United States v. Sean Ath

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4823
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SEAN ATH,
Defendant – Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Spartanburg. Timothy M. Cain, District Judge. (7:16-cr-00776-TMC-2)
Argued: December 10, 2019 Decided: February 21, 2020
Before GREGORY, Chief Judge, NIEMEYER, and HARRIS, Circuit Judges.
Affirmed by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Niemeyer
and Judge Harris joined.
ARGUED: Louis H. Lang, CALLISON, TIGHE & ROBINSON, LLC, Columbia, South
Carolina, for Appellant. Leesa Washington, OFFICE OF THE UNITED STATES
ATTORNEY, Greenville, South Carolina, for Appellee. ON BRIEF: Sherri A. Lydon,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia,
South Carolina, for Appellee.
GREGORY, Chief Judge:
Sean Ath challenges three drug-related convictions following a jury trial, arguing
the evidence at trial was insufficient to convict him on each. The district court denied Ath’s
motion for judgment of acquittal as to all counts. Because we find the trial evidence
sufficient to support the three convictions, we affirm.
I.
A grand jury charged Ath and six others in a five-count indictment. Ath’s co-
defendants included his brother, Soueth Ath (“Soueth”); his son-in-law, Virig Chheng; his
nephew, Anthony Pan; and Vilay Phabmisay, who testified at Ath’s trial. Three counts of
the indictment pertained to Ath: conspiracy to possess with intent to distribute and to
distribute 50 grams or more of methamphetamine (Count One); use of a communication
facility—the United States mail—to facilitate the commission of a felony under the
Controlled Substances Act (Count Two); and possession with intent to distribute and
distribution of 50 grams or more of methamphetamine (Count Three). 1 Soueth and Ath
1
Counts Two and Three also charged Ath with aiding and abetting. As set forth
herein, we find the trial evidence sufficient to show Ath’s participation in both crimes as a
principal, so we need not consider the alternative theory of aiding and abetting. See United
States v. Ealy, 363 F.3d 292, 298 (4th Cir. 2004). Nevertheless, the record supports aiding
and abetting, as the circumstances surrounding the package transfer demonstrate Ath’s
knowing association with and participation in a criminal venture. See United States v.
Burgos, 94 F.3d 849, 873 (4th Cir. 1996) (noting evidence used for a conspiracy conviction
may also prove aiding and abetting).
2
were tried together. We begin our review by examining the relevant evidence the
government presented at trial.
A.
A United States Postal Inspector named Michael Nicholson testified at trial that the
FBI contacted him in March 2014 to investigate a possible drug conspiracy in Spartanburg,
South Carolina. The investigation included several houses on Black Street in Spartanburg,
including Ath’s home located at 199 Black Street (“Ath’s Residence”). 2 Upon learning of
the investigation, Nicholson recalled that in October 2012, he had seized a parcel
containing three pounds of marijuana destined for Ath’s Residence. The parcel had been
addressed to Bun Chan, from Sammie Chheng at 429 South Backer Avenue, Apartment
202, in Fresno, California. 3 On or around October 14, 2014, Nicholson intercepted a
package shipped from Daniel S. at 5802 Stacy Street in Bakersfield to Sophie S. at 203
Black Street. Chheng’s fingerprints were found on the package, which contained a dog
food container holding six pounds of marijuana.
Nicholson next intercepted a package from Fresno on October 23, 2014, destined
for someone named Sam Chan at Ath’s Residence. The package contained 1,356.4 grams
of marijuana. On October 30, Nicholson seized a package addressed to Amanda Adams at
203 Black Street, from David Watson in Bakersfield. Nicholson found a dog food
2
South Carolina Department of Motor Vehicle records identified 199 Black Street
as Ath’s address beginning in January 2005.
3
In 2012, Soueth, Ath’s brother, lived in Apartment 201 at 429 South Backers
Avenue in Fresno. Nicholson testified it “is actually quite common” for individuals
transporting drugs through the mail to use a slight variation of a true address. J.A. 126.
3
container filled with 3,112.8 grams of marijuana. Then, on June 10, 2015, Nicholson
intercepted a package from Union City, California, intended for Hong Ho at 203 Black
Street. It contained 2,238.6 grams of marijuana in plastic dog food containers.
Phabmisay, who lived in Bakersfield at the time of his arrest, testified at trial that
Soueth and Chheng lived near him in California for several years before relocating to South
Carolina in 2015. Phabmisay further testified that Soueth had grown marijuana in
California and shipped it—in dog food containers—through the Postal Service to Soueth’s
family members in South Carolina for distribution.
Phabmisay also testified that beginning in April 2016, Chheng and Soueth, who had
relocated to South Carolina by this point, recruited him to ship methamphetamine to South
Carolina for distribution. Phabmisay “was told there was an operation going on of shipping
methamphetamine from California to South Carolina,” with Pan, Ath’s nephew, shipping
the drugs from California before Phabmisay got involved. J.A. 575. At Chheng and
Soueth’s direction, Phabmisay opened several bank accounts, including a Bank of America
account under “Vilay Phabmisay Gardening Services” (“Bank of America Account”). J.A.
583. After Phabmisay provided the account information to Soueth and Chheng, individuals
in South Carolina—some Phabmisay knew and some he did not—deposited money into
these accounts.
Phabmisay withdrew funds nearly immediately after they were deposited and gave
the money to Pan, who purchased the methamphetamine. 4 Phabmisay then shipped the
4
Phabmisay indicated the going rate for a pound of methamphetamine at the time
was $3,500 to $4,500.
4
methamphetamine to South Carolina through the Postal Service. He estimated that he had
shipped packages containing one to four pounds of the drug at least every other week,
amounting to about 18 packages total between April and September 2016. Chheng and
Soueth provided the destination addresses for the shipments, but, per their instructions,
Phabmisay “made up” the names and return addresses. J.A. 602. In fact, “[t]he only real
thing on the label would be where the package is getting shipped to.” Id. Phabmisay
testified that he had “heard about” Ath and “heard he was living” in South Carolina but
could not verify whether he sent drugs to Ath because he was not told who was on the
receiving end of his shipments. J.A. 625.
Nicholson intercepted two packages containing methamphetamine in April and May
of 2016, both adhering to the pattern set forth in Phabmisay’s testimony. Specifically,
following the quick withdrawal of cash deposits into the Bank of America account, the
packages were shipped to apparently fictitious individuals at addresses on Black Street.
Finally, on September 2, 2016, Nicholson seized a package that became the subject
of the controlled delivery central to this appeal. The parcel, which Phabmisay admitted he
sent, was addressed to Riley Ridal at Ath’s Residence, from Michael Ridal in Arvin,
California. It contained two pounds of methamphetamine. On September 7, Nicholson,
the FBI, and the Spartanburg police used about half of the seized methamphetamine (445
grams) to stage a controlled delivery.
Nicholson acted as a mail carrier to deliver the package to Ath’s Residence. When
Nicholson arrived, he knocked on the door and, receiving no response, started to walk
around to the back of the house. An individual sitting in a vehicle parked outside of 203
5
Black Street yelled to Nicholson, “he is coming.” J.A. 201. Nicholson then saw
someone—who turned out to be Ath—walking toward him from the driveway of 210 Black
Street. Once Ath arrived, Nicholson asked if Ath “was having a good day, or something
to that effect.” J.A. 204. According to Nicholson’s testimony, Ath looked at the package
but did not say anything when Nicholson handed it to him, despite the fact that it was
addressed to Riley Ridal.
Police conducted video surveillance of the controlled delivery from a nearby van
and the video, which was shown at trial, is part of the record before us. The video depicts
Ath, after receiving the package from Nicholson, walking to his front door. He places the
package on a chair on the front porch and appears to search for his keys before opening the
door. He then picks up the package and walks inside. After about a minute, Ath leaves his
house without the package, apparently without locking the door, and walks toward 210
Black Street. Within minutes, a silver car approaches Ath’s Residence.
An individual later identified as Chheng exits the vehicle, steps onto Ath’s porch,
and “walk[s] directly inside without looking for keys.” J.A. 347. Ath then returns in a
truck and walks into his house without using a key. While Chheng remains inside, Ath
alternates between standing on his front porch and going inside the house. After several
minutes, with Ath sitting on the porch, Chheng exits Ath’s Residence and carries to his car
a bag that Nicholson later confirmed contained the box of methamphetamine he had
delivered to Ath. As Chheng begins to drive away, law enforcement vehicles approach his
car. At this point, Ath leaves his porch and tries to walk in the opposite direction as officers
approach him.
6
On September 6, the day before the controlled delivery, a female had used Ath’s
driver’s license to make a $3,200 deposit into the Bank of America Account from a
Spartanburg branch. On September 7, following the controlled delivery, Ath was able to
present his driver’s license to officers. After providing Miranda warnings, an FBI agent
and a police officer interviewed Ath. 5 Although the officers questioned him in English,
which is not his first language, they testified that Ath indicated he understood, answered
questions appropriately, and did not ask for questions to be repeated. During the interview,
Ath made several statements that were proven false by the video surveillance. First, Ath
stated that when he received the package, he left it on his porch. Then, he claimed his son-
in-law picked up the package from his porch. Finally, Ath reversed course and reported he
took the package inside but brought it back to the porch, where his son-in-law retrieved it.
B.
At the close of the government’s evidence, Ath moved for judgment of acquittal.
The district court denied his motion, and the jury found Ath guilty on all three counts.
Following the verdict, Ath renewed his motion for acquittal, which the district court denied.
The court sentenced Ath to 151 months in prison. This appeal followed.
II.
Ath challenges the district court’s denial of his motion for acquittal pursuant to
Federal Rule of Criminal Procedure 29, a decision we review de novo. United States v.
5
Additionally, Nicholson asked Soueth if Ath was involved in receiving controlled
substances through the mail, to which Soueth responded, “I don’t know.” J.A. 215.
7
Zelaya, 908 F.3d 920, 925 (4th Cir. 2018). Denial of such a motion “is proper where,
viewed in the light most favorable to the prosecution, substantial evidence supports a guilty
verdict.” Id. Substantial evidence means the evidence was sufficient for a reasonable jury
to find proof beyond a reasonable doubt of each element of each offense. Id. In
undertaking this analysis, “[t]he jury, not the reviewing court, weighs the credibility of the
evidence and resolves any conflicts in the evidence presented.” United States v. Palacios,
677 F.3d 234, 250 (4th Cir. 2012). We consider the evidence “in cumulative context,”
rather than “in a piecemeal fashion.” Burgos, 94 F.3d at 863. While this standard presents
a “heavy burden” for defendants, reversal is appropriate when “the prosecution’s failure is
clear.” United States v. Pinson, 860 F.3d 152, 161 (4th Cir. 2017).
A.
Ath challenges the knowledge element of his three convictions. We first consider
his conviction for conspiracy to possess with intent to distribute and distribute
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846 (Count One).
To prove this conspiracy beyond a reasonable doubt, the government was required to show:
“(1) an agreement to distribute and possess [methamphetamine] with intent to distribute
existed between two or more persons; (2) the defendant knew of the conspiracy; and (3)
the defendant knowingly and voluntarily became a part of this conspiracy.” United States
v. Hackley, 662 F.3d 671, 678 (4th Cir. 2011) (internal quotation marks omitted). Ath does
not contend there was insufficient evidence to establish a conspiracy; instead, he argues
the government failed to show he knew about the conspiracy and that he knowingly and
voluntarily became a part of it.
8
Once the government has proven a conspiracy exists, “the evidence need only
establish a slight connection between the defendant and the conspiracy to support
conviction.” United States v. Brooks, 957 F.2d 1138, 1147 (4th Cir. 1992). The word
“slight,” however, “does not describe the quantum of evidence that the [g]overnment must
elicit in order to establish the conspiracy, but rather the connection that the defendant
maintains with the conspiracy,” which still must be proven beyond a reasonable doubt.
Burgos, 94 F.3d at 861. In other words, a defendant must know a conspiracy’s “essential
object,” but he does not need to know every detail of the conspiracy. Hackley, 662 F.3d at
679. That is, he “need not know all of his coconspirators, comprehend the reach of the
conspiracy, participate in all the enterprises of the conspiracy, or have joined the conspiracy
from its inception.” Burgos, 94 F.3d at 861. Indeed, “a defendant may be convicted despite
having played only a minor role in the overall conspiracy.” Brooks, 957 F.2d at 1147.
In Ath’s case, there is sufficient evidence to show that he knowingly became
involved in the drug conspiracy. As an initial matter, prior to the controlled delivery,
Nicholson intercepted two packages of marijuana addressed to Ath’s Residence, one in
2012 and one in 2014. A jury could reasonably infer Ath’s involvement with those
packages from Phabmisay’s testimony. Phabmisay testified that before 2015, Soueth grew
marijuana in California and shipped it to family members in South Carolina. And the 2012
parcel Nicholson intercepted en route to Ath’s Residence was from a return address that
nearly matched Soueth’s address in Fresno at the time. A reasonable jury could find that
the marijuana shipments form part of a pattern and practice that continued with the
methamphetamine package Nicholson intercepted on its way to Ath’s Residence in 2016.
9
The circumstances of the controlled delivery are critical evidence of Ath’s
knowledge of the conspiracy, as they exceed mere acceptance of a package for his son-in-
law. Cf. United States v. Rahseparian, 231 F.3d 1257, 1263 (10th Cir. 2000) (finding the
evidence showed that the defendant handled his sons’ banking, not his knowledge of their
fraudulent business). Ath returned home from a neighboring property to personally accept
the package from Nicholson. According to Nicholson, Ath looked at the package, which
was not addressed to Ath. Phabmisay testified that Chheng and Soueth provided the
destination addresses for drug shipments, but Phabmisay made up names for the
addressees—this one being “Riley Ridal.” J.A. 205. Despite the package being addressed
to a fictitious person, Ath accepted it without question, which speaks to his knowledge of
the covert drug conspiracy.
Ath then took the package into his house and left the premises, apparently without
locking the door. Within minutes, Chheng appeared and entered Ath’s Residence without
a key, confirming Ath had left the door unlocked, which a jury may find indicative of Ath’s
knowledge since Ath had to unlock his door when he initially entered to drop off the
package. Ath returned to his house and appeared to simply wait while Chheng remained
inside. Taken as a whole, a reasonable jury could determine that Ath’s behavior signifies
his knowledge of a plan to accept the drugs and hand them off to Chheng, who ultimately
emerged from Ath’s Residence with the package of methamphetamine and began to drive
away with it before law enforcement intervened.
Additionally, on September 6, 2016, Ath’s driver’s license was used to deposit
$3,200 into the Bank of America Account. Ath contends a female made this deposit and
10
there is no evidence he knew anything about it. A reasonable jury, however, could infer
his knowledge from the fact that, the very next day, after the controlled delivery, Ath
presented his license to officers for identification. Ath further points out that bank records
list April 1, 2023, as the expiration date for the license used in the September 6 transaction,
while his license actually expires on April 1, 2021. As an initial matter, the jury could find
that the bank teller made a clerical error when typing in the expiration date. 6 But in any
event, the discrepancy between the dates is insufficient to undermine the other evidence
supporting Ath’s knowledge.
Ath makes much of the fact that Phabmisay did not know or communicate with him.
But Phabmisay did not know all of the individuals involved in the conspiracy in South
Carolina, and the law does not require such knowledge. See Burgos, 94 F.3d at 861 (noting
a conspirator need not know every member of the conspiracy). Phabmisay did testify,
however, that he had “heard about” Ath and “heard he was living” in South Carolina. J.A.
625. Although Phabmisay was not told who was on the receiving end of his shipments, he
testified that he knew Soueth was shipping drugs to his family in South Carolina, and there
is no dispute Ath is Soueth’s brother. Together, these pieces of Phabmisay’s testimony
could contribute to a jury’s inference that Ath was knowingly involved in the conspiracy.
Juries may also consider false exculpatory statements as evidence of a defendant’s
“consciousness of guilt,” meaning the defendant knew he was doing something wrong or
6
In fact, Ath’s counsel framed the issue this way at oral argument: “There was a
mistake, an error . . . The expiration date on my client’s driver’s license is not the same as
the expiration date recorded by the teller.” Oral Arg. at 7:38–48, United States v. Sean
Ath, No. 18-4823 (4th Cir. Dec. 10, 2019) (emphasis added).
11
illegal, which bears on the issue of knowledge. See, e.g., United States v. Morales, 577
F.2d 769, 772–73 (2d Cir. 1978). While such statements alone might be insufficient to
establish guilt, see Rahseparian, 231 F.3d at 1263, Ath’s false statements to police after
the controlled delivery, paired with the other evidence in this case, support a finding of
guilt. See United States v. Zandi, 769 F.2d 229, 235 (4th Cir. 1985) (determining a rational
jury could find knowledge of drug possession in part from false exculpatory statements).
Ath told police that he placed the package on the porch, rather than taking it inside his
home, and that Chheng retrieved it from his porch. Ath asserts his statements were not
exculpatory because placing the package on the porch is no different from taking it inside
the house. A reasonable jury, however, could perceive the statements—which were proven
false by the video—as Ath’s attempts to distance himself from the criminal enterprise. And
despite Ath’s assertion that a language barrier affected his interactions with police, the jury
was free to credit the interviewing officers’ testimony to the contrary.
Although much of the evidence in this case is circumstantial, “a conviction may rely
entirely on circumstantial evidence.” United States v. Hassan, 742 F.3d 104, 139 (4th Cir.
2014) (emphasis added). The circumstances of the controlled delivery, coupled with the
intercepted packages previously sent to Ath’s Residence, the deposit using Ath’s license,
and his false exculpatory statements, are sufficient for a reasonable jury to infer Ath’s
knowing involvement in the conspiracy’s operations, which Phabmisay detailed at trial.
That Ath may have played a smaller role than some of his coconspirators does not mean
his conviction fails. See Brooks, 957 F.2d at 1147. Substantial evidence supports Ath’s
knowing and voluntary connection to the conspiracy—however slight. See id. The
12
foregoing evidence, viewed in the light most favorable to the government, was sufficient
for a reasonable jury to find proof beyond a reasonable doubt that Ath knew of the
conspiracy and knowingly and voluntarily became a part of it.
B.
To sustain Ath’s conviction under 21 U.S.C. § 843(b) for use of a communication
facility in the commission of a drug felony (Count Two), the evidence must have
established that Ath “(1) knowingly or intentionally (2) used a communication facility (3)
to facilitate the commission of a drug felony.” United States v. McKenzie, 396 F. App’x
949, 951 (4th Cir. 2010) (quoting United States v. Henao-Melo, 591 F.3d 798, 802 n.5 (5th
Cir. 2009)). A “communication facility” encompasses “any and all public and private
instrumentalities used or useful in the transmission of writing, signs, signals, pictures, or
sounds of all kinds.” 21 U.S.C. § 843(b). The statutory definition explicitly includes
“mail,” the communication facility at issue in this case. Id. Ath disputes, however, that
the government proved the “knowingly or intentionally” element at trial.
The same evidence that supports Ath’s conspiracy conviction also supports his
conviction under § 843(b). Ath took concerted steps to accept the package of
methamphetamine from Nicholson, apparently a mail carrier, and transfer it to Chheng.
After taking the package, which was not addressed to him, Ath placed it inside his house
before allowing Chheng to enter his home and retrieve the package. All of this occurred
without Ath pausing for a moment or raising a single question, indicating his knowledge
of the crime. Ath also lied to police about his actions regarding the package, which is
consistent with a guilty conscience. See Zandi, 769 F.2d at 235.
13
A reasonable jury could infer from Ath’s actions that he knew he was using the mail
to transfer controlled substances. Accordingly, viewed in the light most favorable to the
government, substantial evidence supports Ath’s conviction for use of a communication
facility in the commission of a drug felony, including the felonies in Counts One and Three.
C.
Finally, the jury found that Ath violated 21 U.S.C. § 841(a)(1) (Count Three), which
requires proof that a defendant (1) possessed a controlled substance; (2) knew of the
possession; and (3) intended to distribute the controlled substance. 7 United States v. Hall,
551 F.3d 257, 267 n.10 (4th Cir. 2009). Ath concedes he had actual possession of the
package containing methamphetamine, meaning he had physical control over it. 8 See
United States v. Penniegraft, 641 F.3d 566, 572 (4th Cir. 2011). Instead, Ath argues he did
not know what was in the package.
Ath’s actions surrounding the controlled delivery, along with his false statements to
police that he placed the package on the porch for Chheng, form a sufficient basis upon
7
Although Ath does not address it, Count Three also charges distribution of 50
grams or more of methamphetamine. The evidence is sufficient to show that Ath
“distributed” the methamphetamine pursuant to the statutory definition because he
“delivered” the package to Chheng by transferring it to him. See 21 U.S.C. §§ 802(8), (11)
(to “distribute” a controlled substance means to “deliver” it, and “delivery” is defined as
“the actual, constructive, or attempted transfer of a controlled substance”).
8
Ath neither concedes nor disputes the intent to distribute element, but substantial
evidence supports it. Indeed, a large quantity—two pounds—of methamphetamine was
shipped to Ath’s Residence. See United States v. Collins, 412 F.3d 515, 519 (4th Cir. 2005)
(listing quantity of drugs as an indicator of intent to distribute). Moreover, Nicholson
recalled finding a box of plastic bags when he recovered the bag Chheng carried to his car
from Ath’s Residence. See United States v. Fisher, 912 F.2d 728, 730 (4th Cir. 1990)
(noting intent to distribute can be inferred from drug-packaging paraphernalia).
14
which a reasonable jury could infer that Ath knew the package Nicholson delivered
contained a controlled substance. We have already established that substantial evidence
supports Ath’s connection to the drug conspiracy—and that connection relies in part upon
his knowledge of the package’s contents. Specifically, he accepted the package without
question, even though it was not addressed to him, and left it in his unlocked residence.
Chheng arrived mere minutes later, followed by Ath, who simply waited while Chheng
retrieved the package from inside his home. Moreover, Phabmisay detailed the
conspiracy’s operation of shipping methamphetamine from California to South Carolina—
which included the package of methamphetamine that Nicholson intercepted and used for
the controlled delivery to Ath. A reasonable jury, considering all of the facts pertaining to
the conspiracy as well as Ath’s behavior during and after the delivery, could find that Ath
knew the package contained methamphetamine.
Thus, construing the evidence in the light most favorable to the government, a
reasonable jury could find beyond a reasonable doubt that Ath knew the package that
Nicholson delivered contained methamphetamine.
D.
For each count, the district court found Ath was “at the very least . . . willfully blind
to the unlawfulness of his actions.” E.g., J.A. 989 (quoting United States v. McIver, 470
F.3d 550, 563–64 (4th Cir. 2006)). The government can use willful blindness to satisfy a
crime’s knowledge requirement by showing the defendant “purposely close[d] his eyes to
avoid knowing what was taking place around him.” McIver, 470 F.3d at 563. This limited
doctrine imposes two requirements: “(1) the defendant must subjectively believe that there
15
is a high probability that a fact exists and (2) the defendant must take deliberate actions to
avoid learning of that fact.” United States v. Hale, 857 F.3d 158, 168 (4th Cir. 2017).
We do not believe the record here supports a finding of willful blindness because
we cannot identify any deliberate actions that Ath took to avoid learning of the conspiracy
or the contents of the package that was shipped to his residence. Nevertheless, we may
affirm the district court “on any grounds apparent from the record.” United States v. Smith,
395 F.3d 516, 519 (4th Cir. 2005). For the foregoing reasons, substantial evidence
demonstrates Ath’s actual knowledge for each count, so we affirm on those grounds.
III.
The trial evidence in this case is sufficient to prove Ath’s knowledge for all three
counts of conviction. Accordingly, without relying on the willful blindness doctrine, we
affirm the district court’s denial of Ath’s motion for judgment of acquittal as to each count.
AFFIRMED
16