United States District Court, D. Nevada
W. MYHRE Acting United States Attorney DAVID JAFFE Acting
Chief, Organized Crime & Gang Section, MARTY WOELFLE
Trial Attorney Attorney for the Government.
RESPONSE TO DEFENDANT WAN FAN KUANG'S SENTENCING
MEMORANDUM AND ORDER
United States of America, through counsel undersigned, hereby
responds to the Sentencing Memorandum filed by defendant Wan
Fan Kuang on June 14, 2017 [ECF 931]. The United States
concurs with the statements of defense counsel regarding
defendant Kuang's immigration status, and has no
objection to defense counsel's request to stay the
re-sentencing of defendant Kuang until such time as she is
present in the United States. Alternatively, the United
States requests that the Court dismiss the restitution claim
against defendant Kuang without prejudice. Should the Court
determine that dismissal is inappropriate, the United States
has no objection to defense counsel's request to
telephonically appear at the hearing currently scheduled on
August 14, 2017, or at another time convenient to Court and
counsel. A draft order of dismissal is attached for the
convenience of the Court.
Wan Fang Kuang was convicted of racketeering conspiracy,
conspiracy to transport stolen funds, conspiracy to commit
money laundering, and passport fraud, and was initially
sentenced to eight years in prison on May 6, 2009 [ECF 754].
Defendant Kuang was also sentenced to 3 years of supervised
release, and joint and several liability for restitution of
$482, 000, 000.00. After appeal and remand, the District
Court imposed the same sentence, but reduced the amount of
restitution to $7, 813, 905.75 [ECF 890].
Kuang, who obtained U.S. citizenship through fraud, was
de-naturalized on February 24, 2010. The defendant was found
to be subject to removal from the United States in June of
2011, and her motion to reconsider was denied in August of
2011. Defendant Kuang filed a motion to reconsider, claiming
that her counsel was ineffective. That motion was denied on
September 28, 2011.
Kuang was deported from the United States to the People's
Republic of China on September 23, 2015. The Government has
been informed by the Chinese Embassy that defendant Kuang is
in custody in China. Under Title 8, U.S.C. § 1182,
defendant Kuang is an inadmissible alien who is not eligible
to return to the United States. The United States has no
intention of seeking defendant Kuang's return to the U.S.
under any present circumstances.
Kuang has completed her sentence, including supervised
release. The United States does not seek any additional
incarceration in defendant Kuang's case. However,
defendant Kuang does remain jointly and severally liable for
restitution to the Bank of China, as the Court may impose at
Kuang cannot be present at the sentencing hearing in this
case. Defendant Kuang has not voluntarily waived her right to
be present at sentencing, as provided for in Fed.R.Crim.Pro.
43. Therefore, defendant Kuang cannot be re-sentenced in
absentia. Given this impossibility, the United States
requests the Court to dismiss the restitution claim against
defendant Kuang without prejudice.
United States has considered seeking a waiver of the
defendant's presence at the sentencing hearing, but the
likelihood of being able to contact the defendant, assure
confidential communications between the defendant and her
counsel, and obtain a knowing and voluntarily waiver from the
defendant is very remote. Additionally, even if a waiver were
obtained and restitution ordered, the costs of executing any
restitution order against the defendant would likely outweigh
any possible recovery. Therefore, the United States will not
seek a waiver from the defendant.
the defendant cannot and will not be present in the United
States to appear in this case, now or in the foreseeable
future, the United States requests that the Court dismiss the
claim for restitution in this matter against the defendant,
Wan Fan Kuang. However, because the United States cannot
predict how circumstances may change in the future, the
Government requests that the dismissal be without prejudice.
United States has no objection to defense counsel's
request to appear telephonically for whatever hearing the
Court deems necessary.
STATES DISTRICT COURT DISTRICT OF NEVADA
STATES OF AMERICA, Plaintiff, v.
KUANG, et. ...