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United States v. Tee

United States Court of Appeals, Tenth Circuit

February 6, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
KAY TEE, Defendant-Appellant.

         Appeal from the United States District Court for the District of Kansas (D.C. No. 6:15-CR-10078-JTM-1)

          Kurt P. Kerns of Ariagno, Kerns, Mank & White, LLC, Wichita, Kansas (Melanie S. Morgan of Morgan Pilate LLC, Kansas City, Missouri, with him on the brief), for Defendant-Appellant.

          Jason W. Hart, Assistant United States Attorney (Thomas E. Beall, United States Attorney, with him on the brief), Wichita, Kansas, for Plaintiff-Appellee.

          Before BACHARACH, McKAY, and MURPHY, Circuit Judges.

          BACHARACH, Circuit Judge.

         Mr. Kay Tee appeals his conviction on three federal criminal counts: (1) attempted coercion and enticement to travel to engage in prostitution, (2) interstate transportation in aid of racketeering enterprises, and (3) money laundering. These counts grew out of Mr. Tee's discussions with a government informant (known as "Lucy") who had contacted Mr. Tee, ostensibly for help in opening a massage parlor in Wichita, Kansas. The government's trial theory was that Mr. Tee had tried to help Lucy, thinking that she wanted to buy a massage parlor and operate it as a prostitution business. Mr. Tee denied guilt and pressed an affirmative defense of entrapment. The jury rejected the entrapment defense and found guilt on the three counts, leading Mr. Tee to appeal.

         This appeal involves four issues:

1. Sufficiency of the Evidence: Mr. Tee contends that he was entrapped and that the evidence was insufficient to convict on any of the counts. We disagree. A reasonable jury could have found that Mr. Tee had tried to help Lucy buy a prostitution business and had a criminal intent and predisposition to commit the crimes. Consequently, the government presented sufficient evidence to prove the crimes and overcome the defense of entrapment.
2. Racial Discrimination During Voir Dire: The expected trial evidence included numerous references to the Asian-American community in Wichita. For example, the government's trial theory was that massage parlors in Wichita's Asian-American community were largely fronts for prostitution. In addition, Mr. Tee and the government's two informants were of Asian descent. These facts led the prosecutor in voir dire to focus certain questioning on one venireperson who appeared to be Asian-American. With this venireperson and the others, the prosecutor asked about possible prejudice against Asian-Americans. Mr. Tee argues that this questioning involved racial discrimination. Because the issue was not preserved in district court, we review the challenge under the plain-error standard. In our view, the district court did not commit plain error in allowing this questioning.
3. Display of a Website (Rubmaps) as Demonstrative Evidence: At trial, the government elicited testimony that Mr. Tee had told Lucy to look at reviews on Rubmaps to decide which massage parlor to buy. The government presented testimony that Rubmaps's reviews involved ratings on sexual activity, not massages. To explain this testimony, the prosecution displayed screenshots from Rubmaps as a demonstrative exhibit. Mr. Tee argues that the demonstrative exhibit was unfairly prejudicial. We disagree, for the demonstrative exhibit helped the jury understand the sexual nature of the website.
4. Introduction of Advertisements from Backpage: The government presented advertisements prepared by Mr. Tee for a website, Backpage. Mr. Tee contends that the advertisements constituted hearsay and were unfairly prejudicial. We reject both contentions. Mr. Tee waived his hearsay objection, and the district court could reasonably conclude that the advertisements had not been unfairly prejudicial.

         I. Mr. Tee was convicted based on his discussions with Lucy.

         Mr. Tee was a Wichita businessman. Being Chinese and bilingual, Mr. Tee often worked as a middleman between Mandarin-speaking business owners and local vendors. Some of the businesses were massage parlors that were suspected fronts for prostitution.

         To investigate these suspicions, the Wichita police arranged a series of telephone calls between Mr. Tee and Lucy. Lucy pretended to be a New York businesswoman interested in buying a massage parlor in Wichita. For over two months, Mr. Tee advised Lucy by telephone as she pretended to look for a massage parlor to buy.

         The police also used another informant, a prostitute known as "Jenny, " to investigate Mr. Tee. The police directed Jenny to seek Mr. Tee's help in selling her business. When Mr. Tee did not try to connect Lucy and Jenny, the police instructed Jenny to tell Mr. Tee that she had found a buyer. Jenny complied, telling Mr. Tee that the buyer was Lucy.

         Mr. Tee tried to discourage Lucy from buying Jenny's business. He explained that Jenny had been busted once for prostitution and that another bust would lead the police to close the business. Instead, Mr. Tee encouraged Lucy to look for other available shops. But when Lucy continued to express interest in buying Jenny's massage parlor, Mr. Tee assured Lucy that he would help her finalize the purchase. In their last telephone call, Mr. Tee agreed to pick up Lucy at the airport.

         Afterward Jenny paid Mr. Tee $100, but the parties disagree on the purpose of the payment. Mr. Tee told authorities that the fee was to pick up Lucy at the airport; the government characterizes the payment as a fee to broker the sale of Jenny's prostitution business to Lucy.

         When Mr. Tee arrived at the airport to pick up Lucy, he was arrested. He was later convicted on the three counts.

         II. The evidence of guilt was sufficient to convict on each count.

         Mr. Tee challenges the sufficiency of the evidence on each count and contends that the government failed to overcome his entrapment defense. In our view, a reasonable jury could find that Mr. Tee

. had been predisposed to commit the crimes and
. had intended to help Lucy buy and maintain a massage parlor, knowing that it would offer prostitution services.

         A. Standard of Review

         Sufficiency of the evidence entails a legal issue that we review de novo. See United States v. Thomas, 849 F.3d 906, 909 (10th Cir. 2017). In undertaking this review, we consider the evidence in the light most favorable to the government, asking whether any rational trier of fact could find every element of a given offense. Id. In answering this question, we cannot weigh conflicting testimony or consider the credibility of witnesses. United States v. Rodebaugh, 798 F.3d 1281, 1296 (10th Cir. 2015).

         B. Entrapment

         To find Mr. Tee guilty, the jury had to find each element of the crimes beyond a reasonable doubt. Alleyne v. United States, 570 U.S. 99, 104 (2013). Mr. Tee pleaded an entrapment defense; therefore, the government also had to disprove entrapment beyond a reasonable doubt. United States v. Nguyen, 413 F.3d 1170, 1178 (10th Cir. 2005).

         Entrapment occurs when

. the government induces the defendant to commit the offense and
. the defendant is not predisposed to commit the offense.

Id.

         Mr. Tee does not dispute inducement; instead, he contests the government's evidence on predisposition.[1] Predisposition may be shown by

evidence of similar prior illegal acts or it may be inferred from defendant's desire for profit, his eagerness to participate in the transaction, his ready response to the government's inducement offer, or his demonstrated knowledge or experience in the criminal activity.

Id. (quoting United States v. Duran, 133 F.3d 1324, 1335 (10th Cir. 1998)) (quotation marks omitted).

         C. Persuasion of Interstate Travel To Engage in Prostitution

         A crime is committed by knowingly attempting to persuade, induce, entice, or coerce a person to travel in interstate commerce to engage in prostitution. 18 U.S.C. § 2422(a). To prove this crime, the government needed to present sufficient evidence that Mr. Tee

. had knowingly attempted to persuade, induce, entice, or coerce Lucy to travel in interstate commerce, and
. had made this attempt with the intent for Lucy to engage in prostitution.

See id.; United States v. Rashkovski, 301 F.3d 1133, 1136 (9th Cir. 2002). And to overcome Mr. Tee's entrapment defense, the government needed to prove beyond a reasonable doubt that Mr. Tee had been predisposed to commit the crime. See Part II(B), above.

         Mr. Tee contends that the government failed to prove that

. he had tried to persuade Lucy to come to Wichita and
. he had been predisposed to commit the crime.

         We reject Mr. Tee's contentions.

         First, the government presented sufficient evidence that Mr. Tee had tried to persuade Lucy to travel from New York to Wichita. Mr. Tee argues that it was Lucy's idea to come to Wichita. Because the idea to travel originated with Lucy, he claims that a reasonable jury could not have found guilt. Mr. Tee is mistaken. Regardless of who originated the idea, Mr. Tee consistently encouraged Lucy to come to Wichita, boasting about how quickly and cheaply he could get her massage parlor ready:

. "I am very serious when it comes to doing work for other people, do you understand. . . . I don't mess around when it comes to doing work for other people." Appellant's App'x at 119.
. "There won't be any problems with the shop. I'll do everything and I'll take care of everything else. I have been taking care of things from beginning to end every time." Id. at 125.
. "Right now . . . the one you have will also be very quick. If you let us handle it, your expenses will not even be 16, 000. I can get everything ready for you for 12, 000." Id. at 144 (omission in original).
. "To be honest with you, for a new shop, all it needs is to post some ads and you'll get business right away. . . . If you want it, I can get it done for you in a week." Id. at 145.
. "Let me tell you. It's very easy to get business if you open a shop over here. All I have to do is to post an ad and it's easy to get business. And you'll get it very quickly . . . ." Id. at 153.
. "[W]e don't need a month or two because we do all the work ourselves, okay? We can get it ready for you in one week." Id. at 155.
. "The contacts would be another $500. I usually charge people 2, 000." Id. at 160.

         From these boasts, a reasonable jury could have found an intent to lure Lucy to Wichita to buy a prostitution business. But Mr. Tee did more than boast; he also expressly encouraged Lucy to come:

. "When are you coming down here to see [the massage parlor]?" Id. at 143.
. "If you get a chance, just come down here." Id. at 153.
. "The location that you are looking for, there are a lot of them available. Just come down to Wichita and we'll make arrangements for you to see them. And then you'll make a decision. There are lots of nice places." Id. at 154.

         Mr. Tee knew that he could obtain a fee only if Lucy came to Wichita. So Mr. Tee repeatedly offered deals to Lucy, emphasizing how much he would help her, boasting about the Wichita massage-parlor market, and encouraging her to come to Wichita. Based on these statements to Lucy, a reasonable jury could have found an attempt to persuade Lucy to travel from New York to Wichita.

         Second, a reasonable jury could have found that Mr. Tee had been predisposed to commit the crime. Mr. Tee makes three arguments for why he was not predisposed to commit the crime:

1. There was no evidence that he had committed similar crimes in the past.
2. The trial evidence proved only that he had conducted a lawful business for ...

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