from the United States District Court for the District of
Kansas (D.C. No. 6:15-CR-10078-JTM-1)
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.
W. Hart, Assistant United States Attorney (Thomas E. Beall,
United States Attorney, with him on the brief), Wichita,
Kansas, for Plaintiff-Appellee.
BACHARACH, McKAY, and MURPHY, Circuit Judges.
BACHARACH, Circuit Judge.
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.
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
Mr. Tee was convicted based on his discussions with
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
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.
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
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
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.
Mr. Tee arrived at the airport to pick up Lucy, he was
arrested. He was later convicted on the three counts.
The evidence of guilt was sufficient to convict on each
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
. had intended to help Lucy buy and maintain
a massage parlor, knowing that it would offer prostitution
Standard of Review
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).
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).
. the government induces the defendant to
commit the offense and
. the defendant is not predisposed to commit
does not dispute inducement; instead, he contests the
government's evidence on predisposition. 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).
Persuasion of Interstate Travel To Engage in
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
. 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.
contends that the government failed to prove that
. he had tried to persuade Lucy to come to
. he had been predisposed to commit the
reject Mr. Tee's contentions.
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
. "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.
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
. "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.
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.
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 ...