U.S. v. Nguyen

• Citation: 284 F.3d 1086
• Decision Date: 25 March 2002
• Docket Number: No. 00-10406.,No. 00-10353.,00-10353.,00-10406.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Khanh Phuong NGUYEN, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Tuyet Mai Thi Phan, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1086

284 F.3d 1086

UNITED STATES of America, Plaintiff-Appellee, v. Khanh Phuong NGUYEN, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Tuyet Mai Thi Phan, Defendant-Appellant.

No. 00-10353.

No. 00-10406.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 12, 2002.^*

Filed March 25, 2002.

Howard Trapp, Hagatna, Guam, for defendant-appellant Nguyen; Kari A. Wickland, Hagatna, Guam, for defendant-appellant Phan.

Mark E. Kondas, Assistant United States Attorney, Hagatna, Guam, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Guam; John S. Unpingco, District Judge, Presiding. D.C. No. CR-99-00158-JSU.

Before: SCHROEDER, Chief Judge, GOODWIN, Circuit Judge and MUNSON,^** District Judge.

GOODWIN, Circuit Judge.

A jury convicted Defendants Khanh Phuong Nguyen ("Nguyen") and Tuyet Mai Thi Phan ("Phan") of drug violations. Nguyen and Phan appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

BACKGROUND

While conducting a drug detector dog sniff of mail parcels at the Guam Main Postal Facility, Guam Customs Officer Franklin J. Gutierrez, Jr.'s dog "Hooch" alerted to an express mail parcel addressed to Linda Phan, P.O. Box 9104, Tamuning, Guam. Officer Gutierrez obtained a search warrant and took the parcel to the Guam Customs Contraband Enforcement Team Office. A Guam Customs officer X-rayed the parcel, which was found to contain, among other items, five cylindrical objects. An officer then opened the parcel and discovered amphetamine packed in five small canisters. Officers proceeded to replace the crystal amphetamine with rock salt and wire the package so that it would send a radio signal when opened. After restoring the parcel to its original wrapping, drug enforcement agents arranged with the postal agents to make a controlled delivery.

Postal Inspector Pitts arranged for a notice of Express Mail to be placed in post office box 9104. Defendant Appellant Phan retrieved the notice, presented it to a postal clerk, and received the package. Phan signed for the package as "Lin Da Phan." At trial, Inspector Pitts testified that Phan told him that "Linda" was her sister. Phan left the post office with the parcel and got into a car driven by Co Defendant Nguyen's younger sister, Tina. Ai Ngoc Phan ("Ai") was in the back seat with a two-year old boy, Kevin Nguyen ("Kevin"). Both Nguyen and Phan are related to Tina, Ai, and Kevin, as well as to Kevin's father Thanh Phuong Nguyen, who lives in California.

Agents kept the car under surveillance and followed it to Guam Memorial Hospital where it stopped. An unidentified person in the car deposited something in a refuse container near the Emergency Room. The car then moved to a residential area in Tamuning, ultimately parking at an apartment complex in space number nine. At trial, the government characterized the motor trip as having taken a "circuitous" route.

At the apartment complex, agents saw two women exit the car with a child and enter Apartment number six, which was later identified as the apartment occupied by Nguyen. Agents meanwhile became aware by a radio signal that the package had been opened. The agents then approached the apartments, where they observed Phan near the sliding back door of Apartment nine. Agents testified that they saw Phan walk from her apartment over to Nguyen's apartment.

Without a warrant, the agents entered Apartment six and found Phan and Nguyen in the living room. Agents saw parts of the opened parcel and some of its contents inside the front bedroom. The agents found three cylindrical objects in the bathtub, and two in the toilet bowl. Phan and Nguyen were then advised of their rights, chose to remain silent, and were arrested.

The agents then obtained a warrant and searched Apartment six. They found drug paraphernalia, packaging material, and $6,000 cash.

When the agents had previously repacked the parcel, they had installed a "clue spray" that would be revealed under black light if it later showed up on someone's hands. When arrested, Nguyen's hands bore the tell-tale clue. Phan's hands were clean. Phan was in her kitchen cooking lunch when the package was opened, she says, and there is no evidence to contradict her. Tina, who was not indicted, also had a trace of the clue material on one of her fingers.

The contents of the five canisters, already under government control, were weighed and analyzed and found to contain 443.8 grams of methamphetamine. The hospital garbage can was searched and yielded an express mail container which bore a Westminster, California, postmark dated November 30, 1999, and the following words and figures: (671) 646-2330 (a Guam area code number that was not identified as assigned to anyone) and "To: Linda Phan, Post Office Box 91, Tamuning, Guam 96911." The label also contained the words: "From Michael Tran, 12181 Candy Lane Garden Grove, California," and a(714) area code number that failed to check out as active or valid.

Garden Grove police checked the Garden Grove return address and found no Michael Tran living there. But on December 1, 1999, nearby Santa Anna police interviewed a man named Thanh Phuong Nguyen ("Thanh"), whose driver's license gave the Candy Lane address as the address of the licensee. According to Santa Anna police officer Sergio Camacho, Thanh claimed that he lived at 12181 Candy Lane. Although Thanh did not in fact reside at 12181 Candy Lane, California police officers did locate another, unrelated, Nguyen family that had formerly lived at the Candy Lane address but had recently sold the house.

The interview in Garden Grove would never have been reported to officers in Guam had not police computers turned up the Candy Lane address in the Guam investigation. Other than the express mail wrapper, and Thanh's driver's license, no evidence connected Thanh with the house at 12181 Candy Lane. He did, however, turn out to be Defendant Nguyen's brother, and Defendant Phan's nephew.

On December 15, 1999, the United States Grand Jury for the District of Guam returned an Indictment charging both Nguyen and Phan with (1) conspiracy to import methamphetamine (in violation of 21 U.S.C. §§ 952(a), 960, and 963); (2) knowingly aiding and abetting each other to import methamphetamine (in violation of 18 U.S.C. § 2, and 21 U.S.C. §§ 952 and 960); and (3) attempting to possess over fifty (50) grams of methamphetamine with intent to distribute (in violation of 21 U.S.C. §§ 841(a)(1) and 846).

On the first day of trial, Defendants objected to any introduction of evidence about Thanh's connection to Defendants. The District Court overruled the Defendants' objection, stating that the evidence was relevant because, inter alia, the address on Thanh's driver's license was the same as that listed on the return address of the parcel.

On March 29, 2000, the Defendants were convicted on all counts. The District Court sentenced each Defendant to the custody of the Bureau of Prisons for two hundred twelve months on each count, to be followed by a five year term of supervised release.

DISCUSSION

Appellants Nguyen and Phan challenge the admission into evidence of the consanguinity between themselves and Thanh, the holder of the California driver's license bearing the Candy Lane address. Appellants argue that the District Court abused its discretion in admitting evidence regarding Appellants' familial relationship with Thanh. Appellants also argue that the evidence admitted regarding their familial relationship with Thanh was insufficient to support their convictions.

We review for an abuse of discretion the trial court's evidentiary rulings. See United States v. Hicks, 103 F.3d 837, 843 (9th Cir.1996). "Evidentiary rulings will be reversed for abuse of discretion only if such nonconstitutional error more likely than not affected the verdict." United States v. Hankey, 203 F.3d 1160, 1166 (9th Cir.2000).

Here, the evidence connecting Thanh's driver's license to the return address on the package received by Defendant Phan was relevant and admissible. The tracing of the address on the package label back to Nguyen's brother in California was good police work, and information gleaned from that tracing was competent, relevant evidence from which the jury could infer that the family members in Guam would know from the coded words and numbers on the package who sent it and what it contained. That inference is fortified by the manner in which the person who picked up the package at the post office explained the name "Linda," and the...