United States v. Tran , 339 F. App'x 423 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 31, 2009
No. 07-11195 Charles R. Fulbruge III
Summary Calendar Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
TUAN ANH TRAN; ITTHISON PHENGSENGKHAM, also known as Eddy
Phensengkham; SITTHIPHONE PHENGSENGKHAM, also known as Teddy
Phengsengkham
Defendants-Appellants
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 2:07-CR-65-23
Before REAVLEY, JOLLY, and OWEN, Circuit Judges.
PER CURIAM:*
Defendants-Appellants Itthison Phengsengkham (“Eddy”) and Sitthiphone
Phengsengkham (“Teddy”) were convicted by a jury of conspiring to distribute
cocaine and methamphetamine, in violation of 21 U.S.C. § 846. The same jury
convicted Teddy and Defendant-Appellant Tuan Anh Tran (“Tran”) of violating
18 U.S.C. § 1956(h) by conspiring to launder money. Defendants challenge their
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 07-11195
convictions on various grounds, and Teddy additionally contends that his
sentence was unreasonable. For the reasons that follow, we AFFIRM:
1. Eddy asserts that the police affidavit submitted in support of the search
warrant contained stale information, thus requiring suppression of the drugs
and cash seized at a motel. Evidence obtained by law enforcement in good faith
reliance on a warrant is admissible even if the affidavit submitted in support of
the warrant was insufficient to establish probable cause. See United States v.
Craig, 861 F.2d 818, 821 (5th Cir. 1988) (discussing United States v. Leon,
468 U.S. 897, 104 S. Ct. 3405 (1984)). An affidavit may rely on information
reaching back over long periods if “the information of the affidavit clearly shows
a long-standing, ongoing pattern of criminal activity.” United States v. Pena-
Rodriguez, 110 F.3d 1120, 1130 (5th Cir. 1997) (internal quotations and citation
omitted). The court is also “more tolerant of dated allegations” if “the evidence
sought is of the sort that can reasonably be expected to be kept for long periods
of time in the place to be searched.” Id. (internal quotations and citation
omitted). The facts recounted in the affidavit supported the ongoing nature of
the criminal activity at the motel, including within days of the warrant’s
issuance, and the likelihood that drugs and drug-related documents of a non-
ephemeral nature would be found there. As such, the affidavit “was not so
lacking in indicia of probable cause as to render good-faith reliance on a warrant
issued pursuant to it entirely unreasonable.” Id. The district court therefore
correctly denied Eddy’s motion to suppress.
2. Additionally, the district court did not abuse its discretion by denying
Tran’s motion for severance. See, e.g., United States v. Booker, 334 F.3d 406, 415
(5th Cir. 2003) (standard of review). “As a general rule, persons indicted
together should be tried together, particularly when the offense is conspiracy.”
United States v. Simmons, 374 F.3d 313, 317 (5th Cir. 2004). For denial of
severance to amount to reversible error, the defendant must show that “(1) the
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joint trial prejudiced him to such an extent that the district court could not
provide adequate protection; and (2) the prejudice outweighed the government’s
interest in economy of judicial administration.” United States v. Valdez,
453 F.3d 252, 261 (5th Cir. 2006) (internal quotation marks and citation
omitted). Tran’s contentions regarding the volume of evidence relating to the
separate drug-trafficking conspiracy of his co-defendants and its spillover effect
are insufficient to warrant reversal. Cf. United States v. Lewis, 476 F.3d 369,
384 (5th Cir. 2007). The district court substantially mitigated potential
prejudice to Tran by instructing the jury to consider the evidence separately as
to each defendant. See Booker, 334 F.3d at 415–16; United States v.
Bieganowski, 313 F.3d 264, 288 (5th Cir. 2002). Indeed, that Tran’s wife was
acquitted on the same conspiracy charge supports an inference that the jury
adhered to this instruction. See United States v. Ellender, 947 F.2d 748, 755 (5th
Cir. 1991). Even assuming that severance would have permitted Tran to compel
Eddy’s testimony—an argument he failed to raise below—Tran failed to present
the requisite proof of his need for the testimony, its content, or its anticipated
exculpatory effect. See United States v. Nguyen, 493 F.3d 613, 625 (5th Cir.
2007). Tran has failed make the compelling showing of prejudice necessary to
warrant reversal.
3. Teddy, who did not move for severance or adopt the motion filed by Tran,
also contends that the joint trial prejudiced his rights. Because a motion to
sever requires a particularized showing of prejudice as to the complaining
defendant, Tran’s motion does not preserve Teddy’s objection. See United States
v. Mann, 161 F.3d 840, 861–62 & n.58 (5th Cir. 1998) (limiting review to plain
error). No substantial prejudice resulted from (1) the district court’s mistaken
reference to Eddy as Teddy when addressing Eddy and his counsel regarding a
factual stipulation to which both agreed; (2) the two instances when witnesses
confused Eddy and Teddy’s names and promptly corrected themselves; or
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No. 07-11195
(3) when Eddy’s counsel referred to Teddy by his client’s name outside the
presence of the jury. Teddy requested no admonitory instruction regarding these
misstatements, and none was plainly required. That Teddy was charged with
the same conspiracy count as Eddy also distinguishes his prosecution from
United States v. Sampol, 636 F.2d 621, 646–48 (D.C. Cir. 1980) (joint trial
between a defendant and others charged with grossly disparate offenses
involving the bombing death of two people was error). Additionally, we do not
find the evidence relating to Eddy’s drug activities and criminal history so
inflammatory and unrelated to Teddy’s connection with those activities that
their joint trial was plainly erroneous. See, e.g., Bieganowski, 313 F.3d at
287–88. Accordingly, the district court was not required to sever Teddy’s trial
sua sponte from that of his brother.
4. We reject Tran’s challenge to the sufficiency of evidence underlying his
conviction for conspiring with Teddy to launder proceeds from narcotics
distribution. Police intercepted a phone call from Tran to Teddy after they
arrested Tran’s wife and seized $200,000 in drug money—half the sum paid by
Teddy for the Trans’ convenience store—that she was transporting to a safety
deposit box at a local bank. Tran expressed concern that police might trace the
funds back to Teddy and suggested that Teddy fabricate a story that the money
came from a mother and aunt who wanted to buy the store. Moreover, Tran
stated that he had secreted away the remaining $200,000. The Trans later met
with Teddy, his aunt, and his mother at an office to complete paperwork
consummating the sales transaction. But the contract of sale was signed only
by Teddy’s aunt. Viewing this evidence in a light most favorable to the
Government, see Valdez, 453 F.3d at 256, a rational jury could reasonably infer
from Tran’s concerted efforts to conceal the money, its source, and the
unorthodox sale procedure that he was aware that the funds were derived from
illegal activity but nonetheless agreed to sell the store to Teddy with the intent
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to further the agreement’s unlawful purpose. See United States v. Armstrong,
550 F.3d 382, 403 (5th Cir. 2008) (elements of conspiracy under § 1956(h)).
5. Based on these facts, we find no abuse of discretion by the district court
in submitting a deliberate ignorance instruction in its jury charge. See, e.g.,
United States v. Orji-Nwosu, 549 F.3d 1005, 1008 (5th Cir. 2008) (standard of
review). Such an instruction is proper if the evidence supports the defendant’s
(1) subjective awareness of a high probability of the existence of illegal conduct
and (2) purposeful contrivance to avoid learning of the illegal conduct. United
States v. Lara-Velasquez, 919 F.2d 946, 951 (5th Cir. 1990). Tran’s attempts to
conceal the circumstances surrounding the sale of his store and the funds he
received from Teddy amply support a subjective awareness that his conduct was
illegal. Id. at 952 (explaining that evidence suggesting actual knowledge
typically permits an inference that the defendant was aware of the high
probability of illegal conduct); see also United States v. Wofford, 560 F.3d 341,
353 (5th Cir. 2009) (“Suspicious behavior may be sufficient to infer subjective
awareness of illegal conduct.”). Tran’s conduct likewise substantiates that he
either knew the illegality of his actions or purposefully contrived to avoid guilty
knowledge. See Lara-Velasquez, 919 F.2d at 952 (same evidence may support
both awareness and contrivance); see also, e.g., United States v. Saucedo-Munoz,
307 F.3d 344, 348–49 (5th Cir. 2002) (approving of a deliberate ignorance
instruction when the evidence supports both contrivance to avoid learning the
truth and actual knowledge). We therefore affirm Tran’s conviction.
6. Finally, Teddy challenges the reasonableness of the 293-month sentence
imposed by the district court for conspiring to distribute drugs, which we review
for abuse of discretion. See Gall v. United States, 128 S. Ct. 586, 597 (2007).
Because Teddy’s sentence fell within the properly calculated guideline range, it
is presumed reasonable. United States v. King, 541 F.3d 1143, 1145 n.1 (5th Cir.
2008). The district court, in relying on Teddy’s criminal lifestyle, lack of
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legitimate income sources, and disregard for the safety of the community by
distributing drugs as a basis for its sentence, duly considered factors prescribed
in 18 U.S.C. § 3553(a), namely, the nature and circumstances of the offense,
history and circumstances of the defendant, seriousness of the crime, and the
need to provide just punishment, deter wrongdoing, and protect the public. See
§ 3553(a)(1), (a)(2)(A), (a)(2)(B), (a)(2)(C). That the district court did not
expressly cite 18 U.S.C. § 3553(a) is immaterial, and its decision to impose a
within-guideline sentence required no more detail than was provided. See
United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006). We find no reversible
error with Teddy’s sentence.
AFFIRMED.
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