Recently, the Second Circuit affirmed the judgment and sentencing of two participants in a murder-for-hire plot.  In United States v. Zhang, et al., No. 24-1532 (L), No. 24-1615 (Con), the Second Circuit (Sullivan, Wesley, Park) rejected the defendants-appellants’ argument that their due process rights were violated when the government changed its theory of the case at trial, and clarified that a murder-for-hire conviction under 18 U.S.C.  § 1958(a), which requires the exchange of something of “pecuniary value,” can be based on an exchange of a promise of future business connections. 

Background

In 2018, defendant-appellant Qing Ming “Allen” Yu, the owner of a development company that managed the renovation of rental properties, learned that his employee and protégé, Xin “Chris” Gu, was leaving the company to form his own development company, and that Gu was luring employees and clients from Yu’s business.  Furious, Yu arranged to murder Gu.  Yu conspired with his nephew, defendant You You, and his nephew’s associate, defendant-appellant Zhe Zhang, to recruit defendant Anthony Abreu to shoot Gu at a nightclub in Flushing, Queens.  You You alerted Zhang and Abreu as Gu exited the nightclub, Abreu shot and killed Gu, and Zhang served as the getaway driver.

Zhang and Yu[1] were indicted and tried for murder-for-hire and for conspiracy to commit murder-for-hire, both in violation of 18 U.S.C. § 1958(a).  At trial, the government presented testimony from two dozen witnesses (including You You, who testified as a cooperating witness), as well as video, photographic, and other evidence linking the defendants-appellants to the murder plot.  In its opening statement, the government suggested it would prove that Yu provided Zhang with cash payments in exchange for facilitating the murder of Gu—but prosecutors ultimately presented evidence showing that Yu promised to provide Zhang with business connections so that Zhang could start his own development company in exchange for facilitating the murder.  A Brooklyn jury credited the government’s evidence, and found Zhang and Yu guilty.  The district court then sentenced them both to life imprisonment.  

Zhang and Yu appealed and argued, among other things, that they were deprived of their constitutional right to present a meaningful defense when the government pivoted mid-trial from its cash payments theory to its business connections theory, and that a promise of future business connections in exchange for facilitating a murder is insufficient to show a violation of the murder-for-hire statute. 

Pecuniary Value

The Second Circuit first addressed Zhang and Yu’s argument that there was insufficient evidence that they exchanged anything of “pecuniary value” in arranging to murder Gu because Yu’s promise to provide Zhang with business connections was too “nebulous” to constitute something of pecuniary value.  The panel disagreed, explicitly holding that “the promise of providing business connections is sufficient to constitute something of pecuniary value within the meaning of the murder-for-hire statute.”  

The murder-for-hire statute under which Yu and Zhang were convicted prohibits using interstate commerce “with intent that a murder be committed” in exchange for “consideration for a promise or agreement to pay, anything of pecuniary value.”  18 U.S.C. § 1958(a).  The Circuit previously explained this to mean that, to sustain a conviction, “there must be a quid-pro-quo (or at least the promise of such) between the parties to the transaction.”  United States v. Babilonia, 854 F.3d 163, 174 (2d Cir. 2017).  The business connections Yu promised to provide Zhang, the panel explained, are precisely the type of promised quid-pro-quo the statute criminalizes.  Specifically, the government’s evidence that Yu had promised to provide Zhang with “all of his real estate connections [with] all the landlords in Manhattan” which would enable Zhang to “run a company” and to “mak[e] millions” was sufficient to show that Yu had promised Zhang something of pecuniary value and thus supported their convictions under the statute.

Due Process and Changing Government Strategies

The Second Circuit next addressed the defendants-appellants’ constitutional challenge, which it reviewed for plain error as Yu and Zhang had not raised the argument at the lower court.[2]  Of note here, plain error review requires the defendant to show that the error is clear or obvious.  It is not enough for there to have been an error.

The panel relied on this heightened requirement in ruling against the defense.  Before assessing the argument on its merits, the panel considered whether there was any “binding precedent from this Circuit that recognizes such a freestanding constitutional notice claim.”  The absence of “clearly established precedent” within the Circuit or from the Supreme Court led the panel to swiftly reject the challenge.

Given the ruling on “plain error” grounds, the panel declined to spill much ink on Zhang and Yu’s constitutional challenge.  It did express the concern that adopting defendants-appellants’ theory “would render a whole corpus of our case law essentially meaningless since a defendant could always raise an argument based on surprise even if he could not meet the rigorous standards of establishing a constructive amendment or prejudicial variance.”  This concern likely loomed large for the panel.  With litigants already able to challenge evidentiary “surprises” should the government not honor its obligations under Brady, Giglio, and the Jencks Act, and with the defense being able to challenge jury instructions or charging “surprises” under the constructive amendment and prejudicial variance doctrines, the panel seemed reticent to introduce a new mechanism for criminal defendants to challenge convictions on the basis of unanticipated legal theories. 

Commentary

The “plain error” doctrine was an impediment to the consideration of Zhang and Yu’s constitutional argument.  This is another reminder of how an oversight by trial counsel can often tie the hands of appellate counsel.  The “plain error” standard was unforgiving to the defendants in this case.  It is hard to say, though, whether the outcome would have been different if the argument had been raised in the district court.  The panel seemed concerned about whether the due process argument was an effort to end-run the strict doctrines of constructive amendment and prejudicial variance. 

At the same time, it does seem as if Zhang and Yu were prejudiced by the change in the prosecutors’ legal theory between the opening statements and closings.  When the government was unable to prove that the defendants-appellants exchanged tangible items of monetary value in exchange for arranging a murder plot, the government pivoted to a different theory based on anticipated future benefit—a theory defense counsel appears not to have anticipated—and secured a conviction.  

In some cases, defense counsel can make nimble use of the government’s failure to prove what it told the jury it would prove in opening statements.  This is a timeless defense summation argument: the government broke its promise to the jury and the jury should not reward the government with a conviction.  But when this jury argument does not work, should it be that the government is permitted to change horses mid-race and ride on to victory?  It will be interesting to see in a future case that is not subject to the “plain error” standard whether the Court is willing to consider this type of due process argument.