393 F.3d 913 (9th Cir. 2004), 03-10080, United States v. Luong

Docket Nº:03-10080, 03-10091.
Citation:393 F.3d 913
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. John That LUONG, aka Ah Sing, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Hoang Ai Le, Defendant-Appellant.
Case Date:December 23, 2004
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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393 F.3d 913 (9th Cir. 2004)

UNITED STATES of America, Plaintiff-Appellee,


John That LUONG, aka Ah Sing, Defendant-Appellant.

United States of America, Plaintiff-Appellee,


Hoang Ai Le, Defendant-Appellant.

Nos. 03-10080, 03-10091.

United States Court of Appeals, Ninth Circuit

December 23, 2004

Argued and Submitted Nov. 1, 2004

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Richard B. Mazer, San Francisco, CA, for defendant-appellant Luong.

George C. Boisseau, Santa Rosa, CA, for defendant-appellant Le.

William S. Wong, Assistant United States Attorney, Sacramento, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California; William B. Shubb, Chief District Judge, Presiding. D.C. Nos. CR-99-00433-WBS, CR-99-00433-WBS.

Before: CANBY, RYMER, and HAWKINS, Circuit Judges.

RYMER, Circuit Judge:

This appeal requires us to decide whether conviction (or acquittal) on RICO conspiracy and substantive charges bars subsequent prosecution for a predicate act when the predicate act is itself a conspiracy.1

Hoang Ai Le and John That Luong appeal the district court's order denying their motion to dismiss the indictment for conspiracies to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951(a) on grounds of double jeopardy.2 They had previously been prosecuted on RICO charges that included a conspiracy to commit Hobbs Act robberies as a predicate act. In United States v. Saccoccia, 18 F.3d 795, 798 (9th Cir. 1994), we held that a defendant may be prosecuted for a RICO conspiracy and later for the predicate offenses that constituted a pattern of racketeering activity. We now conclude that the same rule applies when the predicate offense is a conspiracy. As we have jurisdiction over this interlocutory appeal, 28 U.S.C. § 1291; Abney v. United States, 431 U.S. 651, 659, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), we affirm.


Luong, Le, and seventeen others were indicted in the Northern District of California and tried on charges of conducting the affairs of a racketeering enterprise through a pattern of racketeering activity in violation of 18 U.S.C. § 1962(c) (Count One), and of conspiring to do so in violation of § 1962(d) (Count Two). United States v. John That Luong, et al., CR-96-0094-MHP. Count One of the superseding indictment accused Le and Luong of running an enterprise devoted to robbing computer chip companies and dealing in heroin through a pattern of fifteen racketeering acts. Racketeering Act One described a conspiracy to commit Hobbs Act robberies of various computer chip companies from January 1, 1995 to April 9, 1996 in California, Oregon, and Minnesota. Count Two, the RICO conspiracy charge, incorporated the same racketeering acts and identified 54 overt acts involving computer chip companies that were targets of the racketeering activity. Luong was convicted of both RICO offenses (as well as nine other crimes) and sentenced to 1058 months imprisonment. Le was acquitted

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of the substantive RICO charge, but convicted on RICO conspiracy and four other counts. He was sentenced to 240 months in custody.

A nine-count indictment was then returned against Le, Luong, and five others in the Eastern District of California. Both Le and Luong were charged with conspiring to commit a January 25, 1996 robbery affecting interstate commerce of Phnom Pich Jewelry Store in Stockton, California, and a January 20, 1996 Hobbs Act robbery of Diamond Flower Electric Instruments (DFI) in Sacramento.

Le moved to dismiss the two conspiracy counts and related firearms counts on double jeopardy and collateral estoppel grounds. Luong joined.3 The district court denied the motion, reasoning that Counts One and Two of the Northern District indictment did not charge Le with conspiracy to commit Hobbs Act robberies; rather, those counts charged Le with committing a RICO violation through a pattern of racketeering...

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