Appeal from the United States District Court for the Central District of California. D.C. No. CR-91-0678-DT-1. Dickran M. Tevrizian, District Judge, Presiding
Before: Wood, Jr.,*fn** Reinhardt and Rymer, Circuit Judges.
Following a jury trial, Yi-Hai Lin was convicted of using an altered passport. Lin asserts the conviction is based on insufficient evidence and tainted by violations of the Fifth Amendment. For the reasons stated below we reject Lin's arguments and affirm his conviction.
Defendant-Appellant Yi-Hai Lin, a citizen of China, tried to become a citizen of the United States. According to Lin, he had been accused of being a participant in the June 1990 student uprising in Beijing and consequently had received death threats. Lin found an escape from these threats in the person of Mr. Chen, a man Lin says he happened to meet in a hotel lobby. Mr. Chen reportedly offered to provide Lin with the necessary documents to exit China; all Mr. Chen needed was $4,000 and two photographs of Lin. Lin provided the cash and photos to Mr. Chen.
Two weeks later Mr. Chen gave Lin a genuine United States passport and an airplane ticket to America. Lin left Beijing, flew to Tokyo, changed planes, and then flew to Los Angeles, arriving on June 17, 1991. At Los Angeles a customs inspector stopped Lin. A short while later, Lin was interviewed by INS Agent Chet Chen who is fluent in Chinese.
Agent Chen asked Lin for his name and date and place of birth. Lin answered these questions truthfully and Agent Chen noted that the answers did not match up with the information in the passport. Although the passport contained Lin's photograph, it had been issued to a man named Chi Ching Lo. When Lin was asked about the discrepancies in the passport he refused to answer any questions.
On July 24, 1991, INS Agent Gallagher arrested Lin and read him his Miranda rights at the immigration facility in San Pedro, California. Defendant later invoked his right to remain silent while being booked by Agent Gallagher at the immigration office in Los Angeles. Subsequent analysis of Lin's passport revealed that Chi Ching Lo's photograph had been removed and replaced with one of Lin; the original laminate covering Lo's photograph had also been replaced with a counterfeit laminate. Written alterations had also been made to the biographical information contained in the passport.
A two-count indictment was filed on August 6, 1991, that charged Lin with using an altered United States passport in violation of 18 U.S.C. § 1543 and with improper entry by an alien in violation of 8 U.S.C. § 1325. Lin pled not guilty to the charges and was tried before a jury. The trial lasted two days. At the close of the government's case and again at the close of the Defendant's case, Lin moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. The court denied both motions.
Lin also twice moved for a mistrial, arguing the government violated his Fifth Amendment rights by referring to Lin's silence at the time of his arrest. The court denied these motions. On October 3, 1991, the jury acquitted Lin on the improper entry charge but convicted him for using an altered passport. In November the district court sentenced Lin to four months in prison followed by a two-year supervised release. Lin has completed his term of incarceration and has been deported to China.
Lin maintains the district court erred by (1) denying his motions for judgment of acquittal, arguing the evidence was insufficient to support his conviction; (2) denying his motions for mistrial, arguing the government improperly commented on Lin's post-Miranda silence.
A. Sufficiency of Evidence
"Whoever willfully and knowingly uses, or attempts to use . . . any . . . false, forged, counterfeited, mutilated, or altered passport . . . shall be fined not more than $2,000 or imprisoned not more than five years, or both." 18 U.S.C. § 1543. After a two-day trial, a jury convicted Lin of violating this statute. Lin ...