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United States of America v. Li Xin Wu

December 28, 2011

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
LI XIN WU, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 07 CR 799-8--Ronald A. Guzman, Judge.

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

ARGUED NOVEMBER 2, 2011

Before EASTERBROOK, Chief Judge, and POSNER and WOOD, Circuit Judges.

Li Xin Wu was convicted after a jury trial on one count of conspiracy to possess a con- trolled substance with intent to distribute, in violation of 21 U.S.C. §§ 841 and 846, and 18 U.S.C. § 2, and one count of conspiracy to import a controlled substance into the United States, in violation of 21 U.S.C. §§ 952, 960, and 963, and 18 U.S.C. § 2. On appeal, Wu raises a variety of arguments challenging both his conviction and sentence: he takes issue with the district court's rejection of two of his proposed jury instructions; he asserts that immunized statements were used against him at trial; he contends that alternate jurors inappropriately deliberated with the petit jury; and finally, he challenges his guidelines calculation. We find no error, however, and therefore affirm.

I

Beginning in late 2003, several people in Chicago's Chinatown neighborhood began importing large quan- tities of marijuana and methylene-dioxymethamphet- amine (MDMA, or as it is commonly known, Ecstasy) from Canada into Chicago. Wu started participating in this operation a few months after it began. Initially, he rented a warehouse in Chinatown for the group to use to store the drugs. Over the course of the next year, Wu received multiple loads of marijuana and MDMA from the drug ring's Canadian suppliers. He purchased some of it for resale to his own customers and stored the rest for his co-defendants to sell to their customers. Wu, who is fluent in both English and Cantonese, also served as a translator for participants in the operation.

Federal agents learned about the drug ring in early 2005 when one of its members sold MDMA to a government informant. Agents later met with Wu, who at first denied involvement but eventually, over the course of eight meetings, provided the government with many details about the operation and its members. At Wu's trial the government offered uncontroverted evidence that Wu voluntarily participated in these meetings and that its agents never made any promises to Wu nor offered him immunity. Although at first Wu was very cooperative, by the final meeting in July 2007 he denied his role in the offense and minimized his conduct.

In September 2008, a grand jury returned a 13-count indictment charging 20 people with various federal offenses relating to the drug ring. Wu was named in two of those counts. All of Wu's co-defendants either fled the jurisdiction or reached agreements with the govern- ment. Wu opted for a trial and was found guilty by a jury of both counts charged in the indictment.

II

A

Wu first contends that the district court erred by rejecting two of his requested jury instructions, covering the topics of aiding and abetting and multiple conspira- cies. We review instructions de novo to determine whether they were correct and complete statements of the law. United States v. Tanner, 628 F.3d 890, 904 (7th Cir. 2010). If the instructions as given were accurate, we will defer to the district court's choice of language and not disturb them. United States v. Ashqar, 582 F.3d 819, 822 (7th Cir. 2009). The government argues that we should review in this instance only for plain error because (it says) Wu failed to object to the final instruc- tions after the court rejected his requested versions. See, e.g., United States v. Mims, 92 F.3d 461, 465 (7th Cir. 1996) ("The court's refusal to give a tendered instruction does not automatically preserve an objection to the instruction actually given."). Given our conclusion that there was no error at all, however, we need not worry here about the difference between plain error and the ordinary standard of review.

With respect to aiding and abetting, Wu asked the court to give the Seventh Circuit's pattern instruction, which instructs the jury that a defendant must "knowingly associate with the criminal activity, participate in the activity, and try to make it succeed," in order to be liable as an accomplice. PATTERN CRIMINAL FEDERAL JURY IN- STRUCTIONS OF THE SEVENTH CIRCUIT § 5.06. The district court rejected this request and instead told the jury that a defendant can be convicted of aiding and abetting if "he or she tries to help the conspiracy succeed by com- mitting an act in furtherance of the conspiracy and had knowledge of the conspiracy's purpose at the time he commits the act."

Wu argues that the district court's instruction left out the element of "knowing association." Knowing associa- tion is important for accessory liability because it pre- vents the conviction of a person on a guilt-by-associa- tion theory: someone who is "simply passively present during the transaction" should not be convicted of aiding and abetting that transaction. United States v. Heath, 188 F.3d 916, 921 (7th Cir. 1999). The prosecution must instead also "show that the defendant shared the principal's criminal intent," United States v. Sewell, 159 F.3d 275, 278 (7th Cir. 1998); it does so by proving "knowing association."

But a judge is not limited to the exact phrase "knowing association" in order to convey this concept to the jury. Elsewhere we have explained that aiding and abetting "requires knowledge of the illegal activity that is being aided and abetted, a desire to help the activity succeed, and some act of helping." ...


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