USA. v. Sayakhom

• Decision Date: 01 December 1999
• Docket Number: No. 97-10197,97-10197
• Citation: 186 F.3d 928
• Parties: (9th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. THONGSANGOUNE SAYAKHOM, Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 928

186 F.3d 928 (9th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. THONGSANGOUNE SAYAKHOM, Defendant-Appellant.

No. 97-10197

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted April 14, 1999

Decided July 27, 1999

Amended December 1, 1999.

NOTE: ALSO SEE OPINION AT 197 F.3d 959.

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[Copyrighted Material Omitted] Daniel J. Broderick, Assistant Federal Defender, Sacramento, California, for the defendant-appellant.

Samuel Wong, Assistant United States Attorney, Sacramento, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California Milton L. Schwartz, District Judge, Presiding. D.C. No. Cr-95-00305-MLS.

Before: Robert R. Beezer and Stephen S. Trott, Circuit Judges, and Samuel P. King, District Judge.¹

Opinion by Judge Beezer;

Concurrence by Judge Trott

OPINION

BEEZER, Circuit Judge:

Thongsangoune Sayakhom appeals her convictions and sentence for mail fraud and money laundering. We have jurisdiction pursuant to 28 U.S.C. S 1291 and we affirm.

I

Sayakhom was indicted by a second superseding indictment ("the indictment") on nineteen counts of mail fraud, 18 U.S.C. S 1341, and eleven counts of money laundering, 18 U.S.C. S 1956(a)(1)(A)(i). According to the second superseding indictment, Sayakhom formed the Asian Assistance Cen- ter ("AAC") to sell life insurance products to low-income members of the Laotian, Cambodian, Hmong and Mien communities in California. The indictment alleges that Sayakhom failed to advise her customers that the AAC was not licensed to sell life insurance products and that the AAC lacked adequate financial reserves to pay potential claims. The indictment charges that Sayakhom engaged in money laundering by conducting and attempting to conduct financial transactions, such as paying for office equipment, rent, car payments and some funeral expenses, to further the mail fraud.

Trial began on September 4, 1996. The court granted the government's motion to dismiss count 18, one of the mail fraud counts. On October 24, 1996, the jury returned guilty verdicts on the remaining mail fraud counts and on seven out of eleven money laundering counts. The jury acquitted Sayakhom on four counts of money laundering. The court sentenced Sayakhom to concurrent sentences of 41 months of imprisonment on each count. This timely appeal followed.

II

Sayakhom appeals the denial of her motion to suppress evidence seized by warrants from her business, residence and vehicle.². The Fourth Amendment requires that the government establish probable cause to support a search warrant. See U.S. Const., amend. IV. The Fourth Amendment further dictates that a search warrant must be sufficiently particular and not overbroad. See United States v. McGrew, 122 F.3d 847, 849 (9th Cir. 1997).

Sayakhom acknowledges the existence of probable cause to believe that she was engaging in mail fraud. She argues, however, that the warrant directing the search of her business, residence and vehicle was overbroad because it directed the agents to seize a broad category of personal and business records. The warrant described fourteen categories of property to be seized, including any and all insurance files, records, and billing statements regarding transactions conducted by Sayakhom involving AAC insurance products, mailing lists of individuals solicited for insurance by Sayakhom, and cash, money orders and checks received by AAC for payment of AAC insurance premiums or membership dues.

The warrant was not overbroad. A generalized seizure of business documents may be justified if the government establishes probable cause to believe that the entire business is merely a scheme to defraud or that all of the business's records are likely to evidence criminal activity. See United States v. Kow, 58 F.3d 423, 427 (9th Cir. 1995). The items described in the warrant were sufficiently connected to the allegations of mail fraud described in the indictment.

Sayakhom next argues that the warrant failed to establish probable cause to believe that any evidence of mail fraud would be found in her residence or car. An affidavit is sufficient if the stated facts would reasonably allow the magistrate to believe that the evidence will be found in the stated location. See United States v. Taylor, 716 F.2d 701, 705 (9th Cir. 1983). The relevant search warrant identified the subjects of the search as Sayakhom's residence, her person and her automobile. United States Postal Inspector George Kaufman, in an affidavit incorporated by reference in the warrant, stated his experience and belief that operators of businesses that involve paperwork typically maintain and carry business records into and out of their offices, in their cars and to and from their residences. This affidavit provided sufficient facts to allow the reasonable conclusion that the evidence described in the warrant would be found in Sayakhom's vehicle and residence. We affirm the denial of the motion to suppress.

III

Sayakhom argues that the court erred in allowing the government to use evidence obtained during plea negotiations. Statements made in the course of plea discussions with a United States Attorney are inadmissible pursuant to Federal Rule of Criminal Procedure 11(e)(6)(D) and Federal Rule of Evidence 410. See United States v. Leon Guerrero , 847 F.2d 1363, 1367 (9th Cir. 1988).

On May 26, 1994 -- after the government executed warrants on Sayakhom's residence, business, vehicle and post office boxes, but before the return of an indictment -- Sayakhom and her former attorney, Danny Brace, attended a meeting with Assistant United States Attorney ("AUSA") Wong. California Department of Insurance Investigators Julianne McCoy and Larry Sewell also attended the meeting.

Brace testified that he contacted AUSA Wong after learning about the search warrants relating to Sayakhom's operation of the AAC. According to Brace, he sought to discover "what the charges [were] going to be, what[ ] her exposure [was], and kind of where [ ] we [were]." Wong represented to the court that he advised Brace during this conversation that Sayakhom would be facing mail fraud charges and possibly money laundering charges "in the event that we were unable to resolve this."

The meeting began with Sayakhom explaining, in English and without the assistance of an interpreter, her version of the facts and her belief that what she was doing was not illegal. Sayakhom answered questions from AUSA Wong. AUSA Wong, Investigators Sewell and McCoy warned Sayakhom that selling life insurance without the approval of the State of California was illegal. They told her to stop selling life insurance products.

At the end of the meeting, AUSA Wong advised Sayakhom that he believed she was guilty of federal charges and that he planned to proceed with the filing of charges. He suggested that she consider pleading guilty to mail fraud to avoid any money laundering counts. Brace indicated that he would send a letter to AUSA Wong containing a settlement offer. Before leaving, Sayakhom turned over to the government checks or money orders.

Sayakhom moved to suppress the statements made during the meeting as inadmissible plea negotiations. The district court declined to "put a title" on the meeting, concluding that "[t]here is no magic, anyway, to the term`plea negotiations.' " The court ruled that Sayakhom's statements during the meeting were inadmissible against her at trial. The court stated that it would allow the government to introduce evidence of warnings given to Sayakhom, followed by a "very careful cautionary instruction" limiting the use of such warnings to establish notice, but not guilt.³

At trial, the government presented the testimony of Investigator McCoy to show that Sayakhom knew that the AAC's sale of life insurance products was unlawful. McCoy testified that she, AUSA Wong and Investigator Sewell warned Sayakhom that the unauthorized sale of life insurance was illegal. McCoy further testified that AUSA Wong and Investigator Sewell instructed Sayakhom to stop selling unauthorized insurance products. The court allowed the government to ask McCoy what Sayakhom said in response to these warnings. McCoy answered, "She didn't really say anything. She just nodded her head."

Despite the district court's unwillingness to ascribe a label to the meeting, we conclude that the meeting must be characterized as a plea negotiation. A statement was made in the course of plea discussions with a United States Attorney if (1) the suspect exhibited an actual subjective expectation that she was negotiating a plea at the time of the discussion and (2) her expectation was reasonable given the totality of the circumstances. See Leon Guerrero, 847 F.2d at 1367. Sayakhom exhibited an actual and reasonable expectation that she was negotiating a plea. Sayakhom's counsel arranged the meeting with the AUSA after learning that his client would be indicted, and presented his client to explain her version of the facts and answer the prosecutor's questions. Moreover, the parties discussed the possibility of Sayakhom pleading guilty to mail fraud to avoid money laundering charges. This meeting was a plea negotiation. All statements made in the course of this meeting should have been excluded.

Having concluded that the admission of this testimony was erroneous, we must decide whether the error was harmless. See Fed. R. Crim. Pro. 11(h) ("Any variance from the procedures required by this rule which does not affect substantial rights shall be disregarded."); see also United States v. Mezzanatto, 998 F.2d 1452, 1456 (9th Cir. 1993), rev'd on other grounds by 513 U.S. 196 (1995). An error not of constitutional magnitude may be disregarded if the government shows that the prejudice resulting from the error was more probably than not harmless. See...