United States v. Dong Dang Huynh

Case: 09-20762 Document: 00511419240 Page: 1 Date Filed: 03/22/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 22, 2011
No. 09-20762 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DONG DANG HUYNH,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas, Houston
USDC No. 4:05CR351-2
Before REAVLEY, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
This is a direct criminal appeal from convictions for money laundering,
conspiracy to commit money laundering, and conspiracy to defraud the United
States by failing to file currency transaction reports. 18 U.S.C. §§ 1957, 1956(h),
and 371. Finding no reversible error, we AFFIRM.
I. BACKGROUND
The defendant-appellant, Dong Huynh (Dong), immigrated to the United
States in 1982 and became a naturalized United States citizen in 1991. Dong
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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founded US Tours and Remittance (US Tours), which did business as both a
travel agency and a money remittance service. The majority of US Tours’ travel
business consisted of traveling to Vietnam. The money remittance services were
utilized primarily by persons of Vietnamese heritage sending money to Vietnam.
Dong established nine US Tours offices in California and Texas. As the head of
US Tours, Dong determined the hours and pay for the employees. Clientele
would bring their money to US Tours, and the money would be deposited into
the company’s bank accounts and then transferred to Vietnam for a fee based on
a percentage. Federal banking regulations require that a currency transaction
report (CTR) be filed any time the transfer of cash was $10,000 or more. In
Texas, state law required reporting cash transactions more than $3,000. It is
undisputed that Dong was aware of these reporting requirements.
In 2003, Canadian authorities alerted the FBI that US Tours was
laundering money for Thi Phuong Mai Le (Mai Le), who was a Canadian citizen.
The Canadian authorities shared their information with the FBI, including
audio of wiretapped calls. The FBI also obtained warrants to wiretap phones
and searched US Tours’ records. The FBI conducted a sting operation, and Duc
Huynh (Duc), Dong’s nephew and manager of the Houston branch of US Tours,
agreed to accept $610,000 from a cooperating witness who represented that the
proceeds were from illegal activity. Duc and others, including Dong, were
indicted for failing to file CTR’s. Ultimately, the charges against Dong were
dismissed and accordingly he was not prosecuted for the charges stemming from
the sting operation. Duc, however, pleaded guilty to that indictment and
cooperated with the government.
Subsequently, a grand jury in the Southern District of Texas issued
another indictment charging that during the time period from January 2003
through March 2004, Dong and Mai Le conspired to launder money generated
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from the sale of controlled substances, committed 11 substantive acts of money
laundering, and conspired to defraud the United States by failing to file CTR’s.
At Dong’s trial, the evidence demonstrated that Kiet Duc Ha (Ha) was a
Canadian drug dealer involved with Mai Le’s business. Mai Le and Ha recruited
couriers to transport large amounts of cash from drug sales to US Tours in
Houston. At Mai Le’s request, Tuan Nguyen (Nguyen) traveled from Orlando,
Florida, to Houston in December 2002 and delivered a “few hundred thousand”
dollars in cash to US Tours. Nguyen would usually call Dong to arrange the
meeting once he arrived in Houston; however, on this occasion, Dong was not at
US Tours. Instead, someone named Ms. Phan accepted the cash at US Tours.
After Ms. Phan and Nguyen counted the money, Nguyen called Mai Le to let her
know that he had successfully delivered the money to US Tours. Although
Nguyen had never before met Ms. Phan, she did not give him a receipt for the
deposit of this “few hundred thousand” dollars.
In January 2003, Nguyen picked up money as directed by Mai Le from an
individual in New York City. In addition to the money, Nguyen received a free
bag of marijuana. Still acting as a courier for Mai Le, Nguyen also picked up
money in North Carolina and a third location on the East Coast. Nguyen and
a friend named Tuan Phan drove the money to Houston, arriving in the early
morning hours. Dong let Nguyen inside the office at US Tours. Nguyen
personally delivered $562,400 in cash to Dong at US Tours. Nguyen carried it
in “a big carton box” or bag. The money consisted of “crumpled and old bills”
that had been “packed up in different ways.” Dong and Nguyen counted the cash
together. Nguyen testified that Dong never asked for a driver’s license, social
security number, or date of birth.
Subsequently, Mai Le’s cousin, Dieu Xuan Hoang (known as Hoang or Bi),
acted as a courier and picked up $500,000 in North Carolina and transported the
cash, which was rubber-banded bundles of bills, in an appliance box to US Tours
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in Houston. After the money was delivered to US Tours, Dong called Duc to
make sure it had been received.
Quy Hanh Luu (Luu) also acted as a courier for Mai Le and transported
the illegal drug Ecstasy to a restaurant in New Orleans. Upon arrival at the
restaurant, he picked up cash from previous drug sales, drove to US Tours in
Houston, and deposited the cash. Luu testified that in October 2003, while
traveling from New Orleans to Houston with $100,000 in cash, the state police
stopped him for a traffic violation and confiscated the money.
Similarly, in August 2003, at Mai Le’s request, Hoang collected $133,000
in Seattle and was taking the money to deposit at a US Tours in Oakland,
California. Hoang was stopped by the police and a canine alerted to the scent
of drugs on the cash. The police detained Hoang and seized the money. Hoang
called Mai Le, who in turn called Dong. During these taped phone calls, Dong,
referring to the seized money, said: “That’s my money” and directed Hoang to
delete or throw away his cell phone. Dong said if he did not, “we’re dead.” Dong
directed Hoang to stick to the story he had previously told the police–that a
relative in Vietnam had sent him money to open a jewelry store.
The evidence also demonstrated that Dong instructed his employees with
respect to recording the deposits from Mai Le and other “special customers” who
were repeat customers bringing large amounts of cash. When Duc began
working for Dong in the Houston branch of US Tours, Dong informed Duc that
certain people would be bringing large amounts of cash. Duc was aware that the
regulations required any deposit over $10,000 to be reported. However, Dong
did not instruct him to ask for the customer’s name, social security number, or
driver’s license number. Instead, Dong told him to “just take the money.” Dong
instructed Duc to divvy up the large quantities of cash into smaller amounts and
deposit funds in consistent amounts on a daily basis to avoid suspicion. The
funds in US Tours’ bank accounts would be transferred a few times a week to the
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account of Cuu Kim Son, a business in Vietnam run by Dong’s brother. In a
taped call, Dong instructed Duc to move some of the money from the Houston
branch to the Arlington branch. Duc testified that they needed to do so because
the Houston branch “had so much money we cannot handle it.” During the call
Dong advised Duc to “[r]emember that the deposit will be in the federal record
so we cannot put it in carelessly.” Duc understood Dong to mean that “we should
not deposit too much” in a single day. Dong instructed Duc to make a record of
deposits from customers who deposited small amounts so that there would be a
record “in case the bank inspect[s] it.”
Sinh Dat Nguyen, who was not charged with respect to the instant
offenses, was US Tours’ accountant. Dong made sure that the accountant was
unaware of the secretive operations. Dong had Duc record only the money
deposited in some of US Tours’ bank accounts. Dong had Duc create two sets of
ledgers to falsely state that the deposits were below $3,000. During the time
period from January of 2003 through March of 2004, the Houston branch of US
Tours deposited over $24 million from Dong’s special customers, including Mai
Le, without filing a single CTR.
On one occasion, Duc asked Dong for permission to accept a last-minute
$250,000 deposit from a special customer. Duc testified that he had to secure
permission from Dong “[b]ecause that’s a large amount of money.” Dong told
Duc to “charge a price that’s worthwhile” and laughed about the ability to double
the fee.
Dong testified at trial that Duc actually ran US Tours. Dong’s testimony
also sought to point the finger at Dong Phan, Duc’s brother-in-law, as a likely
leader of the illicit operation. Dong also offered explanations for the
incriminating remarks he had made on the recorded phone calls. For instance,
he claimed that he directed Hoang (who had had money seized by the police) to
delete the numbers from his cellphone because he feared that the thieves who
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had robbed Hoang would track him by “scanning” his phone. Dong claimed that
he told Mai Le to deposit money in uneven amounts under $9,000 so that US
Tours could identify it as Mai Le’s money.
After hearing the evidence and closing arguments, the jury convicted Dong
of conspiring to launder money, conspiring to fail to file CTR’s, and seven of the
remaining substantive money laundering counts. The district court sentenced
Dong to a 264-month term of imprisonment, which was within the sentencing
guideline range. Dong now appeals.
II. ANALYSIS
A. Prosecutor’s Use of Co-Conspirators’ Guilty Pleas
Dong contends that the government improperly used the guilty pleas of
two of his co-conspirators, Luu and Nguyen, as substantive evidence of his guilt.
As Dong acknowledges, because counsel made no such objection in the district
court, our review is for plain error. See Fed.R.Crim.P. 52(b). Before an appellate
court can correct an error not raised below, there must be: (1) error; (2) that is
plain; and (3) that affects substantial rights. United States v. Olano, 507 U.S.
725, 732 (1993). If all three prerequisites are met, the Court may exercise its
discretion to correct a forfeited error, but only if the error seriously affects the
fairness, integrity, or public reputation of the judicial proceedings. Id.A co-conspirator’s guilty plea is not admissible as substantive proof of a
defendant’s guilt; however, this Court has “recognized an exception when the
record reflects a defense strategy that relies on the co-conspirator’s guilt.”
United States v. Samak, 7 F.3d 1196, 1198 (5th Cir. 1993). More specifically, “a
defendant will not be heard to complain of its admission when he instigates such
admission, or attempts to exploit the evidence by frequent, pointed, and direct
references to the co-conspirator’s guilty plea.” Id. This Court considers the
following factors when determining the admissibility of a co-conspirator’s guilty
plea: “(1) presence or absence of a limiting instruction; (2) proper evidentiary
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purpose in introducing the guilty plea; (3) improper use of the guilty plea as
substantive evidence of the defendant’s guilt; and (4) whether the introduction
was invited by defense counsel.” Id.As to the first factor, Dong’s defense counsel did not request a limiting
instruction regarding the prosecutor’s use of the co-conspirator’s guilty pleas.1
“Ordinarily, when the jury learns of a codefendant’s guilt for the same or similar
offenses, and the defense counsel does not request that a curative instruction be
given, the failure of the trial judge to give one will not require reversal.” United
States v. DeLucca, 630 F.2d 294, 299 (5th Cir. 1980). “Only in those rare
situations in which other ‘aggravating circumstances’ have exacerbated the
prejudice will the failure to give cautionary instructions result in plain and
reversible error.” Id. The government, however, does not concede that the
instructions were necessarily inadequate. Instead, the government points to the
court’s charge instructing the jury with respect to considering the testimony of
a cooperating witness: “The testimony of a witness convicted of a crime who
provides evidence against the Defendant with the hope of receiving a lesser
sentence than one he would, otherwise, receive must always be examined and
weighed by the jury with greater care and caution than the testimony of
ordinary witnesses.” In his reply brief, Dong responds that those instructions
are relevant to the co-conspirators’ credibility but do not instruct the jurors that
Dong’s co-conspirators’ guilty pleas cannot be used as substantive evidence of his
guilt. In a somewhat similar plain error case, this Court held that a jury charge
instructing that evidence of witnesses’ prior convictions was to be considered “as
reflecting upon their credibility as witnesses only” was “sufficient to avoid jury
consideration of [the testifying witness’s] plea as relevant to [the defendant’s]
guilt or innocence.” United States v. King, 505 F.2d 602, 606, 609 (5th Cir.
1
We note that Nguyen and Luu pleaded guilty to charges that were in a separate
indictment from the one charging Dong.
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1974). Of course, the charge in the case at bar did not limit the jury to only
considering the convictions in terms of credibility. However, we note that the
court also instructed the jury that it was not to be “concerned with the guilt of
any other person or persons not on trial as a Defendant in this case.” All in all,
we conclude that this factor does not weigh strongly in favor of either party.
The second factor favors the government because “[p]reemptively
introducing a plea to counteract anticipated defense efforts at impeachment is
a proper purpose.” United States v. Setser, 568 F.3d 482, 494 (5th Cir. 2009).
Here, during opening statement, defense counsel, referring to Dong’s co-
conspirators, stated that they had pleaded guilty “in exchange for the length of
time that they would spend behind bars, and you will hear from these people
who are still trying to gain some sort of advantage from their sentence as a
consequence of being in the system to the prosecution.” Indeed, defense counsel,
referring to Nguyen by name, referred to him as a “convicted felon.” Thus, the
government had a proper purpose in preemptively questioning Nguyen and Luu
about their guilty pleas on direct examination.
With respect to the third factor, Dong asserts that the government
improperly used the co-conspirators’ guilty pleas as substantive evidence of his
guilt. He points to the prosecutor’s questioning of Nguyen and Luu regarding
their guilty pleas. The prosecutor asked both Nguyen and Luu whether they had
pleaded guilty to money laundering. The prosecutor also questioned Luu with
respect to his guilty pleas for drug trafficking and perjury. This questioning was
relatively brief in that it covered a few pages out of a total of over 100 pages of
the prosecutor’s examination of these two witnesses. Further, our review of the
questioning leaves us with the impression that the prosecutor was attempting
to demonstrate for the jury whether the witnesses were hoping to gain favorable
treatment for their testimony. In response to the government’s questioning,
Nguyen testified that he was cooperating and hoped to obtain a sentence
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reduction based on his testimony. Luu, however, testified that he was not a
cooperating witness and had no agreement with the government in exchange for
his testimony. We conclude that the government did not improperly use the
guilty pleas as substantive evidence of guilt during the examination of the
witnesses. However, during closing argument, the government stated that Luu
“pled guilty to perjury because he said that money was not drug money.” “So it
clearly was drug money and he pled guilty for lying about it and saying it wasn’t.
So it should be very clear.” This closing argument improperly relied upon Luu’s
guilty plea as substantive evidence that the source of the laundered funds was
illegal. In other words, that argument improperly used Luu’s guilty plea to
prove that the laundered money was drug-trafficking proceeds. In sum,
although the government properly questioned the witnesses regarding their
guilty pleas, it improperly relied upon Luu’s guilty plea during closing argument.
Under those circumstances, this factor weighs in favor of Dong.
Finally, defense counsel invited the use of the guilty pleas by referring to
them in his opening statement. During opening statement, defense counsel
generally referred to the testifying witnesses and stated that the government
offered “to resolve [their cases] short of trial and in exchange for the length of
time that they would spend behind bars, and you will hear from these people
who are still trying to gain some sort of advantage from their sentence as a
consequence of being in the system.”
In addition, defense counsel cross examined Nguyen regarding his plea of
guilty, inquiring whether he understood that: “If the prosecutors take the
position that you’ve been cooperative, they can pass it on to your [sentencing]
judge; if they take the position that you haven’t been, they’ll so indicate.”
Defense counsel questioned Nguyen further regarding whether his possible
sentence reduction depended on the prosecutor or the judge. Defense counsel
asked “have you, since that time of your entering the plea of guilty, gone to
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Mississippi to answer any charges there that were filed against you for the
possession of the marijuana?” Subsequently, defense counsel questioned Nguyen
about when he had pleaded guilty and his meeting with the prosecutors: “Didn’t
you tell that [Quang was buying cashier’s checks] to the law enforcement people
after you entered your plea of guilty?” “And you did so for the purpose of trying
to demonstrate to the prosecutors that you were trying to be cooperative, weren’t
you?” Defense counsel also questioned Nguyen regarding whether he “wrote a
letter to the federal judge that you pled guilty to.” With respect to Luu, the
other co-conspirator, defense counsel questioned him about his perjury
conviction. Further, during closing argument, defense counsel referred to Luu’s
plea of guilty to perjury. In light of defense counsel’s use of the guilty pleas
throughout trial, we find this factor weighs in favor of the government.
To summarize, with respect to the first factor, although the jury
instructions were incomplete, Dong’s counsel failed to request the remainder of
the proper limiting instruction. With respect to the second factor, the
prosecutor’s preemptive questioning about the guilty pleas served a proper
evidentiary purpose. As to the third factor, although the government properly
questioned the witnesses regarding their pleas, the prosecutor improperly
argued that Luu’s guilty plea proved that the money was drug proceeds.2 As to
the fourth and final factor, defense counsel exploited the co-conspirators’ guilty
pleas during opening statement, cross examination, and closing argument. A
“defense strategy that itself heavily relies on the guilty pleas with ‘frequent,
pointed, and direct references,’ defeats subsequent attempts to claim error in the
government’s use of the pleas.” See Setser, 568 F.3d at 494 (quoting United
States v. Leach, 918 F.2d 464, 467 (5th Cir. 1990)). Here, the second and fourth
2
Even assuming this particular instance constituted error that was plain, we do not
find that it affected Dong’s substantial rights in light of the other evidence demonstrating that
the funds were derived from an illegal source.
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factors weigh in favor of the government. This Court has held that when two
factors weigh in favor of finding that it was proper to admit the guilty plea, “it
is not possible” to find plain error. United States v. Murray, 988 F.2d 518, 528-
29 (5th Cir. 1993). Accordingly, we are persuaded that Dong has failed to show
that the district court committed plain error in allowing the use of Nguyen’s and
Luu’s guilty pleas. In any event, the in-court testimony of Nguyen and Luu and
the other evidence at trial is so overwhelming as to guilt that any use of the
guilty pleas did not affect Dong’s substantial rights.
B. Sufficiency of the Evidence
Dong was convicted of conspiring to commit money laundering in violation
of § 1956(h). “To establish conspiracy to commit money laundering, the
government must prove (1) that there was an agreement between two or more
persons to commit money laundering and (2) that the defendant joined the
agreement knowing its purpose and with the intent to further the illegal
purpose.” United States v. Fuchs, 467 F.3d 889, 906 (5th Cir. 2006); see also
United States v. Guillermo Balleza, 613 F.3d 432, 433 n.1 (5th Cir. 2010)
(clarifying that the Supreme Court has held that an overt act is not an element
of conspiracy to launder money under § 1956(h)).
Because Dong moved for judgment of acquittal at the close of the
government’s case, the standard of review is whether “a rational trier of fact
could have found that the evidence established the essential elements of the
offense beyond a reasonable doubt.” United States v. Lopez, 74 F.3d 575, 577
(5th Cir. 1996). This Court considers “the evidence, all reasonable inferences
drawn therefrom, and all credibility determinations in the light most favorable
to the prosecution.” Id. This Court does not weigh the evidence or assess the
credibility of witnesses. Id. “The evidence need not exclude every reasonable
hypothesis of innocence or be wholly inconsistent with every conclusion except
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that of guilt, and the jury is free to choose among reasonable constructions of the
evidence.” Id.
1. Drug Proceeds/Profits
Dong first contends that the government failed to produce sufficient
evidence that the instant financial transactions involved “profits” of unlawful
activity. He contends that the evidence proved that the monies were gross
receipts of the drug trafficking–not actual profits. Dong’s contention is based on
the Supreme Court’s opinion in United States v. Santos, 553 U.S. 507 (2008). In
Santos, a plurality of four justices interpreted the term “proceeds” in § 1956 to
mean “profits” instead of “gross receipts.” Id. at 513-14. Although Justice
Stevens concurred in the plurality’s judgment, he did not concur in the opinion’s
conclusion that “proceeds” always means “profits.” Id. at 524-28. Instead,
Justice Stevens “would interpret ‘proceeds’ in the statute to mean one thing in
some criminal contexts and another thing in other criminal contexts.” United
States v. Brown, 553 F.3d 768, 783 (5th Cir. 2008). More specifically, Justice
Stevens agreed with Justice Alito’s dissenting opinion that the “legislative
history of § 1956 makes it clear that Congress intended the term ‘proceeds’ to
include gross revenues from the sale of contraband.” Santos, 553 U.S. at 525-26(Stevens, J., concurring in the judgment). Here, the evidence demonstrated that
Dong was laundering proceeds from drug trafficking through his corporation, US
Tours.
In a recent opinion, this Court held that because Justice Stevens’
concurrence is on the narrowest grounds, his opinion “controls and therefore
determines the scope of the Court’s holding.” Garland v. Roy, 615 F.3d 391, 399
(5th Cir. 2010).3 As Dong concedes in his reply brief, applying Justice Stevens’
analysis forecloses the argument that the government was required to prove that
3
In fact, the plurality expressly recognized the “the stare decisis effect of Justice
Stevens’ opinion.” Santos, 553 U.S. at 523.
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the laundered money constituted profits from drug trafficking in the instant
case. See also United States v. Smith, 601 F.3d 530, 544 (6th Cir. 2010) (opining
that “Santos itself makes clear that it does not apply to the present situation
[i.e., conspiracy to distribute cocaine], and any error in not instructing the jury
that ‘proceeds’ means ‘profits’ was not plain”). Accordingly, Dong’s claim of
insufficient evidence based on failure to show that the laundered money was
drug profits is without merit.
2. Concealment
Dong next contends that the government failed to adduce sufficient
evidence of concealment to sustain a conviction for “money laundering
concealment under 18 U.S.C. § 1956(a)(1)(B)(i).” However, as the government
points out, Dong was not convicted of violating § 1956(a); instead, he was
convicted of conspiracy to commit money laundering in violation of § 1956(h),
and substantive counts of money laundering in violation of § 1957. Neither
§ 1956(h) nor § 1957 contains an element of concealment. “It is settled law that
conspiring to commit a crime is an offense wholly separate from the crime which
is the object of the conspiracy.” United States v. Threadgill, 172 F.3d 357, 367
(5th Cir. 1999). Therefore, this Court has “consistently held that a conspiracy
charge need not include the elements of the substantive offense the defendant
may have conspired to commit.” Id. Accordingly, the government did not have
to prove concealment to sustain Dong’s conspiracy conviction under § 1956(h).4
4
Nonetheless, in his reply brief, Dong asserts that because the jury charge actually
required a finding that Dong knew the transaction was designed to conceal the nature of the
proceeds, the evidence must conform to the charge. The jury was instructed to find more than
was required under Fifth Circuit law. Dong was not harmed by this instruction; instead, it
was favorable to him. Cf. United States v. Jackson, 983 F.2d 757, 768 (7th Cir. 1993)
(declining to reverse conviction because charge actually benefitted defendant by erroneously
requiring jury to find more than required by statute).
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3. Knowledge of Unlawful Activity
Dong further argues that the evidence is insufficient to demonstrate that
he knew the funds were the proceeds of unlawful activity. He contends that the
only evidence of his knowledge was contained in Mai Le’s statements introduced
through the testimony of FBI Agent Chiue. We cannot agree that this is the only
evidence of Dong’s guilty knowledge. For example, the evidence demonstrated
that Dong personally received a delivery of $562,400 cash in a travel bag. The
bills were crumpled and held together by rubber bands. In the context of
determining whether a defendant knowingly possessed contraband, this Court
has long considered a large amount of cash to be an indicator of guilty
knowledge. See, e.g., United States v. Ortega Reyna, 148 F.3d 540, 544 (5th Cir.
1998). Indeed, it is a “common sense reality of everyday life . . . that legitimate
businesses do not transport large quantities of cash rubber-banded into bundles
and stuffed into packages in a backpack.” United States v. $ 242,484.00, 389
F.3d 1149, 1161 (11th Cir. 2004).
Additionally, when it was reported to Dong that Hoang, also known as
“Bi,” had been arrested and the money he was carrying seized, Dong instructed
Mai Le to throw away “Bi’s” cell phone or delete the phone numbers or they all
were “dead.” Viewed in the light most favorable to the verdict, a rational jury
could have easily concluded beyond a reasonable doubt that Dong had knowledge
that the funds used were proceeds of illegal activity.
C. Trial Errors
1. Preserved Error
Dong raises numerous trial errors. Dong argues that the district court
abused its discretion in allowing the government to elicit Agent Irey’s testimony
that she thought Dong’s residence was worth more than $300,000. Because the
government’s evidence did not directly connect Dong’s home to the charged
offenses, we conclude that the district court abused its discretion in allowing this
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testimony over objection. See United States v. Nill, 518 F.2d 793, 802 (5th Cir.
1975) (explaining that “[a] man’s wealth is wholly irrelevant to his guilt or
innocence in a criminal prosecution unless the wealth is directly connected to the
offense for which he is standing trial”). Nonetheless, we find that, in light of the
overwhelming evidence of Dong’s guilt, including the delivery to Dong of a box
containing over $500,000 in cash, this brief testimony constitutes harmless
error.5
Dong further argues that the district court erred in allowing the
prosecutor to provide an oral summary of the testimony after the trial had been
recessed several weeks due to defense counsel’s illness.6 The district court
overruled Dong’s objection to allowing the prosecutor’s summation. However,
the district court properly instructed the jury that the prosecutor’s summation
of the testimony was not evidence and that the jury should rely on its own
recollection. A “jury is presumed to follow the court’s instructions.” United
States v. Bieganowski, 313 F.3d 264, 288 (5th Cir. 2002), In light of this
instruction, any error would be harmless.7
Dong also complains about the exclusion of a transcript that he sought to
enter into evidence as a violation of his Sixth Amendment right to confrontation
and an abuse of discretion. The right to confrontation bars the admission of out-
of-court testimonial statements unless the witness was unavailable to testify,
and the defendant had a prior opportunity for cross-examination. Crawford v.
5
Dong also contends that the district court erroneously allowed two hearsay
statements attributed to police officers. Our careful review of the challenged testimony leads
us to conclude that neither statement constitutes hearsay.
6
Additionally, Dong contends that the district court abused its discretion in refusing
to allow defense counsel to likewise give a summation. However, our review of the record
reveals no such request, and Dong does not provide a record citation.
7
We note that the district court allowed the jurors to take notes during the trial in an
effort to aid them in their recall of the evidence.
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Washington, 541 U.S. 36, 68 (2004).8 Here, the statements were not admitted
into evidence. Dong has not shown a Sixth Amendment violation. Moreover,
the district court did not abuse its discretion in denying the admission of the
transcript without the “testimony of a qualified witness to authenticate and
verify the translation.” United States v. Sutherland, 656 F.2d 1181, 1201 (5th
Cir. 1981).9
2. Plain Error
Dong contends that the district court committed plain error by failing to
instruct the jury with respect to the consideration to be given the expert
testimony of Agents Chiue and Irey. Because the complained-of testimony either
was duplicative of other evidence or undisputed, Dong is precluded from showing
that his substantial rights were affected. Olano, 507 U.S. at 732-34.
Next, Dong contends that the admission of Mai Le’s testimonial
statements regarding the illegal source of the laundered money that came in
through Agent Chiue’s testimony violated his rights under the Confrontation
Clause.10 The government responds that the error was invited by defense
counsel’s cross examination of Agent Chiue. We need not determine whether
the error was invited because, in light of the other evidence discussed above
8
If the government had introduced the transcript in question without the person who
had translated the audiotapes, then that may have constituted a Confrontation Clause
violation.
9
We further note that the district court gave the defense ample opportunity to
challenge the reliability of the government’s translations and counter with its own translation.
10
The government does not even attempt to argue that the evidence was not
testimonial in violation of the Confrontation Clause.
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No. 09-20762
demonstrating that the funds were derived from illegal activity,11 Dong cannot
show that his substantial rights were affected under the plain error standard.
Dong also contends that Agent Irey’s testimony constitutes impermissible
bolstering that rises to the level of plain error. We reject this contention
because, in light of the testimony establishing that Dong laundered money
through US Tours, he has not shown that any error affected his substantial
rights.12
D. Conflict of Interest
Dong contends that he received ineffective assistance of counsel because
his trial counsel operated under an actual conflict of interest. On April 6, 2004,
Dong, Duc, and five of Dong’s other family members were charged with failing
to file CTRs and money-laundering offenses. Dong retained Richard “Racehorse”
Haynes (Haynes) and retired United States District Judge John Singleton
(Singleton) as his attorneys. Dong paid for Walter Boyd (Boyd) to represent Duc
and also paid the legal fees for the other indicted employees. The defendants
entered into a joint-defense agreement requiring the sharing of relevant
information.
Duc pleaded guilty to the conspiracy count on June 2, 2005. Eleven days
later, Haynes and Boyd formed the law firm of Haynes, Boyd and Associates
(Haynes & Boyd). Neither the attorneys nor the government advised the district
11
It should be noted that the government does not have to prove the specific illegal
activity that generates the proceeds. See 18 U.S.C. § 1956(c)(1) (“the term ‘knowing that the
property involved in a financial transaction represents the proceeds of some form of unlawful
activity’ means that the person knew the property involved in the transaction represented
proceeds from some form, though not necessarily which form, of activity that constitutes a
felony under State, Federal, or foreign law”).
12
Dong contends that the above claims result in cumulative trial error. Because Dong
has not demonstrated that “constitutional errors so ‘fatally infect[ed] the trial’ that they
violate[d] the trial’s ‘fundamental fairness,’” he is not entitled to relief under the
cumulative-error doctrine. United States v. Stephens, 571 F.3d 401, 412 (5th Cir. 2009).
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No. 09-20762
court of the new partnership. In June, Boyd accompanied Duc on two of his
multiple debriefing sessions with the government.
The instant indictment, charging only Dong and Mai Le with various
conspiracy charges was returned on August 24, 2005. At a March 2006 meeting
with Dong and his counsel, FBI Agent Chiue made a presentation of the
government’s case including the expected testimony of its cooperating witnesses.
During the same period, pursuant to the joint defense agreement, Boyd revealed
to Haynes the information that Duc had provided in government debriefings.
The partnership of Haynes & Boyd ended on May 7, 2007.
Dong’s trial began on June 2, 2008, more than one year after Haynes &
Boyd had disbanded. Boyd was not part of the defense team, did not know the
trial was going forward, and did not attend the trial. Dong’s defense was to
blame the criminal conduct on Duc and Dong Phan, Duc’s brother-in-law.
About one year after his conviction, Dong’s newly retained counsel filed a
notice of conflict and motion for a new trial based on Haynes & Boyd’s dual
representation of Dong and Duc. After a three-day evidentiary hearing, the
district court found, contrary to Dong’s allegation, “that Dong knew Duc had
pleaded guilty, was cooperating with the government, and would testify against
him at trial.” The court determined that there was no actual conflict of interest
because Haynes’ “constructive representation of Duc” had “unambiguously
terminated more than one year before” Dong’s trial and the pre-trial
representation had given Dong access to confidential information regarding
Duc’s cooperation. The court also concluded that Dong had failed to establish
that any conflict of interest had an adverse effect on Haynes’ performance either
at the pre-trial stage or at trial.
Dong contends that he is entitled to a new trial because his counsel,
Haynes, operated under an actual conflict before and during the trial that
compromised Dong’s defense. Dong further contends that the interest of Haynes
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No. 09-20762
in representing Dong was in actual conflict with his former partner’s interest in
representing Duc.
As previously mentioned, the district court was not made aware of a
potential conflict prior to trial. “In order to establish a violation of the Sixth
Amendment, a defendant who raised no objection at trial must demonstrate that
an actual conflict of interest adversely affected his lawyer’s performance.”
Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). Dong has not established an
adverse effect from the alleged conflict of interest. “[T]o show adverse effect, a
petitioner must demonstrate that some plausible defense strategy or tactic might
have been pursued but was not, because of the conflict of interest.” Perillo v.
Johnson, 79 F.3d 441, 449 (5th Cir. 1996).13
To show adverse effect, Dong first contends that due to the joint
representation, “Haynes was unable to debrief Boyd or Duc about Duc’s case.”
At the evidentiary hearing, however, Boyd testified that, pursuant to the joint
defense agreement, he “told Richard Haynes exactly what Duc had proffered” to
the government. Boyd also testified that when the prosecutor asked him why
Dong would not take the five-year “deal,” he told the prosecutor that he “had no
idea, that [he had] built a double ‘Chinese wall’ around this case, that [Dong’s]
case was [Haynes’] problem and not [his], and [he] didn’t want to know
anything.” Haynes testified that Dong was present for the prosecution’s
PowerPoint presentation of the evidence against him and knew Duc was going
to testify against him at trial. After reviewing the government’s evidence, both
defense attorneys, Haynes and Singleton, “pleaded with Dong to accept the five
years.” The district court credited the attorneys’ testimony, finding that Haynes
& Boyd’s partnership provided Dong with “information about Duc rather than
13
We find it unnecessary to address whether an actual conflict of interest existed
because we conclude that Dong has not shown that any such conflict adversely affected
Haynes’ performance.
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No. 09-20762
vice versa.” Because the evidence at the three-day evidentiary hearing supports
this finding and refutes Dong’s contrary assertion, Dong has not shown that it
is clearly erroneous. United States v. Thomas, 120 F.3d 564, 571 (5th Cir. 1997).
Dong next contends that Haynes’ “feeble cross-examination of Duc”
demonstrates that the conflict had an adverse effect on counsel’s performance.
Dong asserts that Haynes should have cross examined Duc with respect to the
benefits of his plea agreement, including Duc’s 42-month sentence and the
substantial downward departure he would receive if he fully cooperated and
testified against Dong.14 We reject Dong’s contention that Haynes’ cross-
examination of Duc was feeble. The cross-examination covers 138 pages of
transcript, and the prosecutor objected several times to Haynes’ questions of Duc
as “argumentative.” Haynes questioned Duc about his marriage to Vivian Mai,
a United States citizen, implying Duc committed immigration fraud because he
married her to change his visa. Haynes also emphasized that although Duc was
married to Mai, he lived with another woman, Thu Phan, with whom he fathered
two children. Haynes questioned Duc about having two different sets of books,
one at home and one at US Tours, and running a “side” business unbeknownst
to Dong. Also, during cross-examination, Haynes was able to obtain Duc’s
confession to taking a computer from US Tours without having asked permission
to do so. Finally, Duc admitted that he and Dong had had an argument,
indicating that there was enmity between Duc and Dong.
Moreover, during the evidentiary hearing on the conflict of interest,
Haynes explained that in his opinion, based on his observations of the jury, his
cross-examination of Duc was a more effective way to impeach Duc than focusing
14
We note that during direct examination, the prosecutor had elicited testimony from
Duc that he had entered into an agreement to plead guilty and cooperate with the government.
Duc testified that he had agreed to testify in court and hoped to receive a “lighter sentence”
as a result of his cooperation. More specifically, Duc testified that he hoped to get his sentence
reduced by “testifying here today.”
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No. 09-20762
on Duc’s plea bargain. The district court accepted Haynes’ explanation and
ruled that Haynes’ decision regarding cross-examination did not constitute a
failure to pursue an alternate defense strategy. Further, the district court noted
that, during closing argument, Haynes “pointed out that Duc was not an
impartial witness because he stood to gain from testifying against Dong.” Under
these circumstances, Dong has failed to show that Haynes’ impeachment
strategy was an adverse effect caused by the alleged conflict of interest.
E. Sentencing Issues
1. Disparity of Sentences
Dong argues that his sentence is unreasonable, pointing to the “gross
disparity between his sentence and the sentences of similarly situated
defendants.” Dong complains that his 264-month sentence exceeded the average
sentence for money laundering (33.1 months) by a factor of eight. We reject
these arguments because Dong has not shown disparity among similarly
situated defendants. The disparity here is caused by the application of the
sentencing guidelines as intended by Congress. United States v. Candia, 454
F.3d 468, 476 (5th Cir. 2006); see also Guillermo Balleza, 613 F.3d at 435(sentence disparities between co-defendants who were convicted of different
charges or who received departures for substantial assistance are not
unwarranted disparities under § 3553(a)(6)). Moreover, the district court
sentenced Dong within the guideline range, which is a presumptively reasonable
sentence. Candia, 454 F.3d at 473. Dong has failed to overcome the
presumption of reasonableness afforded his sentence.
2. Double Jeopardy
For the first time on appeal, Dong claims a double jeopardy violation,
contending that he was sentenced twice for the same conspiracy. After
reviewing for plain error, we find no violation. To prevail on his double jeopardy
claim, Dong must establish that his convictions violate the rule announced in
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No. 09-20762
Blockburger v. United States, 284 U.S. 299, 304 (1932). “The applicable rule is
that, where the same act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine whether there are two
offenses or only one is whether each provision requires proof of an additional fact
which the other does not.” Id.A “conspiracy to defraud the United States under 18 U.S.C. § 371 and a
conspiracy to commit money laundering under 18 U.S.C. § 1956(h) require proof
of different facts.” United States v. Tiedeman, 14 F. App’x 124, 125 (2d Cir.
2001) (citing Blockburger, 284 U.S. at 304). In the instant case, Dong’s
conspiracy conviction pursuant to § 371 required “an overt act by one or more of
the members of the conspiracy in furtherance of the objective of the conspiracy.”
United States v. Freeman, 434 F.3d 369, 376 (5th Cir. 2005). However, Dong’s
conspiracy conviction pursuant to § 1956(h) does not have such a requirement.
See Guillermo Balleza, 613 F.3d at 433 n.1 (clarifying that the Supreme Court
has held that an overt act is not an element of conspiracy to launder money
under § 1956(h)). Further, a § 1956(h) conspiracy “requires proof of an intent to
conduct a financial transaction that would affect interstate commerce–a fact not
required to be proven for a Section 371 conspiracy.” Tiedeman, 14 F. App’x at
125; § 1956(c)(4) (setting forth interstate commerce requirement). Accordingly,
because there is authority for the proposition that Dong’s two conspiracies
constitute two offenses, and Dong points to no controlling contrary authority,
Dong is precluded from showing plain error.
3. Perjury Enhancement
Dong contends that the district court erred in enhancing his sentence
under U.S.S.G. § 3C1.1 based on his alleged perjury during his testimony at
trial. Dong claims that the court failed to make any of the following findings
under the definition of perjury: (1) identifying the false testimony; (2) finding
that the testimony concerned a material matter; and (3) finding that he testified
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No. 09-20762
with a willful intent to provide false testimony, rather than as a result of
confusion, mistake, or faulty memory. Our Court has held that a “separate and
clear finding on each element of the alleged perjury, although preferable, is not
required.” United States v. Como, 53 F.3d 87, 89 (5th Cir. 1995). In the instant
case, the district court found that Dong took the stand and committed perjury
and expressly adopted the findings of the PSR, which listed six statements under
the heading “Obstruction of Justice.” The district court stated that it
“overrul[ed] all objections made to the PSR” and expressly adopted the PSR “as
my own, both the findings of fact and the application of the Guidelines to the
facts.” The perjurious statements therefore were identified.
Further, these six false statements were material in that they would tend
to affect the outcome of the trial. In other words, had the jury believed the
perjured testimony, it would have been less likely to find him guilty. Finally, the
district court observed the entire trial and expressed concern regarding Dong’s
trial testimony, stating that Dong was “making it up as he goes along.” Clearly,
this shows the court’s determination that Dong’s false testimony was not a result
of confusion, mistake or faulty memory. We find no error in the sentencing
enhancement pursuant to § 3C1.1.
4. Amount of Laundered Funds
The district court found that the amount of funds laundered by Dong was
in excess of $7,000,000, thus increasing his base offense level by 20. Dong claims
that the government “only offered evidence and sought to prove the amount of
‘laundered funds’ involved in Counts Two, Four, Five, Six, Ten, Eleven and
Twelve, which totaled $1,471,401.” The government responds that the court was
entitled to rely upon relevant conduct and was not limited to the amount of
laundered funds allegedly involved in those counts. The government asserts
that the bank records and monthly computer spreadsheet from US Tours
demonstrated that Mai Le sent almost $6,000,000 through US Tours’ Houston
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No. 09-20762
office between February 2003 and March 2004. Further, IRS Agent Irey testified
that during January 2003, one ledger reflected approximately $1.8 million was
laundered. Dong does not dispute that there was evidence that Mai Le deposited
more than $7,000,000 in US Tours’ accounts.15 Instead, he argues that the
government failed to show that all of those funds were the proceeds of drug
trafficking. “In determining whether a Guidelines enhancement applies, the
district court is allowed to draw reasonable inferences from the facts, and these
inferences are fact findings reviewed for clear error.” United States v. Coleman,
609 F.3d 699, 708 (5th Cir. 2010).
Based on the evidence at trial, the district court did not clearly err in
finding that the $7,000,000 deposited by Mai Le with US Tours were the
proceeds of illegal activity. Indeed, at the sentencing hearing, in response to the
objection regarding the finding of $7,000,000, the court stated as follows: “One
of the advantages of trying a case is that you get to hear all the evidence and I
think there’s certainly ample evidence of that fact. So I’m going to overrule all
of the objections.” Moreover, Dong points to no evidence indicating that any of
Mai Le’s cash transactions involved legitimate business funds–as opposed to the
proceeds of illegal activity. Dong has failed to show that the district court clearly
erred in its calculation of the funds laundered.
III. CONCLUSION
For the above reasons, the district court’s judgment is AFFIRMED.
15
Mai Le was a co-conspirator in this operation, and thus, her reasonably foreseeable
actions in furtherance of the conspiracy were relevant conduct for sentencing purposes. See
U.S.S.G. § 1B1.3; United States v. Rodriguez, 553 F.3d 380, 395 (5th Cir. 2008).
24