United States v. Praseut Chanthasen , 367 F. App'x 796 ( 2010 )

FILED
NOT FOR PUBLICATION FEB 23 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10001
Plaintiff - Appellee, D.C. No. 1:06-CR-00212-LJO-2
v.
MEMORANDUM *
PRASEUT CHANTHASEN,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, , Presiding
Submitted February 8, 2010 **
San Francisco, California
Before: HALL and McKEOWN, Circuit Judges, and CAMPBELL, *** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable David G. Campbell, United States District Judge for
the District of Arizona, sitting by designation.
Prasuet Chanthasen (“Chanthasen”) timely appeals from a judgment of
conviction of one count of conspiracy to manufacture marijuana in violation of
21U.S.C. §§ 841(a)(1) and (b)(1)(A)(vii), and 846. Chanthasen was sentenced to
120 months in prison, to be followed by 60 months of supervised release, and a
$100 special assessment. In this appeal, Chanthasen contends that: (1) there was
insufficient evidence that he became a member of the conspiracy to manufacture
marijuana, knew of at least one of its objects, and intended to help achieve it; and
(2) a digital photograph taken by a sheriff’s deputy during a traffic stop that was
arranged as part of a surveillance operation on April 19, 2006, was potentially
exculpatory and highly probative evidence of identity, and the government’s
failure to preserve that photograph violated his due process rights in light of the
fact that he gave early and consistent notice that identity would be a key defense
issue. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
I.
The large body of testimonial and documentary evidence presented during a
four-day jury trial and extensive post-trial proceedings, the procedural events of
the case, and the applicable law are well known to the parties. Thus, we will recite
such information only as necessary to our disposition of the claims of error raised
in this appeal.
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II.
We review de novo Chanthasen’s challenge to the sufficiency of the
evidence. United States v. Antonakeas, 255 F.3d 714, 723 (9th Cir. 2001). There
is sufficient evidence to support a conviction if, viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 319 (1979). Applying these standards, we reject Chanthasen’s claim
that the evidence presented at trial was insufficient to prove he was a knowing,
active member of the conspiracy to manufacture marijuana charged in this case.
The government introduced detailed testimony from a team of Fresno
County Sheriff’s Department (“FCSD”) detectives who participated in surveillance
of the targeted marijuana growing site in Stevinson, California, in Merced County,
on two occasions on April 19 and May 4, 2006. On the former date, the officers
followed a green minivan from the Stevinson site, where five people were seen
working in a field in which an estimated 10,000 marijuana plants were under active
cultivation, all the way back to Chanthasen’s apartment on North 8th Street, in
Fresno, California. During the April 19 surveillance operation, two of the FCSD
investigators, Detective John Wages and Sergeant Brad Christian, were in a
position to and did identify the driver of the green minivan as defendant
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Chanthasen, and the minivan’s passenger as alleged co-conspirator Vanh Tho
Lawphachan (“Lawphachan”).
In addition, FCSD Deputy David Barile testified that he was dispatched to
assist the detectives on the afternoon of April 19, 2006, upon their return to Fresno
County, and that he stopped the green minivan for a traffic infraction shortly after
it was seen dropping off Lawphachan at his home on Carolina Avenue in Clovis at
approximately 3:30 p.m. Deputy Barile identified Chanthasen at trial as the person
who was driving the van at that time, and identified the valid California driver’s
license Chanthasen had presented to him upon request during the traffic stop.
Cooperating co-conspirator Onesy Chanthavong (“Chanthavong”) also
testified that Chanthasen was a member of the group cultivating marijuana with
him and Lawphachan, and that he had personally seen Chanthasen working at the
Stevinson site and had spent the night with the defendant in a trailer on the
property on several occasions. Chanthavong identified Lawphachan as the
“leader” of the conspiracy.
Finally, Chanthasen himself admitted at trial that he was driving the green
minivan when Deputy Barile stopped him sometime after 3:00 p.m. on April 19,
2006. Chanthasen also testified about his experience cultivating legitimate Asian
vegetable crops—including the “long bean” plants that surrounded and shielded
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from public view the 11,539 marijuana plants that were growing in the Stevinson
field—and could fairly be charged with knowledge of the illegal nature and
objectives of the cultivation project at the Stevinson site. Chanthasen’s claims that
he was not in Stevinson that day, and that he had merely “borrowed” the van for
about an hour from his friend Bounma Vommarath, the registered owner of the
vehicle, to move some seedlings from his home in Clovis to his own five-acre farm
in the Fresno area, were necessarily rejected by the jury. Taken together, the
evidence presented at trial amply supports Chanthasen’s conviction.
III.
We also review de novo Chanthasen’s claim that the government’s failure to
preserve a digital photograph taken by Deputy Barile during the April 19, 2006
traffic stop violated his due process rights, but the district court’s factual findings
on this issue are reviewed only for clear error. United States v. Hernandez, 109
F.3d 1450, 1454 (9th Cir. 1997). When evidence is lost or destroyed while in the
government’s possession, the government bears the burden of justifying its conduct
and the defendant bears the burden of demonstrating prejudice. United States v.
Tercero, 640 F.2d 190, 192 (9th Cir. 1980). Upon de novo review, we reject
Chanthasen’s due process claim because there was no evidence of bad faith on the
part of the government, and Chanthasen has not shown he was prejudiced by the
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loss of the photograph.
The district court conducted an extensive post-trial inquiry into the
destruction of the photograph, and specifically found that it was not intentional and
that there was no evidence of bad faith on the part of Detective Jacob Jensen, the
FCSD officer who received the digital photograph by e-mail from Deputy Barile
and subsequently deleted it from his computer. These findings are not clearly
erroneous. See Hernandez, 109 F.3d at 1454-55; United States v. Heffington, 952
F.2d 275, 280-81 (9th Cir. 1991)
The exculpatory nature and probative value of the photograph are also
debatable, at best. As we have noted, Chanthasen admitted at trial that he was
stopped while driving the green minivan, precisely as Deputy Barile reported, on
April, 19, 2006. Deputy Barile also identified the valid California driver’s license
Chanthasen produced to him during the traffic stop on April 19, 2006, and
identified Chanthasen as the person he stopped that day at the direction of the
FCSD surveillance team. Deputy Barile further testified, however, that there was
no gardening material in the van, and that Chanthasen looked “normal” during the
stop, thus providing an alternative source of evidentiary support for Chanthasen’s
claim that the photograph would have shown he did not look like someone who
had been “scruffing around in a field” that day. Moreover, even if the digital
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photograph had a “time and date stamp,” as Chanthasen claims without record
support, it would have added nothing that was not already confirmed by Deputy
Barile’s testimony and Chanthasen’s own admissions. There is, in short, no reason
to believe that the preservation and use of the digital photograph at trial would
have yielded a different verdict.
IV.
For all the foregoing reasons, the judgment of conviction, including the
sentence imposed, is AFFIRMED.
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