United States v. Quoc Tran

FILED
NOT FOR PUBLICATION
FEB 09 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10608
Plaintiff-Appellee, D.C. No.
5:13-cr-00076-RMW-3
v.
QUOC CHI TRAN, AKA Quoc Map, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 16-10259
Plaintiff-Appellee, D.C. No.
5:13-cr-00076-RMW-1
v.
LENNIE LUAN LE,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, District Judge, Presiding
Argued and Submitted February 6, 2018
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: THOMAS, Chief Judge, and D.W. NELSON and CHRISTEN, Circuit
Judges.
Quoc Chi Tran and Lennie Luan Lee appeal their jury convictions and
sentences for conspiracy to conduct gambling businesses in violation of 18 U.S.C.
§§ 371 & 1955(a). We affirm. Because the parties are familiar with the history of
this case, we need not recount it here.
I
The district court did not err in admitting evidence from wiretaps of Le’s
phone. In considering a wiretap application, the issuing court has “considerable
discretion in finding necessity, particularly when the case involves the
investigation of a conspiracy.” United States v. Reed, 575 F.3d 900, 909 (9th Cir.
2009). Here, the government supported both wiretap applications with affidavits
in compliance with 18 U.S.C. § 2518(1)(c), which requires that wiretap
applications include “a full and complete statement as to whether or not other
investigative procedures have been tried and failed or why they reasonably appear
to be unlikely to succeed if tried or to be too dangerous.” The issuing judge did
not abuse his considerable discretion when he determined that the wiretaps were
necessary because the affidavits included ample evidence that other methods were
falling short of the investigation’s goals.
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II
The district court did not plainly err by not sua sponte instructing the jury on
unanimity as to the conspiracy count against Tran. A specific unanimity
instruction is required when there is a “genuine possibility that different jurors
voted to convict on the basis of different conspiracies.” United States v. Lapier,
796 F.3d 1090, 1093 (9th Cir. 2015). However, in this case, the government
tendered sufficient evidence establishing one overarching conspiracy involving
multiple locations, not separate conspiracies. Tran did not tender a unanimity
instruction and, given the evidence, the district court did not plainly err by not
giving one sua sponte.
III
The district court did not abuse its discretion by denying Le’s motion for a
new trial based on the government’s redaction of identifying information of former
café employees from police reports. Le was provided the information with
redactions before trial and had ample opportunity to request that the government
provide the names and identifying information. Although the government has not
supplied a good reason for the redactions, given the circumstances—especially the
tardiness of Le’s assertion of the issue—the district court did not abuse its
discretion concluding that the relevance of the information was speculative, that Le
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was able to cross-examine the primary witnesses adequately, and that Le was not
entitled to a new trial.
IV
The evidence was sufficient for a rational juror to find beyond a reasonable
doubt that there was a gambling business involving five or more people over thirty
days, as required by 18 U.S.C. § 1955(b)(1)(ii). In considering a challenge to the
sufficiency of the evidence, we must construe the evidence in the light most
favorable to the prosecution, and inferences drawn from the evidence may be
sufficient to sustain a conviction. United States v. Bennett, 621 F.3d 1131, 1135,
1139 (9th Cir. 2010).
Construing the evidence in the light most favorable to the prosecution, we
conclude that the government provided sufficient evidence of the participation of
five or more people involved in the overarching conspiracy. For example, in May
2012, Le made calls and sent text messages to Tran about the installation of
gambling machines; Dung Dinh agreed to bring new machines to a café and
collected money from the machines; Tam Nguyen negotiated with café owners
about how the profits from the gambling machines would be split; and Tu Nguyen
collected money from the machines.
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V
The district court did not err in applying a four-level leadership enhancement
to Le’s sentence. The Sentencing Guidelines provide for a four-level increase
where “the defendant was an organizer or leader of a criminal activity that
involved five or more participants or was otherwise extensive[.]” U.S.S.G.
§ 3B1.1(a). Le accepted payments from the enterprise, was called on to handle
problems, make collections, and negotiate rates. Given the record, the district
court’s factual findings were not clearly erroneous, and the court did not abuse its
discretion in applying the Guideline to the facts. United States v. Gasca-Ruiz, 852
F.3d 1167, 1170 (9th Cir. 2017) (en banc) (establishing standard of review).
VI
The district court did not plainly err in imposing Tran’s conditions of
supervised release.
Tran challenges the condition requiring him to pay for all or part of the cost
of drug abuse and mental health treatment. Because the condition includes the
qualification that Tran pay “part or all” of the cost “as deemed appropriate,” it can
be reasonably understood to require consideration of ability to pay. United States
v. Soltero, 510 F.3d 858, 864–65 (9th Cir. 2007) (summarily reading such a
requirement into a comparably-phrased condition of release).
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The district court did not plainly err in imposing the condition that Tran not
associate with a member of a gang. Tran argues that this condition should be
modified to include an express knowledge requirement. This contention is
foreclosed by United States v. Vega, 545 F.3d 743 (9th Cir. 2008), wherein we held
that a mens rea requirement was necessarily implied in the sentencing condition.
Likewise, given the implied mens rea requirement, there was no plain error in the
district court’s imposition of a condition that Tran not wear gang colors or insignia.
Given the fact that the government bears the burden of showing, by a
preponderance of the evidence, a violation of a condition of release, the court did
not plainly err in imposing a condition stating that there would be a presumption of
participation in gang activities if Tran were found in the company of gang
members or wearing gang clothing. That portion of the order does not alter the
government’s statutory burden under 18 U.S.C. § 3583(e)(3) and therefore did not
affect Tran’s substantial rights.
Given that there was no direct conflict between the judge’s oral and written
orders, the district court did not plainly err by not orally imposing three standard
conditions of supervised release. See United States v. Napier, 463 F.3d 1040,
1042–43 (9th Cir. 2006) (holding that “standard, boilerplate conditions of
supervised release” are “implicit in an oral sentence”).
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The district court did not plainly err when it ordered that Tran not associate
with felons. This condition was reasonably related to rehabilitation and public
safety. Cf. United States v. Napulou 593 F.3d 1041, 1045 (9th Cir 2010)
(distinguishing a similar condition pertaining to misdemeanor offenders on the
basis that it was not reasonably related to rehabilitation and public safety).
Tran’s challenges to the conditions of supervised release restricting him
from frequenting a gambling establishment are foreclosed by United States v.
Phillips, 704 F.3d 754, 767–68 (9th Cir. 2012).
VII
The district court did not plainly err in imposing a $5,500 fine. The
Sentencing Guidelines provide that “[t]he court shall impose a fine in all cases,
except where the defendant establishes that he is unable to pay and is not likely to
become able to pay any fine.” U.S.S.G. § 5E1.2(a). The defendant bears the
burden of proving indigence. United States v. Robinson, 20 F.3d 1030, 1033 (9th
Cir. 1994). Even where a defendant proves indigence, the court may impose a fine
if the defendant has the earning capacity to pay the fine in the future. United States
v. Orlando, 553 F.3d 1235, 1240 (9th Cir. 2009).
Tran did not challenge the imposition of the fine in the district court, nor did
he attempt in any way to satisfy his burden of proof to show an inability to pay,
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coupled with a likelihood that he would have earning capacity in the future. In
discussing the fine, the court noted that it did not have much information, and
imposed the lowest fine available under the Guideline. The presentence report
contained some information on Tran’s ability to pay, but recommended that a fine
be imposed. Although it would have been preferable for the district court to make
express findings, given Tran’s failure to object or sustain his burden of proof, the
district court did not plainly err in imposing the fine.
AFFIRMED.
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