United States v. To , 144 F.3d 737 ( 1998 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________________
No. 96-3045
________________________________
D.C. Docket No. 94-293-Cr-T-17E
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CONGHAU HUU TO a.k.a. Tigo, et al.,
Defendants-Appellants.
_________________________________________________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________________________________________________
(June 23, 1998)
Before HATCHETT, Chief Judge, EDMONDSON and COX, Circuit Judges.
HATCHETT, Chief Judge:
In this complex criminal conspiracy case, we affirm the convictions and sentences
of four members of a violent gang that committed a series of home and business robberies
targeting Asian-American restaurant owners and managers in the Tampa, Florida area.
We reverse the convictions of one alleged gang member because the evidence against him
was insufficient.
I. FACTS
On April 23, 1994, Thanh Xuan Nguyen (T.X.) and Tung Van Nguyen (Tony)
went to the Saigon Palace restaurant, where they met their roommate, Tuan Duc Phung
(Phung), and a number of other individuals attending a birthday party. The birthday party
was for a friend of Phung’s named Conghau Huu To (To). Before T.X. and Tony arrived
at the Saigon Palace, To and An Thanh Le began plotting a scheme to rob the manager of
the Big Easy restaurant, Khanh Quoc Le, who happened to be eating at the Saigon Palace.
After some preliminary plotting, An Thanh Le left the Saigon Palace to obtain weapons
and more manpower. An Thanh Le later returned to the Saigon Palace with weapons and
two cohorts, Tam Minh Le and Dung Quoc Nguyen.
Soon after An Thanh Le returned to the Saigon Palace, Phung approached T.X.
and Tony and told them to go back to their room at the Rembrandt Apartment complex,
so that he could “take care of some business.” After T.X. and Tony complied with the
request, Phung, To and the others spoke further about the planned robbery. Ultimately,
they decided that Phung, Tam Minh Le and Dung Quoc Nguyen should actually commit
the robbery. Shortly thereafter, when Khanh Quoc Le left the restaurant, Phung, Dung
2
Quoc Nguyen and Tam Minh Le followed and attacked him. Tam Minh Le struggled
with Khanh Quoc Le, shooting him twice. Tam Minh Le then shot Khanh Quoc Le a
third time, directly in the chest, before calmly walking back to the Saigon Palace, his shirt
covered with blood, and getting a ride home.1 Tam Minh Le later confessed to T.X. about
the murder and also admitted to police that he killed Khanh Quoc Le on orders from
others. The murder weapon eventually wound up in To’s possession, who then gave it to
Quang Ming Tran as collateral for a gambling debt.
Soon after the murder, T.X. and Tony began committing a series of home invasion
robberies with An Thanh Le. On at least one occasion, May 13, 1994, Tam Minh Le also
participated in a home invasion robbery with T.X., Tony and An Thanh Le. The
robberies -- often of Asian-American restauranteurs -- did not generate much money.
Frustrated with the minimal robbery proceeds, T.X. and Tony eventually complained to
Phung. Phung suggested that T.X. and Tony meet with To to discuss the possibility of
committing robberies with him. T.X. and Tony accepted Phung’s suggestion and
arranged for a meeting with To. During the meeting, To told T.X. and Tony that they
should not deal with An Thanh Le anymore because To suspected An Thanh Le of
conspiring with the Federal Bureau of Investigation (FBI). To also told T.X. and Tony
about Hai Van Nguyen, who had committed robberies with To in the past.
1
When asked at trial about any money that might have been taken from Khanh
Quoc Le during the attempted robbery, T.X. testified that An Thanh Le told him that
Khanh Quoc Le did not have any money.
3
On May 23, 1994, To, T.X. and Tony decided to rob the manager of a 7-Eleven
store where Tony had previously worked. The three men followed the manager, Torboon
Gayanont, from the 7-Eleven to the drive-through lane of a bank. As Gayanont waited to
make a deposit, To ran up to the car and pointed a gun at Gayanont’s head. To then
threatened to kill Gayanont if he did not hand over the deposit money. Gayanont quickly
relented and handed To a bag containing approximately $8,000. To, T.X. and Tony
promptly fled to a friend’s home where they counted the money. To gave $2,000 of the
stolen deposit money to T.X. and $1,500 to Tony. T.X. and Tony, in turn, each gave
$300 to Phung as a show of respect and a reward for introducing them to To.
A few days later, To, T.X. and Tony went to the Mekong restaurant in St.
Petersburg, Florida, where they met To’s partner, Hai Van Nguyen. Hai Van Nguyen
introduced them to five other men who had just come to Florida from Atlanta, Georgia --
Tai Tan Pham (Pham), Liem Thanh Luong (Luong), Lap Van Le, Nguyen Tu Doan
(Doan) and another individual named Lap. Hai Van Nguyen had met some of the men
while on a trip to Atlanta in April 1994. During that trip, Hai Van Nguyen invited some
of the Atlanta men to the Tampa area so that he could show them where they could
commit robberies. The trial testimony does not establish that Pham heard this invitation
before deciding to accompany the Atlanta group to the Tampa area. The trial testimony
does, however, reflect that Pham’s estranged girlfriend lived in the Tampa area, and that
Pham contacted her soon after arriving from Atlanta.
4
After meeting at the Mekong, all nine men went to the China Town restaurant in
Tampa. At the China Town, Hai Van Nguyen announced that “from this day forward, the
brothers who come from Atlanta will stay with us in Tampa.” Hai Van Nguyen then
promised to rent a house in which everyone could live. Later that evening, the men
rented two rooms at the Expressway Inn, and proceeded to spend the next several days
together, occasionally using cocaine and marijuana. Many of the men began referring to
Hai Van Nguyen and To as “An Hai” and “An Ba,” allegedly Vietnamese references to
the highest and second highest gang members. To paid the bills for food and the
Expressway Inn rooms using the remaining money from the 7-Eleven robbery. Luong
suggested that the men collectively adopt the nickname “V-Boys” and get matching
spider tattoos.
As the money from the 7-Eleven robbery began to run out, To decided that the
group should rob the Shanghai Buffet restaurant, where Phung worked. To discussed his
plan in the presence of at least some of the others, including Pham, Tony and Lap Van Le,
none of whom expressed any objections or reservations. To did not, however,
immediately tell the others when the robbery would occur or the men that would
participate in the robbery. On the night of May 28, 1994, To decided that it was time to
commit the robbery. He paged T.X., who was at the China Town restaurant with Tony,
Luong and Pham, and instructed him to return to the Expressway Inn. When T.X. arrived
at the Expressway Inn, he met To, Hai Van Nguyen, Doan and Lap Van Le. To decided
5
that T.X., Doan and Lap Van Le would help with the robbery. Hai Van Nguyen went to
the China Town to wait with Luong and the others.
To, T.X., Doan and Lap Van Le then drove to the Shanghai Buffet, armed with a
.380 handgun, a BB gun and a knife. When the restaurant owners, Richard and Gina Lin,
left for the evening, To and his cohorts followed the Lins home and accosted them. They
tied the Lins up, covered their eyes with duct tape, and, on several occasions, threatened
to kill them. One of the robbers put a knife to Gina Lin’s neck, while another used a
handgun and pointed it at the Lins’ heads. Unsatisfied with the money and jewelry found
at the house, the robbers brutally assaulted Richard Lin until he acknowledged that more
money was kept back at the Shanghai Buffet in a safe. To then instructed T.X. and Lap
Van Le to keep Gina Lin and the Lins’ children hostage at the house while he and Doan
drove Richard Lin back to the Shanghai Buffet to get the money from the safe. When To
and Doan arrived at the Shanghai Buffet with Richard Lin, Lin removed $10,000 from the
safe and gave it to To. The three men then returned to Richard Lin’s house. As To and
his cohorts left the Lins’ house, they told Richard Lin they would kill his whole family if
he called the police.
T.X. then called Luong at the China Town and told him that the robbery was
complete and that Luong should return to the Expressway Inn. Luong promptly gathered
his companions and returned to the Expressway Inn. Phung also came to the Expressway
6
Inn, and, as he entered the room, stated that what the group had done “was good.”2 When
everyone was assembled, To and Hai Van Nguyen counted the money and gave everyone
$500, except for Hai Van Nguyen, who got $1,000 so he could rent a house for the
group.3 To also divided up the jewelry that was stolen from the Lins, including chains
and rings. The next day, the entire group moved to another motel.
On May 30, 1994, An Thanh Le, Tam Minh Le and Dung Quoc Nguyen came to
the China Town restaurant together, where To and his cohorts also happened to be dining.
As An Thanh Le entered the China Town, To indicated that he wanted to shoot An Thanh
Le. As noted earlier, To suspected An Thanh Le of working for the FBI. Neither To nor
any of his cohorts had a weapon with them so To sent Tony back to the motel for guns.4
Tony returned with two guns and gave one to Luong, who displayed the gun openly. Hai
Van Nguyen then expressed concern about any action being taken against An Thanh Le in
the restaurant because he feared that one of the customers might be an FBI agent. Luong
2
At trial, T.X. indicated that he interpreted Phung’s comment to mean that the
group had done a good job with the robbery.
3
The record is not altogether consistent with respect to when Hai Van Nguyen
arrived, and with whom, or with respect to whether he counted the money or simply
received money. The facts as recounted above, however, seem most plausible in light of
all the trial testimony.
4
In its brief to the panel, the government contended that Pham went with Tony to
obtain guns. During oral argument, however, the government conceded that this
contention was inconsistent with the record. Our independent review of the record
reveals the same. We note that the government also argued during its closing statement to
the jury that Pham went to obtain guns. Pham did not object to the improper closing
argument, however, and does not on appeal rely on the improper closing argument as a
basis for reversal.
7
stated that he did not care, as he was prepared to shoot both An Thanh Le and the FBI
agent. Cooler heads prevailed, and An Thanh Le left the China Town restaurant
unharmed, as did Tam Minh Le and Dung Quoc Nguyen. As An Thanh Le and his
companions left, however, Luong and Tony followed them outside and ultimately chased
after An Thanh Le’s vehicle for about a mile.
On or about June 1, 1994, To again gathered guns and went after An Thanh Le,
this time at An Thanh Le’s home. Doan accompanied To and tried to shoot An Thanh Le
with a gun that Hai Van Nguyen had previously given him. On June 15, 1994, police
arrested Pham, Doan, Hai Van Nguyen, Tony, Lap Van Le, Luong and T.X. outside the
China Town restaurant. Lap Van Le, Hai Van Nguyen, Doan and Pham were in Lap Van
Le’s Nissan Maxima. Tony, Luong, T.X. and a juvenile were in Tony’s Toyota Supra.
T.X. had a .380 handgun in his waistband. Luong had a 9mm Glock in his waistband.
Police found a 9mm pistol, a .380 semi-automatic handgun, a semi-automatic pistol, a BB
gun, a magazine for the 9mm pistol and a roll of duct tape in the Maxima. The police also
noticed that three members of the group -- Doan, Pham and T.X. -- had a series of three
cigarette burns on their arms, allegedly a mark of courage and loyalty. At trial, however,
Pham’s estranged girlfriend testified that Pham had inflicted at least one of the burns
during an argument with her about their relationship.
II. PROCEDURAL HISTORY
On December 21, 1994, a federal grand jury in the Middle District of Florida
returned a multi-count indictment against eleven defendants, including all the appellants.
8
Count One charged To, Hai Van Nguyen, Lap Van Le, Phung, Tony, Doan, An Thanh Le,
Tam Minh Le and Dung Quoc Nguyen with racketeering, in violation of 18 U.S.C. §
1962(c) (substantive RICO). Count One charged several racketeering acts against various
defendants: conspiracy to commit a Hobbs Act robbery (racketeering act 1(a)),
conspiracy to commit robbery in violation of state law (act 1(b)), attempted Hobbs Act
robbery of Khanh Quoc Le on April 23, 1994 (act 2(a)), murder of Khanh Quoc Le on
April 23, 1994 (act 2(b)), robbery on May 7, 1994 (act 3), robbery on May 13, 1994 (act
4), Hobbs Act robbery on May 23, 1994 (act 5), Hobbs Act robbery on May 29, 1994 (act
6), the May 31, 1994 attempted murder of An Thanh Le to prevent his communicating to
law enforcement information about a federal offense (act 7 (a)), and the May 31, 1994
attempted murder of An Thanh Le (act 7 (b)).
Count Two charged To, Hai Van Nguyen, Lap Van Le, Phung, Pham, Luong,
Tony, Doan, An Thanh Le, Tam Minh Le and Dung Quoc Nguyen with conspiring to
engage in racketeering, in violation of 18 U.S.C. § 1962(d) (RICO conspiracy); Count
Three charged To, Hai Van Nguyen, Lap Van Le, Phung, Pham, Luong, Tony, Doan, An
Thanh Le, Tam Minh Le and Dung Quoc Nguyen with conspiring to commit robbery, in
violation of the Hobbs Act, 18 U.S.C. § 1951(a) and (b)(1); Count Four charged To,
Phung, An Thanh Le, Tam Minh Le and Dung Quoc Nguyen with attempted robbery on
April 23, 1994, in violation of the Hobbs Act, 18 U.S.C. §§ 1951(a) and 2; Count Five
charged To and Tony with robbery on May 23, 1994, in violation of the Hobbs Act, 18
U.S.C. §§ 1951(a) and 2; Count Six charged To, Hai Van Nguyen, Lap Van Le, Phung,
9
Pham, Luong, Tony and Doan with robbery on May 29, 1994, in violation of the Hobbs
Act, 18 U.S.C. §§ 1951(a), (b)(1) and 2; Count Seven charged To, Phung, An Thanh Le,
Tam Minh Le and Dung Quoc Nguyen with using and carrying firearms on April 23,
1994, during and in relation to a federal crime of violence, in violation of 18 U.S.C. §§
924(c)(1) and 2; Count Eight charged To and Tony with using and carrying firearms on
May 23, 1994, during and in relation to a federal crime of violence, in violation of 18
U.S.C. §§ 924(c)(1) and 2; and Count Nine charged To, Lap Van Le, Phung and Doan
with using and carrying firearms on May 29, 1994, during and in relation to a federal
crime of violence, in violation of 18 U.S.C. §§ 924(c)(1) and 2.
Six defendants, Tony, An Thanh Le, Lap Van Le, Dung Quoc Nguyen, Doan and
Phung, pleaded guilty to certain of the counts.
On February 6, 1996, trial commenced against the five remaining defendants, To,
Hai Van Nguyen, Pham, Luong and Tam Minh Le. Following the conclusion of the
government’s case, the district court dismissed racketeering acts three and four, the May
7 and 13, 1994 home-invasion robberies, on the ground that they were part of a different
enterprise.
On March 1, 1996, the jury found To guilty of all nine counts and racketeering acts
1(a), 1(b), 2(a), 2(b), 5, 6 and 7(b); Hai Van Nguyen guilty of Counts One, Two, Three
and Six, the four counts against him, including racketeering acts 1(a), 1(b) and 6; Pham
guilty of Counts Two, Three and Six, the three counts against him; Luong guilty of
Counts Two, Three and Six, the three counts against him; and Tam Minh Le guilty of
10
Counts One, Two, Three, Four and Seven, the five counts against him, including
racketeering acts 1(a), 2(a) and 2(b).
On July 16, 1996, the district court sentenced the appellants. To received a
sentence of life imprisonment plus forty-five years. Tam Minh Le received a sentence of
420 months of imprisonment. Hai Van Nguyen received a sentence of 165 months of
imprisonment. Pham and Luong each received sentences of 57 months of imprisonment.
III. ISSUES
We discuss the following issues: (1) whether the district court erred in denying
Pham’s motion for a judgment of acquittal and alternative motion for a new trial based on
the alleged insufficiency of the evidence; and (2) whether the evidence against Tam Minh
Le was insufficient to justify his convictions on the RICO conspiracy and substantive
RICO counts.5
5
We affirm the convictions and sentences of To, Hai Van Nguyen and Luong
summarily, as their claims of error are without merit. See 11th Cir. R. 36-1. All three of
these appellants first contend that the evidence was insufficient to sustain their
convictions. To was the ringleader of the entire alleged enterprise and personally
participated in the robberies of Gayanont and the Lins, as well as the attempted murder of
An Thanh Le. To also helped orchestrate the robbery and murder of Khanh Quoc Le.
Firearms were used in connection with all of the offenses. Hai Van Nguyen was the
alleged enterprise’s “chief of recruitment” and “comptroller.” Luong proposed the name
V-Boys for the alleged enterprise, received the “all clear” telephone call from T.X. after
the Lin family robbery, shared in the proceeds of that crime and plotted to kill An Thanh
Le. The evidence to convict these appellants was not just sufficient, it was
overwhelming. The other issues these appellants raise relate to alleged flaws in the
indictment, trial errors and sentencing matters. We have carefully considered these issues
and find no reversible error. To the extent that Tam Minh Le has adopted his fellow
appellants’ arguments, or alleged other errors not discussed in the main body of our
opinion, we also find those arguments to be without merit.
11
IV. DISCUSSION
A. Standards of Review
Whether the record contains sufficient evidence to support the jury’s verdict is a
question of law subject to de novo review. United States v. Harris, 20 F.3d 445, 452
(11th Cir.), cert. denied, 513 U.S. 967, 1031, 1032 (1994). When conducting the review
of the record, we view “the evidence in the light most favorable to the government and
resolve all reasonable inferences and credibility evaluations in favor of the jury’s
verdict.” United States v. High, 117 F.3d 464, 467 (11th Cir. 1997). We must uphold the
jury’s verdict whenever a reasonable factfinder could conclude that the evidence
establishes guilt beyond a reasonable doubt. High, 117 F.3d at 467-68.
A district court’s order denying a motion for a new trial based on the weight of the
evidence is subject to review for abuse of discretion. United States v. Cox, 995 F.2d
1041, 1044 (11th Cir. 1993).
B. The Counts Against Tam Minh Le and Pham
As noted above, the jury convicted both Tam Minh Le and Pham of RICO and
Hobbs Act related offenses. Both men were convicted on Count Two, the RICO
conspiracy, and Count Three, the Hobbs Act conspiracy. Tam Minh Le was also
convicted on Count One, the substantive RICO offense; Count Four, the attempted Hobbs
Act robbery of Khanh Quoc Le; and Count Seven, for carrying a firearm during the
12
attempted Hobbs Act robbery and murder of Khanh Quoc Le.6 Pham was also convicted
of a non-overlapping offense, Count Six, the Hobbs Act robbery of the Lins. Because the
issues of evidentiary sufficiency we consider are linked to the requisite elements of the
RICO and Hobbs Act related offenses, we discuss each of the counts of conviction,
assessing the relevant evidence with respect to Tam Minh Le and/or Pham as we proceed.
1. The RICO Conspiracy
To establish a RICO conspiracy, the government needed to prove that Tam Minh
Le and Pham “‘objectively manifested, through words or actions, an agreement to
participate in . . . the affairs of [an] enterprise through the commission of two or more
predicate crimes.’” United States v. Starrett, 55 F.3d 1525, 1543 (11th Cir. 1995)
(quoting United States v. Russo, 796 F.2d 1443, 1455 (11th Cir. 1986)), cert. denied, 517
U.S. 1111, 1127 (1996). As we assess that proof, “[t]he focus is on the agreement to
participate in the enterprise through the pattern of racketeering activity, not on the
agreement to commit the individual predicate acts.” Starrett, 55 F.3d at 1543. The
enterprise need not be a legal entity such as a corporation or partnership; it may also be “a
group of persons associated together for a common purpose of engaging in a course of
conduct.” United States v. Turkette, 452 U.S. 576, 583 (1981).
6
In his initial brief, Tam Minh Le challenges the sufficiency of the evidence only
with respect to his convictions on the RICO conspiracy and substantive RICO counts. In
his reply brief, Tam Minh Le generally “adopts the arguments raised by his co-appellants
on appeal.” We do not read those coappellant briefs to challenge any evidence or legal
principle underlying Tam Minh Le’s convictions on Count Three, Count Four or Count
Seven. We thus affirm those counts of conviction without comment.
13
In this case, it is clear that the government could prove Tam Minh Le and Pham’s
agreement to participate in either of two ways. First, the government could show an
agreement on an overall objective. United States v. Church, 955 F.2d 688, 694 (11th
Cir.), cert. denied, 506 U.S. 881 (1992). An agreement on an overall objective may be
proved “by circumstantial evidence showing that each defendant must necessarily have
known that others were also conspiring to participate in the same enterprise through a
pattern of racketeering activity.” Starrett, 55 F.3d at 1544 (internal quotation marks
omitted). Second, the government could show that a “defendant agreed personally to
commit two predicate acts and therefore to participate in a ‘single objective’ conspiracy.”
Church, 955 F.2d at 694. If the government proves an agreement on an overall objective,
however, it does not have to prove that the defendant agreed personally to commit two
predicate acts. Starrett, 55 F.3d at 1544.
Regardless of the method used to prove the agreement, “the government
does not have to establish that each conspirator explicitly agreed with every
other conspirator to commit the substantive RICO crime described in the
indictment, or knew his fellow conspirators, or was aware of all the details
of the conspiracy.”
Starrett, 55 F.3d at 1544 (quoting United States v. Pepe, 747 F.2d 632, 659 (11th Cir.
1984)). Moreover, the fact that “each conspirator may have contemplated participating in
different and unrelated crimes is irrelevant.” Starrett, 55 F.3d at 1544 (internal quotation
marks omitted).
Tam Minh Le and Pham both argue that the government failed to prove their intent
to participate in the affairs of an enterprise through a pattern of racketeering activity.
14
Pham contends that the government failed to demonstrate, even circumstantially, that he
agreed to participate in the objectives of an enterprise, because the evidence established
no connection between Pham and the enterprise’s predicate acts either before or after the
evening and morning of May 28-29, 1994 -- the date of the Lin family robbery. In
addition, Pham adopts his coappellants’ argument that the evidence involving him with
respect to the Lin family robbery establishes only his mere association with persons
involved in a conspiracy. Pham also contends that the government failed to prove that he
conspired to violate RICO under a “single objective” theory, as the record does not show
that he personally agreed to commit two predicate acts.
Tam Minh Le echoes Pham’s arguments, but with a slight variance. Tam Minh Le
concedes his involvement in the murder of Khanh Quoc Le, but denies that his
involvement in that offense may serve as a basis for RICO conspiracy liability.
According to Tam Minh Le, his involvement with the alleged enterprise began and ended
at Saigon Palace on the night Khanh Quoc Le died, save for the day in late May 1994
when he accompanied An Thanh Le to the China Town Restaurant. The fact that Tam
Minh Le knew or associated with some of the enterprise members is, Tam Minh Le
contends, of no consequence as RICO does not punish mere association with conspirators
or simple knowledge of illegal activity.
The government counters that it introduced ample evidence that Tam Minh Le and
Pham agreed to an overall conspiracy objective to support the enterprise through a series
of robberies within the Asian-American community. With respect to Tam Minh Le
15
specifically, the government also suggests that it proved that Tam Minh Le agreed
personally to commit two predicate acts and therefore to participate in a “single
objective” conspiracy. The government further contends that Tam Minh Le’s
participation in the conspiracy was not limited to his involvement in the attempted Hobbs
Act robbery and murder of Khanh Quoc Le, as Tam Minh Le continued to associate with
enterprise members after the Saigon Palace episode. In addition, the government argues
that Pham’s commitment to the overall conspiracy objective was proven based on: (1) his
presence and failure to object during the planning of the Lin family robbery; (2) his trip
back to the Expressway Inn following the telephone call from T.X. to Luong; (3) his
receipt of proceeds from the Lin family robbery; and (4) the three burn marks on his arms,
which were similar to marks found on T.X. and Doan.7
Although it is a close call, we find the government’s argument and proffered
evidence too attenuated to sustain the RICO conspiracy conviction against Pham. We
base our conclusion, in large part, on our holding in United States v. Gonzalez, 921 F.2d
1530, 1543 n.21 (11th Cir.), cert. denied, 502 U.S. 827, 860 (1991). In Gonzalez, we
considered the arguments of several individuals convicted of RICO conspiracy for their
involvement in a drug importation ring. 921 F.2d at 1532. All of the individuals made
arguments challenging the legal sufficiency of the evidence underlying their convictions.
921 F.2d at 1539. Two of the arguments advanced in Gonzalez are relevant to our
7
As noted above, the government also argued at trial and in its appellate brief that
Pham’s commitment was proven based on his alleged retrieval of a gun at To’s request.
The government now abandons that argument.
16
analysis. First, some of the individuals argued that the evidence failed to show their
participation in the enterprise’s affairs through two predicate acts constituting a pattern of
racketeering activity. 921 F.2d at 1539. One of the individuals specifically argued that
he joined any conspiracy, if at all, only after the majority of the predicate acts charged to
the enterprise occurred. 921 F.2d at 1543 n.21. As a result, he argued, he could not have
agreed to those occurrences that established the actual pattern of racketeering activity.
921 F.2d at 1543 n.21. Second, some of the individuals argued that because the
government’s evidence showed only a limited agreement on their part, the government
needed to present the proof required for a “single objective” conspiracy, i.e., “proof of
agreement to personally commit two predicate acts.” 921 F.2d at 1543. Pham, in
essence, repeats these same arguments, suggesting that any proof of his relationship with
the enterprise members is insufficient to establish RICO liability because he either joined
the agreement too late, or because the evidence did not tie him to two predicate acts. We
agree.
Even if we assume that Pham was a willing accomplice to the robbery of the Lins,
that fact alone would not prove that he agreed to an overall objective of supporting the
enterprise through a series of robberies within the Asian-American community. The
government offered no proof that Pham was present when Hai Van Nguyen recruited
some of Pham’s fellow Atlantans to Tampa for the general purpose of committing
robberies. Nor did the government offer proof that Pham had a criminal relationship with
the other Atlantans that predated his decision to accompany them to the Tampa area. The
17
government also did not offer any significant circumstantial proof of Pham’s agreement
to an overall objective. Rather, the government’s evidence effectively showed only two
things -- that Pham had three cigarette burns on his arm like several other enterprise
members, and that Pham associated with members of the enterprise. The cigarette burn
evidence is, in our view, insubstantial, because the uncontroverted evidence at trial
established that Pham put at least one of the cigarette burns on himself in front of his
estranged girlfriend for reasons wholly unrelated to the enterprise. Even if a juror could
reasonably disbelieve that uncontroverted evidence, the fact remains that only three of the
eleven defendants indicted in this case had cigarette burn marks on their arms. As a
result, no reasonable juror could have concluded that the cigarette burn marks signified
some conspiratorial agreement between Pham and the other enterprise members, many of
whom had no similar marks on their arms. The evidence of Pham’s association with
enterprise members in this case is also inconsequential. “A defendant must be convicted
on the basis of his own proven conduct, association is not enough. RICO does not punish
‘mere association with conspirators or knowledge of illegal activity; its proscriptions are
directed against conduct, not status.’” Gonzalez, 921 F.2d at 1542 (quoting United States
v. Elliott, 571 F.2d 880, 903 (5th Cir. 1978)). As Pham’s counsel argued at trial, the
evidence in this case proved, at most, that the enterprise members sought to recruit Pham
with free housing and a gift of ready cash from the Lin family robbery; it did not show
that Pham ever agreed to join the enterprise. The government also failed to show Pham’s
18
involvement in a “single objective” conspiracy, as no evidence showed that Pham
personally agreed to commit two predicate acts.
The evidence of Tam Minh Le’s participation in a RICO conspiracy is, in our
view, much stronger and sufficient to sustain his conviction on Count Two. We reach
this conclusion based, again, on our holding in Gonzalez. In that case we considered an
argument from one individual, Michael Timothy Sweeton, that was premised on the fact
that he was linked to only one incident of drug importation. 921 F.2d at 1542-45. We
first determined that the test for establishing Sweeton’s RICO conspiracy liability under
such facts was the “single objective” test. 921 F.2d at 1542-43. Under this test, we
indicated that the government needed to show Sweeton’s agreement to commit personally
two predicate acts. 921 F.2d at 1543. After finding that Sweeton had committed two
predicate acts in connection with the single incident of drug importation, we then
considered the impact of the fact that the two acts occurred in close temporal proximity.
921 F.2d at 1545. We concluded that predicate acts occurring in close temporal
proximity may satisfy RICO’s pattern requirement if “the predicates themselves amount
to, or . . . otherwise constitute a threat of continuing racketeering activity.” 921 F.2d at
1545 (internal quotation marks omitted) (emphasis in original). We then quoted the
following explanation of our conclusion from the Supreme Court’s decision in H.J. Inc. v.
Northwestern Bell Telephone Co., 492 U.S. 229, 242-43 (1989):
Though the number of related predicates involved may be small and they
may occur close together in time, the racketeering acts themselves [may]
include a specific threat of repetition extending indefinitely into the future,
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and thus supply the requisite threat of continuity. In other cases, the threat
of continuity may be established by showing that the predicate acts or
offenses are part of an ongoing entity’s regular way of doing business.
Thus, the threat of continuity is sufficiently established where the predicates
can be attributed to a defendant operating as part of a long-term association
that exists for criminal purposes.
Gonzalez, 921 F.2d at 1545 (alteration in original). Finally, turning to Sweeton’s specific
argument, we found that RICO’s pattern requirement was met in his case because his
actions, albeit close in time, took place as part of the enterprise’s drug importation
operation, an operation that existed before Sweeton’s involvement and continued to exist
after Sweeton’s involvement ended. 921 F.2d at 1545. Because the enterprise’s
operations were ongoing, we reasoned, the “threat of continuing racketeering activity was
present, and was, in fact a threat fulfilled.” 921 F.2d at 1545.
Applying the rationale of Gonzalez to Tam Minh Le’s case, we conclude that Tam
Minh Le’s conviction must be affirmed. The evidence is sufficient to show that he
personally committed three predicate acts: conspiracy to commit a Hobbs Act robbery;
attempted Hobbs Act robbery; and murder. Although the acts all occurred within a span
of several hours, To, Phung and An Thanh Le -- all enterprise members -- were also
deeply involved in the incident, and the targeted victim, an Asian-American restauranteur,
fit the profile that the enterprise specialized in robbing. Because the enterprise continued
to exist and continued targeting Asian-Americans in general -- and restauranteurs in
particular -- a reasonable juror could conclude that the threat of continuing racketeering
activity was present in this case. Gonzalez, 921 F.2d at 1545.
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2. The Substantive RICO Offense
Having concluded that Tam Minh Le’s conviction for RICO conspiracy must be
affirmed, we also conclude that his convictions must be upheld on the other counts
against him. To establish a substantive RICO violation under 18 U.S.C. § 1962(c), the
government needed to prove: (1) that an enterprise existed; (2) that the enterprise
affected interstate commerce; (3) that the defendants were employed by or associated
with the enterprise; (4) that the defendants participated, either directly or indirectly, in the
conduct of the enterprise; and (5) that the defendants participated through a pattern of
racketeering activity. Starrett, 55 F.3d at 1541. The fifth element contains two
components: (1) the defendants’ predicate acts must be related to the enterprise charged
in the indictment; and (2) the predicate acts must actually form a pattern, i.e., relate to
each other and have continuity. Starrett, 55 F.3d at 1542-43.
Tam Minh Le argues that the evidence in this case failed to establish elements four
and five. With respect to element five, Tam Minh Le’s argument mirrors his argument
regarding his RICO conspiracy liability. We reject the argument for the reasons stated
above. With respect to element four, Tam Minh Le argues that he cannot be held liable
under the so-called Reves operation or management test which this court adopted in
Starrett, because he did not implement any enterprise decisions relating to any enterprise
activities subsequent to the attempted robbery and murder of Khanh Quoc Le. See
Starrett, 55 F.3d at 1542. This argument is unavailing because Tam Minh Le’s knowing
commission of multiple predicate acts in connection with the attempted robbery and
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murder of Khanh Quoc Le is all that is required to satisfy the fourth element of a
substantive RICO violation in this case. We therefore affirm Tam Minh Le’s conviction
for the substantive RICO offense, just as we affirm his conviction for RICO conspiracy.
3. The Hobbs Act Conspiracy and Hobbs Act Robbery of the Lins
To prove a Hobbs Act conspiracy under 18 U.S.C. § 1951(a) and (b)(1) in this
case, the government needed to prove that: (1) two or more persons agreed to commit a
robbery encompassed within the Hobbs Act; (2) the defendant knew of the conspiratorial
goal; and (3) the defendant voluntarily participated in helping to accomplish the goal.
United States v. Thomas, 8 F.3d 1552, 1556 (11th Cir. 1993). “Presence with
conspirators alone, however, or close association with them, is not by itself sufficient
proof of participation in a conspiracy.” Thomas, 8 F.3d at 1556 (citation omitted).
Pham argues that the evidence presented at trial in this case establishes nothing
more than his mere association with the individuals conspiring to commit Hobbs Act
robberies. The government contends that the jury was entitled to infer Pham’s knowing
and voluntary participation in the Hobbs Act conspiracy from the following evidence: (1)
his presence during discussions of the planned robbery; (2) his decision not to object to
the plan; (3) his waiting with Luong at the China Town during the Lin family robbery; (4)
his decision to return to the Expressway Inn with Luong following the robbery; and (5)
his receipt of some of the robbery proceeds following the robbery. Although we find the
issue close, we ultimately agree with Pham that the government’s evidence was
insufficient, even when viewed in the light most favorable to the government. The
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government presented no evidence that Pham was actively involved in the planning of the
Lin family robbery, so Pham’s presence during discussions of the robbery and his failure
to object establish only that he knew of the planned robbery. As we held in Thomas,
however, mere knowledge does not support the conclusion that a defendant “voluntarily
participated in the agreement or the accomplishments of its goals.” 8 F.3d at 1558.
Likewise, Pham’s presence at the China Town with Luong, and his return to the
Expressway Inn, do not prove participation. The record is clear that no one but To knew
when the robbery would take place. Pham’s decision to go to the China Town with
Luong, Tony and T.X. occurred before To paged T.X. and told him the robbery would
take place that evening. Pham’s decision to remain at the China Town -- unaware that the
robbery was even taking place -- cannot thus be seen as evidence of participation in a
conspiracy. Neither can Pham’s decision to return to the Expressway Inn, where he was
staying along with Luong, give rise to an inference of participation -- especially given the
absence of record evidence that Luong told Pham about the completed robbery before the
men returned to the Expressway Inn. While we find Pham’s receipt of proceeds from the
Lin robbery along with the enterprise members far more problematic, that fact alone --
occurring as it did after the robbery was effectively complete and viewed in light of the
recruitment style hospitality To and Hai Van Nguyen were bestowing on the recent
arrivals from Atlanta -- is also insufficient to show Pham’s voluntary participation in the
Hobbs Act conspiracy at issue. Cf. United States v. Richardson, 596 F.2d 157, 163 (6th
Cir. 1979) (no Hobbs Act conspiracy conviction of deputy sheriff who received free
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whiskey during the conspiracy period where no one suggested that it had been given in
exchange for protection). We thus reverse Pham’s conviction on Count Three, the Hobbs
Act conspiracy.
Because the government’s only theory of support for the substantive Hobbs Act
count against Pham is based on so-called Pinkerton doctrine liability, i.e., the view that
each member of a conspiracy is liable for all reasonably foreseeable crimes committed
during and in furtherance of the conspiracy, we also reverse Pham’s conviction on Count
Six, the Hobbs Act robbery of the Lins. See Pinkerton v. United States, 328 U.S. 640(1946).
V. CONCLUSION
Because the evidence was insufficient to support the convictions of Pham, we
reverse on all counts against him. We affirm the convictions and sentences of all the
other appellants.
AFFIRMED IN PART and REVERSED IN PART.
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