Our friend Alexandra Shapiro of Shapiro Arato Bach, LLP, earned an important victory this week in United States v. Dan Zhong, No. 19-4110 (2d Cir. Feb. 23, 2022), persuading the Court to vacate her client’s conviction on three forced-labor charges. (While the Court affirmed the defendant’s convictions on two other counts, those convictions carry far shorter sentences.)
The ruling represents a rare defense victory based on multiple evidentiary errors. The Circuit, in an opinion by Judge Menashi, granted a new trial as to three forced-labor counts. The decision provides ammunition for defendants in future trials trying to rein in the Government’s efforts to introduce evidence of uncharged conduct, to curtail defense cross-examination of Government witnesses, and to use experts in improper ways.
First, the District Court had permitted the Government to introduce evidence of uncharged criminal conduct that pre-dated the charged conduct by nearly a decade and involved violence and threats of violence, in contrast to the charged conduct, which involved only an economic coercion theory based on contracts the workers had signed before emigrating to the United States from China. The Circuit held that this uncharged-crimes evidence was “significantly more sensational and disturbing than the charged crimes” and that the admission of the evidence violated Fed. R. Evid. 404(b) and 403.
Second, the District Court had limited cross-examination of the sole Government witness who provided testimony linking Zhong to the uncharged conduct. The Circuit ruled that the District Court had violated Fed. R. Evid 608(a) and 803(21) by precluding the defendant from eliciting testimony from other witnesses about the witness’s reputation for untruthfulness.
Third, the District Court had allowed the Government’s forced-labor expert witness not only to explain the workings of forced-labor operations generally, but also to provide a detailed commentary on the specific facts of the alleged force-labor operation on trial. The expert, the Circuit ruled, came “dangerously close to usurping the jury’s function by effectively providing an overall conclusion of criminal conduct.” Further, the expert was improperly allowed to testify regarding the emotional pleasure the perpetrators of forced labor supposedly derive from their activities, the disreputable history of forced labor worldwide, and the Chinese Government’s poor force-labor record—all of which was highly prejudicial and, at best, minimally relevant.