United States v. Phu Van Ho

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4174
PHU VAN HO,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonard D. Wexler, Senior District Judge, sitting by designation.
(CR-01-362)
Submitted: October 30, 2002
Decided: November 12, 2002
Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Matthew Wartel, BYNUM & JENKINS ATTORNEYS AT LAW,
Alexandria, Virginia, for Appellant. Paul J. McNulty, United States
Attorney, Kevin DiGregory, Assistant United States Attorney,
Thomas Swiers, Special Assistant United States Attorney, Alexandria,
Virginia, for Appellee.
2 UNITED STATES v. HO
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Phu Van Ho challenges his conviction and thirty-five month sen-
tence for possession of a firearm with an obliterated serial number in
violation of 18 U.S.C. § 922(k) (2000). On appeal, Ho asserts the dis-
trict court abused its discretion by: (1) denying his motion to sup-
press; (2) allowing a jury instruction on reasonable doubt; (3) refusing
to question the jury panel on their views concerning firearms during
voir dire; and (4) admitting evidence of uncharged drug possession
under Fed. R. Evid. R. 404(b). Finding no reversible error, we affirm.
Ho first asserts the district court abused its discretion in denying
his motion to suppress statements he made claiming ownership of the
gun at the police station after previously invoking his right to remain
silent at the scene of his arrest. This court reviews a district court’s
factual findings underlying denial of a motion to suppress for clear
error, while reviewing de novo whether the statements violated the
dictates of Miranda. United States v. Braxton, 112 F.3d 777, 780 (4th
Cir. 1997) (en banc). We find the district court did not err in finding
that Ho voluntarily admitted the gun was his, and thereby, Ho’s state-
ments were not the product of an improper interrogation. See Rhode
Island v. Innis, 446 U.S. 291, 300 (1980) ("police surely cannot be
held accountable for the unforeseeable results of their words or
actions"). Therefore, the district court did not err in denying Ho’s
motion to suppress.
Next, Ho argues the district court’s jury instruction on reasonable
doubt impermissibly reduced the Government’s burden of proof. A
district court’s decision whether to give a jury instruction, and the
content of that instruction, is reviewed for abuse of discretion. United
States v. Abbas, 74 F.3d 506, 513 (4th Cir. 1996). Jury instructions
are not evaluated in isolated segments, but are considered as a whole.
United States v. Cropp, 127 F.3d 354, 360 (4th Cir. 1997); see also
UNITED STATES v. HO 3
Estelle v. McGuire, 502 U.S. 62, 72 (1991) ("It is well established that
the instruction ‘may not be judged in artificial isolation,’ but must be
considered in the context of the instructions as a whole and the trial
record.") (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)).
After considering the language of the entire jury instruction on the
Government’s burden of proof and the reasonable doubt standard, we
find the district court did not abuse its discretion in giving the chal-
lenged instruction.
Ho’s third argument is that the district court’s refusal to question
the jury panel concerning their views on firearms during voir dire vio-
lated his right to a fair and impartial jury panel. Voir dire must be
"sufficient to impanel an impartial jury." United States v. LaRouche,
896 F.2d 815, 830 (4th Cir. 1990). This court allows the district court
broad discretion in conducting voir dire (see United States v. Lancas-
ter, 96 F.3d 734, 739 (4th Cir. 1996) (en banc)), and will only find
that a district court has abused its discretion if the voir dire does not
provide a reasonable assurance that prejudice would be discovered if
present. Id. at 740. Based upon the inquiries made during voir dire,
we find the district court did not abuse its discretion by failing to
question the jury panel concerning their views on firearms.
Finally, Ho argues the district court erred by admitting evidence of
crack cocaine found in the squad cars that transported Ho and his
companions to the detention center because the evidence was inad-
missible under Fed. R. Evid. R. 404(b). This court reviews a district
court’s determination of the admissibility of evidence under Fed. R.
Evid. 404(b) for abuse of discretion. United States v. Queen, 132 F.3d
991, 995 (4th Cir. 1997). A district court will not be found to have
abused its discretion unless its decision to admit evidence under Rule
404(b) was arbitrary or irrational. United States v. Haney, 914 F.2d
602, 607 (4th Cir. 1990). Because the evidence of crack cocaine was
both relevant and probative as to Ho’s motive and intent for carrying
the firearm, we find the district court did not abuse its discretion in
admitting the evidence. See United States v. Ford, 88 F.3d 1350, 1362
(4th Cir. 1996).
Accordingly, we affirm Ho’s conviction and sentence. We dispense
with oral argument because the facts and legal contentions are ade-
4 UNITED STATES v. HO
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED