U.S. Fourth Circuit - The FindLaw 4th Circuit Court of Appeals Opinion Summaries Blog

Deported Witness Didn't Matter in Green Card Sting and Conviction

A federal appeals court refused to set aside the convictions of a Chinese man who blamed the government for deporting his main witness in a green card sting.

The U.S. Fourth Circuit Court of Appeal said the jury had enough evidence to convict him even though his witness hadn't testified. Moreover, the court said Kaixiang Zhu was responsible for his own predicament in United States of America v. Zhu.

"Indeed, Zhu is in this particular fix because of his own decision to flee arrest and live as a fugitive in another part of the country for more than two years," the court said in the per curiam opinion. "We doubt the government is required to keep a removable alien in the country indefinitely on the off chance that a fugitive from justice is discovered in the distant future and needs the alien as a trial witness."

Green Card Sting

Zhu was convicted in a sting operation that netted at least a dozen illegal aliens in 2012. Federal agents caught the defendants in a pay-to-stay based in Virginia.

"Andrew," an undercover agent, offered to obtain authentic green cards for $25,000 to $60,000 each. He used "brokers" to identify and communicate with potential customers.

Change Yun Hui, a traditional Chinese doctor known as "Dr. Hui," brokered a deal for Zhu. As part of the intake process, Zhu submitted his passport, two passport photos, and an immigration form.

Zhu also met with Andrew to be fingerprinted for the green card. Unbeknownst to Dr. Hui and his customers, the meeting room was wired for audio and video recording. In the meeting, Andrew explained that the process was illegal. "We can all go to jail," he said.

Justice Delayed

The parties were scheduled to meet one more time, but Zhu did not show up. Dr. Hui, however, was arrested at the scene. He pled guilty and was sentenced to 14 months in prison, after which he was deported to China.

Meanwhile, authorities searched for Zhu. They found him one year later, his case went to trial, and he was convicted of conspiring to commit immigration fraud and related crimes. He appealed on various grounds, including his claim that the government had deported a material witness -- Dr. Hui.

The appeals court said Zhu had not shown that he would have had a better result if Dr. Hui had testified. The government asked the court to consider whether it had acted in bad faith under U.S. v. Valenzuela-Bernal, an issue that has not been addressed in the Fourth Circuit, but the court said it was not necessary.

The court said Zhu could have called other witnesses for the same testimony, but he didn't. The court also said there was ample evidence -- including email, audio, and video recordings -- that proved Zhu's guilt.

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