U.S. v. Nguyen

• Decision Date: 09 July 1996
• Docket Number: 95-50281,Nos. 95-50278,s. 95-50278
• Parties: 45 Fed. R. Evid. Serv. 138, 97 Cal. Daily Op. Serv. 5111, 96 Daily Journal D.A.R. 8241 UNITED STATES of America, Plaintiff-Appellee, v. Dung Manh NGUYEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 812

88 F.3d 812

45 Fed. R. Evid. Serv. 138, 97 Cal. Daily Op.

Serv. 5111,

96 Daily Journal D.A.R. 8241

UNITED STATES of America, Plaintiff-Appellee, v. Dung Manh NGUYEN, Defendant-Appellant.

Nos. 95-50278, 95-50281.

United States Court of Appeals Ninth Circuit.

Submitted April 10, 1996. ¹

Decided July 9, 1996.

Wayne R. Young, Law Offices of Wayne R. Young, Santa Monica, California, for defendant-appellant.

Joel A. Thvedt, Assistant United States Attorney, Los Angeles, California, for plaintiff-appellee.

Appeals from the United States District Court for the Central District of California, Dickran M. Tevrizian, District Judge, Presiding. D.C. Nos. CR-94-00695-DMT, CR-94-00741-DMT.

Before: GOODWIN and HAWKINS, Circuit Judges, and MARQUEZ, ² District Judge.

MARQUEZ, District Judge:

Appellant Dung Manh Nguyen ("Nguyen") appeals his convictions after a consolidated jury trial on two indictments.

In CR 94-695-DT, Nguyen and two co-defendants were charged with conspiracy to transfer an unregistered shotgun, from which the serial number had been removed, and aiding and abetting the transfer of the shotgun, violations of 18 U.S.C. § 371 and 26 U.S.C. § 586l(d), (e) and (h). One co-defendant pleaded guilty and one was never arrested.

In CR 94-741-DT, Nguyen alone was charged with being a felon in possession of a firearm on October 21, 1993, a violation of 18 U.S.C. § 922(g).

On October 21, 1993, undercover agent Trinh and Nguyen met in a grocery store parking lot. The meeting was recorded on audio tape, and a portion of the meeting was recorded on video tape. During this meeting, Nguyen handed Agent Trinh the Bryco nine millimeter handgun, and Trinh examined it. Trinh read the serial number of the Bryco handgun, 601258, which was recorded on the audio tape. Agent Trinh did not purchase the Bryco handgun from Nguyen. The Bryco handgun was later recovered in San Francisco during the course of an unrelated investigation. The handgun was produced by the government just prior to trial.

During the course of the October 21, 1993 meeting, Agent Trinh and Nguyen also negotiated for the sale of shotguns. Eventually, Agent Trinh and Wong obtained a sawed-off shotgun from codefendants Cuong Ha and Tuan Tran.

On the government's motion, Nguyen was tried on both indictments together. In the firearm in possession charge, the district court denied Nguyen's motion to bifurcate the possession issue from the prior felony issue. At trial, Nguyen and the government stipulated to the previous felony. On March 14, 1995, the jury returned verdicts finding defendant guilty on all counts. After the jury verdicts, the district court denied Nguyen's motion to dismiss the felon in possession charge.

Nguyen raises six arguments on appeal: (1) the district court erred by consolidating the felon in possession case with the conspiracy case; (2) the district court erred by failing to bifurcate the possession of the gun issue from the prior felony issue; (3) the district court erred by allowing the government to introduce the handgun into evidence; (4) there was not sufficient evidence to establish that the handgun travelled in interstate commerce; (5) there was not sufficient evidence that Appellant possessed the handgun; and (6) United States v. Lopez invalidates the Appellant's conviction of being a felon in possession of a firearm. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

I

We review for abuse of discretion the district court's order that the two indictments be tried together. United States v. Elliott, 418 F.2d 219, 221 (9th Cir.1969); United States v. Vasquez-Velasco, 15 F.3d 833, 844 (9th Cir.1994).

This opinion is published to alert trial judges and prosecutors that the practice of consolidating "felon in possession charges" without properly safeguarding the defendant from the prejudicial effect of introducing evidence of the prior felony with other unrelated felony charges is not looked upon with favor by this Circuit, or, for that matter, by other Circuits.

Pursuant to Rule 13 of the Federal Rules of Criminal Procedure, "The court may order two or more indictments or informations or both to be tried together if the offenses ... could have been joined in a single indictment or information." Fed.R.Crim.P. 13.

The standard employed in joining two or more offenses in a single indictment provides:

Two or more offenses may be charged in the same indictment ... if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction ...

Fed.R.Crim.P. 8(a).

The district court found that the cases "all arise out of the same transaction or series of transactions .... but it all has to do with these--the sale of guns to this specific investigator." See United States v. Portac, Inc., 869 F.2d 1288, 1294 (9th Cir.1989) (joinder proper when same facts are offered to prove each joined offense).

Nguyen contends that he was unduly prejudiced by the admission of the prior felony conviction in the conspiracy case. Nguyen points out that, had Nguyen been charged only in the conspiracy case, evidence regarding the prior conviction most likely would have been excluded pursuant to Fed.R.Evid. 404(b). The government was able to obtain by consolidation what it could not obtain if the cases had been tried separately: disclosure of the prior felony to the jury in the conspiracy case.

All of the Circuit Courts seem to agree that trying a felon in possession count together with other felony charges creates a very dangerous situation because the jury might improperly consider the evidence of a prior conviction when deliberating about the other felony charges, i.e. convict the defendant because he is a "bad guy" or convict because "he committed a crime before and probably did this one too." Although no court has adopted a per se rule about how to handle this situation, each Circuit has taken the position that the trial court should do whatever is possible to minimize the chance of prejudice. As discussed below, various courts have used severance of the counts, bifurcation of the trial to separate the felon in possession count from the other counts, or stipulation to the prior felony so that the jury does not hear about the prior bad act. ³ It is an uncommon situation where, as occurred in this case, cautionary jury instructions alone have been considered a sufficient means of shielding the defendant from prejudice.

In United States v. Lewis, 787 F.2d 1318 (9th Cir.1986) as amended by 798 F.2d 1250 (9th Cir.1986), cert. denied 489 U.S. 1032, 109 S.Ct. 1169, 103 L.Ed.2d 227 (1989), the defendant was tried for being a felon in receipt of a firearm, conspiracy, bank larceny, and killing to avoid apprehension for bank larceny. The district court denied the defendant's motion to sever the firearm count from the other counts. On appeal, the defendant argued that he was unduly prejudiced by the joinder of the counts because it allowed the prosecution to tell the jury about his prior conviction via the firearm charge, whereas if the counts had been severed the prosecution would not have been able to introduce evidence of his prior conviction during the trial of the killing to avoid apprehension and larceny counts. The defendant argued that the introduction of his prior conviction affected the jury's deliberations on the bank larceny related charges.

We acknowledged that "there is a high risk of undue prejudice whenever, as in this case, joinder of counts allows evidence of other crimes to be introduced in a trial of charges with respect to which the evidence would otherwise be inadmissible." Id. at 1322 (citation omitted). We emphasized that "[i]t is much more difficult for jurors to compartmentalize damaging information about one defendant derived from joined counts than it is to compartmentalize evidence against separate defendants joined for trial." Id. (citation omitted).

We found that the defendant was "manifestly prejudiced" and thus reversed the denial of the motion to sever. Id. at 1323. Although we highlighted the facts that the evidence on the non-felon in possession count was sparse and the prosecutor, in her opening statement, identified the defendant as a convicted felon, we were most concerned with whether jury instructions can sufficiently control what a jury considers. The instructions stated:

Ladies and Gentlemen, I should inform the Jury that while [the stipulation to the prior felony] is received, it's received and is relevant only as to Counts Three and Four [firearm counts]. And it's not received with relationship to or is to be considered by the Jury for any purpose other than Counts Three and Four. [The Court later instructed:] As you have noted, a separate crime is charged in each count of the indictment. Each offense and the evidence applicable thereto should be considered separately. The fact that you may find the defendant guilty or not guilty as to one of the offenses charged should not control your verdict as to any other offense charged.

Id. at 1323 n. 5. We also noted that we shared "the D.C. Circuit's skepticism of the efficacy of such instructions no matter when they are given. 'To tell a jury to ignore the defendant's prior convictions in determining whether he or she committed the offense being tried is to ask human beings to act with a measure of dispassion and exactitude well beyond mortal capabilities.' " Id. at 1323 (quoting U.S. v. Daniels, 770 F.2d 1111, 1118 (D.C.Cir.1985)). This Court also questioned whether those specific instructions "specifically impress[ed] upon the jury its duty to ignore prior convictions in determining guilt." Lewis, 787 F.2d at 1323.

In United States v. Von Willie, 59 F.3d 922 (9th Cir.1995), the defendant was tried and convicted of being a felon in possession of firearms and using a firearm in relation to a drug trafficking offense. The district court denied the defendant's motion...