United States v. Thanh Quoc Hoang , 560 F. App'x 849 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-11958
Non-Argument Calendar
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D.C. Docket No. 5:11-cr-00038-CAR-CHW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THANH QUOC HOANG,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Georgia
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(March 19, 2014)
Before HULL, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
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Thanh Quoc Hoang appeals his convictions and sentence of 28 months of
imprisonment for six counts of defrauding the Security Bank of Bibb County by
writing worthless checks to Fleet Credit Card Service and American Express. See
18 U.S.C. § 1344. Hoang challenges several evidentiary rulings, the sufficiency of
the evidence, and the ten-level enhancement of his sentence based on the amount
of loss, see United States Sentencing Guidelines Manual § 2B1.1(b)(1)(F) (Nov.
2012). We affirm.
The district court did not abuse its discretion by excluding as unhelpful three
of the four opinions that Hoang proffered that he would elicit from a forensic
accountant, J.P Gingras. Gingras intended to testify that Hoang’s bank and credit
card statements failed to establish who was responsible for the recorded
transactions and that the check kiting was inconsistent with earlier activity in
Hoang’s accounts, but those observations could be made by defense counsel, see
United States v. Frazier, 387 F.3d 1244, 1262–63 (11th Cir. 2004), and did not
involve any scientific, technical, or specialized information that required
explanation by an expert, see United States v. Hansen, 262 F.3d 1217, 1234 (11th
Cir. 2001). Gingras also intended to testify that the extent of the fraud would
“support the possibility that Mr. Hoang was the victim of identity theft,” but that
speculative and vague statement could have confused and misled the jury. See
Frazier, 387 F.3d at 1266. Hoang argues that the exclusion of Gingras’s opinions
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thwarted him from presenting his defense of identity theft, but the evidentiary
ruling did not affect Hoang’s substantial rights, see United States v. Abreu, 406
F.3d 1304, 1306 (11th Cir. 2005). Hoang presented his defense to the jury through
eliciting testimony that the bank was unaware who signed the checks drawn on
Hoang’s account; a document examiner could not determine whether Hoang signed
the checks that were drawn on insufficient funds; and a handwriting expert was
“virtually certain or almost certain” that Hoang did not sign the checks.
The district court did not plainly err by admitting testimony from Arthur
Hardy, a former agent of the Federal Bureau of Investigation, about his interview
of Hoang. Hoang argues that the district court sua sponte should have “inquire[d]”
and “conduct[ed] a hearing, if necessary,” to determine whether Hoang’s
statements were admissible, see Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774
(1964), because Hardy failed to provide him warnings about his constitutional
rights, see Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), but Hardy’s
testimony established that the interview was noncustodial. Hardy testified that he
interviewed Hoang at his home, with his wife present; Hardy told Hoang during
the interview that he was free to move about and go to the restroom; Hoang did not
act intimidated by the federal agent; and the interview lasted only 35 to 40 minutes.
See United States v. Brown, 441 F.3d 1330, 1347–48 (11th Cir. 2006). Hoang
argues that Hardy requested a handwriting sample without informing Hoang that
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he had a right to refuse to cooperate, but Hoang cites no authority for the
proposition that a request for a handwriting sample transforms an otherwise
voluntary interview into a custodial interrogation, see United States v. Aguilar-
Ibarra, 740 F.3d 587, 592 (11th Cir. 2014). Hoang suggests that his limited
understanding of the English language and the judicial system affected his ability
to end the interview, but Hardy testified that he did not notice a language barrier;
Hoang conversed in English; and Hoang spoke willingly about his use of credit
cards to obtain cash that he used to gamble. The district court was not obliged to
inquire into the admissibility of Hoang’s statements when the interview was
noncustodial.
The district court also did not plainly err by admitting evidence, under
Federal Rule of Evidence 404(b), that Hoang submitted worthless checks to
Citibank to pay for charges to his Home Depot credit card. Hoang did not object
after receiving notice that the government would introduce evidence of the
uncharged acts. Hoang also did not object to the testimony from Steven Bishop, a
fraud examiner for Citibank, that the company extended Hoang credit of $2,500,
which he spent in one transaction; he acquired additional credit by submitting three
worthless checks for $2,500; and, before Citibank presented his checks for
payment, Hoang made additional charges on the credit card. Evidence of those
transactions was intrinsic to the charged offenses because Hoang wrote the
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worthless checks to Citibank, Fleet Credit Card Service, and American Express
within a two-month period. See United States v. Troya, 733 F.3d 1125, 1131 (11th
Cir. 2013). The transactions with Citibank also were probative to prove Hoang’s
intent to defraud Security Bank and credit card companies and to establish that it
was improbable that so many fraudulent acts were attributable to identity theft.
See Fed. R. Evid. 404(b); United States v. Brown, 665 F.3d 1239, 1247–48 (11th
Cir. 2011). And the district court eradicated “[a]ny possible unfair prejudice” by
instructing the jury before Bishop testified that his testimony could be considered
only “to decide whether [Hoang] had the state of mind or intent necessary for the
crime charged or that he acted according to a plan or to prepare to commit a crime
or committed the charged acts by accident or mistake.” See Brown, 665 F.3d at
1247. The district court did not err, much less plainly err, by admitting evidence of
the worthless checks Hoang submitted to Citibank.
Nor did the district court plainly err by admitting evidence under Rule
404(b) of Hoang’s gambling debts. During the investigation, agents learned that
Hoang had used a credit card issued by JP Morgan Chase Bank at two different
casinos in 2003 and 2004. When interviewed by Agent Hardy, Hoang admitted
that, between 2002 and 2004, he lost more than $100,000 while gambling in
various casinos; he used lines of credit to obtain cash advances to fund his
gambling in hopes that he could repay his gambling debts; and he ignored credit
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card bills he received in the mail. During trial, Hardy identified, without objection,
certified copies of judgments against Hoang by Jazz Casino d/b/a Harrah’s Casino
New Orleans, Beau Rivage Resorts, Inc., and Atlanta City Showboat, Inc. This
evidence was inextricably intertwined to the charges against him because it proved
Hoang’s motive. See Troya, 733 F.3d at 1131. Hoang complains that he was not
notified before the evidence was introduced at trial, but the government was not
required to provide notice of intrinsic evidence. See United States v. Church, 955
F.2d 688, 700 (11th Cir. 1992). And any prejudicial effect of the evidence was
outweighed by its probative value. See Troya, 733 F.3d at 1132. The district court
did not err, plainly or otherwise, by admitting evidence about Hoang’s gambling
debts.
Hoang argues that he was denied a fair trial because of the cumulative effect
of admitting uncharged conduct, but his argument fails. Because Hoang has failed
to identify any individual instances of individual error, “no cumulative error[] can
exist.” United States v. Waldon, 363 F.3d 1103, 1110 (11th Cir. 2004).
Hoang argues that there is insufficient evidence to support his convictions,
but he cannot satisfy the high bar for relief. Because Hoang failed to move for a
judgment of acquittal at the close of the evidence, we will reverse his convictions
only to prevent a miscarriage of justice, which occurs only when “the evidence on
a key element of the offense is so tenuous that a conviction would be shocking,”
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United States v. Perez, 661 F.3d 568, 574 (11th Cir. 2011). Sufficient evidence
establishes that Hoang intentionally participated in a scheme to defraud a federally
insured financial institution. See United States v. McCarrick, 294 F.3d 1286, 1290
(11th Cir. 2002). At trial, two employees of Security Bank, Lydia Ham and Jeane
Weeks, testified that the bank was federally insured. See United States v. Baldwin,
644 F.2d 381, 385 (5th Cir. 1981) (“Uncontradicted testimony [that] the deposits
were federally insured is sufficient” to support a conviction for armed robbery of a
bank, under 18 U.S.C. § 2113(d).). And a jury reasonably could have found, based
on the documentary evidence and testimonies of bank and credit card companies
and federal investigators, that Hoang devised a plan to open a checking account at
Security Bank from which he could write worthless checks to pay credit cards,
which subjected the bank to a “risk of loss” with the passing of each worthless
check because it could have covered an account in overdraft and not recovered the
amount of a check it paid on an account with insufficient funds. See United States
v. De La Mata, 266 F.3d 1275, 1298 (11th Cir. 2001).
The district court did not plainly err by enhancing Hoang’s sentence by ten
levels for the amount of loss. A defendant is subject to a ten-level increase of his
base offense level if the amount of loss inflicted by his fraud offense involves more
than $120,000 and less than $200,000. U.S.S.G. § 2B1.1(b)(1)(F). “Facts
contained in a [presentence investigation report] are undisputed and deemed to
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have been admitted unless a party objects to them before the sentencing court with
specificity and clarity.” United States v. Beckles, 565 F.3d 832, 844 (11th Cir.
2009) (internal quotation marks and citation omitted). Hoang’s presentence
investigation report provided that he wrote approximately 48 worthless checks
worth $165,760.11 on his account at Security Bank. Hoang did not object to this
statement in his presentence investigation report, and during his sentencing
hearing, his attorney conceded that “the guidelines [were] done exactly correctly.”
Based on Hoang’s admissions, the district court did not err, much less plainly err,
in determining the amount of loss.
We AFFIRM Hoang’s convictions and sentence.
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