The opinion of the court was delivered by: Matsumoto, United States District Judge:
Following a jury trial, defendant Kuo Chen ("Chen" or "defendant") was convicted on all counts of a two-count Superseding Indictment. Before the court is defendant's motion for judgment of acquittal under Federal Rule of Criminal Procedure 29 ("Rule 29"). For the reasons set forth below, the motion for a judgment of acquittal is denied.
On December 30, 2010, the government filed a two-count Superseding Indictment,*fn1 charging Chen and co-defendant Shi Xing Dong ("Dong") with extortion conspiracy and attempted extortion in violation of 18 U.S.C. §§ 1951(a)*fn2 and 3551*fn3 et seq. (See ECF No. 47, Superseding Indictment ("Ind't").) Specifically, the Superseding Indictment charged that in or about and between January 2010 and August 2010, Chen and Dong, together with others, conspired and attempted to "obstruct, delay and affect commerce, and the movement of articles and commodities in commerce, by extortion," in that they agreed and attempted to obtain the business of a competing bus company from De Mao Huang ("Huang"),*fn4 with his consent, "which consent was to be induced by wrongful use of actual and threatened force, violence and fear." (Ind't ¶¶ 1-2.)
Dong pleaded guilty to Count One of the Superseding Indictment, charging extortion conspiracy, on January 19, 2011. (See Minute Entry for Change of Plea Hearing as to Dong dated 1/19/2011.) Chen proceeded to trial, and jury selection and trial commenced on January 24, 2011. (See Minute Entry dated 1/24/2011.)
At trial, the government called as witnesses the following individuals:
First, the government called Huang, the owner of the Shun An Travel Company. (Tr.*fn5 177.) Huang operated the Shun An Travel Company for several years, transporting restaurant workers between Brooklyn or Chinatown and Poughkeepsie. (Id. 177-78.) In December of 2009 or January of 2010, Huang learned that a competing van service, the Lan Qi Bus Company, was driving the same Brooklyn to Chinatown to Poughkeepsie route. (Id. 187-88.) Huang observed two vehicles associated with the Lan Qi Bus Company, a white BMW and a Dodge van with license plate ending in 5901. (Id. 189; see also GX*fn6 5A-D (pictures of Dodge van with license plate ending 5901).)
Shortly after learning of the competing bus company, Huang saw the white BMW associated with the Lan Qi Bus Company at the Walmart in Poughkeepsie, one of two passenger pickup locations in the area used by the Shun An Travel Company. (Tr. 180, 191.) While Huang parked his vehicle to let passengers board, the driver of the white BMW drove up to Huang, stuck out his middle finger, and parked the white BMW to prevent Huang from moving his van. (Id. 191.) Huang identified the driver of the white BMW as Jiang. (Id. 192; GX 41A (picture of Jiang).)
In January of 2010, Huang had another encounter with the Lan Qi Bus Company. (Tr. 193.) While the Shun An Travel Company van was parked in front of QQ Bakery, the Shun An Travel Company pickup location in Chinatown, the white BMW and the Dodge van belonging to the Lan Qi Bus Company drove up to Huang and boxed in his vehicle. (Id. 178, 193.) According to Huang, Jiang walked up to him, opened the vehicle door, and threatened that if he saw the Shun An Travel Company driver again, Jiang would "break [Huang's] leg." (Id. 193-94.) Huang's son recorded the incident on his phone, and the video of the encounter was introduced into evidence and played at trial. (Id. 195-97, 203-04; GX 8 (video of QQ Bakery encounter), 8A (translation of video of QQ Bakery encounter).) After this incident, Huang became "very scared." (Tr. 205.)
In or about February of 2010, while Huang was picking up a passenger from the Walmart in Poughkeepsie, a person driving the Dodge van belonging to the Lan Qi Bus Company drove up to Huang. (Id. 205.) The driver parked next to Huang, rolled down his window, and pointed his finger at Huang, saying that Huang could not pick up passengers from that location anymore. (Id. 205-06.) On a separate occasion, also in or about February of 2010, Huang observed Jiang and other individuals gesturing aggressively at passengers at the Sunoco in Poughkeepsie, another pickup location. (Id. 206-07.) Huang testified on cross-examination that he did not believe that Chen was involved in any of the incidents described above. (Id. 247-48.)
Huang believed the Lan Qi Bus Company stopped operating in April and May of 2010. (Id. 207.) On June 17 or 18, 2010, Huang learned from some of his customers that the Lan Qi Bus Company was again driving the Brooklyn to Chinatown to Poughkeepsie route. (Id. 208.) Huang obtained a copy of the business card for the Lan Qi Bus Company, which was an exact replica of the business card for Shun An Travel Company, with the exception of the company name, the contact phone numbers, and the text color. (Id. 208-09; GX 10 (Shun An Travel Company business card), 10A (translation of Shun An Travel Company business card), 11 (Lan Qi Bus Company business card), 11A (translation of Lan Qi Bus Company business card).)
After working on June 20, 2010, Huang returned to Brooklyn at around 1:00 AM on June 21, 2010, and parked his van at a lot on 48th Street, between 8th and 9th Avenues. (Id. 212-13, 216-17; GX 12A-D (pictures of 48th Street parking lot).) Huang testified that there is a street lamp outside the parking lot, and that the area is well-lit at night. (Tr. 214; GX 52A (picture of 48th Street parking lot area at night).) While Huang was locking the parking lot gate, he was attacked by three people with wooden or metal sticks, and fell to the ground. (Tr. 218.) Huang grabbed a broken-off piece of a wooden stick, stood up, and swung the stick at one of his attackers. (Id. 218-19, 254-55.) At this point, Huang was bleeding and very scared. (Id. 255-56.) Huang testified that, when he swung the stick to hit his attackers, he was able to see the face of one of his attackers and identified Chen as that person. (Id. 219.)
When neighbors threatened to call the police, the attackers began to run away in the direction of 9th Avenue. (Id. 220, 258.) Huang ran after his attackers, at which point Chen said to him "Come over. Let's do it." (Id. 220.) One of the attackers then ran toward 49th Street, and the other two ran toward 47th Street. (Id. 258.) Because his attackers were too far, however, Huang returned to 48th Street, where police cars were waiting. (Id. 220-21.) Huang was taken by ambulance to the hospital, where he was treated for the injuries he sustained during the attack, including a laceration to the head and bruising on his torso and legs. (Id. 221-23; GX 14A-N (pictures of Huang's injuries sustained after the attack), 16 (hospital records), 18 (Huang's shirt after the attack).)
After the June 21, 2010 attack, Huang rested for a few weeks and then returned to work. (Tr. 227.) On the early morning on July 19, 2010, while Huang accompanied a new driver to the parking location, Huang received a phone call. (Id. 227-28.) The caller threatened Huang, saying that he would "come to [his] house and . . . kill [his] whole family" if Huang continued working. (Id. 228.)
After the June 21, 2010 attack, Huang testified that he saw the defendant again in July of 2010 in Poughkeepsie. (Id. 228, 261.) Huang called 911, and showed the police the report of the previous attack. (Id.) Huang testified that he saw Chen again in either July or August of 2010 on the FDR Drive, driving the Lan Qi Bus Company white Dodge van. (Id. 229-30.) According to Huang, Chen cut in front of him with the Dodge van and began accelerating and breaking, preventing Huang from merging onto another lane. (Id. 231.) Huang's son, who was in the car at this time, recorded the incident on his phone. (Id. 231-32; GX 6.) Upon arriving in Brooklyn, Huang called 911 and told the police that Chen, the man who had attacked him on June 21, 2010, was driving the Dodge van. (Tr. 232.)
On cross-examination, Huang testified that shortly before his attack on June 21, 2010, he saw three men exiting a silver Lexus SUV, two wearing white shirts and one wearing a blue or black shirt. (Id. 250-51.) Huang initially told the FBI that these were the three men who attacked him, although he could not be sure. (Id. 251-52.) Huang also testified that he identified another man, Zhen Pan, as one of his attackers based only on his body build. (Id. 226-27, 264.) In addition, during a grand jury hearing held on November 22, 2010, Huang testified that he saw the faces of two, not one, of his attackers. (Id. 266.) At trial, however, Huang maintained that he only saw one face during the June 21, 2010 attack, and that it was Chen. (Id. 268-69.)
Next, the government called Chi Kong Fung ("Fung") to testify. (Id.
274.) Fung worked for Huang*fn7 as a driver from
August or September of 2009 until August or September of 2010. (Id.
277.) When Fung first started driving for Huang, there was no
competition, but a competing bus company started operating in around
January of 2010. (Id. 281.) The competing bus company operated two
vehicles, a white van with license plate ending in 5901*fn8
and a white BMW. (Id. 281-82.)
In or around January of 2010, while Fung was waiting for passengers in front of the QQ Bakery, the white van and the white BMW double-parked near the Shun An Travel Company vehicle. (Id. 282-83.) Fung became very scared and agreed with Huang to go get the police. (Id. 284-85.) Because the competitors had double-parked, Fung was unable to exit through the driver's side and instead exited through the side door to search for the police. (Id. 285.)
On a separate occasion, at the Sunoco in Poughkeepsie, the driver of the BMW walked up to Fung, knocked on his window, asked "You're not afraid of dying?" and blew cigarette smoke on his face. (Id. 286-88.) The driver then gave Fung the middle finger, began gesturing for Fung to get out of his vehicle, and again blew cigarette smoke on his face. (Id. 288.) Fung threatened to call the police, and the man went back to his car. (Id. 289.) When Fung turned on the van to exit the Sunoco, the driver of the BMW blocked the exit. (Id.) Fung was able to leave by following another vehicle out of the gas station. (Id. 290.) The white BMW and white van followed Fung out of the Sunoco, and the white BMW attempted to prevent Fung from getting on the highway by stopping the BMW vehicle in a manner to block the on-ramp. (Id. 290-91.) Fung was able to drive around the white BMW and get on the highway. (Id. 291.) The white BMW followed, cut in front of Fung, and slowed down to a crawl, preventing Fung from driving on. (Id. 291-92.) Fung was finally able to speed up and exit the highway, losing the white BMW. (Id. 292.)
Initially, when shown a picture of Jiang, Fung was unable to identify him. (Id. 286.) However, after refreshing his recollection with a previous identification, Fung was able to recognize Jiang as the driver of the white BMW from the competing bus company. (Id. 293-94.)
Finally, Fung testified that on one occasion, Huang instructed him to change the usual Walmart pickup location for the employees of the Hudson Buffet in Poughkeepsie. (Id. 294-97.) Fung observed a vehicle from the competing bus company parked in front of the Hudson Buffet, and the employees had to exit through the back door to get to the Shun An Travel Company van. (Id.)
The government then called Xin Ming Wang*fn9 ("Wang") to testify. (Id. 298.) Wang, a restaurant worker at the Hudson Buffet in Poughkeepsie, used Huang's van service to travel to New York City. (Id. 299-300.) In or about February of 2010, Wang learned of a competing bus service, Lan Qi Bus Company, when the driver passed out business cards. (Id. 300-01.) Wang identified the white van with license plate 5901 as belonging to the Lan Qi Bus Company. (Id. 301.)
At around that same time, February of 2010, Wang had an encounter with the Lan Qi Bus Company. (Id. 301.) Wang walked across from the Hudson Buffet to the Walmart, the usual pickup location for the Shun An Travel Company, and the Lan Qi Bus Company van was parked there, along with a black Acura. (Id. 301-02.) When Wang refused to get in the Lan Qi Bus Company vehicles, Jiang took his phone and beat him, saying he had to get in and that Wang could not ride with Huang. (Id. 302-04; GX 41A (picture of Jiang).) On a separate occasion, also in February of 2010, Wang was forced into a Lan Qi Bus Company vehicle. (Tr. 303.)
In the summer of 2010, Wang again saw the Lan Qi Bus Company white van. (Id. 304.) Wang was riding with Huang in the Shun An Travel Company van, driving from Poughkeepsie to Chinatown, when the white van cut in front of them and started "breaking, also playing tricks on them." (Id. 304-06.) Huang's son, who was also in the van with Huang and Wang, took video of the incident. (Id. 305-06.) Wang only saw the driver of the Lan Qi Bus Company in passing, and he testified on cross-examination that he was unable to make an identification. (Id. 306.)
Next, the government called Dong Ong Guan ("Guan"), also known as "Danny," to testify. (Id. 310.) At about 12:30 or 12:40 AM on June 21, 2010, Guan was returning from an amusement park with friends, and parked on 48th Street, near 8th Avenue, in Brooklyn. (Id. 311-13.) Guan returned to the car to retrieve his keys. (Id. 313.) Guan heard a wooden noise, and when he turned his attention in the direction of the noise, Guan heard a man screaming. (Id. 313-14.) Guan saw two or three individuals beating the male victim, and then saw one or two other individuals, advancing on 48th Street from the direction of 8th Avenue, join the beating. (Id. 315-16, 325-26, 329.) Guan was standing approximately 50 feet ...