22-2716 United States v. Won

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 28th day of February, two thousand twenty-four.

PRESENT:

SUSAN L. CARNEY, RICHARD J. SULLIVAN, EUNICE C. LEE, Circuit Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 22-2716

JOHN WON,

Defendant-Appellant. ∗ _____________________________________

∗ The Clerk of Court is respectfully directed to amend the official case caption as set forth above. For Defendant-Appellant: BRIAN A. JACOBS, Morvillo Abramowitz Grand Iason & Anello P.C., New York, NY.

For Appellee: SARAH M. EVANS (Nicholas J. Moscow, on the brief), Assistant United States Attorneys, for Breon Peace, United States Attorney for the Eastern District of New York, Brooklyn, NY.

Appeal from a judgment of the United States District Court for the Eastern

District of New York (Raymond J. Dearie, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the September 27, 2022 judgment of

conviction is AFFIRMED except as to the sentence, which is VACATED and

REMANDED for further consideration consistent with this order.

John Won appeals a judgment of conviction entered following a jury trial in

which he was found guilty of conspiracy to commit wire fraud in violation of

and 1343; conspiracy to commit securities fraud in violation of

; securities fraud in violation of 15 U.S.C. §§ 78j(b) and 78ff; and

conspiracy to commit money laundering in violation of

(a)(1)(A)(i) and 1956(h), in connection with his involvement in a fraudulent

foreign exchange business called ForexNPower (“FNP”) that he ran with his

2 longtime business partner, Tae Hung (“Kevin”) Kang. 1 We assume the parties’

familiarity with the underlying facts, procedural history, and issues on appeal.

I. Sufficiency of the Evidence

Won first argues that the district court erred in denying his motion for a

judgment of acquittal, which he made after the prosecution rested and renewed

after the close of his defense. He asserts that the government failed to prove his

specific intent – a necessary element for each of Won’s counts of conviction – and

urges us to reverse his convictions for insufficient evidence. We decline to do so.

“[A] defendant challenging the sufficiency of the evidence that led to his

conviction at trial bears a heavy burden, as the standard of review is exceedingly

deferential.” United States v. Coplan,

(2d Cir. 2012) (citation and

internal quotation marks omitted). Ultimately, “[a] judgment of acquittal is

warranted only if the evidence that the defendant committed the crime alleged is

nonexistent or so meager that no reasonable jury could find guilt beyond a

reasonable doubt.” United States v. Martoma,

(2d Cir. 2017)

(internal quotation marks omitted). Moreover, “[t]he law has long recognized

that criminal intent may be proved by circumstantial evidence alone,” which is

1 Kang was also charged and ultimately pleaded guilty.

3 particularly appropriate for conspiracies given that they are typically

“undertak[en] in secret.” United States v. Heras,

(2d Cir. 2010)

(internal quotation marks omitted). For instance, circumstantial evidence can

prove conspiratorial intent by showing “a defendant’s association with

conspirators in furtherance of the conspiracy” or “his presence at critical stages of

the conspiracy that cannot be explained by happenstance.” United States v.

Anderson,

(2d Cir. 2014) (internal quotation marks omitted).

The jury heard more than enough evidence to infer Won’s specific intent to

participate in the FNP fraud. To begin, witnesses from two of FNP’s key partners

– online brokerage platform FXCM and introducing broker FXEvolve – testified

that Won was their main contact at FNP and that he lied to them in order to

establish the critical relationships that propped up FNP’s fraud. When FNP first

applied to trade on FXCM through an FNP trading entity called Safety Capital

Management, Inc. (“Safety Capital”), Won misrepresented that Safety Capital was

eligible to do business with FXCM because it was “exempt” from certain licensing

regulations. App’x at 615–16. Then, after FXCM banned Safety Capital,

specifically due to Kang’s involvement, over “excessive losses,” id. at 621, Won

maneuvered to resume trading on FXCM by falsely stating that he had formed a

4 new venture – GNS Capital Inc. (“GNS”) – with “new partners,” even though

Kang was in fact still at the helm, id. at 624–25, 636–38. Won then compounded

his misrepresentations by falsely attesting that GNS was also exempt from

licensing regulations. See id. at 646–49; Gov’t App’x at 340, 353. Won also made

false statements to FXEvolve – which provided FNP with a vital revenue stream

in the form of commissions for each trade made in an FNP customer account –

when he misrepresented that FNP provided only “educational services” and was

not trading on behalf of clients. App’x at 776–77; Gov’t App’x at 301–02.

The jury also heard detailed testimony concerning Won’s “association with

conspirators in furtherance of the conspiracy” through his participation in FNP’s

predatory seminars. Anderson,

(internal quotation marks omitted).

One victim testified about multiple occasions on which Won distributed false

brochures and prospectuses, spoke on stage, and at one point even “shouted” a

solicitation to potential investors, urging them to “line up” in order to invest.

App’x at 511. This victim also explained that Won was in charge of setting up

accounts for new investors, and that Kang introduced Won as someone who was

“like a brother to him” and whom Kang “had been doing business partnerships

[with] for years.” Id. at 470. At one point Won even handed the victim a

5 business card featuring the false claim that FNP used a “[s]ecret method of

generating 10 percent or more [in monthly] profit.” Id. at 472.

Although Won argued to the jury that he was just an assistant who engaged

in only a “handful” of misrepresentations to FNP’s business partners and was

merely “presen[t]” when Kang misled investors at seminars, Won Br. at 22, there

was ample circumstantial evidence from which the jury could reasonably

conclude that Won intended to join the conspiracy with full knowledge of its

illegal purpose.

II. Confrontation Clause

Won also argues that his Confrontation Clause rights were violated when

the district court permitted two witnesses – Deric Chen, from FXCM, and Dr. Greg

Suh, an investor-victim – to testify by two-way video. We review challenges

under the Confrontation Clause de novo. See United States v. Vitale,

(2d Cir. 2006).

In general, “the Confrontation Clause guarantees the defendant a face-to-

face meeting with witnesses appearing before the trier of fact.” Coy v. Iowa,

(1988). But this right is “not absolute.” Maryland v. Craig,

(1990). Indeed, the Supreme Court has recognized that, in limited

6 cases, a witness may testify by “one-way closed circuit television” – outside the

defendant’s presence – upon a case-specific finding that such testimony is

“necessary to further an important state interest.”

(holding that

one-way video testimony was permissible in that case to protect a child victim of

sexual abuse from the trauma of testifying in front of her abuser). In the wake of

Craig, we recognized another narrow exception for testimony by two-way video

in United States v. Gigante.

(2d Cir. 1999) (explaining that the “Craig

standard” does not apply in the case of “two-way” video). There we held that a

witness could testify by two-way video – without offending a defendant’s

confrontation right – “upon a finding of exceptional circumstances . . . when

[video testimony] furthers the interest of justice.”

Based on that standard,

we found that a witness with a “fatal illness” who was “participat[ing] in the

Federal Witness Protection Program” could testify by two-way video within the

confines of the Confrontation Clause.

2

Applying Gigante to the facts here, we find that exceptional circumstances

likewise justified the use of two-way video testimony against Won. At the time

2 Though Won suggests that Gigante was wrongly decided, we have never overruled it or deemed it abrogated. See United States v. Wilkerson,

(2d Cir. 2004) (“[W]e . . . are bound by the decisions of prior panels until such time as they are overruled either by an en banc panel of our Court or by the Supreme Court.”).

7 of Won’s trial in November 2021, the world was in the midst of a pandemic,

prompting the Chief Judge of the Eastern District of New York to extend the

court’s “national emergency” protocols as new strains of the virus emerged that

were potentially vaccine-resistant. Gov’t App’x at 39–44. Chen lived in Hong

Kong and would have had to quarantine for three weeks after returning from the

United States. Suh lived in South Korea and was the caretaker for his seventy-

seven-year-old mother; live, in-person testimony would have required Suh to

abandon his mother for weeks while potentially exposing her to COVID upon his

return. Moreover, both witnesses were beyond the court’s subpoena power and

represented that they would not testify in person, even if the government were to

bear the full cost of travel. Finally, the district court used procedures to ensure

the protection of Won’s confrontation rights, including by setting up large screens

that allowed the jury to see the witnesses and also allowed the witnesses to see the

attorneys and Won himself. Though two-way video “should not be considered a

commonplace substitute for in-court testimony,” we are persuaded that

“exceptional circumstances” justified such video testimony here. Gigante,

.

In so holding, we reject Won’s argument that Gigante is strictly limited to

8 cases of “unavailability” under Federal Rule of Evidence 804(a), such as when a

witness is unable to testify due to their own “infirmity” or “physical illness.” Fed.

R. Evid. 804(a). To the contrary, Gigante itself looked to factors beyond the

compass of Rule 804(a) when it stressed that the witness was unavailable due to

both his “fatal illness and [his] participation in the Federal Witness Protection

Program” – the latter of which does not bear on the Rule 804(a) standard for

“[u]navailability.” Gigante,

(emphasis added). Moreover, we

have held that Gigante permitted two-way testimony during the pandemic in part

because a witness had to care for elderly relatives, which is again a factor not found

in the Rule 804(a) analysis. See United States v. Patterson, No. 21-1678,

, at *4 (2d Cir. Dec. 21, 2022). By its own terms and its subsequent

application, Gigante thus extends to other case-specific findings of “exceptional

circumstances” beyond the rigid confines of Rule 804(a).

III. Jury Instructions

Won also contends that the district court erred in administering a

“conscious avoidance” instruction to the jury with respect to each of his counts.

We review such challenges de novo. See United States v. Aina-Marshall,

(2d Cir. 2003). “[A] conscious avoidance instruction may be given only

9 (i) when the defendant asserts the lack of some specific aspect of knowledge

required for conviction, and (ii) the appropriate factual predicate for the charge

exists, i.e., the evidence is such that a rational juror may reach the conclusion

beyond a reasonable doubt that the defendant was aware of a high probability of

the fact in dispute and consciously avoided confirming that fact.”

(citation

and internal quotation marks omitted). Defendants challenging the existence of

that factual predicate face a “heavy burden,” as we will affirm so long as “any

rational trier of fact” could have found conscious avoidance beyond a reasonable

doubt.

(internal quotation marks omitted).

Won argues that the government failed to establish the necessary “factual

predicate” because there was “no evidence” that Won was aware of a “high

probability” that Kang was defrauding investors. Won Br. at 42. The trial record

belies that contention. Won was well aware that Safety Capital was losing

money, to the point that Won had to form an alter ego entity (GNS) just to keep

trading with FXCM after Safety Capital was kicked off the platform. At the same

time, Won attended seminars and distributed materials – including his own

business card – proclaiming that FNP used a “[s]ecret method of generating 10

percent or more [monthly] profit” and could turn a $10,000 investment into $1.5

10 million in three years. App’x at 463, 472. In light of this evidence, a rational juror

could well have found that Won consciously avoided learning the fraudulent truth

underpinning FNP. 3

IV. Rule of Completeness

Next, Won contends that the district court abused its discretion when it

precluded Won from introducing portions of his deposition under Federal Rule of

Evidence 106, known as the rule of completeness. We review such evidentiary

decisions for abuse of discretion. See United States v. Williams,

(2d

Cir. 2019). Though Rule 106 permits the introduction of omitted portions of a

statement (including those made during a deposition) to “explain” or provide

“context,” the completeness doctrine does not “require the admission of portions

of a statement that are neither explanatory of nor relevant to the admitted

passages.” United States v. Johnson,

(2d Cir. 2007) (internal

quotation marks omitted).

3 We also reject Won’s contention that the district court committed plain error by failing to “make clear” that the conscious avoidance instruction could not be applied to Won’s aiding-and-abetting charges or used to prove Won’s intent to participate in a conspiracy. Won Br. at 44. The district court’s instructions were accurate, and Won cites no case in which we found error merely because a district court failed to give a gratuitous reminder that conscious avoidance should not be used when assessing intent. See United States v. Whab,

(2d Cir. 2004) (“We typically will not find [plain] error where the operative legal question is unsettled, including where there is no binding precedent from the Supreme Court or this Court.” (internal quotation marks omitted)).

11 Won argues that the district court should have allowed him to introduce

three excerpts from his deposition pursuant to Rule 106. Because none of these

excerpts explained or provided context for the admitted portions, the district court

was well within its discretion to exclude them. For instance, Won contends that

he should have been permitted to introduce deposition testimony that he was not

aware that a specific investor’s check had been deposited into an FNP bank

account used to distribute proceeds to the conspirators. But that testimony was

not relevant to the admitted portion of the deposition, in which Won conceded

that he ultimately controlled that bank account and was a signatory on it. Nor

was his testimony that he did not trade in customers’ individually managed

accounts relevant to his admitted testimony that he was CEO and president of

GNS, or that he had access to a different GNS-managed account of “pooled”

investor funds. App’x at 1274, 1276–77. Lacking any clear relevance to the

admitted portions, these omitted segments were properly excluded.

V. Expert Testimony

Nor are we persuaded by Won’s challenge to the district court’s admission

of expert testimony explaining regulations on the foreign exchange market. As

with other evidentiary rulings, we review this challenge for abuse of discretion,

12 reversing only if we find “manifest error.” Raskin v. Wyatt Co.,

(2d

Cir. 1997). Won argues that it was improper to admit testimony from Daniel

Driscoll – who testified about the foreign exchange market’s license and

registration rules, proficiency exam requirements, and advertising regulations –

because it invited the jury to find Won guilty (or otherwise disfavor him) based on

his uncharged failure to comply with those rules. We cannot agree. As this

Court has already held, references to regulations are not “improper” when the

district court provides a “limiting instruction” and when the “purpose” of the

reference is to explain the basis for a defendant’s misconduct, as opposed to

“suggest[ing] to the jury that it could find the defendant guilty simply by reason

of his violation of the regulation.” United States v. McElroy,

, 1023–

24 (2d Cir. 1990).

Here, the purpose of Driscoll’s testimony was to explain how Won’s

misrepresentations to FXCM and FXEvolve furthered FNP’s fraudulent business,

and the district court gave several limiting instructions to cabin the jury’s use of

that evidence. It was therefore “well within the court’s discretion to allow the

evidence.” McElroy,

.

13 VI. Speedy Trial

Won next argues that his case should have been dismissed with prejudice

because his trial was conducted in violation of his Sixth Amendment guarantee of

a speedy trial. A “constitutional speedy trial right claim is governed by the four

Barker v. Wingo factors: ‘[l]ength of delay, the reason for the delay, the

defendant’s assertion of his right, and prejudice to the defendant.’” United States

v. Abad,

(2d Cir. 2008) (quoting Barker v. Wingo,

(1972)). Though the first factor – the forty-two-month delay until Won’s trial –

favors Won, the rest do not. If anything, the second factor favors the government,

as the delay was attributable not to governmental obstruction but rather to joint

scheduling requests, Won’s motion for severance from Kang, and Won’s insistence

that Kang go to trial first. The third factor likewise favors the government, given

that Won did not demand a speedy trial or otherwise raise the issue below. The

final factor is neutral, as Won was not prejudiced by any delay, since he was not

incarcerated pretrial and the government faced similar challenges in preparing for

trial in the midst of the pandemic. On balance, Won cannot establish that his

Sixth Amendment right was violated.

14 VII. Restitution

Finally, Won argues that the district court should have ordered him to pay

restitution on a joint-and-several basis with Kang. The government concedes that

this was error and joins Won’s request that we remand for resentencing.

Generally, “[w]e review awards of restitution for abuse of discretion.”

United States v. Desnoyers,

(2d Cir. 2013). Because Won “fail[ed]

to object to . . . the order of restitution in the court below, we review his arguments

on appeal for plain error.” United States v. Nucci,

(2d Cir. 2004).

This requires a showing that there was an error that was plain and that the error

affected his substantial rights as well as the fairness, integrity, or public reputation

of the judicial proceedings. See

Here, the district court did not initially order Won and Kang to pay

restitution jointly and severally. At the request of Kang’s counsel – and without

a similar motion from Won – the district court amended Kang’s judgment to

impose restitution jointly and severally with Won. The district court did not

amend Won’s judgment and offered no explanation for the resulting discrepancy

in its treatment of the two co-defendants.

We agree that this was plain error. As is well established, a district court

15 abuses its discretion when it fails to explain discrepancies in restitution judgments.

See Desnoyers,

. This error also affected Won’s substantial rights

and the fairness of judicial proceedings, as it required Won to pay his restitution

award on arbitrarily harsher terms than his co-defendant. See Nucci,

. We therefore vacate Won’s sentence and remand so that the district court

may either amend Won’s judgment to impose joint-and-several liability or provide

an explanation for the mismatch.

* * *

We have considered Won’s remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of conviction except as to

Won’s sentence, which we VACATE and REMAND to allow the district court to

reconsider Won’s restitution obligation.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

16