Metropolitan News-Enterprise


Thursday, August 14, 2008


Page 3


Ninth Circuit Rejects Challenge to Criminal Jurisdiction Over Saipan


By SHERRI M. OKAMOTO, Staff Writer


The federal government may enact criminal legislation applicable to the Northern Mariana Islands under the commerce and territorial clauses of the Constitution, even though they are not specified in the covenant defining the islands’ legal and political relationship with the United States, the Ninth U.S. Circuit Court of Appeals held yesterday.

Upholding the federal criminal convictions of two Saipan brothel owners for sex trafficking and prostitution, a three-judge panel rejected an argument that the covenant’s failure to specifically mention the clauses deprived Congress of the ability to rely on them to enact legislation affecting the islands.

Ming Yan Zheng, who was convicted with along with Chang Da Liu, operated a Saipan brothel called the Tea House and recruited employees from Dalian, China by placing advertisements seeking hotel waitresses, nightclub performers, and service workers. Applicants were required to pay $6,000 as a “processing fee” to secure their position.

Although the written materials used to recruit the applicants stated that sexual activities were prohibited, upon arriving in Saipan, six young women who had come from China in order to work at the Tea House were required to engage in prostitution. Charges were filed against Zheng and Liu after the six women reported them to the FBI.

After a trial before U.S. District Judge Alex R. Munson of the District of the Northern Mariana Islands, a jury convicted both defendants of conspiracy, sex trafficking, foreign transportation for prostitution, and transportation of persons in execution of fraud.

On appeal, Zheng challenged the government’s jurisdiction and legislative authority over the commonwealth, noting that the covenant between the Northern Mariana Islands and United States establishing the island as a commonwealth of the United States permits the federal government to enact legislation applicable to the islands so long as the legislation could also be made applicable to the states, or if it expressly identifies the commonwealth.

Relying on Fleming v. Dept. of Public Safety, (1988) 837 F.2d 401, she argued that Sec. 501 of the covenant—which lists specific provisions of the federal Constitution applicable to the commonwealth—is exhaustive, and that, insofar as it does not explicitly incorporate the commerce and territorial clauses, the two provisions are inapplicable to the commonwealth.

But Judge Procter Hug Jr. explained that Zheng’s argument was “misleading” because the commerce clause and territorial clause are constitutional provisions that apply to Congress, not to the states. Thus, he reasoned, a determination of whether the clauses apply to the commonwealth or not would not affect Congress’ ability to enact legislation applicable to the commonwealth.

He clarified, however, that, under Sec. 501, only legislation enacted before the covenant’s 1978 effective date and applicable to the several states will be applicable to the commonwealth. Where legislation is enacted after the covenant’s effective date, Hug explained, the court must balance the federal interests served by the legislation against the degree of intrusion into local affairs.

Reasoning that two of the criminal sections under which Zheng was prosecuted were therefore applicable to the commonwealth because they were applicable to the states and enacted before the covenant’s effective date, and that another enacted after the effective date was applicable because the federal government’s interest in combating international sex trafficking outweighs the intrusion into the commonwealth’s local affairs, Hug affirmed her conviction.

Hug also rejected evidentiary arguments raised by both Zheng and Liu, concluding that the government had not engaged in any misconduct during trial, and that sufficient evidence supported the judgments of conviction and sentences imposed.

At trial, Munson had excluded video proffered by Zheng and Liu purportedly showing two former Tea House employees voluntarily engaged in prostitution after the brothel shut down after concluding that admission would cause unfair prejudice, confuse the issues, and constitute a waste of time because the former employees had admitted they had continued to engage in prostitution to support themselves.

 Munson had also barred the video as extrinsic evidence offered to prove the witnesses’ specific conduct, and had permitted an FBI agent to testify regarding out of court statements made by the employees which was consistent with their trial testimony, to rebut Zheng and Liu’s allegations that the employees had fabricated testimony in order to receive financial assistance from the FBI.

Judges Pamela Ann Rymer and Johnnie B. Rawlinson joined Hug in his opinion.

The case is United States v. Liu, 06-10758.


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