United States v. Tin Yat Chin, 476 F.3d 144, 2d Cir. (2007)
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Scribd Government DocsUnited States v. Tin Yat Chin, 476 F.3d 144, 2d Cir. (2007)
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Scribd Government Docs476 F.
3d 144
UNITED STATES of America, Appellee,
v.
TIN YAT CHIN, Defendant-Appellant.
Docket No. 06-1048-CR.
United States Court of Appeals, Second Circuit.
Argued: November 15, 2006.
Decided: January 30, 2007.
1
Margo K. Brodie, Assistant United States Attorney (Roslynn R. Mauskopf,
United States Attorney for the Eastern District of New York, Peter A. Norling,
Assistant United States Attorney, on the brief), Brooklyn, NY, for Appellee.
Diarmuid White, White & White, New York, N.Y. (Brendan White on the
brief), for Defendant-Appellant.
Before McLAUGHLIN and SACK, Circuit Judges, and RAKOFF, District
Judge.*
RAKOFF, District Judge.
The Government alleged that Tin Yat Chin, using the names Mok Wah and Tan
C. Dau, defrauded Chinese Americans of more than a million dollars by posing
as an employee of the agency once known as the Immigration and
Naturalization Service ("INS") who could, for a fee, obtain work visas
authorizing relatives living in China to immigrate to the United States. On this
basis, a grand jury charged Chin with one count of impersonating a federal
employee in violation of 18 U.S.C. 912, and, because Chin failed to report the
proceeds of the fraud, with three counts of tax evasion in violation of 26 U.S.C.
7201. Chin, for his part, maintained that this was a case of mistaken identity,
that he had no involvement in the fraud, and that he realized no income
therefrom.
In January 2003, a jury convicted Chin of all four counts. On appeal, this Court
reversed on the ground that the district court erred in refusing to allow Chin to
introduce in evidence certain credit card receipts that tended to show that Chin
was in New York during a period when the Government alleged that defendant
was in China effecting the fraud. See United States v. Tin Yat Chin, 371 F.3d 31
(2d Cir.2004). On retrial, the Government called multiple witnesses who
testified, inter alia, that they met Chin in China during the period in question,
where he was posing under assumed names as a corrupt INS employee. As part
of the defense case, Chin introduced the New York credit card receipts that had
been excluded from the first trial, as well as the testimony of a handwriting
expert, Roger Rubin, who opined that the signatures on the credit card receipts
were Chin's. Over objection, the Government was then permitted to present on
rebuttal the testimony of its own handwriting expert, John Sang, who opined
that many of the receipts were probably not signed by Chin. The jury returned a
verdict of guilty on all four counts.
7
On this appeal from the second conviction, Chin's most colorable claim
concerns the Government's failure to disclose its intent to call Sang, and
anything about his expert testimony, until the day before the defense concluded
its case. Well before the start of the second trial, the defense had indicated its
intent to call Rubin as its handwriting expert and had made the disclosures
regarding his testimony required by Rule 16(b)(1)(C) of the Fed.R.Crim.P. The
Government, for its part, had already retained Sang as its expert and had
obtained from him an opinion challenging the authenticity of Chin's signatures
on the credit card receipts. Yet, knowing full well that the authenticity of these
signatures would be a hotly contested issue in the case, the Government chose
to remain entirely silent, until one day before the end of the defense case, both
as to the fact that it had retained a handwriting expert and as to the testimony he
was expected to give.
At a minimum, this was a sharp practice, unworthy of a representative of the
United States. The Government seeks to justify its surprise move by noting that
Rule 16 only requires it to make pre-trial disclosures with respect to expert
testimony that it intends to elicit in "its case-in-chief," Rule 16(a)(1)(G)
Fed.R.Crim.P. See, e.g., United States v. Frazier, 387 F.3d 1244, 1269 (11th
Cir.2004). But it does not follow that the Government has carte blanche in
every case to spring a surprise expert witness on an unsuspecting defendant
who has long since disclosed his own expert's prospective testimony. For no
defense counsel, no matter how experienced, can fairly be asked to crossexamine on a moment's notice a witness who comes clothed with all the
impressive credentials and specialized training of an expert and whose opinions
and methods with respect to the case at hand have been subject to no prior
scrutiny. In an appropriate case, such an ambush might well violate due
process. Cf. Wardius v. Oregon, 412 U.S. 470, 476, 93 S.Ct. 2208, 37 L.Ed.2d
82 (1973) ("It is fundamentally unfair to require a defendant to divulge the
details of his own case while at the same time subjecting him to the hazard of
surprise concerning refutation of the very pieces of evidence which he
disclosed to the State.").
9
Here, however, the Government's non-disclosure, though regrettable, did not
rise to a due process violation. For the able district court, although overruling
Chin's objection to the Government's calling Sang on rebuttal, then gave
defense counsel what he needed: time to prepare to cross-examine Sang.
Specifically, the district court granted the defense a one-day continuance for
this purpose. Although Chin now claims he needed more than one day, he made
no claim at the time that one day was insufficient to prepare his crossexamination.1 Furthermore, the district court could reasonably infer that
defense counsel, in preparing his own handwriting expert to testify, had
sufficiently immersed himself in the technicalities of handwriting analysis that
he could adequately evaluate and prepare to combat Sang's testimony over the
one-day break. Indeed, even on this appeal, Chin has proved unable to specify
with any particularity how he was prejudiced by not receiving a longer
continuance. Accordingly, we conclude that, thanks to the prudence of the
district court in granting the continuance, Chin was not deprived of due process.
10
Chin's other points on this appeal may be disposed of briefly. Chin's claim that
the evidence showed only that Chin purported to be a former INS employee
(which he was), rather than a present INS employee (which he was not)2 is
directly contradicted by the testimony of Li Zhen Zeng, who testified that Chin
showed her a badge and stated that he "currently" worked at INS. Further,
several witnesses testified that Chin simply told them that he "worked" at the
INS, thereby implying that he currently worked at the INS.
11
Chin also claims that his sentence of 135 months' imprisonment15 more
months than that imposed by the different district judge who conducted the first
trialwas "vindictive." It is well settled that due process of law "requires that
vindictiveness against a defendant for having successfully attacked his first
conviction must play no part in the sentence he receives after a new trial."
North Carolina v. Pearce, 395 U.S. 711, 725, 89 S.Ct. 2072, 23 L.Ed.2d 656
(1969). The goal of the principles established in Pearce, however, "is to prevent
the evil of vindictiveness of a sentencing judge, and not simply enlarged
sentences after a new trial." United States v. Atehortva, 69 F.3d 679, 683 (2d
Cir.1995)(internal quotation marks omitted). A second judge seems an unlikely
candidate for a charge of vindictiveness based on the overturning on appeal of a
judgment previously entered by another judge. Id. But in any event, when a
new trial is held before a different judge, he or she is of course expected to
exercise discretion entirely independently from the judge who conducted the
first trial. The fact that the second judge did so here is, alone, no indication that
he was improperly motivated in determining the sentence. Moreover, the
district judge at the second trial specifically found that Chin had solicited false
trial testimony at the second trial from his wife and brother, and thereby
attempted to obstruct justice, warranting a two-point enhancement. This added
factor, which was amply warranted by the evidence, more than justified the
increased sentence.
12
Finally, Chin's claim that the district court's determination of the restitution
amount under the Mandatory Victim Restitution Act, 18 U.S.C. 3663A et
seq., violates his alleged constitutional right to have this determination made by
a jury is foreclosed by our holding to the contrary in United States v. Reifler,
446 F.3d 65, 118 (2d Cir.2006) ("[T]he Booker-Blakely principle that jury
findings, or admissions by the defendant, establish the `maximum' authorized
punishment has no application to [Mandatory Victim Restitution Act] orders of
restitution.").
13
Accordingly, the judgment of the district court is hereby affirmed in all
respects.
Notes:
*
The Honorable Jed S. Rakoff, United States District Judge for the Southern
District of New York, sitting by designation
Chin did request more time to call still another expert to testify that handwriting
analysis was not an exact science, but the district court properly denied this
vague and untimely request as not likely to be helpful to the jury
18 U.S.C. 912 only applies to persons impersonating a present government
employee. Specifically it provides that: "Whoever falsely assumes or pretends
to be an officer or employee acting under the authority of the United States or
any department, agency or officer thereof, and acts as such, or in such pretended
character demands or obtains any money, paper, document, or thing of value,
shall be fined under this title or imprisoned not more than three years, or both."
