United States v. Nguyen, Linh N.

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 12, 2007
Decided June 27, 2007
Before
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-3035
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Western
District of Wisconsin
v.
No. 05 CR 165
LINH H. NGUYEN,
Defendant-Appellant. Barbara B. Crabb,
Chief Judge.
ORDER
Linh Nguyen appeals his convictions for importing and possessing marijuana
with intent to distribute. See 21 U.S.C. §§ 952(a), 960, 841(a)(1). The government
prosecuted both charges under an aiding-and-abetting theory. See 18 U.S.C. § 2.
Nguyen now argues that he is entitled to a new trial because the district court
deviated from the Seventh Circuit pattern instruction in charging the jury on aiding
and abetting. Because the challenged instruction correctly states the law, we affirm
Nguyen’s convictions.
Background
The events underlying Nguyen’s convictions occurred from December 1 to
December 3, 2003, when Deepak Kad and Manjot Singh attempted to smuggle 400
No. 06-3035 Page 2
pounds of marijuana from Canada to Wisconsin via Detroit. The pair crossed at the
Detroit-Windsor tunnel on December 1, with Kad driving a tractor-trailer carrying
the stash and Singh driving a second truck. Upon inspection of Kad’s tractor-
trailer, United States customs officials discovered the marijuana in vacuum-sealed
packages hidden amid children’s furniture. Rather than arrest Kad at the border,
investigators chose to conduct surveillance of the truck. They concealed a GPS
transmitter on it, and Kad was allowed to proceed without knowing that his illicit
cargo had been discovered. Kad and Singh twice met up with Nguyen before the
pair was arrested in Wisconsin and the load seized. Nguyen, who was identified in
a traffic stop but not arrested, was finally indicted in November 2005 after Singh
was convicted and agreed to cooperate.
At Nguyen’s trial, Singh testified for the government that, while waiting for
Kad to cross the border, he became concerned that customs officials had discovered
the marijuana during their lengthy inspection of Kad’s truck. Singh relayed his
concerns to their boss in Canada, who told him to watch for surveillance and
promised to arrange for Kad and Singh to receive new cell phones in case theirs
were wire-tapped. Kad and Singh drove separately to a truck stop outside of
Chicago, and Singh called their boss to let him know where they were. A couple
hours after they arrived at the truck stop, Singh received a call from a man who
said he was there to deliver the cell phones. Singh got into the man’s car and
retrieved the cell phones, which the man, whom Singh identified in court as
Nguyen, told him how to use. Kad and Singh then proceeded on to Wisconsin.
Singh testified that he next saw Nguyen on December 3 in Menomonie,
Wisconsin. Earlier that day, Kad had parked the truck and unhitched the trailer at
a Menard’s distribution center about 25 miles away in Eau Claire. There Singh had
noticed a pair of vehicles exhibiting unusual traffic patterns suggestive of
surveillance; he called the boss to let him know. According to Singh, the boss said
that the buyers did not want to abandon the load without seeing for themselves
whether it was under surveillance, and so Singh was instructed to go to a Wal-Mart
parking lot in Menomonie and wait for the buyers to call. Singh testified that he
went alone to Menomonie and was waiting in a Wal-Mart parking lot when Nguyen
called him on his new cell phone and asked for his precise location. Soon after the
call Nguyen arrived with another man, this time in a van Nguyen had rented in
Chicago.
Nguyen and his partner followed Singh to a BP truck stop, where Singh left
his truck and got inside the van. Singh remained in the van for a couple of hours.
Nguyen said he wanted to be certain about the surveillance, so the three drove back
to Kad’s trailer in Eau Claire to conduct counter-surveillance. After some time,
Nguyen recommended that Kad re-attach the trailer and drive onto the highway.
Singh relayed the idea to Kad, who, after hooking up the trailer, informed Singh
No. 06-3035 Page 3
that he had discovered an antenna on its rear bumper. Singh testified that he and
Nguyen then made multiple phone calls to their respective bosses, who ultimately
instructed both of them not to move the trailer. Nguyen and his partner then
dropped Singh off at the BP truck stop in Menomonie. A Wisconsin state trooper
stopped Nguyen’s van but let Nguyen proceed after identifying him. Other law
enforcement officials arrested Singh and Kad the next day, and seized the
marijuana.
Four law-enforcement agents conducting surveillance from December 1
through December 3 testified about their observations of Singh and Nguyen, which
were consistent with Singh’s account. But they could not confirm the content of any
conversations between Singh and Nguyen, nor could they confirm that Nguyen gave
Singh the cell phones. Nonetheless, Shawn Gibson, a special agent with the
Department of Homeland Security, testified that he interviewed Nguyen on October
4, 2005, at a Chicago police station. Gibson said that when he asked Nguyen about
his whereabouts on December 3, 2003, Nguyen volunteered that he had been
working at a cell phone store in Chicago at the time, and said that a woman offered
to pay him $1000 to deliver two cell phones. Gibson said Nguyen told him that he
gave the phones to an Indian man in Wisconsin. Gibson also testified that Nguyen
admitted that he drove the man around to ensure that they were not being followed,
and said he knew that drugs were involved.
Nguyen told a different story at his trial. He admitted, consistent with
Singh’s and the surveillance officers’ testimony, that he met with Singh outside
Chicago on December 1 and in Menomonie on December 3. But Nguyen testified
that he was just a small-time marijuana dealer who, on December 1, had heard
from a friend that a shipment of high-grade marijuana had arrived from Canada.
Nguyen said that after multiple phone calls, he was put in touch with Singh, and
that he drove to the truck stop outside Chicago to purchase ten pounds of marijuana
for his own use. Nguyen said that Singh told him he would have to unload some of
the marijuana with other buyers before he could sell to him. (Nguyen never
explained why Singh would not have told him that on the phone before he drove to
the truck stop.)
Although Nguyen admitted that he was working at a telephone store at the
time, he testified that he did not give Singh any cell phones. He admitted telling
Gibson that he did give Singh the cell phones, but testified that he had lied because
he thought that the cell-phone story, which he said Gibson introduced into the
conversation, sounded better than admitting that he was trying to buy marijuana.
Nguyen testified that he and Singh arranged to reconvene in a couple days,
and that he rented a van on December 2 in anticipation of that meet-up. According
to Nguyen, he and a friend drove to Wisconsin to meet with Singh in a Wal-Mart
No. 06-3035 Page 4
parking lot after Singh called him on December 3. Nguyen confirmed Singh’s
testimony about driving around looking for police, and admitted that he helped
conduct the counter-surveillance. He testified that he decided not to buy the
marijuana and killed the deal after Kad discovered the transmitter.
After the defense rested and the jury was excused, the district judge and the
attorneys reviewed the final jury instructions. The court’s instruction on aiding and
abetting reads:
To find that the defendant aided or abetted a crime as charged in
Count 1 or Count 2, you must find that the defendant knowingly
associated with the criminal activity charged in the count that you are
considering, that he participated in that criminal activity and that he
tried to make that criminal activity succeed.
Nguyen requested that the district judge alter this instruction to model the Seventh
Circuit pattern instruction, which reads: “Any person who knowingly [aids],
[counsels], [commands], [induces] [or] [procures] the commission of an offense may
be found guilty of that offense. That person must knowingly associate with the
criminal activity, participate in the activity, and try to make it succeed.” Seventh
Cir. Pattern Crim. Jury Instruction 5.06 (1999) (brackets in original). Nguyen
argued that, without the first sentence from the pattern instruction, the court’s
instruction was “misleading” and “gutted” the crux of the instruction.
Noting that Nguyen had not objected to the jury instructions during a
pretrial conference with Magistrate Judge Crocker, the district judge found
Nguyen’s objection untimely. Nevertheless, the court reviewed its own instruction
and concluded that it was appropriate as written.
The jury returned guilty verdicts on both counts, and the district judge
sentenced Nguyen to concurrent terms of 80 months’ imprisonment and five years’
supervised release, as well as $200 in special assessments.
Analysis
On appeal, Nguyen renews his contention that the aiding-and-abetting
instruction misstates the law. He argues that the court’s instruction misled the
jury because it does not say—in language tracking 18 U.S.C. § 2 and the first
sentence of the pattern instruction—that the government had to prove that he
aided, counseled, commanded, induced, or procured the commission of the offenses
charged in the indictment. And he asserts that, had the jury been instructed
differently, he might have been acquitted based on his defense that he was acting
entirely on his own behalf.
No. 06-3035 Page 5
To establish the need for a new trial, Nguyen must show that the challenged
instruction (1) incorrectly states the law and (2) prejudiced him because it likely
confused or misled the jury. United States v. Murphy, 469 F.3d 1130, 1137 (7th Cir.
2006). We review de novo whether an instruction accurately states the law, United
States v. Van Sach, 458 F.3d 694, 702 (7th Cir. 2006), and in making that
determination we consider a judge’s charge to the jury as a whole, Murphy, 469
F.3d at 1137.
Nguyen’s argument fails at the first prong because the district court’s
instruction correctly states the law. To convict on an aiding-and-abetting theory,
the government must prove that the defendant associated with the illegal activity,
knowingly participated in it, and contributed toward its success. See United States
v. Irwin, 149 F.3d 565, 569-70 (7th Cir. 1998); United States v. Hubbard, 22 F.3d
1410, 1416 (7th Cir. 1994). Here, the judge accurately instructed the jurors: the
court told them that they had to find that Nguyen “knowingly associated with the
criminal activity” charged in the respective counts, that he also “participated in that
criminal activity,” and that he “tried to make that criminal activity succeed.” The
court also explained that Nguyen’s “presence at the scene of a crime and knowledge
that a crime is being committed are not sufficient to establish [his] guilt.” These
instructions are virtually identical to the instructions we approved in Hubbard, 22
F.3d at 1416, and United States v. Scott, 267 F.3d 729, 738-39 (7th Cir. 2001), and
they clearly identify the act—participating in the charged criminal activity and not
merely being present at the scene of the crime—that gives rise to criminal liability.
And though we encourage courts to use the pattern jury instructions, the district
judge was not required to read them verbatim. See United States v. Burke, 781 F.2d
1234, 1239 n.2 (7th Cir. 1985).
Moreover, Nguyen has not explained how the omission of the first sentence
from the pattern instruction possibly could have misled or confused the jury.
Nguyen’s defense was not that he did not aid, counsel, command, induce, or procure
the commission of an offense—he admitted that he conducted counter-surveillance,
which, if done in furtherance of the criminal activity charged, suffices for aiding and
abetting liability, see United States v. Corral-Ibarra, 25 F.3d 430, 436-37 (7th Cir.
1994). Rather, Nguyen wanted the jury to believe that he acted entirely on his own
behalf and for his own criminal purposes. But in Hubbard, we said that instructing
the jury that they had to find that the defendant “associated himself with the
criminal venture, participated in it, and sought to make it succeed,” as the court did
here, “eliminated any possible misunderstanding” that the jury had to find that the
defendant acted with the intent of furthering the charged criminal activity. 22 F.3d
at 1416. Thus, since the district court’s jury instructions clearly explained the law
for the only disputed issue in Nguyen’s trial, they did not prejudice him.
AFFIRMED.