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United States v. Chaofan

United States District Court, D. Nevada

June 28, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
XU CHAOFAN (also known as YAT FAI HUI), XU GUOJUN (also known as KIT SHUN HUI), KUANG WAN FANG (also known as WENDY KUANG), and YING YI YU, Defendants.

          STEVEN 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

         The 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.

         MEMORANDUM

         Defendant 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].

         Defendant 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.

         Defendant 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.

         Defendant 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 re-sentencing.

         Defendant 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.

         The 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.

         Because 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.

         The United States has no objection to defense counsel's request to appear telephonically for whatever hearing the Court deems necessary.

         UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

         UNITED STATES OF AMERICA, Plaintiff, v.

         WAN FAN KUANG, et. ...


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