United States v. Kwok Cheung Chow

Full title: UNITED STATES OF AMERICA, Plaintiff, v. KWOK CHEUNG CHOW, a/k/a "Raymond…

Court: UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Date published: Jun 2, 2016

No. CR 14-00196 CRB (N.D. Cal. Jun. 2, 2016)

Opinion

No. CR 14-00196 CRB

06-02-2016

UNITED STATES OF AMERICA, Plaintiff, v. KWOK CHEUNG CHOW, a/k/a "Raymond Chow," a/k/a "Hai Jai," a/k/a "Shrimpboy," et al. Defendants.

CHARLES R. BREYER UNITED STATES DISTRICT JUDGE

ORDER DENYING MOTION FOR NEW TRIAL

Defendant Kwok Cheung Chow moves for a new trial under Federal Rule of Criminal Procedure 33. See generally Mot. (dkt. 1396). As explained below, that motion is DENIED.

I. BACKGROUND

The 162-count Third Superseding Indictment charged Defendant with conspiracy to conduct the affairs of an enterprise through a pattern of racketeering activity, violent crime in aid of racketeering, money laundering, conspiracy, and aiding and abetting. See generally Third Superseding Indictment (dkt. 1072). Defendant's trial on the Third Superseding Indictment began on November 9, 2015, see Jury Trial (dkt. 1120), and ended on January 8, 2016, see Jury Trial (dkt. 1284). The jury found Defendant guilty on all counts. See Jury Verdict (dkt. 1283). Defendant received three extensions of time in which to file his motion for a new trial, see Order Granting Extension (dkt. 1300); Order Granting Request to Reset Hearing Submission and Hearing Dates (dkt. 1374); Min. of 3/23/2016 (dkt. 1381), and filed his motion on April 15, 2016, see generally Mot.¹ The government has filed an opposition to Defendant's motion, see generally Opp'n (dkt. 1436), and Defendant has filed a reply, see generally Reply (dkt. 1440).

1 Defendant also filed a "Supplemental Submission to his Rule 33 New Trial Motion," without leave to do so, on May 3, 2016. See Suppl. (dkt. 1426) at 1 n.1 ("This section replaces, or more accurately, encapsulates Section X in the original New Trial Motion. . . ."). The Court addresses this supplemental submission infra, in Section III(J) of this Order.

II. LEGAL STANDARD

A district court has the power to "grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). In considering such a motion, "[t]he district court need not view the evidence in the light most favorable to the verdict; it may weigh the evidence and in so doing evaluate for itself the credibility of the witnesses." United States v. Kellington, 217 F.3d 1084, 1095 (9th Cir. 2000). "A district court's power to grant a motion for a new trial is much broader than its power to grant a motion for judgment of acquittal," United States v. Alston, 974 F.2d 1206, 1211 (9th Cir. 1992), but the authority to grant a new trial should be used "only in exceptional cases," United States v. Rush, 749 F.2d 1369, 1371 (9th Cir. 1984); see also United States v. McCourty, 562 F.3d 458, 475 (2d Cir. 2009) (internal quotation marks omitted) ("The defendant bears the burden of proving that he is entitled to a new trial under Rule 33, and before ordering a new trial pursuant to Rule 33, a district court must find that there is a real concern that an innocent person may have been convicted."). Appellate review of a district court's ruling on a Rule 33 motion is limited to determining whether the district court clearly and manifestly abused its discretion. Alston, 974 F.2d at 1212.

III. DISCUSSION

Defendant's motion makes twenty arguments in favor of a new trial. As explained below, the Court finds all of them unpersuasive.

A. Violation of Immunity Agreement

Defendant's first argument for a new trial is that the government breached a 2002 use immunity agreement with him by impeaching him on cross-examination with immunized statements and then highlighting those statements again in its closing argument. Mot. at 3. Defendant asserts that this purported 2002 use immunity agreement is different from his 2000 plea agreement. Id. at n.2 ("The use immunity agreement is separate and apart from that plea agreement although both concerned testimony against his former boss Peter Chong.").² There is no evidence that any such separate 2002 use immunity agreement exists, however.

2 In a separately filed "Request for Hearing Date," Defendant alerted the Court that "a dispute . . . has arisen regarding the existence of a use immunity agreement." See Request (dkt. 1416); see also Opp'n to Request (dkt. 1417); Reply to Opp'n to Request (dkt. 1420). As explained below, the Court DENIES Defendant's Request for an evidentiary hearing on this subject, finding that the evidence is not in dispute.

The uncontradicted evidence is that in 2000, Defendant and the government voluntarily entered into a plea agreement in which Defendant—having already pled guilty to six counts in Case No. CR 92-260-DLJ—pled guilty to an additional count, violation of RICO, 18 U.S.C. § 1962(c). See generally Opp'n Ex. 2 (Plea Agreement). The plea agreement envisioned that Defendant would cooperate with the government over time, both "before and after" his sentencing, in a variety of ways, including by responding "truthfully and completely to any and all questions put to [him], whether in interviews, before a grand jury or at any trial or other proceeding." Id. ¶ 9(a). In exchange for his cooperation, the government agreed to confer on Defendant certain benefits, such as refraining from using any statements Defendant made pursuant to the plea agreement against him, unless Defendant breached the plea agreement. Id. ¶¶ 15-22.

As part of the ongoing cooperation envisioned in the plea agreement, FBI Special Agents interviewed Defendant on February 11 and February 16, 2002, about his former associate, Peter Chong. See generally Mot. Ex. A. (FD-302); Reply Ex. B (Dressler Decl.) ¶ 25 ("Paragraph 19. of [the plea agreement] was intended to and did grant federal use immunity to Mr. Chow for any statements he might make during subsequent debriefings by the U.S. Attorney's office.").³ Defendant made various statements in those interviews. See, e.g., Mot. Ex. A (FD-302 interview of 2/15/2002) at US 607982 ("CHOW asked for volunteers to do the hit on WONG and JACKIE AU volunteered to handle it. CHOW told AU to let him know when things were set so that CHOW could leave for Hawaii. Three to four days after CHOW arrived in HAWAII . . . he got word that the murder of DANNY WONG had been accomplished."). In the course of one of those interviews, the Special Agents acknowledged that Defendant had use immunity for his statements. See id. at US 607979 ("Chow was advised . . . that [he] would be granted use immunity for any statements made by him during the interview."). This was an accurate characterization of one of the provisions of Defendant's 2000 plea agreement. See Opp'n Ex. 2 (Plea Agreement) ¶ 19 ("The government agrees not to use any statements made by the defendant pursuant to this Agreement against him, unless the defendant fails to comply with any promises in this agreement.").

3 This statement, along with the plea agreement itself, refutes Defendant's unsupported argument that "[t]he 2000 Plea Agreement clearly did not contemplate the information Chow would provide nearly two years later in the proffer sessions." See Reply at 9; Opp'n Ex. 2 (Plea Agreement) ¶ 9 ("I agree to cooperate . . . before and after I am sentenced").

There is no evidence suggesting that there was a second or separate "use immunity agreement" apart from the 2000 plea agreement. See also Opp'n Ex. 1 (Frentzen Decl.) ¶ 8 ("There exists no record of any other immunity being conferred on Chow for [the] February 11 and 16, 2002 proffer sessions apart from the protections afforded to him through the Plea Agreement."); Opp'n Ex. 2 (Plea Agreement) ¶ 13 ("I [Chow] agree that this Agreement contains all of the promises and agreements between the government and me, and I will not claim otherwise in the future."). The only separate agreement that Defendant identifies in his reply brief is a purported agreement "by [AUSA] William Schaefer not to inquire into these homicides at Peter Chong's trial," which Defendant asserts that the government renewed "when Mr. Chow testified in the case against Peter Chong." See Reply at 4; Reply Ex. B (Dressler Decl.) ¶ 26 ("In addition to the promises made in the plea agreement, Mr. Schaefer also agreed that if Mr. Chow was required to testify at trial against any of his co-conspirators in the RICO case to which he pleaded guilty, the government would not ask him any questions regarding his knowledge or involvement in any homicides."). Assuming the existence and continued viability of any such agreement, it is irrelevant here.

There is no real question that Defendant failed to comply with the promises he made in the plea agreement to (1) "respond truthfully and completely to any and all questions put to [him], whether in interviews, before a grand jury or at any trial or other proceeding," and (2) "testify truthfully at any grand jury, court or other proceeding as requested by the government." See Opp'n Ex. 2 (Plea Agreement) ¶ 9(a), (c). Following his counsel's opening statement in this trial, which urged the jury to conclude based on a photograph of Defendant smiling that "[t]his is not the face of a human being who has killed to achieve that status," Trial Tr. of 11/9/2015 at 338, and his direct examination, in which he gave an incomplete account of his criminal history, Trial Tr. of 12/21/2015-12/22/2015 at 4282-4576,⁴ Defendant testified on cross-examination that he had not ordered any murders, at which point government counsel asked Defendant if he had been involved in bringing about the murder of Danny Wong, see Trial Tr. of 12/22/2015 at 4614-15. The following exchange took place:

4 The Court agrees with Defendant that Defendant's testimony on direct examination in which he claimed not to have killed anyone in Hong Kong before he was 16 was not itself an obvious breach of his plea agreement. See Reply at 5-6. Given the Court's participation in the trial and its ability to make its own determinations about the trial testimony's meaning, however, the Court does not agree that the government's argument about such testimony, see Opp'n at 3-4, constitutes trickery, "dirty tricks," or "slithering," see Reply at 1, 2, 7 n.2.

Q: Mr. Chow, were you present while your attorney gave the opening statements in this case?
A: Yes. I'm here.
Q: Do you recall your attorney said that the jurors could look at this picture, and tell that this was the face of a man who had not ordered a murder?
A: I did not order the murder.
Q: At the time that this picture was taken in August of 2006, Mr. Chow, how many murders had you ordered at that time?
A: None.
Q: None?
A: None.
Q: Mr. Chow, did you order the murder of Danny Wong?
A: I did not order the murder of Danny Wong.
Q: Were you involved in the murder of Danny Wong, Mr. Chow?
A: After the fact, yes.

Q: What about in order to make it happen, Mr. Chow?
A: No.
Q: Are you denying that you told Jackie Au and Su Loc to kill Danny Wong?
A: Yes, I'm denying that. It's—nothing happened like that.
Q: Did you tell FBI agents in 2002 while you were being debriefed that you told Jackie Au and Su Loc to kill Danny Wong?
A: No. . . . I do not order the killing Danny Wong. And before that I heard about lot of — lot of things what Peter was saying, indicating, you know, about Danny; but nothing talk about killing Danny Wong. . . .
Q: Mr. Chow, did you tell federal agents William Wu and Mark Jaroszewski on February 11th, 2002, that you asked for volunteers to do a hit on Danny Wong, and that Jackie Au volunteered for the job?
A: No, I don't recall that, because, ah, that is—Jackie Au is directly dealing with Peter.
Q: So you didn't ask for a volunteer?
A: No.

Id. at 4614-16. Because Defendant breached his agreements to respond and testify truthfully,⁵ the government was permitted to use Defendant's 2002 interview statements about Danny Wong to impeach him. See Opp'n Ex. 2 (Plea Agreement) ¶ 11 ("I agree that, if I fail to comply with any promises I have made in this Agreement, then the government will be released from all of its promises, but I will not be released from my guilty plea.") (emphasis added); id. ¶ 19 ("The government agrees not to use any statements made by the defendant pursuant to this Agreement against him, unless the defendant fails to comply with any promises in this agreement.") (emphasis added). The Court is not persuaded by Defendant's argument that the government's questions constituted the first breach of the plea agreement. See Reply at 8.

5 Although Defendant urges the Court to follow a Sixth Circuit case holding that a defendant's misstatements did not materially breach an immunity agreement because they did not deprive the government of the benefit of its bargain, see Reply at 9, that case involved an immunity agreement that specifically provided that the remedy for breach was prosecution for perjury, see United States v. Fitch, 964 F.2d 571, 575 (6th Cir. 1992). The plea agreement here contains no such provision and specifically provides that if Defendant fails "to comply with any promises [he has] made in this Agreement, then the government will be released from all of its promises." Opp'n Ex. 2 (Plea Agreement) ¶ 11.

Moreover, Defendant offers no authority for his suggestion that a defendant in his circumstances should be permitted to testify falsely and without fear of impeachment, particularly in light of his agreement to testify truthfully. See id. at 8-9 ("Chow was forced to either respond in the affirmative or in the negative."); Opp'n Ex. 2 (Plea Agreement) ¶ 9(c) (agreement to testify truthfully); cf. Opp'n at 8 ("It would . . . advance no conceivable societal or legal benefit to allow a defendant to voluntarily cooperate with law enforcement under a grant of contractual immunity if he testified truthfully and then protect that defendant when he later testified falsely."). Indeed, the law is to the contrary. See Harris v. New York, 401 U.S. 222, 225 (1971) ("Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury."); see also James v. Illinois, 493 U.S. 307, 314 (1990) (recognizing an exception which "penalizes defendants for committing perjury by allowing the prosecution to expose their perjury through impeachment using illegally obtained evidence."); United States v. Rosales-Aguilar, No. 14-50315, 2016 WL 1425877, at *3 (9th Cir. April 12, 2016) (same).⁶

6 Notably, Defendant concedes in his reply brief that there was no "formal use immunity" agreement. See Reply at 7 n.5. Although Defendant is "baffled as to why" the government sought to distinguish statutory immunity from "informal immunity" granted by contract, Defendant's concession confirms that his arguments about 18 U.S.C. § 6002 are inapposite, and that his statements were voluntary and not coerced. See Mot. at 3 (arguing that a "grant of use or derivative use immunity pursuant to 18 U.S.C. section 6002 prohibits the use of compelled testimony and evidence derived therefrom in any subsequent criminal proceeding.") (emphasis in original); Opp'n at 8 (arguing that "Chow's immunity was not statutory" but based on contract); United States v. Plummer, 941 F.2d 799, 802-03 (9th Cir. 1991) ("In addition to statutory immunity, the government can also grant varying degrees of immunity in informal agreements with individuals. . . . The government is not bound by the procedures and requirements in the immunity statute when granting this form of immunity, and ordinary contract principles apply when interpreting informal immunity agreements."); Opp'n Ex. 2 (Plea Agreement) ¶ 25 ("I also confirm that my decision to plead guilty is made voluntarily, and no one coerced or threatened me to enter into this agreement."). Although New Jersey v. Portash, 440 U.S. 450, 459-60 (1979), held that a defendant could not be impeached with testimony given pursuant to statutory immunity, because such testimony is coerced and involuntary, defendants may be impeached with voluntary statements. See Pollard v. Galaza, 290 F.3d 1030, 1033 (9th Cir. 2002) (even statement taken in violation of Miranda, "if voluntary, may be used for impeachment should the [d]efendant testify inconsistently.").

For the reasons stated in the government's opposition, Defendant's argument about his 2002 interview statements also fail because Defendant opened the door on this issue, and because Defendant failed to object to the government's introductions of the statements at trial. See Opp'n at 11-12.⁷

7 In his reply brief, Defendant argues, without an accompanying declaration or citation to any other evidence or authority, that Defendant told his counsel after his testimony at trial that "he believed at the time (on the stand) that he was protected from the immunized material being used against him," and so "[a]ny untruthful statement . . . was not intentional." See Reply at 10. Despite this novel use of the word "intentional," Defendant's argument fails. Defendant points to no case holding that a defendant is entitled to a new trial where the government impeaches his "unintentional" misstatements.

Accordingly, the government's use of statements from the 2002 interview does not necessitate a new trial in this case.

B. Failure to Recuse

Defendant next argues in a lone paragraph that "this Court's conflict of interest led to an unfair trial for Raymond Chow by subjecting him and his defense team to a biased Court . . . ." Mot. at 7.⁸ This argument is the basis for Defendant's separate Motion to Disqualify (dkt. 1397), which the Court has denied, in a separate order, as meritless, see Order re Motion to Disqualify (dkt. 1453). Accordingly, the Court's failure to recuse itself does not necessitate a new trial in this case.

8 On January 22, 2016, Defendant filed a "Request for Hon. Charles R. Breyer to Recuse Himself; Notice of Intent to File Motion to Disqualify Hon. Charles R. Breyer Pursuant to 28 U.S. Code § 455(a), (b)(4), (b)(5)(iii), and (c)." See Request to Recuse (dkt. 1294). That filing was, in its own words, "a preliminary and summary request pending a formal motion which will have citations and evidentiary support," id. at 1, and the Court did not rule on it, see also id. at 2 ("Raymond Chow will move to disqualify Judge Breyer") (emphasis added).

C. Cumulative Evidence of Leung and Kong Crime Scenes

Defendant next argues that he is entitled to a new trial because the Court improperly allowed the government to present cumulative evidence to the jury pertaining to the Allen Leung and Jim Tat Kong crime scenes, and the search of co-defendant Andy Li's residence. See Mot. at 7-10. There is no basis for this claim, and for the reasons stated in the government's opposition brief, see Opp'n at 14-20, it does not necessitate a new trial.

D. Deliberate Ignorance Instruction

Defendant next argues that a new trial is warranted because the Court improperly gave the jury an instruction on deliberate ignorance, also known as a Jewell instruction. Mot. at 10-13.⁹ "In reviewing jury instructions, the relevant inquiry is whether the instructions as a whole are misleading or inadequate to guide the jury's deliberation. The trial court has substantial latitude so long as its instructions fairly and adequately cover the issues presented. A single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge." United States v. Frega, 179 F.3d 793, 806 n.16 (9th Cir. 1999) (internal citations omitted).

9 To be clear, Defendant does not object to the language used in the deliberate ignorance instruction—which closely tracks the Ninth Circuit Model instruction, compare Jury Instructions (dkt. 1274) at 39 with Ninth Circuit Model Criminal Rule 5.7—but that a deliberate ignorance instruction was given at all. See Mot. at 10 ("A New Trial is Warranted Because This Court Allowed Improper Jury Instruction on Deliberate Ignorance.").

Defendant bases his argument on authority holding that a deliberate ignorance instruction "is rarely appropriate" and "should not be given in every case where a defendant claims lack of knowledge." Mot. at 10 (citing United States v. Baron, 94 F.3d 1312, 1318 n.3 (9th Cir. 1996); United States v. Murrieta-Bejarano, 552 F.2d 1323, 1325 (9th Cir. 1977)). He urges, as he did in writing on the morning that closing arguments began, see generally Defendant's Written Objection and Opposition to Government's Proposed Jury Instruction for Deliberate Ignorance; Request the Court Reconsider Instructing on Deliberate Ignorance as it is Reversible Error (dkt. 1268) (hereinafter "Written Objection"), that "this case did not meet the strenuous evidentiary requirements that warrant this instruction," see Mot. at 10. The Court disagrees.

As a preliminary matter, the Ninth Circuit explicitly overruled both Baron and Murrieta-Bejarano in United States v. Heredia, 483 F.3d 913, 919-20 (9th Cir. 2007).¹⁰ Heredia disavowed the language in Baron that Defendant quotes about how "rarely appropriate" deliberate ignorance instructions are. See Mot. at 10 (quoting Baron, 94 F.3d at 1318 n.3); Heredia, 483 F.3d at 924 n.16 ("Some of our opinions have commented on how often Jewell instructions should be given [citing Baron and others]. . . . This kind of speculation is misguided and should not be read to imply additional limitations on a district court's discretion to issue a Jewell instruction . . . . Whether the instruction is given depends solely on the state of the evidence in the case . . . .").¹¹ And Heredia rejected the three-prong deliberate ignorance instruction outlined in Baron and quoted by Defendant. See Mot. at 10-12 (citing Baron, 94 F.3d at 1318 n.3); Heredia, 483 F.3d at 919-20 (noting that Baron provided "little justification" for the third prong); comment to Ninth Circuit Model Criminal Rule 5.7 (explaining Heredia's role in instruction's containing two, not three, prongs). The two prongs of a deliberate ignorance instruction, post-Heredia, are that (1) the defendant was aware of a high probability that the charged crime was being committed, and (2) he deliberately avoided learning the truth. See Heredia, 483 F.3d at 920-21; Ninth Circuit Model Criminal Rule 5.7.

10 Heredia also disapproved of United States v. Sanchez-Robles, 927 F.2d 1070 (9th Cir. 1991), and overruled United States v. Garzon, 688 F.2d 607 (9th Cir. 1982), both of which Defendant highlights in his motion. See Heredia, 483 F.3d at 921-24 & nn. 15&16; Mot. at 11-12 ("Sanchez-Robles is an instructive case"; "Similarly, in Garzon. . ."); see also Written Objection at 4-6 ("Sanchez-Robles is an instructive case"; "Similarly, in Garzon. . .").

11 Notably, Defendant's earlier filing quoted the first part of Heredia's footnote 16 (collecting cases commenting on how rarely Jewell instructions should be given) but misleadingly left off the remainder of that footnote, in which the Ninth Circuit concluded that such comments were "misguided," and overruled the cases quoted. See Written Objection at 3 n.1; Heredia, 483 F.3d at 924 n.16.

In Heredia, the Ninth Circuit explained that "[a] district court should approach the government's request to give a Jewell instruction in the same way it deals with any other proposed jury instruction. In general, a party is entitled to an instruction to help it prove its theory of the case, if the instruction is supported by law and has foundation in the evidence." Heredia, 483 F.3d at 922 (internal quotation marks omitted). Moreover, "the district court must view the evidence in the light most favorable to the party requesting it." Id. Defendant's assertion that a deliberate ignorance instruction was improper here because "the evidence points only to actual knowledge or no knowledge at all, rather than deliberate ignorance," see Mot. at 11, overlooks much of what transpired at trial.

First, deliberate ignorance figured prominently in the government's opening statement (in which government counsel theatrically imitated Defendant by covering his ears with his hands while denying knowledge of criminal activity), see, e.g., Trial Tr. of 11/9/2015 (Opening Statement, Hasib) at 274 ("The second item on your legal roadmap is the idea called 'deliberate ignorance'"); id. at 293 ("No, no, no. You can't do stuff like this. And he takes the envelope."); id. at 298 ("You guys are doing bad things; very bad things. Takes the envelope."), and in its closing arguments, see, e.g., Trial Tr. of 1/4/2016 (Closing Argument, Badger) at 5639 ("'Raymond Chow: I don't know. I don't know anything about this.' Again, deliberate ignorance."); Trial Tr. of 1/5/2016 (Rebuttal Argument, Frentzen) at 5791 ("along with the deliberate ignorance instruction."). Deliberate ignorance was a key government theory of the case.

Second, there was extensive evidence from which a jury could find both prongs of the deliberate ignorance test—that Defendant was aware of a high probability that the charged crimes were being committed and that he deliberately avoided learning the truth. See, e.g., Trial Tr. of 11/18/2015 (Jordan, David—Direct) at 1305 (Q: "Would Mr. Chow, himself, make blanket statements about whether or not he was involved in criminal activity?" A: "Always." Q: "What would he say about that?" A: "Oh, I don't know what you guys have going on. You guys are doing bad things. I don't want to hear about that." Q: "Would he say, I'm not in the game anymore?" A: "Frequently." Q: "Would you then turn around and have conversations with Mr. Chow about criminal activity that was currently ongoing?" A: "Frequently."); Trial Tr. of 12/7/2015 (Jordan, David—Cross) at 1987 (A: "Mr. Nieh would say, 'Give him the money, but don't tell him what it's for. He knows what it's for. He's not stupid.'"); id. at 2036 (A: "As I had mentioned, Mr. Chow, on a routine basis, would express some form of deliberate ignorance as to what was happening around him. He knew that the money that he was taking was for illegal activity. I decided to call him out on it, in basically saying, You know, you give me the same old line every time you take the money. You know what's going on. He took the money."); Trial Tr. of 12/8/2015 (Jordan, David— Cross) at 2167 (testifying that after Defendant gave undercover agent Jordan "permission to work with Mr. Chiu," Chiu arrived at dinner, and Defendant "immediately" excused himself to have a cigarette, saying "I think you have company."); Trial Tr. of 12/14/2015 (Vanderporten, David—Direct) at 3164 (Recording of Defendant: "So you—you don't have to let me know, and I don't want to know. You know what I mean? That's—that's how it should work."); id. at 3221 (Recording of Defendant: "The worst thing he can say about me would be that I introduced them to each other. I wouldn't know what fucking thing they are doing. Even if I did, hey, hey, am I suppose to report that to the police? I didn't witness the transaction. I have no idea when it took place. . . . [a]ll I knew was that you guys met and talked. . . . Man, if I don't fucking know, I'm innocent."); Trial Tr. of 12/23/2015 (Defendant—Cross) at 4751-53 (in response to Defendant's testimony that he thought undercover agent Jordan, posing as a criminal, was "legitimate," Government counsel confronted Defendant with recorded conversation with Jordan in which Defendant says that he thought Jordan's family had a liquor license, and Jordan responds "fuck, no" and then, "fuck you. You're laughing." Jordan states, "The only thing we have a license to is a license to do . . . business however we want to do it, but we don't have any liquor license." Chow responds, "I don't want to know." Jordan states, "Yeah, I know." Defendant states, "You guys are outlaws, bad . . . I don't want to know. How do I hang out with an outlaw like you?" Defendant later states, "I don't have no knowledge of the crimes being committed . . . to pay for my food. . . . That is very bad, but I'm still eating. I'm hungry.").

Defendant's repeated "I don't want to know" statements, made when his associates were discussing—and giving him money from—criminal activity, set this case apart from a case like Baron, where there was "no evidence that [the defendant] ha[d] his suspicion aroused," 94 F.3d at 1318 (internal quotation marks omitted), or like Sanchez-Robles, where the court found that there were no suspicious circumstances beyond direct evidence of the crime itself, 927 F.2d at 1074-75. Nor is it like Garzon, where the defendant's "conduct was inconsistent with conscious avoidance." See 688 F.2d at 609. This was not "every case in which a defendant claims a lack of guilty knowledge." See Baron, 94 F.3d at 1317.

The jury could have concluded that Defendant truly did not know anything about his associates' criminal activities, or that he knew all about them and only feigned ignorance. See, e.g., Trial Tr. of 12/30/2015 at 5366 (defense counsel: "The Government never advanced a theory of deliberate ignorance. It was actual—they were accusing him of faking it."). But, as in Heredia, 483 F.3d at 923, the jury might also have believed some, but not all, of Defendant's testimony. And, as in Heredia, because "[t]he government has no way of knowing which version of the facts the jury will believe . . . it is entitled (like any other litigant) to have the jury instructed in conformity with each of these rational possibilities." Id. (noting, "[t]hat these possibilities are mutually exclusive is of no consequence. A party may present alternative factual theories, and is entitled to instructions supporting all rational inferences the jury might draw from the evidence."); see also Comment to Ninth Circuit Model Criminal Rule 5.7 (quoting Heredia, 483 F.3d at 922 ("the district court must determine whether the jury could rationally find willful blindness even though it has rejected the government's evidence of actual knowledge. If so, the court may also give a Jewell instruction.")); Trial Tr. of 12/30/2015 at 5366 (The Court: "You're right. The Government's theory is that he knew. . . . The Defense theory is he didn't know. . . . The problem is he'd be guilty if he deliberately didn't know."); Trial Tr. of 12/31/2015 at 5434-35 (The Court: "So I don't know that the Government has to elect a theory. . . . the defendant testified in great detail, and said on occasion during the testimony, I didn't know about it if it didn't happen in front of me. That's what he said. I didn't know about it if it didn't happen in front of me. Well, that's not the law."); id. at 5436 (government counsel: "In fact, it makes perfect sense, which is that we believe the defendant knew. We believe that he is not credible; but if the jurors credit him, it's still deliberate ignorance.").

The deliberate ignorance instruction in this case was "supported by law and ha[d] foundation in the evidence." See Heredia, 483 F.3d at 922. Defendant has failed to demonstrate that the instruction rendered the instructions as a whole "misleading or inadequate." See Frega, 179 F.3d at 806 n.16. Accordingly, the deliberate ignorance instruction does not necessitate a new trial.

E. Denial of Defense Witnesses

Defendant has repeatedly complained about the Court's limitation of defense witnesses during the case in chief; in the new trial motion, he also argues that the Court improperly denied him a surrebuttal witness after the government's witness raised a new issue on rebuttal. See Mot. at 13-15. This order addresses both concerns.

1. Defense Witnesses in Case in Chief

Defendant has long asserted, and repeats throughout the new trial motion, that the Court improperly limited defense witnesses in his case in chief. See, e.g., Mot. at 9 ("prejudicial impact of having forty-six witnesses for the Government versus nine for defense."); Suppl. at 4 ("In precluding more witnesses . . . the Court prevented Chow from presenting his defense to the jury."); Suppl. Mistrial Mot. (dkt. 1233) at 3 ("[t]he first order of business of the Court after walking out with the mistrial motion [filed on December 23, 2015] in the Court's hand . . . was to exclude over half the defense witnesses which the Court previously authorized days earlier without notice to [the] defense [that] the discussion was going to take place."); see also Hailey Branson-Potts, Raymond "Shrimp Boy" Chow found guilty of 162 counts in massive corruption case, Jan. 8, 2016, L.A. Times ("Briggs said the judge cut the defense witness list at the last minute—allowing Chow's attorneys to call eight witnesses while the prosecution called 46."); Defense Press Release of Dec. 28, 2015 (Attached Ex. A) ("Upon receipt of the motion, the judge immediately slashed Shrimp Boy's witness list down to eight people compared to the prosecution's 46 witnesses. The motions claim that was in retaliation."). Defendant's characterization of the Court's actions is wrong.

"A federal judge has broad discretion in supervising trials," United States v. Laurins, 857 F.2d 529, 537 (9th Cir. 1988), cert. denied, 492 U.S. 906 (1989), and has an obligation to ensure that the evidence presented to the jury is admissible and relevant, see United States v. Abel, 499 U.S. 45, 54 (1984) ("A district court is accorded a wide discretion in determining the admissibility of evidence under the Federal Rules."); Taylor v. Illinois, 484 U.S. 400, 410 (1988) ("The accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence."), and, even if relevant, not substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence, see Fed. R. Evid. 403; cf. Fed. R. Evid. 611(a) ("The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment."). "As a practical matter, the court needs the right to impose some limitation on the number of witnesses testifying about a particular fact." Loux v. United States, 389 F.2d 911, 917 (9th Cir. 1968), cert. denied, 393 U.S. 867, 393 U.S. 869 (1968). The decision as to how many witnesses may testify about a particular fact "must be left to the sound discretion of the judge." Id.; see also United States v. Fernandez, 497 F.2d 730, 735 (9th Cir. 1974) (no abuse of discretion where trial judge excluded seventeen witnesses but permitted five witnesses regarding defendants' anti-drug activities); Arthur & Hunter, Federal Trial Handbook: Criminal, § 24:10 (2015 ed.) ("The court may limit the witnesses, even down to one witness on a point that is admitted.") (citing Petersen v. United States, 268 F.2d 87 (10th Cir. 1959)).

To that end, on November 25, 2015, the Court ordered the defense to "submit a detailed, written offer of proof, under seal and ex parte," by December 14, 2015, as to each of its proposed witnesses. See Order Directing Submission (dkt. 1169). The Order stated that Defendant did not need to make a selection from that list until the government had rested. Id.; see also Trial Tr. of 12/11/2015 at 3050-51 (Court reiterating importance of defense submission). In response to that Order, the defense submitted a list of seventy proposed witnesses. See Attached Ex. B. While that list included some descriptive offers of proof, the offers of proof for many proposed witnesses were woefully lacking in detail.¹² In particular, while the subject matter identified could be highly relevant, e.g., speaking to Defendant's guilt or innocence, the list failed to provide the Court with any indication as to the nature of the evidence that would demonstrate its admissibility. See id. Defendant offered six witnesses to testify about the bona fides of Defendant's book deal. See id. For four other witnesses, the offers of proof stated only: "FBI Impeachment Witness." See id.

12 See, e.g., Proposed testimony of Chan, Samson ("Will testify as to lack of intent to enter into RICO conspiracy."); Chiu, Bing ("To testify to Raymond Chow's legitimate activity within the tong."); Dumpit, Darlene ("Will testify as to lack of intent to enter into RICO conspiracy."); Hamilton III, Rico ("No intent to RICO"); Ito, Ted ("Will testify as to lack of intent to enter into RICO conspiracy. No intent to kill Leung or Kong. No enterprise."); Ilia, John ("Will testify as to lack of intent to enter into RICO conspiracy. No intent to kill Leung or Kong. No enterprise."); Him, Hahn ("Will testify as to lack of intent to enter into RICO conspiracy. No motive to racketeer."); Kim, Kirby ("Will testify as to lack of intent to enter into RICO conspiracy."); Kullar, JT ("Will testify as to Chow's lack of intent to enter into a RICO conspiracy."); Lau, Tony ("Will testify as to lack of intent to enter into RICO conspiracy. No intent to kill Leung or Kong. No enterprise."); Lei, Raymond ("Will testify as to lack of intent to enter into RICO conspiracy. No intent to kill Leung or Kong. No enterprise."); Li, Mimi ("Will testify as to lack of intent to enter into RICO conspiracy. No enterprise."); Li, Tammy ("Will testify as to lack of intent to enter into RICO conspiracy. No intent to kill Leung or Kong. No enterprise."); Lu, Kevin ("Will testify as to lack of intent to enter into RICO conspiracy. No intent to kill Leung or Kong. No enterprise."); Porter, Andy ("Will testify as to lack of intent to enter into RICO conspiracy."); Ruez, Rodrigo ("Will testify as to Chow's lack of intent to enter into a RICO conspiracy."); Sedmakov, Minna ("Will testify as to lack of intent to enter into RICO conspiracy."); Seto, Henry ("Will testify as to lack of intent to enter into RICO conspiracy."); VandeVelde, Heather ("Will testify as to lack of intent to enter into RICO conspiracy. No intent to kill Leung or Kong. No enterprise."); Woo, Alina ("Will testify as to lack of intent to enter into RICO conspiracy. No intent to kill Leung or Kong."); Wong, Brian ("Will testify as to lack of intent to enter into RICO conspiracy. No intent to kill Leung or Kong. No enterprise."); Wong, Charlie ("Will testify as to lack of intent to enter into RICO conspiracy."); Zee, Teddy ("Will testify as to lack of intent to enter into RICO conspiracy. No motive to racketeer."); Zhu, Lisa ("Will testify as to lack of intent to enter into RICO conspiracy. No intent to kill Leung or Kong. No enterprise.").

On December 14, 2015, the Court held an ex parte, under seal proceeding with the defense in which it explained the inadequacy of many of the offers of proof. See Tr. of 12/14/2015 (dkt. 1204) at 3294-95. The Court explained that Defendant "obviously can call [the witnesses] if they can give relevant admissible testimony that's not cumulative," but that "[t]here's no way [of] looking at any of these submissions and making that determination." See id. at 3294. The Court reiterated that it needed a detailed offer of proof. See id. at 3294-95; 3301. The Court explained that it would allow just one witness on Defendant's book deal, unless the issue was contested. See id. at 3295-96. The Court further explained that witnesses about alleged FBI misconduct might be admissible in connection with Defendant's motion to dismiss for outrageous government conduct, but that they were not admissible on the jury question of Defendant's guilt or innocence. See id. at 3297 (The Court: "if you disagree with that, you can submit something in writing and I'll consider it."). The Court explained that it would allow one witness to testify that individuals could join the Tong for legitimate purposes, and would allow some evidence of Defendant's good deeds to show that his connection with the Tong was legitimate. See id. at 3298-99. The Court explained that it would not allow "repetitive testimony about an issue that's not an issue." See id. at 3299. The Court also said that it would allow a witness to testify about Defendant's living expenses. See id. at 3300-01. The Court asked the defense again to make a detailed offer of proof so that both the Court and the government could understand ". . . why witness one comes at it in one direction, witness two comes at it in another direction, witness one can't testify to what witness two testified . . . ." See id. at 3301.

The defense then submitted to the Court a revised witness list with fifty-three witnesses on it. See Attached Ex. C. That list included more detailed descriptions of some witnesses; nonetheless, a number of the listed witnesses still lacked detailed offers of proof.¹³

13 See, e.g., Proposed testimony of Ilia, John ("Will testify as to lack of intent to enter into RICO conspiracy. No intent to kill Leung or Kong. No enterprise."); Lo, Alicia ("No intent to RICO/no enterprise . . . ."); Seto, Henry ("Will testify as to lack of intent to enter into RICO conspiracy."); Wong, Brian ("Need to consult with my client."); Wong, Charlie ("Need to consult with my client."); Yee, Brandon ("Need to consult with my client."); Zee, Teddy ("Need to consult with my client."). Other witnesses on the list were identified as "unlikely" to be called. See, e.g., Bock, Sharmin; Chuong, Hung "Ricky"; Jones, Zula; Lee, Ed; Majajer, Nazly; Zhu, Lisa. Still others appeared either redundant, compare Corpuz, Rudy (Defendant publically denounced criminal activity) with Crawford III, Eli (Defendant spoke at events geared to reducing gang violence) and Hamilton III, Rico ("similar information as Eli Crawford"), or irrelevant, see, e.g., Ito, Ted (Defendant's "tireless efforts to broker a museum furniture donation from China"); Ling, Wai Mu (Leung's pro-Taiwanese political stance); Yang, Norman ("Leung was the most outspoken person in Chinatown against the [Chinese government]").

In light of these deficiencies, the Court on December 16, 2015, narrowed Defendant's witness list to thirty-seven witnesses. The Court explained in a hearing that day that it would hand the list back to the defense so that the defense could "edit it, add to it, subtract from it," with the understanding that it be provided to the government the following day. Trial Tr. of 12/16/2015 at 3860. The Court anticipated that the government would then form a position with respect to the witnesses, and the parties could be heard. Id. at 3860-61. The Court explained that it wanted "to make sure that both sides have the opportunity to articulate in an adversarial way their position with respect to the witnesses." Id. at 3861.

The defense submitted a revised list to the government on December 17, 2015. See Trial Tr. of 12/17/2015 at 3994. That list contained about forty-nine witnesses. See Attached Ex. D. The government rested on December 18, 2015. See Trial Tr. of 12/18/2015 at 4185. The Court then conducted a lengthy hearing with the parties about the defense witness list. See id. at 4187-4277. The Court told the parties at the onset that it was concerned about having multiple witnesses testify on a particular subject, because it prolonged trial and because it could emphasize to the jury issues that were not contested, such as the Tong's engagement in lawful activity. See, e.g., id. at 4190-91 (The Court states, "the CK Tong was engaged in lawful activity. Number one, that's not contested," to which the Government replies, "Stipulated."). On uncontested issues, the Court ruled, the defense "would be restricted to a single witness," presuming that the government would not challenge the witness on the previously uncontested issue and would not reference the lack of corroboration. See id. at 4191. The parties and the Court then discussed the witness list at length. • The Court ruled that six witnesses would not be permitted to testify without a detailed offer of proof.¹⁴ • The Court observed that there was no present need for several of the impeachment witnesses.¹⁵ • The Court held that three witnesses were exempt from testifying due to Defendant's failure to comply with Rule 2(e).¹⁶ • The Court identified certain individuals who would be cumulative if allowed to testify. See, e.g., id. at 4197. The Court instructed defense counsel to select one witness to testify as to any issue not in dispute, until and unless a given issue became disputed. See id. at 4199-200. If an issue became disputed, the Court confirmed that Defendant could call additional witnesses. See id. at 4200. Ultimately, the Court identified at least eight witnesses whom it considered cumulative.¹⁷ • The Court noted that it "identified 10-15 witnesses who-there's no problem." See id. at 4267. This estimated number was exclusive of experts, who were not required to be on Defendant's lists. See Trial Tr. of 12/17/2015 at 4095. The Court cleared at least eleven witnesses without substantial modification to their testimony.¹⁸ • The Court identified eight additional witnesses whose proffered testimony was relevant and admissible within specific parameters.¹⁹ • Of the witnesses whom defense counsel sought to call as of December 18, 2015, the Court wholly denied six requests, excluding the witnesses barred under Rule 2(e).²⁰ • Defense counsel dropped at least two witnesses on their own.²¹

14 See Trial Tr. of 12/18/2015 at 4192-93 (defense counsel asserts that Beverly Dong would "testify. . . about alternate suspects in the Allen Leung" murder, adding "we haven't had time to interview her yet"); 4200-01 (defense counsel asserts that Lonnie Holmes would refute the "assumptions people [the jury] were under" that Defendant was involved in criminal activities before his investigation started because "without the program reports and authorizations . . . I need a witness to refute that because the jury has heard it"); 4204 (Court says "there's no offer of proof" for John Illia); 4252-53 (Court determines that for Agent Emmanuel Pascua "I want a detailed offer of proof of what he's going to say, and why it's relevant."); 4255-58 (defense counsel asserts that Brian Soriano, a former attorney hired by Defendant for a criminal matter, was "more acting as an agent" of Defendant and adds "I'll need to do a follow up interview."); 4264-65 (defense counsel argues that Lee Chu Wa should testify and asks "Well, what if he has-what if he has evidentiary support?" Defense counsel adds "I need to interview him again. It's been a while.").

15 See id. at 4193 (Court states regarding Sharmin Bock, "it's not ripe for determination, but she's not going to testify unless the testimony becomes germane."); 4235-36 (Court states regarding San Francisco Mayor Ed Lee "So you're saying that you wanted to call the mayor to impeach a witness who has never testified in this case?" Defense counsel responds "Exactly," to which the Court replies, "So he's not testified. Then you don't have to call the Mayor."); see also Attached Ex. D (Mojajer, Nazly, "same as Sharmin Bock above.").

16 See id. at 4196 (Special Agent Tseng Chow); 4204 (John Ilia); 4231 (Zula Jones).

17 See id. at 4199 (Court finds that Eli Crawford III would provide cumulative testimony on the nature of the Tong); 4202 (Court finds that Rico Hamilton III's testimony on the nature of the Tong is cumulative); 4204 (Court finds that Ted Ito's testimony on the general character of the Tong is cumulative to the extent that it is covered by previous witnesses); 4204-05 (Court finds that John Jarrell's testimony regarding Chow's book and movie deals would be cumulative); 4241-42 (Court finds Wai Mu Ling's testimony cumulative absent foundation); 4244 (Court determines Frank McCarthy's testimony is cumulative, absent impeachment); 4244-45 (Court finds that John Moore's testimony would be cumulative with Kevin Kwong) 4264 (Court finds that Chung Szto's testimony about Chow's financial state is cumulative).

18 See id. at 4192 (Court allows Kevin Kwong to testify with "No objection" by the prosecution); 4196 (Court poses no limitation on Ricky Chuong); 4231 (Court waives 2(e) regulations and permits the defense to call Mark Jaroszewski); 4231-32 (Court allows Wong Yuk Jung to testify if defense lays proper foundation); 4233-34 (Court allows Andrew Koltuniak to testify so long as defense properly subpoenas him); 4237-41 (Court allows Pius Lee to testify about Chow's book deal as well as a purported dispute between Lee and Leung so long as defense lays proper foundation); 4241-42 (Court admits the testimony of Winnie Leung so long as counsel lays the proper foundation); 4253-54 (Court allows Rodrigo Ruez to testify so long as defense lays proper foundation); 4255 (no limitation on Katie Seid's testimony); 4260-64 (Court allows Paul Tsang to testify); 4265 (Court allows Elaine Woo to testify as impeachment witness).

19 See Trial Tr. of 12/18/2015 at 4193-94 (Court allows Bing Chiu to testify that he supported Chow); 4194-96 (Court allows Kevin Chiu to testify that Chow instructed him to not "participate in criminal activities"); 4196-99 (Court allows Rudy Corpuz to testify regarding Chow's contact and meetings with youth in the community); 4204 (Court allows Angela Hom to testify regarding her financial support of Chow); 4232-33 (Court allows Chris Kelley to testify about what he specifically saw during the night of the "first payment"); 4235 (Court allows Ricky Kullar to testify as to Mr. Jordan's statements about having a liquor license); 4242-44 (Court rules that Alicia Lo may testify as to her financial support of Chow); 4245-51 (Court allows Shirley Nieh to testify about the relationship between Mr. Jordan and George Nieh provided she has representation and she appears before the Court in the absence of jurors so the Court can confirm that her testimony is admissible).

20 See Trial Tr. of 12/18/2015 at 4235 (regarding Tony Lau); 4251-52 (Court finds Tim O'Brien's testimony both privileged and irrelevant); 4255 (regarding Henry Seto); 4258-60 (Court finds U.S Attorney Brian Stretch's testimony regarding government misconduct is "not a jury consideration" and irrelevant.); 4265 (calling Frank Williams's testimony "irrelevant"); 4265 (calling Norman Yang's testimony "irrelevant"). The Court allowed the defense to submit further offers of proof and to change their proposed witness list as they saw fit. See infra pp.20-21.

21 See Trial Tr. of 12/18/2015 at 4258 (regarding Agent David Strange, defense counsel states "We can eliminate that one."); 4265 (regarding Leslie Yun, defense counsel informs the Court, "She won't testify.").

On December 23, 2016, the Court again raised the issue of defense witnesses, and requested an updated witnesses list. See Trial Tr. of 12/23/2015 at 4894, 4898. As Defendant did not have an updated list of witnesses available, the Court allowed Defendant to compile a list. See id. at 4894. After compiling the list, the parties and the Court then discussed the witness list at length another time. • The Court affirmed that seven of Defendant's witnesses were able to testify without any further offer of proof.²² • The Court again asked for detailed offers of proof on at least seven witnesses.²³ • The defense conceded that two witnesses were unable to testify.²⁴ • The Court noted that one witness was put on the revised December 23, 2015 witness list by mistake.²⁵ • The Court ruled that two witnesses were not permitted to testify.²⁶

22 See Trial Tr. of 23/23/2015 at 4900 (Bing Chiu); 4902 (Jose Trevino); 4903 (Court confirms that Ricky Chuong may testify about Allen Leung's involvement with shootings in 2005); 4910 (Court allows Chris Kelley to testify as to what he saw at the "first payment"); 4914 (Ricky Kullar); id. (Court confirms Pius Lee's testimony on the legitimacy of Chow's book deal); 4922 (Elaine Woo).

23 See Trial Tr. of 12/23/2015 at 4906 (Court requests that Defendant provide an offer of proof for Ted Ito); 4920 (Court states that Mark Jaroszewski might have admissible testimony, however the Court cannot decide the issue without a detailed offer of proof); 4913 (Court cautions that Andrew Koltuniak's testimony regarding outrageous government conduct is not relevant to guilt or innocence, but that defense can submit an offer of proof); 4915 (Winnie Leung); 4915 (Shirley Nieh); 4909 (Court requests again a detailed offer of proof for Brian Soriano to which defense counsel responds "Thank you. We'll be filing a detailed offer of proof."); 4924 (Court requests defense to cite a rule of evidence which allows Lisa Zhu's testimony; defense counsel responds, "I'll do a written offer of proof on that, Your Honor.").

24 See Trial Tr. of 12/23/2015 at 4900 (defense tells Court that Kevin Kwong will not be testifying at trial); 4925 (defense tells Court that they will have to replace Andrew Porter).

25 See id. at 4900 (defense states "I may have put Tseng Chow by mistake.").

26 See id. at 4921 (Court denies Chung Szto's testimony due to its cumulative nature); 4902-03 (Court confirms that Lee Chu Wa cannot be called as a witness because his testimony is inadmissible). The Court previously cautioned the defense about Szto at the December 18, 2015 hearing due to the cumulative nature of his testimony. See Trial Tr. of 12/18/2015 at 4264. The Court previously mentioned that Lee Chu Wa required a detailed offer of proof, which the defense never submitted. See id. at 4264-65.

Of the forty-nine witnesses that the defense submitted to the Court on December 17, 2015, the defense only raised eighteen at the hearing on December 23, 2015. See generally Trial Tr. of 12/23/2015 at 4668-939. Defense counsel thus chose not to revisit thirty-one witnesses from the list of forty-nine that they started with.²⁷ See id. at 4894-933; 4894 (Court asks, "who are the witnesses that you intend to call in the Defense? I'd like a list of them now."); 4895 (Court: "Okay, Mr. Briggs, the remaining witnesses are?"); 4895 (Court explains, "to be clear, it is which witnesses do you now intend to call in your case; and if you don't mention them, then . . . we're not going to have that witness."); 4896 (Court: "I just need to know who they [defense witnesses] are, and then we'll discuss them."); 4899-900 (Court counts the number of defense witnesses and explains, "So I have . . . 18 witnesses plus your expert. . . . Okay. So let's go through this group.").²⁸

27 At a later proceeding on December 28, 2015, Defendant requested that Rodrigo Ruez—one of the witnesses on the December 17, 2015 list of forty-nine—be allowed to testify. See Trial Tr. of 12/28/2015 at 4945, 4955-58.

28 The Court categorized roughly ten witnesses out of forty-eight submitted at the December 18, 2015 hearing as "No," "Not testifying," or "Irrelevant" based on the oral and written offers of proof submitted by the defense. See Trial Tr. of 12/18/2015 at 4176-271 (specifically: Tseng Chow; John, Ilia; Zula Jones; Tony Lau; Ed Lee; Tim O'Brien; Henry Seto; Brian Stretch; Frank Williams; Norman Yang). Thus, some witnesses rejected by the Court at the December 18, 2015 hearing could nonetheless have testified had defense counsel supplemented the offers of proof.

On December 28, 2015, at a subsequent hearing with both parties, the defense added to its witness list: • Darrell Buckins, an inmate at Glenn Dyer. The Court held that Mr. Buckins could testify and signed Defendant's proposed order to have him brought over from The Hall of Justice. See Trial Tr. of 12/28/2015 at 4966-68. Defendant never called Mr. Buckins. • Officer Cooper from Marysville, California. The Court held that Officer Cooper could testify about Jim Tat Kong's death, and the meetings of the Hop Sing Tong. See Trial Tr. of 12/28/2015 at 4968-69. Defendant never called Officer Cooper. • Elaine Ng, a restaurant owner. The Court held that Ms. Ng could testify as an impeachment witness, so long as Defendant identified the testimony to be impeached. See id. at 4972. Defendant never called Ms. Ng. • Deputy Kenneth Jones, a deputy at Glenn Dyer. The Court held that Deputy Jones could testify about the interactions he observed between Andy Li and Joe Chanthavong. Deputy Jones's testimony was allowed if Mr. Buckins was unable to testify about housing at Glenn Dyer. See id. at 4974-77. Defendant did call Mr. Jones. See Trial Tr. of 12/29/2015 at 5189-5206. In addition to the four new witnesses, Defendant only brought up five witnesses from the previous list of forty-nine, see Trial Tr. of 12/17/2015 at 3994, at the hearing on December 28, 2015. Again, there was a lengthy discussion of the witnesses that Defendant wished to call at trial: • Defendant informed the Court that Bing Chiu would not testify and that Chung Szto would be testifying in his place. See Trial Tr. of 12/28/2015 at 4955. The Court held that, absent testimony from Mr. Chiu, Mr. Szto's testimony would no longer be cumulative. See id. at 4953-55. • The Court confirmed that the testimony of Chris Kelley regarding the "first payment" would be admissible, provided there was a proper foundation. See id. at 4958-59. • Defendant asked about Tim O'Brien, whom the Court excluded on December 17, 2015, see Trial Tr. of 12/17/2015 at 4251-52, and the Court explained that Mr. O'Brien's testimony would be cumulative, see Trial Tr. of 12/28/2015 at 4960. • The Court held that it would permit Rodrigo Ruez to testify, given proper foundation, as to the fight between Andy Li and Chow and his personal relationship with Chow. See id. at 4958.

Defendant filed a document on December 28, 2015, entitled "Defense's Objection to Judicial Interference with Compulsory Process and Right to Present a Defense; Emergency Motion to Re-Open Cross Exam of UCE 4599 and Agent Pascua; General Offer of Proof for Witnesses Already Excluded by the Court." See Objection (dkt. 1234). Despite promising a "General Offer of Proof," the document failed to provide any information about any potential witness's ability to provide admissible evidence. See generally id.; id. at 13 (instead arguing broadly that "Chow is further prejudiced by being forced to move forward without necessary witnesses"). Defendant never submitted any further offers of proof as to any witnesses on its witness lists, despite repeated invitations from the Court to do so. See Trial Tr. of 12/23/2015 at 4915 (Court explains that "anybody I'm saying not going to testify, you want to put forward a detailed offer of proof as to exactly what that person would say, the source of that person's information, I'll look at it . . . ."); Trial Tr. of 12/31/2015 at 5441 (Court: "They may make an offer of proof at any time on anybody."); id. at 5476 (Court: "There were a number of witnesses, by the way, who I said You've made an inadequate . . . offer of proof, but I'm going to permit you to make a further offer of proof, and you never did." Defense counsel: "All right."). Defendant did not even write detailed offers of proof for the three witnesses whom he specifically assured the Court he would. See Trial Tr. of 12/18/2015 at 4266, 4271 (regarding Beverly Dong, defense states "we'll provide a more detailed offer of proof"; later, when discussing Ms. Dong's testimony defense counsel confirms, "that's what I'll provide in my more detailed offer of proof."); id. at 4909 (regarding Brian Soriano, defense states, "We'll be filing a detailed offer of proof."); Trial Tr. of 12/28/2015 at 4924 (regarding Lisa Zhu, defense counsel states, "I'll do a written offer of proof on that, Your Honor.").

In sum, although Defendant began with a witness list of seventy individuals, the list that he submitted to the Court and government on December 17, 2015, had forty-nine.²⁹ See Attached Exs. B and D. Of those, the Court requested a further offer of proof as to twelve witnesses, and Defendant only submitted one, which was inadequate, see supra notes 14 and 23; Objection at 6-9 (offering only a general offer of proof for Agent Pascua); the Court allowed seventeen witnesses that Defendant never called;³⁰ the Court excluded eight witnesses as cumulative, see supra note 17 (ruling seven witnesses as cumulative) and p. 22 (ruling Tim O'Brien as cumulative); and the Court excluded seven witnesses as either improper or irrelevant, see supra notes 20 and 28, or as providing unnecessary impeachment testimony, see supra note 15. Defendant never revisited the majority of the witnesses of the forty-nine submitted to the Court on December 17, 2015, despite an open invitation to submit offers of proof. See, e.g., Trial Tr. of 12/31/2015 at 5441 (The Court: "You can make your offer of proof . . . . They may make an offer of proof at any time on anybody."). Ultimately, the defense chose to call nine witnesses, including Defendant and two experts.³¹ The Court never set an absolute limit on the total number of witnesses that Defendant was permitted to call. See id. at 5489 (Court explaining: "Just because you want to call Smith, Jones, the President of the United States or something, and I say, No, you can't call these people, is not a limitation on witnesses; it's a decision that those people who are purportedly witnesses are not witnesses that I would permit to testify, but that's not limiting number."). As detailed here, the rulings the Court made with respect to defense witnesses resulted from a lengthy, multi-part, back-and-forth process with counsel, and not from any improper purpose. Further, Defendant has failed to demonstrate that the exclusion of any defense witnesses from the case in chief prejudiced him in any way, let alone necessitates a new trial.

29 As discussed above, Defendant subsequently added additional witnesses and retracted others.

30 See, e.g., Trial Tr. of 12/18/2015 at 4192 (Court allows Kevin Kwong to testify with "No objection" by the prosecution); 4193-94 (Court allows Bing Chiu's testimony about support of Chow and the reasons for his support); 4194-96 (Court allows Kevin Chiu to testify that Chow instructed him to not "participate in criminal activities"); 4196 (Court permits Ricky Chuong to testify); 4196-99 (Court allows Rudy Corpuz to testify regarding Chow's commitment to the youth in community); 4204 (Court allows Angela Hom to testify regarding her financial support of Chow); Trial Tr. of 12/18/2015 at 4231-32 (Court allows Wong Yuk Jung to testify with proper foundation); Trial Tr. of 12/23/2015 at 4914 (regarding Ricky Kullar); 4914 (Court confirms Pius Lee's testimony on the legitimacy of Chow's book deal); Trial Tr. of 12/18/2015 at 4241 (Court allows Wai Mu Ling to testify with proper foundation, following a previous holding that Ling's testimony appeared cumulative); 4253-54 (Court allows Rodrigo Ruez to testify with proper foundation); 4255 (Court permits Katie Seid's testimony); 4260-64 (Court hears argument regarding Paul Tsang and allows him to testify); Trial Tr. of 12/23/2015 at 4902 (Court allows Jose Trevino to testify about Chow's ankle monitoring and solicitation charges); See Trial Tr. of 12/28/2015 at 4966-68 (Court holds that Darrell Buckins could testify); 4968-69 (Court holds that Officer Cooper could testify); 4972 (Court holds that Elaine Ng could testify as an impeachment witness if defense counsel identified the testimony to be impeached).

31 See Trial Tr. of 12/21/2015 at 4283-474, Trial Tr. of 12/22/2015 at 4475-667, Trial Tr. of 12/23/2015 at 4680-4847 (Defendant); Trial Tr. of 12/23/2015 at 4848-55 (Eli Crawford); 4856-85 (Alicia Lo); Trial Tr. of 12/29/2015 at 5052-25 (Bennet Bronson, expert testimony); 5126-63 (Elaine Woo); 5164-89 (Chung Szto); 5189-207 (Kenneth Michael Jones); 5207-30 (Brian Michael Reuter, expert testimony); 5232-42 (Chris Kelley).

2. Defense Surrebuttal Witness

Defendant argues that a new trial is also necessary because Special Agent Mark Jaroszewski introduced a new issue during his rebuttal testimony and the Court prevented Defendant from calling a surrebuttal witness to respond to it. See Mot. at 13-15. Trial courts have broad discretion to admit or exclude surrebuttal evidence. See United States v. McCollum, 732 F.2d 1419, 1426 (9th Cir. 1984). It is not an abuse of discretion to exclude surrebuttal evidence that would be cumulative. See United States v. Butcher, 926 F.2d 811, 817 (9th Cir. 1991); see also Bennett By and Through Bennett v. Hosp. Corp. of Am., No. 89-35059, 1990 WL 119096, at *7 (9th Cir. Aug. 14, 1990) ("The decision whether material evidence that could have been presented in a case-in-chief should be allowed in rebuttal lies solely within the sound judicial discretion of the trial court.") (internal quotation marks omitted).

Defendant contends that Jaroszewski introduced a new issue, thus potentially confusing the jury, when he testified that Defendant was not placed in the Witness Security Program ("WSP") because he "equivocated on wanting to go into WSP, because he wanted to remain in the Bay Area and have contact with old friends." Mot. at 14. Defendant contends that this testimony was "misleading," as it suggested that "it was Chow's own fault he was not a part of WSP," when in fact government efforts to place Defendant in WSP were at one point renewed. Id.

Jaroszewski's testimony did not introduce a new issue, however. In his direct examination on the first day of trial, Special Agent William Wu testified that the FBI had agreed to submit a WSP application for Defendant, but that "Mr. Chow turned it down." Trial Tr. of 11/9/2015 at 418-19. Defense counsel was able to cross-examine Wu on this issue. See Trial Tr. of 11/10/2015 at 457-62. Wu testified on cross-examination that Defendant "turned down the application once he [knew] he needed to be relocated," which was "fairly early on" in the course of the processing of the application. Id. at 461. Defense counsel even questioned Wu about Defendant's having "su[ed] to get in the Witness Protection Program." Id. at 462. In his direct examination, Defendant testified at length about having wanted to enter WSP, and he mentioned the lawsuit that he filed against the United States. See Trial Tr. of 12/21/2015 at 4357 ("I expecting the Government, you know, to put me in the Witness Protection Program."); 4359 ("They promised to put me in the Witness Protection Program."); 4362 ("They say they put me in the Witness Protection Program. . . . And also later on, you know, they're taking so long, you know, and I think I filed a lawsuit to that issue to bring it back to Judge Jensen, the courtroom, and asking about my S visa. And then I find out they never did put it in . . . ."); 4365 ("I asked them—I asked William and I asked Mark, and many time, even I said that in Judge Jensen in court, I asked more than 50 time and—about the Witness Protection Program, and they say, you know, I'm okay with it. . . . I want to get a new start."). That lawsuit gave rise to the documents that he now argues he would have offered in surrebuttal. See Mot. Exs. B (Chow Decl.), C (DLJ Order).

A surrebuttal witness—presumably Defendant³²—who could testify that Defendant had wanted to be in WSP and had even filed suit to bring that about would have been cumulative; Defendant had already so testified. Id. at 4357-65. Moreover, Defendant could have sought to introduce the relevant documents in connection with Wu's cross-examination, his own direct, or Jaroszewski's cross-examination.³³ Defense counsel was on notice from the first day of the case that Defendant's lack of participation in the WSP program was at issue, but he chose not to introduce the documents. The Court held two hearings on the subject of a surrebuttal witness on the WSP issue—first when defense counsel proposed that Defendant testify, see Trial Tr. of 12/31/2015 at 5454 (The Court: "So far what you've told me Mr. Chow will testify to doesn't meet any of those standards. It's lengthy. Your client has already testified as to his intentions with respect to WitSec. And I would—on that basis, I'd not permit him to testify further."), and then later that day based on defense counsel's representations that "either Henry Wong or Jerry Fong" (Defendant's attorneys in his WSP lawsuit against the government) would testify about Defendant's interest in WSP, id.—and concluded that the proposed evidence was not proper surrebuttal, was of marginal relevance, and did not even contradict the government's point, id. at 5466-75. The rulings on a surrebuttal witness were not an abuse of discretion and do not necessitate a new trial.

32 See Trial Tr. of 12/30/2015 at 5347 (Defense counsel (referring to Defendant and WSP): "But he can take the stand and rebut it." The Court: "Oh, you intend to call him?" Defense counsel: "I wouldn't rule it out at this point. I have to see what documents I have."); Trial Tr. of 12/31/2015 at 5449 (Defense counsel making offer of proof that Defendant would testify that he wanted to be in the WSP).

33 Defense counsel asserted that he had documents in his office to show that it was not true that Defendant did not want to go into WSP. See Trial Tr. of 12/30/2015 at 5346 (Defense counsel: "I believe that I have documents in my office that will show that's not true.").

F. Juror Misconduct

Defendant next argues that a new trial is warranted because the Court improperly allowed a juror to remain on the jury for weeks following a report that he made improper remarks about the case to his sister. See Mot. at 15-16. Defendant argues:

Apparently the risk of this juror [having] infected other jurors with his conclusions was not important enough to dismiss him promptly. The juror had likely, after all, already ignored the Court's admonition not to discuss the case, form any opinions, or convey those opinions to anyone else—as evidenced by the Court's ultimate decision to excuse the juror—but Judge Breyer allowed him to remain on the jury for weeks, ostensibly to avoid a mistrial due to too few jurors.

// // // // Id. The motion goes on to say that "[d]ue to time constraints in filing this motion, references to the record are available only upon request. . . . An exhaustive search by counsel at this time is not feasible." Id. at 16 n.12.³⁴

34 This assertion is problematic. The rules require the citation of pertinent authorities in a written motion. See Crim. L.R. 47-2 (format of motion shall comply with requirements of Local Civil Rule 7-2(b) and (c)); Civ. L.R. 7-2(b)(4) (motion must contain points and authorities in support of motion in compliance with Local Civil Rule 7-4(a)); Civ. L.R. 7-4(a)(5) (motion must contain argument by the party "citing pertinent authorities"). Defendant received multiple extensions to complete his filing, see Order Granting Extension; Order Granting Request to Reset Hearing Submission and Hearing Dates; Min. of 3/23/2016, and had ample time to comply with the rules.

"[E]ven a single partial juror violates a defendant's constitutional right to a fair trial." United States v. Angulo, 4 F.3d 843, 848 (9th Cir. 1993). "[W]hen jurors prematurely discuss the case among themselves, it may amount to juror misconduct." Anderson v. Calderon, 232 F.3d 1053, 1098 (9th Cir. 2000), overturned on other grounds by Osband v. Woodford, 290 F.3d 1036, 1039 (9th Cir. 2002). "The test is whether or not the misconduct has prejudiced the defendant to the extent that he has not received a fair trial." Anderson, 232 F.3d at 1098 (quoting United States v. Klee, 494 F.2d 394, 396 (9th Cir. 1974)). Premature deliberations are "not as serious as 'private communication, contact, or tampering . . . with a juror during a trial [or] . . . influence of the press upon the jury,' nor does 'every incident or juror misconduct require[] a new trial.'" Davis v. Woodford, 384 F.3d 628, 655 (9th Cir. 2003) (quoting Klee, 494 F.2d at 396). "A court confronted with a colorable claim of juror bias must undertake an investigation of the relevant facts and circumstances." Dyer v. Calderon, 151 F.3d 970, 974 (9th Cir. 1998) (en banc). The Ninth Circuit has explained that "[w]hat is crucial is 'not that jurors keep silent with each other about the case but that each juror keep an open mind until the case has been submitted to the jury.'" Davis, 384 F.3d at 653.

The incident here came to light when government counsel alerted the Court one morning that an acquaintance had reported to government counsel that, at a dinner party over the weekend, a woman told the acquaintance that the woman's brother was on Defendant's jury and "said that her brother said that Mr. Chow is guilty." Trial Tr. of 12/15/2015 (under seal proceedings) at 3311. Over the course of about a week, the Court undertook an investigation, questioning the juror, the juror's sister, and four other dinner guests about the incident in a series of under seal proceedings. See Trial Tr. of 12/15/2015 (under seal proceedings) at 3416-25; Trial Tr. of 12/16/2015 (under seal proceedings) at 3729-41; Trial Tr. of 12/17/2015 (under seal proceedings) at 3980-85; Trial Tr. of 12/18/2015 (under seal proceedings) at 4207-27; Trial Tr. of 12/21/2015 (under seal proceedings) at 4380-82. Counsel was present for those proceedings (and the jury was not), and the Court supplemented its own questions with those suggested by counsel. See, e.g., Trial Tr. of 12/18/2015 (under seal proceedings) at 4212 (defense counsel: "And that's exactly the area that I was going to request. . . ." The Court: "Let me ask that. Thank you, Mr. Serra."), id. at 4214 (defense counsel: "Judge, it appears that she was contacted by phone." The Court: "I can pursue that."), id. at 4226 (defense counsel, regarding a subsequent witness: "Your Honor, I'd like you to ask her whether she's been contacted by anyone." The Court: "Okay. I will.").

The juror stated that, while his sister speculated that he was on Defendant's jury, the juror did not discuss the case with her at all and did not discuss his opinion with respect to the Defendant's guilt or innocence. See Trial Tr. of 12/15/2015 (under seal proceedings) at 3420. He further stated that he had followed the instruction not to form or express any opinion as to the guilt or innocence of the Defendant, and that he could follow that instruction going forward. Id. at 3420-21.³⁵ The juror's sister stated that her brother had not expressed an opinion to her as to whether or not the Defendant was guilty or innocent and that he never told her if he was on the jury. Trial Tr. of 12/16/2015 (under seal proceedings) at 3730. One dinner guest stated that the sister had said: "My brother thinks he's guilty," Trial Tr. of 12/17/2015 (under seal proceedings) at 3983, while the three other dinner guests either did not recall the statement being made, see Trial Tr. of 12/18/2015 (under seal proceedings) at 4210, did not know whether a statement about Defendant's likely guilt originated with the juror "or whether we were all just saying that," see id. at 4225 , or believed that the statement was the juror guessing "what she thought her brother would think because that's what she was thinking," Trial Tr. of 12/21/2015 (under seal proceedings) at 4384. The Court found the juror and his sister to be credible in their accounts, observing that the juror seemed "surprise[d] that somebody would think that he actually did express an opinion" on the case. Trial Tr. of 12/16/2015 (under seal proceedings) at 3740-41.

35 The Court asked defense counsel how they wished to proceed, and counsel asked the Court to do an inquiry of the juror's sister and other dinner guests; they did not ask the Court to remove the juror or move more quickly. See Trial Tr. of 12/15/2015 (under seal proceedings) at 3423-25.

The Court invited the parties to submit briefing on the juror issue, indicating that it understood that Defendant was moving to excuse the juror; the defense and government agreed to submit briefs by December 28, 2015, and December 30, 2015, respectively. Trial Tr. of 12/23/2015 at 4892-93. Defense counsel did not object to this schedule or ask the Court to move more quickly. See id. The Court advised the parties that it would rule on the issue before deliberations, and that if it granted Defendant's motion, the juror would not participate in deliberations. Trial Tr. of 12/31/2015 at 5500. Defense counsel did not object to this plan or ask the Court to move more quickly. See id. Although the Court ultimately granted Defendant's motion to excuse the juror and to put an alternate in his place, the Court explained:

I'm not making any findings, and I will explain that to him that—basically that I didn't want an issue over the appearance of something to cloud—potentially cloud a decision in this case. So it's just out of an abundance of caution I'm excusing him. I'm certainly not making any finding that he violated his oath as a juror. I found that he did not. I mean, I would not find that he did.

Trial Tr. of 1/5/2016 at 5839-40. Contrary to Defendant's argument, then, the Court did not find that the juror had engaged in any misconduct. See Mot. at 15-16.

Moreover, even if the juror had prematurely formed an opinion about Defendant's guilt, Defendant has failed to demonstrate any prejudice. See Anderson, 232 F.3d at 1098. The Court instructed the jurors at the beginning of the case not to decide what the verdict should be until the jury had completed deliberations. See Trial Tr. of 11/9/2015 (jury instructions) at 262. The Court further instructed the jurors not to communicate with anyone, including fellow jurors, in any way about the merits of the case until deliberations had begun. Id. at 263. The Court instructed the jury at every break in the case not to form or express an opinion about the case. See, e.g., Trial Tr. of 11/9/2015 at 363. The Court underscored that instruction before longer breaks in the case. See, e.g., Trial Tr. of 11/24/2015 at 1817-19 (The Court: "I have done this throughout the case and throughout the trial, but it's especially important now . . . [to] keep an open mind until all the evidence is in. . . . [Remember that] the Judge said wait until it's all over. Wait until everything is in."); Trial Tr. of 12/23/2015 at 4888 (The Court: "First, keep an open mind throughout the trial. And do not decide what the verdict should be until you and your fellow jurors have completed your deliberations at the end of the case."); Trial Tr. of 12/30/2015 at 5342-46 (". . . and I want to admonish you not to discuss the case, allow anyone to discuss it with you, form or express any opinion."). The Court also instructed the jurors at the close of the case not to begin their deliberations until after he advised them to commence. See Trial Tr. of 1/5/2016 (Final Jury Instructions) at 5838. Immediately after that instruction, the Court excused and replaced the juror involved in the incident. Compare id. with id. at 5839. There is no evidence that the juror discussed his opinion or the incident with other jurors before he was replaced. See Trial Tr. of 12/17/2015 (under seal proceedings) at 3993 (The Court: "I think that the likelihood of the juror right now doing anything—that is, discussing it and so forth—I think is remote . . . ." Defense counsel: "I certainly agree."). The Court presumes that the jury followed the Court's instructions and did not begin deliberating until after the juror was replaced. See Weeks v. Angelone, 528 U.S. 225, 234 (2000) (jurors are presumed to follow their instructions); see also United States v. Stinson, 647 F.3d 1196, 1216 (9th Cir. 2011) (quoting United States v. Bagnariol, 665 F.2d 877, 885 (9th Cir. 1981)) ("The judge's conclusion about the effect of the alleged juror misconduct deserves substantial weight.").

Accordingly, the Court's having allowed the juror to remain on the jury for some period of time before the jury began its deliberations does not necessitate a new trial.

G. Prejudicial Treatment of Defense Counsel

Defendant next argues that this Court's prejudicial treatment of defense counsel, specifically Mr. Briggs, in the presence of the jury warrants a new trial. See Mot. at 16-23. Defendant asserts that the Court "made sua sponte, blatant, disrespectful, and disparaging remarks to defense counsel so as to discredit the defense in front of the jury and thwart effective examination of counsel." Id. at 17. There is no basis for this claim, and for the reasons stated in the government's opposition brief, see Opp'n at 24-27, it does not necessitate a new trial.

H. Offensive Treatment of Defendant During Cross-Examination

Defendant next argues that the "Court's treatment of Mr. Chow on the witness stand was outrageous," and consisted of not allowing Defendant to complete his answers, repeating government questions, and refusing to acknowledge defense objections during Defendant's cross-examination. See Mot. at 23-34. There is no basis for this claim, and for the reasons stated in the government's opposition brief, see Opp'n at 27-33, it does not necessitate a new trial.

I. Prohibition on Questions Regarding Undercover Program Authorizations

Defendant next argues that the Court improperly prohibited Defendant from questioning government witnesses on "undercover program authorizations" and their participation in otherwise illegal activity. See Mot. at 34-41. There is no basis for this claim, and for the reasons stated in the government's opposition brief, see Opp'n at 33-43, it does not necessitate a new trial.

J. Defendant's Remaining Arguments

Defendant purports to include another ten arguments in his motion (arguments X through XX), but for each one he provides only headings, devoid of any argument, citations to the record, or legal authority. See Mot. at 42-43 (stating for each issue only: "The defense is unable to fully detail this category at this time, however, the defense has a good faith basis to believe the trial record and facts support this notion."). This will not do. This Court's rules require the citation of pertinent authorities in a written motion. See Crim. L.R. 47-2(b) (format of motion shall comply with requirements of Local Civil Rule 7-2(b) and (c)); Civ. L.R. 7-2(b)(4) (motion must contain points and authorities in support of motion in compliance with Local Civil Rule 7-4(a)); Civ. L.R. 7-4(a)(5) (motion must contain argument by the party "citing pertinent authorities"). "It is not asking too much that the burden of showing essential unfairness be sustained by him who claims such injustice and seeks to have the result set aside, and that it be sustained not as a matter of speculation but as a demonstrable reality." United States ex rel. Darcy v. Handy, 351 U.S. 454, 462 (1956). Defendant received multiple extensions to complete his filing, see Order Granting Extension; Order Granting Request to Reset Hearing Submission and Hearing Dates; Min. of 3/23/2016, and had ample time to comply with the rules. He did not seek a further extension of time before filing his motion, which spans fifty pages.

Although Defendant did file a "Supplemental Submission to his Rule 33 New Trial Motion," without leave to do so, on May 3, 2016,³⁶ see Suppl., the two additional arguments it contains are both untimely and unpersuasive.

36 Defense counsel filed this Supplement eighteen days after the new trial motion was due. See Suppl.; Min. of 3/23/2016.

The first argument in the Supplement is that the Court improperly prohibited Defendant from calling witnesses on the issue of outrageous government conduct, which Defendant asserts would have enabled him to argue "that the Government was so intent on capturing him, and building their case against him[,] that they went to extreme lengths to get those around Chow to bring him in, to connect him with their criminal activity with [undercover agent] Dav[id] Jordan." Id. at 1. The Court precluded evidence and argument about outrageous government conduct at the pretrial conference, in ruling on a government motion in limine that argued convincingly that (1) outrageous government conduct is a question of law directed to the trial judge, not a jury question, and (2) there was a significant potential for irrelevant argument and evidence, which could confuse the jury. See Min. of 9/28/2015 (dkt. 1042); Gov't Mot. in Lim. (dkt. 984) at 6 (citing United States v. Bogart, 783 F.2d 1428, 1431 (9th Cir. 1986), vacated on other grounds with respect to one defendant sub nom., United States v. Wingender, 790 F.2d 802 (9th Cir. 1986)).³⁷ Defendant did not file a motion to dismiss for outrageous government conduct until after voir dire had taken place in this case, see MTD for Outrageous Government Conduct (dkt. 1107), and the Court explained that—rather than put the trial on hold—it would postpone the motion hearing pending the jury's determination, see Mot. Hr'g (dkt. 1136); Trial Tr. of 11/16/2015 at 1119 (The Court: "[t]he traditional way of handling this motion is pretrial, we're way past that point. So nothing is really saved by adjudicating the issue in the beginning. . . . I would anticipate that a number of the questions that have been raised . . . will be answered, at least in part, by the proceedings. . . . [d]epending on the outcome of the trial, the matter will either be presented for adjudication or not."). Defense counsel was amenable to this approach. See id. at 1121 ("defense counsel: We think it's extremely fair that we proceed that way.") (emphasis added). Defendant is currently pursuing a new motion for outrageous government conduct. See Order Setting Briefing Schedule on Motion for Outrageous Government Conduct (dkt. 1442); 2nd MTD for Outrageous Government Conduct (dkt. 1450).³⁸ The Court's rulings to preclude, during trial, evidence on the subject of outrageous government conduct were not improper and do not necessitate a new trial.

37 See also Trial Tr. of 12/18/2015 at 4159 (The Court: "arguments about, quote, 'outrageous government conduct,' 'lawlessness of conduct,' and so forth, are not issues for the jury. We had this discussion months ago, and I said then, and I repeat it now, if there is evidence of outrageous government conduct, I will address that, but it is not a jury determination.").

38 See also Order Granting Continuance on Motion to Dismiss for Outrageous Government Conduct (dkt. 1449) (granting Defendant's request for a continuance). --------

The second argument in the Supplement is that the government violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose a 2002 use immunity agreement. See Suppl. at 4-5. As there is no evidence that such an agreement ever existed (see supra, Section III(A)), this argument does not necessitate a new trial.

Accordingly, Defendant's ten remaining arguments do not support the grant of a new trial.

IV. CONCLUSION

For the foregoing reasons, Defendant's motion is DENIED.

IT IS SO ORDERED. Dated: June 2, 2016

/s/_________

CHARLES R. BREYER

UNITED STATES DISTRICT JUDGE