Appeals from the United States District Court for the District of Columbia (No. 94cr00220-02) (No. 94cr00220-03)
Before: Wald, Williams and Tatel, Circuit Judges.
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Consolidated with No. 95-3172
Opinion for the Court filed by Circuit Judge Wald.
On April 13, 1995, appellants Hung Shun Lin ("Lin") and Qui Gao ("Gao") were convicted by a jury of hostage-taking, in violation of 18 U.S.C. Section(s) 1203. Lin was also convicted of using or carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. Section(s) 924(c), and possession of a firearm by an illegal alien, in violation of 18 U.S.C. Section(s) 922(g)(5) and 924(a)(2). On appeal, both appellants challenge the application of the Hostage Taking Act to the conduct underlying their indictment and contend that, even if the Act properly applies, there was insufficient evidence upon which a jury could base a conviction. They also argue that the district court impinged on their Sixth Amendment rights by limiting cross-examination of a government witness and improperly elicited testimony bolstering the credibility of government witnesses. Appellant Lin also contends that his conviction for using or carrying a gun under 18 U.S.C. Section(s) 924(c) should be reversed due to an erroneous jury instruction.
We find that the facts of this case fall within the plain language of the Hostage Taking Act and the jury was presented with sufficient evidence to support its conclusion that Lin and Gao seized or detained and threatened to injure or to continue to detain two hostages in order to compel a third person to pay money for the hostages' release, in violation of 18 U.S.C. Section(s) 1203. The court's limitation on the cross-examination of government witness Guan Huan Chen was not an abuse of discretion because defense counsel did not demonstrate a reasonable basis for asking highly prejudicial cross-examination questions. Although we are troubled by a volunteered statement uttered by a law enforcement officer after the court asked him some clarifying questions, we conclude that the statement did not prejudice appellants. We do find, however, that the district court's instruction on the meaning of "use" under 18 U.S.C. Section(s) 924(c) was clearly erroneous under the standard subsequently set forth by the Supreme Court in Bailey v. United States, 116 S. Ct. 501 (1995), and was prejudicial to appellant Lin.
Accordingly, we affirm appellants' convictions, except Lin's conviction under Section(s) 924(c), which we reverse. We remand Lin's case for resentencing in light of this reversal.
Testimony at trial established that on or about January 21, 1994, appellant Lin, appellant Gao, Hung T'ien Gao and one other man were admitted into a Chinatown building located at 501 L Street, N.W., by Sheng Chen ("Chen"). The men questioned Chen about whether he knew Chan Kan in China and then followed him up to the third floor apartment where he and Zhao Qui Li ("Li") lived. At least two of the four men who entered the apartment had guns. Once upstairs, appellant Lin and Hung T'ien Gao renewed their interrogation and asked Chen and Li whether they had tapped telephone wires in order to make phone calls to China. During the questioning, appellant Lin hit Chen.
The four intruders took Chen and Li out of the apartment building at gunpoint. The group stopped briefly at a house near 5th and M Streets, N.W., and then took Chen and Li to appellants' own residence at 10 N Street, N.W. The two hostages were handcuffed together and beaten with fists, wooden poles and a plastic block. During the beating they were interrogated about whether they had tapped telephone wires in order to make telephone calls to China. Chen admitted that he had tapped a phone line so that his calls would be billed to the tapped line. The captors demanded $10,000 from their captives for reimbursement of the telephone charges. Chen and Li claimed they could not come up with such a large sum of money. The captors insisted "[i]f you don't have the money, you can ask some of your relatives to borrow money-to guarantee." Transcript ("Tr.") at 623; see id. at 471. Chen mentioned Guan Huan Chen as a possible source of funds. Li was escorted to a pay phone where he called the apartment at 501 L Street, N.W., from which he had been taken and asked a woman named Liu Hai to contact Guan Huan Chen, who lived on the second floor at 501 L Street, N.W.
Liu Hai paged Guan Huan Chen, who went to the third floor apartment where the incident began and was given the details of what had transpired. He was told by one of the eyewitnesses that the intruders were gambling parlor operatives, Tr. at 273, so he went to a gambling parlor at 514 M Street, N.W., to speak with a man nicknamed "Stupid Brother," reportedly the boss of the four intruders. When he entered the gambling parlor he encountered appellant Gao, who denied that he was involved in the seizure of Chen and Li. Guan Huan Chen found "Stupid Brother" and asked him to have his people release Chen and Li. "Stupid Brother" said the man responsible for the seizure of Chen and Li was Hung T'ien Gao, so Guan Huan Chen located an associate of Hung T'ien Gao nicknamed "No Teeth." "No Teeth" told Guan Huan Chen to wait at New York Avenue and N Street, N.W., where he would be contacted by the hostage takers. He was later contacted at that location and taken to the house where Chen and Li were being detained.
On arrival, Guan Huan Chen saw appellant Lin, Hung T'ien Gao and some other men in the house. The two hostages were kept out of view in the basement. Shortly thereafter appellant Gao arrived at the house. Guan Huan Chen asked the captors not to hurt Chen and Li and said "[s]o why not just set them free first. We talk things out later." Tr. at 281. Hung T'ien Gao protested that Chen and Li had made telephone calls on another person's phone line without paying the bill. Hung T'ien Gao raised the issue of payment by Guan Huan Chen and the men proceeded to negotiate an amount. After some time the captors agreed that Chen and Li would be released in exchange for $5,800. The captors permitted Guan Huan Chen to talk to the two hostages over walkie-talkie so he could tell them what was going on, and that he expected them to repay him. When a sum was agreed upon, Chen and Li were produced from the basement. The two captives paid $800 of their own money to the hostage takers on release. During the next five days Guan Huan Chen paid the hostage takers the rest.
Over two months after these events, Guan Huan Chen contacted the Federal Bureau of Investigation ("FBI") and the Immigration and Naturalization Service and recounted the hostage-taking incident. Neither the hostage takers nor the hostages are United States nationals. The FBI executed a search warrant at 10 N Street, N.W., where they found wooden poles. The FBI also executed a search warrant at 1510 6th Street, N.W., a residence that appellants had moved to after the hostage-taking incident. There the FBI found a closed circuit television system, a gun, ammunition, handcuffs and walkie-talkies.
On May 31, 1994, a grand jury returned an indictment charging Lin, Gao and Hung T'ien Gao with two counts of hostage taking, in violation of 18 U.S.C. Section(s) 1203, two counts of using or carrying a firearm during a crime of violence, in violation of 18 U.S.C. Section(s) 924(c)(1), and one count of possession of a firearm by an illegal alien, in violation of 18 U.S.C. Section(s) 922(g)(5) and 924(a)(2). Co-defendant Hung T'ien Gao pled guilty to hostage taking and possession of a firearm by an illegal alien. Appellants Lin and Gao went to trial on March 22, 1995. Both Lin and Gao were convicted of hostage taking. In addition, Lin was convicted of using or carrying a firearm during a crime of violence and possession of a firearm by an illegal alien. These appeals ensued.
A. Application of the Hostage Taking Act to Lin and ...