United States v. Duong

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS DEC 19 2003
TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 03-6028
v. (D.C. No. 02-CR-36-F)
(W. Dist. Okla.)
TONY DUONG,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA, Chief Judge, SEYMOUR, Circuit Judge, and BRORBY, Senior
Circuit Judge.
Mr. Tony Duong appeals his convictions for distributing pseudoephedrine
(PSE) and money laundering. He contends there was insufficient evidence to
sustain his convictions, and that the district court erred by denying his motion to
disclose the identity of a confidential informant and by admitting into evidence
his tax returns and financial records. We affirm.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
The government was required to prove that Mr. Duong “possesse[d] or
distribute[d] a listed chemical knowing, or having reasonable cause to believe,
that the listed chemical [would] be used to manufacture a controlled substance.”
21 U.S.C. § 841(c)(2) (emphasis added). We review the sufficiency of the
evidence de novo. United States v. Nguyen, 155 F.3d 1219, 1223 (10th Cir.
1998). After analyzing the evidence and inferences therefrom in a light most
favorable to the government, we must decide whether a reasonable jury could find
beyond a reasonable doubt that Mr. Duong was guilty. Id.After thoroughly reviewing the record and Mr. Duong’s arguments, we
conclude the government presented ample, albeit circumstantial, evidence from
which the jury could conclude that Mr. Duong at least had reasonable cause to
believe the PSE he possessed and distributed would be used to manufacture
methamphetamine, an illegal use about which he had been specifically warned by
the DEA when he received his license to sell it. Seven owners of convenience
stores and one pastor testified that receipts for sales of PSE to their addresses
were false or fabricated. Police found approximately 15,000 empty PSE bottles
and one case label at a dump site. The lot numbers on the bottles and label
matched the lot numbers on a sales receipt made out to Mr. Duong’s company.
The government presented evidence that Mr. Duong deposited unusually large
sums of money after he was licensed to sell PSE, a particularly relevant fact
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because his only other sales were cigarettes and candy. Moreover, an Internal
Revenue Service agent testified that roughly $500,000 of bank deposits from Mr.
Duong’s company did not appear in Mr. Duong’s 1999 tax returns. The jury was
entitled to rely on all this evidence and reject Mr. Duong’s argument that Mr.
Tam Do was the wrongdoer and Mr. Duong was merely a “patsy.” Aplee. Supp.
App. at 411. As the district court noted, the “astronomical” volume of PSE that
moved through Mr. Duong’s company, even by his own reckoning of the amount,
lends credence to the jury’s finding that Mr. Duong had to know the PSE would
be used illegally. Id. at 471.
Mr. Duong was also charged with laundering money throughout the month
of May 2000. The jury acquitted him of the counts from dates prior to May 11,
but convicted him of the counts corresponding to deposits after that date.
Contrary to Mr. Duong’s argument, this result does not demand reversal. A
reasonable jury could doubt that Mr. Duong knew the money going through his
account in early May came from illegally sold PSE and still be convinced beyond
a reasonable doubt that Mr. Duong knew by the time he deposited money later in
the month that it had come from illegal drug transactions. We conclude a
reasonable jury could find Mr. Duong guilty beyond a reasonable doubt of money
laundering.
We review the district court’s denial of Mr. Duong’s motion to disclose the
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identity of a confidential informant for an abuse of discretion. United States v.
Gordon, 173 F.3d 761, 767 (10th Cir. 1999); United States v. Sinclair, 109 F.3d
1527, 1538 (10th Cir. 1997). Mr. Duong bore the burden of showing the court the
informant’s testimony was relevant or essential to the fair determination of his
case. Gordon, 173 F.3d at 767. In his motion, Mr. Duong vaguely asserted the
confidential informant had exculpatory information. See Aplt. App. at 33-34.
The district court considered the motion, conducted a hearing on the issue, and
then took the matter under advisement in order to allow Mr. Duong time to file a
supplemental submission of the specific materials he said he was relying on to
support his motion. Id. at 58. Mr. Duong did not file the supplemental materials,
and the court then found that Mr. Duong had failed to demonstrate the testimony
of the confidential informant was relevant or essential to his case, concluding the
value of the confidential informant’s testimony was speculative. Id. at 59. The
district court clearly acted within its discretion in denying Mr. Duong’s motion
when he failed to present sufficient detail explaining why the confidential
informant’s testimony was necessary to his defense. See Gordon, 173 F.3d at 768(refusing to require disclosure of informant’s identity on the basis of
“speculation”).
Moreover, Mr. Duong knew from DEA reports disclosed to him that the
informant was an employee of Mr. Duong’s company, and it appears from the
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record that Mr. Duong probably knew the informant was his employee, Mr. Do.
Thus, at trial, defense counsel’s strategy was to convince the jury that Mr. Do was
the guilty party rather than Mr. Duong, pointing to Mr. Do’s guilty plea in
Louisiana. See Smith v. United States, 273 F.2d 462, 465-66 (10th Cir. 1959) (no
abuse of discretion to deny disclosure of confidential informant where evidence
showed defendant knew who informant was). 1
Mr. Duong also contends the district court erred by admitting his tax
returns into evidence, claiming they were inadmissible to prove his character
under Federal Rule of Evidence 404(b). Because Mr. Duong did not object to the
admission of the evidence at trial, we review only for plain error. United States v.
Jones, 44 F.3d 860, 875 (10th Cir. 1995). No such error occurred here. The
government did not offer the tax returns to show Mr. Duong’s character. Instead,
it properly offered the evidence of Mr. Duong’s underreporting of his taxes to
show his knowledge that the money he was receiving came from unlawful
activity. See United States v. Briscoe, 896 F.2d 1476, 1500 (7th Cir. 1990)
(evidence of failure to file tax returns admissible under Rule 404(b) to show
knowledge and intent concerning defendant’s illicit narcotics trafficking
activities); F ED . R. E VID . 404(b) (other wrongful acts are admissible to show
1
We deny as moot the government’s motion to further supplement the
record on this point.
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knowledge).
Finally, Mr. Duong posits that the district court should not have admitted
the financial documents created by his tax preparer, Ms. Jenny Shaw. This
argument also fails. The court admitted the documents not as character evidence,
but to impeach Ms. Shaw on cross-examination after she testified that she had
prepared tax returns containing information substantially different from the
information in the documents. Aplt. App. at 228-29. Moreover, Ms. Shaw
testified that Mr. Duong was an honest person, and the exhibits were admitted to
challenge that assertion. Id. at 223.
In sum, we hold the evidence against Mr. Duong was sufficient to sustain
his conviction and the district court did not err either by refusing to disclose the
confidential informant’s identity, or by admitting into evidence Mr. Duong’s tax
returns and financial documents. For the foregoing reasons, we AFFIRM.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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