U.S. v. Chanthadara, No. 97-3229

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore SEYMOUR, Chief Judge, and ANDERSON and HENRY; HENRY; In Payne
Citation230 F.3d 1237
Docket NumberNo. 97-3229
Decision Date01 November 2000
Parties(10th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BOUNTAEM CHANTHADARA, Defendant-Appellant

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230 F.3d 1237 (10th Cir. 2000)
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
BOUNTAEM CHANTHADARA, Defendant-Appellant.
No. 97-3229
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
November 1, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS. (D.C. No. 94-10128-01)

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Vicki Mandell-King, Assistant Federal Public Defender, Denver, Colorado, and Gary Peterson, Oklahoma City, Oklahoma, (Michael G. Katz, Federal Public Defender, Denver, Colorado, with them on the brief), for Defendant-Appellant.

Robert J. Erickson, Department of Justice, Washington, D.C. (Jackie N. Williams, United States Attorney, Lanny D. Welch, Assistant United States Attorney, and D. Blair Watson, Assistant United States Attorney, District of Kansas, with him on the brief), for Plaintiff-Appellee.

Before SEYMOUR, Chief Judge, and ANDERSON and HENRY, Circuit Judges.

HENRY, Circuit Judge.

Boutaem Chanthadara was convicted of robbery (pursuant to the Hobbs Act, 18 U.S.C. 1951(a)) and use of a firearm in a crime of violence under circumstances constituting first-degree murder (pursuant to 18 U.S.C. 924(j)(1)).1 For the first of these crimes, he has been sentenced to twenty years in prison. For the second crime, Mr. Chanthadara has been sentenced to death.

Mr. Chanthadara's case comes before us on direct appeal from his convictions and sentences. We exercise jurisdiction under 18 U.S.C. 3595(a) and 3742(a) and 28 U.S.C. 1291.

I. BACKGROUND

Mr. Chanthadara faces the death penalty for his involvement in a 1994 robbery of a restaurant in Wichita, Kansas. Viewed in the light most favorable to the government, the evidence at trial established the following series of events.

Mr. Chanthadara and four codefendants Phouc Nguyen, Khammouk Namphengsone, Piyarath Kayarath, and Somlith Soukamneuth gathered at Mr. Namphengsone's apartment during a party. The five decided to rob the Mandarin

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Chinese Restaurant in hopes of getting cash and gold jewelry.

The five men left the party in two cars, one stolen and one borrowed. They had two guns amongst them: Mr. Kayarath carried a 9mm pistol (the murder weapon) and Mr. Nguyen carried a .32 caliber revolver. When the five arrived at the targeted restaurant, they noted that customers were still eating and decided to wait until only the owners were present.

To pass time, the men continued on to a nearby shopping mall. In the mall parking lot, Mr. Nguyen broke into several cars. When one of the car owners confronted him, Mr. Nguyen punched him several times, and Mr. Kayarath hit him on the head with the butt of the 9mm pistol.

Sufficient time having elapsed, the friends split up. Mr. Soukamneuth waited in a nearby parking lot in the borrowed car with which they planned to drive away from the robbery. The other four men drove the stolen car to the restaurant. Approaching the restaurant, Mr. Nguyen donned a black ski mask. The three others remained unmasked.

Mr. Mark Sun, the owner of the Mandarin Chinese Restaurant, testified that he first became aware of the robbery when he heard a loud crash in the front. As he went to investigate, a masked man, Mr. Nguyen, put a knife to his throat and forced him to the cash register. He opened the register and emptied its contents.

Mrs. Barbara Sun (a co-owner of the restaurant), a waiter, and the Sun's two children were also present in the restaurant. Mr. Namphengsone bound Mr. Sun and Mr. Wong with shoelaces behind the bar. The robbers ordered the children to lay down. Mr. Kayarath guarded the four at gunpoint. Mr. Nguyen grabbed Mrs. Sun by her hair and neck and dragged her upstairs to a safe, which had been installed in the restaurant before the Suns bought it. Mr. Chanthadara accompanied them, and Mr. Kayarath soon followed. The safe was locked and empty, and the Suns did not know the combination. The robbers knew only that it was locked.

Mr. Namphengsone remained downstairs guarding the four prisoners. The only evidence about the sequence of events leading to Mrs. Sun's death came from Mr. Namphengsone, who testified that within minutes of having followed Mr. Nguyen upstairs, Mr. Chanthadara returned downstairs to check on Mr. Namphengsone. At that time, Mr. Chanthadara carried the 9mm pistol. Satisfied with the situation downstairs, he returned upstairs.

Some time later, the three men returned from upstairs. Now, Mr. Nguyen carried the .32 caliber pistol, Mr. Chanthadara carried the 9mm pistol, and Mr. Kayarath was unarmed. Mr. Namphengsone heard Mr. Nguyen announce, "He shot her." Rec. vol. 40, at 2113.

Leaving the restaurant, Mr. Chanthadara tried to retrieve something from a glass display case and tipped it over. His palm print was later matched to a palm print on the broken glass of the case.

The four men met Mr. Soukamneuth, still waiting in the borrowed car. Mr. Soukamneuth testified that Mr. Chanthadara held the 9mm pistol. He also testified that, on the ride back to Mr. Namphengsone's apartment, Mr. Nguyen, Mr. Namphengsone, and Mr. Kayarath were all yelling at Mr. Chanthadara. According to Mr. Soukamneuth, Mr. Chanthadara responded by putting the 9mm to his own head and asking whether he should shoot himself. Mr. Soukamneuth further stated that he did not know at the time why the other men were angry with Mr. Chanthadara, but "later on" he determined it was because Mr. Chanthadara "shot the lady." Rec. vol. 40, at 2006-07. Finally, before reaching the apartment, Mr. Chanthadara threw the 9mm pistol into a river.

Mr. Namphengsone initially told FBI investigators that he heard nothing about anyone being hurt and that the 9mm pistol was taken back to his apartment, not thrown off the bridge. He subsequently

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changed this story to correspond with Mr. Soukamneuth's. FBI investigators would later search the area, but the gun was never recovered.

Mrs. Sun's body was discovered upstairs in the restaurant in front of the locked safe. She had been shot five times. Four of the gunshot wounds would have been fatal by themselves. Mrs. Sun had also been beaten. Nearby was a broken pool cue, which tested positive for traces of Mrs. Sun's blood.

The FBI investigation into the murder initially centered on Arisack Phongmany. From a photo spread, the victim of the parking lot assault (Mr. Bryan Kiser) had identified Mr. Phongmany as one of the participants.

The FBI soon determined that the same 9mm pistol had been used in a drive-by shooting a few weeks before the robbery. Mr. Phongmany pleaded guilty to the drive-by shooting and admitted to having used the 9mm pistol. Once arrested for the drive-by shooting, Mr. Phongmany invoked his Miranda rights and refused to speak to agents investigating the restaurant robbery and killing.

The FBI interviewed Mr. Namphengsone after identifying his fingerprint on a table top at the restaurant. He expressed a willingness to cooperate. Based upon his story, the United States Attorney charged Mr. Namphengsone, Mr. Soukamneuth, Mr. Kayarath, Mr. Nguyen, and Mr. Chanthadara with robbery and homicide.

Two of the defendants, Mr. Namphengsone and Mr. Soukamneuth, pleaded guilty and testified for the government at trial. Mr. Namphengsone was sentenced to twenty-two years in prison, and Mr. Soukamneuth was sentenced to twenty years.

In contrast, Mr. Kayarath, Mr. Nguyen, and Mr. Chanthadara pleaded not guilty and proceeded to trial. The government sought the death penalty against the latter two men. After jury trials, Mr. Kayarath and Mr. Nguyen were convicted on both the robbery and murder counts and sentenced to life in prison. Mr. Chanthadara was also convicted on both counts. He was sentenced to twenty years in prison on the robbery charge and to death on the homicide.

II. DISCUSSION

Mr. Chanthadara presents the following challenges to his convictions: (1) prejudice by exposure of jurors to a newspaper article reporting the trial judge's characterization of his defense; (2) a Jencks Act violation; (3) a violation of his rights under the Vienna Convention; (4) an unconstitutional jury selection plan; (5) district court errors in the jury instruction on malice and in the court's refusal to instruct the jury on second-degree murder as a lesser included offense; (6) an unconstitutional instruction on the Hobbs Act interstate commerce element; and (7) violations of 18 U.S.C. 201(c)(2) as a result of the government's grant of lenity in exchange for the testimony of accomplices.

Additionally, he raises the following challenges to his death sentence: (1) district court errors in submitting certain aggravating factors to the jury; (2) prejudice by exposure of jurors to newspaper articles during the penalty phase; (3) erroneous exclusion of jurors for cause based on their death penalty views; and (4) district court error in admission of emotionally charged victim impact evidence during the penalty phase.

We first address the challenges to the guilt phase of Mr. Chanthadara's trial. Finding no prejudicial error, we affirm his convictions. As to Mr. Chanthadara's death sentence, we conclude there is a reasonable probability that the jurors' exposure to the trial judge's comment referring to Mr. Chanthadara's defense as a "smoke screen" influenced the jury's determination. Additionally, under the standards set forth in Witherspoon v. Illinois, 391 U.S. 510 (1968), and Wainwright v. Witt, 469 U.S. 412 (1985), we conclude that the district court erred in excluding a venire member for cause based

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solely on her responses to a questionnaire. Accordingly, we vacate Mr. Chanthadara's death sentence on both grounds. We remand the case for re-sentencing consistent with this opinion.

A. Challenges...

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  • United States v. Morgan, Nos. 12–1408
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • April 9, 2014
    ...has made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.” United States v. Chanthadara, 230 F.3d 1237, 1248 (10th Cir.2000) (quotations omitted). “[A] cautionary instruction is ordinarily sufficient to cure any alleged prejudice to the defendant ......
  • U.S. v. Bolden, No. 06-3264.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • November 4, 2008
    ...(2005); United States v. Bernard, 299 F.3d 467, 483-84 (5th Cir.2002), cert. denied, 539 U.S. 928 (2003); United States v. Chanthadara, 230 F.3d 1237, 1263-64 (10th Cir.2000), cert. denied, 534 U.S. 992, 122 S.Ct. 457, 151 L.Ed.2d 376 (2001). Though we have never addressed the issue, our pr......
  • Howell v. Superintendent Rockview SCI, No. 17-1758
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 17, 2019
    ...in this case, 54.49%, were insufficient to demonstrate unfair and unreasonable representation. See, e.g. , United States v. Chanthadara , 230 F.3d 1237, 1257 (10th Cir. 2000) (finding comparative disparity of 40.89% insufficient where the distinctive group represented 7.9% of the population......
  • U.S. v. Sampson, No. 04-6001.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • May 7, 2007
    ...with the type of limiting instruction given by the court below. See, e.g., Bourgeois, 423 F.3d at 511; United States v. Chanthadara, 230 F.3d 1237, 1262 (10th Cir.2000); United States v. Paul, 217 F.3d 989, 1001 (8th This factor avoids facial vagueness by requiring that the offense involve ......
  • Request a trial to view additional results
172 cases
  • United States v. Morgan, Nos. 12–1408
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • April 9, 2014
    ...has made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.” United States v. Chanthadara, 230 F.3d 1237, 1248 (10th Cir.2000) (quotations omitted). “[A] cautionary instruction is ordinarily sufficient to cure any alleged prejudice to the defendant ......
  • U.S. v. Bolden, No. 06-3264.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • November 4, 2008
    ...(2005); United States v. Bernard, 299 F.3d 467, 483-84 (5th Cir.2002), cert. denied, 539 U.S. 928 (2003); United States v. Chanthadara, 230 F.3d 1237, 1263-64 (10th Cir.2000), cert. denied, 534 U.S. 992, 122 S.Ct. 457, 151 L.Ed.2d 376 (2001). Though we have never addressed the issue, our pr......
  • Howell v. Superintendent Rockview SCI, No. 17-1758
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 17, 2019
    ...in this case, 54.49%, were insufficient to demonstrate unfair and unreasonable representation. See, e.g. , United States v. Chanthadara , 230 F.3d 1237, 1257 (10th Cir. 2000) (finding comparative disparity of 40.89% insufficient where the distinctive group represented 7.9% of the population......
  • U.S. v. Sampson, No. 04-6001.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • May 7, 2007
    ...with the type of limiting instruction given by the court below. See, e.g., Bourgeois, 423 F.3d at 511; United States v. Chanthadara, 230 F.3d 1237, 1262 (10th Cir.2000); United States v. Paul, 217 F.3d 989, 1001 (8th This factor avoids facial vagueness by requiring that the offense involve ......
  • Request a trial to view additional results

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