990 F.2d 1099 (9th Cir. 1993), 91-50193, United States v. Hoac

Docket Nº:91-50193, 91-50206.
Citation:990 F.2d 1099
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Hien Hai HOAC, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Hgai Choy CHAN, Defendant-Appellant.
Case Date:March 26, 1993
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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990 F.2d 1099 (9th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,


Hien Hai HOAC, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,


Hgai Choy CHAN, Defendant-Appellant.

Nos. 91-50193, 91-50206.

United States Court of Appeals, Ninth Circuit

March 26, 1993

Argued and Submitted Dec. 7, 1992.[*]

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[Copyrighted Material Omitted]

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Michael J. Brennan, Manhattan Beach, CA; Phillip I. Bronson, Sherman Oaks, CA, for defendants-appellants.

Gregory W. Alarcon, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee.

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

Before CANBY, BOOCHEVER, and THOMPSON, Circuit Judges.

BOOCHEVER, Circuit Judge:

Hien Hai Hoac and Ngai Choy Chan appeal their convictions and sentences resulting from their participation in a scheme to import what proved to be the largest amount of heroin ever seized in the Central District of California. Both appellants raise a host of procedural and evidentiary issues. Hoac argues that the district court erred by excluding his proffered expert testimony, permitting a prosecutorial closing argument that violated his Fifth Amendment rights, admitting an incriminating statement of Chan's, and declining to adjust his base offense level downward for being a minor participant. Chan alleges error in the admission of Hoac's redacted confession, the court's failure to give a statutorily required instruction on voluntariness,

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and the increase of his base offense level for being an organizer, leader, manager, or supervisor. We reject all of these arguments but the last. We therefore affirm both convictions and Hoac's sentence, but we vacate Chan's sentence and remand for resentencing.


On December 21, 1989, the United States Customs Service intercepted a shipment of 1000 cases of lychee nuts, originating from Hong Kong, at Long Beach Harbor. Eight cases were specially marked with the number "8"; these cases were found to contain a total of approximately 55.74 kilograms of heroin with a purity of 77 percent.

The consignee of the shipment was Bea Kea Hong Imports, owned by appellant Hoac. Drug Enforcement Administration (DEA) agents tracked the shipment as it was delivered to a Los Angeles warehouse leased by Hoac. They watched Hoac unload the shipment into the warehouse, with the exception of the eight cases of heroin, which he loaded into a van. The agents then followed Hoac as he drove the van in a counter-surveillance manner. Concerned that Hoac was aware he was being followed, the agents stopped the van and arrested Hoac. Hoac waived his Miranda rights and agreed to assist in a controlled delivery of the heroin to its intended recipient, codefendant Chau Ngoc Au. Au was arrested accepting delivery of the eight cases from Hoac.

At the police station, Hoac told DEA Special Agent James Tse that he had met with Chan and codefendant Wai-Chong Leung in Hong Kong in September 1989 to discuss the shipment of lychee nuts. Hoac stated that in December 1989 he had also met with Leung and Au in Vancouver regarding the shipment. He understood that he was to be paid $80,000 for delivery of the boxes to Au. (At the time of his arrest, Hoac had given conflicting responses--$50,000, followed by $10,000 or $20,000--when asked what he expected to be paid for delivering the eight cases to Au.)

On January 7, 1990, the Royal Hong Kong Police took Chan into custody as he was leaving Hong Kong by ferry. A search of Chan's residence revealed documents relating to the lychee shipment and a lease agreement and keys to a Hong Kong warehouse. In the warehouse the police found two boxes of lychee nuts, assorted handsaws and welding tools, and traces of morphine. Chan was informed of his rights and made three statements to Royal Hong Kong Police Officer Wai Yip Ng. He said that Leung had approached him and asked him to open up a trading company to ship lychee nuts to the United States. Chan opened the trading company, obtained a business registration certificate, reserved a shipping date, and arranged a container for transportation. He and Leung cut open the cans in eight boxes of lychee nuts, filled them with heroin, and resealed the cans with a welding tool. They then packed those boxes with 992 untampered boxes into a shipping container. Leung paid Chan $10,000 (Hong Kong) and promised him an additional $50,000-$70,000 if the shipment was successful.

Hoac, Chan, and Au were tried together before a jury. 1 Hoac and Chan were both convicted of conspiracy to import and distribute heroin, conspiracy with intent to distribute heroin, and importation of heroin. Additionally, Hoac was convicted of attempted possession with the intent to distribute heroin and possession with the intent to distribute heroin, and Chan was convicted of distribution of heroin. Hoac was sentenced to 235 months in custody, a $100,000 fine, and five years of supervised release. Chan was sentenced to 292 months in custody, a $250,000 fine, and five years of supervised release.


I. Appellant Hoac

A. Exclusion of Proffered Expert Testimony

At trial Hoac sought to prove that he lacked knowledge of the heroin by introducing the testimony of Dr. Timothy Law,

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a clinical forensic psychologist who had examined Hoac on two occasions. The district court conducted a voir dire examination of Dr. Law to ascertain the substance of his testimony. Dr. Law proposed to give his opinion regarding Hoac's intellect and general naivete and to testify about how Chinese cultural factors might lead Hoac to travel long distances for legitimate business dealings. The district court rejected Dr. Law's proposed testimony, stating:

It seems to me that allowing testimony of this nature, that is the doctor's opinion after two relatively brief meetings, that the defendant struck him as being naive, it would not materially assist the jury with respect to the issues at hand and that Rule 403 would compel its exclusion because it would inject collateral matters with weak probative value and the effect would be to likely to [sic] create collateral issues and jury confusion. So, I am going to reject it.

Hoac argues that the district court's exclusion of Dr. Law's testimony was an abuse of discretion.

A qualified expert witness may testify if the witness' "specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." Fed.R.Evid. 702; United States v. Peralta, 941 F.2d 1003, 1009 (9th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1484, 117 L.Ed.2d 626 (1992). Otherwise admissible expert testimony may be excluded under Fed.R.Evid. 403 if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or undue delay. A trial court's exclusion of expert testimony is reviewed for manifest error or abuse of discretion. United States v. Rubio-Villareal, 927 F.2d 1495, 1502 (9th Cir.1991), vacated in part on other grounds, 967 F.2d 294 (9th Cir.1992) (en banc); United States v. Brodie, 858 F.2d 492, 495 (9th Cir.1988).

Dr. Law had not performed any formal testing on Hoac and had spoken with him on only two occasions lasting approximately one hour each. Dr. Law's knowledge about Hoac thus was limited and it is unlikely that his testimony would have helped the jury. See United States v. Barnard, 490 F.2d 907, 913 (9th Cir.1973) (no abuse of discretion in excluding expert testimony where expert's knowledge was limited), cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310 (1974). Exclusion of the testimony was not manifest error or an abuse of discretion. See Rubio-Villareal, 927 F.2d at 1502 (no abuse of discretion in excluding expert testimony on Mexican culture as relating to defendant's conduct); United States v. Benveniste, 564 F.2d 335, 339 (9th Cir.1977) (no abuse of discretion in excluding expert psychiatric testimony on defendant's lack of predisposition to commit criminal offense).

B. The Prosecutor's Closing Argument

In his rebuttal argument, the prosecutor stated to the jury:

[Hoac's defense counsel] said that the defendant Hoac was used by others. That he was an innocent dupe.... And yet, [Hoac] never said that. He never said he was an innocent dupe. He was fully explained that he was being arrested for narcotics trafficking and he revealed his role. He never said that. He never said that the reason that there was counter surveillance driving is because he didn't know who was behind him. That was argument of counsel.

Later, the prosecutor stated:

[Hoac] knew exactly what he was doing and he was told what he was being charged with, and he never said, 'Well, I didn't know it was drugs.' He explained his role.

Hoac alleges that these comments violated his Fifth Amendment rights by referring to his failure to testify and his post-arrest, post-Miranda silence.

The standard of review for prosecutorial comment on a defendant's failure to testify or post-arrest silence is unclear. Compare United States v. Mares, 940 F.2d 455, 461 (9th Cir.1991) (claim that prosecutor's closing argument violated defendant's Fifth Amendment rights is reviewed de novo) and United States v. Schuler, 813

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F.2d 978, 980 (9th Cir.1987) (same) with United States v. Diaz, 961 F.2d 1417, 1418 (9th Cir.1992) (admission of comments on post-arrest silence in closing argument after objection is reviewed for abuse of discretion) and United States v. Makhlouta, 790 F.2d 1400, 1403 (9th Cir.1986) (prosecutorial comment on partial post-arrest silence in closing argument reviewed for plain error where no objection made at trial). We need not attempt to reconcile these cases, however, because...

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