Aug

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Chinese Man Pleads Guilty To Export Charges After Ninth Circuit Remand


Posted by Clif Burns at 8:28 pm on August 2, 2012
Category: Criminal Penalties

KG-175 Taclane EncryptorBack in 2009, this blog reported on the arrest of Chi Tong Kuok, a PRC citizen, during a layover in Atlanta while he was traveling to Panama to meet with undercover agents who believed he was involved in various illegal exports of items from the United States to the PRC. After his conviction, he appealed successfully to the Ninth Circuit which threw out two of the four counts against him and remanded for a new trial on the remaining two counts. The court held that Kuok deserved a new trial because he had improperly been denied the opportunity to present a duress defense during his trial. Kuok claimed that the Chinese government had forced him to engage in the illegal exports in question.

Yesterday, Kuok pleaded guilty to the remaining charges. He did so before he had the opportunity to present his duress defense during the new trial ordered by the Ninth Circuit.

This is, to say the least, an odd outcome, and it is far from clear why Kuok would just give up at this point. The evidence of duress described by the Ninth Circuit was fairly compelling.

The threat to Kuok’s family was both immediate and serious. According to his counsel’s opening statement, Zheng made it clear to Kuok that his family was being monitored, through Zheng’s actions in giving Kuok reports on his wife’s daily activities, calling her at the family’s home phone number, and sending Kuok various pictures of his wife and his son taken in public. When Kuok attempted to get out of his dealings with the government, Zheng explicitly threatened to send Kuok’s wife to a “black jail,” and told Kuok that this was “somewhere where we take people off the grid if they don’t do what we ask them to do.”

The prosecutors made the absurd argument that Kuok was required to seek help from U.S. law enforcement authorities regarding the threat made against him in China by the Chinese government authorities, a claim which the Ninth Circuit readily dismissed:

[T]he government’s suggestion that Kuok should have cooperated with the authorities immediately upon landing in the Atlanta airport may be unreasonable, given that Kuok knew his family was still in danger of being jailed by Chinese government officials beyond the control of U.S. authorities.

The plea agreement has not yet appeared on PACER, but a local San Diego newspaper article provides some additional details that may explain this seeming about face. Apparently, the plea agreement proposed a maximum of 46 months in jail and provides that the plea agreement can be withdrawn if the district court judge does not accept that maximum. Kuok has already served 36 months, and the plea agreement provides that the defense can request a lesser sentence of time served. So, at this point, there’s a chance that Kuok will go free immediately upon the acceptance of the plea by the court. The worst that could happen under the plea is that he would spend 10 more months in jail, which is pretty much what a new trial was going to take, or that he will have a trial where the duress defense could be presented.

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3 Comments:


No doubt, the “numbers” make sense under the decision to plead guilty. But I have to wonder if there was any pressure placed on the family for Kuok not to have a new trial where he could raise the duress defense. Would that be exerting duress not to raise the duress defense?

Comment by Jon Yormick on August 2nd, 2012 @ 10:46 pm

In order to prove duress he would likely have to give testimony and evidence that would place his family in even greater harm. Sometimes a choice really isn’t a choice.

Comment by Mark S. on August 3rd, 2012 @ 1:14 pm

So if Kuok was under duress then, would he not still be under duress now? Despite his lawyer’s efforts, it sounds like the Chinese gave him a compelling reason to just deal with the jail time instead of blaming them. Given the differences in prison choices (“black” jail vs. “visible” jail), I’d say that was a no-brainer.

Comment by Joy on August 3rd, 2012 @ 1:25 pm