Convictions Affirmed In Police-Concocted Plot

United States v. Tee, 2018 WL 721677 (10th Cir. February 6, 2018) (KS): Tee was convicted of attempted coercion and enticement to travel to engage in prostitution; interstate transportation in aid of racketeering enterprises; and money laundering. Sounds serious. It was not-the police concocted the whole thing.

Wichita police suspected some Asian massage parlors in town were really fronts for prostitution. Of course, what better way to investigate such suspicion than to arrange a series of telephone calls between Tee and police informant, ‘Lucy.’ Tee was targeted because he is Chinese, bilingual and ‘often worked as a middleman between Mandarin-speaking business owners and local vendors.’ Lucy told Tee she was a New York businesswoman interested in buying a massage parlor in Wichita. (Deuces to the Wichita police for sullying the great state of New York). At the same time the police had ‘Jenny’, an actual prostitute, ask Tee to help her sell her ‘massage’ business. Tee did not put the two ladies together so the police directed Jenny to tell Tee she had found a buyer and that it was Lucy. Tee tried to discourage Lucy from buying Jenny’s business. He told her Jenny had been arrested for prostitution and it was likely that another arrest would lead the police to close her business. Lucy insisted it was the business she wanted to buy. Tee relented and said he would help her. In their last call, Tee said he would pick her up at the airport. Later, Jenny paid Tee $100. He said it was the fee to pick up Lucy; the government said it was “a fee to broker the sale of Jenny’s prostitution business to Lucy.” Tee was arrested when he got to the airport to pick up Lucy.

He raised four issues, each of which was summarily rejected by the panel. First, Tee said he was entrapped and the evidence was insufficient to overcome that defense. The panel said the evidence showed he intended to help Lucy buy and maintain a massage parlor ‘knowing that it would intend to offer prostitution services.’ Regarding the enticement to travel, the panel believed Tee consistently encouraged Lucy to come to Wichita. Also there was evidence of his ‘past associations with massage parlors know to engage in prostitution’ and his comments showed he had experience in brokering their sales.

Second, Tee said it was plain error for the district court to allow the prosecutor to question a venire person, who appeared to be Asian-American about the impact of his ethnicity on the case - since the players were of Asian descent. Tee complained the court also let the prosecutor ask others in the venire whether the Asian American venire person’s involvement in the case would be ‘troublesome.’ The panel said the court did not plainly err because Tee could not cite to a single case that held such questions violated due process or equal protection.

Third, Tee argued the display of a website -Rubmaps- as demonstrative evidence was unfairly prejudicial. Tee had told Lucy to look at reviews on Rubmaps (which rates massage parlors according to the services not advertised) to decide which massage parlor to buy. The trial testimony was that Rubmaps’s rates sexual activity, not massages. To explain this testimony, the prosecution displayed screenshots from Rubmaps as a demonstrative exhibit. The panel said because this demonstrative exhibit helped the jury understand the website’s sexual nature its was relevant and admissible. And as Tee suggested Lucy consult the website, the jury ‘could understand that Tee had experience working with massage parlors that sell sex.’

Fourth, Tee said advertisements he prepared for a website, Backpage, constituted hearsay and were unfairly prejudicial. The panel disagreed. Tee waived his hearsay objection, and it was reasonable for the district court to conclude that any prejudice was outweighed by their probative value. After all, the advertisements highlighted the masseuses’ physical attributes and sexual qualities rather than their massage skills. A jury could conclude that Tee was an ‘entrepreneur experienced in selling houses of prostitution masquerading as massage parlors.’

Of note is Judge McKay’s dissent. The $100 Jenny paid Tee - which was police money - was the government’s evidence of money laundering. Judge McKay said as a matter of law this is not money laundering. The transaction that created the criminally-derived proceeds must be distinct from the money laundering transaction, because the money laundering statutes criminalize transactions in proceeds, not the transactions that create the proceeds. Tee was convicted of money laundering based on the same financial transaction that allegedly generated the criminal proceeds. In other words, until the $100 came into his control and possession, it did not constitute proceeds of a criminal activity and there was no evidence he used the money for any financial transactions once it was deposited into his account and became criminal proceeds.

Judge McKay also challenged the majority’s suggestion that Tee had not preserved the issue. First, Tee argued evidence of money laundering was insufficient to prove guilt. Second, even when issues are not well briefed by the parties it is the court’s duty to resolve the issues presented, correctly. Third, where an injustice is looming, federal appellate courts must resolve those issues even if not adjudicated in the lower court.

Judge McKay was puzzled by the majority’s seeming indifference to this issue. Perhaps it was because it was one of three counts for which Tee was convicted and his 18 month prison term was over. If so, that reasoning incorrectly assumes the number of convictions does not matter. Each conviction has collateral consequences - each is a “formal judgment of condemnation by the community” and imposes additional stigma and damage to the person’s reputation.