U.S. v. Nguyen

• Decision Date: 02 August 1994
• Docket Number: No. 93-7224,93-7224
• Citation: 28 F.3d 477
• Parties: UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Nam Tan NGUYEN, Defendant-Appellant, Cross-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 477

28 F.3d 477

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Nam Tan NGUYEN, Defendant-Appellant, Cross-Appellee.

No. 93-7224

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Aug. 2, 1994.

Martha G. Carson, D'Iberville, MS, (Court-appointed), for appellant.

Richard T. Starrett, Victoria May, Asst. U.S. Attys., Jackson, MS, Thomas Payne, Asst. U.S. Atty., George Phillips, U.S. Atty., Biloxi, MS, for appellee.

Appeals from the United States District Court for the Southern District of Mississippi.

Before GARWOOD, SMITH and DeMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant Nam Tan Nguyen (Nguyen) was convicted of one count of using fire to commit a felony, in violation of 18 U.S.C. Sec. 844(h)(1), and of one count of attempting to destroy a building by fire, in violation of 18 U.S.C. Sec. 844(i). On appeal, Nguyen argues that the evidence is insufficient to support his convictions. Nguyen also contends that the district court committed reversible error in (1) failing to dismiss an allegedly multiplicitous third count of which he was ultimately acquitted, (2) denying his motion for a mistrial, and (3) giving an Allen charge after the jury had revealed its numerical division. The government cross-appeals, asserting that the district court erred by refusing to sentence Nguyen for one of the counts on which he was convicted. We affirm in part and vacate and remand in part.

Facts and Proceedings Below

In 1988, Nguyen opened a store in Biloxi, Mississippi, which provided for rental video tapes dubbed into the Vietnamese language. On January 19, 1990, Nguyen's store was destroyed by arson. On July 7, 1992, a grand jury handed down a three-count indictment charging Nguyen with (1) knowingly and unlawfully using fire to commit a felony, to wit: mail fraud, which may be prosecuted in a court of the United States, in violation of 18 U.S.C. Sec. 844(h)(1) (Count One); (2) maliciously damaging and destroying and attempting to destroy a building used in interstate commerce, in violation of 18 U.S.C. Sec. 844(i) (Count Two); and (3) for the purpose of attempting to execute a scheme and artifice to defraud, and by means of fraud to obtain money through the use of the United States Postal Service, knowingly caused to be deposited in the mail a proof of loss form, in violation of 18 U.S.C. Sec. 1341 (Count Three).

On March 23, 1993, Nguyen filed a motion in the trial court asserting that Counts One and Three were multiplicitous and requesting that the court dismiss Count One or, in the alternative, require the government to elect between Count One and Count Three. The court denied the motion on the first day of trial, March 29, 1993. On April 1, 1993, a jury found Nguyen guilty on Counts One and Two, but acquitted him on Count Three. The district court sentenced Nguyen to a term of imprisonment of sixty months on Count One, followed by a three-year term of supervised release. The court, however, declined to impose a sentence for Nguyen's conviction on Count Two.

Nguyen now appeals his convictions; the government cross-appeals the district court's refusal to impose sentence on Count Two.

Discussion

I. Sufficiency of the Evidence

In reviewing challenges to sufficiency of the evidence, this Court views the evidence in the light most favorable to the verdict and affirms if a rational trier of fact could have found that the government proved all essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 313-15, 99 S.Ct. 2781, 2786, 61 L.Ed.2d 560 (1979); see also United States v. Ruiz, 987 F.2d 243, 249 (5th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 163, 126 L.Ed.2d 123 (1993). All credibility determinations and reasonable inferences are to be resolved in favor of the jury's verdict. Ruiz, 987 F.2d at 249. Where two or more counts are tried at the same time and the offense charged in one count is the predicate act charged in a second count, acquittal on the predicate count does not preclude a conviction on the second count if a rational jury could have found the defendant guilty of the predicate act. See United States v. Munoz-Fabela, 896 F.2d 908, 911 (5th Cir.), cert. denied, 498 U.S. 824, 111 S.Ct. 76, 112 L.Ed.2d 49 (1990) (concluding that "it is only the fact of the offense, and not a conviction, that is needed to establish the required predicate"). Indeed, a not guilty verdict on one count does not establish any facts favorable to the defense for the purpose of determining the sufficiency of the evidence on the counts of conviction (except if conviction--as opposed to commission--of an acquitted count is an element of a count of conviction). See United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984); United States v. Thomas, 12 F.3d 1350, 1362-63 (5th Cir.1994); United States v. Ruiz, 986 F.2d 905, 911 (5th Cir.1993).

Nguyen was convicted of violating 18 U.S.C. Sec. 844(i) and 18 U.S.C. Sec. 844(h)(1). We review the evidence supporting each conviction separately.

A. Section 844(i)

To convict a defendant of violating 18 U.S.C. Sec. 844(i), the government must prove that he: (1) maliciously damaged or destroyed a building or personal property, (2) by means of fire, and (3) the building or personal property was being used in activity affecting interstate commerce. See United States v. Triplett, 922 F.2d 1174, 1177 (5th Cir.), cert. denied, 500 U.S. 945, 111 S.Ct. 2245, 114 L.Ed.2d 486 (1991).

At trial, the government presented evidence that established that the business operated by Nguyen in the building in question was involved in interstate commerce, purchasing and renting videotapes from California. Sufficiency of the evidence as to the interstate commerce element of section 844(i) is not challenged. An ATF financial auditor testified that his review of Nguyen's financial records indicated that in December 1989, one month before the fire, the business was in "total financial collapse." Linh Vu, Nguyen's insurance agent, testified that on the day before the fire, January 18, 1990, Nguyen went to the insurance agency to make an outstanding premium payment and questioned Vu about the extent of the fire insurance coverage on Nguyen's store.

The government also presented testimony from Charry Kent, an employee of a poolhall located next to Nguyen's, that between 4:00 and 6:00 p.m. on January 18, 1990, Nguyen removed VCRs and boxes containing new clothing from his store. She further testified that she saw Nguyen put the merchandise in his car and drive away; he later returned, loaded more boxes into his car, and drove away. Kent saw Nguyen reload his car and remove boxes a total of three or four times, after which she saw him enter the store and remain there. Kent also testified that at approximately 7:00 p.m., she entered Nguyen's store and "it looked bare." The owner of the poolhall, Muoi Lai, also testified that when she entered Nguyen's business on the evening of January 18, 1990, the store "seemed empty."

On January 19, 1990, Nguyen's store was destroyed by fire. Although Nguyen's store was equipped with a fire alarm, no alarm sounded on the night of the fire. The government presented testimony from Riley Sanders, a former employee of ATS security systems who installed the alarm system in Nguyen's store, that Nguyen was the only person given the code to arm or deactivate the system. ¹ Sanders also testified that had the alarm been turned on, it would have detected the fire and notified the Biloxi Fire Department.

Nguyen stipulated that the fire was the result of arson. Rodger Shanks (Shanks), an arson investigator for the ATF, testified that the fire appeared to be an arson for profit. Shanks also testified that there had been no forced entry into the store, and that the doors of the store were closed and locked at the time the fire began.

Based on the evidence outlined above, a rational jury could determine beyond a reasonable doubt that Nguyen intentionally started the fire that burned his store, and that the store's operation affected interstate commerce. Our review of the record, therefore, indicates that sufficient evidence exists to affirm Nguyen's conviction for arson, in violation of 18 U.S.C. Sec. 844(h)(1).

B. Section 844(h)(1)

To secure a conviction under section 844(h)(1), the government must prove that the defendant (1) used fire (2) to commit a "felony which may be prosecuted in a court of the United States." 18 U.S.C. Sec. 844(h)(1). In order to find the evidence sufficient for a conviction under section 844(h)(1), we must be satisfied with the evidence of the underlying felony, in this case mail fraud under 18 U.S.C. Sec. 1341. To establish the essential elements of section 1341 mail fraud, the government must show that the defendant (1) used a scheme to defraud, (2) which involved a use of the mails, (3) and that the mails were used for the purpose of executing the scheme. United States v. Pazos, 24 F.3d 660, 665 (5th Cir.1994) (citing United States v. Kent, 608 F.2d 542, 545 (5th Cir.1979), cert. denied, 446 U.S. 936, 100 S.Ct. 2153, 64 L.Ed.2d 788 (1980)). Since we have already concluded that the government presented ample evidence of Nguyen's arson, the only question is whether the evidence is sufficient to establish that Nguyen committed mail fraud under section 1341.

The facts relevant to whether Nguyen committed mail fraud are as follows. First, as noted above, on January 18, 1994, Nguyen questioned his insurance agent about the extent of his fire insurance coverage. After the fire, Nguyen's insurance carrier, CIGNA, mailed him a sworn proof of loss form. Nguyen mailed the form back to CIGNA, claiming an inventory loss of $93,377. Thereafter, CIGNA investigated Nguyen's claim and determined the inventory loss to be approximately $33,400.

From these facts, a reasonable jury could have concluded rationally that Nguyen used the mails to execute a scheme to...