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United States of America v. Mi Sun Cho

April 16, 2013

UNITED STATES OF AMERICA, APPELLEE,
v.
MI SUN CHO, ALSO KNOWN AS SEALED DEFENDANT 12, ALSO KNOWN AS GENERAL, ALSO KNOWN AS FNU LNU 3, DEFENDANT-APPELLANT.*FN1



Per curiam.

12-1084-cr

United States v. Cho

Argued: March 7, 2013

Before: WALKER, SACK, and LYNCH, Circuit Judges.

Defendant-appellant Mi Sun Cho appeals from a judgment of conviction entered on March 15, 2012, following a five-day jury trial in the United States District Court for the Southern District of New York (Kimba M. Wood, Judge). The jury found Cho guilty of one count of conspiring to violate sex trafficking laws in violation of 18 U.S.C. §§ 2241 and 2422 and two substantive sex trafficking counts in violation of 18 U.S.C. §§ 2241 and 2. On appeal, Cho contends, among other things, that the evidence was insufficient to establish one of the substantive counts of transporting a prostitute in interstate commerce in violation of 18 U.S.C. § 2421. We disagree, and because we find all of Cho's remaining arguments to be meritless, we affirm the judgment of the district court.

AFFIRMED.

Defendant-appellant Mi Sun Cho was convicted by a jury in the United States District Court for the Southern District of New York (Kimba M. Wood, Judge) of one count of conspiring to violate sex trafficking laws in violation of 18 U.S.C. §§ 2241 and 2422 and two substantive sex trafficking counts in violation of 18 U.S.C. §§ 2241 and 2. Cho raises several challenges to her conviction. First, she contends that there was insufficient evidence to establish that she transported Mei Hua Jin, a prostitute, in interstate commerce in violation of 18 U.S.C. § 2421 or caused Jin to be so transported under 18 U.S.C. § 2(b). Second, Cho contends that the district court made erroneous evidentiary rulings that, taken together, violated her due process right to present a defense. Finally, Cho challenges her sentence, arguing that the district court committed procedural error by applying a four-level leadership enhancement under U.S.S.G. § 3B1.1(a) and that the resulting sentence was substantively unreasonable. Finding no error, we AFFIRM the judgment of the district court.

BACKGROUND

Because Cho appeals from a judgment of conviction entered after a jury trial, the following facts are drawn from the trial evidence and described in the light most favorable to the government. United States v. Bahel, 662 F.3d 610, 617 (2d Cir. 2011).*fn2 In October 2010, after losing money gambling at a casino, Mei Hua Jin telephoned Cho from Atlantic City to see whether Cho could find her employment as a prostitute. Cho was aware that Jin was calling from Atlantic City. Cho had extensive contacts in the sex-trafficking industry and worked to provide prostitutes to brothels, often determining prostitutes' placement based on their age and physical appearance. Cho and Jin had previously worked together at a Connecticut brothel and at a prostitution business that Cho operated in Manhattan. After receiving Jin's phone call, Cho arranged to have one of her contacts inform Jin that a position at a Manhattan brothel was available. This contact was a confidential informant ("CI") for law enforcement who had a lengthy relationship with Cho in the sex-trafficking industry. On October 7, 2010, the CI spoke with Jin about traveling from Atlantic City to New York so that she could be placed at the Manhattan brothel designated by Cho. On October 8, after speaking to Cho and the CI, Jin bought a bus ticket with her own money and traveled from Atlantic City to Manhattan. She then took the subway to Flushing, where Cho and the CI awaited her arrival. The three then began driving to the Manhattan brothel, though Cho was dropped off at home before Jin and the CI reached their destination. The brothel rejected Jin because she was too old, and Jin then returned to Flushing.

On October 25, 2011, the Government filed a three-count Superseding Indictment. As relevant to this appeal, Count Two charged Cho with transporting Jin from New Jersey to New York to work at a brothel, and willfully causing her to be so transported in violation of 18 U.S.C. §§ 2241 and 2. On November 7, 2011, after a five-day trial, the jury convicted Cho of all three counts. After the verdict, Cho renewed her motion under Rule 29 of the Federal Rules of Criminal Procedure for a judgment of acquittal on Counts Two and Three. In the alternative, Cho requested a new trial on those counts pursuant to Rule 33. The district court denied Cho's motion, finding that there was ample evidence to support the jury's verdict. Applying a four-level leadership enhancement under U.S.S.G. § 3B1.1(a), the district court sentenced Cho to an aggregate term of 70 months' imprisonment, to be followed by two years of supervised release, and a $300 special assessment.

DISCUSSION

I. Sufficiency of the Evidence

Cho argues that the district court erred in denying her Rule 29 motion for judgment of acquittal on Count Two, because there was insufficient evidence to establish that she transported Jin in interstate commerce or caused her to be so transported. We disagree.

"In challenging the sufficiency of the evidence, the defendant faces an uphill battle, and bears a very heavy burden . . . ." United States v. Crowley, 318 F.3d 401, 407 (2d Cir. 2003) (citation omitted) (internal quotation marks omitted). Although we review sufficiency challenges de novo, the evidence must be viewed in the light most favorable to the government, with all reasonable inferences drawn in its favor. See United States v. Henry, 325 F.3d 93, 103 (2d Cir. 2003). The question is "not whether this [C]court believes that the evidence at trial established guilt beyond a reasonable doubt," United States v. Brown, 937 F.2d 32, 35 (2d Cir. 1991), but rather, whether "any rational trier of fact could have found the essential ...


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