United States v. Xu, No. 09-10189 (9th Cir. 2013)
Annotate this CaseDefendants, four Chinese nationals, appealed their convictions and sentences for federal crimes that they committed as part of a scheme to steal funds from the Bank of China, where two of the defendants were high-level employees. Defendants also appealed their convictions related to their efforts to escape prosecution and to retain the proceeds by illegal transfers of funds and by immigration fraud. The court held that defendants' count one convictions were not the result of an improper extraterritorial application of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1962(d), conspiracy statute because defendants' criminal enterprise involved both bank fraud and immigration fraud centered on stealing money from the Bank of China and traveling freely with that stolen money in the United States. The evidence was sufficient to support convictions on money laundering conspiracy and conspiracy to transport stolen money. The court remanded for resentencing because the district court improperly relied on defendants' foreign conduct to meet the requirements of U.S.S.G. 2S1(a)(1)(A) resulting in procedural error, improperly applied a one-level enhancement based on foreign conduct, and failed to provide an adequate legal and factual basis for the restitution order.
Court Description: Criminal Law. The panel affirmed the convictions and vacated the sentences of four Chinese nationals who participated in a scheme to steal funds from the Bank of China and to escape prosecution and retain the proceeds by illegal transfers of funds and by immigration fraud. The panel held that the defendants’ RICO conspiracy convictions are not the result of an improper extraterritorial application of 18 U.S.C. § 1962(d) because the defendants’ criminal enterprise involved both bank fraud and immigration fraud centered on stealing money from the Bank of China and traveling freely with the stolen money in the United States. Explaining that conspiracy does not require completion of the substantive crime, the panel held that there was sufficient evidence to support the defendants’ money laundering conspiracy convictions under 18 U.S.C. § 1956(h), and that 18 U.S.C. § 1957(d)’s jurisdictional requirement is met because the transactions took place in the United States. The panel likewise held that there was sufficient evidence to support the defendants’ convictions for conspiracy to transport stolen money under 18 U.S.C. § 2314. The panel held that the district court did not plainly err in its treatment of videotaped testimony at trial, that the defendants’ Confrontation Clause rights were not violated, and that the district court did not abuse its discretion in limiting the testimony of the defendants’ expert witnesses. The panel rejected as meritless the defendants’ jury instruction challenges related to burden shifting, Chinese law, fatal variance/constructive amendment, theory of defense, aiding and abetting, the definition of “on or about,” and the incomprehensibility of the numerous Chinese names presented to the jury. The panel held that the district court did not violate the Ex Post Facto Clause by applying the 2007 Sentencing Guidelines to a conspiracy that did not end until the defendants’ 2004 arrest. The panel remanded for resentencing under U.S.S.G. § 2S1.1(a)(2) because the district court improperly relied on the defendants’ foreign conduct to meet the requirements of U.S.S.G. § 2S1.1(a)(1)(A). The panel rejected as meritless an objection to an abuse of trust enhancement under U.S.S.G. § 3B1.3, and deemed waived an objection to an enhancement for relocation to avoid law enforcement under U.S.S.G. § 2B1.1(b)(9)(A). Because the district court did not provide sufficient grounds to support the $482 million restitution order, the panel remanded for reconsideration regarding its legal and factual basis.
The court issued a subsequent related opinion or order on March 14, 2013.
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