United States v. Trinh

• Citation: 665 F.3d 1
• Decision Date: 20 December 2011
• Docket Number: No. 10–1556.,10–1556.
• Parties: UNITED STATES of America, Appellee, v. TIEM TRINH, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

665 F.3d 1

UNITED STATES of America, Appellee,

v.TIEM TRINH, Defendant, Appellant.

No. 10–1556.

United States Court of Appeals, First Circuit.

Heard Oct. 5, 2011.Decided Dec. 20, 2011.

Robert A. George, for appellant.

Kirby A. Heller, Attorney, Appellate Section, Criminal Division, with whom Carmen M. Ortiz, United States Attorney, Richard L. Hoffman, Assistant United States Attorney, Timothy E. Moran, Assistant United States Attorney, Lanny A. Breuer, Assistant Attorney General, and Greg D. Andres, Acting Deputy Assistant Attorney General, were on brief, for appellee.

Before LYNCH, Chief Judge, TORRUELLA and HOWARD, Circuit Judges.

TORRUELLA, Circuit Judge.

Defendant–Appellant Tiem Trinh (“Trinh”) was convicted after a jury trial for the following charges: conspiring to distribute and possess with intent to distribute 1,000 kilograms or more of marijuana; money laundering; engaging in unlawful monetary transactions; and perjury. He now appeals his convictions on three grounds. First, he claims the district court improperly denied his motion to suppress evidence seized pursuant to a search warrant that he alleges was neither supported by probable cause nor sufficiently particularized, was based on stale information, and led to the allegedly “bad faith” destruction of a marijuana leaf. Second, Trinh argues the district court improperly denied his motion to sever his trial because his defense was irreconcilably inconsistent with those of his co-defendants. Lastly, Trinh contends the district court erred in removing a juror and in denying his motion for a mistrial. Finding no error in the district court's determinations, we affirm.

I. Background

A. Joint Operations: A Family Affair

Trinh's two sons, Quoc Boa Trinh (“Quoc”) and Tai Trinh (“Tai”), became involved in and managed a large-scale marijuana operation from 2001 until 2007. Quoc and Tai obtained marijuana from various suppliers located in and around Massachusetts. On purchasing the marijuana, the sons sold it in wholesale quantities for further distribution.

Trinh and his wife, Anna Truong Trinh (“Anna”), occasionally assisted Quoc and Tai in operating their drug business. For instance, Trinh sometimes directly participated in the purchase and sale of marijuana, on one occasion buying approximately five pounds of marijuana from an individual and selling it in his convenience store to Daniel DaCosta (“DaCosta”)—a close friend of Quoc and a key cooperating witness for the government at trial—for $2,000 per pound. On another occasion, Trinh met with a supplier, Chu Mop, for whom Quoc was considering selling marijuana, to discuss the potential business arrangement.

Trinh also helped Quoc and Tai launder their drug sale proceeds.¹ Trinh “washed” the proceeds in a series of complex money transfers—arranging for the purchase of real estate in both Florida and New York and for the renovation of the family convenience store—using accounts that were held in different individuals' names.²

Perhaps going above and beyond the call of parental duty, Trinh and Anna allowed their sons to store marijuana, drug proceeds, and a money-counting machine in their residence. They also allowed them to run their business out of the family convenience store. Additionally, to help minimize their sons' reliance on outside suppliers, Trinh and Anna began growing marijuana in their family home in Dorchester, Massachusetts. They also began growing it in a home in Buffalo, New York, purchased for that specific purpose.

To facilitate the Buffalo home growing operations, Trinh and Quoc decided to transfer supplies from the Dorchester home to the house in Buffalo. Supplies included soil that Quoc and his close friend, DaCosta, mixed in Trinh's Dorchester backyard; high-intensity lights, containers, and vitamins that Anna had purchased in Vietnam; and marijuana seeds, obtained from both Quoc and from a visit to Canada. Trinh and Anna began living in the Buffalo house, first renovating it for purposes of plant cultivation, and then growing and raising the plants.

Trinh and Anna's cultivation attempts failed to take root. Although Trinh researched marijuana growing methods—watching an instructional DVD and consulting two of Quoc's experienced associates—their attempts at growing marketable marijuana were not successful. In or around early 2007, the Trinhs destroyed the fruits of their efforts, removing any plants that were growing at the time and dumping them on the highway between Buffalo and Dorchester.

B. The Investigation: Smoking Out the Details

Before potting their Buffalo efforts, Trinh and his sons' marijuana operation began to grow increased attention among several law enforcement agencies in or around September 2006. The Drug Enforcement Administration (“DEA”) began conducting surveillance on Trinh and his family while also enlisting the assistance of a confidential source (“CS”) who provided detailed reports on the extent and progress of the Trinh operation. The CS's reports and accompanying surveillance revealed the following information.

The CS recounted to investigating officials that Quoc informed him he “was tired of paying high prices for marijuana” and wanted to obtain a warehouse in Buffalo in which to start his own marijuana “grow operation.” On September 10, 2006, Quoc informed the CS that he and his father, Trinh, were loading up a truck to transport planting materials, lights, and other growing equipment to the home Trinh purchased in Buffalo. The next morning, at approximately 10:00 a.m., surveillance observed Quoc loading such equipment into a white Dodge van. At approximately noon, surveillance saw Quoc and two others—later identified as Trinh and Quoc's brother Antwon—leaving from Boston, Massachusetts in the van. Surveillance in Buffalo picked up the van at approximately 7:00 p.m. that evening. Agents followed it to the Buffalo home's location at 262 Bryant Street and observed as Quoc, Trinh, and Antwon backed the van up to the garage doors and unloaded the supplies.

On October 17, 2006, the CS provided information indicating that Quoc, Trinh, and Antwon were transporting approximately twelve marijuana plants from Boston to Buffalo in a different white van. Surveillance positioned itself in locations associated with the Trinhs' movements on that evening. Surveillance also intercepted a telephone conversation, in which Quoc stated he was about thirty to forty miles outside of Buffalo, that corroborated the observed movements of the Trinhs. Agents saw the van arrive at the Buffalo home later that evening and observed three males, including Trinh, unload items from the van and into the garage. After unloading the van, the three males entered the house and closed the garage door.

Surveillance saw the CS at the Buffalo house between December 7 and December 9, 2006. The CS provided information regarding his personal observations of the home. Specifically, the CS stated that Trinh and Quoc were growing marijuana plants in both the basement and second floor bedrooms of the house. The CS estimated that there were approximately 200–300 plants growing in the basement. The CS provided information as to the appearance of each room, including, among other details, that the windows and walls in the cultivating rooms were covered in foil; there was a “pit” on the first floor into which Trinh and Quoc would bury their trash (to prevent it from being mixed into the weekly community trash); a stairway provided access to both the basement and second floor rooms; the basement had aluminum umbrella lights from which a large light bulb hung down, as well as a humidifying system and ventilation system; the second floor rooms had high-powered, umbrella-esque lights with sound-proofing material on the floors and electrical receptacles and wiring in the closets; and one room, containing high-powered lights, was used solely for drying the marijuana buds. The CS also noted the overall layout of the house, including the rooms' specific location in the home and their functional purpose ( e.g., dining room, living room, or sleeping area). Lastly, the CS noted that Trinh was staying in the house to oversee the growing operation and that he watered the plants on a daily basis.

On December 18 and 30, 2006, surveilling agents intercepted phone conversations between Trinh and Quoc, providing additional corroboration for the marijuana growing operation. On December 18, Quoc informed Trinh that he had more “fish eggs” for him to incubate; on December 30, Trinh advised Quoc that only two hundred dollars were needed for the “ ‘roses' at his house to be done.” Agents believed Trinh and Quoc were communicating in code to refer to, first, the process of growing marijuana seedlings into mature plants, and second, those plants that were almost ready for harvesting and sale.

After several months of investigating the Trinhs, DEA Special Agent Christian Ulmer (“Agent Ulmer”), who had extensive training and experience in the field of marijuana cultivation, applied for a search warrant to search Trinh's Buffalo house for evidence of the marijuana and money laundering operations. Agent Ulmer prepared a seventeen-page affidavit providing information as to the investigation conducted to date. Agent Ulmer noted that some of the information provided in the affidavit came from the CS who “has on numerous occasions provided credible and reliable information which led to the successful seizure of MDMA, marijuana and weapons in the past.” The warrant described the property to be seized as that on the “Schedule of Items To Be Seized,” which included, among other items, “[p]araphernalia for the packaging, weighing, processing and distributing of marijuana, including scales, plastic bags and utensils.”

C. The Game Is Up: The Trinhs Take the Hit

On January 31, 2007, a magistrate judge authorized the search warrant; agents executed the warrant on February 2, 2007.³ On entering the Buffalo premises, agents saw...