United States v. Luong

• Decision Date: 17 July 2020
• Docket Number: No. 16-10213,16-10213
• Citation: 965 F.3d 973
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. TUAN NGOC LUONG, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

965 F.3d 973

UNITED STATES of America, Plaintiff-Appellee,

v.TUAN NGOC LUONG, Defendant-Appellant.

No. 16-10213

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 14, 2017 San Francisco, California

Submission Deferred November 30, 2018

Resubmitted July 10, 2020

Filed July 17, 2020

Ned Smock (argued), John Paul Reichmuth, and Robin Packel, Assistant Federal Public Defenders; Steven G. Kalar, Federal Public Defender; Office of the Federal Public Defender, Oakland, California; for Defendant-Appellant.

Philip Kopczynski (argued) and Jonas Lerman, Assistant United States Attorneys; Merry Jean Chan, Chief, Appellate Section, Criminal Division; David L. Anderson, United States Attorney; United States Attorney's Office, San Francisco, California; for Plaintiff-Appellee.

Before: Johnnie B. Rawlinson and Jay S. Bybee, Circuit Judges, and William E. Smith,^** District Judge.

OPINION

SMITH, District Judge:

Appellant Tuan Ngoc Luong ("Luong") robbed Joel Montellano at gun point after luring him to a Bay Area Rapid Transit ("BART") train station in Castro Valley, California, by posting an advertisement for a used car on a Craigslist site. On March 26, 2015, a grand jury returned a three-count indictment charging Luong with (1) a violation of the Hobbs Act, 18 U.S.C. § 1951(a) (count 1); (2) brandishing a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (count 2); and (3) being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (count 3). The sole contested issue at trial was whether the government's evidence was sufficient to establish that Luong's robbery had an effect on interstate commerce, as required to sustain a conviction under the Hobbs Act. See 18 U.S.C. § 1951(a).

The jury, after deliberating, found Luong guilty of being a felon in possession of a firearm, but did not reach a unanimous verdict on the Hobbs Act robbery count and dependent § 924(c) count. The district court declared a mistrial on counts 1 and 2. At retrial, the government expanded its interstate-commerce theory and presented additional evidence that the robbery affected interstate commerce through the testimony of a second Craigslist representative, as well as testimony that Luong's attempted use of a stolen debit card¹ caused electronic transmissions to travel to out-of-state servers. The second jury convicted Luong on counts 1 and 2, and the district court sentenced him to 144 months’ imprisonment followed by three years’ supervised release.

Luong appeals from his convictions and sentence, pressing several arguments. We conclude that the government presented sufficient evidence to convict Luong on counts 1 and 2 at the first trial, and a fortiori the second trial, and affirm Luong's conviction on all counts, but we vacate Luong's sentence and remand for resentencing on count 3.

BACKGROUND

We recount the facts underlying the robbery, which are largely undisputed, in the light most favorable to the government. See United States v. Grovo , 826 F.3d 1207, 1213–14 (9th Cir. 2016) (citing United States v. Nevils , 598 F.3d 1158, 1163–64 (9th Cir. 2010) (en banc)). On February 15, 2015, Luong posted an advertisement on Craigslist's San Francisco Bay Area website for a 1996 Acura Integra, asking "$1100 or OBO cash only." Specifically, Luong posted the advertisement, free of charge, on the "Dublin/Pleasanton/Livermore" subsection of the "East Bay" section of the "S.F. Bay Area" Craigslist site. Luong had posted, but deleted, a similar advertisement three days earlier on a different, but close by, subsection of the "East Bay" section of the "S.F. Bay Area" site.

Joel Montellano, who lived in Hayward, California, saw the advertisement and arranged to meet Luong shortly thereafter. Both Montellano and Luong lived in the San Francisco Bay Area, and the San Francisco-based Craigslist website refers to itself as "a local service" "that provides local classifieds and forums." Luong called Montellano and said his name was "Michael." They arranged to meet later that night at the Castro Valley BART train station for Montellano to inspect the car.

Montellano's girlfriend drove him to the BART station. Once there, at Luong's suggestion, Luong and Montellano took the car for a test drive and Montellano agreed to buy the car. Luong told Montellano that his wife had the title for the car and directed Montellano to drive to Luong's house. When they arrived, Montellano got out of the Acura to further inspect the car. Luong drew a pistol, pointed it at Montellano, and shouted: "give me your money." Montellano told Luong that the money was not with him, but was instead with his girlfriend at the BART station. At Luong's direction, and with Luong's gun pointed at him, Montellano placed his iPhone, his girlfriend's debit card, and his U.S. Department of Veterans Affairs medical card on the car's trunk. He provided Luong with an incorrect PIN for the debit card. Luong left the scene in the Acura. Montellano ran back to the BART station, and once there, his girlfriend called 911.

About thirty minutes after the robbery, Luong attempted to use the stolen debit card at nearby Citibank and Bank of America ATMs, but was unable to withdraw money using the incorrect PIN. Two days later, law enforcement arrested Luong after posing as a potential buyer for the Acura. At the time of his arrest, Luong possessed a semi-automatic pistol and ammunition.

At Luong's first trial, the government solely relied on Luong's use of Craigslist to establish an effect on interstate commerce. From the evidence presented at trial, viewing the facts in the light most favorable to the government, a rational factfinder could have concluded the following: Craigslist is a "local classified and forums service" based in San Francisco, California. It is "primarily community moderated and mostly free." It displays user-posted classifieds in categories such as housing, various items for sale, and job postings.

Each month, Craigslist gets approximately 50 billion page views, approximately 60 million people in the United States use Craigslist, and 80 million advertisements are posted to the site. While it has an international audience, "Craigslist is not one national or worldwide site, [rather,] it's multiple local sites around the world," including 700 sites in more than 70 countries, with approximately 28 of those sites in California. Anyone in the world with an Internet connection may view any of the Craigslist sites. A user cannot search multiple Craigslist sites at once. Instead, a user must select a particular location site before he or she can search. The website's policies prohibit "[n]onlocal content" and "[p]osting the same ad to multiple locations." And while Craigslist has expanded beyond San Francisco, "it still retains that focus on local searches and local postings" and it "emphasizes and encourages local face-to-face transactions at a number of places in its website."

On a Craigslist site's opening page and on its for-sale-byowner car pages, Craigslist provides links to "nearby cl" sites to allow users to access easily the Craigslist sites associated with nearby physical locations. For example, from the San Francisco car site (on which Luong posted the advertisement used to lure Montellano), a user can find the link to the Reno, Nevada, Craigslist site, in addition to other nearby California car sites. Similarly, on the Reno site, the San Francisco site is listed as a nearby site. The jury further heard that on the Craigslist Reno car site, for example, cars from California and Oregon were offered for sale.

The government offered anecdotal evidence of users buying and selling vehicles by using Craigslist sites in other states. Montellano testified that he had sold a motorcycle to someone from Nevada who traveled to California for the transaction after he posted it on Craigslist's San Francisco Bay Area site. Special Agent Brian Koh testified that he had used the Washington, D.C. Craigslist site while living in the Bay Area, because he might have needed a car for a temporary assignment in D.C.

Craigslist maintains redundant computer servers in California and Arizona. A Craigslist representative, William Powell, testified that he was not "certain if the data is on both [servers] or one at a time," but that they are intended to provide a backup if one server fails. He testified that it was his understanding that if the California server failed, the Arizona server would provide the data to the Internet user.

DISCUSSION

I. Hobbs Act Jurisdictional Nexus

The court reviews de novo the sufficiency of the evidence, viewing "the evidence in the light most favorable to the prosecution and ask[ing] whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Grovo , 826 F.3d at 1213–14 (citing Nevils , 598 F.3d at 1163–64 ). "The district court's interpretation of a criminal statute and the scope of the conduct covered by the statute is a question of law reviewed de novo." United States v. Sarkisian , 197 F.3d 966, 984 (9th Cir. 1999) (citing United States v. Ripinsky , 20 F.3d 359, 361 (9th Cir. 1994) ). If there was insufficient evidence to support the convictions on counts 1 and 2 at Luong's first trial, his convictions on those counts at the second trial must be vacated because they would violate the Double Jeopardy Clause of the Fifth Amendment. See United States v. Brown , 785 F.3d 1337, 1350 (9th Cir. 2015) (stating that, if the evidence is insufficient to establish guilt at the defendant's first trial, retrial is foreclosed). Thus, we focus our discussion on the sufficiency of the government's evidence at Luong's first trial.

The relevant offense of conviction, established by the Hobbs Act, provides in pertinent part that:

Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or

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