United States v. Tuyen Vu Ngo

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 3, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 06-6244
(D.C. No. 05-CR-168-L)
TU Y EN V U N GO , (W .D. Okla.)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before L UC ER O, M cKA Y, and GORSUCH, Circuit Judges.
In M arch 2006, defendant Tuyen Vu “Allen” Ngo 1 was convicted of one
count of possession with intent to distribute M DM A or ecstasy, 2 a controlled
substance, and aiding and abetting, in violation of 21 U.S.C. § 841(a)(1) and
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
Defendant was known as Allen or Alan Ngo. Tr. at 157, 178, 286.
2
M ethylenedioxymethamphetamine is also known as M DM A or ecstasy.
Tr. at 340.
18 U.S.C. § 2, and one count of conspiracy to possess with intent to distribute
M DM A or ecstasy, in violation of 21 U.S.C. § 846. He was sentenced to 240
months on each count, with the sentences to run concurrently. He appeals from
his convictions, arguing that the evidence was insufficient to support the verdict.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
Summary of the Evidence Presented at Trial
Defendant and the other three men arrested with him for drug trafficking,
Eric Hsiung, Eric Chen, and Richard K im, lived in the vicinity of Los Angeles,
California. See Tr. at 181, 256, 273-74, 277-78. Hsiung testified that he was
twenty-one years old at the time of defendant’s trial. Id. at 277. He had been
friends with Chen since high school or college and also had known Kim that long,
although they were not close friends. Id. at 277, 308. Hsiung moved into an
apartment with Chen and Kim in August 2005. Id. at 278. He noticed that they
seemed to have a lot of money to buy extravagant things, even though neither of
them w as working. Id. at 280. Chen and Kim bragged to Hsiung about the
amount of money they were making in the drug-delivery business. Id.On August 22, 2005, Kim approached Hsiung and asked him if he wanted
to make some “serious money,” as his organization was short one person. See id.
at 281-82, 312. K im told H siung that they used a “team of four” and took two
cars–one to carry the controlled substance and the other following behind to
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distract the police–hitting the police car if necessary. Id. Kim said that the
organization needed four drivers so that they could drive to their destination and
back non-stop. Id. at 282-83. Hsiung agreed to make the trip for $3000. Id.
at 285.
Hsiung testified that the next night, Kim received a call on his cell phone,
and he, Kim, and Chen began packing for their drug run. Id. at 284. They drove
to a Los Angeles suburb called M onterey Park and parked behind a large Ford
pickup truck with a bed cover. Id. at 284-85, 318. Hsiung was told to get in the
front passenger seat of the truck. Id. at 285. The drugs were in the back of the
truck. Id. at 293-94. A few minutes later, a Honda Accord drove by, and Hsiung,
Chen, and Kim drove to a gas station across the street. Id. at 285-86. Defendant
was there, in the Accord. Id. at 287. Defendant later told Hsiung that he was
getting paid between $1700 and $2000 to make the trip. Id. at 304-05.
Chen and Hsiung took turns driving the truck and defendant and Kim took
turns driving the Honda. Id. at 288. Chen had a piece of paper marked with the
route and the exits they were supposed to take. Id. at 291. Chen also had a cell
phone to call the other car, using programmed numbers. Id. at 289-90. Hsiung
was told not to socialize with defendant, however, because “[t]his is his
business,” and Chen and Kim did not want Hsiung to give any personal
information about himself to defendant. Id. at 289; see also id. at 324. The four
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men kept in contact so they would know how low each vehicle’s fuel was. Id.
at 302.
After about six or seven hours of driving through the night, id. at 298, they
reached Flagstaff, Arizona, and Hsiung realized that there was a mechanical
problem w ith the truck–the left front axle was broken, id. at 292. Both vehicles
stopped, and “the first thing that [Chen and Kim] wanted to do was unload the
controlled substance that was in the back of the truck and put it in the Accord,
which they did.” Id. at 293-94. Kim and Chen unloaded a large duffle bag from
the truck and put it in the Honda. Id. at 294.
Chen stayed with the truck, and Kim, Hsiung, and defendant rode in the
Accord to a motel. Id. at 295. Kim rented a room and left the duffle bag there
with defendant for five to seven hours. See id. at 295-96, 298. Kim never left
Chen or Hsiung alone with that bag. Id. at 295. At some point, someone made a
phone call, id. at 321, and Kim and Hsiung returned to the truck. Five to seven
hours later, a Lincoln Navigator arrived. Id. at 298. It was driven by a man
called “Tim,” id. at 299, but the car was later determined to be registered to and
insured by defendant’s brother, Tuyen Quan Ngo, id. at 268-70. W hen Kim and
Chen attempted to get the spare tire out of the back of the truck, they found a
second, smaller bag they had not located in the dark the night before. Id.
at 299-300. Kim and Chen loaded the second bag in the Lincoln, and Kim, Chen,
Hsiung, and Tim went back to the motel room. Id. at 299-300. Eventually, Kim
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and Chen loaded the first duffle bag in the Lincoln, too. Id. at 300, 323-24. Kim,
Chen, Hsiung, and defendant left “Tim” and the truck behind and continued their
drug run with Kim and defendant in the Honda, and Chen and Hsiung in the
Lincoln. See id. at 301. They continued to take turns driving, as before. Id.As the group drove through the mountains, they had trouble communicating
between the cars over their cell phones. Id. at 302. As a result, they bought
hand-held radios (w alkie-talkies) at a gas station. Id. at 302. Defendant, as well
as the other men, took turns communicating between the vehicles, using the
walkie-talkies. Id. at 302.
On August 25, 2005, defendant and the other three men were driving
through Oklahoma on Interstate 40 (I-40). See id. at 145, 302. Four agents of the
Oklahoma Bureau of Narcotics (O BN) w ere patrolling I-40 in Canadian County.
Id. at 150. OBN Special Agent Troy W all testified that he had received special
training in recognizing the factors that distinguish narcotics traffickers from
lawful drivers. Id. at 140-44. As he traveled eastbound, he saw the Honda
follow ing the Lincoln too closely, which was not only a traffic violation, but also
an indication that the drivers might be employing a “tandem driving” technique
used by drug couriers. Id. at 143–45, 146. In “tandem driving,” an escort or
decoy vehicle is used to distract law enforcement from the “load” vehicle–the
vehicle with the illegal drugs or other contraband in it–by committing obvious
traffic violations. Id. at 143-44.
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Agent W all testified that he pulled his OBN marked unit alongside the
Honda and the Lincoln to observe them. Id. at 145-46. He noticed that both cars
had California license plates, a state known to be a source of narcotics coming
into Oklahoma. Id. at 141, 145-46. He also saw that the Lincoln had a frame
around the license plate, w hich is a violation of Oklahoma law. Id. at 146. He
thought that the occupants of both cars acted peculiarly, as they all stared straight
ahead instead of acknowledging the police car, and the Honda made no attempt to
back off from the Lincoln to correct its obvious violation. Id. at 146-47.
Agent W all concluded that the two cars w ere traveling together and thought it
unusual that they would take two cars w hen the Lincoln–a large sport utility
vehicle–w as big enough for four people. Id. at 147. Having an extra car was also
consistent with “tandem driving,” and he decided to pull over the Lincoln for the
tag violation. Id. at 147-48, 152.
Agent W all attempted to pull his car between the Honda and the Lincoln,
turning on his rear emergency lights as a signal, but the Honda did not slow
down. Id. at 148-49. Agent W all forced his way in between the two cars, turning
on his front emergency lights to pull over the Lincoln. Id. at 149. At that time,
the Honda swerved and accelerated around Agent W all’s car, missing his rear
bumper by a few feet. Id. at 149. The H onda traveled alongside the Lincoln for a
short while, and it appeared to Agent W all that the occupants w ere attempting to
comm unicate. Id. The Honda then sped away. Id. As Agent W all pulled the
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Lincoln over, he made an open call to the other OBN agents to stop the Honda if
they saw it. Id. at 150-51.
W hen the window of the Lincoln was rolled down, Agent W all smelled
burnt marijuana. Id. at 151. Hsiung was driving the Lincoln at that time. Id.Agent W all asked for his driver’s license, and Hsiung told him it was in the
Honda. Id. Agent W all then spoke with Hsiung and Chen separately. Hsiung
said that he, Chen, and the occupants of the H onda, whom he named as Richard
Kim and Allen Ngo, were friends of his who were traveling together to Oklahoma
City to drop off the Honda with Kim’s uncle and then returning to Los Angeles.
Id. at 152-53, 157. He later said that the group was traveling on to Illinois from
Oklahoma. Id. at 157. He said that Chen owned the Lincoln. Id. at 154. Chen,
in contrast, first told Agent W all that the group was traveling to Oklahoma City to
visit a friend of a friend, and then he said Kim’s uncle, but he did not say
anything about dropping off a vehicle before returning to Los A ngeles or going to
Illinois. Id. at 153. He denied owning the Lincoln. Id. at 154, 157.
M eanwhile, the Honda had turned around at the next exit and headed back
westbound, and then turned around again to resume going eastbound. OBN Agent
Ronnie Jackson stopped it. Id. at 156, 202-03. Kim had been driving the Honda.
Id. at 205. The insurance verification on the car showed a first name of
“Timothy” and a last name that Agent Jackson did not know how to pronounce.
Id. at 210. Kim said that the H onda belonged to a friend he had known for a
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couple of years, but he did not know Timothy’s last name. Id. at 211-12.
Defendant was a passenger in the Honda at that time. Id. at 207-08.
Agent Jackson subsequently searched the Honda and found no ecstasy. Id.
at 212-13. He spoke with each of the occupants separately. Kim told
Agent Jackson that he and defendant were traveling to Dallas for a wedding–but
not with any other persons or vehicles. Id. at 206-07. Defendant told
Agent Jackson, “I think we’re going to Dallas to a wedding,” but Agent Jackson
believed that his demeanor appeared deceptive, as if he w as unsure of w hat story
he w as supposed to tell. Id. at 208-09, 238. Defendant said that he and Kim were
not traveling with anybody else or any other vehicles. Id. at 209. Agent W all
said that the “wedding story” is so commonly used by drug couriers, it is almost a
joke in highway interdiction. Id. at 156.
Defendant and Kim were taken by OBN agents to the scene of the stopped
Lincoln. Id. at 220-21. A search of the Lincoln turned up a black nylon suitcase
and a large green duffle bag containing over 200,000 ecstasy pills with a street
value of approximately $4,000,000. Id. at 158, 174, 183-85, 272, 344.
Special Agent Robert Ryan of the Drug Enforcement Administration testified that
this seizure was the largest seizure of ecstasy in Oklahoma history and the
seventh largest on U.S. soil, leading him to believe that the overall operation
could be compared to a legitimate business like M cDonald’s–the people involved
had different jobs and did not all need to know each other, but they all would
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know that the common goal was to sell a product to an end user. Id. at 333,
347-49. He believed that such an organization would not release a load this size
unless the organization had faith that the person managing transportation of the
drugs w as going to hire good workers. Id. at 351-52. The search of the Lincoln
also revealed a hand-written list of detailed directions from California to
Louisiana, id. at 223, a letter addressed to defendant dated January 7, 2004, id.
at 266-67, and documents showing that the Lincoln was registered to and insured
by Tuyen Quan Ngo, who is defendant’s brother and who had the same address as
shown on defendant’s driver’s license, id. at 154-55, 171-72, 181, 268-70, 272.
In addition, agents found activated walkie-talkies in each car that were set to
comm unicate with each other. Id. at 222-23, 237. Agents also found another
walkie-talkie and cell phones in the Lincoln. Id. at 225-26. They found five cell
phones in the Honda. Id. at 226. They found another hand-written list of
directions from California to Louisiana in Kim’s wallet, id. at 224-25, and found
Kim’s passport in the Lincoln, id. at 262. All four men were taken to jail and
charged with the same two drug trafficking counts.
To sum up: the government presented evidence showing that defendant
presented himself to go on a non-stop cross-country trip with three other men who
all knew they were transporting drugs; he provided one of the cars and had a
personal connection to one of the load vehicles–the Lincoln–even though he told
OBN agents that he had no relationship with the car or its occupants; he was to be
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paid for the trip; he took his turn driving and keeping in contact with the other
vehicle; he was left alone for several hours in a motel room with a large duffle
bag containing the bulk of approximately $4,000,000 worth of ecstasy, and he lied
to OBN agents about the purpose of the trip and the number of people involved in
it.
Issues on Appeal
Defendant argues that the evidence was insufficient to show that he
participated in any way in a conspiracy with the other defendants or possessed the
drugs. He asserts that Hsiung’s testimony shows that Hsiung, Chen, and Kim
intentionally avoided defendant and left him out of the plans at Kim’s insistence.
Aplt. Opening Br. at 3-4. Defendant also argues that there was insufficient
evidence to show that he ever exercised or had the ability to exercise dominion or
control over the drugs.
Discussion
“W e review the record for sufficiency of the evidence de novo.” United
States v. W ilson, 107 F.3d 774, 778 (10th Cir. 1997). “[T]he relevant question is
whether, 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). If
so, we must affirm. United States v. Young, 862 F.2d 815, 818 (10th Cir. 1988).
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“[W]e evaluate the sufficiency of the evidence by considering the collective
inferences to be drawn from the evidence as a whole.” United States v. Johnson,
130 F.3d 1420, 1428 (10th Cir. 1997) (quotations and alteration omitted).
“However, we may not uphold a conviction obtained by piling inference upon
inference. . . . The evidence supporting the conviction must be substantial and do
more than raise a suspicion of guilt.” United States v. Valadez-Gallegos,
162 F.3d 1256, 1262 (10th Cir. 1998).
In light of these general propositions of relevant law, we review each of
defendant’s convictions in turn.
Conspiracy
To find a defendant guilty of conspiracy in violation of
21 U.S.C. §§ 841(a)(1) and 846, the jury must find, beyond a
reasonable doubt, (1) an agreement with another person to violate the
law, (2) knowledge of the essential objectives of the conspiracy,
(3) knowing and voluntary involvement, and (4) interdependence
among the alleged conspirators.
United States v. Carter, 130 F.3d 1432, 1439 (10th Cir. 1997). “It is permissible
for the jury to infer an agreement constituting a conspiracy from the acts of the
parties and other circumstantial evidence indicating concert of action for the
accomplishment of a common purpose.” Id. (quotation omitted). “[A] defendant
need not have knowledge of all the details or all the members of the conspiracy
and may play only a minor role in the conspiracy.” U nited States v. Small,
423 F.3d 1164, 1182 (10th Cir. 2005) (quotation omitted), cert. denied, 126 S. Ct.
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1377 (2006). “A defendant’s activities are interdependent if they facilitated the
endeavors of other alleged conspirators or facilitated the venture as a whole.”
United States v. Ivy, 83 F.3d 1266, 1286 (10th Cir. 1996) (quotation omitted).
Factors the jury, or a court reviewing a jury’s verdict may
consider in drawing the inference of a conspiracy include, but are not
limited to: (1) a defendant’s presence at the crime scene; (2) a
defendant’s association with co-conspirators; (3) evidence of
conflicting stories; (4) active attempts to divert officers’ attention
from a stopped vehicle; (5) participation in drug transactions; or
(6) knowledge of and control over drugs. . . . Any single factor,
standing alone, may be insufficient to support an inference of
conspiracy. . . . A direct correlation exists, however, between the
number of circumstantial facts and the existence of a conspiracy.
United States v. Delgado-U ribe, 363 F.3d 1077, 1083 (10th Cir. 2004).
Defendant argues that the evidence was insufficient to support the
conspiracy conviction because Hsiung never implicated defendant in any
discussions about the plan or the planning of the trip. W e disagree that such
direct evidence of a conspiracy was required. The case against defendant was
circumstantial. However, based on the uncontroverted circumstantial evidence,
the jury could reasonably have inferred that defendant knowingly and voluntarily
participated in a conspiracy to possess M DM A or ecstasy with intent to distribute.
Cf. Carter, 130 F.3d at 1439-40 (explaining why uncontroverted circumstantial
evidence was sufficient to support conviction for conspiracy). Defendant made
the trip with three other men against whom there was direct evidence of
conspiracy, and the evidence showed that two vehicles and four drivers were
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required so that one car could provide a distraction from the load vehicle in case
police tried to stop the load vehicle. Rather than keeping the participants in the
dark as to the real purpose of the trip, Kim and Chen bragged to Hsiung about the
money they were making delivering drugs and asked him if he wanted in, as they
already had a third driver and needed a fourth. Defendant participated in the
non-stop, cross-country trip by taking his turn driving and communicating with
the load vehicle. He was to be paid a substantial amount of money for making the
trip. He provided one car, the Honda, and was personally connected to the
substitute load vehicle, the Lincoln. He also lied about his connection to the
Lincoln and its occupants when questioned by an OBN agent. His explanation for
the trip was a common excuse used by drug traffickers, and it conflicted with the
explanations offered by the other men. There is no evidence that any of the other
conspirators told defendant to give that excuse to police to keep him in the dark
as to the real purpose of the trip. Finally, he was left alone for several hours w ith
the bulk of the drugs.
Defendant has not made any argument showing that inference must be piled
on top of inference to conclude that he knowingly and voluntarily participated in
a drug trafficking conspiracy. In light of all of the circumstantial evidence and
the reasonable inferences to be drawn from it, defendant’s conviction for
conspiracy is affirmed.
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Possession
“In order to sustain a conviction for possession with intent to distribute
under 21 U.S.C. § 841(a)(1), the government must prove that the defendant:
(1) possessed a controlled substance, (2) knew he possessed the controlled
substance, and (3) intended to distribute the controlled substance.” United States
v. M ains, 33 F.3d 1222, 1228 (10th Cir. 1994). “Possession may be either actual
or constructive.” United States v. Triana, 477 F.3d 1189, 1194 (10th Cir. 2007).
“‘Actual Possession’ is direct physical control, as by holding an object, or
keeping it on or around one’s person.” United States v. Bowen, 437 F.3d 1009,
1017 (10th Cir. 2006). “‘Constructive Possession’ is indirect control, as by
knowingly having the power to exercise dominion or control over an object
although someone or something else may actually be holding it.” Id. “In most
cases, dominion, control, and knowledge may be inferred where a defendant has
exclusive possession of the premises.” United States v. Taylor, 113 F.3d 1136,
1145 (10th Cir. 1997). The jury may infer a defendant’s knowledge of the
controlled substances from the “collective inferences to be drawn from the
evidence as a whole.” U nited States v. Johnson, 57 F.3d 968, 971 (10th Cir.
1995) (quotation omitted). In addition, “a jury may infer intent to distribute from
the possession of large quantities of drugs.” United States v. Pulido-Jacobo,
377 F.3d 1124, 1131 (10th Cir. 2004).
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The government argues that the evidence presented at trial was sufficient to
support defendant’s conviction for possession with intent to distribute M DM A
under any one of three theories: (1) actual or constructive possession, (2) aiding
and abetting, or (3) vicarious liability. Defendant argues that the evidence was
insufficient to support the conviction because the drugs were in the other car
when he was arrested.
W e cannot say that no rational trier of fact could reasonably have inferred
from all of the evidence that defendant knew that the load vehicle was
transporting contraband, and that the large duffle bag removed from the load
vehicle and left alone with him in a motel room for several hours contained that
contraband. The evidence is sufficient to show that he knowingly possessed the
M DM A, and the large quantity is sufficient to show his intent to distribute. H is
conviction for possession with intent to distribute is affirmed.
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Conclusion
The evidence was sufficient to support defendant’s convictions for both
conspiracy and possession. The judgment of the district court is AFFIRMED.
Entered for the Court
M onroe G. M cKay
Circuit Judge
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