United States of America v. Jinhuang Zheng

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 16, 2025
Decided January 21, 2025
Before
DIANE S. SYKES, Chief Judge
MICHAEL B. BRENNAN, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 23-1329
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JINHUANG ZHENG,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 1:14-CR-00424(1)
Edmond E. Chang,
Judge.
O R D E R
After a jury trial, Jinhuang Zheng was convicted in May 2018 of one count of
conspiring to use and one count of using extortionate means to attempt to collect an
extension of credit. 18 U.S.C. § 894(a)(1). In January 2023, he was sentenced to 72
months’ imprisonment on each count to run concurrently, as well as two concurrent
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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terms of 2 years’ supervised release.1 Zheng filed a notice of appeal, but his appointed
counsel asserts that the appeal is frivolous and moves to withdraw. See Anders v.
California, 386 U.S. 738, 744 (1967). Counsel explains the nature of the case and
addresses the potential issues that an appeal like this could involve. Because the
analysis appears thorough and Zheng has not responded to counsel’s motion, see C IR . R.
51(b), we limit our review to the subjects that counsel raises, United States v. Bey,
748 F.3d 774, 776 (7th Cir. 2014). We grant the motion and dismiss the appeal.
Zheng was the co-owner of a business that sold seafood to restaurants in Illinois,
including a restaurant Ronald Lin invested in and managed. In late 2013, Lin’s
restaurant was struggling and fell behind on its payments, ultimately going out of
business while it still owed approximately $50,000 to Zheng’s seafood business.
Zheng called a friend, Shen Quang Dong, and asked Dong to recruit people to
help collect the money Lin owed. On June 1, Zheng, Dong, and other men Dong
recruited (including Mingrui Sun and Daniel Zhu) drove to a restaurant where Lin then
worked. Lin went outside with Zheng’s crew to discuss the debt. After words were
exchanged, Lin thought he saw Zheng give a signal to the other men, so he turned to go
back inside, afraid that the men would attack him. Zheng grabbed Lin by the collar of
his shirt, and the group of men punched and kicked Lin and told him he was going to
die in about 25 seconds, until a passerby intervened. Zheng and his crew then drove
away. That night, Zheng treated the men (minus Sun) to dinner and a night at a spa.
In November 2014, a grand jury indicted Zheng and his crew, charging them
with conspiracy to use and using extortionate means to attempt to collect an extension
of credit. 18 U.S.C. § 894(a)(1). Four of the men (including Zhu and Dong) pleaded
guilty. Zheng and Sun chose to proceed to trial, and the district judge determined that
the two men would be tried together. See FED. R. C RIM. P. 8(b). Zheng later moved to
sever the trials, but the judge denied his motion.
Ahead of trial, the district judge granted several of the government’s motions in
limine and accepted its proffer supporting the introduction of statements of Zheng’s co-
conspirators. FED. R. EVID. 801(d)(2)(E); United States v. Santiago, 582 F.2d 1128, 1130–31
(7th Cir. 1987). Zheng would later take issue with his trial counsel’s failure to object to
some of these pretrial motions. For his part, Zheng moved to exclude 20 photographs
1 Because of the credit he received for his long detention before sentencing,
Zheng’s six-year prison sentence terminated on March 27, 2023. His two-year term of
supervised release presumably ends within the next few months.

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No. 23-1329 Page 3
documenting Lin’s injuries, arguing that the photographs were irrelevant and
inflammatory. The district judge denied the motion, deciding that the photographs
were relevant and were not unfairly prejudicial.
A week-long trial of Zheng and Sun proceeded. The government presented
surveillance video of the beating, photographs, cell phone records showing calls
between Zheng and Dong, bank records showing that Zheng paid for dinner and spa
treatments the night of the attack, and testimony from several witnesses, including Lin
(the victim), Dong, and FBI Special Agent David Patch. Lin testified that the night of the
attack, Zheng told him that if he did not pay, “bad things can happen,” and that at some
point Zheng grabbed him from behind and the group of men beat him. Dong (a
coconspirator) admitted that he was testifying as part of his plea agreement and
acknowledged that he had past convictions for crimes involving bribery and fraud.
Dong testified that he was a longtime friend of Zheng, that Zheng had asked him to
recruit men to pressure or intimidate Lin, and that the men agreed that if Lin refused to
repay Zheng, they would “hit him a few times.” Agent Patch revealed that another
member of the crew, Daniel Zhu, had been acting as an FBI informant but was not
authorized to participate in a physical attack.
At the close of the government’s case, Zheng moved for a judgment of acquittal
under Rule 29 of the Federal Rules of Criminal Procedure, arguing that the only
evidence of intent was supplied by Dong and that his testimony was incredible as a
matter of law. The district judge took the motion under advisement.
Zheng then testified in his own defense, insisting that he brought Dong and the
other men to help collect Lin’s debt because Lin was reputed to have a violent temper
and ties to the Chinese mafia. Zheng said that he never intended to hurt or intimidate
Lin, that he had told the men (aside from Dong) to wait in the car, and that he had paid
for dinner and the spa because he feared the other men. During cross-examination, the
government asked about a conversation that Zheng had with Zhu in jail during which
Zheng had admitted to participating in the beating. As a prelude, the government asked
Zheng if he remembered spending time in custody. Zheng moved for a mistrial,
arguing that the mention of him being in custody was prejudicial. The judge denied the
motion, explaining that the comment was not unduly prejudicial because it was a brief
moment during a multi-day trial, and the jury already knew that Zheng was charged
with a serious crime. The judge then struck the question, and the government asked
Zheng questions about the conversation without mentioning that it occurred in jail.

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At the close of evidence, the parties met for a final jury instruction conference.
They disputed an instruction about whether Zhu, a government informant, could be
listed among Zheng’s alleged coconspirators. The government proposed an instruction
explaining that, while an informant usually cannot be someone with whom a defendant
can conspire, there is an exception if the jury finds that the informant acted outside the
scope of his agreement with the government (such as by using violence). Zheng
proposed an instruction stating that a defendant is guilty of conspiracy only if he
agreed to participate in criminal behavior with at least one other person who was not a
government informant. The district judge agreed with the government that the jury
could find that Zheng had conspired with Zhu if it also concluded that Zhu acted
outside his cooperation agreement. The judge gave the government’s instruction, and
the jury found Zheng guilty and Sun not guilty of both charges in the indictment.
After trial ended, Zheng moved for a judgment of acquittal or, in the alternative,
a new trial. FED. R. C RIM. P. 29; FED. R. C RIM. P. 33. He again argued that Dong was not
credible and contended that there was no other evidence of Zheng’s intent. The district
judge determined that the testimony was not the only evidence of intent and that,
despite being hard to believe at times, Dong was not incredible as a matter of law
because other evidence corroborated much of his testimony.
As to the motion for a new trial, Zheng argued that: (1) Dong’s incredible
testimony had infected the trial; (2) the government failed to prove up the basis for its
questions about a conversation between Zheng and Zhu; (3) the district judge
erroneously admitted photographs of Lin’s injuries; (4) the judge gave an incorrect
instruction about conspiracy with a government informant; (5) Zheng’s trial should
have been severed from Sun’s, as evidenced by the split verdicts; and (6) cumulative
error caused an unfair trial. The judge rejected each argument, as well as Zheng’s pro se
submission arguing for a new trial based on ineffective assistance of trial counsel.
Ahead of sentencing, a probation officer filed a presentence investigation report
(PSR) that included calculations under the Sentencing Guidelines. The officer grouped
the two counts and assigned a base offense level of 20. U.S.S.G. §§ 3D1.2(b), 2E2.1(a).
The officer then added two levels because Lin had sustained bodily injuries in the
attack, four levels because Zheng was an organizer of criminal activity that involved
five or more participants, and two more levels for obstruction of justice based on
Zheng’s trial testimony. U.S.S.G. §§ 2E2.1(b)(2)(A), 3B1.1(a), 3C1.1. With a total offense
level of 28 and a criminal history category of I, Zheng’s guidelines range was 78 to 97
months’ imprisonment. Zheng objected to each offense-level increase: He argued that

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Lin’s wounds were not serious enough for the “bodily injury” increase; that after Sun’s
acquittal, the evidence did not show agreement among five or more participants; and
that he did not commit perjury in his trial testimony.
At the sentencing hearing, the district judge agreed with Zheng that Sun’s
acquittal meant that the crime involved fewer than five participants, therefore
qualifying Zheng for only a two-level increase. Otherwise, the judge adopted the
recommendations in the PSR and thus calculated Zheng’s final offense level to be 26
and the range to be 63–78 months’ imprisonment. The judge then weighed the
sentencing factors under 18 U.S.C. § 3553(a) and imposed 72 months’ imprisonment,
restitution of $900 (joint and several with his codefendants), and two years of
supervised release.
In her Anders brief, counsel first considers challenges to Zheng’s convictions.
Counsel rightly rejects the argument that the district judge abused his discretion by
denying Zheng’s motion to sever his trial. See United States v. Maggard, 865 F.3d 960, 970
(7th Cir. 2017). First, Zheng potentially waived his arguments about severance because
he failed to renew them at the close of evidence. United States v. Tinsley, 62 F.4th 376, 382
(7th Cir. 2023). Waiver aside, to prevail, Zheng would have to show that the joint trial
caused him actual prejudice, not just that he had a better chance of acquittal at a
separate trial. United States v. Carter, 695 F.3d 690, 700–01 (7th Cir. 2012). In his motion,
Zheng argued that he was prejudiced by Agent Patch’s testimony about statements Sun
had made about what languages Sun spoke. Zheng contended that, because he could
not compel Sun to testify at his own trial, Zheng was not able to cross-examine Sun, and
so admission of the statements violated Zheng’s right to confrontation under Bruton v.
United States, 391 U.S. 123 (1968), and the Sixth Amendment. The district judge
disagreed, determining that Zheng was not prejudiced because Sun’s statements did not
incriminate Zheng directly. See United States v. Javell, 695 F.3d 707, 712 (7th Cir. 2012).
Further, the judge disagreed with Zheng’s contention that Sun and Zheng’s defenses
were antagonistic because both defendants argued that they lacked the intent to
threaten or harm Lin. Based on this reasoning, it would be frivolous to argue that the
judge abused his discretion in holding a joint trial.
Counsel next weighs whether Zheng could plausibly challenge the denial of his
motion for a mistrial predicated on the government asking him about being “in
custody.” We review the denial of a motion for mistrial for abuse of discretion—“with
an extra helping of deference” because the trial judge is in the best position to
determine the seriousness of the incident in question. United States v. Lawrence, 788 F.3d

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234, 243 (7th Cir. 2015). Here, the judge reasonably concluded that it is not overly
prejudicial to suggest that a defendant was detained before trial when the defendant is
accused of a serious crime. At any rate, the judge took curative steps and struck the
question. See id. at 244. Further, custody was mentioned only once over the course of the
multi-day trial, and there was substantial evidence (the video and testimony from
Dong) that implicated Zheng. See United States v. Diggs, 81 F.4th 755, 762 (7th Cir. 2023).
We also agree with counsel that any argument that the evidence was insufficient
to convict Zheng on either charge would be frivolous. Appellants raising insufficiency
challenges face “a nearly insurmountable hurdle.” United States v. Johnson, 874 F.3d 990,
998 (7th Cir. 2017). We reverse only if we determine that no reasonable jury could have
found the defendant guilty beyond a reasonable doubt. Id. At the close of the
government’s case and again in his post-trial Rule 29 motion, Zheng argued that Dong’s
testimony was blatantly incredible, and that without the testimony there was no
evidence of Zheng’s knowledge or intent. But assessing credibility is the province of the
jury, so we would find testimony to be incredible as a matter of law only if it were
physically impossible for the witness to have observed what he described or impossible
under the laws of nature for those events to have occurred. United States v. Farmer,
717 F.3d 559, 562–63 (7th Cir. 2013). Dong’s testimony does not meet standard.
Additionally, there was other evidence of Zheng’s knowledge and intent, including the
bank statements showing that he rewarded the crew after the beating.
Counsel next rightly dismisses any arguments about the denial of the motion for
a new trial. We review such rulings for abuse of discretion, recognizing that only
extreme cases will call for vacating a judgment. United States v. Peterson, 823 F.3d 1113,
1122 (7th Cir. 2016). Zheng’s first argument under Rule 33—related to Dong’s
supposedly incredible testimony—would fail on appeal for the reasons noted above;
Dong’s testimony was not legally incredible. Zheng’s second argument, that the
government impermissibly asked him about a conversation with Zhu without an
adequate foundation, would also fail. As counsel rightly explains, during cross-
examination, an attorney may ask questions if he has a good-faith basis. United States v.
Beck, 625 F.3d 410, 418 (7th Cir. 2010). This does not require definitive proof, only a
“well-reasoned suspicion that a circumstance is true.” Id. Here, the government had a
good-faith basis because Zhu gave a statement about the conversation, which the
government had disclosed to Zheng ahead of trial.
Zheng also could not feasibly argue that the district judge erred by allowing
photographs of Lin’s injuries into evidence. Counsel correctly points out that relevant

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evidence is admissible unless its probative value is substantially outweighed by its
prejudicial effect. See United States v. Johnson, 89 F.4th 997, 1002 (7th Cir. 2024); FED. R.
EVID. 403. As the judge observed, the photos were proof that violence was used in the
commission of the charged conduct, and they were not so numerous or gruesome that
their prejudicial effect outweighed their probative value.
Nor could Zheng reasonably argue on appeal that the jury instruction about
conspiring with an informant constituted harmful error. As counsel rightly observes, an
agreement with a government informant is not a criminal conspiracy. See United States
v. Viezca, 265 F.3d 593, 598 (7th Cir. 2001); Pattern Criminal Jury Instructions of the
Seventh Circuit § 5.10 (2023). Here, no reasonable jury could have found Zheng guilty
of conspiracy based on an agreement with Zhu alone; evidence showed that Zheng
conspired with others, especially Dong, who were not government informants.
See Viezca, 265 F.3d at 599.
In order to show cumulative error, Zheng would need to show that at least two
errors so infected the proceedings as to deny Zheng a fair trial. United States v. Groce,
891 F.3d 260, 271 (7th Cir. 2018). Given that every potential assertion of error is
frivolous, counsel also correctly concludes that there is no plausible argument that
cumulative error warrants a new trial.
Finally, counsel properly concludes that there is no nonfrivolous argument that
Zheng received ineffective assistance of trial counsel. Given the undeveloped record
regarding trial counsel’s decisions, it would be unwise to raise this argument on direct
appeal rather than on collateral review. See United States v. Cates, 950 F.3d 453, 456–57
(7th Cir. 2020) (citing Massaro v. United States, 538 U.S. 500, 504–05 (2003)).
Counsel next considers potential challenges to Zheng’s within-guidelines
sentence. With respect to potential procedural errors, counsel first correctly concludes
that the judge properly calculated the guidelines range. The judge agreed with Zheng
that only a two-level increase for being the organizer should apply. See U.S.S.G.
§ 3B1.1(a). And he properly applied a two-level increase because the victim incurred
“bodily injury,” U.S.S.G. § 2E2.1(b)(2)(A): Lin’s injuries, which included lacerations on
his face and resulted in a trip to the hospital, were “painful and obvious” and the type
for which medical attention ordinarily would be sought. See United States v. Eubanks,
593 F.3d 645, 651 (7th Cir. 2010); U.S.S.G. § 1B1.1, comment (n.1(B)). Finally, the judge
reasonably determined that Zheng obstructed justice because his testimony that he
never intended to harm or intimidate Lin were false statements to the jury and judge
about a matter crucial to the question of Zheng’s guilt. United States v. Price, 28 F.4th

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739, 756 (7th Cir. 2022) (citation omitted). Counsel identifies no other potential
procedural errors at sentencing. See generally Gall v. United States, 552 U.S. 38, 51 (2007)
(listing procedural errors).
As for substantive reasonableness, counsel correctly concludes that it would be
frivolous to argue that the judge failed to justify Zheng’s sentence in terms of the
§ 3553(a) factors. See United States v. Jerry, 55 F.4th 1124, 1130 (7th Cir. 2022). The judge
expressly addressed the seriousness of the offense (noting the length and severity of the
beating), the need for deterrence (given that Zheng did not accept responsibility), and
mitigating factors (Zheng’s lack of criminal history and family support). 18 U.S.C.
§ 3553(a). Therefore, Zheng could not overcome the presumption of reasonableness that
applies on appeal to within-guidelines sentences. United States v. Butler, 58 F.4th 364,
368 (7th Cir. 2023).
We GRANT counsel’s motion to withdraw and DISMISS the appeal.

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