United States v. Anousone Savanh

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 14 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10415
Plaintiff-Appellee, D.C. No. 2:14-cr-0290-KJD-PAL
v.
MEMORANDUM*
ANOUSONE SAVANH,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Argued and Submitted February 15, 2018
San Francisco, California
Before: SCHROEDER, TORRUELLA,** and FRIEDLAND, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Juan R. Torruella, United States Circuit Judge for the First
Circuit, sitting by designation.
After a jury trial, Appellant Anousone Michael Savanh ("Savanh") was
convicted of receipt of child pornography and possession of child pornography, see
18 U.S.C. §§ 2252(a)(2)(B), 2252A(a)(5)(B), and sentenced to 210 months'
imprisonment. Savanh now appeals: 1) the district court's denial of his suppression
motion and request for an evidentiary hearing; 2) the district court's rulings on his
proposed expert witnesses; 3) the district court's denial of his motion for acquittal;
and 4) his sentence. We affirm.
1. The district court properly denied Savanh's pretrial motion to suppress his
confession and request for an evidentiary hearing to establish the circumstances
surrounding his confession. First, the district court correctly concluded that
suppression was not warranted here. The totality of the circumstances, including
"the characteristics of the accused and the details of the interrogation," indicated that
Savanh's confession was voluntary. United States v. Preston, 751 F.3d 1008, 1016
(9th Cir. 2014) (en banc) (emphasis omitted) (quoting Dickerson v. United States,
530 U.S. 428, 434 (2000)).
The record does not support Savanh's assertion that Detective Wayne Nichols
exploited Savanh's paternal instincts during their two conversations in Nichols's car.
Rather, during their first interview, after Savanh denied having downloaded child
pornography, Nichols merely indicated that he would "certainly reach out to"
Savanh's adult son, to "talk to him, explain to him what's going on as well, and
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hopefully get some further insight." Nor do any other circumstances suggest that
Savanh's confession was involuntary. He freely agreed to speak with Nichols on
both occasions. He heard and then waived his Miranda rights at the beginning of
the first interview, and Nichols explained to him "[i]f you decide to answer questions
now, you may stop at any time." Nichols additionally cautioned Savanh at the
beginning of their second interview, "[y]ou understand you don't have to speak to
me, correct, sir?" to which Savanh responded "I understand." Savanh was not
handcuffed during either interview, and the record does not support his contention
that Nichols or anyone else prevented him from speaking with his family at any time.
Lastly, the record is similarly unsupportive of Savanh's assertion that his confession
was involuntary in light of his alleged extreme deference to authority as a Laotian
refugee. See Colorado v. Connelly, 479 U.S. 157, 164 (1986) (holding that a
defendant's "mental condition" is insufficient to establish that a confession was
involuntary absent separate evidence of "official coercion").
Furthermore, even if we assume that Savanh was in custody, it was not
necessary for Nichols to provide a new Miranda warning at the outset of his second
interview with Savanh. The second interview took place only 30 minutes after the
conclusion of the first. And, Nichols began the second interview by confirming that
Savanh still understood his Miranda rights. This brief break between the two
interviews was not enough, on its own, to necessitate re-warning. See Guam v. Dela
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Pena, 72 F.3d 767, 770 (9th Cir. 1995) (holding that re-warning was unnecessary
after a 15-hour break in questioning, and collecting cases holding that re-warning
was unnecessary after breaks in questioning up to three days long). Rather, Savanh
needed to show that "intervening events" had created the impression that his rights
had "changed in a material way," thereby calling for re-warning. United States v.
Rodriguez-Preciado, 399 F.3d 1118, 1129 (9th Cir.), amended by 416 F.3d 939 (9th
Cir. 2005). He fails to do so. Savanh first points to Nichols's disclosure at the outset
of the second interview that child pornography had been found on Savanh's
computer. But that is insufficient to amount to an "intervening event" of this sort.
He then argues that seeing his wife from Nichols's car resulted in changed
circumstances, but this only occurred after he had confessed. Accordingly, Nichols
did not need to give Savanh a renewed Miranda warning before the second
interview.
Finally, the district court also did not abuse its discretion in declining to hold
an evidentiary hearing to establish the circumstances surrounding Savanh's
confession. "An evidentiary hearing on a motion to suppress ordinarily is required
if the moving papers are sufficiently definite, specific, detailed, and nonconjectural
to enable the court to conclude that contested issues of fact" surround the
admissibility of the evidence at issue. United States v. Walczak, 783 F.2d 852, 857
(9th Cir. 1986); see also United States v. Howell, 231 F.3d 615, 620 (9th Cir. 2000)
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(citations omitted) (To call for a hearing, the moving papers must "allege facts with
sufficient definiteness, clarity, and specificity to enable the trial court to conclude
that contested issues of fact exist."). Here, the record undercuts Savanh's contentions
that he was confined to his living room for "several hours" while officers searched
his house, and that he was prevented from using his cell phone or otherwise separated
from his family. Because the district court could "determine from the record before
it" that Savanh's allegations of contested factual issues lacked credibility, it did not
abuse its discretion in finding an evidentiary hearing unwarranted. United States v.
Navarro-Garcia, 926 F.2d 818, 822 (9th Cir. 1991). Moreover, resolving all of the
alleged evidentiary issues in Savanh's favor still does not establish that his
confession was involuntary. Thus, even had the district court erred by declining to
hold a hearing, any such error was harmless.
2. The district court also did not err in any of its rulings involving Savanh's
proposed experts, Donald Cinco ("Cinco"), Larry Smith ("Smith"), and Tami Loehrs
("Loehrs"). As a threshold matter, Savanh fails in challenging the district court's
consideration of what he characterizes as the Government's untimely motion in
limine to exclude all three of his proposed experts. The district court never set any
deadline for motions in limine. Additionally, Savanh filed motions in limine after
the Government's allegedly untimely motion to exclude the testimony of his
proposed experts, and the district court considered those motions. So, the district
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court did not abuse its discretion in considering the Government's motion to exclude
Savanh's proposed experts.
Nor did it abuse its discretion, see United States v. Curtin, 588 F.3d 993, 995
(9th Cir. 2009), in limiting Cinco and Smith to testifying as fact witnesses, or in
excluding Loehrs's testimony altogether. Consistent with Federal Rule of Evidence
702, a trial court "must assure that the expert testimony 'both rests on a reliable
foundation and is relevant to the task at hand.'" Primiano v. Cook, 598 F.3d 558,
564 (9th Cir. 2010) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,
597 (1993)). Additionally, a trial court "has discretion to decide how to test an
expert's reliability as well as whether the testimony is reliable, based on 'the
particular circumstances of the particular case.'" Id. (footnote omitted) (quoting
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999)).
While the district court initially denied the Government's motion to exclude
Cinco's expert testimony, it reversed that decision after voir dire, which brought to
light what it described as his "extremely minimal" relevant experience, education,
and training.1 Most notably, voir dire revealed that Cinco had only examined three
or four computers during his career. Accordingly, the district court did not abuse its
1
Savanh cannot now argue that this reversal undermined his credibility at trial; he
invited this scenario by opposing the Government's request for a Daubert hearing
and arguing instead that any "concerns" regarding Cinco's testimony "could be
addressed through voir dire process" at trial.
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discretion in limiting him to testifying as a fact witness. As for Smith, Savanh's
Notice of Expert Testimony indicated that Smith would rely on Cinco's testimony as
the basis for his own expert opinion. And at trial, Smith testified that he had never
received specialized training in viruses or malware. Therefore, the district court did
not abuse its discretion in deciding not to permit Smith to testify as an expert, and
limiting him to testifying only about his own knowledge of his "examination of the
computer at issue."
Finally, the district court did not commit an abuse of discretion in excluding
Loehrs from testifying outright. Savanh initially refused to comply with the district
court's order to submit a report explaining the basis for Loehrs's opinions and the
methodology she employed to reach those conclusions, see Fed. R. Crim. P.
16(b)(1)(C), which resulted in the district court excluding her testimony. He only
provided information to that effect after attempting to call Loehrs as his final witness
at trial--in violation of the district court's ruling that Savanh could call Troy Kelly,
the Government's rebuttal witness as his own witness only if he called Kelly as his
last witness. Additionally, in denying Savanh's subsequent motion for the court to
reconsider its ruling excluding Loehrs's testimony, the district court further found
that Loehrs's proposed testimony would have been cumulative in light of Cinco's
testimony. For these reasons, the district court did not commit an abuse of discretion
in precluding Loehrs from testifying.
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3. Furthermore, the district court did not err in denying Savanh's motion for
acquittal pursuant to Fed. R. Crim. P. 29. To succeed on that motion, Savanh needed
to show that, viewing the evidence in the light most favorable to the Government,
no rational trier of fact could have found that he knowingly received child
pornography. See 18 U.S.C. § 2252(a)(2)(B); United States v. Mincoff, 574 F.3d
1186, 1191-92 (9th Cir. 2009). Circumstantial evidence of knowledge permissibly
could have provided the sole basis for Savanh's conviction. See United States v.
Hardrick, 766 F.3d 1051, 1057 (9th Cir. 2014). But here, the Government
introduced more than circumstantial evidence of Savanh's culpability--namely, his
confession to Nichols, the details of which were corroborated by the evidence found
on Savanh's computer. It is true that Savanh testified that he had not downloaded
the files in question, and claimed he had only confessed to Nichols to shield his son
from investigation. He also presented evidence in support of his theory that a third
party had remotely "hacked" his computer and downloaded child pornography. Yet,
because a rational factfinder could nonetheless have concluded that Savanh
knowingly downloaded child pornography, the district court did not err in denying
his motion for acquittal.
4. Finally, the district court neither committed procedural error in sentencing
Savanh nor imposed a substantively unreasonable sentence. First, the district court
did not err in applying a two-level obstruction of justice enhancement under
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U.S.S.G. § 3C1.1. That enhancement is appropriate when the sentencing court
expressly finds that "(1) the defendant gave false testimony, (2) on a material matter,
(3) with willful intent." United States v. Castro-Ponce, 770 F.3d 819, 822 (9th Cir.
2014) (quoting United States v. Garro, 517 F.3d 1163, 1171 (9th Cir. 2008)). Here,
the district court properly found that Savanh's trial testimony that he did not
download child pornography met these requirements. Specifically, it noted that the
jury "[o]bviously did not believe [Savanh's] statement that he did not download the
material," and further found that Savanh's "testimony under oath concerned a
material matter, and the testimony was with the willful intent to deceive." Thus, the
district court properly applied the enhancement.
Second, Savanh is incorrect in arguing that the "district court imposed a
substantively unreasonable sentence by punishing [him] more harshly for
proceeding to trial." A defendant's failure to fully accept responsibility for his
actions may justify a less favorable sentence. United States v. Carter, 804 F.2d 508,
514-15 (9th Cir. 1986). And it is "possible for a defendant both to exercise his right
to a trial and to demonstrate acceptance of responsibility." United States v.
Espinoza-Cano, 456 F.3d 1126, 1137 (9th Cir. 2006), superseded by regulation on
other grounds as recognized in United States v. Barrow, 606 F. App'x (9th Cir.
2015); see also United States v. Gonzalez, 897 F.2d 1018, 1020 (9th Cir. 1990).
Here, Savanh expressly declined to accept responsibility after the jury found him
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guilty, but before the district court sentenced him. Moreover, in contrast to United
States v. Medina-Cervantes, 690 F.2d 715, 716 (9th Cir. 1982), and United States v.
Stockwell, 472 F.2d 1186, 1187 (9th Cir. 1973), Savanh does not point to anything
that would suggest that the district court impermissibly penalized him for electing
not to plead guilty and exercising his right to a trial. Rather, the record indicates that
Savanh's sentence legitimately reflected his refusal to accept responsibility for the
crime for which the jury convicted him. Accordingly, the district court did not err
in sentencing Savanh.
AFFIRMED.
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