81 F.3d 955 (10th Cir. 1996), 95-3260, United States v. Lang

Docket Nº:95-3260, 95-3261.
Citation:81 F.3d 955
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Souphaphone LANG and Douangmala Lang, Defendants-Appellants.
Case Date:April 12, 1996
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 955

81 F.3d 955 (10th Cir. 1996)

UNITED STATES of America, Plaintiff-Appellee,

v.

Souphaphone LANG and Douangmala Lang, Defendants-Appellants.

Nos. 95-3260, 95-3261.

United States Court of Appeals, Tenth Circuit

April 12, 1996

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Appeal from the United States District Court for the District of Kansas (D.C. Nos. 94-Cr-10121-01 and 02).

T. Lynn Ward, Hershberger, Patterson, Jones & Roth, L.C., Wichita, Kansas, for Defendant-Appellant Souphaphone Lang.

Ron W. Paschal, Wichita, Kansas, for Defendant-Appellant Douangmala Lang.

David M. Lind (Jackie N. Williams, United States Attorney, with him on the brief), Assistant United States Attorney, Wichita, Kansas, for Plaintiff-Appellee.

Before PORFILIO, KELLY, and BRISCOE, Circuit Judges.

JOHN C. PORFILIO, Circuit Judge.

Souphaphone and Douangmala Lang were convicted after a jury trial of possession with the intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1), carrying or using a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c), and aiding and abetting each other's criminal conduct in violation of 18 U.S.C. § 2. On appeal, Souphaphone and Douangmala Lang raise three common issues. The Langs challenge the sufficiency of the evidence supporting their firearm convictions, the district court's denial of their joint motion to suppress, and the two-level enhancement each received in their sentences for obstruction of justice. We reverse both Souphaphone and Douangmala Lang's 18 U.S.C. § 924(c) convictions, but remand for resentencing for the district court to determine the applicability of the two-level special offense characteristic enhancement of U.S.S.G. § 2D1.1(b)(1) to the facts of this case. We affirm the district court's denial of the Langs' joint motion to suppress, and also affirm the two-level enhancement for obstruction of justice imposed against both defendants pursuant to U.S.S.G. § 3C1.1. 1

I.

Souphaphone and Douangmala Lang were arrested as a result of the FBI's Violent Crime Task Force's surveillance of a mobile home in Wichita, Kansas, on November 29, 1994. The Task Force conducted the surveillance because they believed Fongyxmany Phommachanh was staying at the mobile home. The Task Force began its surveillance at 9:18 a.m. on November 29. The surveillance team consisted of five agents distributed among four different vehicles. FBI Special Agent Daniel Jablonski led the surveillance from one vehicle, with Detective Mitchell Mervosh and Officer Blake E. Mumma riding together in a second vehicle, FBI Special Agent Charles G. Pritchett in a third vehicle, and Detective Danny Parker in a fourth vehicle. The impetus for the surveillance

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of the mobile home was the Task Force's belief Mr. Phommachanh could be located there. The Task Force possessed information the mobile home was a frequent gathering place or hangout for Asian gang members with whom Mr. Phommachanh was associated. Mr. Phommachanh was wanted for questioning in connection with three armed robberies occurring in the Wichita metropolitan area between September and November 1994.

First, the Task Force believed Mr. Phommachanh was involved in the September 22, 1994 armed robbery at a Sonic Drive-In restaurant where he had once worked. Two Asian men wearing ski masks had entered the restaurant, discharged a firearm, and robbed the cash register. The Task Force concluded a former employee was involved because the details of the crime suggested some insider knowledge. A witness, a Sonic employee who had previously worked with Mr. Phommachanh, identified him as one of the two perpetrators based on his voice and mannerisms.

Second, Mr. Phommachanh was also a suspect in another robbery at a different Sonic Drive-In restaurant on October 12, 1994. The methods employed by the robbers were similar to those used in the first offense. Again, two Asian men with their faces disguised by ski masks entered the establishment, threatened the employees by discharging a firearm, and fled with the cash from the register. In addition, ballistics revealed the same .32 caliber gun was used to commit both robberies.

Third, the Task Force sought to question Mr. Phommachanh about the November 8, 1994 robbery of the Mandarin Restaurant during which one of its proprietors, Barbara Sun, was murdered. Three or four armed Asian males perpetrated the third robbery. The Task Force's information concerning Mr. Phommachanh's possible participation in the Mandarin Restaurant robbery came from his mother, Kanha Phommachanh. Mrs. Phommachanh was working at Wesley Hospital as a housekeeper when Barbara Sun was brought there. Mrs. Phommachanh overheard several people talking about the Mandarin robbery, Ms. Sun's murder, and how four Asian males were suspects. She feared her son might be involved. Mrs. Phommachanh reached this conclusion because her son had left home between two and three months previously and she had not seen him since. She also believed her son might be involved with a gang and feared the Mandarin Restaurant robbery/murder was part of a gang war.

Mrs. Phommachanh contacted the police, and Detective Mervosh interviewed her at the hospital on November 14. Following the interview at the hospital, Mr. Phommachanh telephoned his mother and asked her for $400 to assist in moving either his friend's car or trailer. Mrs. Phommachanh called Brad Cary, a member of the gang unit of the Wichita Police Department, whom she knew from her work at the hospital. Mrs. Phommachanh told Officer Cary of her son's request for money. He suggested Mr. Phommachanh might use the money to leave Wichita. After her phone conversation with Officer Cary, Mrs. Phommachanh determined not to give her son the $400.

Subsequently, Mrs. Phommachanh and her husband visited the Task Force office at FBI headquarters and talked to Detective Mervosh and Agent Jablonski at their request. At the office, the Phommachanhs viewed a series of pictures in an attempt to identify possible gang members, and Mrs. Phommachanh talked further of her fear of her son's involvement in criminal activity and his request for money.

Armed with this information, the Task Force began its surveillance of the mobile home hoping to find Mr. Phommachanh. The Task Force agents had a mug shot and a physical description of Mr. Phommachanh. All was quiet until 12:18 p.m. when a red Chevrolet S-10 Blazer arrived at the mobile home. An unidentified Asian male left the Blazer and entered the residence. After spending about four minutes inside, the same unidentified Asian male and another unidentified Asian male left the home, returned to the Blazer and began to drive away.

Agent Jablonski, who was between fifty and seventy yards from the mobile home, could not positively identify the man during

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the approximately ten seconds he could observe him on each trip between the mobile home and the Blazer. He believed, however, the unidentified male who got into the passenger seat of the Blazer was their suspect, Mr. Phommachanh. Consequently, he ordered the other Task Force agents to pursue the Blazer. Agent Jablonski pulled up alongside the Blazer and attempted to visually compare the mug shot of Mr. Phommachanh, which he had in his possession, with the facial features of the vehicle's passenger. After concluding the passenger was in fact Mr. Phommachanh, Agent Jablonski ordered the Blazer be stopped and pulled in front of the Blazer at a traffic light. The other Task Force vehicles surrounded the Blazer to prevent its escape. The Task Force agents had no other reason to stop the Blazer except for the fact they believed the passenger was Mr. Phommachanh.

After the Blazer was stopped, Detective Mervosh and Officer Mumma pulled in behind the vehicle. They noticed the passenger making frequent furtive movements at his feet either in an attempt to retrieve or hide something. Detective Mervosh moved to the driver's side of the vehicle, while Officer Mumma simultaneously proceeded to the passenger's side. Both police officers directed the Blazer's occupants to exit, face, and place their hands on the vehicle in front of them. After the suspects complied with this request, both Detective Mervosh and Officer Mumma conducted a standard pat down search for weapons. Detective Mervosh's suspect, the driver, later identified as Souphaphone Lang, had no weapons or other contraband on his person. However, Officer Mumma's pat down search of the passenger, later identified as Douangmala Lang, revealed a suspicious bulge protruding from the suspect's left front pants pocket.

Officer Mumma asked the man what was in his pants pocket, and the passenger replied, "money." Officer Mumma asked the man's permission to examine the "money" and received consent. To ensure the passenger clearly understood his question, Officer Mumma repeated his request, this time looking the passenger directly in the eyes. Again, the man gave his consent. Officer Mumma removed the rolled-up plastic bag and discovered what appeared to be cocaine inside. Contemporaneously, Officer Mumma noticed what he also believed to be cocaine in plain view on the floorboard next to the passenger's seat.

Either during or immediately following his pat down search, Officer Mumma asked the passenger his name. The suspect replied: "Joe Lang." Later, the man produced identification confirming his identity was Douangmala Lang. At this point, the Task Force agents realized they had mistaken Douangmala Lang for Fongyxmany Phommachanh. Souphaphone Lang also produced identification demonstrating his identity.

After conferring among themselves, and telephoning an Assistant United States Attorney, the...

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