United States v. Li Xin Wu , 668 F.3d 882 ( 2011 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2055
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
L I X IN W U,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 CR 799-8—Ronald A. Guzmán, Judge.
A RGUED N OVEMBER 2, 2011—D ECIDED D ECEMBER 28, 2011
Before E ASTERBROOK, Chief Judge, and P OSNER and
W OOD , Circuit Judges.
W OOD , Circuit Judge. Li Xin Wu was convicted after
a jury trial on one count of conspiracy to possess a con-
trolled substance with intent to distribute, in violation of
21 U.S.C. §§ 841 and 846, and 18 U.S.C. § 2, and one
count of conspiracy to import a controlled substance
into the United States, in violation of 21 U.S.C. §§ 952,
960, and 963, and 18 U.S.C. § 2. On appeal, Wu raises a
2 No. 11-2055
variety of arguments challenging both his conviction
and sentence: he takes issue with the district court’s
rejection of two of his proposed jury instructions; he
asserts that immunized statements were used against
him at trial; he contends that alternate jurors inappro-
priately deliberated with the petit jury; and finally,
he challenges his guidelines calculation. We find no
error, however, and therefore affirm.
I
Beginning in late 2003, several people in Chicago’s
Chinatown neighborhood began importing large quan-
tities of marijuana and methylene-dioxymethamphet-
amine (MDMA, or as it is commonly known, Ecstasy)
from Canada into Chicago. Wu started participating in
this operation a few months after it began. Initially,
he rented a warehouse in Chinatown for the group to use
to store the drugs. Over the course of the next year, Wu
received multiple loads of marijuana and MDMA from
the drug ring’s Canadian suppliers. He purchased some
of it for resale to his own customers and stored the rest
for his codefendants to sell to their customers. Wu, who
is fluent in both English and Cantonese, also served as
a translator for participants in the operation.
Federal agents learned about the drug ring in early 2005
when one of its members sold MDMA to a government
informant. Agents later met with Wu, who at first denied
involvement but eventually, over the course of eight
meetings, provided the government with many details
about the operation and its members. At Wu’s trial the
No. 11-2055 3
government offered uncontroverted evidence that Wu
voluntarily participated in these meetings and that its
agents never made any promises to Wu nor offered him
immunity. Although at first Wu was very cooperative,
by the final meeting in July 2007 he denied his role in
the offense and minimized his conduct.
In September 2008, a grand jury returned a 13-count
indictment charging 20 people with various federal
offenses relating to the drug ring. Wu was named in two
of those counts. All of Wu’s codefendants either fled the
jurisdiction or reached agreements with the govern-
ment. Wu opted for a trial and was found guilty by a
jury of both counts charged in the indictment.
II
A
Wu first contends that the district court erred by
rejecting two of his requested jury instructions, covering
the topics of aiding and abetting and multiple conspira-
cies. We review instructions de novo to determine
whether they were correct and complete statements of
the law. United States v. Tanner, 628 F.3d 890, 904 (7th
Cir. 2010). If the instructions as given were accurate, we
will defer to the district court’s choice of language and
not disturb them. United States v. Ashqar, 582 F.3d 819,
822 (7th Cir. 2009). The government argues that we
should review in this instance only for plain error
because (it says) Wu failed to object to the final instruc-
tions after the court rejected his requested versions. See,
4 No. 11-2055
e.g., United States v. Mims, 92 F.3d 461, 465 (7th Cir. 1996)
(“The court’s refusal to give a tendered instruction
does not automatically preserve an objection to the in-
struction actually given.”). Given our conclusion that
there was no error at all, however, we need not worry
here about the difference between plain error and the
ordinary standard of review.
With respect to aiding and abetting, Wu asked the
court to give the Seventh Circuit’s pattern instruction,
which instructs the jury that a defendant must “knowingly
associate with the criminal activity, participate in the
activity, and try to make it succeed,” in order to be liable
as an accomplice. P ATTERN C RIMINAL F EDERAL J URY IN-
STRUCTIONS OF THE S EVENTH C IRCUIT § 5.06. The district
court rejected this request and instead told the jury that
a defendant can be convicted of aiding and abetting if
“he or she tries to help the conspiracy succeed by com-
mitting an act in furtherance of the conspiracy and had
knowledge of the conspiracy’s purpose at the time he
commits the act.”
Wu argues that the district court’s instruction left out
the element of “knowing association.” Knowing associa-
tion is important for accessory liability because it pre-
vents the conviction of a person on a guilt-by-associa-
tion theory: someone who is “simply passively present
during the transaction” should not be convicted of
aiding and abetting that transaction. United States v.
Heath, 188 F.3d 916, 921 (7th Cir. 1999). The prosecution
must instead also “show that the defendant shared the
principal’s criminal intent,” United States v. Sewell, 159 F.3d
No. 11-2055 5
275, 278 (7th Cir. 1998); it does so by proving “knowing
association.”
But a judge is not limited to the exact phrase “knowing
association” in order to convey this concept to the jury.
Elsewhere we have explained that aiding and abetting
“requires knowledge of the illegal activity that is being
aided and abetted, a desire to help the activity succeed,
and some act of helping.” United States v. Zafiro, 945
F.2d 881, 887 (7th Cir. 1991); see also United States v.
Peoni, 100 F.2d 401, 402 (2d Cir. 1938) (L. Hand, J.) (acces-
sory liability requires that a defendant “in some sort
associate himself with the venture, that he participate
in it as in something that he wishes to bring about, that
he seek by his action to make it succeed”).
Although we would have preferred something closer
to the Zafiro or Hand formulation, the court’s instruc-
tion adequately captured the required meaning. The
jury here was told that the government had to prove
that Wu had knowledge of the conspiracy’s purpose, that
he tried to help the conspiracy succeed, and that he
committed some act in furtherance of the conspiracy.
The phrase “tries to help” may not as clearly evoke
intent as the words “desire to help.” But the district
court’s choice of words here conveyed the critical idea
to the jury: that Wu could be convicted only if he
sought to advance the conspiracy’s criminal goal. The
court was also careful to instruct the jury that “associa-
tion with conspirators is not by itself sufficient to
prove [Wu’s] participation in a conspiracy.” In the
final analysis, we find nothing in this instruction that
6 No. 11-2055
warrants reversal of Wu’s conviction for aiding and
abetting.
Second, Wu challenges the district court’s rejection of
his request for an instruction on multiple conspiracies.
Wu wanted the following instruction:
You must decide whether the conspiracy charged
in the indictment existed, and if it did, who at least
some of its members were. If you find that the con-
spiracy charged did not exist, then you must return
a not guilty verdict, even though you may find
that some other conspiracy existed. Similarly, if you
find that the defendant was not a member of the
charged conspiracy, then you must find the de-
fendant not guilty, even though the defendant
may have been a member of some other conspiracy.
The district court refused to give this instruction;
indeed, it gave no instruction on multiple conspiracies.
This was exactly the right thing to do, because Wu’s
requested instruction on multiple conspiracies was not
an accurate statement of the law. See, e.g., United States
v. Wilson, 134 F.3d 855, 865 (7th Cir. 1998). Wu’s
proposal implies that the jury must acquit if the govern-
ment does not prove that the conspiracy as charged in
the indictment existed, even if it proves that some
other conspiracy existed. As we have repeatedly ex-
plained, this is incorrect because the government is free
to proceed on a subset of allegations in the indictment
and prove a conspiracy smaller than the one alleged. See
id.; see also United States v. Duff, 76 F.3d 122, 126 (7th
Cir. 1996); United States v. Townsend, 924 F.2d 1385, 1410
No. 11-2055 7
(7th Cir. 1991). In order for a defendant to be entitled to
an instruction, she must first show that it is an accurate
statement of the law. United States v. Knope, 655 F.3d
647, 662 (7th Cir. 2011). Wu has not met this require-
ment and thus we find no error in the court’s rejection
of his proposed instruction.
B
Wu next takes issue with the government’s introduc-
tion of his statements against him at trial. He asserts
that the government granted him use immunity and
thus that the admission of his statements violated his
Fifth Amendment right against self-incrimination. See
generally United States v. Cozzi, 613 F.3d 725, 730 (7th
Cir. 2010) (discussing the relation between use im-
munity and the Fifth Amendment as established by
Kastigar v. United States, 406 U.S. 441, 453 (1972)). We
normally review a district court’s factual determination
that a defendant had not been granted use immunity
for clear error, United States v. Nelson, 851 F.2d 976, 978
(7th Cir. 1988), but because Wu did not object to the
admission of his statements at trial, our review here is
only for plain error. United States v. Olano, 507 U.S. 725,
731 (1993); United States v. Stark, 507 F.3d 512, 520 (7th
Cir. 2007). In any event, the two inquiries overlap
because for error to be plain it must be “clear or obvious.”
United States v. Turner, 651 F.3d 743, 748 (7th Cir. 2011).
The district court’s determination that Wu had not
been granted use immunity was not clearly erroneous.
At trial, an FBI agent testified under oath in response to
8 No. 11-2055
both direct and cross-examination that the government
did not make any promises to Wu or offer him immu-
nity. Wu did not present any evidence to the con-
trary or move to exclude the statements. The court was
entitled to credit the agent’s testimony. Once it did so,
there was a solid basis for the court to conclude that
Wu had not been offered use immunity. Wu has pointed
to nothing on appeal that suggests this decision was
erroneous. There is thus no need for a remand for an
evidentiary hearing.
C
Wu also argues that we should reverse, or at least
remand for an evidentiary hearing, because two
alternate jurors may have deliberated with the petit jury.
Wu failed to raise this issue until his post-trial motions
and thus we again review for plain error. Wu would
meet this standard if he could show that alternate
jurors were in fact present with the jury when delibera-
tions began. See United States v. Ottersburg, 76 F.3d 137,
138 (7th Cir. 1996). The Federal Rules of Criminal Proce-
dure prohibit alternate jurors from deliberating with
the petit jury: a district court must “ensure that a
retained alternate does not discuss the case with anyone
until that alternate replaces a juror or is discharged.”
F ED. R. C RIM. P. 24(c)(3). We have held that a violation
of this rule is plain error. Ottersburg, 76 F.3d at 139 (con-
sidering an earlier version of Rule 24(c), which required
the court to discharge alternate jurors after the jury
begins deliberation). If the defendant can show that the
No. 11-2055 9
“substantive participation of alternates” has taken place,
this is “sufficient to establish prejudice.” Id. at 140; see
also Manning v. Huffman, 269 F.3d 720, 726 (6th Cir.
2001) (“[W]e hold that Manning’s evidence that an alter-
nate juror participated in jury deliberations is sufficient
to demonstrate prejudice.”); United States v. Acevedo, 141
F.3d 1421, 1424 (11th Cir. 1998) (“[O]nce the alternate
participates in any way—whether through words or
gestures—prejudice is manifest.”).
If the evidence in this record established that the alter-
nates had actually engaged in substantive deliberations
with the jurors, as in Ottersburg, then we would find
plain error and reverse. If the record suggested that
the alternates may have so participated, then we could
remand for an evidentiary hearing under Remmer v.
United States, 347 U.S. 227 (1954), to determine whether
this in fact occurred. We are satisfied, however, that
the evidence in this record, if it does anything at all,
points the other way and indicates that no meaningful
interactions could have occurred between the
alternates and the petit jury that would require either
reversal or a hearing. Only 10 to 15 minutes elapsed
after the jurors were dismissed from the courtroom to
begin deliberations until the alternate jurors were
brought back to the courtroom. Even if we assume that
the two alternate jurors left the courtroom with the
petit jury and headed with them to the jury deliberation
room, they would have had to spend time traveling
between the 17th floor of the Dirksen Courthouse, where
the courtroom was located, and the 12th floor jury room,
before any deliberations could have started. In addition,
10 No. 11-2055
the record reflects that the alternate jurors spent some
of that 15-minute period apart from the petit jury,
waiting in a separate room to be brought back into
the courtroom.
We do not know anything more than this, unfortunately,
because Wu failed to raise the issue in a timely fashion.
If he had, the district court could have asked the
alternate jurors whether they had ever entered the de-
liberation room, and if so, whether the jury had moved
past discussing preliminary matters (or, perhaps, having
its afternoon snack). Wu thus bears some of the responsi-
bility for whatever opacity there is in the record. Common
sense tells us, however, that there was literally not
enough time for the jury to begin deliberating, once
the entire group headed down five floors, found the
new room, and settled down. Especially because we
know that the alternates were separated from the jury
for at least part of the time, we conclude that there was
no plain error here and no need for an evidentiary hearing.
D
Finally, Wu challenges his sentence. He argues that
the district court should have reduced his offense level
by two under the Sentencing Guidelines’s “safety valve”
provision. See 18 U.S.C. § 3553(f). The district court
found Wu ineligible for the safety valve because in
its view he did not meet the requirement of Sec-
tion 3553(f)(5): “not later than the time of the sen-
tencing hearing, the defendant has truthfully provided
to the Government all information and evidence the
No. 11-2055 11
defendant has concerning the offense.” We review a
district court’s determination that a defendant is
ineligible for the safety valve reduction for clear error.
United States v. Gonzalez, 319 F.3d 291, 299 (7th Cir. 2003).
Wu relies on United States v. Shrestha, 86 F.3d 935 (9th
Cir. 1996), to argue that defendants who ultimately
recant some of their earlier, truthful statements to the
government should not be ineligible for the safety valve
reduction. But Shrestha did not hold that defendants
who recant truthful statements must be given a safety
valve reduction. It held only that those defendants are
not rendered “ineligible for the safety valve reduction as
a matter of law.” Id. at 940. The Ninth Circuit thus
upheld a district court’s grant of the safety valve adjust-
ment to a recanting defendant. Id. Here, in contrast,
the district court denied the reduction. It believed
that Wu’s credibility had been undermined by incon-
sistencies in his statements and his ultimate retraction.
As the district court explained, “The problem comes in
where you have a defendant whose final and last state-
ment is a retraction and a denial of his previous disclo-
sures, however honest those may have been.”
As in Shrestha, it would likely have been within the
district court’s discretion in this case to conclude that
Wu had been truthful with the government in his
earlier proffers. It thus could have decided that Wu was
eligible for the safety valve reduction despite his
ultimate recantation. Wu’s problem is that the district
court came to the opposite conclusion. The court is
entitled to refuse to apply the safety valve adjustment
12 No. 11-2055
when it finds that “[the defendant’s] proffer was no
longer reliable” because the defendant “dishonestly
claimed to have forgotten the information previously
conveyed.” Gonzalez, 319 F.3d at 299. Given the incon-
sistencies in Wu’s statements to the government and
his ultimate recantation, we cannot say that the district
court’s decision that Wu was ineligible for the safety
valve reduction was clearly erroneous.
* * *
We A FFIRM Wu’s conviction and sentence.
12-28-11