United States v. Frederick Arayatanon ( 2020 )

Case: 19-60233 Document: 00515637733 Page: 1 Date Filed: 11/13/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 13, 2020
No. 19-60233 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Frederick Arayatanon,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:18-CR-52-1
Before Dennis, Higginson, and Willett, Circuit Judges.
Stephen A. Higginson, Circuit Judge:
Frederick Arayatanon was convicted by a jury of conspiracy to possess
with intent to distribute 500 grams or more of methamphetamine under 21
U.S.C. § 846 and sentenced as a career offender to life in prison. Arayatanon
appeals his conviction and sentence. We AFFIRM.
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I.
Arayatanon was charged with a single-count indictment for conspiracy
to possess with intent to distribute 500 grams or more of methamphetamine
in violation of 21 U.S.C. § 846. 1
At trial, the government presented evidence that, beginning in the
summer of 2017, Arayatanon entered into an agreement to sell drugs with
two coconspirators, Tuyen Ngoc Le and Demetrius Darnell Mason. 2
Arayatanon shipped packages of drugs from California to Le’s address in
Biloxi, Mississippi. The packages originally contained marijuana, but later
also included methamphetamine. Arayatanon would send the packages
overnight to Mississippi through FedEx to Le, who provided the packages to
Mason. Mason would pay Le, and Le in turn deposited cash in Arayatanon’s
Wells Fargo bank account. The deposits were made at various Wells Fargo
branches in Mississippi, which Arayatanon could then access through Wells
Fargo branches and ATMs in California. Nine packages were sent in this
fashion from July through November 2017.
In November 2017, DEA agents received reports that large amounts
of marijuana were being distributed from Le’s Biloxi address. While
surveilling the house, DEA agents observed the delivery of the last of these
packages to Le’s address on November 29, 2017, and Le subsequently placed
the package in Mason’s car. Following a car chase, officers apprehended
Mason and recovered the package containing 1 pound of marijuana and 882
grams (or nearly 2 pounds) of methamphetamine. After executing a search
warrant, agents found $9,500 in cash in Le’s purse, and Le was subsequently
arrested. Using records obtained from Le’s phone, officers identified
1
The underlying offense, possession with intent to distribute 500 grams or more
of methamphetamine, violates 21 U.S.C. § 841(a)(1), (b)(1)(A).
2
Both Le and Mason pleaded guilty with cooperation agreements prior to
Arayatanon’s trial.
2
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Arayatanon and subsequently arrested him while he was crossing the border
from Mexico to the United States.
While Arayatanon and his coconspirators never met in person, they
had communicated by phone, including through WhatsApp messages and
FaceTime. Arayatanon used various other aliases, and was known to his
Mississippi coconspirators primarily as “Khoi.” 3 All of these aliases were
connected to Arayatanon using phone and bank account records, and
testimony from Le, Mason, and the agents who conducted the investigation.
The government also played at trial audio recordings of calls Arayatanon
made while he was in custody. These calls included references to Arayatanon
as “Khoi.” Another call included a conversation in which Arayatanon says
he sent packages “once or twice.”
Arayatanon did not testify and did not present any evidence. At the
close of the three-day trial, the jury returned a unanimous guilty verdict.
Arayatanon was sentenced to life in prison.
II.
On appeal, Arayatanon argues that during his trial, the district court
abused its discretion by excusing two case agents from sequestration under
Federal Rule of Evidence 615, and by admitting jailhouse telephone calls that
he argues undermined his presumption of innocence before the jury.
Arayatanon also asserts that the district court erred at sentencing in
calculating his offense level based on an incorrect drug quantity, imposing a
two-level enhancement because the drugs were imported, and applying the
career offender enhancement. Finding no error, we affirm.
3
He was identified in Le’s phone as “Khoi Cali.”
3
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A.
First, Arayatanon asserts that the district court erred in exempting
both of the government’s case agents from sequestration pursuant to Federal
Rule of Evidence 615.
We review a district court’s compliance with Rule 615 for an abuse of
discretion, and we will reverse only if Arayatanon demonstrates prejudice.
United States v. Green, 324 F.3d 375, 380 (5th Cir. 2003). Rule 615 provides
that at the request of a party, “the court must order witnesses excluded so
that they cannot hear other witnesses’ testimony.” Fed. R. Evid. 615.
However, “this rule does not authorize excluding . . . a person whose
presence a party shows to be essential to presenting the party’s claim or
defense.” Fed. R. Evid. 615(c). While district judges are afforded broad
discretion in its application, they must remain mindful of the purpose behind
the rule. “Its main purpose is to aid in detecting testimony that is tailored to
that of other witnesses and is less than candid.” United States v. Wylie, 919
F.2d 969, 976 (5th Cir. 1990).
At the beginning of trial, Arayatanon invoked Rule 615 and requested
that one of the government’s two agents be sequestered because both agents
were identified as possible witnesses. The government responded that
because both agents had acted as the case agents at different times, each was
necessary in the presentation of its case. Based on the government’s
representation, the district court overruled Arayatanon’s objection and
permitted both agents to stay. At trial, only one of the case agents testified.
Arayatanon has made no showing to overcome the government’s
representation that both agents were essential. To the extent Arayatanon
asserts that he had the right to have one of the case agents sequestered, this
argument is unavailing. Rule 615 does not limit the district court’s discretion
to excuse only one case agent from sequestration. See United States v.
Alvarado, 647 F.2d 537, 540 (5th Cir. 1981) (“[T]he decision as to how many
will be excused from sequestration is just as discretionary with the trial judge
4
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as who will be excused.”); see also United States v. Payan, 992 F.2d 1387, 1394
(5th Cir. 1993) (finding no reversible error where district court permitted two
case agents to both remain and testify). In any event, Arayatanon has not
shown the resulting prejudice that is required to warrant reversal of his
conviction.
B.
Arayatanon next contends that the district court violated his due
process rights by admitting the jailhouse telephone calls. He argues that
because the calls indicated to the jury that he was incarcerated, they
undermined his presumption of innocence.
We review “a district court’s evidentiary rulings for abuse of
discretion, subject to harmless error review.” United States v. Isiwele, 635
F.3d 196, 199 (5th Cir. 2011). A district court “abuses its discretion when its
ruling is based on an erroneous view of the law or a clearly erroneous
assessment of the evidence.” United States v. Ebron, 683 F.3d 105, 133 (5th
Cir. 2012) (internal quotation marks and citation omitted).
Here, the government sought to play four telephone calls Arayatanon
had with other people while he was incarcerated prior to trial. The
government introduced these calls to show Arayatanon’s reluctance to be
referred to by his nickname “Khoi,” as he was known to his Mississippi
coconspirators and identified in Le’s phone. Three of the recordings refer to
Arayatanon as “Khoi,” despite Arayatanon’s cautions to refer to him only as
“Fred.” In one of those calls, Arayatanon also refers to his inmate number.
The fourth call does not reference “Khoi” but includes a conversation where
Arayatanon appears to admit sending packages “once or twice.” 4
4
The government emphasized all four of the jail calls in its closing statement,
including even replaying this last call. Arayatanon neither objected to this at trial nor on
appeal. Rather, he argues only that the admission of the calls was prejudicial for the sole
reason that the references to being in custody “undermined his presumption of
5
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During a bench conference, the government offered to authenticate
the jail calls outside the jury’s presence to prevent the jury from learning
Arayatanon was incarcerated. However, the district court declined to do so
because the “credibility of those tape recordings are a matter that the jury
will have to consider,” including how the recordings were made and that they
were not edited or tampered with. Arayatanon declined to stipulate to the
recordings’ authenticity.
The district court permitted the authentication to proceed because
“the fact that [Arayatanon] may have been in custody at the time that he
made certain phone calls” was not “a matter that should be kept a secret,”
and was not “in and of itself . . . prejudicial.” The district court emphasized
the precautions it took to ensure that Arayatanon was not presented in chains
or a prison jumpsuit, and to conceal other security measures so that the jury
would “not get the impression that any individual on trial is some type of
dangerous criminal.” Notably, too, the district court offered to provide a
cautionary instruction “about the mere fact [Arayatanon] may have been at
one time or maybe even now [is] in custody,” which Arayatanon refused.
The government subsequently elicited testimony from a correctional officer
who testified how the inmates’ calls were recorded and identified, including
Arayatanon’s calls. The calls were then played for the jury.
On appeal, Arayatanon argues that the district court’s admission of
the jail calls undermined his presumption of innocence. His sole argument is
that their implication to the jury that he was in custody was akin to as if he
“had been shackled during trial.” Not so.
“The presumption of innocence, although not articulated in the
Constitution, is a basic component of a fair trial under our system of criminal
justice.” Estelle v. Williams, 425 U.S. 501, 503 (1976). For this reason,
innocence.” Neither party addresses the government’s closing statement in their briefing
before us.
6
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“visible” restraints such as shackles are inherently prejudicial and are
prohibited absent a justifiable state interest such as courtroom safety. Deck
v. Missouri, 544 U.S. 622, 629 (2005); United States v. Hope, 102 F.3d 114,
117–18 (5th Cir. 1996). Similarly, the Supreme Court prohibits requiring a
defendant to appear before a jury in prison clothing because “the constant
reminder of the accused’s condition implicit in such distinctive, identifiable
attire may affect a juror’s judgment” and is “likely to be a continuing
influence throughout the trial.” Williams, 425 U.S. at 504–05.
The admission of Arayatanon’s jail calls did not pose the same
constant and visible risk of prejudice as shackling, prison garb or other
external signs of a defendant’s incarceration or perceived threat to the
community at large. 5 While Arayatanon may have been somewhat prejudiced
by the fact that the jury learned the calls were recorded while he was in jail,
we conclude that the reference to Arayatanon’s incarceration, as revealed in
the presentation of the jail calls, was not unfairly prejudicial. We do not hold
that admission of recorded jail telephone calls can never be so unfairly
prejudicial that a due process violation might result. But this is not such a
case.
The district court “may exclude relevant evidence if its probative
value is substantially outweighed by a danger of . . . unfair prejudice.” Fed.
R. Evid. 403. “A district court’s ruling regarding Rule 403 is reviewed
‘with an especially high level of deference to the district court, with reversal
called for only rarely and only when there has been a clear abuse of
discretion.’” United States v. Lewis, 796 F.3d 543, 545 (5th Cir. 2015)
(quoting United States v. Dillon, 532 F.3d 379, 387 (5th Cir. 2008)).
5
See, e.g., United States v. Nicholson, 846 F.2d 277, 278–79 (5th Cir. 1988)
(plainclothes deputies seated next to a defendant with “a history of violent and unruly
behavior” was not unduly prejudicial); Holbrook v. Flynn, 475 U.S. 560, 569–72 (1986)
(uniformed officers seated behind defendant is not inherently prejudicial to undermine a
defendant’s right to a fair trial).
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Arayatanon did not argue at trial, nor on appeal here, that these calls were
not relevant or lacked probative value. 6 The district court did not abuse its
discretion because the fact that Arayatanon had been in custody before trial
was not unfairly prejudicial under these circumstances. See also United States
v. Johnson, 624 F.3d 815, 821–22 (7th Cir. 2010) (distinguishing defendant’s
argument that the admission of jail calls was akin to a defendant wearing
prison attire at trial under Estelle v. Williams, 425 U.S. 501 (1976), and finding
no abuse of discretion in admitting the tapes under Rule 403).
Moreover, Arayatanon declined a limiting instruction to mitigate any
lingering prejudice. Even in situations where the “risk of prejudice is high,”
the Supreme Court has held that “less drastic measures, such as limiting
instructions, often will suffice to cure any risk of prejudice.” Zafiro v. United
States, 506 U.S. 534, 539 (1993); accord United States v. Williams, 620 F.3d
483, 492 (5th Cir. 2010). Consequently, the district court did not err in
admitting the jail calls.
C.
Arayatanon asserts that the district court erred at sentencing in
determining the quantity of methamphetamine attributable to him for the
purpose of calculating his base offense level under U.S.S.G. § 2D1.1(c). The
PSR held Arayatanon responsible for 882 grams (nearly 2 pounds) of
methamphetamine that were seized on November 29, 2017, plus 9 pounds of
methamphetamine based on the FedEx shipments Arayatanon sent to
Mississippi from September through November 2017. Arayatanon maintains
that the government’s evidence at trial contained conflicting evidence as to
6
At trial, Arayatanon objected to the admission of the recordings for lack of
foundation that it was “an exact copy of . . . the original.” He further objected to the
admission of the transcripts as “cumulative” and creating an “undue influence . . . on that
particular piece of proof” for the jury. The district court overruled both objections, but
gave a limiting instruction as to the purpose of the transcripts. Arayatanon does not
challenge these rulings on appeal.
8
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when Arayatanon sent the first package, and which packages contained
methamphetamine instead of just marijuana. Consequently, he argues that
the evidence established that he was responsible only for 9 pounds of
methamphetamine instead of 11.
We review the district court’s determination of drug quantity for clear
error and will affirm the finding as long as it is “plausible in light of the record
as a whole.” United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005)
(internal quotation marks and citation omitted). In determining drug
quantities for sentencing purposes, the district court may rely on any relevant
evidence which “‘has sufficient indicia of reliability to support its probable
accuracy.’” United States v. Gomez-Alvarez, 781 F.3d 787, 796 (5th Cir. 2015)
(quoting U.S.S.G. § 6A1.3(a)). A defendant who takes issue with facts
presented in the PSR has the burden of demonstrating “that the information
is materially untrue, inaccurate or unreliable.” Id. (internal quotation marks
and citation omitted). A defendant’s mere objections at sentencing do not
constitute competent rebuttal evidence. United States v. Parker, 133 F.3d
322, 329 (5th Cir. 1998).
Here, the drug-quantity determination in the PSR is sufficiently
reliable even if based on a coconspirator’s “imprecise” testimony, especially
absent any competent rebuttal evidence from Arayatanon to refute the 11
pounds of methamphetamine attributed to him in the PSR. See United States
v. Alford, 142 F.3d 825, 832 (5th Cir. 1998). Moreover, contrary to
Arayatanon’s bare assertions on appeal, both the PSR and evidence
presented at trial support this drug-quantity determination. In light of the
record as a whole, the district court’s factual finding as to the quantity of
methamphetamine was more than plausible. See id.; Betancourt, 422 F.3d at
246. Thus, the district court did not err in relying on the PSR, as
corroborated by the court’s recollection of the evidence presented at trial,
and adopting the PSR’s drug-quantity determination.
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D.
Arayatanon next challenges the application of the two-level
enhancement under U.S.S.G. § 2D1.1(b)(5), contending that the evidence
was insufficient to establish that the methamphetamine was imported. We
review the district court’s factual determination that § 2D1.1(b)(5) applies
for clear error. United States v. Serfass, 684 F.3d 548, 553–54 (5th Cir. 2012).
Section 2D1.1(b)(5) provides for a two-level enhancement if the
offense involved the importation of methamphetamine. U.S.S.G.
§ 2D1.1(b)(5). “The government must prove the facts underlying a
sentencing enhancement by a preponderance of the evidence.” Serfass, 684
F.3d at 553. The enhancement “applies when ‘the offense involved the
importation of . . . methamphetamine,’ even if the defendant did not know
that the methamphetamine was imported.” Id. at 554 (alteration in original)
(quoting U.S.S.G. § 2D1.1(b)(5)).
In support of this enhancement, the PSR stated that the
methamphetamine seized on November 29, 2017, was 100% pure. DEA
agents advised the probation officer that the methamphetamine “was likely
imported into the United States” because “there are no known labs in the
United States that can manufacture methamphetamine of this purity level.”
At sentencing, the district court also noted that “[Arayatanon] or individuals
that were associated with [him] [made] trips to Mexico.”
On appeal, Arayatanon argues that the district court erred because
“the PSR lacks any discussion of importation aside from [his] travel to
Mexico and the purity level.” However, on this record, the district court
could plausibly infer, by a preponderance of evidence, that the
methamphetamine was imported. See Serfass, 684 F.3d at 550, 553.
Arayatanon’s principal argument on appeal that “[a] Mexican cartel could
have manufactured the methamphetamine within the United States . . . with
no importation required” is speculation that does not rebut the PSR. See,
e.g., United States v. Rodriguez, 602 F.3d 346, 363 (5th Cir. 2010) (“Because
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no testimony or other evidence was submitted to rebut the information in the
PSR, the district court was free to adopt the PSR’s findings.”). Thus, the
district court did not clearly err in applying the § 2D1.1(b)(5) enhancement.
E.
Finally, Arayatanon contends that the district court erred in
sentencing him as a career offender under U.S.S.G. § 4B1.1. Specifically, he
argues that the district court erred in determining that there was reliable
evidence to establish the existence of the requisite prior convictions.
We review the district court’s application of the Sentencing
Guidelines de novo and review its factual findings for clear error. Gomez-
Alvarez, 781 F.3d at 791. Clear error review applies where, as here, the
defendant challenges “a district court’s conclusion that evidence submitted
to prove the fact of a prior conviction bears ‘sufficient indicia of reliability.’”
United States v. Ortega-Calderon, 814 F.3d 757, 759 (5th Cir. 2016) (quoting
U.S.S.G. § 6A1.3(a)); id. at 760 (distinguishing between the “legal inquiry”
of whether a specific type of conviction qualifies for purposes of applying a
sentencing enhancement and “the factual question of whether a defendant
has been convicted—period”). “There is no clear error if the sentencing
court’s finding is plausible in light of the record as a whole.” United States v.
Cisneros–Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). This court will reverse
on clear error review only if it is left with a “definite and firm conviction that
a mistake has been committed” based on the entire evidence. United States
v. Rose, 449 F.3d 627, 633 (5th Cir. 2006) (internal quotation marks and
citation omitted).
The career offender enhancement applies if, inter alia, “the defendant
has at least two prior felony convictions of . . . a controlled substance
offense.” U.S.S.G. § 4B1.1(a). The PSR determined that Arayatanon
qualified as a career offender under § 4B1.1 based on two prior controlled
substance convictions in California, first in 2009 and then again in 2013, both
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for possession of a controlled substance (methamphetamine) with intent to
sell, in violation of California Health & Safety Code § 11378. 7
The PSR was initially prepared based on the criminal complaints
received from the Clerk of Court in California and conviction information
obtained from the Clerk’s official website. At Arayatanon’s request,
sentencing was continued to permit defense counsel additional time to
investigate additional documentation—including judgments—to rebut the
PSR.
The probation office subsequently supplemented the PSR. While no
judgment or additional documents directly from the 2009 conviction were
produced, the additional documents from the 2013 conviction repeatedly
referenced the 2009 conviction, including an amended charging document, a
signed admission from Arayatanon that he had been convicted in 2009 of
possession of a controlled substance with intent to sell, and a signed guilty
plea stating both that Arayatanon was pleading guilty in 2013 to possession of
a controlled substance with intent to sell and that he had been previously
convicted in 2009 of the same charge. An abstract of judgment for
Arayatanon’s 2013 conviction was also included. At sentencing for the
instant offense, Arayatanon presented no additional evidence, and the
district court adopted the PSR’s conclusions as to the prior convictions and
applied the career offender enhancement.
The district court did not clearly err in concluding that the prior
California convictions occurred. To start, Arayatanon’s argument that the
2013 abstract of judgment is unreliable based on United States v. Gutierrez-
Ramirez, 405 F.3d 352 (5th Cir. 2005) is misplaced. That case determined
that it was error to exclusively rely on a California abstract of judgment to
7
It is undisputed that a conviction under this statute qualifies as a predicate
controlled substance offense. See United States v. Olson, 849 F.3d 230, 232 (5th Cir. 2017)
(per curiam).
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determine whether the defendant’s prior conviction qualified as a drug
trafficking offense, not whether it was sufficiently reliable to establish that a
conviction occurred. See Gutierrez-Ramirez, 405 F.3d at 358–59; see also
United States v. Moreno-Florean, 542 F.3d 445, 449 n.1 (5th Cir. 2008)
(“California abstracts of judgment have sufficient indicia of reliability to
support their probable accuracy such that the documents can be used as
evidence of a prior conviction.”). 8
Moreover, contrary to Arayatanon’s assertion that the documents
contain “inconsistencies” as to how Arayatanon was sentenced, they are
internally consistent regarding the fact of the 2009 and 2013 convictions.
While the documents are not judgments, they contain “a significant amount
of detail” and “strongly corroborate one another,” including referencing the
dates, case numbers, and charges for the prior 2009 and 2013 convictions.
Ortega-Calderon, 814 F.3d at 762. Nor has Arayatanon offered evidence to
rebut the reliability of the documents and his signed admissions, or denied
that he was convicted. See id. (“We have previously refused to find evidence
of a prior conviction to be unreliable when the defendant has not come
forward with contrary proof, and we do so again here.”). Consequently, the
district court did not commit clear error in relying on these documents to
8
Gutierrez-Ramirez and Moreno-Florean involved sentencing enhancements under
U.S.S.G. § 2L1.2, which increases the offense level for a conviction of unlawful reentry if
the defendant was previously convicted of a “drug trafficking offense” or “crime of
violence.” Gutierrez-Ramirez, 405 F.3d at 353–54; Moreno-Florean, 542 F.3d at 449.
Because the qualifying prior convictions in § 2L1.2 and § 4B1.2(b) are defined in
substantially the same way, “cases discussing these definitions are cited interchangeably.”
United States v. Pillado-Chaparro, 543 F.3d 202, 205 (5th Cir. 2008) (per curiam); accord
United States v. Mendez-Henriquez, 847 F.3d 214, 221 (5th Cir. 2017) (“[O]ur court’s
interpretation of § 4B1.2 informs our interpretation of § 2L1.2, given the two Guidelines’
identical language and closely aligned purposes.”). The same applies here in considering
whether the documents used to establish proof of a prior conviction contain “sufficient
indicia of reliability to support its accuracy” to apply a sentencing enhancement. U.S.S.G.
§ 6A1.3(a).
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determine Arayatanon was a career offender under § 4B1.1. See Ortega-
Calderon, 814 F.3d at 762–63.
III.
For the forgoing reasons, we AFFIRM Arayatanon’s conviction and
sentence.
14