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United States v. Tseng

October 30, 2007


The opinion of the court was delivered by: M. James Lorenz United States District Court Judge



On January 26, 2007, a federal grand jury indicted Defendant Cho-Ing Tseng ("Defendant" or "Tseng" ) on five counts of wire fraud, in violation of 18 U.S.C. §1343. On ruary 5, 2007, Defendant was arraigned on the indictment and entered a plea of not guilty. Defendant's first trial resulted in a mistrial on May 29, 2007, after the jury indicated that it was unable to reach a verdict. Defendant's second jury trial began October 2, 2007. At the close of overnment's case-in-chief, Tseng moved for a judgment of acquittal, pursuant to Rule 29. Additionally, Defendant moved for mistrial due to the introduction of testimony by Venezuelan enforcement agents and again during the cross examination of the Defendant.


The Government alleges that beginning early December 2006 through early January 2007, Tseng and his accomplice, Elena Lee ("Lee"), engaged in a false kidnaping scheme by faking the Defendant's abduction in Venezuela. Defendant and Lee allegedly sought a fraudulent ransom payment from Tseng's family members within the United States in order to secure g's theoretical release. During that time, Defendant and Lee made numerous phone calls to ng's wife and children and left several voice messages on the home answering machine. Defendant and Lee both contacted Tseng's wife and children individually. Lee conveyed that she was the "go between" and could assist in Defendant's release from captivity. The content of these phone calls led Tseng's wife and children to believe that Defendant had been kidnaped by ess clients defrauded by Tseng's business partner Estefano Renzo Alvarado. According to Defendant and Lee, the clients wanted their money back and would kill Defendant if the ransom was not paid. Defendant and Lee both asked Tseng's wife and children not to go to the police.

Believing that Defendant's life was in danger, however, his wife and children contacted the United States Embassy in Caracas, Venezuela on December 28, 2006. Shortly thereafter, the Federal Bureau of Investigation ("FBI") became involved, as did the Venezuelan law enforcement agency Cuerpo de Investigaciones Cientificas, Penales y Criminalisticas ("CICPC"), Kidnaping and Extortion Division. CICPC Officer Flor Cordero ("Officer Cordero" or "CICPC Officer Cordero") summoned Lee to appear at the local prosecutor's office for questioning regarding the alleged kidnaping. Lee indicated to Officer Cordero that she had no knowledge of the alleged kidnaping, that Defendant had not been kidnaped, and that Defendant accompanied her to the building to prove that he was alive and well.

Soon after speaking to Lee, Officer Cordero met with Defendant. Officer Cordero informed Defendant about the kidnaping report filed by his family with the U.S. Embassy in Venezuela, along with the FBI's involvement in the matter. Defendant maintained that he had not been kidnaped, although he offered no clarification or explanation at that time. During a later investigation, Defendant provided a signed handwritten statement to the federal authorities itting that he made duplicitous phone calls to his wife and children, which erroneously ed them to believe he had been kidnaped. Defendant also admitted to Lee's participation in idnaping scheme.


Rule 29 Motion

Rule 29(a) requires a court to enter a judgment of acquittal "if the evidence is insufficient to sustain a conviction." Fed.R.Crim.P. 29(a). In considering a Rule 29 motion, the Court "must determine whether, viewing the evidence in the light most favorable to the government, the jury could reasonably find the defendant guilty beyond a reasonable doubt." United States v. Merriweather, 777 F.2d 503, 507 (9th Cir. 1985) (internal quotation and citation omitted). At the close of the Government's case-in-chief, Defendant moved for a judgment of acquittal, pursuant to Rule 29. The trial court may, as the Court did in this case, reserve decision on a Rule 29(a) motion. Fed.R.Crim.P. 29(b). If the Court does reserve decision, the Court must decide the motion on the basis of the evidence presented to the jury at the time the ruling was rved. Id. Now, viewing "the evidence [as it was] at the time the ruling was reserved," Id., court DENIES Defendant's motion for acquittal.

Defendant maintains that the Government failed to present independent evidence of the fendant's intent to defraud, and instead relied exclusively on the Defendant's statement's to thorities as evidentiary support in violation of the traditional corpus delicti rule. In Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954), the Supreme Court reaffirmed the traditional corpus delicti rule whereby a defendant may not be convicted based solely on his own admissions. The Ninth Circuit has since interpreted Opper to impose a "two-pronged" roboration requirement. See e.g., United States v. Lopez-Alvarez, 970 F.2d 583 (9th Cir. 1992). While the Government need not introduce independent evidence of the corpus delecti in conformance with the traditional test, "it must introduce sufficient evidence to establish that the criminal conduct at the core of the offense has occurred." Id. at 592. Additionally, the Government "must introduce independent evidence tending to establish the trustworthiness of the admissions, unless the confession is, by virtue of special circumstances, inherently reliable."

Independent evidence of the Defendant's intent to defraud was properly presented at trial. For instance, the following testimony was elicited during the direct examination of Defendant's wife, Anita Tseng:

Q: I am taking about on January 13th. Did Elena give you any advice on what you should tell the authorities if questioned about what happened[?]

A: She didn't give me advice. She only told me that over there my husband was not kidnapped. She wanted us to understand what our understanding ...

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