United States v. Pingping Zhang

concurring:

This is a disturbing case. Although I feel compelled by precedent to agree with the judgment and reasoning of the memorandum disposition, I write separately to highlight what I consider to be the highly questionable tactics used by the prosecutors in this case. Those tactics arguably frustrate Congress’s purpose in enacting 18 U.S.C. § 371 , and also undermine the United States Sentencing Commission’s judgment in establishing a range of reasonable sentences. Moreover, they are more consistent with an approach of seeking to obtain a conviction with the longest possible sentence than seeing that justice is done, an approach which is in tension with prosecutors’ role as public fiduciaries. See The Supreme Court, 2009 Term— Leading Cases, 124 Harv. L.Rev. 360, 367 (2010) (“[Pjrosecutors have a ... role as public fiduciary. In this capacity, the prosecutor occupies a quasi-judicial position in which the goal is not to win a case, but [to see] that justice shall be done. Thus, [t]o this extent, our so-called adversary system is not adversary at all; nor should it be.”) (citations and internal quotation marks omitted).

The government initially charged each defendant with…

MEMORANDUM *

Shixu Huang, Lihua Yi, Pingping Zhang, and Zhanshan Zhang appeal their convictions for conspiracy to defraud the United States in violation of 18 U.S.C. § 371 .

The indictment against appellants was sufficient because when “read in its entirety” it “contain[ed] the elements of the charged crime in adequate detail to inform the defendants] of the charge and to enable [them] to plead double jeopardy.” United States v. Awad, 551 F.3d 930, 935 (9th Cir.2009) (internal quotation marks omitted); see also United States v. Caldwell, 989 F.2d 1056 (9th Cir.1993).

The government was not required to prove “separate and distinct” conduct from conduct that would support a conviction for conspiracy to commit a substantive offense because the crime of conspiracy is complete when an individual enters into an agreement to obstruct a lawful function of the government by deceitful or dishonest means and makes at least one overt act in the furtherance of the conspiracy. Caldwell, 989 F.2d at 1059 . The “defraud” clause of section 371 “criminalizes any willful impairment of a legitimate function of government, whether or not the improper acts or objective are criminal under another…

FILED

NOT FOR PUBLICATION OCT 20 2011

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 10-10462

Plaintiff - Appellee, D.C. No. 1:10-cr-00031-PMP-

v.

MEMORANDUM *

PINGPING ZHANG,

Defendant - Appellant.

UNITED STATES OF AMERICA, No. 10-10463

Plaintiff - Appellee, D.C. No. 1:10-cr-00031-PMP-

v.

SHIÈU HUANG,

Defendant - Appellant.

UNITED STATES OF AMERICA, No. 10-10466

Plaintiff - Appellee, D.C. No. 1:10-cr-00031-PMP-

v.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

LIHUA YI,

Defendant - Appellant.

UNITED STATES OF AMERICA, No. 10-10467

Plaintiff - Appellee, D.C. No. 1:10-cr-00031-PMP-

v.

ZHANSHAN ZHANG,

Defendant - Appellant.

Appeal from the United States District Court for the District of the Northern Mariana Islands Philip M. Pro, District Judge, Presiding

Argued and Submitted October 7, 2011 Honolulu,…