Chen v. United States of America

Filing 13

ORDER. For the reasons stated in the annexed memorandum and order, the petition for habeas corpus is DENIED. The Clerk of Court is respectfully directed to enter judgment and close this case. The Clerk of Court is respectfully directed to serve a copy of this order on the pro se petitioner and note service on the docket. Ordered by Judge Kiyo A. Matsumoto on 10/7/2016. (Jacobson, Jonathan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------X
KUO CHEN,
Petitioner,

MEMORANDUM & ORDER
13-CV-3903 (KAM)

-againstUNITED STATES OF AMERICA,
Respondent.
---------------------------------X
MATSUMOTO, United States District Judge:
On October 11, 2013, petitioner, proceeding pro se,
filed

the

instant

habeas

petition

under

28

U.S.C.

§ 2255

challenging his convictions for extortion conspiracy and attempted
extortion. For the reasons set forth below, the petition is DENIED.
BACKGROUND
The court assumes familiarity with the facts and history
of this case, as set forth in earlier decisions. See United States
v. Kuo Chen, No. 10-CR-671, 2011 WL 2708355, at *1–11 (E.D.N.Y.
July 11, 2011) (providing description of trial testimony and
evidence in denying petitioner’s post-trial motion for a judgment
of acquittal); see also United States v. Shi Xing Dong et al., 513
F.

App’x

70,

72-74

(2d

Cir.

2013)

(affirming

petitioner’s

conviction over challenges to the sufficiency of the evidence and
the

substantive

reasonableness

of

his

108-month

incarceratory

sentence).
The charges in this case stem from a plan devised by
petitioner, Jiang Yan Hua (“Jiang”), and Shi Xing Dong (“Dong”) —

who together operated the Lan Qi Bus Company (“Lan Qi”) — to force
a rival bus service owned by De Mao Huang (“Huang”) out of business
through

violence

witnesses

were

and

Dong,

intimidation.
who

cooperated

The
with

government’s
the

chief

government

and

provided detailed testimony about petitioner’s involvement in the
offenses (Tr. 367-491), and Huang, who testified, inter alia, that
petitioner, along with others, attacked him on June 21, 2010 (id.
177-269). On January 31, 2011, after a four-day trial, a jury
convicted

petitioner

of

conspiracy

to

extort

and

attempted

extortion in violation of 18 U.S.C. §§ 1951(a) and 3551 et seq.
(See No. 10-CR-671, ECF No. 96, Jury Verdict; Trial Transcript
(“Tr.”) 715-16.)
On October 11, 2013, petitioner timely filed the instant
habeas petition. 1 (ECF No. 1, Petition (“Pet.”).) He also included
a memorandum of law. (ECF No. 1, Memorandum of Law in Support of
Motion

(“Pet.

Mem.”).)

Because

petitioner

alleged

ineffective

Petitioner also filed a motion seeking leave to proceed in forma
pauperis. Habeas petitions filed under 28 U.S.C. § 2255, however, do not
require filing fees. See Rules Governing Section 2255 Proceedings for
the United States District Courts, Rule 3, Advisory Committee Notes
(“There is no filing fee required of a movant under these rules.
This . . . is done to recognize specifically the nature of a § 2255
motion as being a continuation of the criminal case whose judgment is
under attack.”); see also Rodriguez v. United States, No. 11-CV-163,
2012 WL 253330, at *2 (D. Conn. Jan. 26, 2012) (“[A] movant is not
required to submit a filing fee when filing a petition pursuant to 28
U.S.C. § 2255.”).

1

2

assistance of counsel, the court directed both trial and appellate
counsel to respond to petitioner’s claims. (ECF No. 4, Order to
Show Cause.) Both subsequently filed affidavits. (ECF No. 5, Stuart
J. Grossman Affidavit in Response to Order to Show Cause (“Grossman
Aff.”); ECF No. 7, Benjamin B. Xue Affidavit in Response to Order
to Show Cause (“Xue Aff.”).) The government subsequently filed a
memorandum in opposition to the petition (ECF No. 8, Memorandum in
Opposition

to

Petition

(“Gov’t

Mem.”)),

to

which

petitioner

replied. 2 (ECF No. 9, Reply to Government’s Opposition (“Pet.
Reply”).)
DISCUSSION
“[L]egal representation violates the Sixth Amendment if
it

falls

‘below

an

objective

standard

of

reasonableness'

as

indicated by ‘prevailing professional norms,’ and the defendant
suffers prejudice as a result.” Chaldez v. United States, 133 S.
Ct. 1103, 1107 (2013) (quoting Strickland v. Washington, 466 U.S.
668,

687–88,

(1984)).

“Recognizing

the

‘tempt[ation]

for

a

defendant to second-guess counsel's assistance after conviction or
adverse sentence,’ the Court established that counsel should be
‘strongly presumed to have rendered adequate assistance and made

Citations to page numbers in petitioner’s initial memorandum of law
and his reply brief do not correspond to his own pagination because he
did not include a page number on the first pages of the two documents.
The court’s citations count the first page of his respective submissions
as the first page of the document.

2

3

all

significant

decisions

in

the

exercise

of

reasonable

professional judgment.’” Cullen v. Pinholster, 563 U.S. 170, 189
(2011) (alteration in original) (quoting Strickland, 466 U.S. at
689, 690).
Petitioner seeks habeas relief on four grounds that each
arise from purported ineffective assistance of trial and appellate
counsel. First, petitioner argues that counsel were ineffective
for failing to challenge the admissibility of Dong’s testimony
against him under Federal Rule of Evidence (“Fed. R. Evid.”)
801(d)(2)(E). (Pet. at 5-6.) Second, petitioner contends that
counsel

were

instructions

ineffective
clarifying

because
that

they

“mere

did

not

association”

seek
and

jury
“mere

presence” could not support a conspiracy conviction. (Id. at 67.) Third, petitioner claims that counsel were ineffective for
failing to impeach Huang concerning prior inconsistent testimony
he gave to a grand jury. (Id. at 7-9.) Fourth, petitioner maintains
that counsel were ineffective because they did not challenge a
sentencing enhancement based on petitioner’s role in the offense.
(Id. at 9-10.) The court addresses petitioner’s arguments in turn.
I.

Admissibility of Dong’s Testimony
Petitioner

first

argues

that

Dong’s

“post-arrest

statements” were inadmissible under Fed. R. Evid. 801(d)(2)(E),
which provides that a statement is not hearsay if it “is offered
4

against

an

opposing

coconspirator

party

during

and

and . . .
in

was

furtherance

made
of

by
the

the

party’s

conspiracy.”

Petitioner contends that because Dong’s “post-arrest statements”
were made after the conspiracy had concluded, and were therefore
not “in furtherance of the conspiracy,” Dong’s statements were not
admissible against petitioner. (Pet. at 5-6; Pet. Mem. at 2-3;
Pet. Reply at 2-3.)
Fed. R. Evid. 801(d)(2)(E) applies to “out of court
statements made by co-conspirators,” United States v. Marsh, No.
14-4352-CR, 2016 WL 1086355, at *2 (2d Cir. Mar. 21, 2016), not to
testimony by co-conspirators at trial. Davis v. United States, No.
04-CV-0085, 2010 WL 3036984, at *1 (E.D.N.Y. July 30, 2010),
provides a useful illustration of the distinction between out-ofcourt

co-conspirator

statements

and

co-conspirator

trial

testimony. In Davis, a habeas petitioner had been convicted of,
inter

alia,

conspiracy

to

violate

18

U.S.C.

§ 1951.

Id.

The

petitioner argued that his trial counsel was ineffective for
failing

to

challenge

the

admissibility

of

an

accomplice’s

testimony against the petitioner under Fed. R. Evid. 801(d)(2)(E).
Id. at *2. The accomplice, however, had testified at trial. Id.
The court rejected petitioner’s claim, explaining that the claim
defies comprehension. [The accomplice] testified in
person, so 801(d)(2)(E) is not applicable to [the
accomplice’s] “statements.” In any event, where the rule
5

applies, it authorizes admission, so how it might have
been the source of a defense objection during [the
accomplice’s] testimony is not readily apparent . . . .
Id.
Like

the

petitioner

in

Davis,

the

petitioner

here

misapprehends the applicability of Fed. R. Evid. 801(d)(2)(E) when
the

relevant

co-conspirator

testifies.

Dong

—

pursuant

to

a

cooperation agreement — testified at trial and was subject to
cross-examination. (See Tr. 367-500.) The government did not seek
to introduce any of Dong’s out-of-court statements. Any objection
to Dong’s testimony on the basis of Fed. R. Evid. 801(d)(2)(E)
would have been fruitless.
Accordingly, petitioner’s trial and appellate attorneys
were not ineffective for failing to challenge Dong’s testimony or
statements under Fed. R. Evid. 801(d)(2)(E). See United States v.
Mobile Materials, Inc., 881 F.2d 866, 871 (10th Cir. 1989) (“The
direct

testimony

of

a

conspirator . . .

describing

his

participation in the conspiracy and the actions of others is not
hearsay, and the cases concerning co-conspirator hearsay under
Rule 801(d)(2) are inapplicable.” (citation omitted)); see also
United States v. Williams, 14 F. App’x 469, 474 (6th Cir. 2001)
(“[Defendant] misunderstands the distinction between ‘non-hearsay’
admissions of co-conspirators as retold by witnesses on the stand
and the direct testimony of co-conspirators.”); Debreus v. United
6

States, No. 03-CR-0474, 2012 WL 3686250, at *10 (D.S.C. Aug. 24,
2012) (“The petitioner’s co-conspirators testified directly, at
trial, to their involvement, and the petitioner’s involvement, in
the

conspiracy.

Rule

801(d)(2)(E)

does

not

apply

to

the

co-

conspirators’ testimony at trial.”); McCullers v. United States,
No. 07-CR-49, 2012 WL 1942068, at *8 (E.D. Va. May 29, 2012) (“Coconspirators . . . testified directly, at trial, to their and
[defendant’s] involvement in the conspiracy; Rule 801(d)(2)(E) is
not applicable to their testimony because it was given at trial.”).
II.

“Mere Association” and “Mere Presence” Charges
Petitioner

next

argues

that

counsel

should

have

requested that the court — in charging the jury on the law of
conspiracy — provide instructions concerning “mere association”
and “mere presence.” (Pet. at 6-8; Pet. Mem. at 4-5.) Petitioner
alleges that Jiang and Dong had a “plan in motion months before
petitioner was employed as a driver for Lan Qi Bus Company” and
that he was merely a driver for Lan Qi. (Pet. Mem. at 4-5.)
“Mere association with those implicated in an unlawful
undertaking is not enough to prove knowing involvement” in a
conspiracy. United States v. Lorenzo, 534 F.3d 153, 159 (2d Cir.
2008). Similarly, “‘a defendant’s mere presence at the scene of a
criminal act or association with conspirators does not constitute
intentional participation in the conspiracy, even if the defendant
7

has knowledge of the conspiracy.’” Id. at 159-60 (quoting United
States v. Samaria, 239 F.3d 228, 235 (2d Cir. 2001)). “A conviction
will not be overturned for refusal to give a requested charge . . .
unless that requested instruction is legally correct, represents
a theory of defense with basis in the record that would lead to
acquittal, and the theory is not effectively presented elsewhere
in the charge.” United States v. Han, 230 F.3d 560, 565 (2d Cir.
2000)

(internal

quotation

marks,

citation,

and

alterations

omitted). If the court’s instruction conveys the “substance of a
defendant’s request . . . the defendant has no cause to complain.”
United States v. Taylor, 562 F.2d 1345, 1364 (2d Cir. 1977); see
also Han, 230 F.3d at 565.
First, the court in this case explicitly instructed the
jury on “mere presence.” The court explained to the jury that “in
the context of the conspiracy charge, I want to stress that merely
being present at a place where criminal conduct is underway does
not make a person a member of conspiracy to commit the crime.”
(Tr. 670-71.) “In sum,” the court continued, “a defendant with an
understanding of the unlawful character of the conspiracy must
have intentionally agreed to, engaged in, advised or assisted in
it for the purpose of furthering the illegal undertaking.” 3 (Id.

3

The court also explained, in charging the jury on the concept of aiding
and abetting, that the “mere presence of a defendant where a crime is
being committed, even coupled with knowledge by the defendant that a

8

672.)

Petitioner’s

counsel

were

therefore

not

deficient

for

failing to request a “mere presence” charge. See Matista v. United
States, 885 F. Supp. 634, 638 (S.D.N.Y. 1995) (“[P]etitioner
contends
failed

that

to

counsel

make

a

was

request

ineffective
that

the

because

defense

‘trial

theory

counsel

of

“mere

association” be read into the jury instructions.’ Petitioner’s
contention is meritless for the simple reason that this Court did,
in fact, charge the jury regarding the mere-association theory.”).
Second, as to the “mere association” charge, although
the

court

did

not

explicitly

instruct

the

jury

about

“mere

association” the court’s instructions adequately provided the jury
with an understanding that “mere association” with individuals
involved

in

conspiracy

criminal

activity

conviction.

Under

was

insufficient

similar

to

circumstances,

support
in

a

United

States v. Coppola, 671 F.3d 220, 247 (2d Cir. 2012), a defendant
challenged a conspiracy conviction on the grounds that the district
court failed to charge “mere association.” The Second Circuit
upheld the conviction:
Although the district court did not state in so many
words that more than mere association with others
engaged in criminal activity is necessary to support a
conviction, it effectively conveyed that essential idea.
In its conspiracy instruction, the court “stress[ed]”
that “merely being present[ ] at a place where criminal
crime is being committed or the mere acquiescence by a defendant in the
criminal conduct of others, even with guilty knowledge, is not sufficient
to establish aiding and abetting.” (Tr. 676.)

9

conduct is underway doesn’t make a person a member of a
conspiracy”
and
that
“the
defendant
must
have
participated with knowledge of at least some of the
purposes or objectives of the conspiracy and with the
intention of aiding in the accomplishment of its
unlawful ends.” In its aiding and abetting instruction,
the court stated that “the mere presence of a defendant
where a crime is being committed, . . . even coupled
with knowledge by the defendant that a crime is being
committed, or the mere acquiescence by a defendant in
the criminal conduct of others, even with guilty
knowledge, is not sufficient” and that the jury must
find that defendant “participate[d] in the crimes
charged as something he wished to bring about.” Further,
it conveyed that more than mere association was
necessary
to
support
conviction
for
substantive
racketeering by its instruction that the jury must find
that [the defendant] “played some part in the operation
or management of the enterprise.” Thus, we identify no
error warranting a new trial.
Id. at 247-48 (citations omitted).
The

court’s

instructions

in

this

case

strikingly

resemble the instructions held to be adequate in Coppola, despite
the absence of an explicit “mere association” charge regarding
conspiracy. Aside from the instructions discussed above, the court
also provided the following instruction about conspiracy in this
case: “[T]he fact that a person without any knowledge that a crime
is being committed, merely happens to act in a way that furthers
the purposes or objectives of the conspiracy, does not make a
person a member of the conspiracy. More is required under the law.
What is required is that a defendant must have participated with
knowledge that at least some of the purposes or objectives of the

10

conspiracy and with the intention of aiding in the accomplishment
of

those

unlawful

ends.”

(Tr.

671.)

The

court

conveyed

the

“substance of [the] defendant’s request,” Taylor, 562 F.2d at 1364,
for a “mere association” charge. See Coppola, 671 F.3d at 247.
Accordingly,

petitioner’s

contention

that

his

counsel

were

ineffective for failing to raise an issue regarding “mere presence”
and “mere association” charges is meritless.
III. Adequacy of Cross-Examination of Huang
Petitioner next argues that his trial and appellate
counsel were ineffective for failing to attack the credibility of
Huang, the victim of the assault. (Pet. at 7-9; Pet. Mem. at 56.)

The

government

argues

that

petitioner’s

trial

counsel

exhaustively cross-examined Huang and raised credibility issues,
and

petitioner’s

appellate

counsel

notes

that

he

“thoroughly

attacked the credibility of Huang” in his briefing before the
Second Circuit. 4 (Gov’t Mem. at 9-12; Xue Aff. at ¶ 6.)
“The decision whether to engage in cross-examination,
and if so to what extent and in what manner is generally viewed as
a

strategic

decision

left

to

the

sound

discretion

of

trial

counsel.” Lavayen v. Duncan, 311 F. App’x 468, 471 (2d Cir. 2009)
(internal quotation marks and citation omitted); United States v.
Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987) (recognizing that

4

The case was not orally argued in the Second Circuit.

11

decision whether to cross-examine a witness, as well as the extent
and manner of any cross-examination, is “strategic in nature”).
When “there is no strategic or tactical justification for the
course

taken”

on

cross-examination,

however,

the

court

may

conclude that counsel was ineffective. United States v. Luciano,
158 F.3d 655, 660 (2d Cir. 1998).
In this case, Huang testified at trial that three men
attacked him. (Tr. 218-20, 251.) Huang stated that he only saw the
face of one of his attackers and identified that individual as
petitioner. (Tr. 219, 226-27, 268-69, 272-73.) At a grand jury
hearing in November 2010, however, Huang testified that he saw the
faces of two of his three attackers. (See 3500-DMH-2; see also
3500-DMH-8; 3500-DMH-22; 3500-DMH-23; 3500-DMH-24; cf. Tr. 266.)
Before the grand jury, Huang identified one of the two individuals
whose faces he had seen as petitioner and the other as Zhen Pan. 5
(3500-DMH-2, at 9-10.) Pan was prosecuted in New York state court
in part based on Huang’s identification, but the prosecution was
apparently discontinued. (3500-DMH-2, 3500-DMH-8, Tr. 628.)
During the trial, the government sought to pre-empt the
issue of Huang’s inconsistent testimony. On direct examination,

Notably, FBI records indicate that, “[a]ccording to Huang, Huang’s
identification of [Zhen Pan] to the police was based on [Zhen Pan’s]
body type (and not facial features) fitting the body type of one of his
June 21, 2010 attackers.” (3500-DMH-24.)

5

12

Huang admitted that he had identified another individual as a
perpetrator of the attack based on his “body type.” (Tr. 226-27.)
On cross-examination, petitioner’s trial counsel took up Huang’s
identification of Zhen Pan in detail:
Q: You have also identified another individual besides
Mr. Chen -- we’re not talking about him anymore -- as
being part of this attack; is that correct?
A: Yes.
Q: And at some point in time, you came to know that man’s
name as Zhen, Z H E N, second name Pan, P A N; correct?
A: Yes. The police told me.
Q: But you came to know that name?
A: Yes. The police told me, so I know that name.
Q: And you say that Mr. Zhen Pan is one of your three
attackers; correct?
A: Yes.
Q: And you identified Mr. Zhen Pan based on his body
type; correct?
A: Yes.
Q: You did not identify him based on his facial features;
correct?
A: Yes.
Q: In fact, you testified before a grand jury in Kings
County, Brooklyn State Court, on November 22 of 2010;
correct?
A: Yes. I went there.

13

Q: And you told us that as time has progressed, your
memory of the incident is better than it was closer to
the incident; correct?
A: Because I can slowly think about the people that beat
me, their looks -- their looks, their build, as I think
about it slowly, I’m able to remember.
Q: You told the grand jurors on November 22 of last year
that a car pulled up and three people got out of the
car; is that correct?
A: I don’t remember exactly what it was. I remember
having gone into this place and talked about it.
Q: You just told us a couple of minutes ago that you
identified Mr. Zhen Pan based on his body type and not
his facial features; is that correct?
A: Yes.
Q: And did you tell the grand jury, on November 22, 2010,
that you recognized the faces of two of the people who
attacked you?
A: I did not.
Q: Do you recall being asked this question and giving
this answer on page nine, line 21: “QUESTION: And did
you have an opportunity to see the faces of any of these
individuals? “ANSWER: After, when they run away, I saw
two of their faces.” The question is, Mr. Huang: Do you
recall giving that answer to that question before the
Kings County grand jury on November 22, 2010.
A: I do not remember that. I do remember having gone
into court to talk about this.
Q: How many of the faces of the individuals that attacked
you did you see that night?
A: I saw one.
Q: So, when you told the grand jury you saw two, you
were mistaken; is that correct?
14

A: I don’t know if that’s what I said. I don’t remember.
[Defense Counsel]: Judge, I would like the government to
stipulate that I have read an accurate question and
answer from the grand jury testimony which was provided
to me by the government in this case.
[The Government]: So stipulated.
THE COURT: All right. Thank you.
[Defense Counsel]: Thank you.
Q: So, based on your testimony in the grand jury, you
identified Mr. Zhen Pan as one of your assailants; is
that correct?
A: Yes.
(Tr. 264-66.)
Petitioner’s

trial

counsel

also

addressed

Huang’s

identification of Zhen Pan during his closing argument:
The final and I think most important reason Mr. Huang is
mistaken about his identification of my client as a
perpetrator is because of his identification of Zhen Pan
as a perpetrator.
Remember, Mr. Huang testified he identified Mr. Zhen Pan
as the perpetrator based on his body type and not his
facial features. How do you identify somebody in a
criminal case based on their body type and not their
facial features? How do you do that?
He says he sees him driving at some point in time, maybe
early November of 2010, has him arrested. That seems to
be a pattern with Mr. Huang. I’ll get to that in a
second.
Mr. Huang has Mr. Pan prosecuted in state court Brooklyn
by the Brooklyn DA’s Office down the block; IDs him in
his testimony before a grand jury but we know Mr. Zhen
15

Pan is not part of this assault. According to Mr. Dong,
these are the assaulters. We know the names, the true
names of the first two people and we know the nicknames
of perpetrators 3 and 4 according to Mr. Dong, but none
of these resemble Pan.
How do we know perpetrators 3 and 4 aren’t Zhen Pan?
Because Mr. Dong was shown a photograph of Zhen Pan by
Agent Wu and did not identify him as being one of the
perpetrators. So, Mr. Huang prosecutes an innocent man
believing he’s guilty. I’m not saying he did this
maliciously or anything like that. He made a mistake and
he made a mistake with my client also.
(Id. 627-28.)
Trial counsel appropriately used the discrepancies in
Huang’s testimony to undermine his credibility, both on crossexamination and in closing argument. Further, although there were
inconsistencies in Huang’s testimony before the grand jury and his
testimony at trial, Huang consistently identified petitioner as
one of his attackers at both proceedings and also testified in
both proceedings that he had seen petitioner’s face. (3500-DMH-2,
at 9-10; Tr. 219, 226-27, 268-69, 272-73.) Accordingly, trial
counsel’s performance was not deficient with regard to his crossexamination of Huang.
Petitioner’s appellate counsel also addressed Huang’s
inconsistencies

in

his

briefing

before

the

Second

Circuit.

Petitioner’s appellate counsel argued that “other than Dong, the
only person to identify [petitioner] as an attacker was Huang, who
has made inconsistent identifications of individuals since the
16

alleged attack. . . . Huang identified an individual, Zhen Pan, as
an attacker, even though it is undisputed Pan was not involved in
the attack at all.” Brief for Petitioner at 9, United States v.
Shi Xing Dong et al., 513 F. App’x 70 (2d Cir. 2013) (No. 114015), 2012 WL 3150916, at *9. Like petitioner’s trial counsel,
petitioner’s appellate counsel recognized the discrepancies in
Huang’s testimony and addressed them directly. Appellate counsel
was therefore not deficient for failing to challenge Huang’s
credibility on appeal.
IV.

Application of § 3B1.1(b) Role Enhancement
Petitioner’s

final

argument

is

that

his

trial

and

appellate counsel were ineffective for failing to object to the
court’s application of a sentencing enhancement for his role as a
manager or supervisor under U.S.S.G. § 3B1.1(b). (Pet. at 4; Pet.
Mem. at 6-7; Pet. Reply at 3-4.) Specifically, petitioner argues
that: (1) there was insufficient evidence to establish his role as
a manager or supervisor under § 3B1.1(b) and (2) the district court
failed to make adequate factual findings to support its imposition
of the enhancement. The court addresses petitioner’s arguments in
turn.
Applicability of the Role Enhancement
Guideline § 3B1.1(b) provides that if “the defendant was
a manager or supervisor (but not an organizer or leader) and the
17

criminal

activity

involved

five

or

more

participants

or

was

otherwise extensive, increase [the offense level] by 3 levels.” A
defendant

may

be

considered

a

manager

or

supervisor

under

§ 3B1.1(b) if he “exercised some degree of control over others
involved in the commission of the offense or played a significant
role

in

the

decision

to

recruit

or

to

supervise

lower-level

participants.” 6 United States v. Blount, 291 F.3d 201, 217 (2d Cir.
2002)

(internal

quotation

marks,

citation,

and

alterations

omitted. Recruitment of even a single other individual to engage
in criminal activity is sufficient to justify the imposition of a
role enhancement under § 3B1.1. See United States v. Al–Sadawi,
432 F.3d 419, 427 (2d Cir. 2005). “The fact that other persons may
play still larger roles in the criminal activity does not preclude
a defendant from qualifying for a § 3B1.1(b) enhancement.” United
States v. Hertular, 562 F.3d 433, 449 (2d Cir. 2009).
Here, the role enhancement was properly applied. First,
there was testimony that at least five individuals — Jiang, Dong,
petitioner, and two other individuals (Ah Bui and Xing Xing) 7 —

“Factors the court should consider include the exercise of decision
making authority, the nature of participation in the commission of the
offense, the recruitment of accomplices, the claimed right to a larger
share of the fruits of the crime, the degree of participation in planning
or organizing the offense, the nature and scope of the illegal activity,
and the degree of control and authority exercised over others.” U.S.S.G.
§ 3B1.1 Application Note 4.
7 Petitioner himself is included in determining whether five individuals
were involved in the criminal activity. See United States v. Paccione,
6

18

were involved in the conspiracy. (E.g., Tr. 382-83, 403-05.)
Second, there was testimony that petitioner recruited Dong, Ah
Bui,

and

Xing

Xing

petitioner

recruited

petitioner

called

into
him

Dong

the
to

to

conspiracy.
start

bring

the

Dong

Dong

bus

testified

business

along

each

that

and

that

time

that

petitioner attempted to attack Huang, including for the actual
attack.

(Id.

381-83,

398,

475.)

After

Dong

expressed

an

unwillingness to participate in the beating that led to an aborted
attempt,

Dong

testified

that

petitioner

“called

[Ah

Bui]”

—

petitioner’s roommate — “and told him to come out” to participate
in the attack on Huang. (Tr. 403-04, 421.) Dong also testified
that petitioner called Xing Xing, a friend of petitioner’s, for
assistance in the attack. 8 (Id. 404-05, 421.) The criminal activity
involved

five

participants.

Petitioner’s

recruitment

of

each

individual, standing alone, would justify the role enhancement.
See Al-Sadawi, 432 F.3d at 427 (“Since the . . . role enhancement

202 F.3d 622, 625 (2d Cir. 2000) (“We hold that a defendant may properly
be included as a participant when determining whether the criminal
activity ‘involved five or more participants’ for purposes of a
leadership role enhancement under § 3B1.1.”).
8 In addition, Huang testified that three individuals participated in
his attack. (E.g., Tr. 219.) The government also introduced evidence
that a phone recovered from petitioner listed Jiang and Dong’s phone
numbers as contacts. (Tr. 515-16.) There were also a number of calls,
before and after the attack, between an additional phone that likely
belonged to petitioner and phones belonging to Jiang and Dong. (Tr. 52325, 528-30.)

19

would have been justified upon [defendant’s] recruitment of his
father alone, the court was justified in imposing it.”).
Even if petitioner were correct that Jiang was the
“mastermind” behind the plan to attack Huang (Pet. Mem. at 7),
such a finding would not preclude the imposition of a § 3B1.1(b)
enhancement to petitioner’s sentence. See Hertular, 562 F.3d at
449 (“The fact that other persons may play still larger roles in
the criminal activity does not preclude a defendant from qualifying
for a § 3B1.1(b) enhancement.”); cf. United States v. Garcia, 936
F.2d 648, 656 (2d Cir. 1991) (“[E]ven if [the appellant’s codefendant] were an organizer, the district court would not be
precluded from finding [appellant] to have been an organizer as
well.”). Accordingly, no error arose from any failure to object to
the § 3B1.1(b) enhancement. 9

Although petitioner’s trial counsel concedes that he did not object to
the § 3B1.1(b) enhancement (Grossman Aff. at ¶ 6; see also No. 10-CR671, ECF No. 124, Defendant’s Sentencing Memorandum), petitioner’s
appellate counsel did object to the enhancement. (Xue Aff. at ¶ 7.) In
his initial brief before the Second Circuit, appellate counsel challenged
the substantive reasonableness of his sentence. Appellate counsel argued
that “[petitioner] was by no means the leader of the alleged conspiracy.
In fact, [petitioner] was, at most, an accomplice or accessory, who has
no apparent disposition to such alleged conduct, and was induced by the
other alleged co-conspirators to participate.” Brief for Petitioner at
22, United States v. Shi Xing Dong et al., 513 F. App’x 70 (2d Cir.
2013) (No. 11-4015), 2012 WL 3150916, at *22. Appellate counsel more
directly addressed the application of § 3B1.1(b) in his reply brief,
arguing that Jiang was in fact the true organizer. Reply Brief for
Petitioner at 1-2, United States v. Shi Xing Dong et al., 513 F. App’x
70 (2d Cir. 2013) (No. 11-4015), 2012 WL 5893995, at *1-2 (“Additionally,
the three points added by the Court for being a manager in an offense
that involved five or more people (U.S.S.G. 3B1.1(b)), is . . .
9

20

Factual Findings Supporting the Role Enhancement
Petitioner’s argument that his counsel were ineffective
for failing to challenge the adequacy of the court’s factual
findings on the § 3B1.1(b) enhancement (see Pet. Mem. at 8; Pet.
Reply at 2-3) is equally meritless.
“A court must . . . make two specific factual findings
before it can properly enhance a defendant’s offense level under
§ 3B1.1(a): (i) that the defendant was ‘an organizer or leader,’
and (ii) that the criminal activity either ‘involved five or more
participants’ or ‘was otherwise extensive.’” United States v.
Patasnik, 89 F.3d 63, 68 (2d Cir. 1996). To permit meaningful
appellate review, the “district court must make specific factual
findings to support the application of a sentencing enhancement,
and in some cases may do so by explicitly adopting the factual
findings set forth in the presentence report.” United States v.
Russell, 513 F. App’x 67, 69 (2d Cir. 2013) (internal quotation
marks and citation omitted); see also United States v. Espinoza,
514 F.3d 209, 212 (2d Cir. 2008) (“Our precedents are uniform in
requiring a district court to make specific factual findings to
support a sentence enhancement under U.S.S.G. § 3B1.1.” (internal
quotation marks and citation omitted)).

unwarranted.”). Petitioner, appellate counsel argued, “was an employee
of the bus company and was not involved in any planning or conspiracy
to obtain the victim’s business.” Id. at 1, 2012 WL 3150916, at *1.

21

The

factual

findings

necessary

to

support

a

role

enhancement need not be unduly exhaustive. In United States v.
Escotto, 121 F.3d 81, 85-86 (2d Cir. 1997), for example, the court
upheld the imposition of a 3B1.1(b) enhancement where the district
court

merely

adopted

the

presentence

investigation

report’s

findings that: (1) more than five participants were involved in
the charged conspiracy and (2) the defendant’s “leadership role was
demonstrated

by

the

cooperating

witnesses’

testimony

that

he

supplied ‘leads’ for potential customers and that he, along with
others,

set

up

all

three

of

the

[fraudulent

telemarketing]

companies.” Id.; see also United States v. Thomas, 273 F. App’x
103, 104 (2d Cir. 2008) (holding that district court’s factual
findings

were

sufficient

where

it

stated

on

the

record

at

sentencing that the defendant “had a number of people working for
him as is set forth quite explicitly on the call reports, the
transcripts of which I reviewed for this sentencing. . . . He says
that quite specifically in the phone calls, and I find that he is
an organizer or a leader”).
In applying the enhancement in this case, the court
stated:
Now, with respect to Mr. Chen’s role in the offense:
Because the defendant was a manager in the offense which
involved five or more participants, in that he recruited
others for the beating and distributed weapons and urged
the other participants to engage in the beating,
22

pursuant to Advisory Guideline 3B1.1(b), the offense
level is increased by three levels. 10
(Sent. Tr. 29.) The district court also recognized at sentencing
that although petitioner “has said today that Mr. Jiang may have
been the initial person who recruited and gave him marching orders,
[petitioner] played an active role in managing other participants
in the beating, recruiting those participants and directed that
they beat Mr. Huang when the opportunity arose.” (Id. 39.)
The

court

provided

adequate

reasons

to

substantiate

application of the enhancement. As discussed earlier (see supra
pp. 18-19), there was no confusion or serious dispute regarding
the number of participants. (See Grossman Aff. at ¶ 6 (“Dong
testified that Chen recruited him, ‘Ah Bui’ and ‘Xing Xing’ to
assault Huang. Since Yan Hua Jiang was also a member of the
conspiracy, there was no rational basis to challenge the 3-level
enhancement under U.S.S.G. § 3B1.1(b).”).) Compare, e.g., United
States v. Lanese, 890 F.2d 1284, 1294 (2d Cir. 1989) (remanding
where there was a lack of clarity surrounding which individuals

The
Probation
Department’s
presentence
investigation
report
recommended a three-level increase on essentially the same grounds: “The
defendant recruited three others for the beating, distributed the weapons
amongst the participants, and instructed them on when to meet and what
to do. Per Guideline 3B1.1(b), the offense level is increased by 3
levels, as the defendant was a manager in the offense, which involved
five or more participants.” (Presentence Investigation Report, at 9.)
The court did not, however, explicitly adopt the report.
10

23

the district court considered “participants” for purposes of a
§ 3B1.1(b) enhancement).
As to the “manager or supervisor” finding, the district
court’s

findings

that

petitioner

“recruited

others

for

the

beating,” “distributed weapons,” “urged the other participants to
engage in the beating,” “directed that [others] beat Mr. Huang
when the opportunity arose,” and “played an active role in managing
other participants in the beating” were more than sufficient to
justify the enhancement. (Sent. Tr. 29, 39.) See Escotto, 121 F.3d
at 85-86; see also United States v. Eyman, 313 F.3d 741, 745 (2d
Cir. 2002) (affirming where district court adopted presentence
investigation report’s findings that the defendant “was the leader
of a fraudulent scheme and that more than five participants were
involved”). Accordingly, petitioner’s counsel were not deficient
for failing to challenge the § 3B1.1(b) sentencing enhancement.
For all of the foregoing reasons the court finds that
petitioner’s trial and appellate counsels’ conduct, measured by an
“objective standard of reasonableness,” was not deficient and did
not undermine the proper functioning of the adversarial process.
See Strickland, 466 U.S. at 686-88.

24

CONCLUSION
For the reasons stated above, the petition for habeas
corpus is DENIED. The Clerk of Court is respectfully directed to
enter judgment and close this case.
SO ORDERED.

Dated:

October 7, 2016
Brooklyn, New York
_________/s/_________________
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

25