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United States v. Fujii

August 20, 2002

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
MASAO FUJII, A/K/A YASUO TAMURA, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 00 CR 17--Joan B. Gottschall, Judge.

Before Flaum, Chief Judge, and Coffey and Kanne, Circuit Judges.

The opinion of the court was delivered by: Kanne, Circuit Judge

ARGUED APRIL 9, 2002

Masao Fujii was convicted of attempting to smuggle aliens into the United States for private financial gain, in violation of 8 U.S.C. § 1324(a)(2) (B)(ii) ("Count 1"); of encouraging and inducing aliens to come to, enter, or reside in the United States, knowing that it was in violation of law, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) ("Count 2"); and finally, of knowingly using a counterfeit passport, in violation of 18 U.S.C. § 1543 ("Count 3"). The district court sentenced Fujii to 36 months of imprisonment. On appeal, Fujii challenges his conviction with respect to Counts 1 and 2, arguing that the district court erroneously admitted evidence under the business records exception to the rule against hearsay and that the evidence the government produced at trial was insufficient to support his convictions.

I. Background

On January 5, 2000, Masao Fujii and three Chinese nationals used fraudulent passports to board a Korean Airlines Flight in Saigon, Vietnam bound for Seoul, Korea. Fujii's fraudulent passport bore the name "Yasuo Tamura." Xie Mei Zheng, Yan Zhu Zheng, and Xiao Hong Li used fraudulent passports bearing the names "Naoko Yamada," "Miyuki Okamoto," and "Yuri Kimura," respectively. The next day, all four individuals checked through onto Korean Airlines Flight 37 in Seoul, Korea bound for Chicago's O'Hare International Airport.

Flight 37 arrived at O'Hare's international terminal, Terminal 5, where the United States Immigration and Naturalization Service ("INS") checks passports and other documentation. The process for checking passports and documentation at Terminal 5 proceeds as follows: First, the traveler presents documentation at a primary inspection station. If the documentation appears incorrect or for some other reason requires further inspection, the traveler is referred to an INS secondary inspection station for further questioning.

Fujii approached the INS primary inspection station alone. There, he presented INS Inspector Todd Seeger with his fraudulent Japanese passport, his INS I-94 W Nonimmigrant Visa Waiver Arrival/Departure Form, and a Customs Declaration Form. Because Seeger noticed that Fujii's passport did not contain the security features that he was accustomed to seeing on Japanese passports, Seeger referred Fujii to the INS secondary inspection station.

At the same time that Fujii was being referred to the INS secondary inspection station, Supervisory INS Inspector Peter Manno was monitoring the other individuals arriving on Flight 37. Manno watched the three Chinese Nationals enter the women's restroom. Manno stood outside the restroom and refused to let anyone else enter. After hearing six distinct toilet flushes, Manno and INS Supervisor Teresa Guerrero entered the restroom and confronted the three women. Two of the women were standing together in one of the bathroom stalls, floating in that stall's toilet were the remnants of two Japanese passports bearing the names "Okamoto" and "Yamada." The third Chinese national was in an adjacent stall and had no passport in her possession, and no remnants were seen floating in the toilet in that stall. All three of the women were then escorted to the INS secondary inspection station.

At the INS secondary inspection station, Manno contacted Korean Airlines and requested a copy of the manifest for Flight 37 and a copy of passenger reservations for "Okamoto" and "Yamada." Korean Airlines Assistant Manager Tracy Oliveras printed out passenger reservations, check-in records, and the manifest for the flight. The records were kept in a computer system and manifests were printed by Oliveras on a daily basis. Either travel agents, airline reservation agents, or airline agents stationed at the airport had recorded the relevant information in the computer system. Further, Oliveras testified that the entries were made at or near the time the information was received, it was the regular business practice of Korean Airlines to make the entries into the computer system, and the records were kept as part of Korean Airlines' regular business activity.

The Korean Airlines check-in records revealed that "Tamura" and the three Chinese nationals all "through checked" from Saigon to Flight 37 in Seoul. Further, all four individuals checked in with the same airline agent within minutes of one another. Finally, the check-in records showed that "Yamada" was in a group of four. Without about being asked to do so, Oliveras subsequently pulled the records for the other individuals listed in the group of four with "Yamada." The other individuals listed were "Tamura," "Okamoto," and "Kimura." Korean Airlines reservations records further showed that all four individuals had booked their reservations with the same travel agent and that the tickets were all issued on the same day and paid for by the same company.

While Manno obtained the aforementioned flight information, INS agent Liam O'Neill began interviewing Fujii at the INS secondary inspection station with the assistance of Language Services, a contract company that INS used to provide interpreters via telephone. O'Neill asked Fujii questions in English that were then translated into Japanese by the Language Services telephone interpreter. Then Fujii answered the questions in Japanese, and the interpreter translated Fujii's answers back into English. About half-way through the interview, Korean Airlines Manager, Man Kee Ha, took over the translating duties for the telephone interpreter from Language Services.

After Ha began interpreting, Fujii proceeded to give two separate sworn statements. In his first sworn statement, Fujii insisted that he was "Tamura" and that his passport was legally issued by the Japanese government. Following giving this first sworn statement, however, O'Neill fingerprinted Fujii and placed his prints in the INS's fingerprint Identification System ("IDENT"). O'Neill then learned that Fujii had previously pled guilty and was convicted of encouraging or inducing six Chinese aliens to enter the United States in violation of 8 U.S.C. § 1324(a)(1)(A)(iv). O'Neill then began to interview Fujii for a second time. At this point, Fujii admitted that the purpose of his trip was to help the "Singapore guy" to bring the three Chinese women through United States Immigration. Further, Fujii explained that he did this because he had guaranteed a debt for a friend, Sasaki Takeshi, to the Cambodian mafia. Fujii then signed a second sworn statement, which contained the information above, using his real name, Masao Fujii.

Following the government's presentation of the aforementioned evidence at trial, Fujii moved for judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure. The district court denied Fujii's motion with regard to Counts 2 and 3, but reserved ruling with regard to Count 1. Following the presentation of his case at trial, Fujii renewed his motion for judgment of acquittal with regard to ...


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