NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 07-3400

 

UNITED STATES OF AMERICA

 v.

PETER CHUN NAM YEUNG,

 Appellant

 

No. 07-3478

 

UNITED STATES OF AMERICA

v.

WAI LEUNG CHU,

 Appellant

 

On Appeal from the United States District Court

for the District of New Jersey

District Court Nos. 06-cr-00656-1 & 06-cr-00656-2

District Judge: The Honorable Jerome B. Simandle

 

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

March 12, 2010

Before: AMBRO, SMITH, and ALDISERT, Circuit Judges

(Filed: March 29, 2010)
 Because we write only for the parties, we will not set forth the facts at length. 1

2

 

OPINION

 

SMITH, Circuit Judge.

These appeals arising from a single criminal trial were consolidated so that

the Government could file a single Response Brief. Because the facts and issues

raised are similar, we will consider these appeals together.

I.

This case arose out of a multi-year investigation by law enforcement agents

into an elaborate scheme to import cigarettes bearing counterfeit trademarks into

the United States without paying the required duties and to distribute them

throughout the United States and Canada. Peter Chun Nam Yeung (“Yeung”), 1

Wai Leung Chu (“Chu”), and others were charged in Count 1 of the indictment

with conspiring to smuggle the cigarettes into the United States, to traffic in goods

bearing counterfeit trademarks, and to traffic in contraband cigarettes in violation

of 18 U.S.C. § 371. Yeung was also charged in Counts 2 through 5 with

substantive counts of trafficking in goods bearing counterfeit trademarks in

violation of 18 U.S.C. § 2320(a) and 18 U.S.C. § 2. Chu was additionally charged
 A case contains 50 cartons of cigarettes, which have 10 packs of 20 cigarettes 2

each.

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only in Count 3.

Evidence at trial established that Yeung met with coconspirators and

undercover agents on numerous occasions to arrange for shipments of the

cigarettes. On one occasion, Co Kanh Tang (“Tang”), the leader of the

conspiracy, sent Yeung to Canada as his designee to arrange for a shipment of

cigarettes. Yeung represented himself as Tang’s partner at this meeting. The jury

also heard Yeung’s post-arrest statement, recounted by Agent Egbert, wherein

Yeung acknowledged that he was paid by a coconspirator for his part in the

scheme, and that Yeung knew he was working with cigarettes bearing counterfeit

marks. Moreover, the jury saw videos of Yeung’s participation in various

meetings in furtherance of the conspiracy and of him loading and unloading the

cigarettes.

Chu was implicated in the conspiracy when he called Chicherin Lee to help

him dispose of some of the cigarettes. A load of about 107 cases of cigarettes2

was stored in a warehouse, and Tang ordered Chu to get rid of them. Chu found a

buyer and asked Lee to rent a truck and move the cigarettes from the warehouse,

which he did. Lee became a Government witness at trial.

After the close of the Government’s case-in-chief, Yeung moved for a
 The District Court had jurisdiction over this case under 18 U.S.C. § 3231. We 3

have jurisdiction to review the conviction and sentence under 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a).

4

judgment of acquittal under Federal Rule of Criminal Procedure 29. That motion

was denied. The jury returned a verdict of guilty as to Counts 1, 3, and 5 for

Yeung, not guilty on Counts 2 and 4, and guilty for Chu on Counts 1 and 3. At

their separate sentencing hearings, the District Court imposed on each a two-level

role enhancement based on its finding that Yeung and Chu were both managers or

supervisors of the scheme under § 3B1.1(c) of the Sentencing Guidelines. Yeung

and Chu appeal.

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II.

A.

Yeung first challenges the District Court’s denial of his motion for acquittal,

made after the close of the Government’s case-in-chief. We review claims

challenging the sufficiency of the evidence “to determine whether, after viewing

the evidence in the light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond a reasonable

doubt.” United States v. King, 272 F.3d 366, 370 (3d Cir. 2001) (quotation

omitted). Our review is plenary. United States v. Bornman, 559 F.3d 150, 152 (3d

Cir. 2009) (citation omitted). After reviewing the evidence from the trial, we

conclude that a reasonable jury could have convicted Yeung of these charges. 
5

Therefore, we will affirm the District Court’s denial of Yeung’s motion for

acquittal.

Yeung also challenges the District Court’s imposition of a two-level

enhancement for being a manager or supervisor under § 3B1.1(c). Factual

findings relevant to the sentencing guidelines are reviewed for clear error. United

States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007) (en banc). We will not disturb

them unless we are “left with the definite and firm conviction that a mistake has

been committed.” Id. (quoting Concrete Pipe & Prods. of Cal., Inc. v. Constr.

Laborers Pension Trust for S. Cal., 508 U.S. 602, 622 (1993)). We exercise

plenary review over the District Court’s interpretation of the guidelines. Id.

A two-level aggravating role enhancement is warranted if the District Court

finds by a preponderance of the evidence that the defendant was “an organizer,

leader, manager, or supervisor in any criminal activity” that did not involve five or

more participants and was not otherwise extensive. U.S.S.G. § 3B1.1(c). The

District Court’s finding that Yeung was a manager or supervisor was not clearly

erroneous. While Yeung was not coequal with Tang in his role in the offenses, the

District Court’s finding that Yeung acted as Tang’s partner for the Canada meeting

was sound. Further, we find no error in the District Court’s rejection of Yeung’s

argument that he was a mere “gofer” in coordinating the shipments and causing

the loading and unloading of the cigarettes.
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Finally, Yeung argues that the District Court failed to adequately consider

the factors in 18 U.S.C. § 3553(a) in fashioning the sentence. We review “a

sentence for reasonableness with regard to the factors set forth in 18 U.S.C. §

3553(a).” United States v. Bungar, 478 F.3d 540, 542 (3d Cir. 2007) (citation

omitted). This amounts to abuse-of-discretion review. Gall v. United States, 552

U.S. 38, 51 (2007). We find no abuse of discretion in the sentence imposed and

will affirm.

B.

Chu challenges the two-level enhancement imposed on him under

§ 3B1.1(c) of the guidelines as a manager or supervisor. Chu was held responsible

based on the disposal only of the 107 cases of cigarettes. To accomplish this task,

Chu recruited Lee to move the cigarettes, found a buyer for them, and directed Lee

to the buyer. Chu was no mere message-taker. We see no error in the two-level

role enhancement. For the same reason, we see no error in the District Court’s

denial of a downward adjustment for a mitigating role under § 3B1.2 of the

guidelines.

III.

We will affirm the judgments of the District Court against Yeung and Chu.