2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-18-2009

USA v. Andrew Yao

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1977

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Recommended Citation

"USA v. Andrew Yao" (2009). 2009 Decisions. Paper 1174.

http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1174
 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 08-1977

__________

UNITED STATES OF AMERICA

 v.

ANDREW N. YAO,

 Appellant

 

On Appeal from the United States District Court

for the District of Delaware

 (D. C. No. 01-06-cr-00027-001)

District Judge: Hon. Gregory M. Sleet

 

Argued on May 12, 2009

Before: AMBRO, ROTH and ALARCÓN*, Circuit Judges

(Opinion filed: June 18, 2009)

Mark E. Cedrone, Esquire (Argued)

Cedrone & Janove

Public Ledger Building, Suite 940 

150 South Independence Mall West

Philadelphia, PA 19106

Counsel for Appellant

 

*Honorable Arthur L. Alarcón, Senior United States Circuit Judge for the Ninth

Circuit Court of Appeals, sitting by designation.
2

Colm F. Connolly, Esquire

United States Attorney 

Shannon T. Hanson, Esquire (Argued)

Assistant United States Attorney

1007 N. Orange Street, Suite 700

P. O. Box 2046

Wilmington, DE 19899-2046

Counsel for Appellee

 

 O P I N I O N 

 

ROTH, Circuit Judge:

Andrew Yao appeals from a judgment of conviction for making a false oath in a

bankruptcy proceeding, in violation of 18 U.S.C. § 152(2). The District Court had

jurisdiction pursuant to 18 U.S.C. § 3231. This Court has jurisdiction pursuant to 28

U.S.C. § 1291. We assume the parties’ familiarity with the facts and the record of prior

proceedings, which we describe only as necessary to explain our decision. We will

affirm.

Yao’s sole complaint is directed at the District Court’s instruction on the

fraudulent intent required to prove a violation of 18 U.S.C. § 152(2). The District Court

defined “fraudulently” to require an “intent to deceive the trustee, the creditors, the

bankruptcy court, or any other person or entity.” Yao argues that the District Court

should have limited the potential object of the “intent to deceive” to “the trustee, the

creditors, or the bankruptcy court.”
3

During trial, Yao did not object to the language “or any other person or entity” in

the “fraudulent” jury instruction. Indeed, the words were added to the instruction at the

District Court’s suggestion as a compromise between Yao’s suggested lengthy “intent to

defraud” instruction and the government’s open-ended “intent to deceive” language, and

both parties approved the language before it was used in the preliminary instructions. The

“or any other person or entity” language was used again following the prayer conference

and a final time after the jury asked a question during deliberations, and never did defense

counsel put a “clear, specific objection” to that language on the record. See United States

v. Zehrbach, 47 F.3d 1252, 1260 n.6 (3d Cir. 1995). Accordingly, we review the

instruction only for “plain error.” Id.

Plain error is “found ‘sparingly and only where the error was sure to have had

unfair prejudicial impact on the jury’s deliberations.’” United States v. Thayer, 201 F.3d

214, 221–22 (3d Cir. 1999) (quoting Zehrbach, 47 F.3d at 1263 n.9). Moreover, “we

should exercise our discretion to correct the error [only] where the defendant is actually

innocent, or where, regardless of the defendant’s innocence or guilt, the error seriously

affects the fairness, integrity or public reputation of judicial proceedings.” United States

v. Gordon, 290 F.3d 539, 543 (3d Cir. 2002). We find no such problem here. Yao lied to

creditors’ counsel about transfers of funds he made from corporate debtor’s accounts. He

told these lies while under oath during his deposition as part of bankruptcy proceedings,

and they concern a fact material to the debtor’s bankruptcy—what Yao did with over
 We thus do not decide whether conviction under 18 U.S.C. § 152(2) typically requires 1

an “intent to deceive” any person or an “intent to deceive the creditors, the trustee, or the

bankruptcy court.”

4

$800,000 of the debtor’s assets. We have reviewed the record and are satisfied that the

evidence would overwhelmingly support the verdict even if the jury instructions had not

included the disputed language.

1

Accordingly, we will affirm the judgment of conviction.