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United States v. Yong

United States Court of Appeals, Ninth Circuit

June 7, 2019

United States of America, Plaintiff-Appellee,
v.
Seng Chen Yong, Defendant-Appellant.

          Argued and Submitted September 6, 2018 San Francisco, California

          Appeal from the United States District Court for the District of Nevada D.C. Nos. 2:15-cv-02476-APG, 2:14-cr-00249-APG-PAL-3 Andrew P. Gordon, District Judge, Presiding

          Thomas C. Goldstein (argued) and Tejinder Singh, Goldstein & Russell P.C., Bethesda, Maryland, for Defendant-Appellant.

          Elizabeth O. White (argued), Appellate Chief; Adam Flake, Assistant United States Attorney; Steven W. Myhre, Acting United States Attorney; United States Attorney's Office, Las Vegas, Nevada; for Plaintiff-Appellee.

          Before: Marsha S. Berzon and Michelle T. Friedland, Circuit Judges, and Kathleen Cardone, [*] District Judge.

         SUMMARY[**]

         28 U.S.C. § 2255

         The panel affirmed the district court's denial of Seng Chen Yong's 28 U.S.C. § 2255 motion to vacate his guilty plea and set aside his misdemeanor conviction related to operating an unlawful sports betting operation.

         Yong argued that his guilty plea was involuntary because it was improperly conditioned on leniency for his son and was tainted by government misconduct.

         The panel held that a guilty plea made in exchange for leniency to a third party is involuntarily made if the government lacked probable cause to prosecute the third party at the time of the guilty plea. Considering the totality of the circumstances, the panel held that the Government had probable cause to prosecute Yong's son at the time of Yong's plea.

         Rejecting Yong's contention that the Government's pervasive misconduct required reversal, the panel did not believe that the misconduct tainted his plea or otherwise improperly induced it, where Yong was aware of the misconduct and decided to plead guilty nevertheless.

          OPINION

          CARDONE, DISTRICT JUDGE:

         Defendant-Appellant Seng Chen Yong ("Yong") appeals the denial of his 28 U.S.C. § 2255 motion to vacate his guilty plea and set aside his misdemeanor conviction related to operating an unlawful sports betting operation. Yong and a group of associates were originally charged with felonies related to an illegal sports betting operation based in Caesars Palace Hotel & Casino ("Caesars") in Las Vegas during the 2014 World Cup soccer tournament. As part of a group plea deal, Yong and three co-defendants pleaded guilty to the misdemeanor of acting as an accessory after the fact to co-defendant Hui Tang's violations of the Wire Act, 18 U.S.C. § 1084. In exchange for this group plea, the Government dismissed felony charges pending against Yong's son, Wai Kin Yong ("Wai Kin"). On appeal, Yong argues that his guilty plea was involuntary because it was improperly conditioned on leniency for Wai Kin and was tainted by government misconduct.

         As to the first issue, we consider, as a matter of first impression, the standard for determining the voluntariness of guilty pleas obtained through offers of leniency for third parties. We hold that a guilty plea made in exchange for leniency to a third party is involuntarily made if the government lacked probable cause to prosecute the third party at the time of the guilty plea. Because the Government had probable cause to prosecute Wai Kin at the time of Yong's plea, we affirm. We likewise affirm on the government misconduct challenge, as Yong was aware of the Government's misconduct at the time of his plea but nonetheless pleaded guilty.

         FACTUAL AND PROCEDURAL HISTORY

         In June of 2014, a group of gamblers from Asia traveled to Las Vegas for the 2014 FIFA World Cup soccer tournament kickoff. The group stayed at Caesars in luxury villas ranging in size from 8, 000 to 12, 000 square feet. Yong, his son Wai Kin, and their guests stayed in Villa 8881. Wei Seng Phua ("Phua"), his son Wai Kit Phua ("Wai Kit"), and their guests stayed in Villa 8882. Hui Tang and his guests stayed in Villa 8888.

         During this stay, a Caesars employee entered Villa 8888 to check on the condition of the suite. The employee noticed an array of computers and computer monitors that were not normally present in the room and were arranged in an unusual configuration. The employee reported the presence of the computers to his supervisors. Caesars technical support and security staff discovered that the guests of Villa 8888 had requested the installation of an unusual amount of technical equipment, including eight computers, multiple monitors, three televisions connected to three different cable/satellite television providers, desk telephones, and enhanced Digital Subscriber Line ("DSL") internet access. The Caesars management was concerned that the arrangement could be used to operate an illegal sports book. Caesars informed the Nevada Gaming Control Board ("NGCB"), which informed the Federal Bureau of Investigation, which opened an investigation. The FBI suspected that the individuals in the three villas were jointly participating in an illegal betting operation but lacked sufficient evidence to pursue a case against anyone except the individuals staying in Villa 8888.

         After brainstorming about how to "tighten up the [probable cause]," and with assistance from a contractor responsible for internet services at Caesars, the FBI agents and the assistant United States Attorney assigned to the case devised a plan to search the villas without obtaining a warrant. FBI agents, together with NGCB agents and the cooperating IT contractor, attempted to disrupt the DSL internet service to villas 8882 and 8888, the Phua and Tang villas respectively. They did so in the hope of generating a call for service-and with such a call, the opportunity to enter the villas. No call for service came, but someone in Villa 8882 requested a laptop. Seizing on the opportunity, the contractor and an FBI agent posing as the contractor's employee went to deliver the laptop. When they entered Villa 8882, the contractor and the agent heard what sounded like a sporting event playing in the background, but a butler prevented them from going further into the suite.

         Sometime later, the contractor received a service call from Villa 8881 reporting that the internet was not working. Realizing that he had accidentally disrupted the internet service for Villa 8881 instead of Villas 8882 and 8888, the contractor reconnected Villa 8881's internet and then entered Villa 8881 to look around, acting as though he was responding to the service call even though he had already fixed the disruption. The contractor carried on a fake telephone conversation "to make it look like [he was] there for a legitimate purpose," and recorded the visit on his cell phone. Yong was present in Villa 8881 while the contractor was there, looking at what appeared to the contractor to be a sports website of some kind.

         The next day, the contractor tried to disrupt the service to Villa 8882 again and this time succeeded. After Phua told the butler on duty that the internet was not working, the butler put in a call for service. Two agents masquerading as technicians and wearing body cameras responded to the call so they could look for incriminating evidence. When they entered Villa 8882, the agents found Phua sitting at a laptop computer, viewing a sports betting site. On Phua's computer, the agents also saw an open instant messaging window containing the words "good luck on the hedge bet," or something similar. Another person was also viewing a sports-betting website, but he quickly switched to viewing the Google search page when he noticed an agent approaching. Yong was there as well, visiting from Villa 8881, but he was not using a laptop.

         The agents, with the help of an assistant United States Attorney, filed a warrant application to search Villas 8881, 8882, and 8888. The warrant application omitted the fact that the agents had only been able to enter the villas by surreptitiously disrupting the DSL. In fact, the agents created multiple documents designed to give the false impression that the internet outages had been fortuitous, rather than orchestrated by the FBI. In addition, the warrant application asserted that the contractor, on his visit to Villa 8881 after the accidental disruption of internet service to that suite, saw Yong monitoring "odds for ...


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