United States v. Chun Hei Lam

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-15365 JUNE 15, 2011
________________________ JOHN LEY
CLERK
D. C. Docket No. 08-00404-CR-T-27-MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHUN HEI LAM,
TAM FUK YUK,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(June 15, 2011)
Before DUBINA, Chief Judge, EDMONDSON and WILSON, Circuit Judges.
PER CURIAM:
Tam Fuk Yuk (“Tam”) and Chun Hei Lam (“Lam”) were convicted for
violating 46 U.S.C. §§ 70503(a) and 70506(a)–(b), and 21 U.S.C.
§ 960(b)(1)(B)(ii), by conspiring to possess five kilograms or more of cocaine
with the intent to distribute it while aboard a vessel subject to the jurisdiction of
the United States. They also were convicted for violating 46 U.S.C. §§ 70503(a)
and 70506(a), 18 U.S.C. § 2, and 21 U.S.C. § 960(b)(1)(B)(ii), by possessing five
kilograms or more of cocaine with the intent to distribute it while aboard a vessel
subject to the jurisdiction of the United States. Tam appeals his conviction and his
resulting sentence of 180 months’ imprisonment followed by five years’
supervised release. Lam appeals his conviction and his resulting sentence of 300
months’ imprisonment followed by five years’ supervised release.
On appeal, Tam alleges that: (1) the evidence was insufficient to sustain a
conviction based on knowingly conspiring to possess cocaine with the intent to
distribute it while aboard a vessel subject to U.S. jurisdiction; (2) the district court
abused its discretion by denying Tam’s motion to dismiss the indictment because
the vessel and its contents were exculpatory and the Coast Guard destroyed them
in bad faith; (3) the district court erred by failing to declare a mistrial based on the
prosecutor’s statements regarding Tam’s financial condition because the
2
government relied on facts not in evidence; and (4) the district court abused its
discretion by denying Tam’s motion for a new trial based upon newly discovered
testimonial evidence of two of Tam’s co-defendants.
Lam—and Tam through adoption—argues that (1) the Maritime Drug Law
Enforcement Act (“MDLEA”) is unconstitutional on its face and as applied to the
facts of this case; (2) the district court erred by admitting as evidence a Chinese
maritime-safety document in determining subject matter jurisdiction; (3) the
district court abused its discretion by denying Lam and Tam’s motions to dismiss
the indictment for lack of subject matter jurisdiction under the MDLEA; and (4)
the district court erred by denying Tam and Lam’s motions to suppress the
evidence seized from the vessel because, according to them, the Coast Guard
violated appellants’ Fourth Amendment rights when he searched the vessel
without reasonable suspicion.
After careful consideration of the briefs and review of the record on appeal,
and having heard oral argument in the matter, we conclude that both appellants’
arguments lack merit. Accordingly, we deny Tam’s request to remand for
acquittal or a new trial and affirm his conviction and sentence. We also deny
3
Lam’s request to remand for acquittal or a new trial and affirm his conviction.
AFFIRMED.
4