Summary
The United States Court of Appeals for the Second Circuit affirmed Ng Chong Hwa’s convictions for conspiracy to violate the Foreign Corrupt Practices Act, conspiracy to violate FCPA internal-accounting-controls provisions, and conspiracy to commit international money laundering. The court rejected his challenges concerning the exclusion of a defense recording, an alleged breach of an extradition-related agreement, venue in the Eastern District of New York, and the constitutionality of the $35.1 million forfeiture order.
Topics
Practice areas
Questions Presented
- Whether the district court erred in denying admission of a videotaped conversation offered to support Ng's claim that the $35.1 million represented returns on a legitimate family investment.
- Whether the government breached the February 2019 agreement concerning Ng's waiver of extradition by filing superseding indictments containing additional factual allegations.
- Whether venue in the Eastern District of New York was improperly alleged or established.
- Whether forfeiture of $35.1 million violated the Eighth Amendment's Excessive Fines Clause.
Holdings
- Ng's challenge to venue in the First Superseding Indictment could not warrant reversal because he was tried and convicted under the Second Superseding Indictment, did not challenge that indictment's venue allegations, and did not preserve venue in his Rule 29 motion.
- The government's superseding indictments did not breach the February 2019 waiver-of-extradition agreement because they charged the same three offenses alleged in the original indictment and merely added factual allegations.
- The district court did not abuse its discretion in excluding the videotaped conversation between Ng's wife and Leissner because the relevant statements were hearsay and did not qualify under Rules 803(3), 807, or 106.
- The $35.1 million forfeiture was not grossly disproportionate to the gravity of Ng's offenses and therefore did not violate the Eighth Amendment's Excessive Fines Clause.
Key quotations
“The fact that S-1 and S-2 identified additional acts by Ng in furtherance of those conspiracies did not alter the nature of the conduct alleged or of the charged offenses.” (27-28)
“In sum, there was no error or abuse of discretion in the district court's exclusion of the video recording of the October 2018 conversation between Leissner and Lim.” (38)
“We see no basis on which to conclude that Ng's forfeiture of $35.1 million, his share of the embezzled funds, would be grossly disproportional to the gravity of his offense” (49)
Factual background
Ng was a Goldman Sachs managing director who worked on three bond offerings for 1Malaysia Development Berhad, a Malaysian government instrumentality. The offerings raised approximately $6.5 billion, more than $2.5 billion of which was diverted through shell companies for bribes and kickbacks; Ng received $35.1 million through an account held in his mother-in-law's name. After a jury convicted him of three conspiracies, the district court imposed a 120-month sentence and ordered forfeiture of the $35.1 million.
Procedural history
Ng was convicted on three conspiracy counts involving violations of the Foreign Corrupt Practices Act and international money-laundering laws. The district court sentenced him principally to 120 months' imprisonment, imposed two years of supervised release, and ordered forfeiture of $35.1 million. The Second Circuit affirmed the judgment and forfeiture order.