United States v. Phosavan Khamnivong ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 4 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-30167
Plaintiff-Appellee, D.C. No.
3:13-cr-00092-RRB-2
v.
PHOSAVAN KHAMNIVONG, AKA P.K., MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Argued and Submitted July 14, 2017
Seattle, Washington
Before: FARRIS, MURPHY,** and NGUYEN, Circuit Judges.
Defendant Phosavan Khamnivong appeals his convictions following a jury
trial for one count of conspiracy to distribute and possession with intent to
distribute controlled substances under 21 U.S.C. §§ 841, 846 (Count 1); two counts
of kidnapping under 18 U.S.C. § 1201(a)(1) (Counts 2 and 3); one count of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Michael R. Murphy, United States Circuit Judge for
the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
possessing and brandishing a firearm in furtherance of a drug trafficking crime
under 18 U.S.C. § 924(c)(1)(A) (Count 4); and one count of possessing and
brandishing a firearm in furtherance of a crime of violence under 18 U.S.C.
§ 924(c)(1)(A) (Count 5). We reverse Khamnivong’s conviction on Count 5,
affirm his convictions on all remaining counts, and remand for resentencing.
1. The district court did not plainly err in failing to give a specific
unanimity instruction for the single conspiracy charged in Count 1 of the
indictment. United States v. Lapier, 796 F.3d 1090, 1096 (9th Cir. 2015)
(reviewing failure to give a jury instruction for plain error where the defendant did
not request such an instruction in the trial court). The district court described the
charged conspiracy and listed the names of the co-conspirators to the jury. It then
instructed the jury to return a not guilty verdict if the conspiracy charged in the
indictment was not proven by the government, even if the jury found some other
conspiracy existed, and that its verdict must be unanimous. Thus, evidence of
other uncharged conspiracies presented during the trial did not give rise to “a
genuine possibility that different jurors voted to convict on the basis of different
conspiracies.” Id. at 1093.
2. Reviewing Khamnivong’s motion for acquittal de novo, and viewing
the evidence in the light most favorable to the government, United States v.
Somsamouth, 352 F.3d 1271, 1274–75 (9th Cir. 2003), there was ample evidence
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to support Khamnivong’s convictions for kidnapping (Counts 2 and 3) and use of a
firearm in furtherance of a drug trafficking crime (Count 4). Notably,
Khamnivong does not argue that the evidence was insufficient to support a finding
that he was directly responsible for the conduct charged in each of these counts.
Although the jury was instructed on the Pinkerton theory of liability, Pinkerton v.
United States, 328 U.S. 640, 646–47 (1946), there was overwhelming evidence
that Khamnivong was directly involved in the kidnapping and that he brandished a
firearm in the course of the kidnapping. Thus, it is likely that he was convicted as
a principal, not as a co-conspirator. Even assuming that the jury relied on a
Pinkerton theory of liability, the evidence was still more than sufficient to support
Khamnivong’s convictions. The jury heard evidence that the co-conspirators
brutally beat, pistol whipped, and sexually assaulted the victims with a hot curling
iron because of drug debts owed to Khamnivong. Any money recovered could
have been used to fund the co-conspirators’ ongoing drug trafficking after they had
lost significant amounts of money from losing two drug shipments. The jury also
heard evidence that a co-conspirator used the video of the brutal sexual assault as
an enforcement tool, showing the video to others and warning them, “[t]his is what
happens when people owe me money.” Thus, there was sufficient evidence that
the kidnappings and use of a firearm were in furtherance of the drug conspiracy.
See id.
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3. As to Count 5, the district court plainly erred, and Khamnivong’s
substantial rights were affected, when the district court instructed the jury that
kidnapping was a crime of violence as a matter of law. See United States v. Conti,
804 F.3d 977, 981 (9th Cir. 2015) (applying plain error standard of review where
party did not object to jury instruction in the district court). In United States v.
Davis, 139 S. Ct. 2319, 2336 (2019), the Supreme Court held that the residual
clause, 18 U.S.C. § 924(c)(3)(B), which defines a crime of violence as an offense
that “involves a substantial risk that physical force against the person or property
of another may be used in the course of committing the offense,” was
unconstitutionally vague. The government does not contest that kidnapping is not
a crime of violence under the remaining force clause. See Delgado-Hernandez v.
Holder, 697 F.3d 1125, 1130 (9th Cir. 2012) (per curiam) (“The federal
kidnapping statute has no force requirement . . . .”). We thus reverse
Khamnivong’s conviction on Count 5, possessing and brandishing a firearm in
furtherance of a crime of violence under 18 U.S.C. § 924(c)(1)(a).1
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
FOR RESENTENCING.
1
Because we reverse his conviction on Count 5, we need not address
Khamnivong’s remaining arguments as to this count.
4