U.S. v. Kaixiang Zhu (per curiam 4/12/2017): The Fourth Circuit affirmed the defendant’s convictions for conspiring to commit immigration fraud and aiding and abetting the fraud and misuse of immigration documents, finding that the deportation of a key witness and the inclusion of an incriminating email from that witness into evidence did not violate the Compulsory Process Clause of the Sixth Amendment or the Due Process Clause of the Fifth Amendment. The court also disagreed with the defendant’s argument that the district court’s “frequent interruptions of defense counsel’s examination of witnesses and argument to the jury” were sufficient to overturn his convictions. Full Opinion
U.S. v. Kaixiang Zhu, No. 15-1945
Decided: April 12, 2017
The Fourth Circuit affirmed the defendant’s convictions for conspiring to commit immigration fraud and aiding and abetting the fraud and misuse of immigration documents, finding that the deportation of a key witness and the inclusion of an incriminating email from that witness into evidence did not violate the Compulsory Process Clause of the Sixth Amendment or the Due Process Clause of the Fifth Amendment. The court also disagreed with the defendant’s argument that the district court’s “frequent interruptions of defense counsel’s examination of witnesses and argument to the jury” were sufficient to overturn his convictions.
In February 2001, Zhu, a native of China, entered the United States pursuant to a J-1 visa authorized for nonimmigrant exchange visitors. Even though his J-1 visa only authorized temporary stay until August 2001, Zhu remained in the United States past that date without valid authorization. In 2011, federal agents initiated a sting operation whereby Officer Mark Butler, operating undercover as “Andrew,” offered to sell illegal green cards to willing customers. While operating this scheme, Officer Butler dealt only with “brokers” who were responsible for identifying potential customers and escorting them to Virginia for a face-to-face meeting that would be recorded by law enforcement agents. Dr. Hui, a broker for Officer Butler, was responsible for attracting Zhu and many others into this green card operation, including Zhu’s brother-in-law, Lu, and his sister-in-law, Qiao Chan Zhang.
In August of 2011, Dr. Hui and several of his customers traveled to Virginia to meet with Officer Butler, who provided several warnings concerning the illegalities of the green card operation. However, after hearing multiple warnings, all the customers, including Zhu, permitted Officer Butler to fingerprint them. Finally, in June 2012, Dr. Hui and his customers, not including Zhu, Lu, or Zhang, traveled to Manassas, Virginia to purchase green cards. Upon arrival, both Dr. Hui and his customers were arrested. After being arrested, Dr. Hui cooperated and acknowledged that the process whereby his customers obtained green cards was illegal, but claimed that he told four customers, including Lu and Zhang, that they were obtaining the green cards in a legal manner. Dr. Hui eventually pled guilty and was sentenced to fourteen months in prison. In 2013, following his release, Dr. Hui was removed to China. In 2014, Zhu was apprehended and charged with conspiracy to commit immigration fraud, see 18 U.S.C. § 371, and aiding and abetting the fraud and misuse of immigration documents, see 18 U.S.C. § 1546(a). At trial, Zhu moved to dismiss the indictment, claiming that, by removing Dr. Hui, the government had deported a witness who would have been material and favorable to his defense. Zhu also moved to exclude from evidence an email from Dr. Hui that named him as a customer. However, Zhu was unsuccessful and, after a jury trial, was ultimately convicted of both charges.
On appeal, the Fourth Circuit affirmed the district court’s judgment, in large part adopting the district court’s reasoning that Dr. Hui was not the only witness who could offer testimony relating to statements made to his customers about the legality of the green card scheme and thus was cumulative. Also, considering that Dr. Hui was aware of the scheme’s illegality and Zhu allowed his fingerprints to be taken after being warned that green card operation was illegal, the court reasoned that Dr. Hui’s speculative testimony would likely not have affected the judgment of the trier of fact. The court also accepted the district court’s admission of Dr. Hui’s email into evidence since it passed a prima facie showing of authenticity and did not fall under hearsay. Finally, the court did not agree with Zhu’s objections over the district court’s interruptions, finding that the district court interrupted the government the same number of times as it did the defendant. Notably, since Zhu was unable to prove prejudice to his case, the court did not decide whether bad faith on behalf of the government should also be considered as an element of a compulsory process claim in addition to prejudice.
Chandler D. Rowh