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CHAN v. UNITED STATES

February 27, 1996

YING KIN CHAN, Petitioner, against UNITED STATES OF AMERICA, Respondent.


The opinion of the court was delivered by: SPRIZZO

 SPRIZZO, D.J.:

 Pursuant to 28 U.S.C. § 2255, Ying Kin Chan, acting pro se, brings the above-captioned petition challenging his conviction on the grounds that the Court failed to give certain jury charges in violation of his right to due process, that he was denied effective assistance of counsel in violation of his Sixth Amendment rights, and that the Sentencing Court erred in failing to grant him certain reductions and downward departures from the applicable United States Sentencing Guidelines (the "Guidelines") level. For the reasons that follow, the petition is dismissed.

 BACKGROUND

 In January 1991, United States Drug Enforcement Administration ("DEA") Special Agent Thomas Ma met with Chun Kan Fung in Hong Kong and agreed upon a narcotics transaction involving the shipment and sale of approximately sixteen kilograms of heroin from Hong Kong to New York for $ 1.8 million. See Trial Transcript dated July 1-5, 1991 ("Tr.") at 33-42. Pursuant to the transaction, Chun Kan Fung arranged to have two associates oversee the shipment and delivery in New York. Id. Fung described one of the associates to Special Agent Ma as an "inexperienced young kid" who would be able to handle the delivery if the more experienced associate was unable to travel to New York. Tr. at 39-40.

 At 1:00 a.m. on January 28, 1991, DEA Special Agent Michael Shum telephoned room 2658 at the Grand Hyatt Hotel in New York, as instructed by Special Agent Ma in Hong Kong, and spoke with a person who identified himself only as "AA." Tr. at 48-51, 163. At 5:00 a.m. the same morning, Special Agent Shum, acting undercover, met defendants Chan and Man Wo Wong at the Grand Hyatt, where Wong had rented a room. Tr. at 54-58. Upon meeting, Shum and Wong confirmed their identities by displaying to each other codes drawn on their hands. Tr. at 56. Wong informed Shum that "23 units" were located in another hotel. Tr. at 58. Chan remained quiet during the meeting with Special Agent Shum. Id. Thereafter, Wong and Chan left the Grand Hyatt and traveled to the Vista Hotel, where a room had been rented in Chan's name. Tr. at 75-76, 91-92, 105-11.

 Later, Wong and Chan returned to the Grand Hyatt, each carrying a knapsack which they placed at Shum's side. Tr. at 60-62. Shum asked if the units were in the knapsacks, and Wong replied that they were. Tr. at 61. Chan also remained silent during this meeting. Id. Thereafter, Chan and Wong were arrested in the lower lobby of the Grand Hyatt. *fn1" Tr. at 76.

 On February 7, 1991, Chan and Wong were each charged with one count of conspiracy to import heroin, in violation of 21 U.S.C. § 963; one count of importation of heroin, in violation of 21 U.S.C. §§ 812, 952, 960(a)(1) & (b)(1)(A) and 18 U.S.C. § 2; one count of conspiracy to possess with intent to distribute heroin, in violation of 21 U.S.C. § 846; and one count of distribution and possession with intent to distribute heroin, in violation of 21 U.S.C. §§ 812, 841(a)(1) & (b)(1)(A) and 18 U.S.C. § 2. See Indictment 91 Cr. 0115 (JES).

 At trial, only the Government submitted jury charge requests to the Court. At the charge conference, Chan's counsel objected to the Government's charge of "deliberate avoidance," on the ground that it was not warranted by the evidence presented. Tr. at 292-94. The Court overruled the objection and charged the jury on deliberate avoidance, clarifying that mere participation without knowledge is insufficient to hold Chan liable as a conspirator. *fn2" Tr. at 363. Chan's counsel never requested any specific charges either before or at the charge conference.

 On July 5, 1991, after a five day jury trial, Chan was acquitted of conspiracy to import heroin and convicted of importation of heroin, conspiracy to possess with intent to distribute heroin, and distribution and possession with intent to distribute heroin. In a special verdict form, the jury indicated that it did not base any of its findings on the theory of "deliberate avoidance." Tr. at 388. *fn3"

 On January 6, 1992, pursuant to Guidelines Section 3B1.2(a), Chan moved *fn4" at sentencing for a four point role reduction in his Guidelines level based upon his alleged minimal role in the offense, Sentencing Transcript Dated Jan. 6, 1992 ("Sent. Tr.") at 2, which the Probation Department and the Government opposed. Id. at 2-5. The Sentencing Court denied Chan's motion but granted him a two point reduction in his offense level pursuant to Guidelines Section 3B1.2(b) on the ground that Chan was a minor participant. Sent. Tr. at 6-7. At sentencing, Chan did not move for a downward departure from the Guidelines. The Sentencing Court sentenced Chan to a term of imprisonment of 151 months, to be followed by a term of supervised release of five years. Sent. Tr. at 9.

 In the instant petition, which the Court construes liberally, see Haines v. Kerner, 404 U.S. 519, 520-21, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972), Chan claims that he was denied a fair trial by the Court's jury charge of "deliberate avoidance" and the Court's failure to charge the jury about "innocent presence" and the defense of "vicarious entrapment". In addition, Chan claims that he was denied effective assistance of counsel because his attorney failed to request those jury charges, failed to challenge the Court's charge of "deliberate avoidance," and failed to challenge the legality of the DEA's authority to import heroin into the United States. Chan further asserts that the Sentencing Court erred by refusing to ...


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