United States v. Hong Son Nguyen , 246 F. App'x 557 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
August 30, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 06-7125
v. (E. D. Oklahoma)
HONG SO N NGUYEN, also known as (D.C. No. CR-06-11-5-H)
Sonny Nguyen, also known as Son
Hong Nguyen,
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.
Hong Son N guyen was convicted in the United States District Court for the
Eastern District of Oklahoma on one count of conspiracy to manufacture with
intent to distribute methamphetamine, see 21 U.S.C. § 846; id. § 841(a)(1),
(b)(1)(A). He was sentenced to 200 months’ imprisonment and 60 months’
supervised release. He appeals his conviction, contending that the district court
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
erred (1) in denying his motion to sever his trial from that of his codefendant; (2)
in denying his motion to suppress evidence; and (3) in refusing to instruct the jury
on the lesser-included offense of distribution of a laboratory supply. W e have
jurisdiction under 28 U.S.C. § 1291 and affirm.
I. B ACKGR OU N D
M r. Nguyen and four codefendants were charged in a seven-count
indictment. Count I alleged that they had conspired to manufacture
methamphetamine. One of the alleged overt acts was that M r. Nguyen, who
owned and operated T& B Express Grocery in Oklahoma City, had sold large
quantities of pseudoephedrine tablets to Tatum Sorrels, one of his codefendants.
The other six counts in the indictment charged only Clonnie Layman, the alleged
ring-leader of the conspiracy, with a drug offense on September 11, 2002, and
two drug offenses and three firearms offenses on August 25, 2003. According to
the indictment, M r. Layman had organized the purchase not only of the
pseudoephedrine, but also of the other ingredients used in making
methamphetamine. During 2002 and 2003, it alleged, the conspiracy conducted
frequent manufacturing sessions producing about 250 grams of methamphetamine
at each session.
On February 2, 2006, law enforcement agents arrested M r. Nguyen at his
store. During the encounter M r. N guyen conversed with the agents in English.
After he had been read his rights, he consented to a warrantless search of his
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home and business. The record and briefs do not indicate what evidence the
agents seized during the search. Shortly before trial M r. Nguyen moved to
suppress the seized evidence, contending that his consent to the search was
invalid because (1) his limited knowledge of English had made his consent
unknowing, and (2) the agents had not informed him that he could refuse consent.
The district court denied his motion, finding that his consent had been knowing
and voluntary.
M r. Nguyen also filed a motion to sever his trial from that of his
codefendant, M r. Layman. (The other three defendants had entered into plea
agreements with the government before trial.) He argued that he would be
prejudiced by a joint trial because six of the seven counts in the indictment
alleged criminal acts in which he was not involved, and the evidence against him
was minimal compared to that against M r. Layman. The district court denied the
motion.
On July 17, 2006, M r. Nguyen and M r. Layman were tried together before a
jury. Invoices showed that M r. Nguyen had purchased over 400,000 tablets of
pseudoephedrine (although the record on appeal does not provide a time frame)
and had sold pseudoephedrine to M s. Sorrels. M s. Sorrels testified that when
instructed by M r. Layman, she would go to T& B Express Grocery and give
M r. Nguyen a plastic bag containing cash that M r. Layman had prepared. After
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M r. Nguyen and his family had counted the money, M r. Nguyen would give
M s. Sorrels large quantities of pseudoephedrine tablets.
M r. Layman, remarkably, testified on M r. Nguyen’s behalf. He said that
when he had originally approached M r. Nguyen about buying large quantities of
pseudoephedrine, M r. Nguyen had told him that he would not sell M r. Layman the
pills because he suspected that he would do something illegal with them.
M r. Layman convinced M r. Nguyen that he was simply going to sell the pills at a
flea market, and M r. Nguyen agreed to sell him the pills. Although M r. Layman
stated that M r. Nguyen did not speak English well, his description of their
dealings showed that M r. Nguyen understood enough that M r. Layman could call
him to arrange the purchases. The evidence also showed that on September 25,
2003, law enforcement agents had given M r. Nguyen a notice informing him that
pseudoephedrine could be used for manufacturing illegal drugs.
During trial M r. Nguyen requested a supplemental jury instruction on the
“lesser included offense” of “D istribution of Laboratory Supply with Reckless
Disregard Used to M anufacture M ethamphetamine.” R. at 46. The court did not
give the requested instruction. The jury found M r. Nguyen guilty on the
conspiracy charge.
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II. D ISC USSIO N
A. M otion to Sever
M r. Nguyen contends that his trial should have been severed from that of
M r. Layman. W e review the district court’s refusal to sever for an abuse of
discretion. See United States v. Small, 423 F.3d 1164, 1181 (10th Cir. 2005). It
is presumed that alleged coconspirators should be tried together. See United
States v. Ray, 370 F.3d 1039, 1045 (10th Cir. 2004) vacated on other grounds by
Ray v. United States, 543 U.S. 1109 (2005). The defendant must show “that there
is a serious risk that a joint trial would compromise a specific trial right, or
prevent the jury from making a reliable judgment about guilt or innocence.”
Small, 423 F.3d at 1182 (internal quotation marks omitted). “To establish an
abuse of discretion, a defendant must make a strong showing of actual prejudice.”
Id. at 1181.
M r. Nguyen argues that a joint trial was improper because his role in the
conspiracy was small compared to that of M r. Layman, he had no knowledge of
the methamphetamine labs where M r. Layman and others manufactured the drug,
and his sale of pills was unrelated to M r. Layman’s manufacturing activities. But
neither in his motion to sever nor in his briefs to this court does he point to any
specific trial right compromised by joinder or explain why the jury could not
judge his guilt or innocence based on the evidence concerning him. W e see no
error in the denial of his motion or any prejudice from the joinder.
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B. M otion to Suppress
M r. Nguyen argues that the district court erred in denying his motion to
suppress because his consent to the warrantless searches of his home and business
was not knowing and voluntary. He contends that his limited knowledge of
English rendered his consent unknowing, and that because he had been arrested at
the time he gave consent, and was not told that he could refuse, his consent was
not voluntary.
“W hen review ing a district court’s denial of a motion to suppress, we will
consider the totality of the circumstances and view the evidence in a light most
favorable to the government. W e will accept the district court’s factual findings
unless those findings are clearly erroneous.” United States v. Kimoana, 383 F.3d
1215, 1220 (10th C ir. 2004) (citation omitted). But we review issues of law,
including the validity of consent, de novo. See United States v. Andrus, 483 F.3d
711, 716 (10th Cir. 2007).
M r. Nguyen has provided in the record only limited excerpts from the
suppression hearing. Nevertheless, we are able to conclude that the district court
did not err in denying his motion to suppress. A law enforcement agent present at
M r. Nguyen’s arrest testified that M r. Nguyen appeared to understand what the
agents were saying and that he responded in English. After a discussion in
English about the officers’ request to search his home and business, M r. Nguyen
signed a consent form agreeing to both searches. Nothing in the record suggests
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that M r. Nguyen was confused or that he misunderstood the officers. Although he
had been arrested at the time he signed the form, the district court found that the
situation was not so coercive as to render his consent involuntary. See United
States v. Sim s, 428 F.3d 945, 953 (10th Cir. 2005) (arrestee’s consent was valid).
And because failure to advise an individual of his right to refuse a search request
is not a “necessary prerequisite to demonstrating a ‘voluntary’ consent,”
Schneckloth v. Bustamonte, 412 U.S. 218, 232–33 (1973), the officers’ alleged
failure to tell M r. Nguyen that he could refuse is insufficient in itself to render his
consent involuntary. See Sim s, 428 F.3d at 953. W e affirm the district court’s
denial of his motion to suppress.
C. Jury Instruction
Finally, M r. Nguyen contends that the district court erred because it refused
to instruct the jury on the offense of distribution of a laboratory supply, which he
claimed to be a lesser-included offense. He invites us to overrule United States v.
El-Hajjaoui, 227 F.3d 1274, 1278 (10th Cir. 2000), in which we held that
distribution of a laboratory supply, see 21 U.S.C. § 842(a)(11), is not a lesser-
included offense of conspiracy to distribute a controlled substance, see 21 U.S.C.
§ 841(a)(1). But just as we held in El-Hajjaoui that distribution of a laboratory
supply requires proof of an element not required to prove conspiracy to distribute
a controlled substance, it likewise requires proof of an element not required to
prove the offense charged here— namely, “that the person to w hom the laboratory
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supply was distributed actually used or attempted to use that supply to
manufacture a controlled substance or a listed chemical.” 227 F.3d at 1278.
Therefore, distribution of a laboratory supply was not a lesser-included offense.
The district court did not err in refusing the requested instruction.
III. C ON CLU SIO N
W e AFFIRM the judgment of the district court.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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