11-4167(L)

United States v. Jiau

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY

ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL 

RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN 

CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE 

EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION 

"SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY 

PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals 

for the Second Circuit, held at the Thurgood Marshall United 

States Courthouse, 40 Foley Square, in the City of New York, on 

the 23rd day of October, two thousand thirteen.

PRESENT: AMALYA L. KEARSE,

JOHN M. WALKER, JR.,

DENNY CHIN,

Circuit Judges.

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UNITED STATES OF AMERICA,

Appellee,

-v- 11-4167-cr

12-2222-con

WINIFRED JIAU, AKA WINI, AKA SEALED 

DEFENDANT 1,

Defendant-Appellant,

DONALD LONGUEUIL, SON NGOC NGUYEN, AKA 

SONNY,

Defendants.

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FOR APPELLEE: DAVID I. MILLER, Assistant United 

States Attorney (Jenna M. Dabbs

and Diane Gujarati, Assistant 

United States Attorneys, on the 

brief), for Preet Bharara, United 
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States Attorney for the Southern 

District of New York, New York, 

New York.

FOR DEFENDANT-APPELLANT: RANDA D. MAHER, Law Office of 

Randa Maher, Great Neck, New York, 

and Winifred Jiau, pro se, Dublin, 

California.

Appeal from the United States District Court for the 

Southern District of New York (Rakoff, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment of the district court is 

AFFIRMED, except that the order of forfeiture and the order

denying Jiau's May 2012 pro se Rule 33 motion is VACATED and the 

case is REMANDED for further proceedings.

Defendant-appellant Winifred Jiau appeals from a 

judgment entered October 4, 2011, after a jury convicted her of

conspiracy to commit securities and wire fraud, in violation of 

18 U.S.C. § 371, and securities fraud, in violation of 15 U.S.C. 

§§ 78j(b) and 78ff, 17 C.F.R. 240.10b-5, and 18 U.S.C. § 2. The 

district court sentenced Jiau to concurrent forty-eight-month 

terms of imprisonment and two years of supervised release, and 

ordered her to pay the mandatory special assessment of $200 and 

forfeit $3,118,000. We assume the parties' familiarity with the 

facts, procedural history, and issues for review.
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On appeal, Jiau primarily challenges the district 

court's ruling denying her motion to suppress certain recorded 

telephone conversations and related evidence, and the 

sufficiency of the evidence at trial. These are addressed in a 

separate opinion issued simultaneously with this summary order. 

We now address Jiau's remaining challenges to: (1) two 

supplemental jury instructions; (2) her sentence of forty-eight 

months' imprisonment, on both procedural and substantive 

grounds; (3) the district court's forfeiture order; and (4) the 

district court's denial of her pro se Rule 33 motion. 

1. Jiau challenges the propriety of two of the 

district court's supplemental jury instructions. "A jury 

instruction is erroneous if it misleads the jury as to the 

correct legal standard or does not adequately inform the jury on 

the law." United States v. Wilkerson, 361 F.3d 717, 732 (2d 

Cir. 2004) (internal quotation marks omitted). We conclude that 

the two supplemental instructions correctly stated the law. 

Moreover, we reject Jiau's arguments that the instructions 

suggested a result to the jury and were therefore prejudicial.

2. Jiau challenges her sentence as both 

substantively and procedurally unreasonable. We review Jiau's

sentence "under a deferential abuse-of-discretion standard," 

Gall v. United States, 552 U.S. 38, 41 (2007), and the district 
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court's calculation of the gain attributable to Jiau's conduct, 

for purposes of determining her base offense level under the 

U.S. Sentencing Guidelines, for clear error, see United States 

v. Gotti, 459 F.3d 296, 349 (2d Cir. 2006) (adopting a "clear 

error" approach when the determination was primarily factual). 

We conclude that the district court did not abuse its discretion 

in finding Jiau's circumstances distinguishable from those of 

other insider trading defendants. We note that the district 

court still imposed a sentence substantially below the 

recommended Guidelines range. Moreover, the court's findings 

that both Sonar Capital and Barai made their trades on the basis 

of Jiau's information, making her responsible for all their 

gains and avoided losses for sentencing purposes, were not 

clearly erroneous.

3. Jiau argues that the district court erroneously 

calculated the amount of forfeiture. In light of our 

intervening decision in United States v. Contorinis, 692 F.3d 

136 (2d Cir. 2012), the government agrees that at least a 

limited remand is necessary because the order of forfeiture 

should not have included the $2.2 million attributable to Sonar 

Capital's avoided losses. See Contorinis, 692 F.3d at 146 n.3. 

Rather than engage in piecemeal review of the forfeiture order, 

we remand for the district court to reconsider the entire amount 
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of forfeiture, after giving the parties an opportunity to 

address the impact of Contorinis on this case.

4. Jiau argues in her supplemental pro se and 

counseled briefs that the district court erred in denying her 

2012 pro se Rule 33 motion for lack of jurisdiction. When a 

defendant files a Rule 33 motion while the case is pending on 

direct appeal, "[t]he District Court ha[s] jurisdiction to 

entertain the motion and either deny the motion on its merits, 

or certify its intention to grant the motion to the Court of 

Appeals, which c[an] then entertain a motion to remand the 

case." United States v. Cronic, 466 U.S. 648, 667 n.42 (1984); 

see also United States v. Camacho, 302 F.3d 35, 36-37 (2d Cir. 

2002) (per curiam). To "den[y] that motion for lack of 

jurisdiction because the case was pending on direct appeal at 

the time . . . [is] erroneous." Cronic, 466 U.S. at 667 n.42. 

Even though the district court acknowledged that it was not 

necessary to deny the motions on this basis and that it only did 

so for reasons of efficiency, it was erroneous to deny the 2012 

pro se Rule 33 motion on the ground of efficiency, given that 

the motion raised questions as to the effective assistance of 

counsel, rather than any issues that were before this Court on 

the then-pending appeal from the judgment.
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We have considered Jiau's remaining arguments and find 

them to be without merit. For the reasons set forth in both the 

accompanying opinion and this summary order, we AFFIRM the 

judgment of the district court except to the extent that it 

ordered forfeiture; we VACATE the order of forfeiture and the 

order denying Jiau's May 2012 pro se Rule 33 motion and REMAND

for further proceedings consistent with today's rulings.

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk