United States v. Le , 542 F. App'x 108 ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 12-2163
_____________
UNITED STATES OF AMERICA
v.
TAHN LE, a/k/a LEE, a/k/a TAHN LEE
Tahn Le,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(District Court No.: 2-11-cr-00104-4)
District Judge: Honorable Legrome D. Davis
Submitted under Third Circuit LAR 34.1(a)
on September 9, 2013
(Opinion filed: October 23, 2013)
Before: RENDELL, JORDAN, and GREENAWAY, JR., Circuit Judges
OPINION
RENDELL, Circuit Judge:
Appellant Tahn Le was convicted by a jury of multiple counts arising out of a
series of armed robberies in four private homes located in Pennsylvania, New Jersey and
Virginia. Le’s appointed appellate counsel has moved for permission to withdraw under
Anders v. California, 386 U.S. 738 (1967), on the ground that Le has no non-frivolous
arguments on appeal. We will grant the motion to withdraw and affirm Le’s sentence.
I. Background1
Because we write primarily for the parties, we set forth only those facts and
procedural history relevant to our conclusion.
1. The Bartonsville Robbery
On the evening of January 26, 2010, Le, along with co-conspirators Thach Van
Nguyen, Teo Van Bui, Buu Huu Truong, and Den Van Nguyen, committed an armed
home invasion at the home of Steve Tran. The planning for the robbery took place at a
pool hall in Philadelphia. Thach Van Nguyen had previously worked for Tran, the owner
of multiple profitable nail salons, and suggested that Tran may keep money from his
businesses in his home. On the night of the robbery, the men drove from Philadelphia to
Tran’s home in Bartonsville, Pennsylvania. When Tran arrived home, Truong, Den Van
Nguyen, Bui and Le entered the home and pushed Tran to the floor. Wearing masks and
gloves and brandishing firearms, they informed Tran that they would kill him if he
refused to tell them where his valuables were hidden. The men stole between $7,000 and
$8,000 in cash, some of which represented proceeds from the nail salons, along with
other property.
1
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have appellate
jurisdiction pursuant to 28 U.S.C.§ 1291.
2
2. The Freehold Robbery
On January 29, 2010, Buu Huu Truong, Thach Van Nguyen, and Thanh Le met in
Philadelphia and drove to Freehold, New Jersey to rob the home of Tessa Tran and Thanh
Nguyen. Again, the home was targeted because Thach Van Nguyen had previously
worked at a nail salon owned by the victims and believed that they kept business
proceeds in their home. After obtaining entry into the home, Truong threatened Tessa
Tran with a firearm and tied her up. Truong and Le then robbed Tran of approximately
$2,000 in cash representing proceeds from her business, along with other valuables.
3. The Monroe Township Robbery
Shortly after the Freehold robbery, Thach Van Nguyen, Buu Huu Truong, Le, and
Le’s girlfriend Denise Novelli met at the Philadelphia pool hall and discussed plans to
rob the owner of another nail salon where Thach Van Nguyen had worked in Monroe
Township, New Jersey. Again, Van Nguyen believed that the owner, Kelly Hang, kept
cash from her business in her home. On February 24, 2010, the four drove to the home.
After forcing their way in, Truong assaulted Hang’s babysitter and Truong and Le tied
her up. The men then stole approximately $60,000 in proceeds from the nail salon, along
with over $30,000 in jewelry and other property.
4. The Falls Church Robbery
Sometime in 2009 or 2010, Le met and became friendly with Hung T. Ngo. Ngo
worked at a seafood restaurant, Jesse Taylor Seafood, in Washington, DC, and disliked a
female co-worker. Believing that the woman had an ownership interest in the restaurant
and kept business proceeds in her home, Le, Novelli and Ngo planned to rob her. In
3
planning the robbery, Le followed the woman from the restaurant to her Falls Church,
Virginia home on several occasions. On April 30, 2010, Novelli persuaded the intended
victim’s son, Tai Xuan Le, to open the door to the home, at which point Than Le forced
his way into the home. Tahn Le beat Tai Xuan Le in the head with a gun and left him
bleeding on the floor. Believing Tai Xuan Le’s sister to be home but unable to find her,
Tahn Le and Novelli left the home empty-handed. Tai Xuan Le required hospitalization
to treat his extensive head wounds.
On February 23, 2011, a grand jury in the Eastern District of Pennsylvania
returned an indictment charging Le, Thach Van Nguyen, Buu Huu Truong, and Den Van
Nguyen with conspiracy to commit Hobbs Act robbery, 18 U.S.C. § 1951(a), Hobbs Act
robbery, 18 U.S.C. § 1951(a), possession of a firearm during and in relation to a crime of
violence, 18 U.S.C. § 924(c), and possession of a firearm by a convicted felon, 18 U.S.C.
§ 922(g)(1). On November 16, 2011, Le and his co-defendants were charged with the
same offenses in a superseding indictment.2 Between August 27, 2012, and October 3,
2012, each of Le’s co-defendants pled guilty.
On January 4, 2012, Le, through counsel, filed a motion to dismiss the indictment
on speedy trial grounds, which was denied by the District Court on January 6, 2012. On
January 6, 2012, the Government filed a motion to admit tape recordings of a
conversation that took place between Le and co-conspirator Denise Novelli while Le was
2
The only change between the initial and superseding indictments was the addition of
two defendants, Denise Novelli and Sidney Biggs, as co-conspirators in the Hobbs Act
conspiracy claim.
4
incarcerated awaiting trial. Le did not file an opposition to the Government’s motion,
and the District Court granted the motion on January 16, 2012.
Le’s trial began on January 17, 2012. Co-defendants Buu Huu Truong, Thach Van
Nguyen, Den Van Nguyen, Teo Van Bui, Hung T. Ngo, and Denise Novelli all testified
regarding Le’s participation in the crimes. On January 20, 2012, after a four-day trial, a
jury found Le guilty on all four counts.3 On April 23, 2012, Le, through his trial counsel,
filed a timely notice of appeal. On May 14, 2012, Le submitted a letter to the District
Court, which the Court construed as a motion for appointment of new counsel. In
response, Le’s trial counsel filed a motion to withdraw as court appointed counsel, which
the District Court granted on May 31, 2012. On August 21, 2012, the District Court
issued an Order appointing Michael J. Kelly, Esq. as CJA counsel to represent Le on
appeal.
On February 22, 2013, Kelly filed a brief pursuant to Anders v. California, supra,
and a Motion to Withdraw Representation. In the Anders brief, counsel identified three
issues which potentially could have given rise to grounds for appellate relief: (1) whether
the evidence was sufficient to establish that the conspiracy to commit Hobbs Act robbery
3
On April 23, 2012, the District Court sentenced Le as follows: (1) on the Hobbs Act
conspiracy and robbery charges (counts one and two), Le received 240 months, to be
served concurrently, three years supervised release, and restitution in the amount of
$112,689.55; (2) on the charge of possession of a firearm during and in relation to a
crime of violence (count three), Le received 84 months, to be served consecutively to
counts one, two and seven, and five years supervised release; and (3) on the charge of
possession of a firearm by a convicted felon (count seven), Le received 316 months, to be
served concurrently with counts one and two, and five years supervised release. Le’s
total sentence amounted to 400 months in prison and ten years supervised release. Le
was not charged in counts four, five or six of the indictment, which involved other
defendants.
5
and Hobbs Act robbery affected interstate commerce; (2) whether the evidence was
sufficient to demonstrate that Le had possession of a firearm during the Bartonsville
robbery; and (3) whether the District Court committed procedural error by granting the
Government’s request for application of a sentencing enhancement for obstruction of
justice pursuant to U.S.S.G. § 3C1.1.
Le filed a pro se brief on April 8, 2013, in which he raised three additional issues:
(1) whether the District Court erred in admitting a tape recorded conversation between Le
and co-conspirator Denise Novelli; (2) whether the evidence adduced at trial was
sufficient to support his convictions; and (3) whether the ten-and-a-half month period
between his arraignment and commencement of trial violated his right to a speedy trial
under the Sixth Amendment and/or the Speedy Trial Act, 18 U.S.C. § 3161.
II. Standard
Third Circuit Local Appellate Rule 109.2(a) provides that, “[w]here, upon review
of the district court record, counsel is persuaded that the appeal presents no issue of even
arguable merit, counsel may file a motion to withdraw and supporting brief pursuant to
Anders v. California, 386 U.S. 738 (1967), . . . .” If the Court “agrees that the appeal is
without merit, it will grant counsel’s Anders motion, and dispose of the appeal without
appointing new counsel.” Id. “The Court’s inquiry when counsel submits an Anders
brief is thus twofold: (1) whether counsel adequately fulfilled the rule’s requirements;
and (2) whether an independent review of the record presents any nonfrivolous issues.”
United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). In preparing an Anders brief,
counsel should “(1) [] satisfy the court that counsel has thoroughly examined the record
6
in search of appealable issues, and (2) [] explain why the issues are frivolous.” Id.
“Counsel need not raise and reject every possible claim. However, at a minimum, he or
she must meet the ‘conscientious examination’ standard set forth in Anders.” Id.
III. Discussion
A. Issues Identified in the Anders Motion
1. Whether the Government Established a Sufficient Nexus to Interstate
Commerce to Convict Le of Conspiracy to Commit Hobbs Act Robbery
and Hobbs Act Robbery
a. Hobbs Act Robbery
To prove that a defendant committed Hobbs Act robbery, the government must
prove “beyond a reasonable doubt that (1) the defendant knowingly or willfully
committed . . . robbery or extortion, and (2) the defendant’s conduct affected interstate
commerce.” United States v. Powell, 693 F.3d 398, 401 (3d Cir. 2012). In reviewing
challenges to the sufficiency of the evidence supporting conviction, we apply a
“particularly deferential standard of review.” Id. at 401 n.6. “We view all evidence in
the light most favorable to the government, and sustain conviction as long as any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Id. (internal citations and quotation marks omitted).
Though the Government’s evidence demonstrated that Le was involved in four
different robberies, he was charged with Hobbs Act robbery only for the Bartonsville
robbery. As noted supra, the Government introduced extensive testimony from Le’s co-
defendants regarding Le’s participation in the Bartonsville robbery. Accordingly, the
issue identified in counsel’s Anders motion was not whether the evidence was sufficient
7
to show that Le participated in the robbery, but whether the Government proved beyond a
reasonable doubt that the robbery had an effect on interstate commerce.
The record demonstrates that the Government’s evidence was sufficient on this
point. We recently held, in a case factually similar to this one, that where the evidence
establishes that a defendant has targeted a residence in order to rob the home of proceeds
from a business that engages in interstate commerce, the jurisdictional element of Hobbs
Act robbery is satisfied. In United States v. Powell, supra, defendant and his accomplices
targeted business owners by following them from their businesses to their homes in order
to rob them of business proceeds. Id. at 399. They specifically targeted Asian-owned
businesses on the belief that the owners of such establishments did not use banks. Id.
Evidence showed that the business establishments they targeted sold merchandise from
out-of-state suppliers, and therefore, were engaged in interstate commerce. Id at 399-
400. The defendant moved to dismiss the indictment for insufficient evidence to
demonstrate an effect on interstate commerce, arguing that the robbery of a private
residence, rather than a place of business, did not satisfy the Hobbs Act’s requirement
that the robbery must affect interstate commerce. Id. at 400, 402. We rejected the
defendant’s arguments, joining several of our sister circuits in holding that where a
defendant targets a home for the purpose of stealing proceeds from a business that
engages in interstate commerce, “such targeting satisfies the Hobbs Act’s jurisdictional
nexus.” Id. at 403. See also United States v. Le, 256 F.3d 1229, 1237 n.8 (11th Cir.
2001) (“Our conclusion that Le’s actions implicated interstate commerce to a degree
sufficient to create jurisdiction under the Hobbs Act is based on the fact that Le
8
specifically targeted business assets that were temporarily kept at a private residence
which, if stolen, had the potential to delay or obstruct the purchase of products from
another state . . . .”); United States v. Nguyen, 246 F.3d 52, 54 (1st Cir. 2001).
Multiple witnesses testified that defendants chose to rob the house in Bartonsville
on the belief that Mr. Tran, the homeowner, kept proceeds from his nail salon business in
the home. In addition, the Government introduced evidence that Mr. Tran’s nail salons
were engaged in interstate commerce. Mr. Tran testified that he purchased supplies for
his nail salons from a supplier in California via UPS shipments. Finally, the evidence
indicated that at least some of the money stolen represented proceeds from the victim’s
nail salons. The Hobbs Act’s jurisdictional nexus was clearly satisfied here.
b. Conspiracy to Commit Hobbs Act Robbery
The evidence adduced at trial was similarly sufficient to prove beyond a
reasonable doubt that Le was guilty of conspiracy to commit Hobbs Act robbery. The
Government introduced evidence that Le conspired with six other defendants to commit
four robberies between January 2010 and April 2012. In addition to the Bartonsville
robbery described supra, Le’s co-defendants testified regarding Le’s participation in the
planning and execution of home invasion robberies in Freehold, New Jersey, Monroe
Township, New Jersey, and Falls Church, Virginia. Again, the Government’s evidence
demonstrated that each of the homes was targeted for robbery because the co-
conspirators, including Le, believed that the homes were occupied by business owners
who kept proceeds from their businesses in their homes.
9
Moreover, the evidence demonstrated that the targeted proceeds came from
businesses that engaged in interstate commerce. The co-owner of the salon targeted in
the Freehold robbery testified that she drove once a week to Philadelphia to purchase
supplies for the salon, which served customers from neighboring states. Similarly, the
owner of the salon targeted in the Monroe Township robbery testified that she purchased
supplies for her New Jersey nail salon every two or three weeks from a store in
Philadelphia.
The Falls Church robbery warrants a separate discussion. As with the other
robberies, Le and his co-defendants believed they were robbing the home of a business
owner who kept proceeds from the business—a Washington, DC seafood restaurant—in
her home. The evidence demonstrated that the woman did not in fact own the business,
but merely worked there as a cashier. Accordingly, the object of the conspiracy, Hobbs
Act robbery, was thwarted. Indeed, in the absence of facts indicating that business
proceeds were in the cashier’s home, it was an impossibility.4 Such fact does not,
however, undermine Le’s conviction for conspiracy to commit Hobbs Act robbery, as
“legal impossibility is not a defense to conspiracy.” United States v. Hsu, 155 F.3d 189,
203, 204 (3d Cir. 1998); see also United States v. Olgin, 745 F.2d 263, 273 (3d Cir. 1984)
4
Counsel did not identify the impossibility argument with respect to the Falls Church
robbery as a non-frivolous issue in its Anders brief. We mention the issue here because
the Government noted it in its trial brief as a possible attack on the sufficiency of the
evidence of conspiracy to commit Hobbs Act robbery. Counsel’s failure to raise this
issue in the Anders brief as a possible nonfrivolous issue does not undermine the
adequacy of the brief, however, as it is well settled in this Circuit that impossibility is not
a defense to conspiracy; accordingly, a challenge on this ground would have been
frivolous.
10
(“[T]he objective impossibility of attaining the goals of a conspiracy is irrelevant to the
guilt of those who conspire.”).
The more difficult question is whether the record contains sufficient evidence to
find that the seafood restaurant in question, Jessie Taylor Seafood, was engaged in
interstate commerce. The Anders brief acknowledges that no direct evidence was
presented regarding the restaurant’s interstate commerce activities. Rather, the brief
argues that engagement in interstate commerce may be inferred under the circumstances
because it is “inconceivable that a seafood business could operate in a landlocked
location such as Washington, D.C. without having inventory from out-of-state.”
In United States v. Needham, 604 F.3d 673 (2d Cir. 2010), the Court of Appeals
for the Second Circuit reversed certain of the defendants’ convictions for Hobbs Act
robbery, where defendants targeted marijuana proceeds, due to the government’s failure
to introduce evidence of an interstate effect. The court pointed out that it was possible
for marijuana to be grown, processed and sold entirely within the state of New York;
accordingly, no interstate effect could be inferred absent evidence of such connection. Id.
at 681. The court affirmed the defendants’ convictions for conspiracy to commit Hobbs
Act robbery, however, where the targeted proceeds were from the sale of cocaine and
heroin, stating that because such drugs “cannot be produced in New York, and thus
necessarily travel in interstate commerce,” such connection could be inferred. Id. at 680.
Moreover, the Needham court pointed out that the robberies targeting marijuana
and the robberies targeting cocaine and heroin were all planned as part of a single
conspiracy. See id. at 680 (“The indictment charged—and the jury found—a single
11
Hobbs Act conspiracy in which each of the defendants participated. . . . Thus, if the
overall conspiracy targeted products moving in interstate commerce, as the cocaine and
heroin robberies suggest, all three defendants are liable.”). Thus, given the inference that
could be drawn here regarding the restaurant’s engagement in interstate commerce and
the fact that, as in Needham, the indictment charged one overall conspiracy in which the
defendants, including Le, conspired and agreed to commit armed robberies targeting the
proceeds of businesses that engaged in interstate commerce, the Government’s failure to
demonstrate an interstate connection for one of the targeted businesses does not
undermine Le’s conviction for the overall conspiracy.5
In sum, we agree with counsel that any argument that Le could not be convicted of
Hobbs Act robbery or conspiracy to commit Hobbs Act robbery due to a lack of
connection to interstate commerce would be frivolous.
2. Whether there was Sufficient Evidence for the Jury to Find that Le had
Constructive or Actual Possession of a Firearm
The second issue identified by counsel in its Anders brief is whether there was
sufficient evidence for a rational trier of fact to convict Le of possession of a firearm in
5
The Anders brief raises one additional issue with respect to the Falls Church robbery.
For each of the other robberies, venue was appropriate in the Eastern District of
Pennsylvania because testimony indicated that the planning for each took part at a pool
hall in Philadelphia. There was no testimony, however, indicating that planning for the
Falls Church robbery took place in Philadelphia; indeed, the evidence indicates that such
planning occurred in Washington, DC. However, the Anders brief correctly notes that
absence of grounds for venue is waived where defendants fail to timely object. United
States v. Perez, 280 F.3d 318, 328 (3d Cir. 2002). And in any case, we believe that venue
was proper in the Eastern District of Pennsylvania because, as described supra, the
planning for the Falls Church robbery was part of a single overall conspiracy, and much
of the planning in connection with that conspiracy took place in the Eastern District of
Pennsylvania.
12
relation to a crime of violence, 18 U.S.C. § 924(c), and possession of a firearm by a
convicted felon, 18 U.S.C. § 922(g). Like the Hobbs Act robbery charge, these charges
relate only to the Bartonsville, Pennsylvania robbery, and not to the robberies committed
outside Pennsylvania. There can be no question that the evidence was sufficient to
establish that the Bartonsville robbery was a crime of violence, or that at the time of the
robbery Le was a convicted felon. Thus, the issue raised in the Anders brief is whether
the evidence was sufficient to establish possession of a firearm by Le.
Section 924(c) applies to “any person who, during and in relation to any crime of
violence . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses
a firearm . . . .” Similarly, § 922(g) makes it unlawful for any person who has been
convicted of a felony “to . . . possess in or affecting commerce, any firearm or
ammunition . . . .” Co-defendants Buu Huu Truong and Teo Van Bui each testified that
they carried a firearm during the Bartonsville robbery. Truong testified that he handed
his gun to Le while he broke into the home. He testified that at some point during the
robbery he took the gun back from Le, and used it to strike the victim before returning the
gun to Le. Both Thach Van Nguyen and Truong testified that Le stated that he threw a
gun away in the house, and Den Van Nguyen testified that he witnessed Le throw a gun
in the house. Police recovered two firearms from the house. The credibility of these
witnesses was for the jury to decide. See United States v. Starnes, 583 F.3d 196, 206 (3d
Cir. 2009) (“In reviewing a sufficiency-of-the-evidence claim, . . . we must examine the
totality of the evidence, both direct and circumstantial, and interpret the evidence in the
light most favorable to the government as the verdict winner.”) (internal quotation marks
13
omitted). We agree the evidence is sufficient for a rational trier of fact conclude that Le
possessed a weapon during the Bartonsville robbery, and that any argument to the
contrary would be frivolous.
3. Whether the District Court Committed Procedural Error by Applying a
Sentencing Enhancement for Obstruction of Justice
The third issue identified by counsel’s Anders brief is whether the District Court
erred in applying a two-step enhancement for obstruction of justice under U.S.S.G.
§ 3C1.1, based on Le’s recorded statements to Denise Novelli.6 In the recorded
conversation, Le urged Novelli, among other things, to tell the FBI she had never gone
with Le to any other states, when in fact she had traveled with him to robberies in both
New Jersey and Virginia, and to tell the FBI she knew nothing about a gun. Le also
challenges the District Court’s application of the enhancement in his pro se brief.
The presentence investigator did not recommend applying the two-level
enhancement to Le, opining that Le’s motivation in encouraging Novelli to lie was to
protect her, rather than to impede his own prosecution. The Government objected, and
the District Court, after hearing argument on the issue, decided to apply the enhancement,
stating that, though Le may have had several motivations to encourage Novelli to lie, one
motivation was his own self-interest in avoiding prosecution.
6
Section 3C1.1 provides that “[i]f (1) the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of justice with respect to the
investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the
obstructive conduct related to (A) the defendant’s offense of conviction and any related
conduct; or (B) a closely related offense, increase the offense level by 2 levels.”
14
Because the appropriateness of the enhancement depends on the factual issue of
Le’s motivation, we review the District Court’s application of the enhancement for abuse
of discretion. See United States v. Wise, 515 F.3d 207, 218 (3d Cir. 2008) (“[T]he
District Court will have abused its discretion in imposing a sentence if it based its
Guidelines calculation on clearly erroneous facts.”). In this case, the District Court
listened to the recording at issue on multiple occasions and heard argument from both the
Government and Le regarding Le’s motives in urging Novelli to lie. The court concluded
that Le was motivated, at least in part, by a desire to impede his own prosecution. We
agree with counsel that it would be frivolous to argue that the District Court’s decision to
apply the enhancement was an abuse of discretion.
B. Additional Issues Identified in Appellant’s Pro Se Motion
Having concluded that counsel has “thoroughly examined the record in search of
appealable issues, and [] explain[ed] why the issues are frivolous,” we may appropriately
conclude our inquiry. Youla, 241 F.3d at 300, 301 (“Where the Anders brief initially
appears adequate on its face, the proper course ‘is for the appellate court to be guided in
reviewing the record by the Anders brief itself.’”) (quoting United States v. Wagner, 103
F.3d 551, 553 (7th Cir. 1996)). However, we briefly address the additional issues
advanced by Le in his pro se brief.7 See Youla, 241 F.3d at 301-02 (examining issues
addressed in defendant’s pro se brief that were not addressed in counsel’s Anders brief).
7
One issue raised in Le’s pro se brief is “[w]hether the sentence imposed by the district
court was procedurally and substantially reasonable.” The only aspect of the sentence Le
appears to challenge, however, is the two-level enhancement applied under U.S.S.G. §
3C1.1. That issue is discussed supra, and we do not repeat our analysis here.
15
1. Whether the District Court Erred in Admitting Tape Recorded Statements
Made by Le to a Co-Conspirator
As noted above, at trial, the Government introduced a tape recorded conversation
that took place between Le and his ex-girlfriend, co-conspirator Denise Novelli. During
this conversation, Le made several statements that could be interpreted as incriminating.
The Government filed a pretrial motion to have the tape admitted into evidence, and Le
failed to oppose this motion. The District Court granted the Government’s motion. Le
now objects to the admission of the tape recording on authenticity grounds, and on the
ground that the recording was “prejudicial.” Because Le failed to oppose the
Government’s motion to admit the recording at trial, he cannot successfully challenge the
ruling on appeal unless it was plain error. See United States v. Brennan, 326 F.3d 176,
182 (3d Cir. 2003). “[T]he plain-error exception to the contemporaneous-objection rule
is to be ‘used sparingly, solely in those circumstances in which a miscarriage of justice
would otherwise result.’” United States v. Young, 470 U.S. 1, 15 (1985) (quoting United
States v. Frady, 456 U.S. 152, 163 n.14 (1982)).
Fed. R. Evid. 901(a) provides that “[t]o satisfy the requirement of authenticating
or identifying an item of evidence, the proponent must produce evidence sufficient to
support a finding that the item is what the proponent claims it is.” One way of satisfying
this requirement is to have a witness with knowledge testify “that an item is what it is
claimed to be.” Fed. R. Evid. 901(b)(1). In its motion to admit the tape recording, the
Government noted that one of the participants to the conversation, Denise Novelli, would
be available to testify that the recording was an accurate reproduction of the conversation
16
she had with Le. Indeed, Novelli did testify at trial as to the accuracy of the recording.
We agree that the Government met its burden regarding authentication of the tape
recording.8
Le further argues that the recording should not have been admitted because it was
“prejudicial.” Le does not, however, explain how the recording was unfairly prejudicial,
i.e., that it was so inflammatory as to inhibit the jury’s neutral application of the law to
the facts. See Starnes, 583 F.3d at 215. We have reviewed the transcript of the recording
and do not believe it may reasonably be characterized as unfairly prejudicial.
2. Whether Sufficient Evidence Existed to Support the Convictions
Le argues generally that his convictions were unsupported by the evidence. He
appears to base this argument on the lack of physical evidence connecting him to the
crimes, and on the Government’s reliance on testimony from cooperating co-defendants.9
Le’s argument must fail. The testimony of co-conspirators is, by itself, sufficient to
sustain a conviction if the jury finds such testimony to be credible. See United States v.
De Larosa, 450 F.2d 1057, 1060 (3d Cir. 1971) (“In view of the frequent absence of
proof of crime other than the account of a participant, a jury should be permitted as a
8
In his pro se motion, Le states that the District Court should have conducted a Starks
hearing to determine whether the recording should have been admitted. See United States
v. Starks, 515 F.2d 112 (3d Cir. 1975). It is unclear whether Starks remains relevant after
the enactment of Fed. R. Evid. 901. In any case, the Government averred in its pretrial
motion that each of the Starks factors was met. Le failed to oppose the Government’s
motion; as a result, he waived his right to a Starks hearing.
9
Le also asserts that, absent the tape recording between himself and Novelli, the jury
would not have been able to find beyond a reasonable doubt that he was involved in the
crimes. Because we believe the tape recording was properly admitted, we need not
address this argument.
17
general rule to convict when persuaded of the credibility of the testimony of an
accomplice.”); see also United States v. Hernandez, 962 F.2d 1152, 1157 (5th Cir. 1992)
(“There is no requirement that testimony by a co-conspirator fulfilling a plea bargain be
corroborated by independent evidence. The jury is entrusted with the responsibility of
evaluating the witness’s credibility, and uncorroborated testimony of a co-conspirator
will sustain a guilty verdict unless, as is not the case here, the testimony is incredible or
otherwise insubstantial on its face.”). Six of Le’s co-conspirators testified as to Le’s
planning of and participation in the four robberies at issue. It would be frivolous to argue
that a conviction could not be sustained on the basis of such cumulative evidence.
3. Whether Appellant was Denied the Right to a Speedy Trial
Lastly, Le argues that his indictment should have been dismissed because his
rights to a speedy trial were violated. The Speedy Trial Act generally requires that a
defendant’s trial begin no more than 70 days after the initial appearance. See generally
18 U.S.C. § 3161. However, the statute specifically excludes from that time calculation
“[a]ny period of delay resulting from a continuance granted by any judge . . . at the
request of the defendant or his counsel or at the request of the attorney for the
Government, if the judge granted such continuance on the basis of his findings that the
ends of justice served by taking such action outweigh the best interest of the public and
the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7)(A). In addition, the statute
excludes any “reasonable period of delay when the defendant is joined for trial with a
codefendant as to whom the time for trial has not run and no motion for severance has
been granted.” 18 U.S.C. § 3161(h)(6). See also United States v. Arbelaez, 7 F.3d 344,
18
347 (3d Cir. 1993) (“[A]fter defendants are joined for trial, an exclusion applicable to one
defendant applies to all codefendants.”) (internal quotation marks omitted).
Le made his initial appearance on March 1, 2011. On March 11, 2011, the District
Court scheduled the trial to commence on May 2, 2011. Between April 18, 2011 and
April 26, 2011, various of Le’s co-defendants filed motions to continue the trial, citing
the need for additional time to prepare and time to determine whether non-trial
disposition was possible. On April 25, 2011, the Government filed its own motion to
continue, explaining that it had been advised the previous week that the State Police
laboratory had recovered DNA evidence from the scene of one of the robberies and
needed additional time to compare the DNA recovered to that of the defendants. The
District Court, finding that the requirements of § 3161(h)(7)(A) were met, granted each
of these motions and ordered that a new trial date be set in the future. On October 26,
2011, the District Court scheduled the trial for January 17, 2012. Because each of the
delays between April 2011 and the date his trial commenced in January 2012 were due to
specific statutory exceptions to the Speedy Trial Act, Le’s argument that his indictment
should have been dismissed is frivolous.
IV. Conclusion
For the reasons stated above, we will grant counsel’s motion to withdraw and
affirm the Order of the District Court. Counsel is also relieved of any obligation to file a
petition for writ of certiorari in the Supreme Court. See 3d Cir. L.A.R. 109.2(b).
19