United States v. Ng Chong Hwa: Superseding Indictments, Transit-Based Venue, and Proportionality in Mandatory Forfeiture

I. Introduction

The Second Circuit’s decision in United States v. Ng Chong Hwa (Roger Ng) is a major appellate opinion arising out of the 1MDB scandal, one of the largest cross-border corruption and money-laundering schemes in recent history. Sitting in a panel composed of Judges Kearse, Sullivan, and Robinson, the Court (opinion by Judge Kearse) affirmed Ng’s convictions and substantial forfeiture judgment in a wide-ranging opinion touching on:

• Venue in conspiracy cases based partly on “passing through” a district and teleconferences whose communications transit that district;
• The interaction between extradition waivers, the doctrine of specialty, and superseding indictments that add factual detail without changing the charged offenses;
• The admissibility of a defense video recording under the hearsay rules, including Rules 803(3), 106, and 807; and
• Mandatory criminal forfeiture in large financial crimes, and when a forfeiture violates the Eighth Amendment’s Excessive Fines Clause, particularly in light of prior foreign asset seizures.

Because this case arises from an FCPA and money-laundering prosecution linked to Goldman Sachs and 1MDB, and because it resolves several recurring procedural and evidentiary questions, the opinion is an important precedent for cross-border white-collar cases, extraditions, and forfeiture practice.

II. Summary of the Opinion

The Court affirmed Ng’s convictions and the $35.1 million forfeiture order in full. In particular, it held:

• Venue: Ng’s live appellate challenge addressed only the first superseding indictment, but he was tried on a second superseding indictment which added more detailed venue allegations. He never moved to dismiss S-2 or raised venue in his Rule 29 motion. The Court treated any venue objection as effectively moot or waived and, in substance, reaffirmed that venue in conspiracy cases may be based on coconspirators’ acts that merely “pass through” a district, including travel and telecommunication traffic, so long as those acts are in furtherance of the conspiracy and reasonably foreseeable.
• Extradition and specialty: The February 2019 DOJ letter, which induced Ng to waive extradition, did not bar superseding indictments that kept the same statutory offenses but added factual detail. Neither S-1 nor S-2 charged any new crimes; they merely elaborated the same FCPA- and money-laundering-based conspiracies. Thus, there was no breach of the letter (viewed as a contract-like limitation) and, in any event, Ng lacked standing to invoke the Malaysia–U.S. extradition treaty's specialty protections absent a protest by Malaysia.
• Evidentiary ruling: The district court properly excluded a videotaped October 2018 conversation between Ng’s wife, Hwee Bin Lim, and cooperating coconspirator Timothy Leissner. The recording was classic hearsay offered for the truth of past events (a purported 2005 family investment), did not fit Rule 803(3)’s “then-existing state of mind” exception, was not required for “completeness” under Rule 106, and did not satisfy the reliability demands of Rule 807. Lim testified live at trial, so the defense was not deprived of its core theory.
• Forfeiture and Excessive Fines: Forfeiture of the full $35.1 million that Ng personally received from the scheme was mandatory under 18 U.S.C. §§ 981(a)(1)(C) and 982(a)(1). The Eighth Amendment does not bar this forfeiture: applying United States v. Bajakajian and United States v. Viloski, the Court concluded the amount was not “grossly disproportional” to the gravity of Ng’s crimes, particularly given the scale of the 1MDB theft (roughly $3 billion) and the broader harm to democratic governance. Prior asset seizures by Malaysia did not entitle Ng to a credit or reduction of the U.S. criminal forfeiture.

The Court thus affirmed the district court’s judgment in all respects.

III. Detailed Analysis

A. Factual and Procedural Background

Ng, a Malaysian national and former Goldman Sachs managing director heading Goldman's operations in Malaysia, worked closely with Timothy Leissner (Goldman's Southeast Asia Chairman) and financier Low Taek Jho (Jho Low). Together, they engineered three bond offerings for 1MDB—Projects Magnolia, Maximus, and Catalyze—raising about $6.5 billion in 16 months. Goldman transmitted approximately $5.267 billion in net proceeds to 1MDB.

More than $2.5 billion—over 45% of what 1MDB received—was siphoned off through shell companies for bribes to Malaysian and Abu Dhabi officials and kickbacks to intermediaries, including Low, Leissner, and Ng. Ng’s share (channeled through an account in his mother-in-law’s name and managed by his wife) totaled $35.1 million.

Ng was indicted in the Eastern District of New York (EDNY) on three conspiracy counts:

• Count One: Conspiracy to violate the FCPA anti-bribery provisions, 18 U.S.C. § 371; 15 U.S.C. §§ 78dd‑1, 78dd‑3, 78ff(a).
• Count Two: Conspiracy to violate the FCPA internal accounting controls provisions, 18 U.S.C. § 371; 15 U.S.C. §§ 78m(b)(2)(B), 78m(b)(5), 78ff(a).
• Count Three: Conspiracy to commit international money laundering, 18 U.S.C. § 1956(h); underlying offenses under §§ 1956(a)(2)(A), 1956(a)(2)(B)(i), 1956(c)(7)(B)(iv), and 1957(a).

A jury convicted Ng on all counts. The district court (Chief Judge Margo K. Brodie) sentenced him to 120 months of imprisonment (60 months concurrent on each FCPA count, plus 60 months consecutive on the money-laundering conspiracy), followed by two years of supervised release, and ordered forfeiture of $35.1 million.

On appeal, Ng principally argued:

1. Venue in the EDNY was improper.
2. The government breached the February 2019 extradition waiver agreement by filing superseding indictments.
3. The district court wrongly excluded the October 2018 Lim–Leissner recording.
4. The forfeiture order constituted an excessive fine under the Eighth Amendment.

The Second Circuit rejected each contention.

B. Venue: “Passing Through” the District and Telecommunication-Based Venue

1. Governing principles

Venue in federal criminal cases is governed by the Constitution and by statute:

• Sixth Amendment: A defendant has the right to be tried in the “district wherein the crime shall have been committed.”
• Fed. R. Crim. P. 18: Trial shall be held “in a district where the offense was committed.”
• 18 U.S.C. § 3237(a): For continuing offenses, venue is proper “in any district in which such offense was begun, continued, or completed.”

In conspiracy cases, long-settled Second Circuit law holds that venue lies in:

• Any district where the conspiratorial agreement was made; or
• Any district where any coconspirator committed an overt act in furtherance of the conspiracy.

The opinion cites and builds on cases such as United States v. Tzolov, 642 F.3d 314 (2d Cir. 2011), United States v. Rosa, 17 F.3d 1531 (2d Cir. 1994), and United States v. Ramirez‑Amaya, 812 F.2d 813 (2d Cir. 1987), and more broadly the venue discussion in United States v. Chow, 993 F.3d 125 (2d Cir. 2021).

Critically, venue is not an element of the offense; the government must prove proper venue by a preponderance of the evidence, not beyond a reasonable doubt (Chow).

2. “Passing through” a district

Ng’s principal pretrial venue challenge was to the original and first superseding indictments, arguing that mere electronic communication “passing through” EDNY or incidental contacts did not suffice, and that he lacked substantial contacts with EDNY.

In Ng I (the district court’s 2021 decision), Judge Brodie rejected this view, relying on United States v. Kirk Tang Yuk, 885 F.3d 57 (2d Cir. 2018), and Tzolov:

• In Kirk Tang Yuk, the Court held that a conspirator’s drive over the Verrazzano-Narrows Bridge, passing through a waterway jointly in the Southern and Eastern Districts of New York while transporting narcotics, was enough to support venue, even though the transit was brief.
• In Tzolov, conspirators used JFK Airport (in EDNY) to travel to investor meetings; that travel itself constituted overt acts in furtherance of securities fraud conspiracies and supported venue.

Ng extends these principles to modern financial and telecommunication contexts. The indictments alleged, among other things, that:

• Leissner made false statements at Goldman committee meetings in New York about Jho Low’s involvement in the 1MDB bond deals; and
• Those meetings were attended by participants in New York “using Goldman’s telecommunication facilities, which transited through the Eastern District of New York.”
• Leissner and Low flew into the New York region, traveling from Teterboro Airport (New Jersey) to New York “transiting through the Eastern District of New York” to attend meetings about Project Magnolia.

The Second Circuit did not need to resolve the full theoretical scope of “passing through” for venue in this appeal because:

1. Ng was convicted under the second superseding indictment (S‑2), not the first; S‑2 contained more concrete venue-related allegations.
2. Ng never moved to dismiss S‑2 for improper venue, nor did he raise venue in his Rule 29 motion.

Citing cases like United States v. Rommy, 506 F.3d 108 (2d Cir. 2007), and United States v. Grammatikos, 633 F.2d 1013 (2d Cir. 1980), the Court reiterated the rule that venue objections are generally waived if not raised in a Rule 29 motion or otherwise properly preserved—even though, in some cases, the Court nonetheless reaches the merits.

Here, the panel stressed that:

• S‑2 charged the same three conspiracies as earlier indictments.
• S‑2 added factual allegations about:
  • Leissner’s and Low’s travel through EDNY to attend a New York meeting; and
  • Telecommunications traffic for Goldman committee meetings flowing through EDNY.
• Ng’s failure to renew his venue challenge against S‑2 and his failure to move for acquittal based on venue made his appellate venue argument non‑dispositive.

Functionally, the Court leaves intact—and reinforces—its prior holdings that venue in conspiracy and financial crime cases may rest on:

• Physical transit through the district (even if brief), and
• Use of telecommunications systems that route through the district, where that use is an overt act in furtherance of the conspiracy and reasonably foreseeable to the conspirators.

3. Foreseeability and conspiratorial venue

Ng also argued that any EDNY contacts were not reasonably foreseeable to him. The district court, quoting Kirk Tang Yuk, noted that venue lies if a reasonable jury could find it “more probable than not” that the defendant “reasonably could have foreseen” that part of the offense would occur in the district.

The Court endorsed the district court’s reasoning: Ng was a senior Goldman employee, regularly interacting with colleagues in New York and fully aware that key Goldman decision-makers and committees (including those reviewing the 1MDB deals) were based in New York. On those facts, it was plainly foreseeable that relevant overt acts—meetings, calls, teleconferences—would occur in or through EDNY.

Impact: The decision underscores that in global financial conspiracies, foreseeability of New York-centric activity is easy to establish for senior financial professionals. Defense teams must raise venue arguments at every applicable stage (motions to dismiss, Rule 29), and prosecutors are encouraged to plead and prove specific travel and communication acts implicating the chosen venue.

C. Extradition Waiver, Superseding Indictments, and the Doctrine of Specialty

1. Doctrine of specialty and standing

The “doctrine of specialty” is a principle of international law and extradition practice: a person surrendered by one state to another may be prosecuted only for the offense(s) for which extradition was granted, unless the extraditing state consents to broader prosecution. The opinion cites:

• United States v. Alvarez‑Machain, 504 U.S. 655 (1992): describing the doctrine as barring prosecution “for a crime other than the crime for which he was extradited.”
• United States v. Paroutian, 299 F.2d 486 (2d Cir. 1962): the doctrine protects the extraditing state against abuse of its extradition decision.
• United States v. Barinas, 865 F.3d 99 (2d Cir. 2017), and United States v. Garavito‑Garcia, 827 F.3d 242 (2d Cir. 2016): a defendant lacks standing to assert a violation of the doctrine unless the extraditing state protests or objects.

Thus, even where treaty-based specialty limitations exist, the offended sovereign (here, Malaysia) is generally the one entitled to complain. Since Malaysia made no such protest, Ng had no treaty-based specialty claim.

2. The February 2019 extradition waiver letter

The more concrete issue was contractual and statutory: in exchange for Ng’s “knowing and willful” waiver of extradition by a specified deadline, DOJ agreed it would not have Ng:

detained, tried or punished at the request of our Offices except for (1) the offenses charged in the indictment returned on October 3, 2018 in the above‑referenced case, or any lesser included offense proved by the facts on which this indictment was grounded, and (2) any offense committed after the waiver of extradition and initial appearance…

The government later argued that:

• The letter was not a binding agreement because it was not signed; and
• Ng had “consented” to extradition under Malaysia’s Extradition Act (rather than “waived” extradition in the sense used in the letter).

The district court rejected those technical arguments and held that:

• Ng’s actions constituted a “waiver” within the meaning of the letter; and
• The letter was binding and should be honored.

The Second Circuit agreed that Ng complied with the waiver condition, and proceeded to the core question: did S‑1 or S‑2 violate the letter’s limitation that he be tried only for “the offenses charged in the [October 3, 2018] indictment” or lesser included offenses?

3. Superseding indictments and what counts as “the same offense”

Ng argued that the government breached the agreement by filing S‑1 (and implicitly S‑2), because they added new factual allegations and details beyond the original indictment. His theory was that by promising not to “change the offense,” DOJ effectively committed not to alter the factual basis or theory of the case in a material way.

The Second Circuit rejected that reading by grounding its analysis in:

• Fed. R. Crim. P. 7(c)(1): An indictment is a “plain, concise, and definite written statement of the essential facts” constituting the offense. It is not required (and is not expected) to lay out all evidentiary detail.
• Russell v. United States, 369 U.S. 749 (1962): legally sufficient indictments may track the statutory language and specify time and place in general terms, so long as the defendant is adequately informed of the nature of the accusation.

Comparing the indictments, the Court emphasized that:

• All three indictments—original, S‑1, and S‑2—charged the same three conspiracy offenses:
  • Conspiracy to violate the FCPA anti‑bribery provisions;
  • Conspiracy to violate the FCPA internal controls provisions; and
  • Conspiracy to commit international money laundering.
• All alleged the same core conduct: use of three 1MDB bond offerings to raise billions; diversion of nearly half the proceeds to pay bribes to Malaysian and Abu Dhabi officials and kickbacks (including to Ng); and concealment via shell companies and misrepresentations to Goldman’s compliance and committees.
• The superseding indictments merely added:
  • Additional descriptions of overt acts (e.g., specific travel itineraries; communications; Goldman's internal meeting details); and
  • More detail about venue and the conspiracy’s operation.

On this basis, the Court held that the superseding indictments did not charge Ng with any new “offenses” in the sense relevant to specialty or to the letter agreement. They did not alter “the nature of the conduct alleged or of the charged offenses”; they simply fleshed out the same conspiracies.

Key rule articulated: Where a defendant has agreed (whether via treaty or extradition letter) to be tried only for specified offenses, the government does not breach that commitment by filing superseding indictments that:

• Keep the same statutory charges;
• Describe the same overarching criminal scheme; and
• Only add factual detail or additional overt acts in support of those same conspiracies.

To bar such superseding indictments, an extradition agreement (or treaty condition) would need to go further and explicitly restrict the addition of factual allegations or theories, not just “offenses” in the statutory sense.

Impact: For cross-border cases, Ng confirms that:

• DOJ may safely supersede indictments post‑extradition so long as it does not add new statutory offenses beyond those for which extradition (or waiver) was granted.
• Defense counsel negotiating extradition waivers must draft explicit limits if they aim to freeze the factual scope or theory of the case, not merely the list of statutes.
• Absent a protest from the extraditing state, a defendant has no standing to raise a pure treaty-based specialty claim.

D. The Evidentiary Ruling: Exclusion of the October 2018 Lim–Leissner Recording

1. The defense theory and the proffered recording

Ng’s core defense regarding the $35.1 million was that these funds were not bribe-derived kickbacks but rather legitimate returns on a 2005 investment by his wife’s family with Judy Chan (Leissner’s then‑wife) and her family. At trial, Ng’s wife, Hwee Bin Lim, testified to that effect.

Before trial, Ng sought to bolster this story with a video recording of an October 16, 2018 call between Lim and Leissner. By that time:

• Leissner had been arrested in the U.S., had pled guilty, and was cooperating with DOJ; and
• Ng had been arrested in Malaysia, but the U.S. indictment was not yet unsealed.

In the call, Lim told Leissner that Malaysian authorities were seeking to forfeit funds in her mother’s account, which she claimed were from a “real business” and a longstanding investment relationship with Chan dating back to 2005. She asked whether Chan had any documents evidencing that investment, and Leissner responded noncommittally (“Mhm,” “Maybe so,” etc.), never explicitly denying the investment.

Ng argued that:

• Lim’s statements were not hearsay because they were phrased as questions and offered only to show that she said them, not that they were true.
• Alternatively, they fit Rule 803(3) as Lim’s then-existing state of mind (her intent to obtain documents).
• Rule 106 (completeness) required admission to contextualize a separate June 2018 call the government would introduce.
• Rule 807 (residual exception) allowed admission because the statements had sufficient guarantees of trustworthiness.

2. The Court’s hearsay analysis

The Court reviewed hearsay rulings de novo on legal interpretation but with deference to factual and discretionary aspects, citing United States v. Gupta, 747 F.3d 111 (2d Cir. 2014); United States v. Coplan, 703 F.3d 46 (2d Cir. 2012); United States v. Ferguson, 676 F.3d 260 (2d Cir. 2011); United States v. Thai, 29 F.3d 785 (2d Cir. 1994); and United States v. Skelos, 988 F.3d 645 (2d Cir. 2021).

Key points:

• Not “just questions”: The panel rejected Ng’s notion that Lim’s statements were mere questions and therefore automatically non-hearsay. Citing United States v. Harwood, 998 F.2d 91 (2d Cir. 1993), and Ninth Circuit authority in United States v. Torres, 794 F.3d 1053 (9th Cir. 2015), the Court emphasized:
  • Statements—whether phrased as questions or not—are hearsay if they are offered to prove the truth of an implied assertion.
  • Lim’s statements plainly communicated the substantive assertion that there had been a 2005 investment and that Capital Place-related funds were legitimate investment proceeds.
• Relevance of the content, not the mere utterance: Under Harwood, non-hearsay use requires that the fact the statement was made (regardless of its truth) be independently relevant. Here, the defense wanted the jury to infer from Lim’s words and Leissner’s non-denials that a real investment existed. That makes the truth of her assertions central, not incidental.
• Layered hearsay: The recording itself is an out-of-court statement being offered for its content, and within it, Lim’s assertions about what purportedly happened in 2005–2011 are further hearsay. Each layer must satisfy an exception.

3. Rule 803(3): “State of mind” is forward-looking, not a backdoor to prove past acts

Rule 803(3) allows admission of:

A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan),… but not including a statement of memory or belief to prove the fact remembered or believed….

The Court, echoing United States v. Cardascia, 951 F.2d 474 (2d Cir. 1991), emphasized that:

• The exception is generally limited to forward-looking state-of-mind evidence (plans, intentions) and is not a vehicle for admitting a declarant’s memory of past events to prove those events actually occurred.
• Lim’s statements were primarily about past conduct (the alleged 2005 investment and subsequent “wind down” in 2011), which she wanted the Malaysian authorities (and ultimately the jury) to accept as true.
• To use Rule 803(3) to prove those past events would “significantly erode the intended breadth of this hearsay exception” (Cardascia).

The district court therefore correctly rejected Rule 803(3) as a basis for admitting the recording.

4. Rule 106 (completeness) and Rule 807 (residual exception)

Rule 106 allows an adverse party, when a part of a recording is introduced, to require introduction of other parts “that in fairness ought to be considered at the same time.” The Court accepted the district court’s narrow use of the June call (only as background to show that Leissner was cooperating with the government) and agreed that the October call was not necessary to avoid misleading the jury or to “complete” the admitted portion.

Regarding Rule 807 (the residual exception), the Court noted that:

• The exception applies only to statements with “equivalent circumstantial guarantees of trustworthiness.”
• The district court identified “numerous reasons to doubt the trustworthiness” of Lim’s recorded assertions, including her obvious stake in portraying the funds as legitimate investments while under investigation.
• Lim testified live and could be cross-examined, so there was no serious necessity for the hearsay declaration.

The appellate court found no abuse of discretion in excluding the recording under Rules 106 and 807.

Practical significance: The decision underscores that:

• Attempts to introduce self-serving exculpatory narratives via third-party calls are unlikely to succeed when those narratives involve past events, especially if the declarant testifies in court.
• Rule 803(3) will be rigorously policed to prevent its use as a backdoor hearsay exception for historical assertions.
• Questions or statements that imply facts can still be hearsay when offered for that implied factual content.

E. Mandatory Forfeiture and the Eighth Amendment’s Excessive Fines Clause

1. Statutory framework and mandatory nature of forfeiture

The forfeiture provisions at issue were:

• 18 U.S.C. § 981(a)(1)(C): Subjects to forfeiture “any property, real or personal, which constitutes or is derived from proceeds traceable to… any offense constituting ‘specified unlawful activity’… or a conspiracy to commit such offense.”
• 18 U.S.C. § 982(a)(1): Requires that, upon conviction for an offense in violation of § 1956 or § 1957, “the court… shall order that the person forfeit… any property… involved in such offense, or any property traceable to such property.” (Emphasis added.)

As the Second Circuit has repeatedly held, these provisions make forfeiture mandatory once the statutory conditions are met. The district court cited United States v. Viloski, 814 F.3d 104 (2d Cir. 2016), which notes that “a district court has no discretion not to order forfeiture in the amount sought” when triggered by statute. Similarly, in United States v. Bodouva, 853 F.3d 76 (2d Cir. 2017), the Court held that courts cannot reduce mandatory forfeiture by amounts paid as restitution absent specific statutory authority.

Here, the district court found (and the Second Circuit affirmed) that:

• The government proved by at least a preponderance of the evidence that Ng personally received $35.1 million from the 1MDB scheme via the mother‑in‑law account.
• That sum constituted proceeds traceable to the specified unlawful activities (foreign bribery and related money laundering).
• Accordingly, forfeiture of the full $35.1 million was statutorily required.

Ng argued that because Malaysia had already seized assets from him and his family—allegedly exceeding the $35.1 million in question—the U.S. forfeiture would be effectively duplicative and ruinous, violating the Excessive Fines Clause.

2. No offset for foreign forfeitures or restitution

The Court reiterated the principle from Bodouva that courts lack authority to offset mandatory forfeiture based on restitution. It then analogized and extended this reasoning to foreign asset seizures, relying on:

• United States v. Pena, 67 F.3d 153 (8th Cir. 1995); and
• United States v. Williams, 519 F. App’x 303 (5th Cir. 2013),

both of which reject reducing U.S. forfeiture based on foreign confiscations for the same conduct.

Moreover, the Court noted that because 1MDB (a Malaysian state-owned entity) was the direct victim of the embezzlement, Malaysian orders seizing Ng’s assets can be understood as a form of restitution or compensatory recovery. That provides no statutory or constitutional basis for reducing the U.S. forfeiture amount, which is keyed to what Ng gained, not what he currently has.

3. Excessive Fines analysis under Bajakajian and Viloski

The Eighth Amendment bars “excessive fines.” The Supreme Court’s leading case, United States v. Bajakajian, 524 U.S. 321 (1998), holds that a punitive forfeiture violates the Clause if it is “grossly disproportional to the gravity of the defendant’s offense.”

Applying Bajakajian, the Second Circuit in Viloski distilled four main factors (the “Bajakajian factors”):

1. The essence of the defendant’s crime and its relation to other criminal activity.
2. Whether the defendant fits into the class of persons for whom the statute was principally designed.
3. The maximum sentence and fine that could have been imposed.
4. The nature of the harm caused by the defendant’s conduct.

In Viloski, the Court also held that a defendant’s future livelihood can be considered, but only as part of the overall proportionality inquiry, not as an independent test.

In Ng’s case, the district court and the Second Circuit applied these factors as follows:

• Essence of the crime: Ng willfully engaged in a multi-year, highly sophisticated financial scheme to embezzle billions from a sovereign development fund and to pay massive bribes to high-level foreign officials. His conduct was central to global corruption and large-scale money laundering.
• Class of persons: Ng plainly falls within the class targeted by the FCPA and U.S. money laundering statutes—financial professionals facilitating international bribery and laundering corrupt proceeds through the U.S. system.
• Maximum sentence and fine: For money laundering conspiracy, the maximum fine could have been up to twice the value of the laundered funds. Ng’s forfeiture (equal to his proceeds of $35.1 million) is only half of what a fine could have been, indicating proportionality rather than excess.
• Nature of harm: The scheme caused:
  • Enormous tangible harm—the theft of about $3 billion from the Malaysian public via 1MDB; and
  • Severe intangible harm—erosion of public trust in democratic governance and financial integrity, particularly in a developing country.

On the livelihood point, Ng argued that the combined effect of the Malaysian seizures and the U.S. forfeiture would render him destitute and unable to earn a future livelihood. The district court found, and the Second Circuit agreed, that:

• Ng’s submissions focused only on his current indebtedness and asset losses; and
• He did not meaningfully show that he would be unable to earn income in the future, as opposed to merely being impoverished now.

Given the gravity of the offense and the fact that the forfeiture amount precisely equaled the proven proceeds that Ng obtained from the crime, the Court held that the forfeiture was not grossly disproportional and therefore not unconstitutional.

Key takeaway: In large-scale white-collar or corruption cases, forfeiture equal to the defendant’s criminal proceeds—even when layered on top of foreign seizures or domestic restitution—will rarely be “grossly disproportional” under the Eighth Amendment, particularly where the harm is systemic and the authorized maximum fines are even higher.

F. Procedural Lessons: Waiver and Standards of Review

A recurring subtheme of the opinion is procedural rigor:

• Ng’s failure to challenge S‑2’s venue allegations or to include venue in his Rule 29 motion led the Court to treat the issue as waived for practical purposes, citing decisions like Rommy, Grammatikos, and United States v. Bala, 236 F.3d 87 (2d Cir. 2000).
• Ng’s failure to move against S‑2 for an alleged specialty or contract breach led the government to argue for plain error review; the Court concluded there was no error at all, plain or otherwise.

The opinion thus reiterates that:

• Venue is not jurisdictional; it can be waived.
• To preserve venue or specialty/extradition arguments, defendants must renew objections with each superseding indictment and in Rule 29 motions where appropriate.
• On appeal, evidentiary rulings will be upheld absent “manifest error,” particularly where the defense had other means (such as live testimony) to present its theory.

IV. Complex Concepts Simplified

1. FCPA anti-bribery and internal controls provisions

The FCPA (15 U.S.C. §§ 78dd‑1 et seq.) has two principal components relevant here:

• Anti-bribery: Prohibits “issuers” (companies whose securities are registered in the U.S.) and their officers, employees, and agents from offering or giving anything of value to foreign officials to:
  • Influence official acts or decisions;
  • Induce them to violate their duties; or
  • Use their influence to assist in obtaining or retaining business.
• Internal accounting controls: Requires issuers to maintain systems ensuring that access to assets and recording of transactions are properly authorized and accurately documented. It also prohibits knowingly circumventing or failing to implement these controls.

In Ng’s case, Goldman Sachs, as a U.S.-listed issuer, had to maintain such controls. Ng and Leissner allegedly subverted these controls by concealing Jho Low’s involvement and the bribery scheme from Goldman’s compliance and committees, thereby enabling Goldman to proceed with the lucrative bond deals.

2. Money-laundering statutes

Two key provisions underpinned Count Three:

• 18 U.S.C. § 1956(a)(2)(A): Prohibits transporting or transferring funds into or out of the U.S. with the intent to promote specified unlawful activity (here, foreign bribery and embezzlement).
• 18 U.S.C. § 1956(h): Makes it a crime to conspire to commit any § 1956 or § 1957 offense.

“Specified unlawful activity” includes foreign offenses such as:

• Bribery of a public official; or
• Misappropriation or embezzlement of public funds by or for the benefit of a public official.

(See 18 U.S.C. § 1956(c)(7)(B)(iv).)

Section 1957 separately criminalizes monetary transactions over a threshold amount involving criminally derived property (here, the bribe-tainted 1MDB funds).

3. Doctrine of specialty in extradition

When a country extradites a suspect to another country, the receiving country generally may:

• Prosecute only the offenses for which the extradition was granted; and
• Not add new offenses without the extraditing country’s consent.

This protects the extraditing state’s sovereignty and conditions. But as a matter of U.S. law:

• The extraditing state is the party whose rights are at stake.
• The defendant may not invoke a treaty-based specialty violation unless the extraditing state protests or objects.

In Ng, no Malaysian protest occurred, and the only binding specialty-like limit was the DOJ letter, which the Court construed narrowly.

4. Criminal forfeiture vs. restitution; money judgments

Criminal forfeiture is punishment that deprives a defendant of property related to the offense—usually the proceeds gained or property used to commit the crime. It is part of the sentence. In a “money judgment” forfeiture, the court orders the defendant to pay a sum equal to the value of the property, regardless of whether that exact property is still in his possession.

Restitution is compensatory: it aims to make victims whole by returning losses. It is conceptually distinct from forfeiture, although in practice the same money may satisfy both obligations if statutes allow.

In Ng:

• The $35.1 million forfeiture corresponds to Ng’s proceeds from the crime.
• Any assets seized by Malaysia, especially if directed to 1MDB or the Malaysian state, are more akin to restitution or separate foreign forfeitures; they do not reduce the mandatory U.S. forfeiture amount.

5. Excessive Fines: “Gross disproportionality” test

Not every large fine or forfeiture is “excessive” under the Eighth Amendment. Under Bajakajian:

• The question is whether the amount is grossly disproportional to the gravity of the offense.
• Courts compare:
  • Amount forfeited;
  • Seriousness and nature of the crime;
  • Authorized penalties; and
  • Actual harm caused, including social and institutional harms.

A forfeiture equal to the criminal proceeds in a massive transnational corruption case, with billions in victim losses and statutory authorization for even higher fines, is unlikely to be deemed “grossly disproportional.”

V. Broader Implications and Future Impact

1. For prosecutors

• Venue strategy: The opinion validates reliance on:
  • Transit through a district (e.g., flights, bridges, transportation), and
  • Telecommunication routing through a district,
  as overt acts in furtherance of a conspiracy. Prosecutors should document such acts clearly in indictments and evidence.
• Extradition practice: DOJ can:
  • Continue using extradition waivers and letters that limit prosecution to specified offenses; and
  • File superseding indictments adding detail, as long as the statutory offenses do not change.
• Forfeiture: The ruling encourages robust use of criminal forfeiture in transnational corruption cases, even when foreign asset recovery proceedings are ongoing. Coordination with foreign authorities is policy-driven, not constitutionally required.

2. For defense counsel

• Preservation of issues: Raise venue, specialty, and other structural objections with each new indictment and in Rule 29 motions; failing to do so risks waiver.
• Extradition negotiations: If the defense wants to lock in not just the statutes but also the factual scope or potential enhancements, agreements must be drafted with care—e.g., specifying no new overt acts, no additional factual predicates, or no increased statutory exposure.
• Evidence strategy:
  • Be cautious about relying on out-of-court conversations as surrogates for live testimony—especially where the declarant will testify.
  • Understand the narrow reach of Rule 803(3) and the difficulty of using Rule 807 to admit self-serving statements.
• Excessive fines challenges: To make serious headway under the Eighth Amendment, defendants should:
  • Present detailed financial evidence and expert testimony regarding future earning capacity;
  • Address the statutory maximum penalties head-on; and
  • Confront, rather than minimize, the harm caused by the offense.

3. For financial institutions and compliance professionals

• Personal liability: Non‑U.S. nationals working for U.S.-listed financial institutions can face U.S. prosecution under the FCPA and money laundering statutes, with substantial prison time and massive forfeitures.
• Compliance failures as criminal exposure: Concealing the role of high-risk intermediaries from compliance (here, Jho Low) and circumventing internal controls can form the basis not only of corporate liability but also individual criminal conspiracies.
• Global enforcement: The case illustrates the growing willingness of U.S. authorities to pursue foreign actors for conduct primarily affecting a foreign sovereign, especially where the U.S. financial system is used.

VI. Conclusion

United States v. Ng Chong Hwa is more than a straightforward affirmance of a high-profile conviction. It clarifies and consolidates several important strands of criminal law in the Second Circuit:

• Venue in conspiracy and financial crime cases can rest on fairly modest—but properly alleged and proven—contacts with the district, including transit and telecommunications, so long as those acts further the conspiracy and are reasonably foreseeable.
• Extradition waivers and specialty limits, when drafted in terms of “offenses,” constrain the statutes that may be charged, but do not freeze the government’s ability to add factual particulars and overt acts in superseding indictments that preserve the same charges.
• Hearsay doctrine, especially Rule 803(3) and Rule 807, remains a meaningful bar to defense attempts to introduce self-serving, historical narratives via recorded conversations, particularly when the declarant is available and testifies.
• Mandatory criminal forfeiture of proceeds in large corruption and money-laundering cases is constitutionally robust: absent gross disproportionality, prior foreign asset seizures or current indigence do not render such forfeitures excessive under the Eighth Amendment.

In the broader landscape, Ng strengthens the legal infrastructure for cross-border anti-corruption enforcement, underscores the risks faced by individual bankers and intermediaries, and offers clear guidance on how the Second Circuit will evaluate future challenges to venue, extradition-based constraints, evidentiary exclusions, and large forfeiture awards.