United States v. Cuong Huy Pham

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 28, 2006
Charles R. Fulbruge III
Clerk
No. 05-11057
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CUONG HUY PHAM,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:05-CR-56-1
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Cuong Huy Pham (Cuong) appeals his convictions, following a
jury trial, of conspiracy to possess with intent to distribute 3,
4-methylenedioxymethamphetamine (MDMA), or Ecstasy, and
possession of MDMA with intent to distribute, in violation of 21
U.S.C. §§ 846 and 841(a). The district court imposed consecutive
prison sentences of 240 and 120 months and concurrent supervised-
release terms of three years.
Cuong challenges the district court’s denial of his motion
to suppress approximately 10,000 MDMA tablets and other evidence
*
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this opinion should not be published and is not precedent except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.
No. 05-11057
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seized on March 9, 2005, from a brown Lexus in which he was a
passenger and in which codefendant Thuan Pham (Thuan) was the
driver. “The standard of review for a motion to suppress based
on live testimony at a suppression hearing is to accept the trial
court’s factual findings unless clearly erroneous or influenced
by an incorrect view of the law.” United States v. Outlaw, 319
F.3d 701, 704 (5th Cir. 2003) (citations and internal quotation
marks omitted). Under Terry v. Ohio, 392 U.S. 1, 30 (1968),
“police officers may stop and briefly detain an individual for
investigative purposes if they have reasonable suspicion that
criminal activity is afoot.” Goodson v. City of Corpus Christi,
202 F.3d 730, 736 (5th Cir. 2000). Under Terry’s two-pronged
test, “[c]ourts first examine whether the officer’s action was
justified at its inception, and then inquire whether the
officer’s subsequent actions were reasonably related in scope to
the circumstances that justified the stop.” United States v.
Brigham, 382 F.3d 500, 506 (5th Cir. 2004) (en banc) (citing
Terry, 392 U.S. at 19-20). “‘Reasonable suspicion must be
supported by particular and articulable facts, which, taken
together with rational inferences from those facts, reasonably
warrant an intrusion.’” Goodson, 202 F.3d at 736 (citation
omitted).
Cuong asserts that the purported justification for the stop
of the Lexus was a traffic violation and argues that Thuan had
committed no such violation. He is incorrect about the
investigating agents’ basis for the stop. Those agents were
acting upon specific information supplied by a man named Phuong
No. 05-11057
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Truong, who was stopped with approximately 1,000 MDMA tablets
earlier on the evening of March 9, 2005.
Cuong maintains that, even if a traffic violation had not
been the purported basis for the stop, the information provided
by Truong was “vague and uncorroborated” and “void of
credibility.” “A tip, even an anonymous tip, may provide the
reasonable suspicion necessary to justify an investigatory stop.”
United States v. Gonzalez, 190 F.3d 668, 672 (5th Cir. 1999)
(citing Alabama v. White, 496 U.S. 325, 327-29 (1990)).
Reasonable suspicion to justify the stop of an automobile may be
based upon information obtained from an informant that possesses
“indicia of reliability.” Adams v. Williams, 407 U.S. 143, 147
(1972). Whether an informant’s tip provides officers with
reasonable suspicion to justify a stop “is dependent upon both
the content of information possessed by police and its degree of
reliability.” White, 496 U.S. at 330. Both the quantity and
quality of the information are considered under the “totality of
the circumstances” approach. Id.The stop of the Lexus was based on the following
information: Upon being arrested for carrying MDMA tablets,
Truong agreed to cooperate with investigators. He told them that
he was to assist Cuong and another Asian male, who had traveled
from Houston to Fort Worth in a brown Lexus, with the delivery of
a larger quantity of MDMA later that evening. Truong asserted
that he was an informant for a Houston-area DEA agent. Fort
Worth agents contacted the Houston-area agent and confirmed that
Truong was in fact an informant and that a man named “Cuong” was
No. 05-11057
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the target of an investigation of large-scale MDMA distribution
in Houston. In the presence of Forth Worth agents, Truong
purported to make telephone calls to Cuong and Thuan to arrange a
meeting at a nearby Kroger grocery-store parking lot. Although
these conversations were in Vietnamese, which the agents did not
understand, Truong communicated the contents of the conversations
to the agents. Truong and the agents then proceeded to the
Kroger lot, where they saw two Asian males standing by a brown
Lexus, apparently looking for someone. Truong identified one of
the men as Cuong. The two men then got into the Lexus and began
circling the lot, whereupon patrol officers stopped them.
Codefendant Thuan gave oral and written consent to a search of
the Lexus, which resulted in the discovery of the MDMA tablets.
The information provided by Truong, coupled with subsequent
corroborating observations by investigating agents, was more than
sufficient to create reasonable suspicion to stop the Lexus in
which Cuong was a passenger. See White, 496 U.S. at 329, 331(even if the tip by itself “would not warrant a man of reasonable
caution in the belief that [a stop] was appropriate,” there was
“more than the tip itself” so as to corroborate the tip (internal
quotation marks and citation omitted)).
Cuong also contends that the district court erred in denying
his motion to sever his trial from Thuan’s. He argues that the
denial prevented him from presenting Thuan’s exculpatory
testimony that the MDMA tablets belonged to him, Thuan, and not
Cuong. Because Thuan did not express an “unequivocal”
willingness to testify on Cuong’s behalf, the district court did
No. 05-11057
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not abuse its discretion in denying the severance motion.
See United States v. Valdez, 453 F.3d 252, 261 (5th Cir. 2006);
United States v. Manges, 110 F.3d 1162, 1175 (5th Cir. 1997).
Cuong’s related contention that the district court did “not
allow[]” Thuan to testify at his trial is not supported by the
record. Finally, the district court did not abuse its discretion
in declining to allow Cuong to cross-examine Fort Worth
investigator Jerry Cedillo about exculpatory statements that
Thuan might have made to Cedillo. See United States v. Waldrip,
981 F.2d 799, 803 (5th Cir. 1993).
The judgment is AFFIRMED.