United States v. Lam, PLAINTIFF-APPELLEE

• Citation: 251 F.3d 852
• Decision Date: 04 June 2001
• Docket Number: PLAINTIFF-APPELLEE,DEFENDANT-APPELLANT,No. 99-10463,99-10463
• Parties: (9th Cir. 2001) UNITED STATES OF AMERICA,, v. TANH HUU LAM,
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 852

251 F.3d 852 (9th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. TANH HUU LAM, DEFENDANT-APPELLANT.

No. 99-10463

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted October 30, 2000

Filed June 4, 2001

Judy Clarke, Executive Director, Federal Defenders of Eastern Washington and Idaho, Spokane, Washington; Quin Denver, Federal Defender, Mary French, Asst. Federal Defender, John P. Balazs, Asst. Federal Defender, Sacramento, California, for the defendant-appellant.

Paul L. Seave, United States Attorney, Kenneth J. Melikian, Assistant United States Attorney, R. Stephen Lapham, Assistant United States Attorney, Sacramento, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California William Shubb, District Judge, Presiding D.C. No. CR-97-0054-WBS

Before: Betty B. Fletcher, Diarmuid F. O'Scannlain and Ronald M. Gould, Circuit Judges.

Betty B. Fletcher, Circuit Judge

This is a direct appeal from a federal conviction for arson resulting in death, in violation of 18 U.S.C. § 844(i). The appellant, Tanh Huu Lam, raises two types of claims: First, he argues that his constitutional and statutory rights to a speedy trial were violated. Second, Lam claims that the government violated his due process and double jeopardy rights by knowingly presenting false testimony and committing other forms of prosecutorial misconduct during his trial. For the reasons elaborated below, we reject each of these claims and affirm the conviction.

I.

Lam is currently serving a life sentence. He pleaded guilty to arson resulting in death and aiding and abetting more than a year after his trial ended in a hung jury. As part of the plea agreement, Lam admitted hiring a man named Trung Pham to kill his best friend, Tri Tran, whom he blamed for dating and breaking up his marriage to his ex-wife, Huyen Nguyen. Following two failed attempts at shooting Tran, Trung and two accomplices, Quoc Pham and Tu Troung, proceeded to set fire to the house in Carmichael, California, in which Tran, his brother Duc Tran, his sister Ngoc Tran, and her three children were living. Hien Tran, the nine year-old daughter of Ngoc Tran, died as a result of the fire. Duc Tran and Tin Nguyen, another child of Ngoc Tran, suffered severe burns.

Lam was arrested on January 9, 1997. He made his initial court appearance in federal court in Sacramento on January 17, 1997. The government filed an indictment on January 30, 1997, charging Lam with one count of arson resulting in death and aiding and abetting. He was arraigned on this charge on February 3, 1997.

At five status conferences held between February 5, 1997, and November 19, 1997, the district court granted a series of continuances, with exclusions of time for Speedy Trial Act ("STA") purposes based on the "ends of justice" provision of 18 U.S.C. §3161(h)(8)(A). Although his trial attorney stipulated to each continuance, Lam never signed these stipulations or any document purporting to waive his right to a speedy trial. Beginning in June 1997, Lam wrote letters to the Assistant United States Attorney ("AUSA"), the magistrate judge, and then the district court expressing, among other things, his desire for a speedy trial. Altogether, Lam sent out eight letters between June 1997 and February 1998, five of which were addressed to the district court. Lam also expressed his desire for a speedy trial at an ex parte hearing on November 19, 1997, as well as at a status conference on January 21, 1998.

The trial, which finally commenced on March 24, 1998, lasted twenty-six days. During the trial, law enforcement officers testified to finding gasoline cans in Lam's house. When they questioned Lam about them, he claimed that he had purchased them over two years before the search. Given that some of the cans had only been manufactured within the past year, the prosecution cited Lam's statements as evidence of his dishonesty. Lam's ex-wife also testified that before the fire Lam had threatened to use gasoline to burn Tran's house down and to "cause his family pain," given that Tran had caused Lam's family pain. Huyen Nguyen further testified that on one occasion Lam had shocked her twice with a stun gun. The case was submitted to the jury on May 1, 1998. Seven days later, the court granted a mistrial due to a hung jury.

Lam was subsequently reindicted, and on December 18, 1998, the government filed a notice of intent to seek the death penalty. Between May and September of 1998, Lam wrote four more times to the trial judge requesting a speedy trial. He also wrote six letters to various judges of this circuit between June 1998 and August 1998. On April 30, 1999, Lam filed motions to dismiss the indictment with prejudice based on alleged violations of his constitutional and statutory rights to a speedy trial, as well as for violations of his rights under the Due Process and Double Jeopardy Clauses of the Fifth Amendment. Arguments on these motions were heard on June 16, 1999, at which time the motions were denied. Nine days later, Lam entered into a plea agreement following the capture of Quong Pham, who agreed to cooperate with the government and testify against Lam.

Lam now argues on appeal that the district court erred in denying his motion to dismiss the indictment with prejudice, because the duration of his pretrial incarceration violated his Sixth Amendment speedy trial right. He also contends that the district court improperly tolled three periods for which continuances had been granted prior to the trial, each of which should have counted towards the STA's seventy-day time limit. The government, meanwhile, argues that Lam was not deprived of his constitutional speedy trial right given that all of the continuances were initiated by, stipulated to, and granted for his benefit through his trial counsel, and that Lam waived his STA claim by failing to move to dismiss until after the trial.

As part of his plea agreement, Lam reserved the right to appeal the district court's denial of his speedy trial claims, as well as the court's denial of his motion to dismiss for violations of his due process and double jeopardy rights.

II.

The district court had jurisdiction of this case under 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291.

The district court's denial of Lam's motion to dismiss based upon the Sixth Amendment right to a speedy trial is reviewed de novo. United States v. Beamon, 992 F.2d 1009, 1012 (9th Cir. 1993). Likewise, the district court's application of the STA is reviewed de novo. United States v. Hall, 181 F.3d 1057, 1061 (9th Cir. 1999). The district court's findings of fact are reviewed for clear error. Beamon, 992 F.2d at 1012; United States v. Ramirez-Cortez, 213 F.3d 1149, 1153 (9th Cir. 2000).

III.

A. Constitutional Speedy Trial Claim

The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial." Such a right is fundamental and exists not just to ensure "that all accused persons be treated according to decent and fair procedures," Barker v. Wingo, 407 U.S. 514, 519 (1972), but also because "there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused." Id. at 519.¹

In assessing the merits of a claimed violation of the Sixth Amendment speedy trial right, courts are to conduct a balancing test involving four separate factors: the length of the delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. Barker, 407 U.S. at 529.² Thus, we must determine"whether [the] delay before trial was uncommonly long, whether the government or the criminal defendant is more to blame for that delay, whether, in due course, the defendant asserted his right to a speedy trial, and whether he suffered prejudice as the delay's result." Doggett v. United States, 505 U.S. 647, 651 (1992).³ Significantly, in the words of the Barker Court,"We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process." Barker, 407 U.S. at 533.

Applying the first Barker factor to this case, it is readily apparent that the length of the delay exceeded the threshold minimum⁴ beyond which we presume prejudice to the defendant. As the Court stated in Doggett, "Depending on the nature of the charges, the lower courts have generally found postaccusation delay `presumptively prejudicial' at least as it approaches one year." Id. at 652 n.1. Notably, within this circuit, we have found that a six-month delay constitutes a "borderline case." See United States v. Valentine , 783 F.2d 1413, 1417 (9th Cir. 1986) (involving a single count of firearms possession by a convicted felon); cf. United States v. Simmons, 536 F.2d 827 (9th Cir. 1976) (involving a two-count indictment for forging and uttering a U.S. Treasury check).⁵ Here, roughly fourteen and one-half months passed from the date of Lam's arrest on January 9, 1997,⁶ until the start of his trial on March 24, 1998.

However, in the words of the Barker Court, "because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case. To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge." 407 U.S. at 530-31 (footnote omitted); see also Doggett, 505 U.S. at 652 n.1 (stating that the significance of any delay necessarily "[d]epend[s] on the nature...