Shapiro Arato Bach Wins New Trial Based on Erroneous Evidentiary Rulings

On February 23, 2022, the United States Court of Appeals for the Second Circuit reversed the convictions of our client Dan Zhong, a former executive of a Chinese construction company, on forced labor charges, based on three evidentiary errors.


First, the district court had permitted the government to introduce evidence of uncharged criminal conduct that pre-dated the charged conduct by nearly a decade and involved violence and threats of violence, in contrast to the charged conduct, which involved only an economic coercion theory based on contracts Chinese workers signed before emigrating to the US to do construction work. The Second Circuit held that the uncharged crimes evidence was “significantly more sensational and disturbing than the charged crimes” and that the district court’s ruling admitting the evidence violated Rules 404(b) and Rule 403 of the Federal Rules of Evidence.


Second, the Court held that the district court erroneously limited cross-examination of the sole witness the government called who provided any testimony linking Zhong to the uncharged conduct. The Court ruled that, in violation of Rules 608(a) and 803(21), the district court precluded Zhong from eliciting testimony from other witnesses about the witness’s reputation for untruthfulness.


Third, the district court erroneously permitted the government’s forced labor expert witness not only to explain the workings of forced-labor operations in general, but also to provide a detailed commentary on the specific facts of the alleged forced-labor operation. The Court ruled that the expert came “dangerously close to usurping the jury’s function’ by effectively ‘providing an overall conclusion of criminal conduct.’”  In addition, “the expert provided other improper testimony regarding the emotional pleasure he asserted that perpetrators of forced labor derive from their activities, the disreputable history of forced labor worldwide, and the Chinese government’s poor forced-labor record—all of which was highly prejudicial and at best, minimally relevant to the case.”


The court vacated Mr. Zhong’s convictions on three forced labor counts and remanded for a new trial. It affirmed Mr. Zhong’s convictions on counts of alien smuggling and visa fraud, but vacated Mr. Zhong’s sentence on the visa fraud count and remanded for resentencing.


Alexandra Shapiro argued the appeal and wrote the briefs together with Daniel O’Neill and Julian Brod.


The decision in United States v. Zhong, can be found here.


The opening and reply briefs are available here and here, and the audio of the oral argument is here.