U.S. v. Kachanon

Decision Date14 September 1990
Docket Number87-5083 and 87-5085,Nos. 87-5080,s. 87-5080
Citation917 F.2d 567
PartiesUnpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Suracek KACHANON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Vitaya PHOSRITONG, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Vivat JAMAWAT, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Srikarn SRISOOKKO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Wuthichai KACHANON, aka: Bill, aka: Ming, Defendant-Appellant. to 87-5087.
CourtU.S. Court of Appeals — Ninth Circuit

Before FLETCHER, WIGGINS and RYMER, Circuit Judges.

MEMORANDUM **

Srikarn Srisookko, Wuthichai Kachanon, Suracek Kachanon, Vivat Jamawat, and Vitaya Phosritong were charged in a nineteen count indictment with offenses relating to an alleged conspiracy to deal in heroin. A jury found all defendants guilty, and the court entered judgment on the verdict. They now appeal and we affirm. 1

I

The transactions involved in this case began in 1985, when Kriengkrai Thepkulcohon ("Piac") approached government informant Karin Jongpatchote ("Yai"), and asked if Yai could find a buyer for some heroin. Yai subsequently met with DEA Special Agent Thomas Aiu and told him about Piac's request.

In January 1986, Piac gave Yai a sample of heroin to show to his buyer. Yai then introduced Piac to Aiu, who purchased the heroin.

A few weeks later, Piac told Yai he wanted to arrange another transaction. This time, Aiu and DEA Special Agent Brian Lee met with Piac and appellant Srikarn Srisookko. Srisookko asked Lee whether he wanted to purchase large quantities of heroin and told him that the price would be $80,000 for a pound of heroin, and that he could supply as much as 20 kilograms of heroin from Bangkok. After this meeting, Srisookko and Piac participated in two heroin transactions with Aiu and Lee: the first for $5,000, and the second for $80,000.

Srisookko then proposed a larger sale. The DEA agents agreed to buy, but because the DEA did not have the funds to pay for the heroin, the agents arranged for it to be seized just prior to the sale. The day before the scheduled sale, Yai and Wuthichai Kachanon went to Srisookko's house, and Srisookko put the heroin in the trunk of Yai's car. After Yai and Wuthichai Kachanon left the house, the police stopped them and seized the heroin. However, they were arrested and released, as prearranged by the DEA.

In April, Srisookko met with Aiu and Lee and told them he had three pounds of heroin for sale. He told them that after that transaction, he wanted to sell them seven pounds, and then fifteen pounds. The agents agreed to the three-pound transaction. However, they again arranged for it to be seized just prior to the sale. This time, police surrounded the car belonging to Jamawat, whom Srisookko had indicated was his source, and seized the heroin in the car while Jamawat was meeting with Srisookko and Yai. The three fled the scene.

In his next meeting with Aiu and Lee, Srisookko said he would be travelling to Bangkok to obtain fifteen kilograms of heroin. Srisookko, Wuthichai Kachanon, and Yai then flew to Honolulu, where Lee showed them a bag containing one million dollars in cash and paid them $7,000 for several samples of heroin they had provided.

In May 1986, Srisookko, Wuthichai Kachanon, and Yai flew to Bangkok, where Wuthichai Kachanon's uncle, Suracek Kachanon, joined them. In June, Nachainarong ("Jack") Pechtes and Phosritong gave money to Srisookko to invest in heroin. Suracek and Wuthichai told Yai they would try to obtain heroin, but they were unable to locate a supplier on acceptable terms. One supplier attempted to sell Suracek and Wuthichai fake heroin. Thereafter, Suracek told Yai they would rely on him to find a supplier, but continue in the operation as financial backers.

Srisookko, meanwhile, had obtained heroin from Pechtes. In October 1986, Yai, Srisookko, and DEA Special Agent Best, who had worked with Yai in Bangkok, flew to San Francisco. Best carried the three pounds of heroin Srisookko had obtained in Bangkok. Yai told Srisookko that his former girlfriend was helping them get through customs.

Yai then flew to Los Angeles, where he met with Wuthichai Kachanon, Suracek Kachanon, and Lee. They arranged for a sale on October 21. On that day, Srisookko and Phosritong went to the Century Plaza hotel to meet Aiu, Lee, Wong, and Yai. The agents arrested them there. They confiscated Srisookko's bag, which contained a gun. They then searched their van and found another gun.

Wuthichai and Suracek Kachanon were arrested at Wuthichai's restaurant in Los Angeles. At the time of the arrest, police found a gun in Wuthichai's car.

II
A. Sufficiency of the Evidence to Support the Convictions

Srisookko, Suracek Kachanon, and Jamawat contend that the evidence produced at trial was insufficient to support their convictions. Evidence is sufficient to support a conviction if, reviewing the evidence in the light most favorable to the prosecution, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Adler, 879 F.2d 491, 495 (9th Cir.1988) (citation omitted); United States v. Hernandez, 876 F.2d 774, 777 (9th Cir.1988), cert. denied, 110 S.Ct. 179 (1989).

1. Srisookko

Srisookko claims the government did not present sufficient evidence to sustain his conviction for engaging in a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848 in that it failed to prove he acted as organizer, supervisor or manager, or obtained substantial income or resources from the activity. See United States v. Sterling, 742 F.2d 521, 525 (9th Cir.1984), cert. denied, 471 U.S. 1099 (1985).

Srisookko's argument that a reasonable jury could not have determined that he obtained substantial income is without merit. The government introduced evidence that Srisookko received over $80,000 in cash in one year from government agents in return for heroin. That is sufficiently "substantial." See, e.g., United States v. Gantt, 617 F.2d 831, 847 (D.C.Cir.1980); United States v. Losada, 674 F.2d 167, 173 (2d Cir.1982), cert. denied, 457 U.S. 1125 (1982); United States v. Thomas, 632 F.2d 837, 847 (10th Cir.1980), cert. denied, 449 U.S. 960 (1980).

Next, Srisookko claims the evidence did not show he was an organizer, supervisor, or manager of the operation. The defendant need not be the "sole manager" or "dominant organizer, as long as the defendant was in some managerial position." United States v. Zavala, 622 F.Supp. 319, 328 (N.D.Cal.1985), aff'd, 839 F.2d 523 (9th Cir.), cert. denied, 488 U.S. 831 (1988).

The government introduced evidence that Srisookko planned and directed the actions of his coconspirators, obtained funds for transactions, arranged security for sales, accepted payments, located sources of heroin both in the United States and in Bangkok, and negotiated sales. Upon meeting Aiu and Lee, Srisookko told them his business was heroin trafficking. The evidence thus painted a picture of Srisookko as an active leader of the conspiracy. This was sufficient to allow a reasonable jury to find that he was an organizer, supervisor or manager.

2. Wuthichai Kachanon

Wuthichai Kachanon argues that there was insufficient evidence to convict him of conspiracy because evidence that he thought he was working for the DEA rebutted the intent element. The government has the burden of showing an agreement to commit an illegal act and an overt act in furtherance of the agreement, as well as intent to commit the underlying offense. United States v. Becker, 720 F.2d 1033, 1035 (9th Cir.1983). The jury reasonably could have concluded as it did, given testimony by several witnesses as to Wuthichai's activities and involvement in the heroin trafficking conspiracy, and Yai's testimony that he never asked Wuthichai to become an informant for the DEA.

3. Suracek Kachanon

Suracek Kachanon claims the evidence was insufficient to convict him of conspiracy, because the only evidence connecting him to the conspiracy came from informant Yai's uncorroborated testimony. However, "[t]he credibility of witnesses is a matter for the jury, not an appellate court." Lyda v. United States, 321 F.2d 788, 794 (9th Cir.1963) (citing United States v. Verra, 301 F.2d 381 (2d Cir.1962)). Yai was not a coconspirator or accomplice whose testimony required corroboration. Cf. Bourjaily v. United States, 483 U.S. 171, 175 (1987).

Yai's testimony, which a reasonable jury could have believed, was that Suracek met with Yai in Bangkok and said he would find a supplier of heroin; the two attended a meeting at which Suracek attempted to purchase heroin; Suracek told Yai he had found a supplier and that the heroin must be purchased with cash; Suracek gave Yai two cashiers checks for one million baht as a deposit on the heroin; Suracek flew from Bangkok to the United States, where he was to receive his share of the proceeds; and Yai met with Suracek in the United States and told him he would be paid first. This testimony was sufficient to enable a reasonable jury to find Suracek guilty of the conspiracy charge.

4. Jamawat

Jamawat similarly argues that the evidence was insufficient to convict him of conspiracy because the only evidence connecting him to the conspiracy came from informant Yai's uncorroborated testimony. As in Suracek Kachanon's case, the jury was entitled to believe Yai's testimony. Furthermore, in Jamawat's case, there was corroborating evidence implicating him in the conspiracy.

The evidence showed...

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