United States v. To , 144 F.3d 737 ( 1998 )


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  •                                  United States Court of Appeals,
    
                                            Eleventh Circuit.
    
                                              No. 96-3045.
    
                           UNITED STATES of America, Plaintiff-Appellee,
    
                                                    v.
    
                      Conghau Huu TO a.k.a. Tigo, et al., Defendants-Appellants.
    
                                              June 23, 1998.
    
    Appeals from the United States District Court for the Middle District of Florida. (No. 94-293-Cr-T-
    17E), Thomas Wiseman, Jr., Judge.
    
    Before HATCHETT, Chief Judge, and EDMONDSON and COX, Circuit Judges.
    
           HATCHETT, Chief Judge:
    
           In this complex criminal conspiracy case, we affirm the convictions and sentences of four
    
    members of a violent gang that committed a series of home and business robberies targeting Asian-
    
    American restaurant owners and managers in the Tampa, Florida area. We reverse the convictions
    
    of one alleged gang member because the evidence against him was insufficient.
    
                                                I. FACTS
    
           On April 23, 1994, Thanh Xuan Nguyen (T.X.) and Tung Van Nguyen (Tony) went to the
    
    Saigon Palace restaurant, where they met their roommate, Tuan Duc Phung (Phung), and a number
    
    of other individuals attending a birthday party. The birthday party was for a friend of Phung's
    
    named Conghau Huu To (To). Before T.X. and Tony arrived at the Saigon Palace, To and An Thanh
    
    Le began plotting a scheme to rob the manager of the Big Easy restaurant, Khanh Quoc Le, who
    
    happened to be eating at the Saigon Palace. After some preliminary plotting, An Thanh Le left the
    
    Saigon Palace to obtain weapons and more manpower. An Thanh Le later returned to the Saigon
    
    Palace with weapons and two cohorts, Tam Minh Le and Dung Quoc Nguyen.
           Soon after An Thanh Le returned to the Saigon Palace, Phung approached T.X. and Tony
    
    and told them to go back to their room at the Rembrandt Apartment complex, so that he could "take
    
    care of some business." After T.X. and Tony complied with the request, Phung, To and the others
    
    spoke further about the planned robbery. Ultimately, they decided that Phung, Tam Minh Le and
    
    Dung Quoc Nguyen should actually commit the robbery. Shortly thereafter, when Khanh Quoc Le
    
    left the restaurant, Phung, Dung Quoc Nguyen and Tam Minh Le followed and attacked him. Tam
    
    Minh Le struggled with Khanh Quoc Le, shooting him twice. Tam Minh Le then shot Khanh Quoc
    
    Le a third time, directly in the chest, before calmly walking back to the Saigon Palace, his shirt
    
    covered with blood, and getting a ride home.1 Tam Minh Le later confessed to T.X. about the
    
    murder and also admitted to police that he killed Khanh Quoc Le on orders from others. The murder
    
    weapon eventually wound up in To's possession, who then gave it to Quang Ming Tran as collateral
    
    for a gambling debt.
    
           Soon after the murder, T.X. and Tony began committing a series of home invasion robberies
    
    with An Thanh Le. On at least one occasion, May 13, 1994, Tam Minh Le also participated in a
    
    home invasion robbery with T.X., Tony and An Thanh Le. The robberies—often of Asian-American
    
    restauranteurs—did not generate much money. Frustrated with the minimal robbery proceeds, T.X.
    
    and Tony eventually complained to Phung. Phung suggested that T.X. and Tony meet with To to
    
    discuss the possibility of committing robberies with him. T.X. and Tony accepted Phung's
    
    suggestion and arranged for a meeting with To. During the meeting, To told T.X. and Tony that they
    
    should not deal with An Thanh Le anymore because To suspected An Thanh Le of conspiring with
    
    
       1
        When asked at trial about any money that might have been taken from Khanh Quoc Le
    during the attempted robbery, T.X. testified that An Thanh Le told him that Khanh Quoc Le did
    not have any money.
    
                                                    2
    the Federal Bureau of Investigation (FBI). To also told T.X. and Tony about Hai Van Nguyen, who
    
    had committed robberies with To in the past.
    
           On May 23, 1994, To, T.X. and Tony decided to rob the manager of a 7-Eleven store where
    
    Tony had previously worked. The three men followed the manager, Torboon Gayanont, from the
    
    7-Eleven to the drive-through lane of a bank. As Gayanont waited to make a deposit, To ran up to
    
    the car and pointed a gun at Gayanont's head. To then threatened to kill Gayanont if he did not hand
    
    over the deposit money. Gayanont quickly relented and handed To a bag containing approximately
    
    $8,000. To, T.X. and Tony promptly fled to a friend's home where they counted the money. To
    
    gave $2,000 of the stolen deposit money to T.X. and $1,500 to Tony. T.X. and Tony, in turn, each
    
    gave $300 to Phung as a show of respect and a reward for introducing them to To.
    
           A few days later, To, T.X. and Tony went to the Mekong restaurant in St. Petersburg,
    
    Florida, where they met To's partner, Hai Van Nguyen. Hai Van Nguyen introduced them to five
    
    other men who had just come to Florida from Atlanta, Georgia—Tai Tan Pham (Pham), Liem Thanh
    
    Luong (Luong), Lap Van Le, Nguyen Tu Doan (Doan) and another individual named Lap. Hai Van
    
    Nguyen had met some of the men while on a trip to Atlanta in April 1994. During that trip, Hai Van
    
    Nguyen invited some of the Atlanta men to the Tampa area so that he could show them where they
    
    could commit robberies. The trial testimony does not establish that Pham heard this invitation
    
    before deciding to accompany the Atlanta group to the Tampa area. The trial testimony does,
    
    however, reflect that Pham's estranged girlfriend lived in the Tampa area, and that Pham contacted
    
    her soon after arriving from Atlanta.
    
           After meeting at the Mekong, all nine men went to the China Town restaurant in Tampa. At
    
    the China Town, Hai Van Nguyen announced that "from this day forward, the brothers who come
    
    
                                                     3
    from Atlanta will stay with us in Tampa." Hai Van Nguyen then promised to rent a house in which
    
    everyone could live. Later that evening, the men rented two rooms at the Expressway Inn, and
    
    proceeded to spend the next several days together, occasionally using cocaine and marijuana. Many
    
    of the men began referring to Hai Van Nguyen and To as "An Hai" and "An Ba," allegedly
    
    Vietnamese references to the highest and second highest gang members. To paid the bills for food
    
    and the Expressway Inn rooms using the remaining money from the 7-Eleven robbery. Luong
    
    suggested that the men collectively adopt the nickname "V-Boys" and get matching spider tattoos.
    
           As the money from the 7-Eleven robbery began to run out, To decided that the group should
    
    rob the Shanghai Buffet restaurant, where Phung worked. To discussed his plan in the presence of
    
    at least some of the others, including Pham, Tony and Lap Van Le, none of whom expressed any
    
    objections or reservations. To did not, however, immediately tell the others when the robbery would
    
    occur or the men that would participate in the robbery. On the night of May 28, 1994, To decided
    
    that it was time to commit the robbery. He paged T.X., who was at the China Town restaurant with
    
    Tony, Luong and Pham, and instructed him to return to the Expressway Inn. When T.X. arrived at
    
    the Expressway Inn, he met To, Hai Van Nguyen, Doan and Lap Van Le. To decided that T.X.,
    
    Doan and Lap Van Le would help with the robbery. Hai Van Nguyen went to the China Town to
    
    wait with Luong and the others.
    
           To, T.X., Doan and Lap Van Le then drove to the Shanghai Buffet, armed with a .380
    
    handgun, a BB gun and a knife. When the restaurant owners, Richard and Gina Lin, left for the
    
    evening, To and his cohorts followed the Lins home and accosted them. They tied the Lins up,
    
    covered their eyes with duct tape, and, on several occasions, threatened to kill them. One of the
    
    robbers put a knife to Gina Lin's neck, while another used a handgun and pointed it at the Lins'
    
    
                                                    4
    heads. Unsatisfied with the money and jewelry found at the house, the robbers brutally assaulted
    
    Richard Lin until he acknowledged that more money was kept back at the Shanghai Buffet in a safe.
    
    To then instructed T.X. and Lap Van Le to keep Gina Lin and the Lins' children hostage at the house
    
    while he and Doan drove Richard Lin back to the Shanghai Buffet to get the money from the safe.
    
    When To and Doan arrived at the Shanghai Buffet with Richard Lin, Lin removed $10,000 from the
    
    safe and gave it to To. The three men then returned to Richard Lin's house. As To and his cohorts
    
    left the Lins' house, they told Richard Lin they would kill his whole family if he called the police.
    
           T.X. then called Luong at the China Town and told him that the robbery was complete and
    
    that Luong should return to the Expressway Inn. Luong promptly gathered his companions and
    
    returned to the Expressway Inn. Phung also came to the Expressway Inn, and, as he entered the
    
    room, stated that what the group had done "was good."2 When everyone was assembled, To and Hai
    
    Van Nguyen counted the money and gave everyone $500, except for Hai Van Nguyen, who got
    
    $1,000 so he could rent a house for the group.3 To also divided up the jewelry that was stolen from
    
    the Lins, including chains and rings. The next day, the entire group moved to another motel.
    
           On May 30, 1994, An Thanh Le, Tam Minh Le and Dung Quoc Nguyen came to the China
    
    Town restaurant together, where To and his cohorts also happened to be dining. As An Thanh Le
    
    entered the China Town, To indicated that he wanted to shoot An Thanh Le. As noted earlier, To
    
    suspected An Thanh Le of working for the FBI. Neither To nor any of his cohorts had a weapon with
    
    
    
       2
        At trial, T.X. indicated that he interpreted Phung's comment to mean that the group had done
    a good job with the robbery.
       3
        The record is not altogether consistent with respect to when Hai Van Nguyen arrived, and
    with whom, or with respect to whether he counted the money or simply received money. The
    facts as recounted above, however, seem most plausible in light of all the trial testimony.
    
                                                     5
    them so To sent Tony back to the motel for guns.4 Tony returned with two guns and gave one to
    
    Luong, who displayed the gun openly. Hai Van Nguyen then expressed concern about any action
    
    being taken against An Thanh Le in the restaurant because he feared that one of the customers might
    
    be an FBI agent. Luong stated that he did not care, as he was prepared to shoot both An Thanh Le
    
    and the FBI agent. Cooler heads prevailed, and An Thanh Le left the China Town restaurant
    
    unharmed, as did Tam Minh Le and Dung Quoc Nguyen. As An Thanh Le and his companions left,
    
    however, Luong and Tony followed them outside and ultimately chased after An Thanh Le's vehicle
    
    for about a mile.
    
           On or about June 1, 1994, To again gathered guns and went after An Thanh Le, this time at
    
    An Thanh Le's home. Doan accompanied To and tried to shoot An Thanh Le with a gun that Hai
    
    Van Nguyen had previously given him. On June 15, 1994, police arrested Pham, Doan, Hai Van
    
    Nguyen, Tony, Lap Van Le, Luong and T.X. outside the China Town restaurant. Lap Van Le, Hai
    
    Van Nguyen, Doan and Pham were in Lap Van Le's Nissan Maxima. Tony, Luong, T.X. and a
    
    juvenile were in Tony's Toyota Supra. T.X. had a .380 handgun in his waistband. Luong had a 9mm
    
    Glock in his waistband.      Police found a 9mm pistol, a .380 semi-automatic handgun, a
    
    semi-automatic pistol, a BB gun, a magazine for the 9mm pistol and a roll of duct tape in the
    
    Maxima. The police also noticed that three members of the group—Doan, Pham and T.X.—had a
    
    series of three cigarette burns on their arms, allegedly a mark of courage and loyalty. At trial,
    
    
    
       4
        In its brief to the panel, the government contended that Pham went with Tony to obtain guns.
    During oral argument, however, the government conceded that this contention was inconsistent
    with the record. Our independent review of the record reveals the same. We note that the
    government also argued during its closing statement to the jury that Pham went to obtain guns.
    Pham did not object to the improper closing argument, however, and does not on appeal rely on
    the improper closing argument as a basis for reversal.
    
                                                    6
    however, Pham's estranged girlfriend testified that Pham had inflicted at least one of the burns
    
    during an argument with her about their relationship.
    
                                     II. PROCEDURAL HISTORY
    
           On December 21, 1994, a federal grand jury in the Middle District of Florida returned a
    
    multi-count indictment against eleven defendants, including all the appellants. Count One charged
    
    To, Hai Van Nguyen, Lap Van Le, Phung, Tony, Doan, An Thanh Le, Tam Minh Le and Dung Quoc
    
    Nguyen with racketeering, in violation of 18 U.S.C. § 1962(c) (substantive RICO). Count One
    
    charged several racketeering acts against various defendants: conspiracy to commit a Hobbs Act
    
    robbery (racketeering act 1(a)), conspiracy to commit robbery in violation of state law (act 1(b)),
    
    attempted Hobbs Act robbery of Khanh Quoc Le on April 23, 1994 (act 2(a)), murder of Khanh
    
    Quoc Le on April 23, 1994 (act 2(b)), robbery on May 7, 1994 (act 3), robbery on May 13, 1994 (act
    
    4), Hobbs Act robbery on May 23, 1994 (act 5), Hobbs Act robbery on May 29, 1994 (act 6), the
    
    May 31, 1994 attempted murder of An Thanh Le to prevent his communicating to law enforcement
    
    information about a federal offense (act 7(a)), and the May 31, 1994 attempted murder of An Thanh
    
    Le (act 7(b)).
    
           Count Two charged To, Hai Van Nguyen, Lap Van Le, Phung, Pham, Luong, Tony, Doan,
    
    An Thanh Le, Tam Minh Le and Dung Quoc Nguyen with conspiring to engage in racketeering, in
    
    violation of 18 U.S.C. § 1962(d) (RICO conspiracy); Count Three charged To, Hai Van Nguyen,
    
    Lap Van Le, Phung, Pham, Luong, Tony, Doan, An Thanh Le, Tam Minh Le and Dung Quoc
    
    Nguyen with conspiring to commit robbery, in violation of the Hobbs Act, 18 U.S.C. § 1951(a) and
    
    (b)(1); Count Four charged To, Phung, An Thanh Le, Tam Minh Le and Dung Quoc Nguyen with
    
    attempted robbery on April 23, 1994, in violation of the Hobbs Act, 18 U.S.C. §§ 1951(a) and 2;
    
    
                                                    7
    Count Five charged To and Tony with robbery on May 23, 1994, in violation of the Hobbs Act, 18
    
    U.S.C. §§ 1951(a) and 2; Count Six charged To, Hai Van Nguyen, Lap Van Le, Phung, Pham,
    
    Luong, Tony and Doan with robbery on May 29, 1994, in violation of the Hobbs Act, 18 U.S.C. §§
    
    1951(a), (b)(1) and 2; Count Seven charged To, Phung, An Thanh Le, Tam Minh Le and Dung
    
    Quoc Nguyen with using and carrying firearms on April 23, 1994, during and in relation to a federal
    
    crime of violence, in violation of 18 U.S.C. §§ 924(c)(1) and 2; Count Eight charged To and Tony
    
    with using and carrying firearms on May 23, 1994, during and in relation to a federal crime of
    
    violence, in violation of 18 U.S.C. §§ 924(c)(1) and 2; and Count Nine charged To, Lap Van Le,
    
    Phung and Doan with using and carrying firearms on May 29, 1994, during and in relation to a
    
    federal crime of violence, in violation of 18 U.S.C. §§ 924(c)(1) and 2.
    
           Six defendants, Tony, An Thanh Le, Lap Van Le, Dung Quoc Nguyen, Doan and Phung,
    
    pleaded guilty to certain of the counts.
    
           On February 6, 1996, trial commenced against the five remaining defendants, To, Hai Van
    
    Nguyen, Pham, Luong and Tam Minh Le. Following the conclusion of the government's case, the
    
    district court dismissed racketeering acts three and four, the May 7 and 13, 1994 home-invasion
    
    robberies, on the ground that they were part of a different enterprise.
    
           On March 1, 1996, the jury found To guilty of all nine counts and racketeering acts 1(a),
    
    1(b), 2(a), 2(b), 5, 6 and 7(b); Hai Van Nguyen guilty of Counts One, Two, Three and Six, the four
    
    counts against him, including racketeering acts 1(a), 1(b) and 6; Pham guilty of Counts Two, Three
    
    and Six, the three counts against him; Luong guilty of Counts Two, Three and Six, the three counts
    
    against him; and Tam Minh Le guilty of Counts One, Two, Three, Four and Seven, the five counts
    
    against him, including racketeering acts 1(a), 2(a) and 2(b).
    
    
                                                     8
           On July 16, 1996, the district court sentenced the appellants. To received a sentence of life
    
    imprisonment plus forty-five years.      Tam Minh Le received a sentence of 420 months of
    
    imprisonment. Hai Van Nguyen received a sentence of 165 months of imprisonment. Pham and
    
    Luong each received sentences of 57 months of imprisonment.
    
                                                III. ISSUES
    
           We discuss the following issues: (1) whether the district court erred in denying Pham's
    
    motion for a judgment of acquittal and alternative motion for a new trial based on the alleged
    
    insufficiency of the evidence; and (2) whether the evidence against Tam Minh Le was insufficient
    
    to justify his convictions on the RICO conspiracy and substantive RICO counts.5
    
                                             IV. DISCUSSION
    
    A. Standards of Review
    
            Whether the record contains sufficient evidence to support the jury's verdict is a question
    
    of law subject to de novo review. United States v. Harris, 
    20 F.3d 445
    , 452 (11th Cir.), cert. denied,
    
    
    513 U.S. 967
    , 1031, 1032, 
    115 S. Ct. 434
    , 611, 612, 
    130 L. Ed. 2d 346
    , 521 (1994). When conducting
    
    
    
       5
        We affirm the convictions and sentences of To, Hai Van Nguyen and Luong summarily, as
    their claims of error are without merit. See 11th Cir. R. 36-1. All three of these appellants first
    contend that the evidence was insufficient to sustain their convictions. To was the ringleader of
    the entire alleged enterprise and personally participated in the robberies of Gayanont and the
    Lins, as well as the attempted murder of An Thanh Le. To also helped orchestrate the robbery
    and murder of Khanh Quoc Le. Firearms were used in connection with all of the offenses. Hai
    Van Nguyen was the alleged enterprise's "chief of recruitment" and "comptroller." Luong
    proposed the name V-Boys for the alleged enterprise, received the "all clear" telephone call from
    T.X. after the Lin family robbery, shared in the proceeds of that crime and plotted to kill An
    Thanh Le. The evidence to convict these appellants was not just sufficient, it was overwhelming.
    The other issues these appellants raise relate to alleged flaws in the indictment, trial errors and
    sentencing matters. We have carefully considered these issues and find no reversible error. To
    the extent that Tam Minh Le has adopted his fellow appellants' arguments, or alleged other errors
    not discussed in the main body of our opinion, we also find those arguments to be without merit.
    
                                                      9
    the review of the record, we view "the evidence in the light most favorable to the government and
    
    resolve all reasonable inferences and credibility evaluations in favor of the jury's verdict." United
    
    States v. High, 
    117 F.3d 464
    , 467 (11th Cir.1997). We must uphold the jury's verdict whenever a
    
    reasonable factfinder could conclude that the evidence establishes guilt beyond a reasonable doubt.
    
    High, 117 F.3d at 467-68.
    
            A district court's order denying a motion for a new trial based on the weight of the evidence
    
    is subject to review for abuse of discretion. United States v. Cox, 
    995 F.2d 1041
    , 1044 (11th
    
    Cir.1993).
    
    B. The Counts Against Tam Minh Le and Pham
    
           As noted above, the jury convicted both Tam Minh Le and Pham of RICO and Hobbs Act
    
    related offenses. Both men were convicted on Count Two, the RICO conspiracy, and Count Three,
    
    the Hobbs Act conspiracy. Tam Minh Le was also convicted on Count One, the substantive RICO
    
    offense; Count Four, the attempted Hobbs Act robbery of Khanh Quoc Le; and Count Seven, for
    
    carrying a firearm during the attempted Hobbs Act robbery and murder of Khanh Quoc Le.6 Pham
    
    was also convicted of a non-overlapping offense, Count Six, the Hobbs Act robbery of the Lins.
    
    Because the issues of evidentiary sufficiency we consider are linked to the requisite elements of the
    
    RICO and Hobbs Act related offenses, we discuss each of the counts of conviction, assessing the
    
    relevant evidence with respect to Tam Minh Le and/or Pham as we proceed.
    
    
    
       6
        In his initial brief, Tam Minh Le challenges the sufficiency of the evidence only with respect
    to his convictions on the RICO conspiracy and substantive RICO counts. In his reply brief, Tam
    Minh Le generally "adopts the arguments raised by his co-appellants on appeal." We do not read
    those coappellant briefs to challenge any evidence or legal principle underlying Tam Minh Le's
    convictions on Count Three, Count Four or Count Seven. We thus affirm those counts of
    conviction without comment.
    
                                                     10
    1. The RICO Conspiracy
    
            To establish a RICO conspiracy, the government needed to prove that Tam Minh Le and
    
    Pham " "objectively manifested, through words or actions, an agreement to participate in ... the
    
    affairs of [an] enterprise through the commission of two or more predicate crimes.' " United States
    
    v. Starrett, 
    55 F.3d 1525
    , 1543 (11th Cir.1995) (quoting United States v. Russo, 
    796 F.2d 1443
    , 1455
    
    (11th Cir.1986)), cert. denied, 
    517 U.S. 1111
    , 1127, 
    116 S. Ct. 1335
    , 1369, 
    134 L. Ed. 2d 485
    , 534
    
    (1996). As we assess that proof, "[t]he focus is on the agreement to participate in the enterprise
    
    through the pattern of racketeering activity, not on the agreement to commit the individual predicate
    
    acts." Starrett, 55 F.3d at 1543. The enterprise need not be a legal entity such as a corporation or
    
    partnership; it may also be "a group of persons associated together for a common purpose of
    
    engaging in a course of conduct." United States v. Turkette, 
    452 U.S. 576
    , 583, 
    101 S. Ct. 2524
    ,
    
    2528, 
    69 L. Ed. 2d 246
     (1981).
    
            In this case, it is clear that the government could prove Tam Minh Le and Pham's agreement
    
    to participate in either of two ways. First, the government could show an agreement on an overall
    
    objective. United States v. Church, 
    955 F.2d 688
    , 694 (11th Cir.), cert. denied, 
    506 U.S. 881
    , 
    113 S. Ct. 233
    , 
    121 L. Ed. 2d 169
     (1992). An agreement on an overall objective may be proved "by
    
    circumstantial evidence showing that each defendant must necessarily have known that others were
    
    also conspiring to participate in the same enterprise through a pattern of racketeering activity."
    
    Starrett, 55 F.3d at 1544 (internal quotation marks omitted). Second, the government could show
    
    that a "defendant agreed personally to commit two predicate acts and therefore to participate in a
    
    "single objective' conspiracy." Church, 955 F.2d at 694. If the government proves an agreement
    
    
    
    
                                                     11
    on an overall objective, however, it does not have to prove that the defendant agreed personally to
    
    commit two predicate acts. Starrett, 55 F.3d at 1544.
    
           Regardless of the method used to prove the agreement, "the government does not have to
           establish that each conspirator explicitly agreed with every other conspirator to commit the
           substantive RICO crime described in the indictment, or knew his fellow conspirators, or was
           aware of all the details of the conspiracy."
    
    Starrett, 55 F.3d at 1544 (quoting United States v. Pepe, 
    747 F.2d 632
    , 659 (11th Cir.1984)).
    
    Moreover, the fact that "each conspirator may have contemplated participating in different and
    
    unrelated crimes is irrelevant." Starrett, 55 F.3d at 1544 (internal quotation marks omitted).
    
           Tam Minh Le and Pham both argue that the government failed to prove their intent to
    
    participate in the affairs of an enterprise through a pattern of racketeering activity. Pham contends
    
    that the government failed to demonstrate, even circumstantially, that he agreed to participate in the
    
    objectives of an enterprise, because the evidence established no connection between Pham and the
    
    enterprise's predicate acts either before or after the evening and morning of May 28-29, 1994—the
    
    date of the Lin family robbery. In addition, Pham adopts his coappellants' argument that the
    
    evidence involving him with respect to the Lin family robbery establishes only his mere association
    
    with persons involved in a conspiracy. Pham also contends that the government failed to prove that
    
    he conspired to violate RICO under a "single objective" theory, as the record does not show that he
    
    personally agreed to commit two predicate acts.
    
           Tam Minh Le echoes Pham's arguments, but with a slight variance. Tam Minh Le concedes
    
    his involvement in the murder of Khanh Quoc Le, but denies that his involvement in that offense
    
    may serve as a basis for RICO conspiracy liability. According to Tam Minh Le, his involvement
    
    with the alleged enterprise began and ended at Saigon Palace on the night Khanh Quoc Le died, save
    
    for the day in late May 1994 when he accompanied An Thanh Le to the China Town Restaurant.
    
                                                     12
    The fact that Tam Minh Le knew or associated with some of the enterprise members is, Tam Minh
    
    Le contends, of no consequence as RICO does not punish mere association with conspirators or
    
    simple knowledge of illegal activity.
    
             The government counters that it introduced ample evidence that Tam Minh Le and Pham
    
    agreed to an overall conspiracy objective to support the enterprise through a series of robberies
    
    within the Asian-American community. With respect to Tam Minh Le specifically, the government
    
    also suggests that it proved that Tam Minh Le agreed personally to commit two predicate acts and
    
    therefore to participate in a "single objective" conspiracy. The government further contends that
    
    Tam Minh Le's participation in the conspiracy was not limited to his involvement in the attempted
    
    Hobbs Act robbery and murder of Khanh Quoc Le, as Tam Minh Le continued to associate with
    
    enterprise members after the Saigon Palace episode. In addition, the government argues that Pham's
    
    commitment to the overall conspiracy objective was proven based on: (1) his presence and failure
    
    to object during the planning of the Lin family robbery; (2) his trip back to the Expressway Inn
    
    following the telephone call from T.X. to Luong; (3) his receipt of proceeds from the Lin family
    
    robbery; and (4) the three burn marks on his arms, which were similar to marks found on T.X. and
    
    Doan.7
    
             Although it is a close call, we find the government's argument and proffered evidence too
    
    attenuated to sustain the RICO conspiracy conviction against Pham. We base our conclusion, in
    
    large part, on our holding in United States v. Gonzalez, 
    921 F.2d 1530
    , 1543 n. 21 (11th Cir.), cert.
    
    denied, 
    502 U.S. 827
    , 860, 
    112 S. Ct. 96
    , 178, 
    116 L. Ed. 2d 68
    , 140 (1991). In Gonzalez, we
    
    
       7
       As noted above, the government also argued at trial and in its appellate brief that Pham's
    commitment was proven based on his alleged retrieval of a gun at To's request. The government
    now abandons that argument.
    
                                                     13
    considered the arguments of several individuals convicted of RICO conspiracy for their involvement
    
    in a drug importation ring. 921 F.2d at 1532. All of the individuals made arguments challenging
    
    the legal sufficiency of the evidence underlying their convictions. 921 F.2d at 1539. Two of the
    
    arguments advanced in Gonzalez are relevant to our analysis. First, some of the individuals argued
    
    that the evidence failed to show their participation in the enterprise's affairs through two predicate
    
    acts constituting a pattern of racketeering activity. 921 F.2d at 1539. One of the individuals
    
    specifically argued that he joined any conspiracy, if at all, only after the majority of the predicate
    
    acts charged to the enterprise occurred. 921 F.2d at 1543 n. 21. As a result, he argued, he could not
    
    have agreed to those occurrences that established the actual pattern of racketeering activity. 921
    
    F.2d at 1543 n. 21. Second, some of the individuals argued that because the government's evidence
    
    showed only a limited agreement on their part, the government needed to present the proof required
    
    for a "single objective" conspiracy, i.e., "proof of agreement to personally commit two predicate
    
    acts." 921 F.2d at 1543. Pham, in essence, repeats these same arguments, suggesting that any proof
    
    of his relationship with the enterprise members is insufficient to establish RICO liability because
    
    he either joined the agreement too late, or because the evidence did not tie him to two predicate acts.
    
    We agree.
    
            Even if we assume that Pham was a willing accomplice to the robbery of the Lins, that fact
    
    alone would not prove that he agreed to an overall objective of supporting the enterprise through a
    
    series of robberies within the Asian-American community. The government offered no proof that
    
    Pham was present when Hai Van Nguyen recruited some of Pham's fellow Atlantans to Tampa for
    
    the general purpose of committing robberies. Nor did the government offer proof that Pham had a
    
    criminal relationship with the other Atlantans that predated his decision to accompany them to the
    
    
                                                      14
    Tampa area. The government also did not offer any significant circumstantial proof of Pham's
    
    agreement to an overall objective. Rather, the government's evidence effectively showed only two
    
    things—that Pham had three cigarette burns on his arm like several other enterprise members, and
    
    that Pham associated with members of the enterprise. The cigarette burn evidence is, in our view,
    
    insubstantial, because the uncontroverted evidence at trial established that Pham put at least one of
    
    the cigarette burns on himself in front of his estranged girlfriend for reasons wholly unrelated to the
    
    enterprise. Even if a juror could reasonably disbelieve that uncontroverted evidence, the fact
    
    remains that only three of the eleven defendants indicted in this case had cigarette burn marks on
    
    their arms. As a result, no reasonable juror could have concluded that the cigarette burn marks
    
    signified some conspiratorial agreement between Pham and the other enterprise members, many of
    
    whom had no similar marks on their arms. The evidence of Pham's association with enterprise
    
    members in this case is also inconsequential. "A defendant must be convicted on the basis of his
    
    own proven conduct, association is not enough. RICO does not punish "mere association with
    
    conspirators or knowledge of illegal activity; its proscriptions are directed against conduct, not
    
    status.' " Gonzalez, 921 F.2d at 1542 (quoting United States v. Elliott, 
    571 F.2d 880
    , 903 (5th
    
    Cir.1978)). As Pham's counsel argued at trial, the evidence in this case proved, at most, that the
    
    enterprise members sought to recruit Pham with free housing and a gift of ready cash from the Lin
    
    family robbery; it did not show that Pham ever agreed to join the enterprise. The government also
    
    failed to show Pham's involvement in a "single objective" conspiracy, as no evidence showed that
    
    Pham personally agreed to commit two predicate acts.
    
            The evidence of Tam Minh Le's participation in a RICO conspiracy is, in our view, much
    
    stronger and sufficient to sustain his conviction on Count Two. We reach this conclusion based,
    
    
                                                      15
    again, on our holding in Gonzalez. In that case we considered an argument from one individual,
    
    Michael Timothy Sweeton, that was premised on the fact that he was linked to only one incident of
    
    drug importation. 921 F.2d at 1542-45. We first determined that the test for establishing Sweeton's
    
    RICO conspiracy liability under such facts was the "single objective" test. 921 F.2d at 1542-43.
    
    Under this test, we indicated that the government needed to show Sweeton's agreement to commit
    
    personally two predicate acts. 921 F.2d at 1543. After finding that Sweeton had committed two
    
    predicate acts in connection with the single incident of drug importation, we then considered the
    
    impact of the fact that the two acts occurred in close temporal proximity. 921 F.2d at 1545. We
    
    concluded that predicate acts occurring in close temporal proximity may satisfy RICO's pattern
    
    requirement if "the predicates themselves amount to, or ... otherwise constitute a threat of continuing
    
    racketeering activity." 921 F.2d at 1545 (internal quotation marks omitted) (emphasis in original).
    
    We then quoted the following explanation of our conclusion from the Supreme Court's decision in
    
    H.J. Inc. v. Northwestern Bell Telephone Co., 
    492 U.S. 229
    , 242-43, 
    109 S. Ct. 2893
    , 2902, 
    106 L. Ed. 2d 195
     (1989):
    
           Though the number of related predicates involved may be small and they may occur close
           together in time, the racketeering acts themselves [may] include a specific threat of repetition
           extending indefinitely into the future, and thus supply the requisite threat of continuity. In
           other cases, the threat of continuity may be established by showing that the predicate acts
           or offenses are part of an ongoing entity's regular way of doing business. Thus, the threat
           of continuity is sufficiently established where the predicates can be attributed to a defendant
           operating as part of a long-term association that exists for criminal purposes.
    
    Gonzalez, 921 F.2d at 1545 (alteration in original). Finally, turning to Sweeton's specific argument,
    
    we found that RICO's pattern requirement was met in his case because his actions, albeit close in
    
    time, took place as part of the enterprise's drug importation operation, an operation that existed
    
    before Sweeton's involvement and continued to exist after Sweeton's involvement ended. 
    921 F.2d 16
    at 1545. Because the enterprise's operations were ongoing, we reasoned, the "threat of continuing
    
    racketeering activity was present, and was, in fact a threat fulfilled." 921 F.2d at 1545.
    
           Applying the rationale of Gonzalez to Tam Minh Le's case, we conclude that Tam Minh Le's
    
    conviction must be affirmed. The evidence is sufficient to show that he personally committed three
    
    predicate acts: conspiracy to commit a Hobbs Act robbery; attempted Hobbs Act robbery; and
    
    murder. Although the acts all occurred within a span of several hours, To, Phung and An Thanh
    
    Le—all enterprise members—were also deeply involved in the incident, and the targeted victim, an
    
    Asian-American restauranteur, fit the profile that the enterprise specialized in robbing. Because the
    
    enterprise continued to exist and continued targeting Asian-Americans in general—and
    
    restauranteurs in particular—a reasonable juror could conclude that the threat of continuing
    
    racketeering activity was present in this case. Gonzalez, 921 F.2d at 1545.
    
    2. The Substantive RICO Offense
    
            Having concluded that Tam Minh Le's conviction for RICO conspiracy must be affirmed,
    
    we also conclude that his convictions must be upheld on the other counts against him. To establish
    
    a substantive RICO violation under 18 U.S.C. § 1962(c), the government needed to prove: (1) that
    
    an enterprise existed; (2) that the enterprise affected interstate commerce; (3) that the defendants
    
    were employed by or associated with the enterprise; (4) that the defendants participated, either
    
    directly or indirectly, in the conduct of the enterprise; and (5) that the defendants participated
    
    through a pattern of racketeering activity. Starrett, 55 F.3d at 1541. The fifth element contains two
    
    components: (1) the defendants' predicate acts must be related to the enterprise charged in the
    
    indictment; and (2) the predicate acts must actually form a pattern, i.e., relate to each other and have
    
    continuity. Starrett, 55 F.3d at 1542-43.
    
    
                                                      17
            Tam Minh Le argues that the evidence in this case failed to establish elements four and five.
    
    With respect to element five, Tam Minh Le's argument mirrors his argument regarding his RICO
    
    conspiracy liability. We reject the argument for the reasons stated above. With respect to element
    
    four, Tam Minh Le argues that he cannot be held liable under the so-called Reves operation or
    
    management test which this court adopted in Starrett, because he did not implement any enterprise
    
    decisions relating to any enterprise activities subsequent to the attempted robbery and murder of
    
    Khanh Quoc Le. See Starrett, 55 F.3d at 1542. This argument is unavailing because Tam Minh Le's
    
    knowing commission of multiple predicate acts in connection with the attempted robbery and
    
    murder of Khanh Quoc Le is all that is required to satisfy the fourth element of a substantive RICO
    
    violation in this case. We therefore affirm Tam Minh Le's conviction for the substantive RICO
    
    offense, just as we affirm his conviction for RICO conspiracy.
    
    3. The Hobbs Act Conspiracy and Hobbs Act Robbery of the Lins
    
            To prove a Hobbs Act conspiracy under 18 U.S.C. § 1951(a) and (b)(1) in this case, the
    
    government needed to prove that: (1) two or more persons agreed to commit a robbery encompassed
    
    within the Hobbs Act; (2) the defendant knew of the conspiratorial goal; and (3) the defendant
    
    voluntarily participated in helping to accomplish the goal. United States v. Thomas, 
    8 F.3d 1552
    ,
    
    1556 (11th Cir.1993). "Presence with conspirators alone, however, or close association with them,
    
    is not by itself sufficient proof of participation in a conspiracy." Thomas, 8 F.3d at 1556 (citation
    
    omitted).
    
            Pham argues that the evidence presented at trial in this case establishes nothing more than
    
    his mere association with the individuals conspiring to commit Hobbs Act robberies. The
    
    government contends that the jury was entitled to infer Pham's knowing and voluntary participation
    
    
                                                     18
    in the Hobbs Act conspiracy from the following evidence: (1) his presence during discussions of
    
    the planned robbery; (2) his decision not to object to the plan; (3) his waiting with Luong at the
    
    China Town during the Lin family robbery; (4) his decision to return to the Expressway Inn with
    
    Luong following the robbery; and (5) his receipt of some of the robbery proceeds following the
    
    robbery. Although we find the issue close, we ultimately agree with Pham that the government's
    
    evidence was insufficient, even when viewed in the light most favorable to the government. The
    
    government presented no evidence that Pham was actively involved in the planning of the Lin family
    
    robbery, so Pham's presence during discussions of the robbery and his failure to object establish only
    
    that he knew of the planned robbery. As we held in Thomas, however, mere knowledge does not
    
    support the conclusion that a defendant "voluntarily participated in the agreement or the
    
    accomplishments of its goals." 8 F.3d at 1558. Likewise, Pham's presence at the China Town with
    
    Luong, and his return to the Expressway Inn, do not prove participation. The record is clear that no
    
    one but To knew when the robbery would take place. Pham's decision to go to the China Town with
    
    Luong, Tony and T.X. occurred before To paged T.X. and told him the robbery would take place
    
    that evening. Pham's decision to remain at the China Town—unaware that the robbery was even
    
    taking place—cannot thus be seen as evidence of participation in a conspiracy. Neither can Pham's
    
    decision to return to the Expressway Inn, where he was staying along with Luong, give rise to an
    
    inference of participation—especially given the absence of record evidence that Luong told Pham
    
    about the completed robbery before the men returned to the Expressway Inn. While we find Pham's
    
    receipt of proceeds from the Lin robbery along with the enterprise members far more problematic,
    
    that fact alone—occurring as it did after the robbery was effectively complete and viewed in light
    
    of the recruitment style hospitality To and Hai Van Nguyen were bestowing on the recent arrivals
    
    
                                                     19
    from Atlanta—is also insufficient to show Pham's voluntary participation in the Hobbs Act
    
    conspiracy at issue. Cf. United States v. Richardson, 
    596 F.2d 157
    , 163 (6th Cir.1979) (no Hobbs
    
    Act conspiracy conviction of deputy sheriff who received free whiskey during the conspiracy period
    
    where no one suggested that it had been given in exchange for protection). We thus reverse Pham's
    
    conviction on Count Three, the Hobbs Act conspiracy.
    
            Because the government's only theory of support for the substantive Hobbs Act count
    
    against Pham is based on so-called Pinkerton doctrine liability, i.e., the view that each member of
    
    a conspiracy is liable for all reasonably foreseeable crimes committed during and in furtherance of
    
    the conspiracy, we also reverse Pham's conviction on Count Six, the Hobbs Act robbery of the Lins.
    
    See Pinkerton v. United States, 
    328 U.S. 640
    , 
    66 S. Ct. 1180
    , 
    90 L. Ed. 1489
     (1946).
    
                                           V. CONCLUSION
    
           Because the evidence was insufficient to support the convictions of Pham, we reverse on all
    
    counts against him. We affirm the convictions and sentences of all the other appellants.
    
           AFFIRMED IN PART and REVERSED IN PART.
    
    
    
    
                                                    20
    

Document Info

DocketNumber: 96-3045

Citation Numbers: 144 F.3d 737

Filed Date: 6/23/1998

Precedential Status: Precedential

Modified Date: 1/5/2018

Authorities (14)

United States v. High , 117 F.3d 464 ( 1997 )

Pinkerton v. United States , 328 U.S. 640 ( 1946 )

United States v. Turkette , 452 U.S. 576 ( 1981 )

Hj Inc. v. Northwestern Bell Telephone Co. , 492 U.S. 229 ( 1989 )

united-states-v-james-alford-elliott-jr-robert-ervin-delph-jr , 571 F.2d 880 ( 1978 )

United States v. James Hardy Richardson, United States of ... , 596 F.2d 157 ( 1979 )

United States v. Angelo Pepe and Thomas Miglionico, United ... , 747 F.2d 632 ( 1984 )

United States v. Nick Russo, James Lowery, Joseph Pine, V.L.... , 796 F.2d 1443 ( 1986 )

United States v. Jorge Enrique Gonzalez, A/K/A George, ... , 921 F.2d 1530 ( 1991 )

United States v. Frank Church, Carl Louis Coppola , 955 F.2d 688 ( 1992 )

United States v. Cary v. Cox , 995 F.2d 1041 ( 1993 )

United States v. David Milton Thomas, Lisa Reese, William ... , 8 F.3d 1552 ( 1993 )

united-states-v-greg-harris-angelo-vagas-vernon-copeland-fredel , 20 F.3d 445 ( 1994 )

united-states-v-james-walter-starrett-timothy-kevin-duke-michael-lee , 55 F.3d 1525 ( 1995 )

View All Authorities »

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