Document Type

Article

Publication Date

7-28-1992

Abstract

Defendant-appellant Shu Yan Eng appeals from a judgment of conviction entered in the United States District Court for the Eastern District of New York (Glasser, J.) on November 13, 1991. Eng was convicted, after a jury trial, of tax evasion for the tax years 1986 through 1988, see 26 U.S.C. § 7201. The district court sentenced Eng to a term of imprisonment of 48 months but granted Eng bail pending this appeal. The conviction followed the district court's denial of Eng's motion to suppress certain records obtained by the government in an unlawful search and other evidence claimed by Eng to have been derived from materials discovered in the unlawful search.

The district court based its denial of Eng's motion on the "inevitable discovery" doctrine, recognized by the Supreme Court in Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), as an exception to the exclusionary rule. Eng contends that the government failed to meet its burden under Nix of proving by a preponderance of the evidence that absent the unlawful search, lawful discovery of the challenged evidence was inevitable. Specifically, Eng argues that the government's version of what evidence would have been discovered absent the search is too speculative, 856*856 and that our ruling in United States v. Roberts, 852 F.2d 671 (2d Cir.), cert. denied, 488 U.S. 993, 109 S.Ct. 556, 102 L.Ed.2d 583 (1988), prohibits the government from relying on the use of subpoenas in meeting its burden of proof.

Our consideration of the issues presented by this case is hindered by the lack of specific factual determinations by the district court. Accordingly, we vacate the judgment of conviction and remand this case to the district court for particularized findings as to the manner in which, if at all, each piece of evidence challenged by Eng, and said by the government to be admissible under the inevitable discovery exception, would have been inevitably discovered.

Comments

971 F.2d 854 (1992)

UNITED STATES of America, Appellee,

v.

Shu Yan ENG, also known as Ah Shu; Cho-Kuen Wong; King Albeo Kong; Foo Wing Yam; Sue Sang Ong; Hon Keung Ng, Defendants, Shu Yan ENG, also known as Ah Shu, Defendant-Appellant.

No. 1151, Docket 91-1683.

United States Court of Appeals, Second Circuit.

Argued April 2, 1992.

Decided July 28, 1992.

New York Law School location: File #1458, Box #130

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