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United States v. Wang

United States District Court, D. Kansas

November 18, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
XIANG WANG, Defendant.

MEMORANDUM ORDER

JULIE A. ROBINSON, District Judge.

This matter comes before the Court on Defendant Xiang Wang's Motion for Judgment of Acquittal Notwithstanding the Verdict or, in the Alternative, for a New Trial (Doc. 59). The Government has responded (Doc. 63), and a motion hearing was held on October 21, 2014. After reviewing the filings and the arguments submitted at the hearing, the Court is now prepared to rule. For the reasons explained in detail below, Defendant's motion for judgment of acquittal is granted, and his motion in the alternative for a new trial is conditionally denied.

I. Background

Defendant is a native of the People's Republic of China. In December 2013, he was charged by indictment with willful failure to depart from the United States within ninety days of a final order of removal, in violation of the Immigration and Nationality Act, 8 U.S.C. § 1253(a)(1)(A). At trial, the Government's case in chief consisted of four witnesses, including (1) supervisory asylum officer Arthur Hale, (2) special agent Andrew Zumhofe, and (3) deportation officer Cory Terrell.

Officer Hale testified to certain documents in Defendant's alien file. Those documents tended to show that Defendant arrived at John F. Kennedy International Airport in August 1994 using an alias and a fraudulent Chinese passport. Airport immigration inspectors discovered the false passport, but admitted Defendant to the United States for the purpose of attending an exclusion hearing before an immigration judge. In January 1995, the immigration judge denied Defendant's application for asylum and ordered him to be removed from the country. The Board of Immigration Appeals (BIA) dismissed Defendant's appeal from that order. In the years that followed, Defendant filed two motions to reopen his case: first in March 1997, then in April 2007. The BIA denied both motions, issuing its final order of removal on December 19, 2007. A Form I-296, included in Defendant's alien file, indicates that no immigration official had observed Defendant leave the country within ninety days of the December 2007 removal order.

Special Agent Zumhofe encountered Defendant on November 5, 2013, during a search of Defendant's apartment in Olathe, Kansas. The search uncovered several documents belonging to Defendant, including a social security card, a W-2 form, some paychecks, driver's licenses for Kansas and New York, a Chinese passport, and the Form I-94 issued to Defendant upon his arrival in the United States in August 1994.[1] Defendant was taken into custody immediately after the search and was released on recognizance that same day.

Officer Terrell became involved with the case on some date after the apartment search. He testified to arranging for Defendant's eventual removal from the United States. Specifically, Officer Terrell contacted the Chinese consulate in Chicago and requested travel documents authorizing Defendant's return to China. After receiving a copy of Defendant's passport, the consulate approved the request and issued Defendant's travel documents. Officer Terrell explained that the consulate would issue such documents only upon proof of Defendant's Chinese citizenship.

Defendant did not testify or present a witness on his behalf. During cross-examination of Officer Hale, however, defense counsel elicited statements on China's family-planning policy. Officer Hale testified that the policy has generated forcible abortions and sterilizations to prevent families from having more than one child. He also acknowledged that Defendant's later motion to reopen was based on the birth of Defendant's second child, which Defendant feared would result in his forcible sterilization upon returning to China. The cross-examination appears designed to support Defendant's argument that his failure to depart, if unlawful, was excusable because he acted under duress or coercion.[2]

At the close of the Government's case in chief, Defendant moved for a judgment of acquittal for insufficiency of the evidence under Federal Rule of Criminal Procedure 29. The Court took that motion under advisement. The jury then convicted Defendant as charged on July 23, 2014. Defendant now renews his motion for judgment of acquittal and moves, in the alternative, for a new trial.

II. Motion for Judgment of Acquittal

A. Standard of Review

In resolving Defendant's challenge to the sufficiency of the evidence, the Court must determine whether, "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."[3] The Court must "resolve any possible conflicts in the evidence in favor of the government and assume that the jury found that evidence credible."[4] The evidence supporting the conviction must be substantial, but it "need not conclusively exclude every other reasonable hypothesis and it need not negate all possibilities except guilt."[5]

A conviction under § 1253(a)(1)(A) requires proof of the following elements: (1) Defendant was an alien at the time alleged in the Indictment; (2) a final order of removal was outstanding against Defendant; (3) Defendant was deportable under 8 U.S.C. § 1227(a); and (4) Defendant willfully failed or refused to depart from the United States within a period of ninety days from the date of the final order of removal.[6] To ...


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