76433 SDNY Seng Br Cv - globalinvestigationsreview.com … · Frank Lorenzo, JEFF C. YIN, also known as Yin Chuan, SHIWEI YAN, also known as Sheri Yan, HEIDI HONG PIAO, also known

18-1725To Be Argued By:DANIEL C. RICHENTHAL

United States Court of AppealsFOR THE SECOND CIRCUIT

Docket No. 18-1725

UNITED STATES OF AMERICA,Appellee,

—v.—

NG LAP SENG, also known as David Ng, also known as David Ng Lap Seng,

Defendant-Appellant,

JOHN W. ASHE, FRANCIS LORENZO, also known as Frank Lorenzo, JEFF C. YIN, also known as Yin Chuan,

SHIWEI YAN, also known as Sheri Yan, HEIDI HONG PIAO, also known as Heidi Park,

Defendants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

BRIEF FOR THE UNITED STATES OF AMERICA

GEOFFREY S. BERMAN, United States Attorney for the

Southern District of New York,

Attorney for the United States

of America.One St. Andrew’s PlazaNew York, New York 10007(212) 637-2200

DANIEL C. RICHENTHAL,JANIS M. ECHENBERG,DOUGLAS S. ZOLKIND,SARAH K. EDDY,

Assistant United States Attorneys,

Of Counsel.

DAVID A. LAST,Fraud Section, Criminal Division

U.S. Department of Justice

Case 18-1725, Document 87, 09/25/2018, 2397075, Page1 of 69

TABLE OF CONTENTS PAGE

Preliminary Statement . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A. The Government’s Case . . . . . . . . . . . . . . . . 5

1. Ng Establishes SSN and Starts Paying Lorenzo . . . . . . . . . . . . . . 6

2. Ng Begins Paying Ashe’s Wife, and, at Ng’s Direction, the Ambassadors Submit an Official UN Document Supporting Ng’s Project . . . . . . . . . . . . . 6

3. Ng Offers to Pay Lorenzo $30,000 More Per Month, and, at Ng’s Direction, the Ambassadors Revise the UN Document . . . . . . . . . . . . . . . . . 7

4. Ng Threatens to Cut Off Payments to Lorenzo Unless He Accelerates His Efforts to Establish the Center as an Official UN Property . . . . . . . . . 10

5. Ng’s Continued Payments to Ashe’s Wife for a No-Show Job . . . . . . . . . . . . 11

6. Ashe’s Trip as the PGA to Macau, and Ng’s Agreement to Pay Ashe $200,000 . . . . . . . . . . . . . . . . . . . . . . . . 12

7. The Pro Bono Agreement and Agreement to Hold the Next Expo in Macau . . . . . . . . . . . . . . . . . . . 12


ii PAGE

8. The August 2015 Forum . . . . . . . . . . . 13

B. The Defense Case . . . . . . . . . . . . . . . . . . . . 14

C. The Verdict . . . . . . . . . . . . . . . . . . . . . . . . . 14

D. The Sentencing . . . . . . . . . . . . . . . . . . . . . . 14

ARGUMENT:

POINT I—Section 666 Applies to the United Nations . . . . . . . . . . . . . . . . . . . . . . . . . 14

A. Applicable Law . . . . . . . . . . . . . . . . . . . . . . 15

B. Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . 15

POINT II—The Jury Was Properly Instructed Under McDonnell . . . . . . . . . . . . . . . . . . . . . . . 27

A. Applicable Law . . . . . . . . . . . . . . . . . . . . . . 27

1. Jury Instruction Challenges . . . . . . . . 27

2. McDonnell v. United States . . . . . . . . . 28

3. The Application of McDonnell to Section 666 . . . . . . . . . . . . . . . . . . . . 30

B. Relevant Facts . . . . . . . . . . . . . . . . . . . . . . 31

C. Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . 32

1. McDonnell Does Not Apply . . . . . . . . . 32


iii PAGE

2. In Any Event, the District Court’s Instruction Comported with McDonnell . . . . . . . . . . . . . . . . . . 36

POINT III—There Was Sufficient Evidence to Prove Ng Paid Bribes for Official Action . . . . . 40

A. Applicable Law . . . . . . . . . . . . . . . . . . . . . . 40

B. Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . 41

POINT IV—Ng’s Remaining Arguments Lack Merit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

A. Ng’s Challenge to the “Corruptly” Instructions and Evidence of Corrupt Intent Is Meritless . . . . . . . . . . . . 47

1. Relevant Facts . . . . . . . . . . . . . . . . . . . 47

2. Discussion . . . . . . . . . . . . . . . . . . . . . . . 48

B. Ng’s Challenge to the “Business” Instruction and Evidence That He Acted to Obtain or Retain Business Is Meritless 52

1. Relevant Facts . . . . . . . . . . . . . . . . . . . 52

2. Discussion . . . . . . . . . . . . . . . . . . . . . . . 53

POINT V—Even if Certain of Ng’s Claims Had Merit, He Is Not Entitled to Vacatur of His Convictions on All Counts . . . . . . . . . . . . . 56

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58


iv PAGE

TABLE OF AUTHORITIES

Cases:

Arthur Andersen LLP v. United States, 544 U.S. 696 (2005) . . . . . . . . . . . . . . . . . . . . . . . . 49

Barnhart v. Thomas, 540 U.S. 20 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . 17

Brown v. Gardner, 513 U.S. 115 (1994) . . . . . . . . . . . . . . . . . . . . . . . . 20

Brzak v. United Nations, 597 F.3d 107 (2d Cir. 2010) . . . . . . . . . . . . . . . . . 22

Fischer v. United States, 529 U.S. 667 (2000) . . . . . . . . . . . . . . . . . . . . . . . . 26

Henderson v. Kibbe, 431 U.S. 145 (1977) . . . . . . . . . . . . . . . . . . . . . . . . 39

Husted v. A. Philip Randolph Inst., 138 S .Ct. 1833 (2018) . . . . . . . . . . . . . . . . . . . . . . 22

Jackson v. Virginia, 443 U.S. 307 (1979) . . . . . . . . . . . . . . . . . . . . . . . . 41

Johnson v. United States, 520 U.S. 461 (1997) . . . . . . . . . . . . . . . . . . . . . . . . 39

Lloyd v. J.P. Morgan Chase & Co., 791 F.3d 265 (2d Cir. 2015) . . . . . . . . . . . . . . . . . 17

Matal v. Tam, 137 S. Ct. 1744 (2017) . . . . . . . . . . . . . . . . . . . . . . 24


v PAGE

Maynard v. Cartwright, 486 U.S. 356 (1988) . . . . . . . . . . . . . . . . . . . . . 36, 49

McDonnell v. United States, 136 S. Ct. 2355 (2016) . . . . . . . . . . . . . . . . . . passim

Missouri Municipal League, 541 U.S. 125 (2004) . . . . . . . . . . . . . . . . . . . . . 18, 20

Neder v. United States, 527 U.S. 1 (1999) . . . . . . . . . . . . . . . . . . . . . . . 28, 33

Northcross v. Board of Ed. of Memphis City Schools, 412 U.S. 427 (1973) . . . . . . . . . . . . . . . . . . . . . . . . 17

RJR Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090 (2016) . . . . . . . . . . . . . . . . . . . . . . 24

Salinas v. United States, 522 U.S. 52 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . 26

Smith v. City of Jackson, Miss., 544 U.S. 228 (2005) . . . . . . . . . . . . . . . . . . . . . . . . 17

Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002 (2017) . . . . . . . . . . . . . . . . . . . . . . 22

Stichting Ter Behartiging Van de Belangen Van Oudaandeelhouders v. Schreiber, 327 F.3d 173 (2d Cir. 2003) . . . . . . . . . . . . . . . . . 48

United States v. Albertini, 472 U.S. 675 (1985) . . . . . . . . . . . . . . . . . . . . . . . . 24

United States v. Arboleda, 20 F.3d 58 (2d Cir. 1994) . . . . . . . . . . . . . . . . . . . 43


vi PAGE

United States v. Bahel, 662 F.3d 610 (2d Cir. 2011) . . . . . . . 21, 22, 26, 49

United States v. Banki, 733 F. Supp. 2d 404 (S.D.N.Y. 2010) . . . . . . . . . . 53

United States v. Botti, 711 F.3d 299 (2d Cir. 2013) . . . . . . . . . . . . . . 33, 38

United States v. Boyland, 862 F.3d 279 (2d Cir. 2017) . . . . . . . . . . . . . . 30, 35

United States v. Brunshtein, 344 F.3d 91 (2d Cir. 2003) . . . . . . . . . . . . . . . . . . 50

United States v. Carr, 880 F.2d 1550 (2d Cir. 1989) . . . . . . . . . . . . . . . . 28

United States v. Coplan, 703 F.3d 46 (2d Cir. 2012) . . . . . . . . . . . . . . . . . . 40

United States v. Crozier, 987 F.2d 893 (2d Cir. 1993) . . . . . . . . . . . . . . . . . 50

United States v. Desnoyers, 637 F.3d 105 (2d Cir. 2011) . . . . . . . . . . . . . . . . . 57

United States v. Epskamp, 832 F.3d 154 (2d Cir. 2016) . . . . . . . . . . . . . . . . . 15

United States v. Esquenazi, 752 F.3d 912 (11th Cir. 2014) . . . . . . . . . . . . 36, 50

United States v. Fattah, No. 16-4397, —F.3d—, 2018 WL 3764543 (3d Cir. Aug. 9, 2018) . . . . . . . . . . . . . . . . . . . . . . 43


vii PAGE

United States v. Ferriero, 866 F.3d 107 (3d Cir. 2017) . . . . . . . . . . . . . . . . . 30

United States v. Foley, 73 F.3d 484 (2d Cir. 1996) . . . . . . . . . . . . . . . . . . 26

United States v. Gansman, 657 F.3d 85 (2d Cir. 2011) . . . . . . . . . . . . . . . . . . 28

United States v. Hassan, 578 F.3d 108 (2d Cir. 2008) . . . . . . . . . . . . . . 40, 41

United States v. Heras, 609 F.3d 101 (2d Cir. 2010) . . . . . . . . . . . . . . . . . 40

United States v. Hoskins, No. 16-1010, —F.3d—, 2018 WL 4038192 (2d Cir. Aug. 24, 2018) . . . . . . . . . . . . . . . . . . . . . 24

United States v. Jefferson, 289 F. Supp. 3d 735 (E.D. Va. 2017) . . . . . . . . . . 34

United States v. Kay, 359 F.3d 738 (5th Cir. 2004) . . . . . . 34, 36, 54, 56

United States v. Maggio, 862 F.3d 642 (8th Cir. 2017) . . . . . . . . . . . . . . . . 30

United States v. McDermott, 245 F.3d 133 (2d Cir. 2001) . . . . . . . . . . . . . . . . . 41

United States v. McElroy, 910 F.2d 1016 (2d Cir. 1990) . . . . . . . . . . . . . . . . 49

United States v. Moran, 493 F.3d 1002 (9th Cir. 2007) . . . . . . . . . . . . . . . 37


viii PAGE

United States v. Nektalov, 461 F.3d 309 (2d Cir. 2006) . . . . . . . . . . . . . . . . . 28

United States v. Rahman, 189 F.3d 88 (2d Cir. 1999) . . . . . . . . . . . . . . . . . . 41

United States v. Ring, 706 F.3d 460 (D.C. Cir. 2013) . . . . . . . . . . . . . . . . 42

United States v. Ron Pair Enters., 489 U.S. 235 (1989) . . . . . . . . . . . . . . . . . . . . . . . . 22

United States v. Rosen, 716 F.3d 691 (2d Cir. 2013) . . . . . . . . . . . . . . . . . 49

United States v. Rybicki, 354 F.3d 124 (2d Cir. 2003) . . . . . . . . . . . . . . . . . 36

United States v. Sabhnani, 599 F.3d 215 (2d Cir. 2010) . . . . . . . . . . . . . . . . . 37

United States v. Schultz, 333 F.3d 393 (2d Cir. 2003) . . . . . . . . . . . . . . . . . 38

United States v. Sidorenko, 102 F. Supp. 3d 1124 (N.D. Cal. 2015) . . . . . . . . 23

United States v. Silver, 864 F.3d 102 (2d Cir. 2017) . . . . . . . . . . 29, 45, 46

United States v. Skelos, 707 F. App’x 733 (2d Cir. 2017) . . . . . . . . . . . 30, 31

Victor v. Nebraska, 511 U.S. 1 (1994) . . . . . . . . . . . . . . . . . . . . . . . 37, 38

Williams v. Taylor, 529 U.S. 420 (2000) . . . . . . . . . . . . . . . . . . . . . . . . 16


ix PAGE

Statutes, Rules & Other Authorities:

1 U.S.C. § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

12 U.S.C. § 1701y . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

15 U.S.C. § 78dd-2 . . . . . . . . . . . . . . . . . . . . . . . . 34, 52

15 U.S.C. § 78dd-3 . . . . . . . . . . . . . . . . . . . . . . . . 34, 52

16 U.S.C. § 471h . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

18 U.S.C. § 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

18 U.S.C. § 201 . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 30

18 U.S.C. § 666 . . . . . . . . . . . . . . . . . . . . . . . . . . passim

S. Rep. No. 98-225 (1983), reprinted in 1984 U.S.C.C.A.N. 3182 . . . . . . . . . . . . . . . . . . . . . . . . 25


United States Court of Appeals FOR THE SECOND CIRCUIT

Docket No. 18-1725

UNITED STATES OF AMERICA, Appellee,

—v.—

NG LAP SENG, also known as David Ng, also known as David Ng Lap Seng,

Defendant-Appellant, JOHN W. ASHE, FRANCIS LORENZO, also known as Frank Lorenzo, JEFF C. YIN, also known as Yin

Chuan, SHIWEI YAN, also known as Sheri Yan, HEIDI HONG PIAO, also known as Heidi Park,

Defendants.

BRIEF FOR THE UNITED STATES OF AMERICA

Preliminary Statement

Ng Lap Seng appeals from a judgment of conviction entered on June 7, 2018 in the United States District Court for the Southern District of New York following a jury trial before the Honorable Vernon S. Broderick, United States District Judge.


2

Superseding Indictment S5 15 Cr. 706 (VSB) (the “Indictment”) was filed on November 22, 2016, charg-ing Ng in six counts. Count One charged Ng with con-spiracy to pay bribes and gratuities and to violate the Foreign Corrupt Practices Act (“FCPA”), in violation of 18 U.S.C. § 371. Count Two charged Ng with paying bribes and gratuities, in violation of 18 U.S.C. § 666(a)(2). Counts Three and Four charged Ng with violating the FCPA, in violation of 15 U.S.C. § 78dd-2 and 15 U.S.C. § 78dd-3, respectively. Count Five charged Ng with conspiracy to commit money launder-ing, in violation of 18 U.S.C. § 1956(h). Count Six charged Ng with money laundering, in violation of 18 U.S.C. § 1956(a)(2)(A).

On July 27, 2017, after a five-week trial, the jury found Ng guilty of all counts.

On May 11, 2018, Judge Broderick sentenced Ng to 48 months’ imprisonment on each count, to be served concurrently, fined him $1 million, and ordered him to forfeit $1.5 million and to pay restitution to the United Nations (“UN”).

Ng moved the District Court and then this Court for bail pending appeal, each time without success.

Ng is serving his sentence.

Statement of Facts

The Government’s proof at trial overwhelmingly es-tablished that Ng, a real estate owner and developer from Macau, China, paid more than $1 million in bribes to two UN ambassadors (the “Ambassadors”) in return for their agreeing to take action to benefit Ng


3 and his company. The Ambassadors were (1) the late John W. Ashe, a lawful permanent resident of the United States, who was the Permanent Representa-tive of Antigua and Barbuda (“Antigua”) to the UN, and, for one year during the scheme, the elected Pres-ident of the UN General Assembly (the “PGA”), and (2) Francis Lorenzo, a U.S. citizen, who was a Deputy Ambassador of the Dominican Republic to the UN and a special adviser to Ashe as the PGA, and who pleaded guilty to receiving bribes from Ng and assisting Ng in bribing Ashe, and testified against Ng at trial.

Ng paid bribes to Ashe and Lorenzo because he wanted the UN Office for South-South Cooperation (“UNOSSC”) to select his property as a permanent lo-cation for its annual convention (the “Expo”), which was attended by diplomats, UN employees, and mem-bers of the private sector. Ng and his company, the Sun Kian Ip Group (“SKI Group”), were planning to build a multi-billion dollar real estate complex in Macau, and Ng wanted UNOSSC to agree to hold its annual Expo at a conference center within the complex (the “Center”).

As the District Court found (A. 2031), Ng did not just engage in this bribery scheme, but orchestrated and led it.1 As the District Court also found (A. 2029-

————— 1 “Br.” refers to Ng’s brief on appeal; “A.” refers to

the joint appendix; “SPA” refers to the special appen-dix; “Tr.” refers to the trial transcript; “GX” refers to a Government exhibit at trial; and “Dkt.” refers to an en-try on the District Court’s docket.


4 30), Ng agreed to and did (a) pay bribes in multiple ways, including to Ashe’s wife as a purported “consult-ant,” and (b) funnel and launder bribe payments through both (i) South-South News (“SSN”), a non-gov-ernmental organization based in New York, and (ii) a company in the Dominican Republic, pursuant to sham contracts.

To achieve his goal, Ng directed Lorenzo—whom Ng paid tens of thousands of dollars a month—to ob-tain the UN’s formal institutional approval of the Center and the movement of the Expo. Ng and Lorenzo also persuaded Ashe to assist, in return for payments. Ashe and Lorenzo executed a series of discrete tasks in furtherance of this goal, acting in their capacities as ambassadors and as the PGA and adviser to the PGA, respectively.

The tasks included, among other things, (i) obtain-ing an official UN document expressing support for Ng’s project; (ii) revising the official UN document so that it specifically identified Ng’s company as the en-tity that would implement the project; (iii) obtaining a letter from the UNOSSC director endorsing the project and the plan to relocate the Expo; and (iv) obtaining a contract with UNOSSC authorizing SKI Group to host the next Expo. None of these tasks was an end in and of itself; rather, each was to serve the ultimate goal of establishing Ng’s Center as an official UN property and the permanent home of the Expo. Lorenzo and Ashe accomplished their tasks, but they were arrested before they could realize Ng’s ultimate goal.


5 A. The Government’s Case

The Government called 13 witnesses at trial, in-cluding Lorenzo, former SSN employees, and current and former employees of the UN. The Government also introduced emails, financial records, photographs, vid-eos, travel and phone records, and other documentary evidence.

The evidence established that Ng’s goal was to have the UNOSSC designate a property he intended to de-velop in Macau as the new, permanent home of the Expo. (E.g., A. 516, 518-19). Ng, who already owned, among other things, a hotel and casino in Macau, and was developing a luxury apartment complex near the proposed site of the Center, intended the Center to be part of a massive complex, including a hotel, luxury shopping, high-end residences, and a marina. (A. 678-80, 1606-40, 1884-90, 1891-1909; GX 908-F at 1:40 to 10:02, 12:19-14:25).2

The evidence further established that, from the be-ginning of the scheme, Ng wanted not mere general UN support for his plan but rather the UN’s formal, documented commitment. Lorenzo testified, as a coop-erating witness, that Ng stated that “he wanted to have an official document from the United Nations.” (A. 520). Ng “wanted to have a contract.” (A. 525). He specifically “highlighted the importance of having something official from the UN.” (A. 560).

————— 2 GX 908-F, a video, is being provided under sep-

arate cover to the Court.


6

1. Ng Establishes SSN and Starts Paying Lorenzo

In December 2009, Ng enlisted Lorenzo to serve as the president of New York-based SSN, an entity founded and funded by Ng. (A. 540-42). At that time, Lorenzo’s understanding was that SSN would be a “media platform” allowing developing countries to en-gage in so-called “south-south cooperation.” (A. 542). Ng offered to pay Lorenzo $20,000 per month. (A. 545).

2. Ng Begins Paying Ashe’s Wife, and, at Ng’s Direction, the Ambassadors Submit an Official UN Document Supporting Ng’s Project

In October 2010, Ng announced at an SSN board meeting that he wanted to build a “convention and meeting center,” and wanted an official UN document supporting this project. (A. 556, 558, 560, 576-79). The first step, Ng and Lorenzo agreed, was to organize two UN meetings, and then issue a report making it ap-pear that multiple ambassadors were calling on the UN to create the contemplated center. (A. 560, 577).

The first meeting was planned for Macau in April 2011, and the second for New York in September 2011. (A. 577). Lorenzo organized these meetings in his ca-pacity as an ambassador, but did not disclose that Ng was paying him. (A. 578). These meetings were at-tended by various other ambassadors, including Ashe. (A. 579). To induce Ashe to attend the meeting in Macau, Ng agreed to pay for Ashe and his family to take a vacation to New Orleans. (A. 580-81, 1940).


7

Following the April 2011 meeting, Ashe requested that his wife be paid. (A. 581). Ng agreed, and began paying Ashe’s wife as a purported “consultant” to SSN, although she never did any work. (A. 581-82).

Following the New York meeting, Lorenzo and Ashe drafted a document ostensibly on behalf of vari-ous ambassadors, to be signed by Ashe in his capacity as an ambassador, and addressed to the UN Secretary-General, which expressed support for Ng’s project (the “UN Document”)—despite the fact that Ashe had not expressed a prior interest in having the Expo moved to a permanent location, much less to China. (A. 583, 664, 1046-47, 1448-51). With the assistance of a UN official (and without disclosing the payments from Ng), the Ambassadors made the UN Document part of the official General Assembly record, and circulated it to all Member States. (A. 589-90).

The UN Document was not an end in itself. Rather, its purpose was to galvanize support for the Center. (A. 594). In the ensuing months, Lorenzo used the UN Document to gather such support from UN officials and diplomats. (Id.).

3. Ng Offers to Pay Lorenzo $30,000 More Per Month, and, at Ng’s Direction, the Ambassadors Revise the UN Document

In December 2012, Ng summoned Lorenzo to a meeting in China. (A. 597). There, Ng offered Lorenzo $30,000 per month, on top of the $20,000 per month Ng was already paying him. (A. 598). In exchange, Ng directed Lorenzo to focus on obtaining the UN’s formal support for Ng’s project. (A. 598-99, 1056). Specifically,


8 Ng wanted the UN Document to be revised so that it expressly identified Ng’s company as the entity pur-portedly “appointed” to develop the project. (A. 598, 603, 1040). Ng also wanted Lorenzo to obtain a letter from UNOSSC endorsing establishment of the Center and relocation of the Expo. (A. 598, 1061). To paper over this new payment arrangement, Ng entered into a sham contract purporting to hire a Dominican com-pany run by Lorenzo’s brother. (A. 607-09, 1055-57, 1593-96).

In the months following, Ng flew to New York reg-ularly, met with Lorenzo, and pressed him on his work for Ng at the UN. (A. 602-03). For example, on January 5, 2013, Ng’s assistant, Jeff C. Yin, emailed Lorenzo to set up a meeting, noting that “Ng’s top priority” was the “Convention Center project.” (A. 603, 1452). A few weeks later, Yin emailed Lorenzo again, saying, “The urgent matter as of now is that Mr. Ng has given you a deadline to complete the task of obtaining approval for the Convention Center project.” (A. 1453). In the same email, Yin stated that Lorenzo would be receiv-ing a wire of $60,000. (A. 609, 1453).3

————— 3 Notwithstanding Ng’s agreement to provide

monthly payments of $30,000 to Lorenzo, Ng provided such payments on an intermittent basis as Lorenzo made progress on Ng’s directives. (A. 1058-60, 1936-39). On the wire instructions, Ng wrote “LEND” as the purpose of the payments, which was false. (A. 683, 1058, 1936-39).


9

Lorenzo worked with Ashe—as well as the UN offi-cial with whom he had worked before—to revise the UN Document as Ng had directed. (A. 611-12, 1031-32, 1040). Lorenzo made two principal changes to the doc-ument, each based on instructions from Ng: first, he referred to a “Permanent Expo and Meeting Center” (a phrase not in the original document); and, second, he identified Ng’s company, SKI Group, as the entity that would “serve as the representative for the implemen-tation of the permanent Expo and [M]eeting Center.” (A. 615-16, 1461-65). The revised UN Document (i) falsely suggested that others had “recommend[ed]” SKI Group to play this role, when Ng had directed that his company’s name be inserted (A. 1042); (ii) failed to disclose that Ng was paying Lorenzo pursuant to a sham contract, paying Ashe’s wife for a no-show job, and had promised to “support” Ashe when he became the PGA (A. 1048); and (iii) stated, in a footnote, that it was a mere “[r]eissue[ ] for technical reasons” of the original UN Document, falsely suggesting there had been no substantive changes. (A. 1586-89). The revised UN Document replaced the original. (A. 617, 619).

Over the ensuing months, Ng and his co-conspira-tors used the revised UN Document to promote their efforts to establish the Center and to suggest to others, including UN officials, diplomats, and Macau govern-ment officials, that Ng’s company had been appointed by the UN to develop this project. (E.g., A. 1043-44, 1524-25, 1602, 1614-17, 1642).


10

4. Ng Threatens to Cut Off Payments to Lorenzo Unless He Accelerates His Efforts to Establish the Center as an Official UN Property

After obtaining the revised UN Document, Ng’s next priority was to obtain a letter from UNOSSC en-dorsing his plan, including the relocation of the Expo. (A. 630). Ng sent Lorenzo a letter formally requesting his assistance, in his capacity as an ambassador, in bringing this proposal to the attention of UNOSSC. (A. 632, 1062). This request was a charade. Lorenzo al-ready knew what Ng wanted, and was being paid to make it happen, but the letter permitted Lorenzo to bring the matter to a UN body as if Lorenzo had been advised of it by a concerned citizen and objectively agreed with its purported merits. (A. 659, 663, 1032-33).

Lorenzo met with the director of UNOSSC, as well as Ashe, who by that point was the PGA. (A. 662-63). They arranged for a formal request to be made by Lorenzo, in his capacity as an ambassador, to UNOSSC, for a letter endorsing Ng’s proposal. (A. 664).

As these machinations played out, Ng grew impa-tient. On November 19, 2013, Yin emailed Lorenzo: “Please give Ng an update on the status of your work, as he is extremely un-satisfied with the progression. The wire will be on halt until any further progress is made.” (A. 665, 1478). Lorenzo understood Ng to be threatening to cut off the $30,000 payments unless Lorenzo more quickly obtained what Ng wanted from the UN. (A. 665, 1058).


11

At a subsequent meeting in New York, Ng provided $20,000 in cash to Lorenzo, through Yin, for Lorenzo to give Ashe, ostensibly to use in hosting a reception. (A. 665-67). At the same time, Lorenzo continued working to have Ashe pressure the UNOSSC director for a letter endorsing the Center. (A. 669-70, 1481-82).

In January 2014, the UNOSSC director provided the letter, which was backdated to look as if it had been issued shortly after the revised UN Document. (A. 670-72, 1483, 1642). Ng had not sent Lorenzo his monthly $30,000 wire in several months, but soon sent him $110,000. (A. 1936-39).

5. Ng’s Continued Payments to Ashe’s Wife for a No-Show Job

At Ashe’s request, Ng paid Ashe’s wife for a no-show job at SSN for nearly four years, through Ashe’s time as the PGA. (A. 1940). By early 2014, Ng was con-sidering ways to reduce SSN’s expenses. (A. 668, 672). Lorenzo told Ng that while SSN could cut certain con-sultants, “we should continue having Anilla because she’s John [Ashe]’s wife and we needed John to con-tinue his support on the [E]xpo.” (A. 672). Lorenzo tes-tified that it was Ng’s decision to keep Ashe’s wife on the payroll, and this testimony was corroborated by, inter alia, an internal Chinese-language spreadsheet listing SSN’s employees and their roles, which de-scribed Ashe’s wife’s role as “Antigua ambassador’s wife, the wife of president of the UN General Assem-bly.” (A. 673, 1180, 1873, 1874; see also, e.g., A. 1168 (SSN’s bookkeeper never saw Ashe’s wife in the office), 1167 (the bookkeeper was instructed to stop paying


12 Ashe’s wife a few months after Ashe ceased serving at the UN)).

6. Ashe’s Trip as the PGA to Macau, and Ng’s Agreement to Pay Ashe $200,000

In March 2014, at Ng’s request, Ashe, accompanied by members of his PGA staff, UN security, and Lorenzo, took an official trip to Macau. (A. 1237-38, 1485-92). During this trip, Ng told Ashe, “I want your support in developing this center,” and Ashe told Ng that he “wanted to have [Ng’s] support and com-mit[ment] to the promise that Ng made in the past to support [Ashe’s] presidency,” to which Ng responded, “I will, I will.” (A. 681).

A few months later, Ashe again solicited a pay-ment, ostensibly to support a concert. Lorenzo advised Ng to make the payment because “we need John [Ashe] to continue supporting us on the pro bono agreement”—i.e., the contract with UNOSSC that Ng had long wanted. (A. 685). Ng agreed to make a payment of $200,000. (A. 685, 1940). Lorenzo emailed Yin the wire instructions and said that he was “working with [Ashe] to get the things we need,” referring to the UNOSSC contract. (A. 686, 1033-34, 1502).

7. The Pro Bono Agreement and Agreement to Hold the Next Expo in Macau

On June 3, 2014, Ng wired $200,000 to an account designated by Ashe. (A. 686). Approximately 10 days later, the UNOSSC director sent a letter to Lorenzo and Ng stating that, “with the support of the President of the General Assembly, [i.e., Ashe,] we aim to have


13 the agreement ready in about four weeks for your re-view and signature, which among other things, would include the hosting by your organization and [SKI] Group of our UN South-South Development Expo 2015.” (A. 686-87, 1641). This was the Expo that Ng wanted to bring to his Center. (A. 523-24).

In late 2014, Ng obtained the “Pro Bono Agreement Between [UNOSSC] and the [SKI Group] for the Host-ing of the [Expo] and Permanent Meeting Center and other Mutually Agreed Events,” executed by the direc-tor of UNOSSC and Ng. (A. 525, 1033, 1042, 1061, 1641, 1835-48). UNOSSC also agreed to (i) hold a “fo-rum” in Macau in August 2015, and (ii) made plans to hold the Expo the following year, again in Macau, as Ng wanted. (A. 526, 687, 700).

8. The August 2015 Forum

In August 2015, SKI Group hosted a “forum,” run by UNOSSC, analogous to the annual Expo. (A. 696). It was attended by UN ambassadors, government offi-cials, members of civil organizations, and others. (A. 698). At Ng’s direction, Lorenzo worked to develop a so-called “outcome document,” for circulation within the UN, reflecting that participants called for the es-tablishment of a permanent conference center to host the Expo. (A. 701). Lorenzo, with Ashe’s assistance, also worked to incorporate this purported “outcome” into a proposed General Assembly resolution. (A. 701-02, 1829-31, 1832-34; see also A. 1854 (Yin explaining in an internal “road map” that work needed to be done to obtain a General Assembly resolution establishing the Center)).


14

Ng was arrested the following month. (A. 705).

B. The Defense Case

Ng called a witness to discuss financial records, and introduced certain such records and a UN report. (A. 1262-82).

C. The Verdict

The jury commenced deliberations on the morning of July 27, 2017. (A. 1436). Late that afternoon, the jury returned a verdict of guilty on all counts. (A. 1975; Tr. 4336-37).

D. The Sentencing

On May 11, 2018, Judge Broderick sentenced Ng to 48 months’ imprisonment on each count, to be served concurrently, fined him $1 million, and ordered him to forfeit $1.5 million and to pay restitution to the UN.

A R G U M E N T

POINT I

Section 666 Applies to the United Nations

Ng claims that 18 U.S.C. § 666 does not apply to the UN because although the statute prohibits bribery of an agent of an “organization,” in this context, “or-ganization” only means “private organization[ ],” and thus, in Ng’s view, the UN does not qualify. (Br. 17). Ng is wrong.


15 A. Applicable Law

Section 666 prohibits payments offered or made with an intent to influence or reward an agent of “an organization or of a State, local or Indian tribal gov-ernment, or any agency thereof ” that receives federal funding. 18 U.S.C. § 666(a)(2). Because Ng presented his proposed interpretation of “organization” to the District Court (which rejected it in the course of deny-ing Ng’s motion to dismiss (see SPA 19)), and because that interpretation is a question of law, the merits of his claim are reviewed de novo. See, e.g., United States v. Epskamp, 832 F.3d 154, 160 (2d Cir. 2016) (“We re-view questions of statutory interpretation de novo.” (internal quotation marks omitted)).

B. Discussion

There can be no real dispute that the UN is an or-ganization. Certainly, the jury could have so found. (See, e.g., A. 396 (Testimony of former UN official: “The United Nations is an international organization . . . .”)). According to Ng, however, “organization” in Section 666 is limited to what he terms a “private or-ganization[ ],” and thus the UN does not qualify. (Br. 17). But the statute says “organization,” and Congress could have written “private organization” had it intended such a limitation, just as it wrote “State, local or Indian tribal government,” rather than just “government.” Ng is not asking this Court to apply Section 666 as it is written; he is asking this Court to re-write it.

Ng’s principal argument in support of his atextual position is that it is purportedly necessary to interpret


16 Section 666 in the manner that favors him, lest the phrase “State, local or Indian tribal government” be rendered superfluous. (Br. 19-20). This does not make sense. Ng’s argument suggests that this Court has only two choices: (1) interpret “organization” to cover all types of entities, including governments, and thereby render “State, local or Indian tribal govern-ment” meaningless, or (2) interpret “organization” to include only “private bodies,” which, according to Ng, excludes the UN. (Br. 20). This is a false dichotomy. There is an obvious third choice, and one that accords with the statute’s text, structure, and evident purpose:an “organization” is simply a non-government entity.

This interpretation reflects the common meaning of “organization.” See, e.g., Williams v. Taylor, 529 U.S. 420, 431 (2000) (“We give the words of a statute their ordinary, contemporary, common meaning, absent an indication Congress intended them to bear some dif-ferent import.” (internal quotation marks omitted)). It also accords with how “organization” is defined in the title of the United States Code that contains Section 666, that is, Title 18. Title 1 provides in pertinent part: “In determining the meaning of any Act of Congress, unless the context indicates otherwise,” the “word[ ] ‘person’ . . . include[s] corporations, companies, associ-ations, firms, partnerships, societies, and joint stock companies, as well as individuals[.]” 1 U.S.C. § 1. Title 18 provides, in turn: “As used in this title, the term ‘organization’ means a person other than an individ-ual.” 18 U.S.C. § 18. These two provisions, read to-gether, confirm that Congress intended “organization” to have its common meaning, i.e., a non-government


17 entity. And indeed, that is how “organization” is de-fined elsewhere in the same title. See id. § 513(c)(4) (“The term ‘organization’ means a legal entity, other than a government, established or organized for any purpose, and includes a corporation, company, associ-ation, firm, partnership, joint stock company, founda-tion, institution, society, union, or any other associa-tion of persons which operates in or the activities of which affect interstate or foreign commerce.”).

Nothing in the language or structure of Section 666 suggests that Congress intended a different meaning. On the contrary, Congress included definitions for cer-tain terms in Section 666, but not one for “organiza-tion.” See 18 U.S.C. § 666(d). That strongly suggests that it did not intend a uniquely limited definition. See, e.g., Smith v. City of Jackson, Miss., 544 U.S. 228, 260 (2005) (O’Connor, J., concurring in judgment) (“where two statutes use similar language we gener-ally take this as ‘a strong indication that they should be interpreted pari passu’ ” (quoting Northcross v. Board of Ed. of Memphis City Schools, 412 U.S. 427, 428 (1973) (per curiam)) (alteration incorporated)). Section 666’s structure confirms this common-sense interpretation, referring, separately, to an “organiza-tion” and to certain types of “government,” indicating that while the latter is limited to sub-types, the former is not. Cf. Lloyd v. J.P. Morgan Chase & Co., 791 F.3d 265, 271 (2d Cir. 2015) (A “ ‘limiting clause or phrase should ordinarily be read as modifying only the noun or phrase that it immediately follows.’ ” (quoting Barnhart v. Thomas, 540 U.S. 20, 26 (2003)) (ellipsis omitted)).


18

In arguing to the contrary, Ng asserts that, because “generic terms like ‘organization’ and ‘entity’ can carry such broad meanings,” there is a “well established” presumption that neither includes “public bodies.” (Br. 18). Ng grounds this assertion in Nixon v. Missouri Municipal League, 541 U.S. 125 (2004), in which the Supreme Court stated that, “[w]hile an ‘en-tity’ can be either public or private, there is no conven-tion of omitting the modifiers ‘public and private’ when both are meant to be covered.” Id. at 132. But Nixon was talking about whether the word “entity,” standing alone, includes a government— specifically, a local gov-ernment. Id. at 129, 132-33. Nothing in Nixon suggests that the word “entity” (or in this case, “organization”) should be presumed not to include any non-govern-ment entities. Ng’s choosing to refer to the UN as a “quasi-sovereign public international body” (Br. 18) or “quasi-sovereign international government entit[y]” (Br. 21) does not turn the UN into a government under Nixon, or otherwise. Regardless of whether one should presume that the word “organization,” without more, includes a government, this interpretive principle matters only if one accepts Ng’s conflation of the UN with a government. The Court need not and should not do so.4

————— 4 Nor is the proposition for which Ng advocates

grounded in administrable principle. Ng suggests that the only category of organizations his interpretation would exclude is “public international organizations.” (Br. 21). But that phrase is not self-defining. It would appear to include not only the UN, but also numerous


19

Ng also notes that, when Congress intends for a statute to cover governments, it often uses the phrase “public and private organizations,” “public and private agencies,” or variants. (See Br. 19 & n.3 (citing stat-utes)). None of the statutes Ng cites is criminal, none bears a relationship to Section 666, and none has re-motely comparable text.5 That Congress chose to use different language in Section 666 reinforces why Ng’s position is untenable. Under Ng’s own theory (see ————— other entities, with varied locations, missions, and structures, ranging from the World Bank to the Inter-national Committee of the Red Cross. Ng does not ex-plain on what basis a court should determine whether an organization qualifies, when Section 666’s text con-tains no limitation. To the extent that Ng may suggest that the UN, in particular, is sufficiently government-like so as not to be an “organization,” his argument is factual, and Ng did not request a jury instruction de-fining “organization” or argue at trial that the UN was not one. Rather, he took the position that whether the UN is an organization is a pure question of law. (A. 307).

5 To choose two examples: 12 U.S.C. § 1701y cre-ates a foundation to “encourag[e] private and public organizations at the national, community, and neigh-borhood levels to provide increased homeownership,” and 16 U.S.C. § 471h authorizes the Secretary of Agriculture to “receive the cooperation of public and private agencies and organizations and individuals in the development, administration, and operation of the Cradle of Forestry in America.”


20 Br. 19), had Congress chosen to use the phrase “public and private organizations,” Section 666 would cover all government and non-government entities. Congress chose, instead, to limit covered “government” entities only to certain types—but not to limit “organization.”

Contrary to Ng’s suggestion (Br. 21), a conclusion that the UN falls within the unlimited term “organiza-tion” in no way renders meaningless the limitation of “government” entities to a “State, local or Indian tribal government, or any agency thereof.” There is no risk whatsoever that rejecting Ng’s interpretation of the former requires adopting an interpretation of the lat-ter that, as Ng posits, includes “foreign and interna-tional embassies, consulates, and other agencies” (id.). One has nothing to do with the other. See Brown v. Gardner, 513 U.S. 115, 118 (1994) (“Ambiguity is a creature not of definitional possibilities but of statu-tory context[.]” (citation omitted)).

Ng also suggests that this Court should adopt his proposed reading of Section 666, because, in amending a different criminal statute, the FCPA, Congress used, and expressly defined, the phrase “public interna-tional organization.” (Br. 25-26). But this demon-strates, again, that when Congress wishes to be more specific, it knows how to do so. It did not do so in Section 666.6

————— 6 Ng also suggests that because the FCPA crimi-

nalizes bribery of officials at such organizations, Sec-tion 666 must not. (Br. 26). But the FCPA and Section 666 are not co-extensive, it is not unusual for certain


21

For all of these reasons, it is unsurprising that this Court, in United States v. Bahel, 662 F.3d 610 (2d Cir. 2011), under the heading “Application of Section 666 to the U.N.,” rejected the argument that Section 666 does not apply to the UN. Id. at 626. In Bahel, the de-fendant, a UN official, claimed that federal payments to the UN do not qualify as payments under a “federal program.” Bahel, 662 F.3d at 629. Like Ng’s claim, Bahel’s claim rested on the UN being an international organization, the status of which is governed, in part, by an international agreement. See id. The Court re-jected that argument, explaining that Congress allo-cated money to the UN, “[t]he Government has a legit-imate and significant interest in prohibiting . . . acts of bribery being perpetuated at the organization,” and the Court saw “no principled basis on which to distin-guish congressional authorization of the payment [of] U.N. dues from federal monies flowing to [other kinds of] non-governmental organizations.” See id. at 629, 630 (internal quotation marks omitted). So too here.7

Ng asserts to the contrary, arguing that the con-struction of Section 666 that he favors is necessary to avoid “international conflict,” because, unlike the

————— conduct (such as that of Ng) to violate more than one criminal prohibition, and Section 666’s language is un-ambiguous.

7 That the defendant in Bahel appears not even to have considered disputing the UN’s qualification as an “organization” only underscores the novelty and tenuousness of Ng’s argument.


22 FCPA, Section 666 applies to “both the payer and the recipient of a bribe,” and thus applies both to Ng and to ambassadors (such as Lorenzo) and other officials (such as Bahel). (Br. 22 (emphasis in original)). While Ng’s description of the statute’s reach is correct, his re-quest that the Court counter-textually limit that reach should be rejected. “[T]his case presents a question of statutory interpretation, not a question of policy.” Husted v. A. Philip Randolph Inst., 138 S .Ct. 1833, 1848 (2018); cf., e.g., Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002, 1010 (2017) (“This is not a free-ranging search for the best copyright policy, but rather depends solely on statutory interpretation.” (in-ternal quotation marks omitted)). Where, as here, a “statute’s language is plain, the sole function of the courts is to enforce it according to its terms.” United States v. Ron Pair Enters., 489 U.S. 235, 241 (1989) (internal quotation marks omitted).

In any event, as this Court recognized in Bahel, a comprehensive legal framework exists to afford im-munity from prosecution to diplomats, subject to vari-ous conditions and limitations. See Bahel, 662 F.3d at 623-26 (discussing, inter alia, the Convention on Priv-ileges and Immunities of the United Nations and the Diplomatic Relations Act). The application of this framework—unlike the categorical carve-out that Ng seeks to have this Court read into Section 666—re-quires a fact-based analysis, including whether the ac-tor is a United States national, and permits the perti-nent entity or country to waive any immunity that might attach. See, e.g., Bahel, 662 F.3d at 623-24; Brzak v. United Nations, 597 F.3d 107, 113 (2d Cir. 2010); United Nations Manual of Protocol, Section VI


23 (“[D]iplomatic privileges and immunities are not granted to members of diplomatic personnel who are citizens or permanent residents of the United States.”); available at https://protocol.un.org/dgacm/pls/site.nsf/xpManual.xsp.

In short, Congress has already accounted for Ng’s professed concern for international “comity.” (Br. 23). Congress has simply not done so in a manner that cat-egorically prohibits the prosecution of a businessman (Ng) bribing a U.S. citizen (Lorenzo) and a lawful per-manent resident (Ashe), using a U.S.-based entity and the U.S. financial system (e.g., A. 512-15) and through multiple meetings in the United States (e.g., A. 516), with the assistance of a U.S. citizen (Yin), to take ac-tions in the United States in connection with the work of an organization, headquartered in the United States (e.g., A. 530), that receives billions of dollars annually in federal funding (A. 490).8 Nor has Congress done so

————— 8 In describing the facts of this case (Br. 22-23),

Ng omits all connections between his conduct and the United States. Contrary to his conclusory suggestion (Br. 23), this case is nothing like United States v. Sidorenko, 102 F. Supp. 3d 1124 (N.D. Cal. 2015). In Sidorenko, charges were brought against foreign na-tionals for allegedly bribing a foreign national in a for-eign country, without any conduct in (or even wires passing through) the United States, thus presenting the question of whether Section 666 applies “extrater-ritorially.” Id. at 1127. There is nothing extraterrito-rial about the application of Section 666 here. On the contrary, a “prosecution on these facts does not evince


24 in a manner that categorically prohibits the prosecu-tion of the U.S. citizen (Lorenzo) for receiving those bribes and helping to bribe the lawful permanent resi-dent (Ashe). Ng is entitled to disagree with Congress’s policy judgment. He is not entitled to have a statute applied in a manner that displaces that judgment.

Finally, Ng contends that the legislative history of Section 666 favors his interpretation. (Br. 23-24). Be-cause “the statutory language” of Section 666 “is un-ambiguous and the statutory scheme is coherent and consistent,” the Court should not “resort to legislative history.” Matal v. Tam, 137 S. Ct. 1744, 1756 (2017); see also, e.g., United States v. Albertini, 472 U.S. 675, ————— an effort by the United States to ‘rule the world,’ but rather an effort to enforce American law against those who deliberately seek to undermine it.” United States v. Hoskins, No. 16-1010, —F.3d—, 2018 WL 4038192, at *29 (2d Cir. Aug. 24, 2018) (Lynch, J., concurring) (quoting RJR Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090, 2100 (2016)). Ng also asserts that the Center allegedly would have been used by the UN at “no cost” to it. (Br. 22-23). That assertion is legally irrelevant, because there is no requirement that a bribe payor de-prive an organization of a quantifiable sum; specula-tive, because Ng was arrested before the Center was built; and misleading, because the UN would have in-curred meaningful costs in transporting personnel to and running the Expo in Macau, and the hotel to be built around the Center was not a charitable endeavor to be used without charge by conference attendees. (See, e.g., A. 1606-40).


25 680 (1985) (“[O]nly the most extraordinary showing of contrary intentions in the legislative history will jus-tify a departure from [a statute’s] language.” (internal quotation marks omitted)). In any event, the legisla-tive history of Section 666 does not favor Ng. Ng cites a Senate report describing the statute as intended “to protect ‘federal monies that are disbursed to private organizations or state and local governments.’ ” (Br. 23 (quoting S. Rep. No. 98-225, at 369 (1983) (“Senate Re-port”), reprinted in 1984 U.S.C.C.A.N. 3182, 3510)) (emphasis added by Ng)). In context, it is apparent that this line is merely using shorthand to distinguish government entities from non-government entities, not describing a limitation on the coverage of the lat-ter. On the very same page, the Senate Report ex-plains:

[T]here is no statute of general applica-bility in this area, and thefts from other organizations or governments receiving Federal financial assistance can be pros-ecuted under the general theft of Federal property statute, 18 U.S.C. 641, only if it can be shown that the property stolen is property of the United States. In many cases, such prosecution is impossible be-cause title has passed to the recipient be-fore the property is stolen, or the funds are so commingled that the Federal char-acter of the funds cannot be shown. This situation gives rise to a serious gap in the law, since even though title to the monies may have passed, the Federal Govern-ment clearly retains a strong interest in


26

assuring the integrity of such program funds.

Senate Report at 369, U.S.C.C.A.N. at 3510. Nothing in the Senate Report suggests the “other organiza-tions” to which it refers excludes the UN or any other international organization, notwithstanding the bil-lions of dollars a year that they receive in federal fund-ing. On the contrary, the Senate Report explains that the purpose of the legislation is to “protect the integ-rity of the vast sums of money distributed through Federal programs.” Senate Report at 370, 1984 U.S.C.C.A.N. at 3511. Both the Supreme Court and this Court have recognized that the statute was broadly written to accomplish this goal. See Fischer v. United States, 529 U.S. 667, 678 (2000) (“Coupled with the broad substantive prohibitions of subsection (a), the language of subsection (b) reveals Congress’ ex-pansive, unambiguous intent to ensure the integrity of organizations participating in federal assistance pro-grams.”); Salinas v. United States, 522 U.S. 52, 56 (1997) (Section 666 has “expansive, unqualified lan-guage, both as to the bribes forbidden and the entities covered” (emphasis added)); United States v. Foley, 73 F.3d 484, 490 (2d Cir. 1996). This Court has also rec-ognized that Congress has evinced an interest in “en-suring that any money contributed to the U.N. is re-sponsibly expended and accounted for.” Bahel, 662 F.3d at 627.

In sum, the text, structure, purpose, and legislative history of Section 666 are all in accord. “Organization”


27 has a common, straightforward meaning: a non-gov-ernment entity. Ng’s claim that the UN is categorically excluded should be rejected.

POINT II

The Jury Was Properly Instructed Under McDonnell

Ng next claims that the District Court’s jury charge did not comport with McDonnell v. United States, 136 S. Ct. 2355 (2016). First, he asserts the McDonnell in-struction the District Court gave, which applied to Section 666, was flawed. (Br. 41-43). Second, he as-serts that the District Court erred in declining to give such an instruction with respect to the FCPA. (Br. 34-35, 41). These claims are meritless.

McDonnell does not apply to either the Section 666 or the FCPA counts. In any event, though not required, the District Court gave an instruction with respect to Section 666 that fully comported with McDonnell. Be-cause that is so, and the Government presented the same evidence with respect to the Section 666 counts as it did with respect to the FCPA counts, any alleged error in declining to repeat the instruction with re-spect to the FCPA counts was obviously harmless.

A. Applicable Law

1. Jury Instruction Challenges

A defendant challenging a jury instruction must demonstrate (1) he requested a charge that “accurately represented the law in every respect” and (2) the charge delivered, when viewed as a whole, was both


28 erroneous and prejudicial. United States v. Nektalov, 461 F.3d 309, 313-14 (2d Cir. 2006). In reviewing in-structions, this Court does not look only to the partic-ular words or phrases challenged by the defendant, but must “review the instructions as a whole to see if the entire charge delivered a correct interpretation of the law.” United States v. Carr, 880 F.2d 1550, 1555 (2d Cir. 1989).

Even where a defendant requests a proper instruc-tion that was not given, reversal is not warranted if the error was harmless. See Fed. R. Crim. P. 52(a); United States v. Gansman, 657 F.3d 85, 91-92 (2d Cir. 2011). Thus, a conviction should be affirmed despite instructional error if it “appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Neder v. United States, 527 U.S. 1, 15 (1999) (internal quotation marks omitted).

2. McDonnell v. United States

Before trial in this case, the Supreme Court, in McDonnell, considered the definition of “official act” under the general federal bribery statute, 18 U.S.C. § 201. That statute makes it a crime for a public official corruptly “to receive or accept anything of value” in re-turn for being “influenced in the performance of any official act,” 18 U.S.C. § 201(b)(2), with “official act,” in turn, defined as “any decision or action on any ques-tion, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such offi-cial’s official capacity, or in such official’s place of trust or profit,” id. § 201(a)(3). Construing this language in


29 light of constitutional vagueness concerns, the Supreme Court adopted a two-part test for what qual-ifies as an “official act” under Section 201:

First, “[t]he ‘question, matter, cause, suit, proceed-ing or controversy’ must involve a formal exercise of governmental power that is similar in nature to a law-suit before a court, a determination before an agency, or a hearing before a committee.” McDonnell, 136 S. Ct. at 2372. This question, matter, cause, suit, pro-ceeding or controversy “must also be something spe-cific and focused that is ‘pending’ or ‘may by law be brought’ before a public official.” Id.

Second, at least where the defendant is the alleged bribe recipient, he “must make a decision or take an action on that ‘question, matter, cause, suit, proceed-ing or controversy,’ or agree to do so. Such an action or decision may include using [an] official position to ex-ert pressure on another official to perform an ‘official act,’ or to advise another official, knowing or intending that such advice will form the basis for an ‘official act’ by another official.” Id. However, “[w]ithout more, ‘set-ting up a meeting, talking to another official, or organ-izing an event (or agreeing to do so),’ are not official acts.” United States v. Silver, 864 F.3d 102, 117 (2d Cir. 2017) (quoting McDonnell, 136 S. Ct. at 2372), cert. denied, 138 S. Ct. 738 (2018).

In adopting this test, the McDonnell Court ex-pressly affirmed that “a public official is not required to actually make a decision or take an action. [I]t is enough that the official agree to do so. The agreement need not be explicit, and the public official need not


30 specify the means that he will use to perform his end of the bargain.” McDonnell, 136 S. Ct. at 2370-71.

3. The Application of McDonnell to Section 666

In United States v. Boyland, 862 F.3d 279 (2d Cir. 2017), cert. denied, 138 S .Ct. 938 (2018), this Court affirmed Section 666 convictions over a challenge that the district court failed to instruct the jury in accord with McDonnell. The Court explained that Section 666 “is more expansive than § 201, in which ‘official acts’ are limited to acts on pending ‘questions, matters, causes, suits, proceedings, or controversies.’ ” Boyland, 862 F.2d at 291 (quoting 18 U.S.C. § 201(a)(3); altera-tions incorporated). Section 666, by comparison, “pro-hibits individuals from ‘soliciting . . . anything of value from any person, intending to be influenced or re-warded in connection with any business, transaction, or series of transactions of an organization, govern-ment, or agency.’” Id. (quoting 18 U.S.C. § 666(a)(1)(B); emphases in Boyland; alterations incorporated). Ac-cordingly, the Court held, “[w]e do not see that the McDonnell standard applied to these counts.” Id.9

In United States v. Skelos, 707 F. App’x 733, 738 (2d Cir. 2017) (summary order), the Court reached a —————

9 Other courts are in accord. See, e.g., United States v. Maggio, 862 F.3d 642, 646 (8th Cir.) (“McDonnell had nothing to do with § 666 . . . .” (cita-tion omitted)), cert. denied, 138 S. Ct. 437 (2017); see also United States v. Ferriero, 866 F.3d 107, 128 (3d Cir. 2017), cert. denied, 138 S. Ct. 1031 (2018).


31 different conclusion, noting that, in Boyland, the Section 666 “counts were not charged in terms of offi-cial acts,” but the Skelos jury was charged on a theory “based on ‘official acts.’ ” The Court applied McDonnell, and vacated the defendants’ convictions so they could be re-tried under jury instructions that comported with the decision. Id.

B. Relevant Facts

Before trial, Ng requested the jury be charged in accord with McDonnell with respect to both the Section 666 and the FCPA counts. (A. 312-13, 327, 339). The Government took the position that McDonnell did not apply, but requested that, though not required, the District Court instruct the jury that the requisite “transaction” under Section 666 “does not include setting up a meeting, hosting an event, talking to another official, or sending a subordinate to a meet-ing, without more.” (A. 229).

While acknowledging Boyland, the District Court decided to provide a McDonnell instruction with re-spect to Section 666. (A. 1309). The District Court in-structed:

The government must prove that the de-fendant acted with the intent to obtain “an official act” from the agent or agents of the United Nations to whom he gave or agreed to give or offered something of value. An official act is a decision or action that must involve a formal exercise of power. It also must be specific and focused on


32

something that is pending or may by law or rule be brought before the agent. The decision or action may include using the agent’s official position to exert pressure on another official to perform an official act or to advise another official, knowing or intending that such advice will form the basis for an official act by another of-ficial. Expressing support for an idea, setting up a meeting, talking to another official, or organizing an event or agreeing to do so without more does not fit that defini-tion of official act.

(A. 1422). The District Court declined to provide a sim-ilar instruction with respect to the FCPA. (See A. 1425-27).

C. Discussion

1. McDonnell Does Not Apply

The Court need not decide whether McDonnell ap-plies, because the District Court gave an instruction with respect to Section 666 that comported in all re-spects with that decision, as discussed below.10 But to —————

10 In a footnote, without citation or elaboration, Ng suggests that, even if Court concludes that the District Court’s McDonnell instruction with respect to the Section 666 counts was correct, the Court must de-cide whether McDonnell applies to the FCPA counts, and, if it does, the jury’s verdicts on those counts must


33 the extent that the Court reaches the question, it should hold that McDonnell does not apply.

With respect to Section 666, because this case in-volves bribes in connection with a non-governmental organization, while the District Court charged the jury based on a theory of “official acts,” those acts could not have involved a “formal exercise of governmental power,” and were not undertaken by a “public official,” McDonnell, 136 S. Ct. at 2372. Given these factors, to the extent that it reaches the question, the Court should conclude that McDonnell does not apply to the Section 666 counts, as it held in Boyland.11

With respect to the FCPA, its language is more ex-pansive not only than that of Section 201, but also than

————— be vacated. (Br. 41 n.8). That suggestion need not be considered, see United States v. Botti, 711 F.3d 299, 313 (2d Cir. 2013), and in any event is baseless. That the District Court’s McDonnell instruction was correct (or that any alleged error in it was harmless) in this case necessarily means that a failure to repeat that in-struction “did not contribute to the verdict obtained,” Neder, 527 U.S. at 15.

11 At a minimum, McDonnell’s description of an “official act” cannot apply wholesale to cases involving non-governmental organizations, because they neither exercise “governmental power” nor make decisions “similar in nature to a lawsuit before a court, a deter-mination before an agency, or a hearing before a com-mittee,” McDonnell, 136 S. Ct. at 2372 (internal quo-tation marks omitted).


34 that of Section 666. The FCPA prohibits covered indi-viduals from providing, offering, promising, or author-izing the provision of “anything of value” to “any for-eign official” for the “purposes” of:

influencing any act or decision of such foreign official in his official capacity, inducing such foreign official to do or omit to do any act in violation of the lawful duty of such official, or securing any improper advantage[.]

15 U.S.C. §§ 78dd-2(a)(1)(A), 78dd-3(a)(1)(A). These provisions bear no resemblance to Section 201. And one of them—subsection (iii)—would be rendered meaningless were McDonnell to apply, because an-other—subsection (i)—already prohibits corrupt pay-ments intended to “influenc[e] any act or decision of such foreign official in his official capacity.” These pro-visions are not redundant. See United States v. Kay, 359 F.3d 738, 754 (5th Cir. 2004) (The FCPA “prohibits payments to foreign officials not just to buy any act or decision, and not just to induce the doing or omitting of an official function . . . but also the making of a pay-ment to such a foreign official to secure an ‘improper advantage’ that will assist in obtaining or retaining business.” (citations omitted)); see also United States v. Jefferson, 289 F. Supp. 3d 735 (E.D. Va. 2017) (an “official act” within the meaning of McDonnell is not an element of an FCPA conspiracy).

Contrary to Ng’s contention (Br. 34), the constitu-tional concerns described in McDonnell are not a basis to impose a requirement contained nowhere in the text


35 of the FCPA, and that, indeed, is irreconcilable with that text. Although the Supreme Court in McDonnell explained that the “expansive interpretation” of “offi-cial act” proffered by the Government in that case could raise constitutional concerns, see 136 S. Ct. at 2372, none of those concerns is meaningfully present—if at all—in this case, particularly with respect to the FCPA.

First, there is no concern here, as in McDonnell, of the statute being applied in a way that interferes with the ability of an elected official to respond to the needs of constituents. Cf. McDonnell, 136 S. Ct. at 2372. Ng, a businessman, was not a “constituent” of the UN am-bassadors he bribed. Nor are federalism concerns im-plicated here, because the FCPA does not apply to of-ficials, but only to bribe payors. Cf. id. at 2373 (ex-plaining that an expansive interpretation of “official act” would “raise[ ] significant federalism concerns” be-cause it would risk “involv[ing] the Federal Govern-ment in setting standards of good government for local and state officials” (internal quotation marks omit-ted)). Finally, for the same reason, the Supreme Court’s concern about subjecting officials to prosecu-tion “without fair notice,” id., has no bearing on the FCPA, which, again, does not apply to officials.

This Court has declined to apply McDonnell to other statutes based on asserted vagueness concerns, see Boyland, 862 F.3d at 291, and Ng identifies no case, in the multiple-decade history of the FCPA, which has held that the FCPA is unconstitutionally vague, de-spite multiple such challenges by defendants. Busi-nesspeople, like Ng, have long been on notice that the


36 statute “appl[ies] broadly to payments intended to as-sist the payor, either directly or indirectly, in obtaining or retaining business,” Kay, 359 F.3d at 755.

It bears emphasizing, in this regard, that a vague-ness challenge is an as-applied challenge. See Maynard v. Cartwright, 486 U.S. 356, 361 (1988) (“Ob-jections to vagueness under the Due Process Clause rest on the lack of notice, and hence may be overcome in any specific case where reasonable persons would know that their conduct is at risk.”); United States v. Rybicki, 354 F.3d 124, 129 (2d Cir. 2003). Particularly in view of the evidence presented at trial, including Ng’s payments to Lorenzo through sham contracts and to Ashe’s wife for a no-show job, there can be no rea-sonable argument that Ng did not know his conduct was prohibited. Cf., e.g., United States v. Esquenazi, 752 F.3d 912, 929 (11th Cir. 2014) (rejecting claim that FCPA was vague as applied).

2. In Any Event, the District Court’s Instruction Comported with McDonnell

Ng’s challenge to the District Court’s McDonnell in-struction is to that portion in which the jury was charged: “An official act is a decision or action that must involve a formal exercise of power. It also must be specific and focused on something that is pending or may by law or rule be brought before the agent.” (Br. 42 (citing A. 1422)). Ng claims that this instruc-tion “hopelessly conflated McDonnell’s two distinct re-quirements. Instead of requiring the jury to identify a decision or action taken on a specific and focused mat-ter, it essentially told the jury that it could convict so


37 long as it identified a specific action that was ‘focused on’ virtually anything that was pending or that the UN might one day consider.” (Br. 42 (emphases in origi-nal)). This claim rests on a strained and selective read-ing. Only by ignoring the phrase “[i]t also,” which plainly referred to “official act” and thus to “a decision or action” involving “a formal exercise of power,” could a juror have thought it permissible to convict Ng for paying a bribe for “virtually anything”—and only then if the juror stopped listening, because the District Court also instructed that, “[e]xpressing support for an idea, setting up a meeting, talking to another official, or organizing an event or agreeing to do so without more does not fit that definition of official act” (A. 1422). See United States v. Sabhnani, 599 F.3d 215, 237 (2d Cir. 2010) (“We emphatically do not re-view a jury charge on the basis of excerpts taken out of context, but in its entirety[.]” (internal quotation marks omitted)). Nor would it make sense to speak of a decision or action involving a “formal exercise of power” and that was “specific and focused,” but was on a matter that was not itself “specific and focused,” as Ng posits the District Court’s instruction meant (Br. 42). No reasonable juror would have interpreted the instruction in such an odd way. See Victor v. Ne-braska, 511 U.S. 1, 6 (1994) (“[T]he proper inquiry is not whether the instruction could have been applied in an unconstitutional manner, but whether there is a reasonable likelihood that the jury did so apply it.” (in-ternal quotation marks omitted; emphasis in origi-nal)); cf. United States v. Moran, 493 F.3d 1002, 1010 (9th Cir. 2007) (rejecting claim resting on a “careful


38 picking apart of the instructions’ wording” that “re-veal[ed] minor ambiguity”; the standard is not whether wording is “perfect when examined under a microscope”).

The only plausible reading of the District Court’s instruction is that, as McDonnell described, to find that Ng paid for an “official act,” the jury needed to find that he paid to obtain a “decision or action” (1) in-volving a “formal exercise of power” (2) on something “specific and focused.” The question before this Court is not whether the challenged instruction “precisely quote[d] language suggested by Supreme or Appellate Court precedent,” but, rather, “whether considered as a whole, the instruction[ ] adequately communicated the essential ideas to the jury.” United States v. Schultz, 333 F.3d 393, 413-14 (2d Cir. 2003); see also Victor, 511 U.S. at 5. The instruction here did so.12

————— 12 In a footnote (Br. 43 n.9), Ng asserts that the in-

struction was flawed in two additional respects. This Court need not consider these assertions. See Botti, 711 F.3d at 313. In any event, they are meritless. First, Ng states that the jury should have been instructed that the pertinent matter “must be ‘similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee.’ ” (Br. 43 n.9 (quoting McDonnell, 136 S. Ct. at 2372)). But non-gov-ernmental organizations are not governments. Second, Ng claims that it was “gratuitous[ ]” to “instruct[ ] that ‘setting up a meeting, hosting an event, or making a phone call . . . could serve as evidence of ’ an agreement to take an official act.” (Id. (quoting A. 1422)). But this


39

In any event, any arguable lack of clarity in the in-struction was harmless, because the evidence that Ng paid bribes in connection with a “specific and focused” matter—the establishment of the Center as an official UN venue and the permanent location of the Expo—was overwhelming, as discussed below. Indeed, at

————— instruction was taken directly from McDonnell, 136 S. Ct. at 2371. Ng also appears to suggest that the District Court should have instructed that certain ac-tions in this case were not official. (Br. 44). Ng did not request such an instruction. His suggestion is thus subject to review for plain error only. See Johnson v. United States, 520 U.S. 461, 464 (1997). “It is the rare case in which an improper instruction will justify re-versal of a criminal conviction when no objection has been made in the trial court.” Henderson v. Kibbe, 431 U.S. 145, 154 (1977). This is not such a case. The in-struction Ng hypothesizes would have usurped the role of the jury. Nor is there a reasonable basis to conclude that the lack of such an instruction affected Ng’s sub-stantial rights. Contrary to Ng’s conclusory assertion (Br. 44 n.10), the record indicates that the jury did not convict based solely on Ashe’s letters, which are the principal actions that Ng suggests the jury should have been told did not qualify. The jury asked whether these were the only such letters in the record, the Court answered, without objection, that they were, and the jury deliberated further. (A. 1439; Tr. 4333-34). Moreover, as discussed below, the evidence that Ng paid for what was indisputably official action was overwhelming.


40 trial, Ng did not dispute that was his goal. (See, e.g., A. 1351 (Defense summation: “He came to embrace the idea of a permanent center in Macau.”), 1379). Ng simply disputed he paid bribes to achieve that goal. (See, e.g., A. 1355 (Defense summation: Ng “sends a salary to Lorenzo for five years as president of South-South News, . . . [and] separate payments, for Terra Trading as [a] consultant to work specifically on the Macau conference center.”), 1357 (Defense summation: Ng had no need “to bribe” Ashe to support the “perma-nent center,” because Ashe allegedly already sup-ported it.), 1358). There is no likelihood whatsoever that the jury convicted Ng for paying bribes in connec-tion with anything else.

POINT III

There Was Sufficient Evidence to Prove Ng Paid Bribes for Official Action

Next, the Court should reject Ng’s insufficiency claim as it relates to evidence of an official act. (Br. 36-40). Even if McDonnell applies, there was ample evi-dence to support the jury’s verdict that Ng was seeking an official act—and indeed, obtained at least one in his favor.

A. Applicable Law

“[A] defendant challenging the sufficiency of the ev-idence ‘bears a heavy burden,’ as the standard of re-view is ‘exceedingly deferential.’ ” United States v. Coplan, 703 F.3d 46, 62 (2d Cir. 2012) (quoting United States v. Heras, 609 F.3d 101, 105 (2d Cir. 2010); United States v. Hassan, 578 F.3d 108, 126 (2d Cir.


41 2008)). This Court “view[s] the evidence in the light most favorable to the government, crediting every in-ference that could have been drawn in the govern-ment’s favor, and deferring to the jury’s assessment of witness credibility and its assessment of the weight of the evidence.” Id. (internal quotation marks omitted). The Court has emphasized that “the task of choosing among competing, permissible inferences is for the [jury], not for the reviewing court.” United States v. McDermott, 245 F.3d 133, 137 (2d Cir. 2001). Accord-ingly, “[a]lthough sufficiency review is de novo, [the Court] will uphold the judgments of conviction if ‘any rational trier of fact could have found the essential el-ements of the crime beyond a reasonable doubt.’ ” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original)). The Court “must consider the evidence as a whole, and not as individual pieces, and remember that the jury is entitled to base its decision on reasonable inferences from circumstantial evi-dence.” United States v. Rahman, 189 F.3d 88, 122-23 (2d Cir. 1999).

B. Discussion

Ng’s sufficiency argument fails for three independ-ent reasons: (1) as discussed above, McDonnell does not apply; (2) the evidence in any event overwhelm-ingly established that Ng bribed the Ambassadors with the intent to secure the official act of moving the Expo permanently to Ng’s Center in Macau; and (3) the evidence also overwhelmingly established that Ng was able, before his arrest, to secure at least one intermediate official act—namely, execution by the UN of the Pro Bono Agreement.


42

Ng’s sufficiency challenge rests principally on the baseless suggestion that the Government was required to prove Ng actually obtained an official act before he was arrested. (See Br. 36-39). The Government was not so required. The pertinent question, as the District Court instructed the jury—without objection, and in accord with Ng’s proposed instructions (A. 307, 312-13)—was whether Ng offered or gave something of value intending to obtain an official act (A. 1422), not whether he succeeded.13 And the evidence indisputa-bly proved that he did: he paid bribes in order to secure the UN’s formal commitment to permanently move the Expo. Contrary to Ng’s cherry-picked excerpts (Br. 43), this was the consistent theory and theme of the Gov-ernment at trial. (See, e.g., A. 375 (Government open-ing: “Now, the defendant was arrested before he could host that convention and before he could build his UN center, but he was well on his way. You will see that each of the actions that these ambassadors took on his behalf moved the defendant along a path to his ulti-mate goal of a UN center in Macau. That path was paved with bribes.”), 1331 (Government closing: “[A]s we told you during opening statements, the defend-ant’s path to building the United Nations conference center was a path that was paved with bribes.”), 1344 (Government closing: “So what has the defendant got-

————— 13 Nor need those to whom Ng paid money have

had to agree to take action. The only question is what Ng intended. See, e.g., United States v. Ring, 706 F.3d 460, 467-68 (D.C. Cir. 2013).


43 ten for his bribes? It’s all right here. The UN docu-ment, the [UNOSSC] letters, Ashe’s visit to Macau, and a pro bono agreement. At this point the pathway was paved.”)).14 And the evidence supporting the the-ory was more than ample. It included not just Ng’s own words, threats to halt paying Lorenzo, contemporane-ous emails, and contemporaneous letters, but also the

————— 14 That the Government argued to the jury certain

facts that did not—in Ng’s view—in and of themselves rise to the level of official acts was neither objectiona-ble nor contradictory of the Government’s view that Ng’s ultimate goal was the UN’s agreement to move the Expo permanently to his Center. (See Br. 43 (sug-gesting the Government should not have argued that “the ‘main question’ was simply whether Ng intended Ashe and Lorenzo to ‘take action in [their] official ca-pacity’ ” or said Ng “wanted Lorenzo ‘to act in his ca-pacity as an ambassador’ ” (citations omitted)). Nota-bly, Ng did not object to the statements to which he points, and the law does not require that all arguments in a jury address (by either side) capture all aspects of the relevant law. See, e.g., United States v. Arboleda, 20 F.3d 58, 61 (2d Cir. 1994). Contrary to Ng’s sugges-tion (Br. 44), United States v. Fattah, No. 16-4397,—F.3d—, 2018 WL 3764543 (3d Cir. Aug. 9, 2018), offers no support for his position. Fattah vacated convictions obtained before McDonnell, not under jury instruc-tions in accord with it, and not under the statutes in this case.


44 fact that Ng continued to agree to pay the Ambassa-dors even after Ng obtained the intermediate actions that he now asserts were insufficient. The jury was en-titled to find that that this was precisely because Ng wanted the Ambassadors to continue to work towards Ng’s ultimate and specific goal.

In any event, there was ample evidence that Ng not only intended to obtain official action (which is all that is required), but obtained such action before he was ar-rested. Even assuming arguendo that no rational jury could find that any of the letters signed by Ashe or the UNOSSC director qualified as an official action—an assumption that is dubious in light of the evidence at trial about the role that such documents play in the UN system, the limitations on who can submit such documents, and the position of the PGA (see, e.g., A. 418, 423, 424-25, 426-30), all of which Ng ignores in treating such materials as akin to letters signed by an official with “government power” (Br. 38)—there is no reasonable question that the jury could have found, at a minimum, that the Pro Bono Agreement was such an action. In that agreement—a written contract, com-plete with, among other things, definitions, warran-ties, an indemnification clause, a discussion of intellec-tual property rights, and a provision for the settlement of disputes, executed by the UNOSSC director and Ng—Ng’s company was authorized to host the 2015 Expo and agreed to provide a venue for it, and UNOSSC agreed to take several steps, including designing and planning the event, identifying and inviting partici-pants, and evaluating the event afterwards. (A. 1835-48).


45

Ng’s suggestion that this contract could not qualify as an “official act” because it left certain issues for fu-ture negotiation (Br. 39) has no basis in law or logic. A decision by the UN whether and under what terms to enter into a contract regarding the hosting of an event is certainly “something specific and focused that is ‘pending’ or ‘may by law be brought’ before” the UN. McDonnell, 136 S. Ct. at 2372. It is certainly also a de-cision or act “on” that specific and focused matter. Id. Indeed, it is more substantive than other actions this Court has concluded a jury could find constitute an of-ficial act. See Silver, 864 F.3d at 121 (a state procla-mation honoring a doctor “was a clear formal exercise of government power on a specific matter”).

Ng’s alternative argument, that “the evidence at trial did not support the government’s theory that Ng obtained that agreement through bribery” (Br. 39), is too conclusory to warrant serious consideration and in any event baseless. There was overwhelming evidence that Ng paid both Lorenzo and Ashe to, among other things, obtain a contract with UNOSSC, including Ng’s own words (see, e.g., A. 525 (Ng “wanted to have a contract”)); a contemporaneous email in which Lorenzo told Yin to ensure that Ng wired Ashe money because Lorenzo was “working with [Ashe] to get the things we need,” referring specifically to the Pro Bono Agreement (A. 1502); and a contemporaneous letter from the UNOSSC director—transmitted just days af-ter Ng wired $200,000 to Ashe’s account—providing assurance that the Pro Bono Agreement would be forthcoming now that it had “the support of the [PGA],” that is, Ashe (A. 686-87). Nor does it matter whether Ng “conspired with [the director] or bribed


46 him” directly (Br. 39). An official act includes one offi-cial “exert[ing] pressure on another official to perform an ‘official act,’ ” or “advis[ing] another official, know-ing or intending that such advice will form the basis for an ‘official act’ by another official.” Silver, 864 F.3d at 117 (quoting McDonnell, 136 S. Ct. at 2372; internal quotation marks omitted).15

In sum, Ng’s claim reduces to the argument that although the evidence, particularly when viewed in the light most favorable to the Government, showed that (i) he paid two UN ambassadors to take action, at the UN, in their official capacities; (ii) they took such actions; (iii) one of those actions was obtaining a con-tract with Ng’s company; and (iv) those actions were steps towards a goal that was both specific and would have required additional formal action (indeed, in the view of Ng and his co-conspirators, would best accom-plished through a General Assembly resolution, the most formal manner in which the UN acts), no rational jury could have found that Ng paid money for official action, because he was arrested too soon to know in what form, if at all, his goal would have been achieved. —————

15 Ng’s assertion that the Government “did not identify” the Pro Bono Agreement “as a purported ‘of-ficial act’ until its opening statement” (Br. 39) is both irrelevant and incorrect. As the District Court ex-plained in denying Ng’s motion for a new trial, the In-dictment alleged that Ng’s “principal objective” was moving the annual Expo, and the Government specifi-cally highlighted the Pro Bono Agreement months be-fore trial. (A. 2000-01, 2003).


47 This argument is no more persuasive than one offered by a defendant who paid a state legislator, but who was arrested before his hoped-for bill passed. It should be rejected.

POINT IV

Ng’s Remaining Arguments Lack Merit

Finally, Ng claims there were both instructional er-rors and insufficient evidence in two additional re-spects. First, he asserts that the District Court did not instruct the jury properly as to the meaning of “cor-ruptly” under either Section 666 or the FCPA, and, in any event, there was insufficient evidence of such in-tent. (Br. 44-50). Second, Ng asserts that the District Court did not instruct the jury properly as to the mean-ing of “business” under the FCPA, and, in any event, there was insufficient evidence that he paid bribes to obtain or retain business. (Br. 50-54). These claims are meritless.

A. Ng’s Challenge to the “Corruptly” Instructions and Evidence of Corrupt Intent Is Meritless

1. Relevant Facts

With respect to Section 666, the District Court in-structed:

To act corruptly means simply to act vol-untarily and intentionally with an im-proper motive or purpose to influence or reward John Ashe’s and/or Francis


48

Lorenzo’s actions. This requires con-scious wrongdoing or, as has sometimes been expressed, a bad or evil state of mind.

(A. 1422). With respect to the FCPA, the District Court in-

structed: A person acts corruptly if he or she acts voluntarily and intentionally, with a bad purpose or evil motive of accomplishing either an unlawful result or a lawful re-sult by some unlawful method or means. The term “corruptly” is intended to con-note that the offer, payment, and promise was intended to influence the foreign of-ficial to misuse his or her official position.

(A. 1424).

2. Discussion

Ng claims that both of the above instructions were materially incomplete, because neither told the jury that it must find “that Ng intended to cause Ashe or Lorenzo to breach an official duty.” (Br. 49). But as Ng appears to acknowledge (Br. 49 & n.12), the District Court’s instructions tracked all relevant precedent.

With respect to the FCPA, this Court has held “that the word ‘corruptly’ in the FCPA signifies, in addition to the element of ‘general intent’ present in most crim-inal statutes, a bad or wrongful purpose and an intent to influence a foreign official to misuse his official po-sition.” Stichting Ter Behartiging Van de Belangen


49 Van Oudaandeelhouders v. Schreiber, 327 F.3d 173, 183 (2d Cir. 2003) (footnote omitted). That is what the District Court instructed.

With respect to Section 666, the Court has repeat-edly affirmed convictions under jury instructions that are not in accord with Ng’s claim, including in Bahel. See, e.g., Bahel, 662 F.3d at 638; Brief for United States, Bahel, No. 08-3327 (2d Cir. Apr. 27, 2009), 2009 WL 8170843, at *92 (describing jury instruc-tions). Nor is Ng’s claim reconcilable with how the word “corruptly” is generally defined. See, e.g., Arthur Andersen LLP v. United States, 544 U.S. 696, 705 (2005) (“ ‘Corrupt’ and ‘corruptly’ are normally associ-ated with wrongful, immoral, depraved, or evil.”); United States v. McElroy, 910 F.2d 1016, 1021-22 (2d Cir. 1990) (“The term ‘corruptly’ is ordinarily under-stood as referring to acts done voluntarily and inten-tionally and with the bad purpose of accomplishing ei-ther an unlawful end or result, or a lawful end or result by some unlawful method or means.”).

Ng asserts that his proposed addition—“breach an official duty”—is necessary to avoid “serious vague-ness problems” (Br. 48), but he does not cite any case holding that the settled definition of “corruptly” is un-constitutionally vague. In any event, as discussed above, a vagueness challenge is an as-applied chal-lenge. See, e.g., Maynard, 486 U.S. at 361. This Court has uniformly rejected such challenges, for good rea-son. See, e.g., United States v. Rosen, 716 F.3d 691, 700 (2d Cir. 2013) (affirming Section 666 conviction; ex-plaining “it has always been as plain as a pikestaff


50 that bribes and kickbacks are prohibited,” and “the re-quirement that the Government prove [the] defend-ant’s specific intent to bribe eliminates the possibility that he will be prosecuted for bribery without fair no-tice” (internal quotation marks omitted)); United States v. Brunshtein, 344 F.3d 91, 98 (2d Cir. 2003) (re-jecting as-applied vagueness challenge to Section 666 conviction); United States v. Crozier, 987 F.2d 893, 900 (2d Cir. 1993) (same). So have other courts. See, e.g., Esquenazi, 752 F.3d at 929; Kay, 513 F.3d at 546 (same). No different result is warranted here.

In any event, assuming the District Court erred in not adding “breach of official duty,” it is apparent that that addition would not have made any difference. If Ng were correct, the jury should have been told that, rather than finding that a payment “was intended to influence the foreign official to misuse his or her offi-cial position” (A. 1424), it should find that it “was in-tended to influence the foreign official to misuse his or her official position and breach his or her official duty.” The phrase “breach his or her official duty” adds noth-ing. It is difficult, at best, to conceive of how a payment could be intended to cause an official to “misuse his or her official position,” but not intended to cause the of-ficial to “breach his or her official duty.” In any event, even if there might be a hypothetical case in which it might matter, this is not such a case. Ng’s arguments to the jury did not track the fine-to-nonexistent line that he now draws, and there was overwhelming evi-dence that Ng acted both to cause the Ambassadors to breach their duties and to cause other UN officials to do so. Ng’s instructional challenge and his sufficiency challenge thus both fail for the same reason.


51

Contrary to Ng’s sweeping assertions (Br. 46-47), over the course of five weeks, the jury heard ample ev-idence from which it could find that Ng intended to cause Lorenzo and Ashe to breach their official duties and to cause others at the UN to do so (and that Lorenzo and Ashe in fact breached such duties, and caused others to do so, although Ng’s intent was all that mattered). To take just one example, as discussed above, Ng sent a formal letter to Lorenzo requesting that he bring the matter of the Center to the attention of UNOSSC. (A. 1602). This was a charade intended to create the appearance that Lorenzo was acting on an objective belief in the merits of a proposal, rather than doing the bidding of the person lining his pockets. (A. 632-33, 659, 1032-33). The jury was also presented with evidence (1) of the role and duties of the PGA (e.g., A. 406-10, 532-33); (2) that, prior to being paid by Ng, Ashe had never advocated for the permanent reloca-tion of the Expo (e.g., A. 1046-48); (3) that both Lorenzo and Ashe linked Ashe supporting such a pro-posal to Ashe being paid by Ng, including in conversa-tions with Ng (A. 672, 681, 685); (4) that Ng took steps to hide his payments to Lorenzo and Ashe, including by paying the former through sham contracts with an offshore entity, the latter by “hiring” his wife for a no-show job, and falsely labeling payments “LEND” (e.g., A. 1936-39); (5) that UNOSSC did not follow its stand-ard, written due diligence protocol in agreeing to work with Ng’s company (e.g., A. 810-28); and (8) that the director of UNOSSC entered into the Pro Bono Agree-ment as a result of the efforts of Lorenzo and Ashe (e.g., A. 686, 1641). Perhaps most importantly, the jury heard from Lorenzo, who explained that he pleaded


52 guilty to accepting bribes from Ng, and, rather than taking actions as an ambassador and adviser to the PGA based on their merits, he took instructions from Ng, in return for money. (See, e.g., A. 531). Ng was en-titled to argue to the jury, and did (e.g., A. 1363), that the evidence showed no more than that he paid Lorenzo and Ashe to engage in “lobbying” (Br. 45, 46, 48). And the jury was entitled to reject that argument.

B. Ng’s Challenge to the “Business” Instruction and Evidence That He Acted to Obtain or Retain Business Is Meritless

1. Relevant Facts

The FCPA prohibits offers or payments made with the purpose of “obtaining or retaining business for or with, or directing business to, any person.” 15 U.S.C. §§ 78dd-2(a)(1), 78dd-3(a)(1). The District Court in-structed the jury:

The seventh element that the govern-ment must prove beyond a reasonable doubt is that the payment was made to assist [in] obtaining or retaining business for, or with, or directing business to, any person. It is not necessary that the government prove that anyone actually obtained or retained any business whatsoever as a re-sult of an unlawful offer, payment, prom-ise, or gift, only that the defendant in-tended to assist in obtaining or retaining


53

business for or with any person. Moreo-ver, this element is not limited to obtain-ing or renewal of contracts or other busi-ness but also includes the execution or performance of contracts or the carrying out of existing business.

(A. 1425; see also A. 1427).

2. Discussion

Ng contends this instruction was materially erro-neous because the District Court did not insert the word “commercial” before “business.” (Br. 53-54). Ng does not cite any FCPA case in which such an insertion was adopted, and the Government is aware of none. As the District Court explained when it rejected Ng’s re-quest, “the instruction is clear.” (A. 1322). A lay juror does not need to be told what “business” means. See United States v. Banki, 733 F. Supp. 2d 404, 417 (S.D.N.Y. 2010) (explaining, with respect to “money transmitting business”: “A business is not a complex or legal concept. No juror needs a judge’s charge of law to comprehend that a ‘business’ is an ongoing enter-prise carried out for financial gain; there is no other interpretation of the term ‘business’ the jury could have possibly applied.”), vacated, 685 F.3d 99, 113 (2d Cir. 2012) (stating “we largely agree with the district court that the term ‘business’ is self-explanatory,” but holding the instruction was flawed in other ways). That is particularly true here, when the District Court also instructed (using the words proposed by Ng (A. 329)), that business includes “the execution or per-formance of contracts or the carrying out of existing


54 business.” In the context of the instruction as a whole, no reasonable juror could have thought that “business” meant anything other than commercial business.16

In any event, there is no likelihood whatsoever that it would have made any difference had the District Court said “commercial business,” rather than “busi-ness,” in a case where the only business discussed by anyone as the beneficiary of Ng’s bribes was his real estate development company. Ng argues to the con-trary by asserting that, had he built the Center, it would have been provided to the UN “at no cost.” (Br. 51). As noted above (supra n.8), this assertion is both speculative and misleading. But it is also a red herring. As the District Court instructed, without ob-jection, the question was not whether it would have “cost” the UN money to move the annual Expo perma-nently to the Center—although it would have—but the purpose for which Ng paid bribes. And the evidence that that purpose (or at least one of the purposes) was to advance his business interests was overwhelming.

————— 16 Ng appears to suggest that the District Court

should also have instructed that the jury needed to find that Ng intended to obtain “business from the UN.” (Br. 51 (emphasis added)). Ng did not request such an instruction, and it has no support in the lan-guage of the statute, case law, or legislative history, see Kay, 359 F.3d at 755. In any event, there was am-ple evidence that Ng paid bribes to obtain business from the UN, including through the Pro Bono Agree-ment.


55 This evidence included, among other things, promo-tional videos for the project that highlighted that it would be developed by Ng’s for-profit company and in-dicated that the conference center would encompass less than 10% of the project (contrary to Ng’s assertion that “the basic premise of the project” was the Center (Br. 53)), with the remainder to include a luxury hotel, a shopping center, high-end residences, and a marina. (GX 908-F at 1:40-10:02; A. 638-39, 1078, 1606-40). It also included testimony and documentary evidence that, rather than bring Ashe, Lorenzo, and others from the UN to a project that might be deemed “philan-thropic” (Br. 53), when they came to Macau, Ng took them to another for-profit, luxury project developed by his company, with marble floors, gold statues, and a clubhouse with a cigar lounge and wine storage. (A. 678-79, 696-97, 1658, 1672, 1678, 1679). And it in-cluded the fact that, after Ashe submitted a letter to the Secretary-General advocating for the project, Ng directed that the letter be revised to name specifically his company—a directive that makes no sense unless Ng was motivated by an interest in “obtaining or re-taining business” (A. 1425).

Notwithstanding the evidence, Ng suggests that no reasonable jury could have found that he acted with such a purpose, because, after the trial, the Govern-ment stated that the District Court, in sentencing Ng, could take into account that he may also have had “patriotic and/or philanthropic motivations,” as Ng ar-gued in seeking leniency. (Br. 54 (quoting Dkt. 746, at 18)). This suggestion should be dismissed out of hand. Even if a party’s post-trial statements were probative of what a jury could have found, Ng omits the rest of


56 what the Government said, which is that the evidence showed that Ng paid bribes to advance the interest of his “for-profit company, benefitting both him and his family.” (Dkt. 746, at 17). Indeed, the Government ex-plained that not only was this Ng’s focus, but he sought to cloak it in the language of philanthropy, using oth-ers to “sell[ ] the UN on that concept,” rather than the truth. (Id.). In short, as with his argument that he did not act corruptly, Ng was entitled to argue to the jury, and did (e.g., A. 1350), that the evidence showed no more than that he engaged in “philanthrop[y]” (Br. 13, 53). And the jury was entitled to reject that argument.

POINT V

Even if Certain of Ng’s Claims Had Merit, He Is Not Entitled to Vacatur of His Convictions on All

Counts

Ng contends that, if any of his legal challenges to Section 666 or the FCPA is meritorious, Count One, conspiracy to pay bribes and to violate the FCPA, can-not stand. (Br. 55). That is incorrect. As is clear in the special verdict form, the jury found that Ng agreed both to pay bribes and to violate the FCPA. (A. 1975). Ng accordingly is not entitled to vacatur of this count unless his challenges to both Section 666 and the FCPA have merit (and they do not).

Similarly, Ng contends that, if any of his challenges is meritorious, the jury’s verdicts on Counts Five and Six, conspiracy to commit money laundering and money laundering, respectively, cannot stand, because these verdicts did not identify whether they rested on a violation of Section 666, the FCPA, the laws of


57 Antigua, and/or the laws of the Dominican Republic. (Br. 55-56). That is also incorrect. “[W[hen disjunctive theories are submitted to the jury and the jury renders a general verdict of guilty, appeals based on eviden-tiary deficiencies must be treated differently than those based on legal deficiencies.” United States v. Desnoyers, 637 F.3d 105, 109 (2d Cir. 2011). “If the challenge is evidentiary, as long as there was sufficient evidence to support one of the theories presented, then the verdict should be affirmed.” Id. (internal quotation marks omitted). Accordingly, Ng’s sufficiency chal-lenges, even if meritorious (and they are not), do not affect the money laundering counts.


58

CONCLUSION

The judgment of conviction should be affirmed.

Dated: New York, New York September 25, 2018

Respectfully submitted,

GEOFFREY S. BERMAN, United States Attorney for the Southern District of New York, Attorney for the United States

of America.

DANIEL C. RICHENTHAL, JANIS M. ECHENBERG, DOUGLAS S. ZOLKIND, SARAH K. EDDY,

Assistant United States Attorneys, Of Counsel.

SANDRA MOSER, Acting Chief, Fraud Section, Criminal Division, U.S. Department of Justice.

DAVID A. LAST, Assistant Chief.


CERTIFICATE OF COMPLIANCE

Pursuant to Federal Rule of Appellate Procedure 32(g), the undersigned counsel hereby certifies that this brief complies with the type-volume limitation of the Federal Rules of Appellate Procedure and this Court’s Local Rules. As measured by the word pro-cessing system used to prepare this brief, there are 13,937 words in this brief.

GEOFFREY S. BERMAN, United States Attorney for the Southern District of New York

By: SARAH K. EDDY, Assistant United States Attorney


Documents

76433 SDNY Seng Br Cv - globalinvestigationsreview.com … · Frank Lorenzo, JEFF C. YIN, also known as Yin Chuan, SHIWEI YAN, also known as Sheri Yan, HEIDI HONG PIAO, also known