U.S. v. Lam Kwong-Wah

• Decision Date: 25 January 1991
• Docket Number: A,Nos. 90-3005,KWONG-WA,90-3042 and 90-3038,s. 90-3005
• Citation: 924 F.2d 298
• Parties: UNITED STATES of America, v. LAMppellant. UNITED STATES of America, v. LAMppellant. UNITED STATES of America, v. LAMppellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 298

924 F.2d 298

288 U.S.App.D.C. 54

UNITED STATES of America, v. LAM KWONG-WAH, Appellant.

UNITED STATES of America, v. LAM KWONG-WAH, Appellant.

UNITED STATES of America, v. LAM KWONG-WAH, Appellant.

Nos. 90-3005, 90-3042 and 90-3038.

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 13, 1990.

Decided Jan. 25, 1991.

Appeal from the United States District Court for the District of Columbia (Criminal No. 88-00150-07).

Blair G. Brown, with whom Roger E. Zuckerman, Washington, D.C., was on the brief, for appellant in all cases.

Heather L. Cartwright, Asst. U.S. Atty., Dept. of Justice, with whom Jay B. Stephens, U.S. Atty., John R. Fisher, Stevan E. Bunnell and Frederick W. Yette, Asst. U.S. Attys., Dept. of Justice, were on the brief, for appellee in all cases.

Before WALD, EDWARDS and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

Appellant Lam Kwong-Wah was convicted after a trial by jury of one count of conspiracy to distribute heroin and to possess heroin with the intent to distribute, in violation of 21 U.S.C. Secs. 841(a) and 846, and of one count of attempted distribution of heroin, in violation of 21 U.S.C. Secs. 841(a), 841(b)(1)(A)(i), and 846. The trial judge sentenced Lam to concurrent sentences of 121 months' imprisonment on each count. On appeal, Lam challenges his convictions and his sentencing on several grounds and argues that the trial judge erred in failing to hold an evidentiary hearing on his motion for a new trial. We agree with Lam that venue was improper in the District of Columbia on the attempted distribution charge and therefore reverse his conviction on that count. We also agree that the trial court erred in sentencing Lam and remand the case for resentencing on the conspiracy count. We reject Lam's argument that there was insufficient evidence supporting his conviction on the conspiracy count and do not reach the issue of sufficiency as to the attempted distribution count. Finally, we reject Lam's assertion that the trial judge abused his discretion in refusing to hold an evidentiary hearing on Lam's motion for a new trial.

I. BACKGROUND

Lam's trial arose out of an indictment charging him and seven others with a variety of narcotics offenses. Five of Lam's co-defendants pleaded guilty before trial; Lam and the two other remaining defendants went to trial on April 10, 1989. After several days of trial, the other two defendants changed their pleas to guilty, leaving Lam as the sole defendant. The trial then proceeded, leading to Lam's convictions on April 19, 1989, on both counts charged against him.

The government's evidence established that a conspiracy among defendants other than Lam existed that resulted in several sales of heroin to Indalecio Guzman, an undercover agent of the Federal Bureau of Investigation ("FBI"), prior to April 1988. Lam was implicated in none of those transactions, but the evidence did show his involvement with a transaction for the purchase of 45 pounds (approximately 20 kilograms) of heroin that was to take place on April 15, 1988, in Secaucus, New Jersey. Lam was arrested on that day along with several of the other defendants in a parking lot outside a Secaucus hotel after the delivery of what Agent Guzman assumed to be heroin. Laboratory analysis later revealed that the substance actually was cornstarch.

Negotiations for this transaction took place in Washington, D.C., although Lam was not present during the negotiations. Lam apparently became involved only the day before the transaction took place and played a relatively small supporting role. The testimony of FBI agent witnesses established that Lam was present when the transaction occurred and that he drove one of the cars observed circling the area shortly beforehand. An expert for the Drug Enforcement Agency testified that Lam's actions prior to the transaction were consistent with "counter-surveillance" techniques often used by Asian drug traffickers to ensure that they are not being ensnared by a police trap. Another government witness, Phylemon Yau, a Cantonese-speaking FBI agent, testified about certain remarks made to him by Lam following Lam's arrest. According to this testimony, Lam claimed that he had been approached the day before in New York by Ng Wah, one of the defendants who had negotiated the transaction with Agent Guzman, and that Ng Wah had said he "wanted to get some stuff." The Cantonese phrase Lam used was "ma fon," which Agent Yau translated literally as "to purchase some powder." Lam then told Agent Yau that he had put Ng Wah into contact with Mah Kwok-Ching, whom he knew to be a heroin dealer, and that he attended a meeting between Ng Wah and Mah at a New York fast food restaurant. Lam stated that he then chauffeured Ng Wah, Mah, and another defendant to Secaucus and, at Mah's request, drove around the area the next morning "to look for police." Finally, Agent Yau testified that Lam claimed that he and his wife had previously informed on Mah's activities to the FBI and that he had cooperated with Ng Wah and Mah in this instance only to gather information for the FBI.

Three witnesses testified for the defense. A language expert testified that "ma fon," the Cantonese phrase used by Lam in his statement to Agent Yau, actually meant "wheat flour." Lam's wife testified that she had acted as an informant for the FBI on Mah's activities and that her husband had helped her obtain information about Mah. Finally, Lam himself testified. He claimed that Ng Wah had asked him to arrange a meeting with Mah, that he had done so, and that he heard the two discuss "something about flour." He also testified that he and his wife had previously informed on Mah's activities to the FBI and that gathering information for the FBI was his sole reason for assisting Ng Wah and Mah. The remainder of his testimony essentially confirmed Agent Yau's testimony concerning Lam's activities in driving Ng Wah and Mah to Secaucus and acting as a lookout. Lam denied any knowledge of the purpose of the transaction, although he admitted that he had thought it was for "something improper."

In rebuttal, the government called an FBI language specialist, who confirmed Agent Yau's testimony that "ma fon" meant "buy powder." He also testified that "fon" was the term all of the other Cantonese-speaking defendants had used to refer to heroin in conversations intercepted by government wiretaps. Another rebuttal witness, Salvatore Forzano, a former New York City police officer who had been detailed to a joint task force with the FBI, testified that Lam's wife had indeed provided information to the FBI on Mah, but that the FBI had had no contact with her for several months before April 1988 because of dissatisfaction with her cooperation. Lam, he testified, had been present on one occasion when his wife met with officers of the task force but had provided no information of his own. The implication of Forzano's testimony was that the FBI suspected Lam's wife of acting as a "double agent" for Mah.

II. VENUE

Lam argues that venue was improper in the District of Columbia on the attempted distribution count because he did nothing in D.C. in connection with that count. The government responds that venue was proper because Lam, as an aider and abettor, could properly be tried in any district where a principal committed an offense, and several of Lam's co-conspirators committed overt acts in D.C. in furtherance of the attempted distribution of heroin. The trial judge held that venue was proper in D.C. without submitting the question to the jury.

The government bears the burden of establishing by a preponderance of the evidence that venue is proper with respect to each count charged against a defendant. See United States v. North, 910 F.2d 843, 912 n. 52 (D.C.Cir.1990). Venue may be proper in more than one district. See id., 910 F.2d at 912. In determining whether the government has properly established venue, a reviewing court must view the evidence in the light most favorable to the government. See, e.g., United States v. Brantley, 733 F.2d 1429, 1433 (11th Cir.1984), cert. denied, 470 U.S. 1006, 105 S.Ct. 1362, 84 L.Ed.2d 383 (1985). Venue is an issue that normally must be submitted to the jury. See, e.g., United States v. Black Cloud, 590 F.2d 270, 272 (8th Cir.1979).

It is undisputed that the attempted distribution at issue here took place in New Jersey and that all of Lam's conduct in connection with the attempt occurred either there or in New York. Several of the other defendants, however, negotiated about the transaction with Agent Guzman on two occasions in D.C. It is a well-established rule that "a conspiracy prosecution may be brought in any district in which some overt act in furtherance of the conspiracy was committed by any of the co-conspirators," United States v. Rosenberg, 888 F.2d 1406, 1415 (D.C.Cir.1989), and Lam does not dispute that venue was proper in D.C. on the conspiracy charge. He does argue, however, that a similar standard should not apply to venue for an attempt and that the absence of any act in D.C. by Lam himself is fatal to the government's assertion of venue there. We agree.

Federal law provides that offenses started in one district but completed in another district may be tried in any district in which the offense "was begun, continued, or completed." 18 U.S.C. Sec. 3237(a). In this case, the evidence established that the attempted distribution was "begun" in D.C. when Lam's co-conspirators negotiated the terms of the deal and gave the undercover FBI agent samples of the heroin they intended to distribute. This contact with D.C. was sufficient to constitute a "substantial step" toward the attempted distribution. See, e.g., United States v. Rivero, 532 F.2d 450, 455 (5th Cir.1976). The harder question is whether the fact that these acts were performed by accomplices of Lam rather than by Lam...