United States v. Chin ( 1996 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5060
LARRY CHIN, a/k/a Dallas,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CR-94-361-A)
Argued: February 1, 1996
Decided: April 30, 1996
Before WIDENER and MURNAGHAN, Circuit Judges, and
DOUMAR, United States District Judge for the Eastern District
of Virginia, sitting by designation.
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Affirmed in part, vacated in part, and remanded in part by published
opinion. Judge Murnaghan wrote the opinion, in which Judge Wid-
ener and Judge Doumar joined.
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COUNSEL
ARGUED: Charles Lewis King, CRUM & KING, Arlington, Vir-
ginia, for Appellant. John Patrick Rowley, III, Assistant United States
Attorney, UNITED STATES ATTORNEY'S OFFICE, Alexandria,
Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United States
Attorney, Lawrence J. Leiser, Assistant United States Attorney, Alex-
andria, Virginia, for Appellee.
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OPINION
MURNAGHAN, Circuit Judge:
Larry Chin ("Chin"), defendant-appellant, has appealed his convic-
tion for the distribution of heroin and other drug-related crimes. For
the following reasons, we, with one exception, have concluded to
affirm.
I.
Chin was one of several individuals arrested as the result of a Drug
Enforcement Agency ("DEA") undercover operation run out of an
automotive repair shop ("the shop") located in Arlington, Virginia.
The owner of the shop volunteered his premises as a place to run an
undercover operation because of his concern with illegal drug activi-
ties in his community. Using the shop as a front, special undercover
agents ("agents") posed as criminals offering"green cards" in
exchange for heroin, cocaine, crack, weapons, or cash.1 The agents
wired the shop for sound and video allowing them to record multiple
illegal transactions involving Chin or his colleagues. When Chin was
tried, portions of the tapes were played to the jury and transcripts
were offered as evidence of illegal activities as well as accounts by
witnesses describing the content of the tapes. Most of the following
meetings were recorded by video or audio.
An agent first met with Simon Chow ("Chow"), Chin's friend and
colleague, in February of 1993 at the shop. Chow and the agent dis-
cussed exchanging green cards for cash or heroin. A heroin deal
between Chin and the agent grew out of that initial meeting.
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1 Alien registration cards, which are proof of legal status for aliens, are
commonly referred to as "green cards."
2
At a meeting in the shop in June 1993, Chow was supposed to
deliver a sample of heroin to the DEA agent. He was unable to deliver
the sample because he had allegedly lost it in transit from New York.
In early July, however, Chow agreed to sell $90,000 worth of heroin
to the agent. He also provided a sample that was 90% pure heroin.
Later in July, Chin met with an agent at the shop for the first time.
At that meeting, Chin expressed his frustrations with delays in the
heroin deal. He told an agent that he had "been in the heroin business
for a long, long, time," and that "his people," young people, were in
town and they "were trigger-happy." He emphasized that they "had
nothing to live for . . . [and at] [t]he first sight of problems, they go
for the trigger. So don't delay much longer." Chin then threatened to
kill the owner of the shop if anything went wrong with the deal. At
that same meeting, Chin discussed the mechanics of the heroin sale
and decided on a date, July 27, 1993, at 9:30 a.m. The parties would
exchange the money at the shop and the heroin at a separate location,
a restaurant in Washington, D.C.
The transaction occurred as planned. Chin was video-taped receiv-
ing $67,000 in cash at the shop in exchange for 700 grams of heroin
delivered to agents at a restaurant in Washington, D.C.2 While waiting
for his people to deliver the heroin at the restaurant, Chin pulled out
a 40 caliber handgun and displayed it to an agent. Chin also discussed
with an agent how much he would charge for murder-for-hire and to
dispose of the "garbage," meaning the body. He suggested that his
people had been responsible for the murder of a man whose picture
was on a missing person poster at the shop, and stated that the body
had been disposed of at the Andrews Air Force Base.
When the heroin arrived at the restaurant in Washington, D.C., it
was given to agents there. At trial, one agent testified that the 700
grams of heroin received from Chin's "people," two juveniles, arrived
in a cookie tin containing a wrapped package of heroin. The wrapping
bore the distinctive symbol, a "double uoglobe," of the Shan Army,
which controls the production and distribution of a vast majority of
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2 The sale price of $90,000, plus a late charge of $3,000, was reduced
by $26,000 which Chow owed the undercover agent for green cards and
stolen cigarettes.
3
the heroin produced in the Far East. The "double uoglobe brand" is
recognized world-wide as one of the best and most pure brands of
heroin. The agent, a veteran DEA agent and former DEA chemist, tes-
tified that the distinctive packaging as well as the results from the
DEA lab verifying that the heroin was 85% pure indicated that the
heroin came from the Shan Army in Southeast Asia and not the
United States.
Chin was charged in a six-count indictment with various drug-
related crimes. Count I alleged a conspiracy to distribute heroin in
violation of 21 U.S.C. § 846; Count II alleged distribution of heroin
in violation of 21 U.S.C. § 841; count III alleged the use of juveniles
in the distribution of heroin in violation of 21 U.S.C. §§ 841(a)(1) and
861(a)(1); count IV alleged carrying a firearm during drug trafficking
in violation of 18 U.S.C. § 924(c)(1); count V alleged a continuing
criminal enterprise in violation of 21 U.S.C. § 848(a); and count VI
alleged importation of heroin in violation of 21 U.S.C. §§ 952(a),
960(b)(2). The government charged Chin as both a principal and an
aider and abettor on counts II, III, and VI under 18 U.S.C. § 2.
At the close of the government's case, Chin made a motion for a
directed verdict on the importation count. The district court denied the
motion reasoning that the importation charge could go to the jury on
the theory that the purity and packaging demonstrated that Chin aided
and abetted in the importation of heroin.
A jury found Chin guilty of all six counts of alleged illegal activi-
ties. The trial judge sentenced Chin to 264 months in prison on
Counts II, III, V, and VI, and 60 consecutive months on count IV. The
trial judge dismissed and vacated count I for conspiracy because it
was a lesser included offense of Count V, a continuing criminal
enterprise.3
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3 The dismissal of count I would be subject to reinstatement if the con-
viction for engaging in a continuing criminal enterprise were to be
reversed.
4
II.
Chin has challenged his convictions on two different grounds.
First, he has contended that the admission into evidence of testimony
describing his discussion about murder-for-hire and"his people's"
responsibility for a particular murder violated Rules 404(b) and 403
of the Federal Rules of Evidence. Second, he has argued that the evi-
dence establishing that he imported heroin was so weak that the dis-
trict judge erred by not granting him a directed verdict of not guilty
on the importation charge.
A. Admissibility of Murder Testimony
under Rules 404(b) and 403
We generally review the district court's decision to admit evidence
of bad acts under Rules 404(b) and 403 for abuse of discretion. Cook
v. American Steamship Co., 53 F.2d 733, 742 (6th Cir. 1995); United
States v. Mark, 943 F.2d 444, 447 (4th Cir. 1991). Rule 404(b) deci-
sions are not reversed unless they are "arbitrary and irrational."
United States v. Powers, 59 F.3d 1460, 1464-65 (4th Cir. 1995), cert.
denied, ___ U.S. ___, 116 S. Ct. 784 (1996). Where a party, however,
fails to object to the admission of evidence, Rule 103(d) of the Fed-
eral Rules of Evidence requires that we review the admission for plain
error. Cook, 53 F.3d at 742; United States v. Brown, 921 F.2d 1304,
1308 n.4 (D.C. Cir. 1990); Fed.R.Evid. 103(d).
As previously explained, the jury watched video tapes of the drug
deal as well as listened to audio recordings. Transcripts of the audio
recordings were admitted into evidence for the jury to review. In addi-
tion to the transcripts, an agent testified as to what the tapes con-
tained. Chin has contended that certain testimony of the agent
summarizing and explaining what transpired in the tape played to the
jury violated Rules 404(b) and 403 of the Federal Rules of Evidence.
In the challenged testimony the agent related what was occurring on
the tapes during the drug transaction. At one point, the agent
described what he and Chin were then discussing. He testified that
Chin had indicated that he engaged in murder-for-hire and claimed
that "his people" were responsible for a particular murder.
Chin's first contention is that Rule 404(b)'s exclusion of evidence
of other crimes introduced to demonstrate bad character precluded the
5
testimony.4 Second, even if the testimony was admissible under one
of Rule 404(b)'s limited exceptions, he has argued that the testimony
violated Rule 403's mandate that its probative value should not be
outweighed by unfair prejudice.5
Chin failed to preserve properly his objection to the contested testi-
mony by making a "timely objection . . . stating the specific ground
of the objection" as required by the Federal Rules of Evidence.
Fed.R.Evid. 103(a)(1). When the prosecutor asked if the agent testify-
ing knew the name of the individual whom Chin's people had alleg-
edly killed, the district judge interrupted and asked "[w]hat difference
does it make?" Only then did Chin's counsel object on the grounds
of relevance. When the prosecutor explained the relevance and con-
tinued with his questioning, Chin's counsel did not renew his objec-
tion or raise any other grounds for his objection. Thus, Chin's counsel
never obtained a ruling from the district judge on whether the testi-
mony was relevant, much less admissible under Rules 404(b) and
403. We, therefore, review the admission of the murder testimony for
plain error.
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4 Rule 404(b) provides that:
Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in confor-
mity therewith. It may, however, be admissible for other pur-
poses, such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident,
provided that upon request by the accused, the prosecution in a
criminal case shall provide reasonable notice in advance of trial,
or during trial if the court excuses pretrial notice on good cause
shown, of the general nature of any such evidence it intends to
introduce at trial.
5 Rule 403 provides that "[a]lthough relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence."
6
1. Rule 404(b)
We find that there was no plain error as to Rule 404(b) because
Rule 404(b)'s exclusion of bad acts does not pertain to the contested
testimony. The majority of circuits have held that Rule 404(b) applies
only to limits on the admission of other acts extrinsic to the one
charged. Under that rule, acts intrinsic to the alleged crime do not fall
under Rule 404(b)'s limitations on admissible evidence. United States
v. Barnes, 49 F.3d 1144, 1149 (6th Cir. 1995); United States v.
Lambert, 995 F.2d 1006, 1007 (10th Cir.), cert. denied, ___ U.S. ___,
114 S. Ct. 333 (1993); United States v. Allen , 960 F.2d 1055, 1058
(D.C. Cir.) (per curiam), cert. denied, 506 U.S. 881 (1992); United
States v. Roberts, 933 F.2d 517, 520 (7th Cir. 1991); United States v.
Williams, 900 F.2d 823, 825 (5th Cir. 1990); United States v. Foster,
889 F.2d 1049, 1054-55 (11th Cir. 1989); United States v. Towne, 870
F.2d 880, 886 (2d Cir.), cert. denied, 490 U.S. 1101 (1989). While the
Fourth Circuit has not explicitly stated, as a general matter, that Rule
404(b) does not apply to intrinsic acts, we have indicated that we
agree with much of the reasoning behind the rule. See, e.g., United
States v. Kennedy, 32 F.2d 876 (4th Cir. 1994) (holding that Rule
404(b) is not applicable to evidence of crimes that arose out of the
same series of transactions as the charged offense or that are neces-
sary to complete story of the charged crime); United States v. Dozie,
27 F.3d 95, 96-97 (4th Cir. 1994) (per curiam) (holding that Rule
404(b) was not applicable to evidence of dismissed counts, which had
alleged the filing of fraudulent insurance claims, that fell within same
time period of charged conspiracy to commit mail fraud); see also
Fed.R.Evid. 404(b) advisory committee's note on a 1991 amendment
(recognizing distinction between intrinsic and extrinsic evidence). We
agree with the other circuits that where testimony is admitted as to
acts intrinsic to the crime charged, and is not admitted solely to dem-
onstrate bad character, it is admissible. Allen , 960 F.2d at 1058.
Other criminal acts are intrinsic when they are"inextricably inter-
twined or both acts are part of a single criminal episode or the other
acts were necessary preliminaries to the crime charged." Lambert, 995
F.2d at 1007. The testimony about contract murder fits into the intrin-
sic category of evidence. The statements regarding murder were made
during an exchange of heroin for cash. Thus, it was an intrinsic part
of a drug deal and the witness' account of the context and circum-
7
stances surrounding the deal. See, e.g. , Allen, 960 F.2d at 1058.
Indeed, Chin does not object to the transcript of his discussion with
the agent. He only objects to the agent's testimony describing the con-
versation.
Furthermore, the testimony was not admitted solely to demonstrate
Chin's bad character. Killing people was an integral part of Chin's
criminal enterprise, including his heroin business, and the threat of
killing viewed as necessary to ensure deals were completed without
problems arising. As one of the agents testified, Chin's prior threat to
kill the shop owner was in keeping with the nature of the heroin busi-
ness. In summary, the challenged testimony emphasized the violent
and dangerous context of a heroin deal, and was inextricably inter-
twined with Chin's crime of selling heroin and conducting an ongoing
criminal enterprise. Thus, Rule 404(b) does not apply to the chal-
lenged testimony.
2. Rule 403
Evidence admissible under Rule 404(b) must still meet Rule 403's
requirement that its prejudicial value not outweigh its probative value.
Lambert, 995 F.2d at 1008. Because of Chin's failure to object on
Rule 403 grounds, we review the admission of the testimony for plain
error. Evidence of a murder not charged is extremely prejudicial.
However, as explained, the murder demonstrated the extent to which
Chin was willing to go, or at least threaten, in order to ensure that the
heroin deal and any future deals went smoothly. The murder business
Chin implied was part-and-parcel of his criminal enterprise. Prior tes-
timony regarding Chin's threat to kill the shop owner bolstered the
relevance of murder and murder threats to Chin's heroin business.
Furthermore, any error was at most harmless error. The evidence of
Chin's guilt provided in government videotapes and audio recordings
was overwhelming. For the foregoing reasons, we find no plain error.6
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6 At oral argument, Chin's counsel also argued that the agent's testi-
mony misdescribed what was actually in the transcripts. The transcripts
were in evidence, thus the jury could judge for itself if there were any
discrepancies. Furthermore, counsel made no objections on that basis at
trial.
8
B. Importation Count
Chin also has argued that there was insufficient evidence to convict
him as an aider and abettor in the importation of heroin. The court
must uphold a conviction if "after 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) (emphasis in original).
Chin was charged as both a principal and aider and abettor in a
scheme to import heroin. After Chin moved for a directed verdict on
the importation count, the trial judge ruled that the charge could go
to the jury only on the theory that Chin aided and abetted in the
importation of heroin. In order to prove aiding and abetting the impor-
tation of drugs, the government must demonstrate (1) that Chin asso-
ciated himself with the importation venture; and (2) that he sought by
his actions to make it succeed. United States v. Richeson, 825 F.2d
17, 21 (4th Cir. 1987). The government may demonstrate association
by proof of participation at some stage accompanied by knowledge of
the result and intent to bring about that result. Id. The only evidence
that Chin aided and abetted the importation of heroin was that the her-
oin he sold was imported and still had its original purity, not having
yet been diluted for sale on the streets. That evidence consisted of (1)
the purity of heroin; and (2) the heroin's packaging bearing the "dou-
ble uoglobe" symbol of the Shan Army. At oral argument, the govern-
ment essentially conceded the insufficiency of its evidence to prove
that Chin aided and abetted the importation of heroin beyond a rea-
sonable doubt. We agree and find that the evidence was insufficient.
Standing alone, the purity of heroin and packaging indicating a for-
eign source country are simply insufficient to prove importation or
aiding and abetting importation.
Nonetheless, the government has contended that the sentence
would not be lessened by a striking of the importation count. We are
not convinced that the sentence should not be lessened and, conse-
quently, remand for resentencing. The district court may or may not
9
conclude that the vacation of the conviction as to Count VI warrants
a reduction of Chin's sentence.
Accordingly, the judgment is
AFFIRMED IN PART, VACATED IN PART, AND REMANDED IN
PART.
10