United States v. Sangmin Chun , 399 F. App'x 669 ( 2010 )

09-5290-cr
USA v. Chun (Im)
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
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 5th day
of November, two thousand ten.
Present:
ROBERT A. KATZMANN,
PETER W. HALL,
Circuit Judges,
BARBARA S. JONES,
District Judge.*
________________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 09-5290-cr
SANGMIN CHUN, HADONG KIM, also known as Patrick Kim,
CULLEN HUMPHREY KA, FU YU MIAO, also known as Kenny,
JAVIER DIAZ, also known as Magic,
Defendants,
YOUNG SON IM,
*
The Honorable Barbara S. Jones, United States District Judge for the Southern District
of New York, sitting by designation.
Defendant-Appellant.
________________________________________________
For Defendant-Appellant: MARK J. STEIN (Heather L. Shaffer and Michael J.
Castiglione, on the brief), Simpson Thacher & Bartlett
LLP, New York, NY
For Appellee: MICHAEL D. MAIMIN, Assistant United States Attorney
(Rebecca A. Rohr and Katherine Polk Failla, on the
brief), for Preet Bharara, United States Attorney for the
Southern District of New York, New York, NY
Appeal from the United States District Court for the Southern District of New York
(Castel, J.).
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and
DECREED that the judgment of the district court be and hereby is AFFIRMED.
Defendant-Appellant Young Son Im was convicted following a jury trial of conspiracy to
distribute and possess with intent to distribute fifty grams or more of methamphetamine, in
violation of 21 U.S.C. § 846. He was sentenced to seventy-two months’ imprisonment followed
by a three-year term of supervised release. On appeal, Im argues that (1) the government’s
evidence was not sufficient to prove that he had conspired to distribute methamphetamine, (2) he
is entitled to a new trial on the ground that the jury’s finding that he was not entrapped was
against the weight of the evidence, and (3) the district court erred in finding, without an
evidentiary hearing, that his counsel was not ineffective. We assume the parties’ familiarity with
the facts and procedural history of the case.
Where, as here, the defendant did not move in the district court challenging the
sufficiency of the evidence, such a claim is reviewed on appeal only for plain error. United
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States v. Allen, 127 F.3d 260, 264 (2d Cir. 1997). “A defendant challenging the sufficiency of
the evidence that was the basis of his conviction at trial bears a heavy burden.” United States v.
Hawkins, 547 F.3d 66, 70 (2d Cir. 2008) (internal quotation marks omitted). We must review
the evidence “in the light most favorable to the government,” drawing all reasonable inferences
in its favor, United States v. Gaskin, 364 F.3d 438, 459 (2d Cir. 2004), and resolving all issues of
credibility “in favor of the [guilty] verdict,” United States v. Howard, 214 F.3d 361, 363 (2d
Cir. 2000). The jury’s verdict must be sustained if “any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” United States v. Aguilar, 585
F.3d 652, 656 (2d Cir. 2009) (citation omitted) (emphasis in original).
Im claims that the evidence was sufficient to establish only a buyer-seller relationship
among Im and his alleged co-conspirators. The buyer-seller rule provides that “[w]ithout more,
the mere buyer-seller relationship . . . is insufficient to establish a conspiracy.” United States v.
Gore, 154 F.3d 34, 40 (2d Cir. 1998). “[T]he rule does not protect either the seller or buyer from
a charge they conspired together to transfer drugs if the evidence supports a finding that they
shared a conspiratorial purpose to advance other transfers, whether by the seller or by the buyer.”
United States v. Parker, 554 F.3d 230, 235 (2d Cir. 2009).
Having carefully reviewed the record, including the trial testimony and transcripts of the
wire recordings, we conclude that Im’s conviction was amply supported by the evidence. A
rational juror could have concluded on the basis of the record that Im “was not merely a buyer or
seller of narcotics, but rather that [Im] knowingly and intentionally participated in the narcotics-
distribution conspiracy by agreeing to accomplish its illegal objective beyond the mere purchase
or sale.” Hawkins, 547 F.3d at 73-74. As we stated in Parker, where a defendant “made
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purchases of drugs . . . with [the] intention, known to the sellers, to resell the purchased drugs,”
554 F.3d at 237, the evidence “was more than adequate to show that [the defendant’s] repeated
purchases in wholesale quantities gave him a stake in the success and continued availability of
his source of supply, as well as that the selling group had a stake in his resales.” Id. at 239 n.6.
The same is true here.
Second, Im argues that he is entitled to a new trial pursuant to Federal Rule of Criminal
Procedure 33 on the ground that the jury’s finding that the government did not entrap Im into
selling methamphetamine was against the weight of the evidence. “The ultimate test on a Rule
33 motion is whether letting a guilty verdict stand would be a manifest injustice.” United States
v. Ferguson, 246 F.3d 129, 134 (2d Cir. 2001). The entrapment defense has two elements: “(1)
government inducement of the crime, and (2) lack of predisposition on the defendant’s part.”
United States v. Bala, 236 F.3d 87, 94 (2d Cir. 2000) (internal quotation marks omitted). A
defendant arguing entrapment bears the burden of producing “credible evidence of government
inducement.” Id. If the defendant satisfies his burden, the government must prove beyond a
reasonable doubt “predisposition on the defendant’s part.” Id. “Predisposition may be shown by
evidence of: (1) an existing course of criminal conduct similar to the crime for which the
defendant is charged, (2) an already formed design on the part of the accused to commit the
crime for which he is charged, or (3) a willingness to commit the crime for which he is charged
as evidenced by the accused’s ready response to the inducement.” United States v. Brunshtein,
344 F.3d 91, 101-02 (2d Cir. 2003) (internal quotation marks and punctuation omitted). Here,
the record amply supported findings that the government did not induce Im to sell
methamphetamine and that Im was predisposed to selling it. Thus, the jury reasonably
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concluded that Im was not entrapped. In these circumstances, “letting [the] guilty verdict stand”
is not a “manifest injustice.” Ferguson, 246 F.3d at 134.
Finally, “[i]n order to sustain a claim of ineffective assistance of trial counsel it must be
shown that (1) counsel’s performance was deficient and (2) the deficient performance prejudiced
the defense.” Bunkley v. Meachum, 68 F.3d 1518, 1521 (2d Cir. 1995) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). This Court reviews a district court’s denial of a request
for an evidentiary hearing for abuse of discretion. United States v. Levy, 377 F.3d 259, 264 (2d
Cir. 2004).
Im asserts that he is entitled to an evidentiary hearing on the theory that he has
established a “plausible” claim for ineffective assistance of counsel, as indicated by United
States v. Tarricone, 996 F.2d 1414, 1418 (2d Cir. 1993). The Tarricone court, however,
remanded the case for an evidentiary hearing because “on the present state of the record [it
could] not determine” whether defense counsel’s decision not to consult a handwriting expert
was unreasonable under Strickland. Id. at 1419. Here, by contrast, the district court concluded
on the basis of the trial record and “the Court’s own firsthand observations” that Im and his
counsel were fully able to communicate with each other without the assistance of an interpreter.
SPA 14. The court credited, among other things, Im’s counsel’s sworn declaration that he and
Im communicated in English and understood one another, the court’s observation that Im and his
counsel conversed in English during the trial, and Im’s demonstration at a pretrial conference
that he had read and understood wiretap applications. In contrast to Tarricone, the district
court’s denial of Im’s motion was fully supported by the record. Its decision not to conduct an
evidentiary hearing therefore was not an abuse of its discretion.
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We have considered defendant’s remaining arguments and find them to be without merit.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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