United States v. Jiang ( 2018 )

17-1070-cr
United States v. Jiang
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 20th day of March, two thousand eighteen.
PRESENT: JOSÉ A. CABRANES,
SUSAN L. CARNEY,
Circuit Judges,
LAWRENCE J. VILARDO,
District Judge.1
UNITED STATES OF AMERICA,
Appellee,
v. 17-1070-cr
JIYAO JIANG, A/K/A YI QIANG,
Defendant-Appellant.2
______________________________________________
1
Judge Lawrence J. Vilardo, of the United States District Court for the Western District of New
York, sitting by designation.
2
The Clerk of Court is respectfully directed to amend the official caption to conform with the
above.
1
FOR GOVERNMENT-APPELLEE: NADIA E. MOORE (Susan Corkery, on the brief),
for Richard P. Donoghue, United States
Attorney for the Eastern District of New
York, Brooklyn, NY.
FOR DEFENDANT-APPELLANT: RICHARD LEVITT, Levitt & Kaiser, New York,
NY.
Appeal from a judgment of the United States District Court for the Eastern District of New
York (Carol B. Amon, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the April 11, 2017 judgment of the District Court is AFFIRMED.
Defendant-appellant Jiyao Jiang (“Jiang”) appeals from an April 11, 2017 judgment of
conviction following a jury trial. Jiang was convicted of participation in an extortionate collection of
credit conspiracy, in violation of 18 U.S.C. § 894. He was sentenced to 28 months’ imprisonment and
two years’ supervised release, and was ordered to pay $2,000 in restitution. We assume the parties’
familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
The government’s indictment charged a single conspiracy that involved multiple individuals,
including Jiang, who attempted to extort money from Tian Long Guo, the alleged debtor, on two
different occasions: one in October 2013 and a second in December 2013. Guo had allegedly failed
to repay loans in an amount over $100,000.
While Jiang was physically present for the October 2013 encounter, he was not present when
his associates attempted to collect the debt again in December 2013. On appeal, Jiang claims that the
extortionate actions taken in December 2013 by different associates of the leader of the conspiracy
were part of a separate conspiracy, such that he is not liable for the illegal conduct committed by
others on that date. He therefore argues that the District Court should have excluded any evidence
related to the December 2013 effort to collect the debt from Guo, and that he should be afforded a
new trial in light of this allegedly prejudicial error. We find Jiang’s claim to be without merit.
2
“Whether the government has proven the existence of the conspiracy charged in the
indictment and each defendant’s membership in it, or, instead, has proven several independent
conspiracies is a question of fact for a properly instructed jury.” United States v. Johansen, 56 F.3d 347,
350 (2d Cir. 1995). Where a defendant contends that multiple conspiracies were proven at trial, rather
than the single conspiracy charged in the indictment, the defendant bears the burden of showing that
“no rational trier of fact could have concluded that a single conspiracy existed based on the evidence
presented.” United States v. Sureff, 15 F.3d 225, 230 (2d Cir. 1994) (citations omitted).
On appeal from a judgment of conviction following a jury verdict, we review the evidence in
the light most favorable to the government, drawing all inferences in its favor. United States v. Millar,
79 F.3d 388, 344 (2d Cir. 1996). Even if we find that the government charged one conspiracy but
presented proof of multiple conspiracies at trial, a conviction may be reversed on this basis “only upon
a showing of substantial prejudice.” Johansen, 56 F.3d at 351. A defendant thus must show that the jury
convicted him “on evidence unrelated to his own alleged activity.” United States v. Washington, 48 F.3d
73, 80 (2d Cir. 1995).
The evidence presented at trial established the existence of a single conspiracy, of which Jiang
was a part, to collect an alleged debt from Guo by the unlawful use of violence and/or the threat of
violence. At no point did that common purpose change, even if different actors were involved in
accomplishing this goal at different times. Nonetheless, Jiang’s principal argument on appeal is that
he had no interaction with some of the other members of the single charged conspiracy. This argument
is without merit.
There is no requirement in conspiracy law that the same individuals be involved throughout
the duration of the conspiracy. United States v. Nersesian, 824 F.2d 1294, 1303 (2d Cir. 1987) (“The jury
need not have concluded that the same people were involved throughout the entire period of the
conspiracy in order to find one conspiracy. The jury could have reasonably concluded that some
members of the conspiracy charged participated throughout the entire period of the conspiracy, while
others were involved in its early stages, and still others became involved in its late stages.”).
CONCLUSION
We have considered Jiang’s remaining arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment of the District Court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
3