

                             (Opinion filed: June 18, 2009)

Mark E. Cedrone, Esquire (Argued)
Cedrone & Janove
Public Ledger Building, Suite 940
150 South Independence Mall West
Philadelphia, PA 19106

                    Counsel for Appellant




       *Honorable Arthur L. Alarcón, Senior United States Circuit Judge for the Ninth
Circuit Court of Appeals, sitting by designation.
Colm F. Connolly, Esquire
United States Attorney
Shannon T. Hanson, Esquire (Argued)
Assistant United States Attorney
1007 N. Orange Street, Suite 700
P. O. Box 2046
Wilmington, DE 19899-2046

                        Counsel for Appellee




                                         OPINION


ROTH, Circuit Judge:

          Andrew Yao appeals from a judgment of conviction for making a false oath in a

bankruptcy proceeding, in violation of 18 U.S.C. § 152(2). The District Court had

jurisdiction pursuant to 18 U.S.C. § 3231. This Court has jurisdiction pursuant to 28

U.S.C. § 1291. We assume the parties’ familiarity with the facts and the record of prior

proceedings, which we describe only as necessary to explain our decision. We will

affirm.

          Yao’s sole complaint is directed at the District Court’s instruction on the

fraudulent intent required to prove a violation of 18 U.S.C. § 152(2). The District Court

defined “fraudulently” to require an “intent to deceive the trustee, the creditors, the

bankruptcy court, or any other person or entity.” Yao argues that the District Court

should have limited the potential object of the “intent to deceive” to “the trustee, the

creditors, or the bankruptcy court.”

                                                2
       During trial, Yao did not object to the language “or any other person or entity” in

the “fraudulent” jury instruction. Indeed, the words were added to the instruction at the

District Court’s suggestion as a compromise between Yao’s suggested lengthy “intent to

defraud” instruction and the government’s open-ended “intent to deceive” language, and

both parties approved the language before it was used in the preliminary instructions. The

“or any other person or entity” language was used again following the prayer conference

and a final time after the jury asked a question during deliberations, and never did defense

counsel put a “clear, specific objection” to that language on the record. See United States

v. Zehrbach, 47 F.3d 1252, 1260 n.6 (3d Cir. 1995). Accordingly, we review the

instruction only for “plain error.” Id.

       Plain error is “found ‘sparingly and only where the error was sure to have had

unfair prejudicial impact on the jury’s deliberations.’” United States v. Thayer, 201 F.3d

214, 221–22 (3d Cir. 1999) (quoting Zehrbach, 47 F.3d at 1263 n.9). Moreover, “we

should exercise our discretion to correct the error [only] where the defendant is actually

innocent, or where, regardless of the defendant’s innocence or guilt, the error seriously

affects the fairness, integrity or public reputation of judicial proceedings.” United States

v. Gordon, 290 F.3d 539, 543 (3d Cir. 2002). We find no such problem here. Yao lied to

creditors’ counsel about transfers of funds he made from corporate debtor’s accounts. He

told these lies while under oath during his deposition as part of bankruptcy proceedings,

and they concern a fact material to the debtor’s bankruptcy—what Yao did with over



                                              3
$800,000 of the debtor’s assets. We have reviewed the record and are satisfied that the

evidence would overwhelmingly support the verdict even if the jury instructions had not

included the disputed language.1

       Accordingly, we will affirm the judgment of conviction.




 1
   We thus do not decide whether conviction under 18 U.S.C. § 152(2) typically requires
an “intent to deceive” any person or an “intent to deceive the creditors, the trustee, or the
bankruptcy court.”

                                              4
