FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 06-10758

v.  D.C. No.

CHANG DA LIU, CR-05-00027-ARM

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

No. 06-10760 Plaintiff-Appellee,

D.C. No.

v.  CR-05-00027-ARM

MING YAN ZHENG, aka Li-Na, OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of the Northern Mariana Islands

Alex R. Munson, Chief District Judge, Presiding

Argued and Submitted

March 10, 2008—San Francisco, California

Filed August 13, 2008

Before: Procter Hug, Jr., Pamela Ann Rymer, and

Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Hug

10513
COUNSEL

Steven P. Pixley, San Jose, Saipan, M.P., for appellant Chang

Da Liu, and G. Anthony Long, San Jose, Saipan M.P., for

appellant Ming Yan Zheng. 

Michael A. Rotker, Attorney, U.S. Department of Justice,

Washington, D.C., for the appellee. 

10516 UNITED STATES v. LIU
OPINION

HUG, Circuit Judge: 

A jury found Ming Yan Zheng and Chang Da Liu guilty of

conspiracy, two counts of sex trafficking, foreign transportation for prostitution, and transportation of persons in execution of fraud.1

 The district court sentenced Zheng to 78

months imprisonment, fined her $55,000, and ordered her to

pay $47,440 in restitution and a $500 assessment. The court

sentenced Liu to 57 months, made him jointly and severally

liable for $47,440 in restitution, and ordered him to pay a

$500 assessment. 

This is a consolidated direct appeal. Zheng challenges her

convictions on the grounds that (1) the court lacked jurisdiction to prosecute her; (2) the evidence was insufficient to support her convictions; (3) the district court’s evidentiary rulings

created reversible error; (4) there was prosecutorial misconduct; and (4) the court failed to properly instruct the jury.

Zheng also challenges her sentence on the grounds that (1) the

sentencing guideline calculation was incorrect and (2) restitution was improper or was incorrectly calculated. 

Liu challenges his convictions on the grounds that the

court’s evidentiary rulings created reversible error. 

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

affirm the district court on all challenged grounds. 

Background

Zheng is a Chinese citizen who moved to the Commonwealth of the Northern Mariana Islands (CNMI) where she

met Liu. Together, Zheng and Liu opened a brothel in Saipan,

the capital of the CNMI, called the Tea House. They recruited

1Violations of 18 U.S.C. §§ 371, 1591, 2421, and 2314 respectively. 

UNITED STATES v. LIU 10517
employees in Dalian, China by placing advertisements for

hotel waitresses, nightclub performers, and service workers

with a Chinese recruiting company. The recruitment flyer

stated the employees would earn about $3,000-$4,000 per

month, and applicants were required to pay $6,000 in “processing fees” to secure a position. 

Chinese women, including Xuimei Chi and Wei Lian, saw

these advertisements and signed agreements to become “hotel

waitresses.” Chi and Lian each paid part of their $6,000 fee

and arrived in Saipan in debt to Zheng. Upon arriving in Saipan, Chi, Lian, and four other young women from China were

taken to housing barracks and then to the Tea House. At the

Tea House, the women testified that they learned they were

required to have sex with customers. The women protested

but eventually submitted and worked as prostitutes in the Tea

House from October 2004 to May 2005. 

In June 2005, the six women went to the FBI and an investigation of Zheng, Liu, and the Tea House began, which

resulted in Zheng and Liu’s convictions. 

A. Jurisdiction and Federal Legislative Authority over the

CNMI 

Zheng contends her convictions are invalid because the federal government lacked authority to prosecute her. Whether

the federal government had authority to prosecute Zheng is a

legal question that we review de novo. See United States v.

Philips, 367 F.3d 846, 854 (9th Cir. 2004) (jurisdictional

issues are reviewed de novo); United States v. Mateo-Mendez,

215 F.3d 1039, 1042 (9th Cir. 2000) (questions of law are

reviewed de novo). Zheng argues the criminal statutes used to

convict her do not apply to the CNMI because they were

enacted pursuant to Congress’s authority under the commerce

clause or the territorial clause and neither the commerce

clause nor the territorial clause applies to the CNMI. 

10518 UNITED STATES v. LIU
[1] To understand this argument, it is necessary to briefly

discuss the history and relationship of the CNMI with the

United States. The Northern Mariana Islands became a possession of the United States in 1944, during the war with

Japan, when the United States invaded Saipan. In 1975, the

Northern Mariana Islands and the United States reached an

agreement to create a political union between the Islands and

the United States. This agreement was the “Covenant to

Establish a Commonwealth of the Northern Mariana Islands

in Political Union with the United States of America” (the

“Covenant”). 48 U.S.C. § 1801. The Covenant became law in

1976 and became completely effective in 1986. The Covenant

defines the CNMI’s legal and political relationship with the

United States. Covenant §§ 101-105; United States ex rel.

Richards v. De Leon Guerrero, 4 F.3d 749, 754 (9th Cir.

1993). The Covenant gives the people of the CNMI the right

to local self-government, and enables the U.S. federal government to enact legislation applicable to the CNMI as long as

the legislation can be made applicable to the states or if the

legislation expressly names the CNMI. Covenant §§ 103, 105.

[2] Section 501 of the Covenant lists specific provisions of

the U.S. Constitution that apply to the CNMI.2 Zheng argues

2Section 501 provides in its entirety: 

(a) To the extent that they are not applicable of their own force,

the following provisions of the Constitution of the United States

will be applicable within the Northern Mariana Islands as if the

Northern Mariana Islands were one of the several States: Article

I, section 9, Clauses 2, 3, and 8; Article I, Section 10, Clauses 1

and 3; Article IV, Section 1 and Section 2, Clauses 1 and 2;

Amendments 1 through 9, inclusive; Amendment 13; Amendment 14, Section 1; Amendment 15; Amendment 19; and

Amendment 26; provided, however, that neither trial by jury nor

indictment by grand jury shall be required in any civil action or

criminal prosecution based on local law, except where required

by local law. Other provisions of or amendments to the Constitution of the United States, which do not apply of their own force

within the Northern Mariana Islands, will be applicable within

UNITED STATES v. LIU 10519
§ 501 is an exclusive list of the provisions of the U.S. Constitution that apply to the CNMI. Because neither the commerce

clause nor the territorial clause are included in § 501, Zheng

contends they do not apply to the CNMI. 

Zheng relies upon Fleming v. Dept. of Public Safety, to

support her argument. 837 F.2d 401, 405 (9th Cir. 1988)

(overruled on other grounds by Will v. Michigan Dept. of

State Police, 491 U.S. 58, 71 (1989)). In Fleming, we held

that the Eleventh Amendment does not apply to the CNMI

because the Eleventh Amendment was not included in the list

of constitutional provisions set forth in § 501. Id. at 405. 

In Fleming, Lawrence Fleming sued the CNMI Department

of Public Safety, alleging that the department deprived him of

his due process and equal protection rights, in violation of 42

U.S.C. § 1983, by the way it handled his application to

become a police officer. Id. at 403. The department argued it

was immune from suit because Eleventh Amendment sovereign immunity applied to the CNMI. Id. at 405. We disagreed

and concluded the CNMI does not enjoy Eleventh Amendment immunity because the Eleventh Amendment is “conspicuously absent” from § 501 of the Covenant. Id. We

reasoned, 

From the specificity with which the applicable provisions of the United States Constitution are identified,

it is clear that the drafters considered fully each constitutional amendment and article for inclusion in the

the Northern Mariana Islands only with approval of the Government of the Northern Mariana Islands and of the Government of

the United States. 

(b) The applicability of certain provisions of the Constitution of

the United States to the Northern Mariana Islands will be without

prejudice to the validity of and the power of the Congress of the

United States to consent to Sections 203, 506 and 805 and the

proviso in Subsection (a) of this Section. 

10520 UNITED STATES v. LIU
Covenant. That they deliberately declined to include

the eleventh amendment unequivocally demonstrates

their desire that the Commonwealth not be afforded

eleventh amendment immunity. Id.

In the present case, Zheng argues that the commerce clause

and territorial clause are like the Eleventh Amendment.

Because they are not included in § 501, Zheng contends they

do not apply to the CNMI. Zheng then reasons the U.S. government lacked jurisdiction to prosecute her for sex trafficking and her other offenses because the criminal statutes she

was convicted of violating were enacted pursuant to Congress’s power under the commerce clause or territorial clause.

We disagree with Zheng’s reasoning. The issue of whether

the commerce clause or territorial clause apply to the CNMI

is misleading. Section 501 sets forth constitutional provisions

that are “applicable within the Northern Mariana Islands as if

the Northern Mariana Islands were one of the several States

. . . .” Unlike the Eleventh Amendment, the commerce clause

and the territorial clause generally are not constitutional provisions that apply to the states.3

 These are constitutional provisions that apply to the United States Congress. Whether the

commerce clause and territorial clause “apply to” the CNMI

does not affect the authority of Congress to enact legislation

applicable to the CNMI. 

[3] Section 501 does not include a single constitutional provision that involves Congressional authority to legislate. If we

adopted Zheng’s interpretation of Fleming, Congress would

have no authority to enact legislation applicable to the CNMI

whatsoever. Such a result is nonsensical and conflicts with

§ 105 of the Covenant, which expressly provides, “The

United States may enact legislation in accordance with its

3We acknowledge the dormant commerce clause does apply to the

states. We make no conclusion regarding whether the dormant commerce

clause applies to the CNMI. That issue is not before us. 

UNITED STATES v. LIU 10521
constitutional processes which will be applicable to the Northern Mariana Islands . . . .” See Cook Inlet Native Ass’n v.

Bowen, 810 F.2d 1471, 1474 (9th Cir. 1987) (stating sections

of a statute should not be interpreted to render another part

inoperative or to defy common sense). Section 105 assumes

there are constitutional processes that would enable Congress

to legislate for the CNMI.4 We agree. 

[4] Accordingly, we hold Congress has the authority to

enact legislation applicable to the CNMI. This authority is not

limited by the exclusion or omission of constitutional provisions in § 501 of the Covenant. 

[5] While the commerce clause provides a constitutional

basis for Congress’s legislative authority in the Commonwealth, the Covenant does limit Congress’s legislative power.

De Leon Guerrero, 4 F.3d at 754. Pursuant to § 501(a) of the

Covenant, 18 U.S.C. §§ 2421 and 2314 are applicable to the

CNMI because they were enacted before the Covenant’s 1978

effective date, and are applicable to the several states and

Guam. See United States v. Taitano, 442 F.2d 467, 468-69

(9th Cir. 1971) (affirming transportation for prostitution conviction involving transportation of victims to Guam). 

[6] By contrast, 18 U.S.C. § 1591(a) was enacted after the

4Section 105 provides in its entirety: 

The United States may enact legislation in accordance with its

constitutional processes which will be applicable to the Northern

Mariana Islands, but if such legislation cannot also be made

applicable to the several States the Northern Mariana Islands

must be specifically named therein for it to become effective in

the Northern Mariana Islands. In order to respect the right of selfgovernment guaranteed by this Covenant the United States agrees

to limit the exercise of that authority so that the fundamental provisions of this Covenant, namely Articles I, II and III and Sections 501 and 805, may be modified only with the consent of the

Government of the United States and the Government of the

Northern Mariana Islands. 

10522 UNITED STATES v. LIU
Covenant’s effective date. For legislation enacted after the

Covenant’s effective date, we balance the federal interests

served by the legislation against the degree of intrusion into

local affairs. See De Leon Guerrero, 4 F.3d at 755. In this

case, the balance tips in favor of applicability because the federal government’s significant interest in combating international sex trafficking through United States territories

outweighs the intrusion into the CNMI’s local affairs. 

[7] Congress may criminalize conspiracy, sex trafficking,

foreign transportation for prostitution, and transportation of

persons in execution of fraud in the CNMI as it does in the

states. Thus, we conclude the federal government had authority to prosecute Zheng for committing the above crimes. 

B. Sufficiency of the Evidence 

Zheng also contends there was insufficient evidence to support her conviction for transportation of persons in execution

of fraud and her convictions for sex trafficking. 

When a defendant moves for a judgment of acquittal at the

close of the government’s case, as Zheng did, we review de

novo the question of whether sufficient evidence exists to

support a guilty verdict. United States v. Stewart, 420 F.3d

1007, 1014 (9th Cir. 2005). To determine whether sufficient

evidence exists, we view the evidence in the light most favorable to the prosecution and ask whether any rational trial of

fact could have found the defendant guilty of the crime

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

319 (1979); United States v. Shipsey, 363 F.3d 962, 971 n.8

(9th Cir. 2004). 

1. Transportation of Persons in Execution of Fraud / Travel

Fraud

Zheng contends there was insufficient evidence to support

her conviction for transportation of persons in execution of

UNITED STATES v. LIU 10523
fraud, a violation of 18 U.S.C. § 2314. She argues the money

claimed to have been obtained by fraudulent means did not

move in interstate or foreign commerce. Zheng claims the

record shows Chi and Lian borrowed money in China to pay

part of their $6,000 “processing fees” and paid the money to

the recruiting firm in China. Because the money allegedly

stayed in China, Zheng contends the elements of travel fraud

cannot be met. Further, Zheng contends Chi and Lian paid

less than $5,000.00 prior to leaving China, which is the minimum amount required to constitute a violation of the travel

fraud statute. 

[8] Zheng’s argument is without merit. Viewing the evidence in the light most favorable to the prosecution, a rational

jury could have found Zheng violated 18 U.S.C. § 2314. The

evidence supported a finding that Zheng used false promises

to induce Chi and Lian to travel from China to the CNMI with

the intent to defraud Chi and Lian of $6,000. The evidence

further supported a finding that the money came from China

and ultimately reached Zheng in the CNMI. Thus, we conclude there was sufficient evidence to support Zheng’s conviction for transportation of persons in execution of fraud. 

2. Sex Trafficking 

Zheng also contends there was insufficient evidence to support her two convictions for sex trafficking pursuant to 18

U.S.C. § 1591. She argues the government failed to show she

had the requisite knowledge and intent.

[9] Viewed in the light most favorable to the prosecution,

there was sufficient circumstantial evidence to support a rational jury finding that Zheng knew force, fraud, or coercion

would be used to cause Chi and Lian to engage in prostitution.

The government produced evidence that showed Zheng

designed a scheme to induce Chinese women to pay $6,000

to move to the CNMI where the women were then required

to become prostitutes. Chi and Lian testified they did not

10524 UNITED STATES v. LIU
know they would have to be prostitutes in Saipan. The written

materials used to recruit Lian and Chi stated sexual activities

were prohibited, which supports a finding that Zheng intended

to deceive Chi and Lian. Viewing this evidence in the light

most favorable to the prosecution, we conclude there was sufficient evidence to support the jury’s determination that

Zheng was guilty of sex trafficking. 

C. Evidentiary Rulings 

1. Videos of Chi and Lian 

Zheng and Liu both contend the district court committed

reversible error by denying their requests to admit video evidence of Chi and Lian engaging in prostitution of their own

free will. 

We review the district court’s decision to admit or exclude

evidence for an abuse of discretion. United States v.

Plancarte-Alvarez, 366 F.3d 1058, 1062 (9th Cir. 2004). Such

rulings will be reversed only if the error more likely than not

affected the verdict. United States v. Edwards, 235 F.3d 1173,

1179 (9th Cir. 2000); United States v. Ramirez, 176 F.3d

1179, 1182 (9th Cir. 1999). 

The videos include lengthy footage of people outside an

adult video store, people going in and out of the store, and

nothing more. Viewers cannot hear what the people outside

the store are saying and cannot see what, if anything, happens

inside the store. The footage was filmed after Chi and Lian

left the Tea House and after Zheng was indicted. 

The district court found the videos were irrelevant and

thereby excluded by Federal Rule of Evidence 402. The district court also concluded the videos should be excluded under

Federal Rule of Evidence 403 as their admission would result

in “unfair prejudice,” “confusion of the issues,” and would

constitute “undue delay and concomitant waste of time.”

UNITED STATES v. LIU 10525
Additionally, the court concluded the videos were barred by

Federal Rule of Evidence 608, which prohibits extrinsic evidence offered to prove specific conduct of a witness. 

[10] We conclude the district court did not abuse its discretion by excluding the videos. The videos are long and devoid

of admissible evidence. Chi and Lian admitted they engaged

in prostitution to support themselves after Zheng’s arrest and

the closing of the Tea House. The defendants were not entitled to present extrinsic evidence of specific acts that Lian and

Chi admitted they committed. We conclude the district judge

properly relied upon Federal Rules of Evidence 402, 403, and

608. 

2. Special Agent James Barry’s Testimony 

Liu contends the district court committed reversible error

by allowing Special Agent James Barry to testify regarding

out of court statements made by Lian and Chi. The statements

were admitted pursuant to Federal Rule of Evidence

801(d)(1)(B). This rule of evidence provides that a statement

is not hearsay if the statement is a prior consistent statement

by a witness and it is offered to rebut an express or implied

charge against the witness of recent fabrication or improper

influence or motive. Fed. R. Evid. 801(d)(1)(B). 

In order to admit statements under Rule 801(d)(1)(B), the

party that seeks to admit the statements must satisfy four elements: “(1) the declarant must testify at trial and be subject

to cross-examination; (2) there must be an express or implied

charge of recent fabrication or improper influence or motive

of the declarant’s testimony; (3) the proponent must offer a

prior consistent statement that is consistent with the declarant’s challenged in-court testimony; and, (4) the prior consistent statement must be made prior to the time that the

supposed motive to falsify arose.” United States v. Collicott,

92 F.3d 973, 979 (9th Cir. 1996); see also Tome v. United

States, 513 U.S. 150, 157-58 (1995). 

10526 UNITED STATES v. LIU
In this case, the declarants, Chi and Lian, both testified at

trial and were subject to cross examination. Liu challenged

the credibility of Lian and Chi by presenting evidence that the

women had received financial assistance from the FBI. Liu

implied Lian and Chi fabricated their testimony in order to

receive financial assistance from the FBI. Agent Barry, the

proponent, testified about the content of Lian and Chi’s statements before the FBI began providing them with financial

assistance. Lian and Chi’s statements, as presented by Agent

Barry, were largely consistent with their in-court testimony.

Accordingly, all four elements are satisfied by Agent Barry’s

testimony. 

[11] Rather than reversible error, this is a textbook example

of when to apply Federal Rule of Evidence 801(d)(1)(B), and

we conclude the district court did not abuse its discretion

when it permitted Agent Barry to testify about Lian and Chi’s

prior consistent statements. 

D. Prosecutorial Misconduct 

Zheng contends the government engaged in prosecutorial

misconduct, which violated her due process rights and necessitates a new trial. We review the district court’s rulings on

alleged prosecutorial misconduct for an abuse of discretion.

United States v. Murillo, 288 F.3d 1126, 1140 (9th Cir. 2002).

We review de novo allegations of due process violations. See

United States v. Amlani, 111 F.3d 705, 712 (9th Cir. 1997).

Failure to disclose material information to the defense is constitutional error only if the result of the proceeding would

have been different had the information been disclosed. Id.

(citing Kyles v. Whitley, 514 U.S. 419, 434-36 (1995)). See

also Brady v. Maryland, 373 U.S. 83, 87 (1963). 

1. The Government’s Pretrial Investigation of Chi and

Lian’s Veracity 

First, Zheng contends the government failed to adequately

investigate Chi and Lian after learning they voluntarily

UNITED STATES v. LIU 10527
engaged in prostitution after leaving the Tea House. Chi and

Lian originally told FBI Agent Barry they were no longer

working as prostitutes. The government later learned Chi and

Lian had engaged in prostitution after leaving the Tea House,

and the government informed defense counsel of this fact.

Lian and Chi testified at trial that they had engaged in prostitution outside the Tea House, and the defense used their initial

lie to undermine their credibility at trial. 

On appeal, Zheng contends the government’s discovery of

Chi and Lian’s lie should have triggered additional investigation. Zheng contends that the prosecution’s act of proceeding

to trial without further investigation violated her due process

rights. The district court found the prosecution had exhaustively investigated its case and concluded Zheng was not

denied due process. 

[12] We agree with the district court. The government did

not engage in prosecutorial misconduct by proceeding to trial

without additional investigation, and Zheng’s due process

rights were not violated. The government did disclose the fact

that Chi and Lian engaged in prostitution after leaving the Tea

House, and Zheng was able to use this information to impeach

Chi and Lian at trial. 

2. Withholding Impeachment Evidence Regarding the

Wangs

Second, Zheng contends the government withheld

impeachment evidence regarding two witnesses, Bin Wang

and Lan Juan Wang. The Wangs were business partners of

Zheng and Liu. They were involved in the Tea House and

probably could have been tried as accomplices. 

Zheng claims the prosecution withheld information about

attempts to provide immigration benefits to the Wangs and

information about immunity or non-prosecution agreements

10528 UNITED STATES v. LIU
for the Wangs. Zheng argues this information could have been

used as impeachment evidence. 

The government denied the accusation that the Wangs had

been granted immunity and likewise denied that information

had been withheld from the defense. The district court

rejected the argument that the prosecution had withheld

impeachment evidence from the defense. 

The defense only offered the fact that Bin Wang admitted

involvement in the Tea House and had not been indicted to

support its contention that there was a grant of immunity.

Defense counsel’s speculation does not demonstrate that the

district judge erred. 

The government admitted and eventually disclosed to the

defense that it did inquire about the Wangs’ eligibility for certain immigration benefits, learned they were ineligible for the

benefits, and did not inform the Wangs of the inquiry. As the

Wangs had no knowledge of the inquiry, the inquiry had no

value as impeachment evidence. 

[13] We conclude Zheng is not entitled to a new trial based

on her allegations that the government withheld impeachment

evidence regarding the Wangs. The district court did not

clearly err by accepting as true the government’s assertion

that the Wangs were not granted immunity. Also, an inquiry

regarding immigration benefits made by the government

unbeknownst to the Wangs is not impeachment evidence.

3. Chi’s Testimony that she was Relocated to Guam for her

Safety 

Third, Zheng contends the prosecution breached its duty to

correct false testimony by not correcting Chi’s testimony, and

Zheng further claims her convictions for sex trafficking were

secured by false impressions stemming from Chi’s testimony,

which constitutes a due process violation that requires a new

UNITED STATES v. LIU 10529
trial. Chi testified she understood that she was relocated to

Guam from the CNMI by the U.S. government for her safety.

Agent Barry testified that safety was a benefit of relocating

Chi to Guam, but it was not the primary reason for her relocation. 

[14] The district court rejected as unfounded “any implication that the prosecution either knowingly presented false

material evidence or that it sat by and knowingly allowed

false evidence to be presented.” We conclude the district court

did not abuse its discretion in its determination that the prosecution did not engage in misconduct by allowing Chi to testify

regarding her subjective belief. 

E. Jury Instructions 

[15] Zheng contends a new trial is warranted because the

district court declined to give two jury instructions requested

by Zheng. Generally, a district court’s formulation of jury

instructions is reviewed for an abuse of discretion.5See

United States v. Fernandez, 388 F.3d 1199, 1246 (9th Cir.

2004); United States v. Shipsey, 363 F.3d 962, 966 n.3 (9th

Cir. 2004). We consider whether the instructions as a whole

are misleading or inadequate to guide the jury’s deliberation.

United States v. Garcia-Rivera, 353 F.3d 788, 791-92 (9th

Cir. 2003). 

Zheng requested a jury instruction that would have

informed the jury that neither the commerce clause nor the

territorial clause of the U.S. Constitution apply to the CNMI.

Zheng contends the district court’s failure to give this instruction prevented her from presenting a viable defense theory to

the jury. 

5There are exceptions to this general rule. For example, whether a jury

instruction misstates elements of an offense or whether instructions adequately present a defendant’s theory of the case are questions that are

reviewed de novo. Shipsey, 363 F.3d at 966 n.3. 

10530 UNITED STATES v. LIU
We conclude the district court properly denied Zheng’s

request on the grounds that the applicability of the commerce

clause and the applicability of the territorial clause to the

CNMI are legal issues beyond the purview of the jury.

Zheng also requested a jury instruction regarding the testimony of co-conspirator, Bin Wang. Wang worked at the Tea

House and testified against Zheng and Liu. Zheng requested

an instruction cautioning the jury against believing Wang

because she suspected Wang had been given immunity by the

prosecution in exchange for his testimony. The government

denied Wang had been granted immunity. 

The district court declined to give the immunity instruction

although it did instruct the jury to consider Wang’s testimony

with greater caution in light of the fact that he could be considered an accomplice. In United States v. Morgan, we concluded “there is no significant distinction between a

cautionary instruction on the testimony of an accomplice and

a cautionary instruction on one granted immunity” because

both instructions direct the jury to receive the testimony with

caution and weigh it with care. 555 F.2d 238, 243 (9th Cir.

1977). 

Because the district court did give a cautionary instruction

similar to the one requested by Zheng, we conclude the district court did not abuse its discretion in denying Zheng’s

request to give an instruction regarding Wang’s alleged, but

unproven, grant of immunity. 

F. Cumulative Error

Zheng contends the cumulative effect of evidentiary rulings, prosecutorial misconduct, denied jury instructions, and

other trial errors warrants a new trial on all charges. As discussed above, all of Zheng’s allegations of error at trial are

without merit. Accordingly, we conclude cumulative error

does not warrant a new trial. 

UNITED STATES v. LIU 10531
G. Sentencing and Restitution 

Zheng challenges her sentence on two grounds. Zheng first

contends the advisory guideline calculation was erroneous

because the “loss calculation” of $36,000 for conspiracy and

travel fraud was “premised upon speculation and conjecture

and not clear and convincing evidence.” Loss calculation is a

factual determination of the trial court, and this court reviews

a factual determination at sentencing for clear error. United

States v. Tulaner, 512 F.3d 576, 578 (9th Cir. 2008). 

The $36,000 loss calculation in Zheng’s case is based upon

the $6,000 “processing fee” that Zheng required prospective

employees to pay, multiplied by the six women from China

who came to Saipan to work for Zheng. Zheng contends, at

most, the court can only consider the loss incurred by Chi and

Lian because they were the only women who testified against

Zheng. 

Zheng’s contention is not supported by law. “[T]he full

scope of the defendant’s fraudulent conduct is taken into

account when calculating the intended loss.” Id. In this case,

the government presented evidence that four other women

were employed by the Tea House as prostitutes and that they

were recruited in the same manner as Chi and Lian. 

Zheng complains her pre-sentence report (PSR) “does not

even identify the other ‘victims’ upon whom it based its loss

calculation.” This statement is false. The PSR states the

names of other known victims, Wei Qui Xiang, Chao Hai

Hua, Wang Mei Li, and Mu Ying. 

[16] We therefore conclude the district court made no clear

error by calculating a loss of $36,000 for Zheng’s conspiracy

and travel fraud convictions because the district court’s loss

calculation is supported by evidence that Zheng brought six

women from China to Saipan to work as prostitutes and

charged each of them $6,000. 

10532 UNITED STATES v. LIU
Zheng’s second challenge to her sentence is that the district

court’s restitution order is improper. Zheng contends there is

not any basis for the restitution calculations of $25,220 for

Chi and $22,220 for Lian. The record belies Zheng’s argument. 

Chi and Lian testified that they signed contracts to work in

Saipan for $7.00 per hour. They worked ten months with no

time off for evenings or weekends. The probation officer who

prepared the PSR estimated they would have earned about

$23,220 had they been paid regularly and earned overtime.

Additionally, Lian and Chi each paid Zheng $6,000 in “processing fees” to go to the CNMI. Thus, Lian and Chi each

estimated a total loss of $29,220. The probation officer then

took into account money Lian and Chi received while working at the Tea House and subtracted that amount from the

$29,220 total. 

A restitution order is reviewed for an abuse of discretion,

provided that it is within the bounds of the statutory framework, and factual findings supporting an order of restitution

are reviewed for clear error. United States v. Gordon, 393

F.3d 1044, 1051 (9th Cir. 2004). The district court’s valuation

methodology is reviewed de novo. United States v. Doe, 374

F.3d 851, 854 (9th Cir. 2004). 

[17] Here, the district court used a sound valuation methodology. Zheng’s contention that there is no basis in fact or

methodology for restitution for Chi and Lian is without merit.

Accordingly, we affirm the district court’s restitution order. 

CONCLUSION

We affirm the district court on all challenged grounds and

conclude the federal government had authority to prosecute

Zheng; there was sufficient evidence to convict Zheng; the

district court’s evidentiary rulings against Zheng and Liu do

not constitute reversible error; there was no prosecutorial misUNITED STATES v. LIU 10533
conduct; the district court properly instructed the jury; and the

district court properly sentenced Zheng. 

AFFIRMED. 

10534 UNITED STATES v. LIU