United States v. Hoang , 285 F. App'x 133 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 14, 2008
No. 05-20590 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JOHN HOANG; TINH THANH HOANG;
RONNIE GINNS
Defendants - Appellants
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:02-CR-577-15
Before REAVLEY, BENAVIDES, and OWEN, Circuit Judges.
PER CURIAM:*
John Hoang, Tinh Thanh Hoang, and Ronnie Ginns were convicted of
conspiracy to possess with intent to distribute a controlled substance as a result
of their involvement in a large drug trafficking organization in Houston, Texas.
The indictment charged that the conspiracy involved 3,4
methylenedioxymethamphetamine (also known as MDMA or Ecstasy);
methamphetamine; lysergic acid diethylamide (LSD); cocaine; ketamine; and
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 05-20590
anabolic steroids. The district court sentenced John and Tinh Hoang each to 240
months in prison, and it sentenced Ginns to 188 months. The defendants now
appeal, raising numerous issues. We AFFIRM the convictions and the
sentences.
All three defendants argue that the district court should have conducted
a hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579, 113 S. Ct. 2786 (1993), to determine whether the methods used by
Government chemists to test for controlled substances were scientifically
reliable. The argument is based on the notion that a small number of pills
containing MDMA taken from a much larger group of pills and ground up for
testing could yield a positive result even if not all of the pills in the larger,
untested group contain the drug.
The district court is required by Daubert to make “a preliminary
assessment of whether the reasoning or methodology underlying the testimony
is scientifically valid and of whether that reasoning or methodology properly can
be applied to the facts in issue.” Id. at 592–93, 113 S. Ct. at 2796. The purpose
of the assessment is to ensure reliability, and the inquiry is flexible. United
States v. Hicks, 389 F.3d 514, 525 (5th Cir. 2004). The court has wide latitude
in making its determination. Id. No separate hearing is necessary.
Here, the experts explained that the Government exhibits were subjected
to visual inspection to be sure the pills were all the same. The chemists then
obtained random samples from the exhibits and subjected them to color and gas
chromatography mass spectrometry testing to determine the presence of
controlled substances. “Random sampling is generally accepted as a method of
identifying the entire substance whose quantity has been measured.” United
States v. Fitzgerald, 89 F.3d 218, 223 n.5 (5th Cir. 1996) (rejecting argument
that evidence failed to prove possession of over five grams of cocaine base
because chemist tested only five of 63 “rocks”).
2
No. 05-20590
All defendants also challenge the district court’s jury charge. They all
contend that the district court erroneously gave a Pinkerton1 charge that allowed
the jury to find them guilty of substantive offenses alleged in numerous counts
against co-defendants even though they were charged only in a single count of
conspiracy. We see no prejudice or reversible error. The district court correctly
charged the jury on the requirements for finding the defendants guilty of
conspiracy. It instructed the jury to consider each defendant and the evidence
separately and to acquit if it did not find the elements of a conspiracy. The
portion of the charge concerning a substantive offense was expressly conditioned
on the jury first finding beyond a reasonable doubt that the defendants were
guilty of the conspiracy charged in count one. Furthermore, the verdict form did
not ask the jury to determine guilt or innocence of any substantive counts.
Although the Pinkerton instruction should have been omitted, we are not left
with substantial and ineradicable doubt that the jury was improperly guided in
its deliberations. See United States v. Lucas, 516 F.3d 316, 324 (5th Cir. 2008).
John Hoang challenges the district court’s reference in the charge on
conspiracy to “a kind of partnership in crime” and a “scheme.” Tinh Hoang and
Ginns similarly argue that the district court improperly refused requested
instructions concerning a common objective and the degree of criminal intent
necessary for a guilty verdict. We have carefully reviewed the charge and note
that it is virtually identical to the Fifth Circuit Pattern Jury Instructions. A
district court does not err by giving a charge that tracks this circuit’s pattern
instructions and is a correct statement of the law. United States v. Turner, 960
F.2d 461, 464 (5th Cir. 1992). We find no abuse of discretion in the district
court’s charge or in its refusal of the requested instructions. See United States
v. Skelton, 514 F.3d 433, 446 (5th Cir. 2008).
1
Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180 (1946).
3
No. 05-20590
Tinh Hoang argues that his Sixth Amendment right to confrontation was
violated because the presentence report (PSR) used statements from codefendant
John Hoang to apply a role enhancement and to determine the applicable drug
quantity. He correctly concedes, however, that we have consistently held, even
after United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), that the Sixth
Amendment is not violated by the use of hearsay at sentencing. See United
States v. Mitchell, 484 F.3d 762, 776 (5th Cir.), cert. denied 128 S. Ct. 297 (2007);
United States v. Beydoun, 469 F.3d 102, 108 (5th Cir. 2006).
Tinh next argues that the district court erroneously enhanced his offense
level based on two firearms that had been suppressed, and he urges us to follow
a Sixth Circuit case to find reversible error. We have previously held, however,
that the exclusionary rule does not apply to the district court’s consideration of
evidence at sentencing. See United States v. Montoya-Ortiz, 7 F.3d 1171, 1181
(5th Cir. 1993). We are bound by our precedent. See United States v. Rodriguez-
Jaimes, 481 F.3d 283, 288 (5th Cir. 2007).
Tinh further argues that the district court erroneously enhanced his base
offense level for being a manager or supervisor under U.S.S.G. § 3B1.1(b). We
review the district court’s determination for clear error. United States v. Rose,
449 F.3d 627, 633 (5th Cir. 2006). The role enhancement applies if the
defendant was “the organizer, leader, manager, or supervisor of one or more
other participants.” § 3B1.1, comment. (n.2).
Tinh argues that he was nothing more than an “errand boy” for his brother
John. The record shows, however, that John described Tinh as his “main
conduit” for distributing MDMA. Tinh leased the apartment from which the
brothers distributed drugs and from which Billy Tran obtained the MDMA that
he sold to a cooperating source on June 11, 2002. The PSR shows that Tran told
federal agents that he dealt MDMA for Tinh, from whom he obtained his supply.
Tinh argues that Tran’s statements are unreliable because Tran later said that
4
No. 05-20590
he was working for John Hoang. The district court essentially made a credibility
determination in choosing to believe Tran’s statement to the agents about Tinh.
See United States v. Shipley, 963 F.2d 56, 59 (5th Cir. 1992) (holding role
enhancement was not clearly erroneous where district court made credibility
decision to believe co-defendants’ statements). Furthermore, it is certainly
plausible that Tran was dealing MDMA at the direction of both John and Tinh.
For example, there was testimony from Christopher Brown, one of the other
drug traffickers in the organization, that co-conspirator Rick Singh said Tinh
and John could “move large quantities of pills for us.” Brown delivered pills to
Tinh for distribution after John made the arrangements. In light of the record
as a whole, we conclude that the district court’s determination that Tinh was a
manager or supervisor was not clearly erroneous.
John and Tinh both make similar arguments challenging the
reasonableness of their sentences. They both contend that the 240-months
imposed on them was disproportionate to the sentences of other, allegedly more
culpable, members of the conspiracy. Because both John’s and Tinh’s advisory
guideline range was higher than the statutory maximum, the statutory
maximum became the guideline sentence. The record shows that the district
court heard the defendants’ arguments, committed no procedural error in its
sentencing, and carefully considered the 18 U.S.C. § 3553(a) factors with respect
to each defendant before determining that the statutory maximum was
appropriate in each instance. With respect to other members of the conspiracy,
many of whom pleaded guilty and cooperated with the Government, the district
court noted when sentencing John that the circumstances of their plea
agreements were not before it and observed that it had to consider the evidence
in this particular case. We cannot say that the district court’s determination of
the sentence was unreasonable. See Gall v. United States, 128 S. Ct. 586,
5
No. 05-20590
597–98 (2007); United States v. Cisneros-Gutierrez, 517 F.3d 751, 766–67 (5th
Cir. 2008).
John Hoang argues that the district court erroneously denied his fifth
motion for a continuance of trial and his motion for a continuance of sentencing
until Rick Singh could be extradited to the United States from India. John’s
argument that Singh might have supplied helpful testimony is purely
speculative. He makes no showing that the witness would have been willing to
testify in his behalf and would have presented substantial favorable evidence.
The district court did not abuse its discretion in denying the motions for
continuance. See United States v. Hickerson, 489 F.3d 742, 745 (5th Cir. 2007).
John further argues that there was a material variance between the
indictment, which alleged a single conspiracy to distribute six different
controlled substances, and the proof at trial, which he contends showed multiple
smaller conspiracies. We need not resolve whether there was a variance because
it is clear from a review of the evidence that the Government proved John was
involved in a conspiracy to distribute MDMA. See Mitchell, 484 F.3d at 770
(“Even where the evidence points to multiple conspiracies rather than the single
conspiracy charged in the indictment, the variance does not affect the
defendant’s substantial rights as long as the government establishes the
defendant’s involvement in at least one of the proved conspiracies.”). John
presents only a conclusory argument under the general principles of joinder and
severance, and he fails to show reversible error. See id. at 771. Furthermore,
any risk of prejudice was minimized by the district court’s jury charge. See id.
John next asserts that the district court improperly limited his cross-
examination of chemist David Love as to Love’s methods for testing samples of
MDMA. However, John’s cross-examination of the first Government chemist
extensively explored the testing methodology. All the chemists testified to using
the same methodology and testing procedures, and John presented enough
6
No. 05-20590
information to the jury about the testing protocol to make his point. We find no
abuse of discretion by the district court. See United States v. Jimenez, 464 F.3d
555, 558–59 (5th Cir. 2006).
Ronnie Ginns argues that the district court violated his confrontation
rights by limiting his cross-examination of two witnesses. He contends that the
court erroneously prevented him from (a) asking Daniel Yonker whether
Yonker’s plea agreement provided for the dismissal of charges with mandatory
minimum sentences and (b) asking Minda Harris whether she solicited money
from other defendants not to testify against them. The record shows that
although the district court prevented Ginns from asking Yonker about his
sentencing exposure, the court permitted extensive questioning about the
existence of Yonker’s plea agreement and the pending criminal charges. The
jury had sufficient information to consider any bias and motives by Yonker, and
there was no violation of Ginns’ right to confrontation. See United States v.
Cooks, 52 F.3d 101, 104 (5th Cir. 1995).
Whether Harris was willing to change her testimony for compensation was
arguably relevant to her motives and bias. Nevertheless, we conclude that any
error was harmless in light of the limited information Harris provided about
Ginns and the substantial evidence provided by other witnesses. Harris
essentially provided minimal information that Ginns socialized with Rick Singh
and was seen with Singh at her apartment, that Ginns was unemployed, and
that Singh frequently gave Ginns money. On redirect examination, Harris
testified that she saw Singh give Ginns Ecstasy “a few times at the club.” Other
witnesses were much more important in linking Ginns to illicit drug activity.
For example, Yonker testified that Singh gave a kilogram of cocaine to Ginns to
sell and that Ginns supplied cocaine to him at Singh’s club, where Ginns kept
on his person numerous packages of cocaine in personal use amounts. Gal
Kofferberg also testified that he purchased cocaine from Ginns for his personal
7
No. 05-20590
use. Yonker and Richard Boyd both testified that Ginns and another man
physically beat Boyd for stealing a quantity of Singh’s cocaine. David Chavez
testified that he delivered pills to Ginns for distribution, and he identified a
ledger entry showing a delivery. Tony Hutson also testified that Ginns supplied
him with MDMA that had been “fronted” by Singh. In light of the record as a
whole, we are not convinced that the limitation on the questioning of Harris
contributed to the verdict, and Ginns fails to show reversible error. See Jimenez,
464 F.3d at 564; Cooks, 52 F.3d at 104.
Ginns further argues that his confrontation rights were violated under
Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620 (1968), when a DEA agent
testified about John Hoang’s statement identifying Ginns in a photo spread. The
district court granted Ginns’ motion to strike the testimony and gave a limiting
instruction to the jury, but it denied Ginns’ motion for a mistrial. We find no
reversible error. As noted above, there was ample evidence of Ginns’ guilt, and
we conclude that the error, if any, was harmless. See United States v. Gutierrez-
Chavez, 842 F.2d 77, 80 (5th Cir. 1988) (“[E]ven if a statement is admitted in
violation of the Bruton principle, the error may be harmless if the statement’s
impact is insignificant in light of the weight of other evidence against the
defendant.” (quotation and citation omitted)).
Finally, Ginns argues that the district court erroneously denied his motion
for a mistrial after impermissibly admitting evidence of an unrelated offense.
The evidence came in the form of a recorded telephone conversation wherein
Rick Singh purportedly discussed with Ginns a gun and a ski mask used to
commit a robbery. We conclude that the evidence appeared in passing during
the course of a lengthy trial that included more than sufficient evidence of Ginns’
guilt. Any error was, at most, harmless. See United States v. Sotelo, 97F.3d 782,
798 (5th Cir. 1996).
AFFIRMED.
8