11-4167(L)
United States v. Jiau


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                  SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
"SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

           At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York, on
the 23rd day of October, two thousand thirteen.

PRESENT:      AMALYA L. KEARSE,
              JOHN M. WALKER, JR.,
              DENNY CHIN,
                        Circuit Judges.

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UNITED STATES OF AMERICA,
                    Appellee,

                        -v-                                  11-4167-cr
                                                             12-2222-con
WINIFRED JIAU, AKA WINI, AKA SEALED
DEFENDANT 1,
                    Defendant-Appellant,

DONALD LONGUEUIL, SON NGOC NGUYEN, AKA
SONNY,
                    Defendants.

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FOR APPELLEE:                         DAVID I. MILLER, Assistant United
                                      States Attorney (Jenna M. Dabbs
                                      and Diane Gujarati, Assistant
                                      United States Attorneys, on the
                                      brief), for Preet Bharara, United
                              States Attorney for the Southern
                              District of New York, New York,
                              New York.

FOR DEFENDANT-APPELLANT:      RANDA D. MAHER, Law Office of
                              Randa Maher, Great Neck, New York,
                              and Winifred Jiau, pro se, Dublin,
                              California.

         Appeal from the United States District Court for the

Southern District of New York (Rakoff, J.).

         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED, except that the order of forfeiture and the order

denying Jiau's May 2012 pro se Rule 33 motion is VACATED and the

case is REMANDED for further proceedings.

         Defendant-appellant Winifred Jiau appeals from a

judgment entered October 4, 2011, after a jury convicted her of

conspiracy to commit securities and wire fraud, in violation of

18 U.S.C. § 371, and securities fraud, in violation of 15 U.S.C.

§§ 78j(b) and 78ff, 17 C.F.R. 240.10b-5, and 18 U.S.C. § 2.     The

district court sentenced Jiau to concurrent forty-eight-month

terms of imprisonment and two years of supervised release, and

ordered her to pay the mandatory special assessment of $200 and

forfeit $3,118,000.   We assume the parties' familiarity with the

facts, procedural history, and issues for review.




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            On appeal, Jiau primarily challenges the district

court's ruling denying her motion to suppress certain recorded

telephone conversations and related evidence, and the

sufficiency of the evidence at trial.    These are addressed in a

separate opinion issued simultaneously with this summary order.

We now address Jiau's remaining challenges to: (1) two

supplemental jury instructions; (2) her sentence of forty-eight

months' imprisonment, on both procedural and substantive

grounds; (3) the district court's forfeiture order; and (4) the

district court's denial of her pro se Rule 33 motion.

            1.   Jiau challenges the propriety of two of the

district court's supplemental jury instructions.    "A jury

instruction is erroneous if it misleads the jury as to the

correct legal standard or does not adequately inform the jury on

the law."    United States v. Wilkerson, 361 F.3d 717, 732 (2d

Cir. 2004) (internal quotation marks omitted).     We conclude that

the two supplemental instructions correctly stated the law.

Moreover, we reject Jiau's arguments that the instructions

suggested a result to the jury and were therefore prejudicial.

            2.   Jiau challenges her sentence as both

substantively and procedurally unreasonable.    We review Jiau's

sentence "under a deferential abuse-of-discretion standard,"

Gall v. United States, 552 U.S. 38, 41 (2007), and the district


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court's calculation of the gain attributable to Jiau's conduct,

for purposes of determining her base offense level under the

U.S. Sentencing Guidelines, for clear error, see United States

v. Gotti, 459 F.3d 296, 349 (2d Cir. 2006) (adopting a "clear

error" approach when the determination was primarily factual).

We conclude that the district court did not abuse its discretion

in finding Jiau's circumstances distinguishable from those of

other insider trading defendants.       We note that the district

court still imposed a sentence substantially below the

recommended Guidelines range.    Moreover, the court's findings

that both Sonar Capital and Barai made their trades on the basis

of Jiau's information, making her responsible for all their

gains and avoided losses for sentencing purposes, were not

clearly erroneous.

         3.   Jiau argues that the district court erroneously

calculated the amount of forfeiture.      In light of our

intervening decision in United States v. Contorinis, 692 F.3d

136 (2d Cir. 2012), the government agrees that at least a

limited remand is necessary because the order of forfeiture

should not have included the $2.2 million attributable to Sonar

Capital's avoided losses.   See Contorinis, 692 F.3d at 146 n.3.

Rather than engage in piecemeal review of the forfeiture order,

we remand for the district court to reconsider the entire amount


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of forfeiture, after giving the parties an opportunity to

address the impact of Contorinis on this case.

          4.   Jiau argues in her supplemental pro se and

counseled briefs that the district court erred in denying her

2012 pro se Rule 33 motion for lack of jurisdiction.   When a

defendant files a Rule 33 motion while the case is pending on

direct appeal, "[t]he District Court ha[s] jurisdiction to

entertain the motion and either deny the motion on its merits,

or certify its intention to grant the motion to the Court of

Appeals, which c[an] then entertain a motion to remand the

case."   United States v. Cronic, 466 U.S. 648, 667 n.42 (1984);

see also United States v. Camacho, 302 F.3d 35, 36-37 (2d Cir.

2002) (per curiam).   To "den[y] that motion for lack of

jurisdiction because the case was pending on direct appeal at

the time . . . [is] erroneous."   Cronic, 466 U.S. at 667 n.42.

Even though the district court acknowledged that it was not

necessary to deny the motions on this basis and that it only did

so for reasons of efficiency, it was erroneous to deny the 2012

pro se Rule 33 motion on the ground of efficiency, given that

the motion raised questions as to the effective assistance of

counsel, rather than any issues that were before this Court on

the then-pending appeal from the judgment.




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         We have considered Jiau's remaining arguments and find

them to be without merit.   For the reasons set forth in both the

accompanying opinion and this summary order, we AFFIRM the

judgment of the district court except to the extent that it

ordered forfeiture; we VACATE the order of forfeiture and the

order denying Jiau's May 2012 pro se Rule 33 motion and REMAND

for further proceedings consistent with today's rulings.

                              FOR THE COURT:
                              Catherine O'Hagan Wolfe, Clerk




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