944 F.2d 1434 (9th Cir. 1991), 88-1279, United States v. Lai

Docket Nº88-1279, 88-1334.
Citation944 F.2d 1434
Party NameUNITED STATES of America, Plaintiff-Appellee, v. Dennis Chan LAI, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Silas BRANDON, Defendant-Appellant.
Case DateMay 22, 1991
CourtUnited States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1434

944 F.2d 1434 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,

v.

Dennis Chan LAI, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Silas BRANDON, Defendant-Appellant.

Nos. 88-1279, 88-1334.

United States Court of Appeals, Ninth Circuit

May 22, 1991

Argued and Submitted May 16, 1990.

As Amended Sept. 17, 1991.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Andrew French Loomis, Oakland, Cal., for Dennis Chan Lai, defendant-appellant.

J. Frank McCabe, Goorjan & McCabe, San Francisco, Cal., for Silas Brandon, defendant-appellant.

Michael J. Yamaguchi, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before CHOY and FLETCHER, Circuit Judges, and FITZGERALD, District Judge. [*]

CHOY, Circuit Judge:

Appellants Dennis Lai and Silas Brandon appeal from their convictions on numerous drug charges. We find most of their claims meritless. However, we remand to the district court for it to conduct an evidentiary hearing on whether certain alleged drug records were admissible into evidence. If after the hearing Lai's conviction and sentence for the crime of directing a continuing criminal enterprise stands, the district court is also instructed to vacate Lai's conviction and sentence for conspiring to distribute cocaine as an improper cumulative sentence.

FACTUAL AND PROCEDURAL BACKGROUND

The Entry and Search of Lai's Residence

On August 5, 1985 Officer Pearson of the San Francisco Police Department received an anonymous phone call informing him that appellant Dennis Lai and others were selling drugs out of Lai's residence, which was near Balboa Street and 19th Avenue in San Francisco. Lai lived with his mother at 594 19th Avenue.

The informant described Lai's physical appearance and said that a black man named "Si" acted as Lai's bodyguard and lived at Lai's residence. The informant stated that Lai had numerous guns including an Uzi machine gun in his house and that he might also have a police scanner. The informant explained that an Asian male named "Fook" would obtain orders for cocaine at his home, then take a cab to 19th and Balboa. Fook would have the cab wait while he walked down to Lai's residence to pick up the drugs. The informant said that Fook usually made numerous trips to Lai's residence between noon and three in the morning. He said that Fook was the source of his information. The informant also said he had seen Fook in possession of drugs and weapons on several recent occasions, and that he wished to remain anonymous because he feared retaliation.

Officer Pearson contacted Officer Wong of the Chinese Gang Task Force. Wong informed him that the Task Force believed Lai to be a large scale drug trafficker, and that he reportedly sold cocaine out of several San Francisco residences. The Task Force considered Lai armed and dangerous; they also suspected that he might have a radio scanner to monitor law enforcement activities.

The next day Officer Puccinelli placed Lai's residence under surveillance. Officer Puccinelli observed appellant Silas Brandon, apparently the bodyguard described by the informant, leave Lai's residence and reenter a few minutes later. Officer Pearson received a telephone call, presumably from the same anonymous informant, who stated that Fook was about to make a "run" to Lai's residence. Pearson went to the area but did not see Fook.

An hour later, Officer Pearson received another call from the informant saying Fook (now known to be Clifford Tom) was about to make another run. Officers Blessing, Mino, Hnatow, and Puccinelli met Pearson and took up surveillance around Lai's residence. Within half an hour the

Page 1438

officers saw a cab park at the corner of 19th Avenue and Balboa. Fook got out of the cab, walked to Lai's residence, and went inside. Five minutes later he left the house and reentered the cab, which then drove away.

Three of the officers followed the cab in an unmarked squad car. After a few blocks, the officers stopped the cab and approached it. As Fook stepped out of the cab he dropped two bindles of cocaine. They arrested Fook, who told them that he had purchased the cocaine at Lai's residence.

The arresting officers then immediately went back to Lai's residence and conferred with Pearson. They decided those inside the house were likely to become suspicious when Fook failed to make his customary runs. The officers decided to enter Lai's residence immediately "to freeze the premises pending ... application of a search warrant."

Officer Pearson knocked at the door of Lai's residence and a woman answered. Pearson identified himself and his fellow officers and informed her that they were "freezing" the premises pending the obtaining of a search warrant. They entered the residence and went through each room of the house to gather all the occupants into the living room. The officers could see in plain view an Uzi machine gun, a sawed-off rifle, other firearms, a scale, and some packaging materials.

Three officers stayed at the residence while the other two went to obtain a warrant. Other officers from the Gang Task Force arrived as backup. Officers Pearson and Puccinelli returned about four hours later (10:20 P.M.) with a search warrant. The affidavit used to obtain the warrant included some information obtained during the warrantless entry of Lai's residence. Upon execution of the warrant the police found and seized approximately five kilograms of cocaine, some marijuana, drug paraphernalia, numerous weapons, a money counter, and handwritten and computer records apparently containing recordings of drug transactions.

Proceedings Below

Appellants Lai and Brandon were charged along with nine other defendants in a forty-count indictment filed on May 26, 1987. Lai was the only defendant charged in count one with violating the federal "kingpin" statute, 21 U.S.C. § 848. All defendants were charged in count two with conspiracy to distribute narcotics, 21 U.S.C. § 846. Counts three through thirty-five charged Lai with distribution of or possession with intent to distribute cocaine either as a principal or as an aider and abettor under 21 U.S.C. § 841. Lai was charged in count thirty-six with interstate travel in aid of racketeering, 18 U.S.C. § 1952. Lai was charged in count thirty-seven with filing a false tax return, 18 U.S.C. § 287. 1 Finally, counts thirty-eight through forty charged Lai with possession of illegal weapons, 26 U.S.C. § 5861(d), (i). Brandon was charged in counts two, thirteen through eighteen, and count thirty-six.

Numerous pretrial motions were filed, including Lai's motion to suppress evidence seized from his residence on August 6, 1985. The district court denied Lai's motion to suppress.

Several of the appellants' co-defendants also agreed to plead guilty and testify against them. A jury trial for Lai, Brandon, and co-defendant Joe Chan commenced on April 4, 1988. The jury found Lai guilty of running a continuing criminal enterprise, 21 U.S.C. § 848; conspiracy to distribute cocaine, 21 U.S.C. § 846; thirty-two counts of distribution or possession with intent to distribute cocaine, 21 U.S.C. § 841; interstate travel in aid of racketeering, 18 U.S.C. § 1952; and the weapons charges, 26 § 5861(d), (i).

The jury convicted Brandon of the conspiracy count, five counts of distribution of or possession with intent to distribute cocaine, and one count of interstate travel in aid of racketeering. On June 30, 1988, Brandon moved for a new trial, arguing that the prosecution had failed to disclose material information favorable to him in

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violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The district court, after a hearing, found that the information would not have made any difference even if the Government should have disclosed it.

On July 8, 1988, the district court sentenced Lai to consecutive terms of life imprisonment on count one, 20 years on count two, and 10 years on count three. The remaining sentences imposed are to run concurrently. The court also imposed a special assessment of $1,850 pursuant to 18 U.S.C. § 3013.

Brandon received consecutive terms of 20 years on the conspiracy count, 20 years on the distribution or possession with intent to distribute counts, and five years on the interstate travel in aid of racketeering count. He also received special parole terms of five years on all but one count. Finally, the court assessed him $350 pursuant to 18 U.S.C. § 3013.

Both Lai and Brandon timely appealed, and their cases were consolidated by court order on March 15, 1989.

I. Other Bad Acts Evidence

Brandon argues that the district court erred in allowing the introduction of evidence about wrongful acts he allegedly committed outside the time period of the charged conspiracy. Brandon points to two places where he claims such acts were introduced into evidence in violation of Fed.R.Evid. 404(b)'s prohibition against admitting evidence of a defendant's prior crimes or wrongful acts to show bad character or propensity to commit crimes. See United States v. Brown, 880 F.2d 1012, 1014 (9th Cir.1989).

First, co-conspirator Quon testified that on two or three occasions in late 1982 he and Lai went to the federal building where Brandon worked as a DEA agent and brought a small quantity of cocaine to Brandon. Second, the Government's witness Stone testified that he purchased drugs from Brandon several times in late 1985; he could not remember any specific dates except one purchase near Thanksgiving, 1985.

Our first inquiry is to determine whether the evidence Brandon complains of was in fact evidence of "other crimes." Brandon was charged with being part of a conspiracy "[b]eginning at a time unknown to the Grand Jury and continuing to in or...

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99 practice notes
  • 682 A.2d 1185 (Md.App. 1996), 1990, Bellamy v. State
    • United States
    • Maryland Court of Special Appeals of Maryland
    • September 26, 1996
    ...that suspects believed to Page 1189 be armed), cert. denied, 506 U.S. 990, 113 S.Ct. 507, 121 L.Ed.2d 442 (1992); United States v. Lai, 944 F.2d 1434 (9th Cir.1991) (risk of destruction of drugs), cert. denied sub nom. Brandon v. United States, 502 U.S. 1062, 112 S.Ct. 947, 117 L.Ed.2d 116 ......
  • 12 F.3d 1110 (9th Cir. 1993), 92-30227, U.S. v. Salguiero-Duarte
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • December 1, 1993
    ...972 (1977)). Uncorroborated accomplice testimony provides sufficient evidence unless it is incredible on its face. United States v. Lai, 944 F.2d 1434, 1440 (9th Cir.1991), cert. denied, 112 S.Ct. 947 (1992). We must defer to the jury's assessment of credibility. United States v. Martinez, ......
  • 52 F.3d 335 (9th Cir. 1995), 94-10011, U.S. v. May
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • March 29, 1995
    ...the totality of the circumstances seen from the perspective of the police officers at the time of the entry." United States v. Lai, 944 F.2d 1434, 1442 (9th Cir.1991), cert. denied, 112 S.Ct. 947 (1992). The government has the burden of demonstrating that exigent circumstances existed,......
  • 982 F.2d 380 (9th Cir. 1992), 90-10501, United States v. Jones
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • December 24, 1992
    ...rule is limited, however, by a defendant's due process right to have his sentence based on accurate information. United States v. Lai, 944 F.2d 1434, 1440 (9th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 947, 117 L.Ed.2d 116 (1992). Jones' claim is therefore subject to appellate Since......
  • Request a trial to view additional results
99 cases
  • 682 A.2d 1185 (Md.App. 1996), 1990, Bellamy v. State
    • United States
    • Maryland Court of Special Appeals of Maryland
    • September 26, 1996
    ...that suspects believed to Page 1189 be armed), cert. denied, 506 U.S. 990, 113 S.Ct. 507, 121 L.Ed.2d 442 (1992); United States v. Lai, 944 F.2d 1434 (9th Cir.1991) (risk of destruction of drugs), cert. denied sub nom. Brandon v. United States, 502 U.S. 1062, 112 S.Ct. 947, 117 L.Ed.2d 116 ......
  • 12 F.3d 1110 (9th Cir. 1993), 92-30227, U.S. v. Salguiero-Duarte
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • December 1, 1993
    ...972 (1977)). Uncorroborated accomplice testimony provides sufficient evidence unless it is incredible on its face. United States v. Lai, 944 F.2d 1434, 1440 (9th Cir.1991), cert. denied, 112 S.Ct. 947 (1992). We must defer to the jury's assessment of credibility. United States v. Martinez, ......
  • 52 F.3d 335 (9th Cir. 1995), 94-10011, U.S. v. May
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • March 29, 1995
    ...the totality of the circumstances seen from the perspective of the police officers at the time of the entry." United States v. Lai, 944 F.2d 1434, 1442 (9th Cir.1991), cert. denied, 112 S.Ct. 947 (1992). The government has the burden of demonstrating that exigent circumstances existed,......
  • 982 F.2d 380 (9th Cir. 1992), 90-10501, United States v. Jones
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • December 24, 1992
    ...rule is limited, however, by a defendant's due process right to have his sentence based on accurate information. United States v. Lai, 944 F.2d 1434, 1440 (9th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 947, 117 L.Ed.2d 116 (1992). Jones' claim is therefore subject to appellate Since......
  • Request a trial to view additional results