29 F.3d 785 (2nd Cir. 1994), 92-1662, United States v. Thai

Docket Nº:92-1662, 92-1700.
Citation:29 F.3d 785
Party Name:UNITED STATES of America, Appellee, v. David THAI, Lan Ngoc Tran, Minh Do, Jimmy Nguyen, Hoang Huy Ngo, Quang Van Nguyen, and Lv Hong, a/k/a
Case Date:July 11, 1994
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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29 F.3d 785 (2nd Cir. 1994)

UNITED STATES of America, Appellee,

v.

David THAI, Lan Ngoc Tran, Minh Do, Jimmy Nguyen, Hoang Huy

Ngo, Quang Van Nguyen, and Lv Hong, a/k/a "L.V.

Hong", Defendants-Appellants.

Nos. 545, 541, 532, 550, 551, 690, 689, Dockets 92-1641(L),

92-1657, 92-1658, 92-1659, 92-1660, 92-1661,

92-1662, 92-1700.

United States Court of Appeals, Second Circuit

July 11, 1994

Argued Feb. 3, 1994.

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Patricia Pileggi and Alan Vinegrad, Asst. U.S. Attys., Brooklyn, NY (Zachary W. Carter, U.S. Atty. for the E.D. of N.Y., Peter A. Norling, Asst. U.S. Atty., Brooklyn, NY, on the brief), for appellee.

Jeremy Gutman, New York City (Robert Rosenthal, on the brief), for defendant-appellant David Thai.

Bennett M. Epstein, New York City, for defendant-appellant Lan Ngoc Tran.

John M. Apicella, Brooklyn, NY, for defendant-appellant Minh Do.

Philip Katowitz, New York City, for defendant-appellant Jimmy Nguyen.

Christine E. Yaris, New York City, for defendant-appellant Hoang Huy Ngo.

Michael F. Grossman, New York City, for defendant-appellant Quang Van Nguyen.

David G. Secular, New York City, for defendant-appellant L.V. Hong.

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Before: OAKES, KEARSE, and CARDAMONE, Circuit Judges.

KEARSE, Circuit Judge:

Defendants David Thai, Lan Ngoc Tran ("Lan Tran"), Minh Do, Jimmy Nguyen ("Jimmy"), Quang Van Nguyen ("Quang"), Hoang Huy Ngo ("Hoang Ngo"), and LV Hong appeal from judgments entered in the United States District Court for the Eastern District of New York following a jury trial before Carol Bagley Amon, Judge, convicting them of a host of crimes involving murder, robbery, and extortion, in connection with their participation in the activities of a street gang. All of the appellants were convicted of participating and conspiring to participate in the affairs of an enterprise through a pattern of racketeering activity, in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. Secs. 1962(c) and (d) (1988). In addition, Thai was convicted on 14 other counts: one count of conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C. Sec. 1959(a)(5) (1988), one count of conspiracy to commit assault with a dangerous weapon in aid of racketeering, in violation of 18 U.S.C. Sec. 1959(a)(6) (1988), eight counts of conspiracy to obstruct commerce by robbery or extortion, in violation of 18 U.S.C. Sec. 1951 (1988) (the "Hobbs Act"), two counts of possession of an unregistered firearm, in violation of 26 U.S.C. Sec. 5861(d) (1988), and two counts of possession of a firearm without serial numbers, in violation of 26 U.S.C. Sec. 5861(i) (1988). Lan Tran was convicted on seven additional counts: one count of conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C. Sec. 1959(a)(5), and six counts of conspiracy to obstruct commerce by robbery or extortion, in violation of the Hobbs Act. Minh Do, Jimmy, Hoang Ngo, Quang, and LV Hong were each convicted on one additional count of conspiracy to obstruct commerce by robbery or extortion, in violation of the Hobbs Act.

Thai was sentenced principally to two concurrent terms of life imprisonment, plus one term of twenty years, two terms of ten years, and one term of three years, all to be served concurrently with his life terms; the prison terms were to be followed by three concurrent three-year terms of supervised release, plus one one-year supervised-release term to be served concurrently with the three-year supervised-release terms. Thai was also ordered to pay $413,285 in restitution. Lan Tran was sentenced principally to two concurrent terms of life imprisonment, plus one term of twenty years and one term of ten years to be served concurrently with his life terms, to be followed by two concurrent three-year terms of supervised release. Jimmy was sentenced principally to two concurrent terms of life imprisonment, plus one term of twenty years to be served concurrently with his life terms, to be followed by one three-year term of supervised release. The remaining defendants were sentenced principally to the following terms of imprisonment, each to be followed by three concurrent three-year terms of supervised release: Minh Do--three concurrent terms of 130 months; Hoang Ngo--three concurrent terms of 188 months; Quang--three concurrent terms of 168 months; and LV Hong--three concurrent terms of 121 months.

On appeal, defendants make numerous challenges to their convictions, including challenges to (a) the use of an anonymous jury, (b) the conduct of the prosecutors, (c) various evidentiary rulings, and (d) the sufficiency of the evidence. They also challenge several aspects of sentencing. For the reasons below, we reverse Thai's conviction for conspiracy to assault in violation of Sec. 1959 and remand for recalculation of his sentence in light of that reversal. In all other respects, we affirm.

I. BACKGROUND

The present appeals arise out of the prosecution of the seven appellants and others in connection with their participation in the affairs of a gang known as Born To Kill ("BTK") or the "Canal Boys." At trial, the government presented voluminous evidence, including the testimony of more than 80 witnesses; hundreds of exhibits, including tapes and transcripts of approximately 30 recorded conversations among members of BTK; and physical evidence including guns, ammunition, and homemade bombs. Among the government's

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witnesses were some two dozen victims of BTK crimes and four former BTK members, Tinh Ngo, Khang Thanh Vu ("Kenny Vu"), Thanh Tran ("Eddie Tran"), and Nigel Jagmohan. Taken in the light most favorable to the government, the evidence revealed the following.

  1. Gang Structure and Operation

    BTK was an organized street gang that committed violent crimes, principally robbery and extortion. Thai was BTK's leader from 1988 until his arrest in August 1991. He oversaw BTK's operations, planned many of its crimes, and collected the proceeds of its activities. Lan Tran and LV Hong were Thai's principal assistants. Lan Tran helped supervise the other gang members and often participated in the gang's crimes. LV Hong was responsible for internal discipline and for overseeing most of BTK's extortion activities.

    The membership of BTK consisted almost entirely of young Vietnamese males. They lived in safehouses in groups of 5-10, with their living expenses paid by Thai and other gang leaders. Discipline was strict, and gang members who disobeyed orders or who were suspected of cooperating with the police or of keeping the proceeds of robberies for themselves, instead of turning them over to Thai, suffered violent retribution. Thai and LV Hong often participated directly in these disciplinary actions.

    The geographic center of BTK operations was New York City's Chinatown. Many of the robberies and extortions took place on or near Canal Street in that area, though the gang had cells outside of New York as well. Virtually all of the gang's robbery and extortion targets were Asian, largely because of the gang's belief that such victims "don't know much about the law and they don't complain to the police." (Trial Transcript ("Tr.") 521.) The robberies were usually planned by Thai, who typically selected the participants and the victims, planned the timing and manner of the robbery, and provided weapons.

    The extortions, concentrated in the Canal Street area, consisted in part of BTK members' collecting an average of $20 or more per week from each of the Asian store owners and sidewalk merchants on Canal Street. From a small number of other merchants in the area, they would also collect up to several hundred dollars at a time. Typically two or more gang members would enter a store and demand money from the owner. One of the gang members would record the store address and the amount received. LV Hong oversaw the operation, and at the end of the day, the money that had been collected was turned over to him. LV Hong was responsible for dealing with recalcitrant merchants. Those who did not comply with BTK's demands were beaten or robbed.

  2. Specific Crimes

    The 21-count indictment charged all of the appellants, and others, with racketeering and RICO conspiracy, and charged each of the appellants with one or more other offenses. Some of the events underlying these charges are summarized below.

    1. The W.C. Produce Robbery and the Killing of Cuong Pham

    In August 1990, Jimmy and several other young Vietnamese males entered W.C. Produce, a Chinatown vegetable wholesaler, brandishing guns and demanding money. They searched the employees and the premises; they bound several of the employees with telephone wire, hit two employees in the head with guns, and shot one employee behind the ear.

    When Jimmy demanded more money and the owner of the store responded that there was none, Jimmy said, "you looked at me, now I'm going to shoot you." (Tr. 2187.) Jimmy then fired but narrowly missed the owner. Instead, his bullet struck and killed fellow gang member Cuong Pham, who had been standing near the owner. The robbers fled the premises, taking with them approximately $3,000 in cash, as well as jewelry taken from the individuals.

    2. The Bangkok Health Spa Robbery in Connecticut

    In the fall of 1990, one "Fat Lam," a BTK member in Bridgeport, Connecticut, advised Thai that the Bangkok Health Spa, a massage

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    parlor in Bridgeport, would make a good...

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