KIN SUN YUEN, PETITIONER V. UNITED STATES OF AMERICA

   No. 86-1689

   In the Supreme Court of the United States

   October Term, 1986

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Eleventh Circuit

   Memorandum for the United States in Opposition

   Petitioner contends that the district court admitted extrinsic
offense evidence under Fed. R. Evid. 404(b) for an improper purpose.
/1/

   1. Following a jury trial in the United States District Court for
the Southern District of Florida, petitioner was convicted of
committing extortion and conspiring to do so, in violation of 18
U.S.C. 1951, and using firearms in the commission of a felony, in
violation of 18 U.S.C. 924. He was sentenced to consecutive 20-year
terms of imprisonment on the conspiracy and substantive extortion
counts and to a consecutive 10-year term of imprisonment on the
firearms count.

   Petitioner's convictions resulted from his participation in a
scheme to extort money from a wealthy Ft. Lauderdale family.  In
September 1983, petitioner met with three men at the Ft. Lauderdale
airport by prearrangement.  While staying at a local motel, the four
conducted surveillance, over the next two days, of the home and
Chinese restaurant belonging to the Lee family.  On the night of
September 6, 1983, petitioner drove his three co-conspirators to the
Lee home.  They waited there until shortly after midnight, when
Winston and May Lee returned for the evening.  Two of petitioner's
cohorts then forced the Lees out of their car and into the house at
gunpoint.  Moments later, they radioed a third member of the group to
join them inside.  One of the men then telephoned someone and gave
that person the telephone number for the Lee home (4R. 163-164, 168;
5R. 331-333).  Petitioner was not one of the three men inside the
home.

   Throughout the night, the three men made and received several
telephone calls.  They also referred to Winston Lee as "Kow Sook," a
term of familiarity meaning "uncle," and on one occasion that night
when Lee answered the telephone, the person on the other end said "Kow
Sook, I don't want to talk to you." One of the men in the house later
asked Lee whether he still employed one Lo Gon Ki, the manager of
Lee's restaurant, who had been a good friend of petitioner's when
petitioner also worked at the restaurant (3R. 47;4 R. 130-132;  5R.
334-337;  6 R. 354).

   After taking what little cash and jewelry they could find in the
house, the three men demanded $200,000 from the Lees, who agreed to
visit their bank the next day in an effort to secure that sum.  The
following morning, the Lee's daughter Ella, accompanied by one of the
three men, visited the bank.  When they found no cash in the family's
safe deposit box, Ella was forced to withdraw $4,000 from the family
checking account, which was most of the money in the account at that
time.  In addition, Winston Lee agreed to pay the men $3,000 per week,
an arrangement that the men accepted after a series of telephone
calls.  The men then took Winston Lee's car and left the house.  They
later met petitioner at a local bowling alley, where they left Lee's
car.  All four then departed in petitioner's car (4 R. 115-127;  5 R.
193;  6 R. 343, 345, 352-353).

   Because petitioner was never inside the Lees' home, the victims
were unable to identify him as the fourth member of the conspiracy.
Instead, co-conspirator Lee Pung Chung, who pleaded guilty before
trial, testified against petitioner and identified him as the fourth
member of the group.  During his testimony, however -- and in marked
contrast to his performance at the earlier trial of co-conspirator
Boon San Chong -- Chung began to claim a lack of recollection as to
certain facts.  When that occurred, the prosecution sought, under Fed.
R. Evid. 404(b), to introduce evidence of petitioner's earlier
participation in a strikingly similar extortion scheme (5 R. 203-205).

   In July 1983, approximately six weeks before the Lee extortion,
petitioner and co-defendant Chong met the same two co-conspirators at
the Ft. Lauderdale airport, and all four stayed at a local hotel.
Several days later, petitioner's three colleagues, carrying weapons,
forced their way into the home of the Au family, who owned a nearby
Chinese restaurant.  The three remained in the house throughout the
night.  The following morning, one of them accompanied Mrs. Au to her
bank, where she withdrew $40,000 and gave it to the men.  Hotel
records established that, during the period of the extortion, someone
with petitioner's name and address was registered at the hotel and
that telephone calls were placed between the room in question and
co-conspirator Chung's house (5 R. 221-224, 248-249, 318-319;  7 R.
609-612).

   The prosecution sought to introduce this extrinsic offense evidence
both to establish petitioner's identity as the fourth member of the
Lee extortion conspiracy and to confirm that petitioner acted with the
necessary criminal intent in joining that scheme.  The district court,
applying the two-part test set forth in United States v. Beechum, 582
F.2d 898, 913-915 (5th Cir. 1978) (en banc), cert. denied, 440 U.S.
920 (1979), concluded that the evidence was relevant to those issues
and that its probative value outweighed its prejudicial impact.
Accordingly, the court allowed the introduction of the evidence of the
Au extortion and twice instructed the jury as to the limited basis for
its admission (5 R. 203-206, 208-215;  7 R. 638-639, 750-751).  The
court of appeals affirmed petitioner's convictions without opinion in
an unpublished judgment order (Pet. App. al).

   3. Petitioner asserts (Pet. 13-24) that the government failed to
specify a proper basis for the admission of the extrinsic offense
evidence and that as a result the district court admitted the evidence
for an improper purpose;  namely, to establish that petitioner must
have acted in conformity with his earlier behavior.

   Anticipating the introduction of the Au extortion evidence during
trial, petitioner's counsel argued, even before the prosecution had
been called upon to justify its admission, that the evidence could not
aid in proving "the issues of motive, intent, or identity" (5 R.
209-210).  The district court disagreed.  It found that the
prosecution had adduced little other evidence to establish
petitioner's identify or criminal intent and that its need for the
evidence was therefore great.  Accordingly, the court concluded that
the probative value of the evidence outweighed the risk of undue
prejudice (5 R. 204, 214).  /2/ While it is thus true, as petitioner
complains (see Pet. 20-22), that the district court evaluated the
prosecution's need for the extrinsic offense evidence before
authorizing the admission of that evidence, the district court did not
do so, as petitioner complains, to "ensur(e) a conviction" (id. at
22).  Instead, as the Fifth Circuit observed in Beechum, "(p)robity *
* * must be determined with regard to the extent to which the
defendant's unlawful intent is established by other evidence * * *.
It is the incremental probity of the evidence that is to be balanced
against its potential for undue prejudice" (582 F.2d at 914 (citations
omitted)).  Because petitioner's identity and criminal intent were not
conclusively established by other evidence, the "incremental probity"
of the extrinsic offense evidence outweighed its potential for undue
prejudice.  The district court therefore properly admitted that
evidence.  /3/

   In its unelaborated judgment order affirming the district court's
decision to admit the extrinsic evidence (Pet. App. 1a), the court of
appeals did not create a conflict between the Eleventh Circuit and any
other court of appeals.  Petitioner suggests (Pet. 19, 24) that the
decision in this case conflicts with the Ninth Circuit's decision in
United States v. Powell, 587 F.2d 443 (1978).  In Powell, the court of
appeals concluded that extrinsic offense evidence had improperly been
admitted to establish the defendant's intent to commit the charged
crime because the issue of intent was not really in dispute in that
case.  Since there was little or no need for evidence tending to prove
intent, the probative value of the extrinsic offense evidence in
Powell was outweighed by the risk of undue prejudice (587 F.2d at
448).  In addition, the court of appeals in Powell concluded that the
extrinsic offense and the charged crime did not share sufficiently
distinctive characteristics to warrant admission of the extrinsic
evidence to establish the defendant's identy (ibid.).  By contrast,
the district court in this case concluded that the probative value of
the evidence outweighed the risk of prejudice and warranted its
admission not only on the disputed issue of petitioner's criminal
intent, but also on the issue of identity.  There is accordingly no
conflict between Powell and the instant case.  /4/

   It is therefore respectfully submitted that the petition for a writ
of certiorari should be denied.

   CHARLES FRIED

      Solicitor General

   MAY 1987

   /1/ The judgment of the court of appeals was entered on December
31, 1986.  The petition for a writ of certiorari was filed on April
20, 1987, and is therefore substantially out of time under Rule 20.1
of the Rules of this Court.

   /2/ The court also found that the extrinsic crime and the charged
offense were so similar and distinctive that they shared an "identity
of the parties (and) identify of the modus operandi" sufficient to
admit the evidence to establish petitioner's identity (7 R. 555).  See
United States v. Myers, 550 F.2d 1036, 1045 (1977), on remand, 572
F.2d 506 (5th Cir.) cert. denied 439 U.S. 847 (1978) ("The probity of
the evidence of other crimes where introduced for this purpose depends
upon both the uniqueness of the modus operandi and the degree of
similarity between the charged crime and the uncharged crime.").

   /3/ Petitioner is wrong in asserting (Pet. 18) that the extrinsic
offense was insufficiently similar to the charged offense to establish
his identity as the fourth member of the Lee extortion conspiracy.
The offenses were in fact extraordinarily similar in character.  Both
crimes involved families known to petitioner, both of which owned
Chinese restaurants.  Both crimes involved the same three
co-conspirators, who held their victims at gunpoint in the victims'
homes overnight while maintaining contact with a fourth participant
(petitioner) who supervised the scheme.  And both crimes involved
forcing the victims to withdraw sums of money from their banks.  In
short, the charged and extrinsic crimes were distinctive and virtually
identical;  by no means can they fairly be described as sharing
nothing more than certain "components of extortion in general"
(ibid).).

   /4/ The decision in this case does not conflict with the decision
in United States v. Alfonso, 759 F.2d 728, 739 (9th Cir. 1985), as
petitioner suggests (Pet. 23).  In Alfonso, the court of appeals
concluded that extrinsic offense evidence had been improperly admitted
at trial because it bore little if any similarity to the charged
offense and hence was not probative of the defendant's criminal intent
(759 F.2d at 740).  Here, by contrast, the extrinsic offense and the
charged offense were remarkably similar and the modus operandi of both
crimes was distinctive.

   Nor does the instant case conflict with Alfonso or with United
States v. Mehrmanesh, 689 F.2d 822, 830 (9th Cir. 1982) -- as
petitioner additionally suggests (pet. 23) -- on the ground that those
two decisions impose on the prosecution that responsibility to
articulate the basis for the admission of extrinsic offense evidence.
Here, as in Alfonso and Mehrmanesh, the prosecution sought the
introduction of certain evidence under Rule 404(b).  By so moving, the
prosecution was obliged in each case to make clear to the court and
opposing counsel "the grounds upon which (the motion was) made.  Fed.
R. Crim. P. 47.  Here, however, unlike in Alfonso or Mehrmanesh, the
bases for the prosecution's motion were immediately apparent to
petitioner's counsel (see 5 R. 209-210), who thereafter were able to
argue cogently -- albeit unsuccessfully -- against the admission of
the evidence.  The district court in this case accordingly did not
permit the introduction of extrinsic offense evidence in a manner
contrary to the dictates either of Rule 47 or the decisions in Alfonso
and Mehrmanesh.