9th Circuit affirms Phan conviction

The U.S. Court of Appeals for the Ninth Circuit has affirmed the conviction of businessman David Trung Quoc Phan over his role in a scheme to bring Bangladeshi men to Saipan on promises of jobs and green cards in exchange for cash.

Ninth Circuit Chief Judge Sidney R. Thomas and judges Consuelo M. Callahan and Morgan Christen issued the decision Wednesday without holding an oral argument in Phan’s appeal.

The Ninth Circuit judges said the evidence presented a trial supported a permissible inference of fraudulent intent.

The judges also ruled that the misstatements and inconsistencies in some of the witnesses’ testimony gave the jury reason to find the witnesses not credible, but they did not compel the jury to reject their testimony.

In October 2017, a federal jury convicted Phan of two counts of mail fraud, three counts of fraud in foreign labor contracting, and one count of fraud and misuse of visas and permits.

In March 2018, U.S. District Court for the NMI designate Judge John C. Coughenour sentenced Phan to eight months in prison. Phan appealed to the Ninth Circuit.

In his appeal, Phan asked the Ninth Circuit to reverse his conviction, argued that the evidence was insufficient to show fraudulent intent.

Phan was convicted of mail fraud relating to the submission of CW-1 renewal applications, fraud in foreign labor contracting, and use or possession of immigration documents procured by fraud relating to his obtaining a renewed CW-1 permit.

In affirming the conviction, the Ninth Circuit judges said that Phan essentially reargues the factual theory he presented to the jury that he did not know the workers recruited from Bangladesh lacked the skills needed to work in an auto repair shop until after they arrived and that he reduced their pay only because they lacked the necessary skills.

Although Phan’s factual theory may have been plausible, the jury rejected it, the judges said.

On fraudulent intent, the judges noted as an example that the victims testified that, when they confronted Phan about not having work, he told them that his only role was to bring them to Saipan, whereas it was the responsibility of Muksedur Rahman, Phan’s co-defendant, to find them jobs.

Rahman has already been convicted and sentenced to 48 months in prison.

The judges said Phan admitted to federal agents that he filed renewal petitions for the victims’ CW-1 visas even though they no longer work for him, and the victims testified that Phan collected a fee for this service.

The judges said Phan’s business also paid the victims differently (less than minimum wage, in cash, and without tax withholdings) than it did the company’s legitimate CW-1 workers (at least minimum wage, by check, and with tax withholding).

“This and other evidence support an inference of fraudulent intent,” said the judges in their decision.

Phan also argued that the District Court erred in denying his motion for a new trial because, according to him, the jury’s verdict was against the great weight of the evidence.

The Ninth Circuit judges said this argument focuses on misstatements and inconsistencies in some of the witnesses’ testimony and on unspecified problems with translation of the witnesses’ testimony.

The judges said that, as the District Court correctly observed, issues of witness credibility were for the jury to decide.

The judges said Phan’s counsel had enough opportunity at trial to attack the witnesses’ credibility, and the District Court instructed the jury on witness credibility.

The District Court allowed Phan’s continued release while his appeal is pending.

The third defendant, Rafiqul Islam, has also been convicted and sentenced to 18 months in prison.