19-761 United States v. Ho

United States Court of Appeals For the Second Circuit

August Term 2019

Argued: March 11, 2020 Decided: December 29, 2020

No. 19-761

UNITED STATES OF AMERICA,

Appellee,

v.

CHI PING PATRICK HO, AKA PATRICK C.P. HO,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of New York No. 17-cr-779, Loretta A. Preska, Judge.

Before: RAGGI, CHIN, AND SULLIVAN, Circuit Judges.

Defendant-Appellant Chi Ping Patrick Ho appeals his conviction after trial in the Southern District of New York (Preska, J.) on charges of conspiracy to violate the Foreign Corrupt Practices Act (“FCPA”), conspiracy to commit money laundering, substantive money laundering, and violations of the FCPA. Ho argues that (1) the evidence was insufficient to support his FCPA conviction under 15 U.S.C. § 78dd-2; (2) the district court erroneously instructed the jury that a violation of § 78dd-3 constituted specified unlawful activity that could support a money laundering conviction; (3) the wires at issue in his money laundering conviction did not go “to” or “from” the United States as required to convict; (4) the district court abused its discretion in admitting certain evidence at trial; and (5) the indictment was invalid because it contained material contradictions and charged Ho under mutually exclusive sections of the FCPA. We reject each of Ho’s arguments and affirm the district court’s judgment in all respects.

AFFIRMED.

BENJAMIN E. ROSENBERG, Dechert LLP, New York, New York (Katherine M. Wyman, Dechert LLP, New York, New York, Edward Y. Kim, Jonathan F. Bolz, Krieger Kim & Lewin LLP, New York, New York, on the brief), for Defendant-Appellant Chi Ping Patrick Ho.

DOUGLAS ZOLKIND, Assistant United States Attorney (Daniel C. Richenthal, Catherine E. Ghosh, Anna M. Skotko, Assistant United States Attorneys, for Audrey Strauss, Acting United States Attorney for the Southern District of New York, Paul A. Hayden, Trial Attorney, Fraud Section, Criminal Division, United States Department of Justice, on the brief), for Appellee United States of America.

RICHARD J. SULLIVAN, Circuit Judge:

Defendant-Appellant Dr. Chi Ping Patrick Ho, a citizen of Hong Kong,

appeals from a judgment of conviction entered March 27, 2019, in the United States

District Court for the Southern District of New York (Preska, J.), following a jury

2 trial. The indictment principally alleged that Ho, as an officer or director of a U.S.-

based organization, paid bribes on behalf of a Chinese company to the leaders of

Chad and Uganda in exchange for commercial advantages. The jury convicted Ho

on seven counts charging violations of and conspiracy to violate two provisions of

the Foreign Corrupt Practices Act (“FCPA”), 15 U.S.C. §§ 78dd-2 and 78dd-3, and

the money laundering statute,

(a)(2)(A). Judge Preska sentenced

Ho to 36 months’ imprisonment and imposed a fine of $400,000.

On appeal, Ho challenges his conviction on several grounds, maintaining

that (1) there was insufficient evidence supporting his convictions under § 78dd-2

of the FCPA; (2) a violation of § 78dd-3 of the FCPA is not a specified unlawful

activity under the money laundering statute; (3) the money laundering statute

does not cover a transaction that merely goes “through” correspondent bank

transfers in the United States; (4) the district court abused its discretion in

admitting certain evidence at trial; and (5) the indictment was defective as it

contained material contradictions and charged Ho under mutually exclusive

sections of the FCPA. For the reasons set forth below, we reject each of Ho’s

challenges and affirm the district court’s judgment.

3 I. BACKGROUND 1

The evidence at trial established that Ho used his position as an officer or

director of a U.S.-based non-governmental organization (“NGO”) to engage in two

bribery schemes for the benefit of China CEFC Energy Company Limited (“CEFC

Energy”), a for-profit conglomerate based in Shanghai. CEFC Energy funded a

non-profit NGO in Hong Kong known as the China Energy Fund Committee, or

CEFC Limited (“CEFC NGO”). That entity, in turn, funded a non-profit U.S.

entity, China Energy Fund Committee (USA) Inc. (the “U.S. NGO”), which was

incorporated in Virginia, where it had an office, and which used a suite affiliated

with CEFC Energy in Trump World Tower in New York. A former employee of

CEFC NGO testified that CEFC NGO treated the U.S. NGO as the U.S. arm of its

organization. See App’x at 194–204; see also discussion infra Section III.A. Beyond

funding the U.S. NGO, CEFC NGO held itself out as an organization

“headquartered in Hong Kong” with an office “in the United States,” App’x at 731,

and touted itself as a “Chinese think tank registered in Hong Kong and also in the

1Because Ho appeals his conviction following a jury trial, we recite the facts from the trial evidence “in the light most favorable to the government, crediting any inferences that the jury might have drawn in its favor.” United States v. Napout,

(2d Cir. 2020) (internal quotation marks omitted).

4 USA as a public charity,” with “special consultative status” with the United

Nations, id. at 592.

Ho served as an officer and the principal director of CEFC NGO, holding

the title of Secretary General. He was also an officer and director of the U.S. NGO,

and ran the daily operations of both entities. As part of his work with CEFC NGO

(including through the U.S. arm), Ho often visited the United Nations and made

contacts with high-ranking officials, including Presidents of the UN General

Assembly, to help CEFC Energy find business opportunities. As relevant to this

case, Ho engaged in two schemes – the “Chad scheme” and the “Uganda scheme”

– to advance CEFC Energy’s commercial interests.

A. Chad Scheme

Around September 2014, a CEFC Energy official asked Ho to arrange a

meeting with the President of Chad, Idriss Déby (“Déby”), to help CEFC Energy

pursue business in Chad. Ho agreed and asked a former President of the UN

General Assembly, Vuk Jeremić, for an introduction to Cheikh Gadio, a former

Foreign Minister of Senegal who knew Déby. Jeremić contacted Gadio and

suggested that he meet Ho, his “friend[] from China who was doing a lot of work

with the United Nations” and working at a Chinese oil company. App’x at 250.

5 Gadio and Ho eventually met at the Trump World Tower suite used by

CEFC Energy and the U.S. NGO. There, Ho explained CEFC Energy’s interest in

Chad and sought Gadio’s assistance in gaining access to Déby. Gadio agreed to

help set up meetings between CEFC and Déby. In late October 2014, Gadio met

with Déby in Chad, and advised Ho that Déby was interested in working with

CEFC Energy.

Later that year, Ho and a delegation from CEFC Energy met with Déby in

Chad on several occasions. At the first meeting, in November 2014, Déby invited

CEFC Energy to consider an opportunity to acquire an oilfield in Chad. He noted

that other oil companies were interested in that block and suggested next steps to

enable CEFC Energy to advance a bid. About a week later, Ho asked Gadio to

arrange another meeting with Déby. Gadio advised against a second meeting at

that time, but in the face of Ho’s insistence, set up the meeting.

The second meeting took place on December 8, 2014, at Déby’s presidential

compound and involved a delegation from CEFC Energy, Ho, Gadio, and Gadio’s

son and business partner, Boubker Gadio, as well as Déby and his chief of staff.

The participants discussed the Chadian oilfield opportunity, and at the end of the

meeting, the CEFC delegation presented Déby with wrapped gift boxes. Déby did

6 not open the boxes until after the meeting; when he did, he found that the boxes

contained $2 million in cash. Déby called Gadio – who by this time had gone back

to his hotel – and demanded that he return to the compound.

When Gadio arrived, Déby expressed outrage that the boxes contained cash.

Déby asked Gadio if he knew in advance about the cash gift, and Gadio responded

that he did not. At Déby’s request, Ho, Gadio, and the CEFC delegation met with

Déby and his chief of staff the next day, December 9, 2014. At that meeting, Déby

expressed shock and anger at receiving cash, and explained that he did not know

“why people believe all African leaders are corrupt.” Id. at 300.

Ho responded that he was “very impressed by [Déby’s] reaction and . . .

attitude,” id. at 301, while members of the CEFC delegation insisted that the cash

had been intended as a donation to the country, not as a bribe to Déby. Déby

replied that “donations are not made this way” and again refused to accept the

cash. Id. at 304. Ultimately, the delegation promised a formal letter of donation to

be used for Chad. Ho subsequently drafted a letter to that effect, which Gadio

revised and delivered to Déby.

In exchange for setting up the meetings in Chad, Gadio sought a written

contract with CEFC Energy to formalize his role and ensure his compensation for

7 assisting the company in acquiring business in the Chadian oilfields. After the

December trip, Boubker Gadio sent a text message to his father asking if he had

received “any feedback from our friends in China” regarding the contract. Id. at

736; see also id. at 307. Gadio answered, “No[,] our Chinese friends are strange! Let

us give them another week. Otherwise we will go to Chad [in] early January and

destroy their reputation and strategies in Chad!” Id. at 736; see also id. at 307–08.

Boubker responded, “I sincerely think they will reply favorably . . . [.] [T]heir

attempt to buy the president to put us to the side did not work. Big companies

don[’]t like middle men . . . but they don[’]t have a choice with us.” Id. at 736 (first

ellipsis in original). Ultimately, CEFC NGO paid Gadio $400,000 for his work in

Chad. Nevertheless, despite Gadio’s connections and Ho’s efforts to negotiate a

deal for oil rights, the parties failed to secure a deal.

B. Uganda Scheme

Also in 2014, Ho sought an introduction to Sam Kutesa – the Minister of

Foreign Affairs for Uganda, who had recently begun a one-year term as the

President of the UN General Assembly – for the purpose of helping CEFC Energy

develop business in Uganda’s oil fields. Ho contacted Kutesa’s office at the UN in

New York and introduced himself as the “Deputy Chairman and Secretary

8 General” of CEFC NGO, “a Chinese think tank registered in Hong Kong and also

in the USA as a public charity” with “special consultative status from UN’s

Economic and Social Council.” App’x at 592.

Around February 2016 – by which time Kutesa had completed his term as

President of the General Assembly and returned to Uganda as Foreign Minister –

Kutesa, through his wife, solicited a bribe from Ho to be disguised as a payment

to a charitable foundation. Ho requested, and ultimately received, authorization

from the chairman of CEFC Energy to make a half million dollar payment to

Kutesa’s charity. Ho then contacted Kutesa to advise him that the payment would

be made and to procure an invitation to the inauguration of Ugandan President

Yoweri Museveni, who was Kutesa’s brother-in-law. Ho told Kutesa that he

would bring executives from CEFC Energy to discuss business opportunities in

Uganda.

On May 5, 2016, Ho caused a wire transfer of $500,000 to be sent from CEFC

NGO to an account belonging to the Food Security and Sustainable Energy

Foundation at Stanbic Bank in Kampala, Uganda, as a donation to the foundation

designated by the Kutesas. Specifically, the wire originated “from HSBC Hong

Kong on behalf of CEFC [NGO] as the originator, through to HSBC Bank US as the

9 US correspondent for credit to Deutsche Bank in New York[,] US as a

correspondent for the beneficiary bank Stambic [sic] Bank in Uganda, for final

credit to the beneficiary Food Security and Sustainable Energy Foundation.” Id. at

400. Ho and a CEFC Energy delegation attended the inauguration in May 2016,

and met with Museveni, Kutesa, and others. After the trip, Ho emailed the

Kutesas and reiterated that CEFC Energy was anxious to partner with the Kutesas’

family businesses. About five months later, Kutesa’s wife told Ho about a

confidential opportunity to acquire a Ugandan bank. Ho referred the matter to

another CEFC Energy executive to handle, but it appears that CEFC Energy

ultimately did not complete a deal in Uganda.

II. PROCEDURAL HISTORY

In 2017, a grand jury in the Southern District of New York returned an

indictment charging Ho with eight crimes: conspiracy to violate the FCPA in

violation of

(Count One); violation of FCPA § 78dd-2 with respect

to the Chad scheme (Count Two); violation of FCPA § 78dd-2 with respect to the

Uganda scheme (Count Three); violation of FCPA § 78dd-3 with respect to the

Chad scheme (Count Four); violation of FCPA § 78dd-3 with respect to the Uganda

scheme (Count Five); conspiracy to commit money laundering in violation of 18

(h) (Count Six); money laundering in violation of

(a)(2)(A) with respect to the Chad scheme (Count Seven); and money

laundering in violation of

(a)(2)(A) with respect to the Uganda

scheme (Count Eight).

Ho moved to dismiss Count One and Counts Four through Eight of the

indictment on April 16, 2018. As to Counts One, Four, and Five, Ho argued that

because the indictment contained language stating that he was a domestic concern

under § 78dd-2, he could not also be charged with violating or conspiring to

violate § 78dd-3, which does not apply to domestic concerns. In seeking to dismiss

Counts Six through Eight, Ho asserted, among other things, that the text of the

money laundering statute precluded the government from arguing that “the wires

went from Hong Kong to the United States, and then from the United States to

. . . Uganda.” No. 17-cr-779 (LAP), Doc. No. 63 at 13. The district court denied the

motion, explaining, as to the FCPA counts, that charging Ho under both §§ 78dd-

2 and 78dd-3 was not inconsistent. Turning to the money laundering counts, the

court found that the indictment was technically sufficient because “it alleges that

the defendant transmitted funds both to the United States and from the United

States,” Special App’x at 13, and that a wire transfer from Hong Kong to a

11 correspondent bank in New York, to another bank in New York, and then, to an

international destination would be “clearly sufficient under . . . United States v.

Daccarett,

(2d Cir. 1993).” Special App’x at 14.

Trial began on November 26, 2018 and ended on December 5, 2018, when

the jury returned guilty verdicts against Ho on Counts One through Six and Count

Eight, while acquitting him on Count Seven. On December 18, 2018, Ho moved

for a judgment of acquittal on all counts of conviction under Rule 29(c), “[i]n order

to preserve all arguments as to the sufficiency of the evidence to convict.” No. 17-

cr-779 (LAP), Doc. No. 218. The district court denied that motion, and ultimately

sentenced Ho to 36 months’ imprisonment, and fined him $400,000. Ho is

currently serving his sentence.

III. DISCUSSION

Ho raises several arguments on appeal. First, Ho contends that there was

insufficient evidence to establish that he acted on behalf of a “domestic concern,”

as required to convict under § 78dd-2 of the FCPA. Second, he asserts that the jury

was improperly instructed that a violation of § 78dd-3 could serve as specified

unlawful activity supporting his money laundering convictions. Third, Ho

maintains that the money laundering statute, which covers wire transfers that go

12 “to” or “from” the United States, does not reach a transaction that merely involves

the use of correspondent banks in the United States, where the transfer originated

in Hong Kong and concluded in Uganda. Fourth, Ho argues that the district court

abused its discretion by admitting certain out-of-court statements and summary

charts into evidence. Fifth, Ho contends that the district court should have struck

Counts One, Four, and Five because the indictment contained material

contradictions that rendered those counts legally defective and because the

indictment charged Ho under two mutually exclusive sections of the FCPA,

§§ 78dd-2 and 78dd-3. We address each argument in turn.

A. The Evidence Supports Ho’s Convictions Under 15 U.S.C. § 78dd-2 (Counts Two And Three)

As relevant here, 15 U.S.C. § 78dd-2 prohibits an officer or director of a

“domestic concern” from offering or paying bribes to a foreign official to gain “any

improper advantage,” “in order to assist such domestic concern in obtaining or

retaining business for or with, or directing business to, any person.” 15 U.S.C. §

78dd-2(a). 2 A domestic concern includes an entity that has a “principal place of

2 The statute defines the term “person” to include a company. See 15 U.S.C. § 78c(a)(9).

13 business in the United States” or that “is organized under the laws of a State of the

United States.” Id. § 78dd-2(h)(1).

Ho challenges the sufficiency of the evidence underlying his § 78dd-2

convictions on Counts Two and Three, arguing that “no rational trier of fact could

have found the essential elements of [a § 78dd-2 violation] beyond a reasonable

doubt, because there was no evidence that Ho was acting to assist any domestic

concern.” Ho Br. at 20 (internal quotation marks omitted). Drawing on the

government’s argument at trial that “Ho’s actions were undertaken to benefit . . .

two foreign entities,” Ho maintains that the government’s theory of the case

precluded the jury from finding that Ho assisted a domestic concern. Id. at 20–21.

According to Ho, “at most” the jury could find that Ho “worked for” the Hong

Kong-based CEFC NGO to arrange meetings between CEFC and Ugandan

officials that benefited CEFC Energy, and that he “worked on behalf of” CEFC

Energy to facilitate the Chad sale; but he contends that the government provided

“no proof” that the U.S. NGO “did anything relevant to the allegations in the case.”

Id. at 21–22.

“We review sufficiency of evidence challenges de novo, but defendants face

a heavy burden,” because our framework for evaluating such challenges “is

14 exceedingly deferential.” United States v. Baker,

(2d Cir. 2018)

(internal quotation marks omitted). This is “because a reviewing court must

sustain the jury’s guilty verdict if viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.” United States v. Heras,

(2d Cir. 2010) (internal quotation marks omitted). In conducting this inquiry, we

must “credit[] every inference that could have been drawn in the [g]overnment’s

favor,” Baker,

(second alteration in original) (internal quotation

marks omitted), because “the task of choosing among competing, permissible

inferences is for the [jury], not for the reviewing court,” United States v. McDermott,

(2d Cir. 2001). Further, we are mindful that “the jury is entitled

to base its decision on reasonable inferences from circumstantial evidence.” United

States v. Rahman,

(2d Cir. 1999).

In challenging the sufficiency of the evidence supporting his § 78dd-2

convictions, Ho makes much of the fact that the U.S. NGO was not the ultimate

object of Ho’s assistance. The statutory language, however, does not require that

the domestic concern itself be the ultimate object of the assistance. Rather, the

statute precludes officers and directors of domestic concerns from paying bribes

15 to foreign officials “in order to assist such domestic concern in obtaining . . .

business for . . . any person.” 15 U.S.C. § 78dd-2(a) (emphasis added); accord United

States v. Ng Lap Seng,

(2d Cir. 2019) (explaining that the FCPA

“prohibits bribery designed to obtain, retain, or direct business not only for or to

the briber, but for or to ‘any person’”). Notably, the statute addresses the goal of

corruptly assisting a domestic entity in obtaining business either “for or with”

another company, suggesting that the domestic concern need not itself be seeking

to obtain business “with” that company. 15 U.S.C. § 78dd-2(a) (emphasis added);

see also United States v. Kay,

, 755–56 (5th Cir. 2004) (explaining that

“Congress was concerned about both the kind of bribery that leads to discrete

contractual arrangements and the kind that more generally helps a domestic payor

obtain or retain business for some person in a foreign country.” (emphasis added)).

Similarly, the phrase “directing business to” is followed by the phrase “any

person,” which again shows that the statute is not solely concerned with entities

or persons steering business toward themselves. See 15 U.S.C. § 78dd-2(a). After

all, as we have recognized, “the FCPA prohibits commercial bribery without

regard to whether the briber himself profits directly from the business obtained.”

Ng Lap Seng,

. Thus, Ho plainly could be convicted if the jury found

16 that he acted on behalf of the domestic concern to assist that concern in obtaining

business for CEFC Energy.

We conclude that the evidence introduced at trial was more than sufficient

to prove that Ho acted on behalf of the U.S. NGO to assist it in obtaining business

for CEFC Energy. Contrary to Ho’s assertion that “at most a reasonable juror could

find that . . . [he] worked for” the Hong Kong-based CEFC NGO, Ho Br. at 21, the

government presented ample evidence demonstrating that the U.S. NGO operated

as an arm of CEFC NGO and that Ho’s actions in furtherance of the scheme were

conducted in his capacity as officer or director of the U.S. arm to steer business to

CEFC Energy.

For example, David Wen Riccardi-Zhu testified that he was a volunteer and

employee of a CEFC entity classified as an NGO, which he described as based in

Hong Kong but with “offices in the United States.” App’x at 198. He later

specifically identified the U.S. NGO as “the NGO that [he] worked for,”

,

and he acknowledged the existence of “an office in Virginia [that] we used a few

times,”

, in addition to a space in Trump World Tower in New York,

. In addition to testifying in general terms that Ho “ran the day-to-day

operations of the NGO,”

, Riccardi-Zhu further affirmed that, in his

17 understanding, Ho acted in his role as an officer and director of the U.S. entity,

. The jury could reasonably infer from this testimony that Ho acted on behalf

of the U.S. arm when running NGO-related operations in New York.

And while Ho complains that the government “deliberately conflated” the

NGOs at trial, Reply Br. at 1, the evidence, viewed most favorably to the

government, indicates that it was the NGOs themselves that maintained

overlapping identities in order to take advantage of each as best served particular

interests. Thus, evidence showed that CEFC NGO held itself out as a single

organization with a branch in the United States. The website, “cefc-ngo.co” –

which Riccardi-Zhu described as “one of the websites that the NGO had,” App’x

at 215, without distinguishing between the Hong Kong and U.S. entities –

described the NGO as one organization with operations in multiple countries. The

jury also saw a screenshot of the website stating that “CEFC is headquartered in

Hong Kong with more than 10 offices in the United States, Canada and other

countries and regions.” Id. at 731.

The government also introduced an email from Ho to Kutesa’s UN office in

which Ho held himself out as an officer of “a Chinese think tank registered in

Hong Kong and also in the USA as a public charity.” Gov. Addendum at 11; see

18 also App’x at 389. The only entity registered in the United States was the U.S.

NGO. Thus, the jury could find that Ho used his position in an entity “organized

under the laws of a State of the United States,” 15 U.S.C. § 78dd-2(h)(1), as well as

his position in foreign registered entities, to gain the access that best served his

corrupt pursuit of benefits for CEFC Energy in the Uganda scheme. As to the Chad

scheme, the jury heard testimony that Ho reached out to Jeremić on behalf of the

NGO and asked for a connection to Gadio, whom Ho met at Trump World Tower

– the very location that Riccardi-Zhu stated was occasionally used by the U.S.

NGO.

Viewing this evidence in the light most favorable to the government, and

drawing all inferences in support of the verdict, we find that the jury reasonably

concluded that Ho acted on behalf of a domestic concern in directing business to

CEFC. We therefore reject Ho’s sufficiency challenge to Counts Two and Three.

B. Ho Offers No Basis To Disturb His Money Laundering Convictions (Counts Six And Eight)

Ho next argues that his money laundering convictions must be reversed

because (1) a violation of § 78dd-3 cannot constitute specified unlawful activity

19 under the money laundering statute, and (2) the government failed to prove that

the transfer of funds went “to” or “from” the United States. We disagree.

1. A Violation Of 15 U.S.C. § 78dd-3 Is Sufficient To Establish Specified Unlawful Activity Under The Money Laundering Statute

Ho asserts that the jury was improperly charged when it was told that a

violation of § 78dd-3 could serve as the specified unlawful activity underlying his

money laundering convictions pursuant to

(c)(7)(D). He argues

that “when Congress amended § 1956(c)(7) to add the Foreign Corrupt Practices

Act as a specified unlawful activity . . ., Congress was referring only to §§ 78dd-1

and 78dd-2 – not § 78dd-3, which was added to the Foreign Corrupt Practices Act

six years later, in 1998.” Ho Br. at 25 (citation omitted). To support this

interpretation, Ho invokes the reference canon, by which a statute’s reference to a

general subject indicates dynamic meaning “as it exists whenever a question under

the statute arises,” Jam v. Int’l Fin. Corp.,

(2019), while a statute’s

reference to another statute by specific title or section “takes the statute as it exists

at the time of adoption,” Hassett v. Welch,

(1938), without any

subsequent amendments unless by express intent. Thus, in Ho’s view,

“Congress’s specific reference to the [FCPA] in § 1956(c)(7) manifested an

intention to incorporate the FCPA as it existed in 1992, when the reference was

20 added to the statute.” Ho Br. at 26. Because § 78dd-3 was not a part of the FCPA

until six years later, Ho argues that it is not covered by the money laundering

statute.

We review this question of statutory interpretation de novo. United States v.

Epskamp,

(2d Cir. 2016). “We ordinarily assume, absent a clearly

expressed legislative intention to the contrary, that the legislative purpose is

expressed by the ordinary meaning of the words used.” Jam,

(internal quotation marks omitted). “When the language of the statute is clear . . .,

our inquiry is complete and the language controls.” United States v. Kinzler,

(2d Cir. 1995). In that case, “we have no reason to apply canons of

construction.” New York ex rel. N.Y. State Off. of Child. & Fam. Servs. v. U.S. Dep't of

Health & Hum. Servs.' Admin. for Child. & Fams.,

(2d Cir. 2009).

The money laundering statute criminalizes the transfer of funds “with the

intent to promote the carrying on of specified unlawful activity.”

(a)(2)(A). The term “specified unlawful activity” is defined in § 1956(c)(7)

to include “any felony violation of the Foreign Corrupt Practices Act.”

(c)(7)(D) (emphasis added).

21 Because that language is plain, we decline Ho’s invitation to read an

unexpressed limitation into the statute through an unnecessary resort to the

reference canon. In New York State Office of Children & Family Services, we similarly

declined to turn to the reference canon where a statute straightforwardly referred

to a concept described in another provision, without limitation.

.

There, we examined whether

(a)(1)’s reference to “reasonable

efforts of the type described in section 671(a)(15) of this title” incorporated a fixed

concept of such efforts as they existed at the time of § 672(a)(1)’s adoption in 1980,

or whether the statute incorporated subsequent amendments made to the

referenced provision, § 671(a)(15), in 1997. See id. at 97–99. Despite the statute’s

reference to a specific section, we nevertheless understood the text to “plainly

signal[] Congress's intent to incorporate the full range of ‘reasonable efforts’

required by § 671(a)(15).” Id. at 92. Indeed, we expressly rejected as inapplicable

the argument that the reference canon showed that Congress did not intend to

incorporate later amendments to the referenced provision, and found the “plain

language of the statute to reveal the contrary, i.e., that Congress unambiguously

intended to incorporate” the amendments. Id. at 97. That conclusion rendered

unnecessary any need “to resort to canons of construction.” Id.; see also id. at 99

22 (explaining that the reference canon “is not a categorical rule that compels courts

to always read statutory cross-references as pointing to their original targets,” but

“[r]ather, like all canons of construction, it is a tool to be used only where the

meaning of the section” is unclear (internal quotation marks omitted)).

Applying the same principles here, we find that § 1956(a) “plainly signals

Congress’s intent to incorporate the full range” of felony violations under the

FCPA. See id. at 92. As in New York State Office of Children & Family Services, the

statute at issue here contains no textual limitation. Indeed, the use of the word

“any” – particularly when paired with the broad descriptor “felony violation of

the Foreign Corrupt Practices Act,” rather than specific prohibitions – reinforces

the natural reading of the statute to refer to whatever conduct constitutes such a

violation. See United States v. Gonzales,

(1997) (explaining that, “[r]ead

naturally, the word ‘any’ has an expansive meaning, that is, ‘one or some

indiscriminately of whatever kind’” (quoting Webster’s Third New International

Dictionary 97 (1976)).

Moreover, that reading is consistent with the statutory context. As we

previously recognized, the money laundering statute “takes dead aim at the

attempt to launder dirty money,” while leaving “[w]hy and how that money got

23 dirty” to be “defined in other statutes.” United States v. Stavroulakis,

(2d Cir. 1992). Consequently, we conclude that the statute’s general reference

to “any felony violation” extends to the identified criminal statutes as they develop

to provide new ways for money to become tainted. We find that this interpretation

aligns with courts’ efforts to “read [statutes] as an ordinary citizen might” and not

to “force lay persons to become experts in the vestigial esoterica of every statute

and federal rule.” El Encanto, Inc. v. Hatch Chile Co., Inc.,

(10th

Cir. 2016) (Gorsuch, J.).

In light of the money laundering statute’s “unambiguous . . . incorporation

by reference” of the FCPA “in its entirety,” see N.Y. State Off. of Child. & Fam. Servs.,

, we reject Ho’s suggestion that Congress was obliged to specify that

its reference to the FCPA expressly included subsequent amendments to the

statute. We likewise reject his suggestion that because Congress could have

amended the money laundering statute to specifically include later FCPA

amendments, its failure to do so reflects an intent to exclude those subsequent

amendments. Given that § 1956 incorporates the umbrella concept of “any felony

violation” of the FCPA, we see no reason to assume that Congress intended to

impose on itself a continuing obligation to amend the money laundering statute

24 every time it amended or expanded the FCPA. See id. at 97 (rejecting argument

that Congress’s failure to “pluralize the word ‘type’ in [the referencing statute] to

correspond to the expanded definition of ‘reasonable efforts’ in [the incorporated

provision]” meant it intended the cross-reference to apply only to the unexpanded,

pre-amended definition, where the incorporated provision’s amendment

introduced no grammatical inconsistency).

Our approach is not inconsistent with the Supreme Court’s recent analysis

in Jam v. International Finance Corp.,

(2019), in which the Supreme

Court turned to the reference canon to “confirm[]” what it determined was the

“more natural reading” of the statute at issue, recognizing that courts usually

assume that the ordinary meaning of a statute reflects the legislative intent.

. Nothing in Jam compels us to depart from the ordinary meaning of § 1956’s

clear text or to resort to canons of construction, and we decline to do so today. We

therefore hold that a violation of § 78dd-3 constitutes specified unlawful activity

under the money laundering statute, and thus reject Ho’s argument that the jury

should have been instructed otherwise.

25 2. A Wire That Passes Through The United States Can Be Covered By

(a)(2)(A)

Next, we turn to Ho’s argument that his money laundering convictions on

Counts Six and Eight must be vacated because the wire transfers on which they

were based went from Hong Kong to Uganda through the United States, and thus,

did not go “to” or “from” the United States. In other words, Ho asserts that the

money laundering statute does not cover wire transfers where the United States is

neither the point of origination nor the end destination for the money, but is

instead just an intermediate stop along the way. As relevant to this challenge, the

money laundering statute makes it illegal for a person to “transport[], transmit[],

or transfer[] . . . funds from a place in the United States to or through a place

outside the United States or to a place in the United States from or through a place

outside the United States” under certain circumstances.

(a)(2).

On appeal, Ho does not dispute that he caused a wire transfer of $500,000 to

be sent from CEFC NGO “to an account belonging to the Food Security and

Sustainable Energy Foundation at Stanbic Bank in Kampala, Uganda.” Ho Br. at

14. Nor does he dispute that the $500,000 went “[f]rom HSBC Hong Kong on

behalf of CEFC Limited as the originator, through to HSBC Bank US as the US

correspondent for credit to Deutsche Bank in New York[,] US as a correspondent

26 for the beneficiary bank Stambic [sic] Bank in Uganda, for final credit to the

beneficiary Food Security and Sustainable Energy Foundation.” App’x at 400; see

also

at 690–91; Tr. 847–49 (showing that Ho sent bank information to his

assistant, who confirmed to another CEFC Energy employee that the dollar-

denominated payment should be made by wire transfer).

Instead, Ho contends that the wire underlying his conviction on Count Eight

“was a single, continuing, transaction from Hong Kong to Uganda,” and that

under § 1956(i)(3), “a transfer of funds from one place to another, by wire or any

other means, shall constitute a single, continuing transaction.” Ho Br. at 29

(brackets and internal quotation marks omitted). Therefore, according to Ho, the

funds went “through” the United States, as distinct from “to” or “from” the United

States, as required by the statute. Ho relatedly asserts that the government’s

theory that the transaction between Hong Kong and Uganda was divisible into

multiple transfers – from Hong Kong to the United States, and from the United

States to Uganda – for purposes of the “to” and “from” determination was

contrary to law. Accordingly, in Ho’s view, the government failed to prove a wire

transfer as required by § 1956(a).

27 Whether Ho’s challenge is construed as a question of statutory

interpretation or an attack on the sufficiency of the evidence, we review de novo.

See United States v. Szur,

(2d Cir. 2002) (characterizing appellants’

comparable argument as “a mixed question of law and fact” requiring de novo

review of the statute’s meaning and the sufficiency of the government’s evidence);

see also United States v. Aleynikov,

(2d Cir. 2012) (applying de novo

review for preserved claims regarding “[t]he sufficiency of an indictment and the

interpretation of a federal statute”). Under either formulation, Ho’s argument

turns on what permissibly constitutes a transfer “to” or “from” the United States.

We reject Ho’s claim that the charged wire transfer, which took advantage

of U.S.-based correspondent accounts to conduct a dollar-denominated

transaction, is barred from coverage under § 1956(a)(2)(A). Though Ho correctly

asserts that statutory terms are generally to be given their ordinary meaning, we

are unpersuaded that the plain meaning of “to,” “from,” and “through” compel

his conclusion. See Ho Br. at 30–31 (arguing that “from” indicates a “starting

point”; “to” is associated with reaching; and “through” suggests movement in one

side and out another). The ordinary understanding of these terms does not require

them to be mutually exclusive.

28 Ho’s own example is illustrative. He asserts that “[o]ne would not say that

one was coming ‘from New York’ when one’s train from Boston to Washington

stops in New York along the way; rather, one would say that one was going ‘from’

Boston, ‘to’ Washington, and ‘through’ New York.” Id. at 31. Of course, in some

conversational contexts, that may be true. But ordinary parlance would not

necessarily preclude such a passenger from also saying that he travelled from New

York to Washington. That’s especially true if the passenger in question had to

change trains at Penn Station. In ordinary communication, the expressions are not

by nature at odds.

Describing the government’s interpretation as being “that anytime a transfer

goes ‘through’ the United States, it also goes ‘to’ it and ‘from’ it,” Ho argues that

such a reading “would render the term ‘through’ superfluous.” Id. at 32 (emphasis

added). But the government does not go so far, and neither do we. We do not

reach, for example, whether the transportation of cash from Hong Kong in an

airplane over the United States to a final destination in Uganda would be properly

said to have gone “through,” “from,” or “to” the United States – let alone whether

more than one of those prepositions could apply. We simply acknowledge that

some schemes that colloquially go “through” the United States – in the sense that

29 their origins and destinations are elsewhere – might also be said to involve

transfers that go “to” or “from” the United States. They did so here.

The wire sent by Ho involved (1) HSBC Hong Kong debiting CEFC NGO’s

account in Hong Kong; (2) HSBC Hong Kong sending a payment message to

HSBC Bank US, asking it to debit $500,000 from HSBC Hong Kong’s

correspondent account in New York; (3) HSBC Bank US debiting HSBC Hong

Kong’s same correspondent account; (4) HSBC Bank US and Deutsche Bank, New

York settling a $500,000 transfer through a payment system; (5) Deutsche Bank

crediting Stanbic Bank’s correspondent account in New York; and (6) Stanbic Bank

crediting Food Security and Sustainable Energy Foundation’s account in Uganda.

See App’x at 848–57 (showing wire transfers at issue broken into component parts);

see also Rena S. Miller, Cong. Rsch. Serv., IF0873, Overview of Correspondent Banking

and “De-Risking” Issues (Apr. 20, 2018).

Recognizing that a subset of this series of transactions went from or to the

United States does not conflict with § 1956(i). It bears noting that § 1956(i) is a

venue provision, not a definitional one. It permits a prosecution to be brought in

“any district in which the financial or monetary transaction is conducted.”

(i)(1)(A). The term “conducts,” however, is defined in § 1956(c)(2) to

30 include “initiating” or “participating in initiating” a financial transaction. And

while § 1956(i)(3) provides that “a transfer of funds from [one] place to another . . .

shall constitute a single, continuing transaction,” it further provides that “[a]ny

person who conducts (as that term is defined in subsection (c)(2)) any portion of the

transaction may be charged in any district in which the transaction takes place.” Id.

§ 1956(i)(3) (emphasis added). Even assuming that the overarching transfer

between Hong Kong and Uganda would here be the relevant “single, continuing

transaction” contemplated in § 1956(i), nothing about this venue provision’s

language prevents us from finding that such a transaction may simultaneously be

comprised of intermediate stages or “portion[s] of the transaction.” Id.

Indeed, courts – including the Second Circuit – have long conceived of

transfers from one place to another as being severable, and resting in the United

States, when moving through correspondent banks. See United States v. Daccarett,

(2d Cir. 1993) (“With each EFT at least two separate transactions

occurred: first, funds moved from the originating bank to the intermediary bank;

then the intermediary bank was to transfer the funds to the destination bank, a

correspondent bank in Colombia.”); United States v. Prevezon Holdings, Ltd.,

(S.D.N.Y. 2017) (noting that “international wire transfers do not

31 merely ‘ricochet’ off of U.S. correspondent banks,” but rather, use such banks “as

indispensable conduits” and involve “two separate transactions that cross the U.S.

border” (internal quotation marks omitted)); United States v. All Assets Held at Bank

Julius,

(D.D.C. 2017) (“The Court therefore again concludes

that EFTs are two transactions: one transaction into the United States and one

transaction out of the United States.”).

Consequently, we disagree with Ho’s view “that the government’s strategy

to separate the wire into discrete transactions was contrary to binding Second

Circuit authority.” Reply Br. at 9. Indeed, Ho’s reliance on United States v. Harris,

(2d Cir. 1996), is misplaced. To be sure, the Harris court found, on the

facts of that case, that two transactions (one from New York to Connecticut, the

other from Connecticut to Switzerland) were two stages “of a single plan to

transfer funds from a place in the United States to or through a place outside the

United States.”

(internal quotation marks omitted). But Harris involved

a § 1956(a) scheme where the defendant, charged with concealing funds, argued

that he intended only the New York-to-Connecticut leg of the transfer to effectuate

the concealment. See id. According to the defendant, because the international

transfer from Connecticut to Switzerland was not “designed to conceal the nature,

32 location, source, and ownership of the funds,” id., he could not be convicted of

violating § 1956(a)(2), which prohibits international transfer of funds from

unlawful activity while “knowing that such transportation is designed . . . to

conceal,”

(a)(2). Rejecting the defendant’s attempt to bifurcate his

intent to conceal, the Harris court found that he had “a single plan to transfer

funds” and noted that the jury instructions “dispel[led] any concerns that the jury

considered each transfer” separately with respect to his intent to conceal. Harris,

(affirming the conviction because the court and jury considered

“Harris’ movements of funds from New York to Switzerland as single transfers

that served to conceal the location of the funds from the banks”). Harris’s holding

that the defendant engaged in a single plan to conceal the movement of funds

abroad in no way precludes the jury from examining whether intermediate

transfers went “to” or “from” an intermediate location.

Ho’s reliance on United States v. Dinero Express, Inc.,

(2d Cir.

2002), and United States v. Moloney,

(2d Cir. 2002), is also misplaced.

Ho argues that these cases stand for the proposition that the movement of funds

in intermediate steps as part of a larger scheme can constitute only one transfer,

regardless of how the wires are divided as a practical matter. But again, these

33 cases do not preclude interpreting the statute to mean that funds transferred in

multiple steps at multiple banks are “to” or “from” those intermediate resting

points.

Dinero Express held merely that a four-step money laundering transaction

could constitute a “transfer” even though there was “no individual step” that

“involved the direct wiring of money from the United States to the Dominican

Republic.” 313 F.3d at 805–06 (emphasis added). And Moloney likewise held “that

a single money laundering count can encompass multiple acts provided that each

act is part of a unified scheme.”

. Both cases found that composite

steps could permissibly comprise a scheme giving rise to liability under § 1956(a);

but neither case addressed whether those intermediate steps themselves might be

considered transfers “to” or “from” the United States.

Moreover, in finding that an indictment may charge in one count an

overarching transaction made up of multiple transfers, Moloney emphasized that

“[t]his conclusion is particularly sound because money laundering frequently

involves extended sequences of acts designed to obscure the provenance of dirty

money.” Id. That observation sheds light on the often complex nature of money

laundering, and absent an express indication from Congress to the contrary, we

34 decline to bar juries from finding that a defendant “transports, transmits, or

transfers” money “from” or “to” the United States, 18 U.S.C § 1956(a)(2), when a

defendant arranges a wire transfer that uses the U.S. banking system to go from a

foreign source, to a correspondent bank in the United States, to another bank in

the United States, and then to a final foreign beneficiary. We will not “suppose

that Congress did not intend to criminalize the use of United States financial

institutions as clearinghouses for criminal money laundering and conversion into

United States currency.” All Assets Held at Bank Julius, 571 F. Supp. 2d at 12. Seeing

no reason to hold that as a matter of law the jury was precluded from adopting the

understanding of EFT and correspondent bank transfers articulated in Daccarett,

Bank Julius, and Prevezon, we affirm.

C. Ho’s Evidentiary Challenges Are Meritless

Ho argues that the district court abused its discretion by admitting certain

out-of-court statements and summary charts into evidence at trial. First, he argues

that the district court erred in permitting Gadio to testify about statements made

by Déby at the Chad meetings on December 8 and December 9. Second, Ho objects

to the admission of Boubker Gadio’s text message to his father concerning the

Chad contract. Third, he challenges the admission of two summary charts that

35 provided timelines of certain text messages, emails, and other documents

admitted into evidence.

We review a district court’s evidentiary rulings for abuse of discretion. See

United States v. Taubman,

(2d Cir. 2002). “To find such an abuse

we must be persuaded that the trial judge ruled in an arbitrary and irrational

fashion.” United States v. Pipola,

(2d Cir. 1996); see also United States

v. Monsalvatge,

(2d Cir. 2017). Even if a district court abused its

discretion in making an evidentiary ruling, we will not grant a new trial where the

errors are harmless. See Fed. R. Crim. P. 52(a); United States v. Rea,

,

1219–20 (2d Cir. 1992). For an error to be deemed harmless, “we are not required

to conclude that [the evidence] could not have had any effect whatever; the error

is harmless if we can conclude that [the evidence] was unimportant in relation to

everything else the jury considered on the issue in question, as revealed in the

record.” Rea,

(internal quotation marks omitted).

1. The District Court Did Not Abuse Its Discretion In Admitting Déby’s Out-of-Court Statements About Cash Payments

Ho challenges the admission of statements made by Déby to Gadio on

December 8, in which Déby expressed concern about finding cash in gift boxes, as

well as Déby’s similar statements to Ho and members of the CEFC delegation on

36 December 9, to which Ho responded. Ho maintains that the statements constitute

inadmissible hearsay to which no exception applies.

The district court did not abuse its discretion in admitting the statements.

As to the December 9 statement, in which Déby conveyed to the delegation his

anger about receiving cash payments, the district court admitted the testimony as

an adoptive admission by Ho under Federal Rule of Evidence 801(d)(2)(B).

Specifically, it found that Ho’s admissible response that he was “impressed by”

Déby’s reaction could “only make sense in the context of adopting the president’s

statement that the boxes had cash in them.” Special App’x at 19.

Ho argues that his statement was merely “an effort to smooth things over

diplomatically, or as a statement that Ho was and would have been impressed by

Déby’s rejection of any gift.” Ho Br. at 40. But “[w]here the defendant's adoption

. . . purportedly is manifested by . . . ambiguous conduct,” we consider the

statement’s incriminatory content and whether it is of the type that a person would

respond to with a denial “or at least with some indication that he objects to the

statement as untrue.” United States v. Shulman,

(2d Cir. 1980).

Here, the district court reasonably concluded that if Ho did not agree with Déby’s

representation or had not been aware of the alleged cash bribes, he would have

37 said so. In this context, the court acted well within its discretion in finding that

Ho’s lack of denial, coupled with his acknowledgement of Déby’s reaction,

supported an inference that Ho understood all along what was in the boxes. See

United States v. King,

, 134–35 (2d Cir. 1977). Ho’s response – however

it was meant – would have made little sense to the jury without the admission of

Déby’s statement and reaction. See United States v. Guzman,

(2d

Cir. 1985). Accordingly, the district court did not abuse its discretion in admitting

Gadio’s recounting of Déby’s statements to Ho.

And because the district court appropriately admitted the December 9

statement, it also acted within its discretion in admitting the earlier December 8

statement “as context and to tell the story.” Special App’x at 21. “When statements

by an out-of-court declarant are admitted as background, they are properly so

admitted not as proof of the truth of the matters asserted but rather to show the

circumstances surrounding the events, providing explanation for such matters as

the understanding or intent with which certain acts were performed.” United

States v. Pedroza,

(2d Cir. 1984). Déby’s statements provided

context about the understanding and intent of those involved, and was relevant to

contextualize the nature of the relationship among Déby, Gadio, and Ho, as well

38 as Déby’s decision to meet with the CEFC delegation the next day. See United States

v. Lubrano,

, 636–37 (2d Cir. 1975) (instructions by principal to agent

immediately preceding principal’s meeting with defendant was “relevant to aid

the jury in understanding the background events leading up to the crimes in

question”).

In any event, because the substance of Déby’s December 8 statement to

Gadio reiterated Déby’s admissible statement to Ho the following day, any error

would necessarily have been harmless. See United States v. Dukagjini,

(2d Cir. 2003) (finding harmless error where jury would have reached same

verdict in absence of case agent’s hearsay testimony).

2. The District Court Properly Admitted Boubker Gadio’s Text Message

Ho next challenges the admission of the text message from Boubker to his

father referring to “our friends in China” and “their attempt to buy the president”

of Chad. Ho Br. at 40. Contending that this message was “plainly hearsay,” Ho

argues that the district court erroneously admitted the statement under the rule of

completeness and as a prior consistent statement.

As to the former, Ho

contends that the “rule of completeness” does not apply because “only the party

adverse to the party who introduced a document” may invoke it. Id. at 41. Ho

39 also argues that “the court’s prior consistent statement rationale also fails” because

“the text contained Boubker’s words, not Gadio’s,” and was thus not Gadio’s prior

consistent statement. Id.

We have previously held that statements made by third parties – here,

Boubker – can constitute prior consistent statements of a testifying witness – here,

Gadio – if the witness adopted the third-party statement. In United States v. Rubin,

we held that notes recounting an interview with the defendant were admissible as

a prior consistent statement of a testifying witness named Cox, where a different

person took the notes but Cox adopted them “as accurate and in accord with his

own recollection.”

(2d Cir. 1979), aff'd,

(1981). As in

Rubin, the witness here could be said to have adopted, at the time, the view

expressed in the text. Gadio, like the witness in Rubin, testified to the adoption;

that is, his silence in response to Boubker’s text reflected his contemporaneous

agreement with a statement he would otherwise have been expected to dispute or

refute.

Moreover, once Gadio’s adoption of his son’s statement is recognized, it was

admissible as a prior consistent statement if the prior statement was: (1)

“consistent with the witness’ in-court testimony,” (2) “‘offered to rebut an express

40 or implied charge against him of recent fabrication or improper influence or

motive,’” and (3) “made prior to the time when the motive to fabricate arose.”

at 61 (quoting Fed. R. Evid. 801(d)(1)(B)). Here, the adopted text message was

consistent with Gadio’s testimony that he, at the time of the alleged bribe, believed

it to be a bribe. It was also offered to rebut Ho’s assertion to the jury that, to avoid

liability himself, Gadio had recently fabricated a narrative implicating Ho in the

bribery scheme. Since the statement was made long before Gadio had any reason

to falsely implicate others of criminal wrongdoing, it was relevant to rebut Ho’s

arguments that Gadio had falsely implicated him after Gadio’s arrest.

Accordingly, we find no abuse of discretion in the district court’s admission of

Boubker’s text message as a prior consistent statement of Gadio, and therefore

need not reach Ho’s rule-of-completeness argument to affirm.

3. The District Court Did Not Err In Admitting The Summary Charts

Ho also challenges the admission of two summary charts that provided

timelines of certain text messages, emails, and other documents admitted into

evidence. He concedes that the charts accurately quote the underlying emails and

text messages and could be used as demonstratives, but objects to their admission

as trial exhibits available to the jury in its deliberations. Ho argues that Federal

41 Rule of Evidence 1006 does not permit summary charts to be “created for the

purpose of generating a narrative supporting the prosecution’s theory of the case,”

as he contends the charts were. Ho Br. at 43. He further contends that the charts

summarized materials that could have “easily . . . been examined by the jury,” as

there were “only 71 documents related to the Chad Scheme plus translations

(totaling 370 pages), and 62 documents related to the Uganda Scheme plus

translations (totaling 399 pages).” Id. at 44.

Under Rule 1006, a proponent of evidence “may use a summary, chart, or

calculation to prove the content of voluminous writings, recordings, or

photographs that cannot be conveniently examined in court.” Fed. R. Evid. 1006.

“This court has long approved the use of charts in complex trials, and has allowed

the jury to have the charts in the jury room during its deliberations, so long as the

judge properly instructs the jury,” as the judge did here, “that it is not to consider

the charts as evidence.” United States v. Casamento,

(2d Cir.

1989) (internal citations omitted) (rejecting appellants’ argument that “despite the

judge’s instructions, the vast amount of evidence presented to the jury made it

inevitable that the jury would rely uncritically on the government's summary

charts,” and noting that “[b]arring contrary evidence, we must presume that juries

42 follow the instructions given them by the trial judge”); see United States v. Pinto,

(2d Cir. 1988) (finding no abuse of discretion where court allowed

summary charts identifying phone participants, conspirators’ numbers and

addresses, and the locations from which calls were placed or received); United

States v. Goldberg,

(2d Cir. 1968) (affirming trial court’s

admission of charts that were constructed “from the testimony of the

government’s witnesses and from . . . voluminous business records”); see also

United States v. Thiam,

, 96–97 (2d Cir. 2019) (affirming a trial court’s

admission of a summary chart because the “evidence was useful to the jury in

understanding Thiam’s motivation for accepting bribes and his consciousness of

guilt respectively”).

Here, the jury was properly advised that the charts themselves did not

constitute independent evidence and that it was the jury’s duty to first determine

that they accurately reflected the evidence on which they were based. And while

it is true that summary charts are sometimes used to synthesize even larger

volumes of documentary evidence than was the case here, see, e.g., Casamento,

, it was clearly not an abuse of discretion for the district court to

conclude that hundreds of pages of evidence merited the use of summary charts

43 in a complex fraud trial. We therefore affirm the district court’s evidentiary

rulings.

D. The Indictment Properly Charged Ho Under Different Sections Of The FCPA (Counts One, Four, And Five)

Ho argues that the indictment was “‘repugnant’ because it contain[ed] [a]

‘contradiction between material allegations’” when it alleged that Ho was “a

domestic concern” in one count while bringing charges that did not apply to

domestic concerns in another. Ho Br. at 51–52 (quoting United States v. Cisneros,

(D.C. Cir. 1998)); see also Malvin v. United States,

(2d Cir. 1918) (suggesting that “averments of [an] indictment” may be

“repugnant” where they are inconsistent). He also argues that the indictment was

invalid because it charged Ho under two mutually exclusive sections of the FCPA,

§§ 78dd-2 and 78dd-3. According to Ho, these purported errors “required that

Counts [Four] and [Five] be stricken, which would also have fatally undermined

Count [One].” Ho Br. at 49–50. We disagree.

1. The Indictment Was Not Repugnant

Ho argues that the indictment was facially inconsistent as to material

allegations, thus rendering Counts Four and Five defective, because the grand jury

determined that he was a “domestic concern,” to which § 78dd-3 does not apply.

44 To show that the grand jury “determined” Ho was a domestic concern, he relies

on the indictment’s language in Counts Two and Three, which allege violations of

§ 78dd-2. Tracking the statute and using the conjunctive, the indictment alleged

that “the defendant, . . . being a domestic concern and an officer, director,

employee, and agent of a domestic concern,” paid bribes in violation of § 78dd-2.

App’x at 85–86, 90, 91 (emphasis added). Based on the indictment’s use of “and”

rather than “or,” Ho argues that the grand jury must have found that he was a

domestic concern, and that he could therefore not also be charged in Counts Four

and Five, which allege violations of § 78dd-3 – a provision that does not cover

domestic concerns.

We are not persuaded by Ho’s argument that the grand jury found that Ho

was himself a domestic concern. Our case law, which upholds the practice of

pleading in the conjunctive without requiring that the government prove all

possibilities at trial, undermines the view that the grand jury “finds” each fact

alleged conjunctively in a charge on which the grand jury indicts. In United States

v. McDonough,

(2d Cir. 1995), we rejected the defendant’s argument

that because “the [grand jury] indictment charged him with two purposes in the

conjunctive, the government was required to prove both at trial.”

.

45 “Where there are several ways to violate a criminal statute, . . . federal pleading

requires that an indictment charge in the conjunctive to inform the accused fully

of the charges.”

(brackets, ellipsis, internal quotation marks, and citations

omitted) (explaining that “[a] conviction under such an indictment will be

sustained if the evidence indicates that the statute was violated in any of the ways

charged”); see also Griffin v. United States,

(1991) (acknowledging the

“historical” and “regular practice for prosecutors to charge conjunctively, in one

count, the various means of committing a statutory offense, in order to avoid the

pitfalls of duplicitous pleading”). The indictment followed that instruction here.

Nor is there any reason to believe that Ho was confused as to the

government’s theory of liability in Counts Four and Five. Ho clearly knew that

the government was not alleging that he was a domestic concern, and the parties

in fact stipulated that he “was not a citizen, national, or resident of the United

States.” Tr. 829–30; see also Special App’x at 9 (district court noting that the

complaint on which Ho was arrested alleged that he “was an officer, director,

employee, and agent of a domestic concern” while charging that the “NGO was a

domestic concern”). Moreover, the district court expressly instructed the jury that

“Counts Two and Three charge the defendant based on his status as an alleged

46 officer, director, employee, or agent of a domestic concern.” Tr. 1081–82; see also

at 1083–84 (reiterating that for Count Two, “the government must prove . . .

that the defendant was an officer, director, employee, or agent of a domestic

concern, or a stockholder thereof acting on behalf of such domestic concern”).

But even if it could be argued that the conjunctive language inserted error

in the grand jury process, such error clearly would have been harmless. The

Supreme Court has held that “the petit jury’s verdict of guilty beyond a reasonable

doubt demonstrates a fortiori that there was probable cause to charge the

defendants with the offenses for which they were convicted,” and that “the

convictions must [therefore] stand despite” error in the grand jury process. United

States v. Mechanik, 475 U.S 66, 67 (1986) (upholding indictment where tandem

witnesses testified before the grand jury); see also United States v. Friedman,

(2d Cir. 1988) (upholding indictment even assuming government

repeatedly leaked grand jury information, resulting in extensive publicity

surrounding grand jury proceedings).

While Mechanik and Friedman involved errors in or surrounding the

proceedings in which the grand jury reached its decision – rather than an allegedly

duplicitous indictment – the reasoning behind those cases applies equally here.

47 “The reversal of a conviction entails substantial social costs,” which “are an

acceptable and often necessary consequence when an error in the first proceeding

has deprived a defendant of a fair determination of the issue of guilt or innocence.

But the balance of interest tips decidedly the other way when an error has had no

effect on the outcome of the trial.” Friedman,

(quoting Mechanik,

475 U.S. at 72) (emphasis omitted).

Here, as noted, Ho was informed well before trial of the particular way in

which he was alleged to have violated the FCPA, and he had ample opportunity

to prepare his defense in response to that theory. We therefore cannot say that any

purported inconsistency in the indictment caused him prejudice at trial, and Ho

does not do much to suggest otherwise. He instead seeks to distinguish this case

from Friedman and Mechanik by suggesting that “[a] procedural error in the grand

jury’s process (such as the presence of an unauthorized person in the grand jury,

or a violation of grand jury secrecy rules)” is less central to the “heart of the grand

jury’s assignment” than a purportedly “fundamental contradiction in the

indictment itself.” Reply Br. at 23. But this proposition is easily dismissed, since

an indictment’s purported inconsistency caused by conjunctive pleading poses no

greater “theoretical potential to affect the grand jury’s determination whether to

48 indict,” Mechanik, 475 U.S. at 70, than does an error during the proceeding.

Indeed, unlike a violation of grand jury secrecy rules, such an inconsistency would

seem to pose little risk to a defendant’s right to a fair trial before the petit jury, see

Friedman,

, giving further assurance that “the petit jury's subsequent

guilty verdict means not only that there was probable cause to believe that the

defendants were guilty as charged, but also that they are in fact guilty as charged

beyond a reasonable doubt,” Mechanik, 475 U.S. at 70. Accordingly, Ho’s challenge

fails.

2. Sections 78dd-2 And 78dd-3 Of The FCPA Are Not Mutually Exclusive

Section 78dd-2 of the FCPA renders it unlawful for “any domestic concern,

. . . or for any officer, director, employee, or agent of such domestic concern . . .

acting on behalf of such domestic concern” to engage in certain prohibited

practices involving foreign trade. Section 78dd-3, by contrast, renders unlawful

the same conduct by “any person other than . . . a domestic concern (as defined in

section 78dd-2 of this title), or for any officer, director, employee, or agent of such

person . . . acting on behalf of such person, while in the territory of the United

States.”

49 Arguing from the legislative history and purported intent of Congress, Ho

contends that §§ 78dd-2 and 78dd-3 are mutually exclusive. Broadly, he argues

that the statute addresses “three separate categories” of violators – “issuers,

[under] § 78dd-1; domestic concerns and their agents, [under] § 78dd-2; and

anyone else and their agents, [under] § 78dd-3.” Reply Br. at 24. As support, Ho

points to a Senate Committee Report, which explains that § 78dd-3 provides

“criminal and civil penalties over persons not covered under the existing FCPA

provisions regarding issuers and domestic concerns.” See Ho Br. at 52–53 (quoting S.

Rep. No. 105-277, at *5 (1998)). He also argues that United States v. Hoskins,

(2d Cir. 2018), supports his position that §§ 78dd-2 and 78dd-3 are

mutually exclusive because the Court “[r]eferr[ed] to § 78dd-3” to indicate it

applied to foreign persons “not within any of the aforementioned categories who

violate the FCPA while present in the United States.” Ho Br. at 53–54 (internal

quotation marks omitted). Finally, Ho argues that ambiguous criminal statutes

must be interpreted narrowly according to the rule of lenity.

But the FCPA’s statutory language contains no indication that the

provisions are mutually exclusive, or that both sections would not cover a director,

like Ho, who acts on behalf of both a domestic concern – here, the U.S. NGO – and

50 on behalf of a person other than a domestic concern – here, CEFC NGO. As we

noted in Hoskins, Congress sought to subject foreign persons to FCPA liability if

they “fit within three categories: (1) those who acted on American soil, (2) those

who were officers, directors, employees, or shareholders of U.S. companies, and

(3) those who were agents of U.S. companies.”

. Nothing in the

language of the statute, or Hoskins, prevents an individual from fitting within more

than one of those three categories, particularly where, as here, that individual acts

on U.S. soil on behalf of both domestic and foreign entities. The FCPA’s clear text

therefore makes it unnecessary for us to examine its legislative history or invoke

the rule of lenity, and we accordingly reject Ho’s claim that his §§ 78dd-2 and

78dd-3 convictions are mutually exclusive.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment.

51