1 District Judge of the Western District of Louisiana,

sitting by designation.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________________________

No. 90-2976

______________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

AN CHYI LIU ,

a/k/a FAT FRANK, and

AI-TI-TING, a/k/a EDDIE,

Defendants-Appellants.

Appeal from the United States District Court

for the Southern District of Texas

(April 30, 1992)

Before WILLIAMS and WIENER, Circuit Judges, and LITTLE, District

Judge. 1

LITTLE, District Judge:

Appellants Liu and Ting were found guilty by a jury of

conspiring to bribe a public official, 18 U.S.C. § 201(b)(1)(C) and

aiding and abetting the commission of the substantive offen se of

bribery of the same public official, 18 U.S.C. § 201(b)(1)(C).

Liu was convicted of a separate bribery offense, and being an alien

in possession of a firearm on two separate occasions. 18 U.S.C. §2

992(g)(5) and § 924(a)(2). Subsequent to sentencing, Liu and Ting

lodged a timely appeal with this court. Appellants raised a number

of issues that they argue justify conviction reversal or sentence

reduction. We decline to grant any relief to either appellant and

affirm their convictions and sentence.

An Chi Liu, born in Burma and now a Taiwan national, lived in

Houston, Texas and operated a modeling studio in that city. During

times material to this matter, Liu, as an alien, was without proper

credentials to remain in this country. Thus, he is classified as

an alien illegally and unlawfully in the United States. In late

January, 1988 , Houston police arrested Liu claiming that the

modeling studio was a facade to mask the real operation on the

premises--a whorehouse. After the arrest, Liu was approached by

one of the Houston police arresting officers, Jeffrey Shaffer. Liu

was asked to reve al any criminal activity of which he was aware

occurring in the Houston-Asian community. Shaffer wanted Liu to be

an informant. Liu accepted, and for a period of months Liu was

paid to inform the Houston police department, through Shaffer, of

c riminal activities. Liu also provided, for pay, information to

the F.B.I.

Liu admitted to Shaffer that he was a member of a notorious

group known as the United Bamboo Gang. Moreover, Liu was the

bodyguard for one of the gang king pins- -Fargo Chen a/k/a

Yellowbird. Liu's knowledge of the group's illicit activities was

the subject for sale to the police.

On one occasion, Liu and Shaffer met at an oriental restaurant3

in Houston. Liu told Shaffer that he had purchased an Uzi

a utomatic weapon, a prohibited act for an alien illegally and

u nlawfully in the United States. 18 U.S.C. § 922 (g)(5) and 924

(a)(2). Liu admitted that the acquisition was accomplished by use

of false identification. He surrendered the weapon to Shaffer who,

unbeknown to Liu, had it examined by the U.S. Bureau of Alcohol,

Tobacco and Firearms. The weapon was then returned to Liu.

Shaffer, through admissions from Liu, knew that Liu was in the

United States illegally and needed a "green card" to authorize his

continued stay and legalize his desired trip to Asia. Shaffer told

Liu that he could arrange a meeti ng with an individual who could

sell Liu a "green card." Shaffer's seemingly corrupt contact was

actually a straight I.N.S. agent, Tom Cason.

Cason met with Liu, and Liu agreed to buy fiv e green cards.

Liu coordinated a meeting among himself, five potenti al card

purchasers, Cason, and Shaffer, but the transaction cratered when

one of the would be purchasers was arrested on a smuggling charge

by another governmental entity.

This did not deter Liu from buying, by bribery, a green card

for himself from Cason. During the period between March and

November of 1989, Liu and Shaffer met many times. Liu's interest

in marketing, at a great profit, albeit illegal, green cards, was

unsatisfied.

Asians, living in the United States and desiring to purchase

green cards, were known to Liu, and Liu was interested in

satisfying their needs. Fellow defendant, Ai-Ti-Ting, was also in4

need of a green card. Ting, in this country illegally, had

knowledge of immigration procedures, a knowledge which was

essential to the sale of green cards to illegal aliens. In a

Houston restaurant, Shaffer and Cason met with Liu, Ting, and a man

known as Steve Huang. Huang was steamed with Liu as Liu collected

a "green card" acquisition fee, but did not deliver as promised.

Huang's presence at the meeting was to insure receipt of the

previously paid for document. Ting, the more credible and

knowledgeable of the Ting-Liu duo, assured the group that Ting and

Liu could sell ten green cards without any difficulty whatsoever.

They agreed to acquire a ten-pack for $120,000.00 by paying cash

upon receipt of the cards. The sale was set for sometime in

January, 1990. Shaffer and Cason required that Ting and Liu

prepare proper application documents for all the vendees, including

a photograph of each prospective transferee.

The show and tell event took place in a Houston motel and was

recorded on video tape. Each candidate for green card acquisition

was brought to the room. Forms were completed, and pictures

provided. Ting and Liu supplied translations for those without a

working knowledge of the English language. The film reveals that

the purchas ers were informed of the illegal nature of the

transaction and that Shaffer and Cason were officers of the law.

Officer Shaffer received $108,000 from Ting and Liu and, in their

presence, called Cason to produce and deliver the green cards.

Cason received the message and arrived at the Houston motel to make

delivery. No cards were delivered. The purchasers had been duped.5

Liu, Ting and the others were arrested. The sting was complete.

As an aside, the authorities obtained a general warrant to inspect

Liu's residence in search of the Uzi that Liu illegally possessed.

The gun was located and confiscated.

THE LIU APPEAL

Liu raises two issues on appeal. We shall deal with each

separately.

EVIDENTIARY RULING DENYING TESTIMONY

AS TO LIU'S STATED REASONS FOR BEING FEARFUL

One of the defenses asserted by defendant Liu is that he

played along with Shaffer and Cason not out of a desire to make

money by distributi ng illegally acquired green cards, but out of

fear of suffering injury or death at the hands of Shaffer. Without

a knowledgeable person, such as Liu, Shaffer and Cason could not

make money. Merely having green cards did not produce any cash.

There had to be a purchaser, and that purchaser needed to be an

Asian k nowledgeable about illegal immigrants needing valid green

cards. Thus, according to this argument, if Liu didn't perform,

Shaffer would physically abuse and possibly kill Liu.

Liu now argues that the district court's refusal to admit

certain testimony on this issue constitutes reversible error.

Liu's cousin, Tung Shu, appeared as a witness at Liu's trial. Shu

testified that Liu told him tha t he was fearful for his life and

tha t he was in a life threatening situation. Shu was prohibited

from relating to the jury what Liu said to Shu about the cause of

Liu's fear. The evidence of what was said by Liu was offered, not

for the truth of the statements, but to show Liu's state of mind--6

i.e., the state of being fearful and what caused that fea r. The

ruling to exclude that evidence was subject to Liu's objection and

offer of proof.

Liu link's his quest for reversible error to Federal Rule of

Evidence 803(3), an exception to the rule against admission of

hearsay testimony.

The following are not excluded by the hearsay rule, even though the declarant is available as a witnesses:

(3) Then ex isting mental, emotional or physical

condition. A statement of the declarant's

then existing state of mind, emotion,

sensation or physical condition (such as intent, plan, motive, design, mental feeling,

pain, and bodily health), but not including

the statement of memory or belief to prove the

fact remembered or believed unless it relates

to the execution, revocation, identification,

or terms of the declarant's will.

Federal Rules of Evidence 803(3)

We review evidentia ry rulings by applying an abuse of

discretion standard. If abuse is found, then the error is reviewed

under the harmless error doctrine. U nited States v. Capote-Capote

,

946 F.2d 1100, 1105 (5th Cir. 1991); U nited States v. Moody

, 903

F.2d 321, 326 (5th Cir. 1990); United States v. Jimenez Lopez

, 873

F.2d 769, 771 (5th Cir. 1989).

At trial Shu testified that during the four meetings that Liu

had with Shu over a period of time, Liu "was scared" and that he

had a fear of getting killed. The district court did not allow the

witnesses to say that Liu was fearful because a governmental agent

would do bad things to him, nor was he allowed to testify as to

generalized conversations with Liu at indefinite times about Liu's7

fear about injury to be received from a corrupt government agent.

There was no abuse of discretion in the ruling by the district

judge. Evidence of Liu's fear was admitted. Properly excluded

were the alleged reasons for that fear. We find guidance in the

apt analysis of Federal Rule of Evidence 803(3), given by this

court in 1980.

That rule (referring to 803(3)) by its own terms excepts

from the ban on hearsay such statements as might have

been made by Cohen of his then existing state of mind or

emotion, but expressly excludes from the operation of the

rule a st atement of belief to prove the fact believed.

... But the state-of-mind exception does not permit the

witness to relate any of the declarant's statements as to

why he held the particular state of mind, or what he

might have believed that would have induced the state of

mind. If the reservation in the text of the rule is to

have any effect, it must be understood to narrowly limit

those admissible statements to declarations of condition-

-`I'm scared'--and not belief--`I'm scared because Galkin

threatened me.'

United States v. Cohen , 631 F.2d 1223, 1225 (5th Cir. 1980) reh'g

denied 636 F.2d 315 (5th Cir. 1981) (footnote omitted). Evidence

was admitted as to Liu's state of mind but not hearsay evidence as

to the exact nature of the cause of that condition. There was no

error in the evidentiary ruling.

JURY INSTRUCTION ON DURESS

Liu's submitted jury instruction on the issue of duress or

justification (counsel for Liu uses bo t h interchangeably) was

rejected by the court. The tendered but denied instruction

provided:

One of the issues that the government must prove is that

the defendant was not forced to commit the offenses

charged in the indictment. The defendant was forced if:8

(1) He reasonably believed that participating in the

offense was necessary to avoid specifi c and immediate

threat of serious harm to himself or to another; and (2)

He reasonably believed that participating in the offense

was the only way to avoid this harm.

The fact the defendant may have been wrong in what he

belie ved does not matter so long as there was a

reasonable basis for what he beli eved and he acted

reasonably und er the circumstances as they existed at

that time.

It is not up to the defendant to prove that he was forced

to commit the offense as charged in the indictment. It

is up to the government to prove that he was not.

Failure to deliver an instruction constitutes reversible error

when three conditions exist:

1) The instruction is substantially correct;

2) It is not substantially covered in the charge

actually given the jury; and

3) It concerns an important point in the trial so that

the failure to give it seriously impairs the

defendant's ability to present a given defense

effectively.

United States v. Hunt

, 794 F.2d 1095, 1097 (5th Cir. 1986). We

have not been cited to, nor has our research unearthed, any Fifth

Circuit case that defines a proper jury instruction on the issue of

d uress or justification. Although the Pattern Jury Instructions

(Criminal Cases) prepared by the District Judges Association of the

Fifth Circuit, 1990 Edition, published by West Publishing Company,

is an excellent tool for the trial court, it does not contain a

r ecommended instruction for the specific defense of duress,

justification or coercion. The essential elements of such a

defense, however, have be en described in Fifth Circuit opinions.

The prerequisites for entitlement to an instruction on duress were9

recently set forth in U .S. v. Harvey , 897 F.2d 1300 (5th Cir.

1990).

Before a defendant charged with such an offense is

entitled to a jury instru ction on the defense of

justification, however, he must show: (1) that defendant

was un der an unlawful and `present, imminent, and

impending (threat) of such a nature as to induce a wellgrounded apprehension of death or serious bodily

injury.' ; (2) that defendant had not `recklessly or

negligently placed himself in a situation in which it was

probable that he would be (forced to choose the criminal

conduct)'; (3) that defendant had no `reasonable legal

alternative to violating the law; a chance both to refuse

to do the criminal act and also to avoid the threatened

harm'; and (4) `that a direct causal relationship may be

reasonably anticipated between the (criminal) action

taken and the avoidance of (threatened) harm.'

Id

. at 1304-5 quoting United Stat es v. Harper , 802 F.2d 115, 117

(5th Cir. 1986). The genesis of those four essential

charac teristics of duress or coercion in this circuit is U nited

States v. Gant

, 691 F.2d 1159, 1162 (5th Cir. 1982). Other

circuits describe the defense in a nearly identical manner. See

,

e.g.

, United States v. Michelson

, 559 F.2d 567, 569 (9th Cir.

1977); United States v. Lee , 694 F.2d 649, 654 (11th Cir.), cert.

de nied 460 U.S. 1086, 103 S. Ct. 1779, (1983); United States v.

Campbell , 675 F.2d 815, 820-821 (6th Cir.), cert. denied 459 U.S.

850, 103 S. Ct. 112, 74 L. Ed. 2d 99 (1982).

With that background we are not surprised to find that Pattern

Jury Instructions for use in criminal cases in the Sixth, Seventh,

Ninth and Eleventh Circuits adopt virtually identical instructions

on coercion, intimidation, and duress. For example, the Eleventh

Circuit adopts language that contains all of the elements required

by this circuit's jurisprudence:10 It is the theory of the defense in this case that

although the Defendant may have c ommitted the acts

charged in the indictment, he did not do so voluntarily,

but only because of force or coercion in the form of

intimidatio n and threats of bodily harm to himself (or

his family).

As you have already been instructed willfulness is

an essential element of the cri me charged in the

indictment, and acts done involuntarily because of

coercion are not done willfully.

In order to excuse an act that would otherwise be

criminal, however, the intimidation or coercion must be

present and immediate, and must be of such a nature that

it induces a reasonable and well-founded fear of death or

serious bodily injury to one's self or someone else; and

there must be no reasonable opportunity to escape from

coercion without participating in the crime.

If the eviden ce in the case leaves you with a

reasonable doubt that the Defendant acted willfully as charged, then it is your duty to find the Defendant not

guilty.

Pattern Jury Instructions, Criminal Cases (U.S. 11th Cir ., West

Publishing Co. 1985).

The charge submitted by Liu and Ting on the affi rmative

defense of duress does not comport with the requirements created by

Fifth Circuit jurisprudence. It is clear that the jury should be

informed that the defense is available if the defendant proves that

he, or a member of his family, was under a present, imminent, or

impending threat of death or serious bodily injury; that he had not

recklessly or negligently placed himself in a situation in which it

was probable that he would be forced to choose the criminal

conduct; that he had no reasonable opportunity to escape from the

situation and avoid the threatened harm; and that a direct causal

relationship may be reasonably anticipated between the criminal act

taken and the avoidance of the threatened harm. The submitted11

instruction is deficient because it contains no reference to the

defendant's burden to show proof that he did not negligently or

recklessly place himself in a situation in which it was possible

that he would be forced to choose the criminal conduct. Moreover,

there is no specific reference in the instruction to the

requirement that the defendant prove that he did not have a

reasonable legal alternative to violating the law, i.e., a chance

both to refuse to do the criminal act, and to avoid the threatened

harm. In the submitted instruction the sentence, "He reasonably

believed that participating in the offense was the only way to

avoid this harm", is opaque and lacks the direction for analysis

that a jury is entitled to receive. Having concluded that the

submitted instruction is not a correct statement of the law, we are

not required to adjudicate the legal consequence of failing to give

the instruction.

We do note in passing, however, that a thorough review of the

record leads the court to conclude that there is no evidence upon

which a reasonable juror could find that Liu was laboring under a

present, imminent and impending threat of such a nature as to

indicate a well grounded apprehension of death or serious bodily

injury. The testimony of fellow defendant Ting that Liu was

concerned that his Quisling status would be disclosed to his fellow

Asians by Shaffer, and that such action would mea n serious

retribution by the Asians, lacks any merit as being a present,

imminent, impending threat of death or injury. Ting's further

testimony that Liu was afraid that Agent Shaffer would wipe him out12

if Liu failed to cooperate, reveals nothing definite as to when the

damaging event would take place.

Of even greater significance is the fact that the record does

not reveal that Liu was without a reasonable legal alternative to

violating the law, or tha t he had no chance to refuse to do the

criminal act, or to avoid the threatened harm. Liu purchased a

green card for himself. He used that card to travel between Asia

and the United States. He returned to Houston from Taiwan and

actively sought to market green cards to illegal aliens. Liu had

a number of reasonable alternatives to the continued illegality.

He could have surrendered to federal officials in any city in the

United States. He could have communicated with federal officials

in any city in the United States. He could have remained abroad.

He could have sought protection in another city. We must remember

that the initial meeting between Shaffer and Liu occu rred in

January of 1988. The arrest, as a result of presentation of cash

for more green cards, was made in January of 1990. For obvious

reasons, the record is a fertile field to find many reasonable

legal alternatives to violating the law over a two year period.

Liu is not entitled to an instruction on duress.

THE TING APPEAL

JURY INSTRUCTION ON DURESS

A i-Ti-Ting raises the same complaint voiced by Liu over the

trial court's failure to submit the duress instruction to the jury.

For the reasons previously given, we find the instruction is

incorrect as a matter of law and therefore need not have been13

given.

We ta ke this opportunity to observe that even if the

instruction were correct, Ting was not entitled to a duress

instruction. Ting had ample opportunity to absent himself from the

criminal surroundings. Ting met with agent Shaffer in November of

1989 at Steven Huang's urgings. Others than Shaffer were the prime

movers in get ting Ting involved; for it was Ting who knew the

immigration procedures, knew foreigners in need of green cards, and

had a good community reputation. He traveled the crooked path not

because he was forced to do so, but because he elected to do so.

Ting had police connections of his own. He could have reported the

crooked cop but chose not to do so. Instead, Ting called no less

than f orty of his friends in hopes of finding customers for the

illicitly obtained green cards. Ting even accepted a reduced fee

charge for a green card for himself.

ENTRAPMENT

Ting's second argument is that he was the victim of the

government's entrapment and that he was never predisp osed to

traffic in green cards.

Recently this court summarized the law of entrapment.

Entrapment is an affirmative defense that requires

a defendant to show he was induced to commit a criminal

act by a government agent and that he was not predisposed

to commit the act without the inducement. S ee Mathews v.

United States

, 485 U.S. 58, 63, 108 S.Ct. 883, 886, 99

L.Ed.2d 54 (1988). `Entrapment, as a doctrine, asks ...

what was the defendant's mind before he did the charged

acts.' U nited States v. Kang

, 934 F.2d 621, 624 (5th

Cir. 1991) (quoting United States v. Henry

, 749 F.2d 203,

213 (5th Cir. 1984) (en banc) emphasis in original)).

`The critical determination is whether the criminal

intent or design originated with the de fendant or with14

the government agents.' I d

. (citing Unit ed States v.

Nations , 764 F.2d 1073, 1079 (5th Cir. 1985)). To rely

u pon the entrapment defense, the defendant must as a

threshold matter `present evidence that government

conduct created a substantial risk that an offense would

be committed by a person other than one ready to commit

it.' I d

. (quoting Unit ed States v. Johnson , 872 F.2d

612, 620 (5th Cir.), reh'g denied

, 880 F.2d 413 (1989)).

This requires the defendant to establis h (1) that he

lacked predisposition to commit the crime and (2) that

government involvement and inducement amount to more than

just an opportunity to commit the crime. I d

. `If the

defendant succeeds in meeting his burden, the government

must prove beyond a reasonable doubt that the defendant

was predisposed to commit the offense.' Id

.

U.S. v. Pruneda-Gonzalez , 953 F.2d 190, 197 (5th Cir. 1992).

The defendant failed to present evidence that he lacked a

predisposition to commit the crime. The evidence reveals that Ting

had a job that afforded him a position of respect and one that

allowed him to make acquaintances with orientals of substance. He

was in a position to provide important services to Taiwan nationals

in this country. The dark side of Ting's Texas life was that he

did not posses the one thing necessary to perpetuate his

comfortable status--a green card. He attempted to marry a partner

with credentials to give him the protected status, but without

success. With a green card, Ting could cement his presence in this

country and also could travel to Taiwan. Thus, Ting was ripe for

the enlistment by Liu (not a government agent) to participate in

the green card scam. As a matter of law, Ting was not entrapped.

The trial judge did not err in so ruling.

STATUS AS A MANAGER OR SUPERVISOR

Ting argues on appeal, as he did prior to his sentencing, that

he was not a manager or superviso r of any co-conspirators. He15

takes umbrage with the trial court awarding him a three level

upward adjustment pursuant to U.S.S.G. § 3B1.1(b). The finding of

the trial court resulted in a sentence more severe than that which

Ting might have received had he not been a manager or supervisor.

We review the trial court's determination that Ting was a

manager or supervisor under a clearly erroneous standard. United

States v. Barreto , 871 F.2d 511 (5th Cir. 1989); United States v.

Alfaro

, 919 F.2d 962 (5th Cir. 1990). While admitting that we are

not controlled or governed by the Commentary to the Sentencing

Guidelines, we observ e that that source suggests that the court

consider the following factors when making its decision:

Factors the court should consider include the

exercise of decision making authority, the nature of

participation in the commission of the offens e

, the

recruitment of accomplices, the claimed right to a larger

share of the fr uits 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.

Commentary , U.S.S.G. § 3B1.1(b).

Although Ting contends that he did no more than translate, the

facts paint a picture of a manager, not a minion. The success of

the caper was bottomed on customers willing to engage in an illicit

transaction. Ting had the credentials, the contacts, and the

reputation to find accomplices. Ting produced seven customers,

administered the application pr ocess, provided a sense of safety

and solace to his fellow conspirators, and stood to gain a green

card for himself at little cost. The facts set forth in the PSI

have not been assailed as unreliable, only the court's conclusion

drawn from those facts. We are not convinced that the findings by16

the district court are clearly erroneous. The sentence need not be

vacated.

For the foregoing reasons, the convictions are AFFIRMED.