U.S. v. Nguyen

• Decision Date: 03 September 1998
• Docket Number: No. 97-3106,97-3106
• Citation: 155 F.3d 1219
• Parties: 98 CJ C.A.R. 4771 UNITED STATES of America, Plaintiff--Appellee, v. Phouc H. NGUYEN, a/k/a Jimmy Nguyen, Defendant--Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1219

155 F.3d 1219

98 CJ C.A.R. 4771

UNITED STATES of America, Plaintiff--Appellee, v. Phouc H. NGUYEN, a/k/a Jimmy Nguyen, Defendant--Appellant.

No. 97-3106.

United States Court of Appeals, Tenth Circuit.

Sept. 3, 1998.

David Autry, Oklahoma City, OK, for Defendant-Appellant.

D. Blair Watson, Asst. U.S. Atty. (Jackie N. Williams, U.S. Atty., Lanny D. Welch, Asst. U.S. Atty., with him on the brief), Wichita, KS, for Plaintiff-Appellee.

Before ANDERSON, McKAY, and BRISCOE, Circuit Judges.

McKAY, Circuit Judge.

Defendant appeals his convictions for interference with interstate commerce by robbery, aiding and abetting the robbery, and aiding and abetting the killing of Mrs. Barbara Sun. The charges against Defendant stem from his involvement in the robbery of the Mandarin Restaurant and Lounge in Wichita, Kansas, and the murder of Mrs. Sun on November 8, 1994. Mrs. Sun owned and operated the restaurant with her husband, Mr. Mark Sun. Defendant, accompanied by three co-defendants, entered the Mandarin to initiate the robbery. While two of the co-defendants tied up Mr. Sun and a waiter, Defendant and co-defendant Mr. Bountaem Chanthadara took Mrs. Sun upstairs. Mrs. Sun was beaten and shot five times. She died that evening from multiple gunshot wounds. Following the robbery and the murder of his wife, Mr. Sun closed the restaurant for twenty-two days. The restaurant reopened for six months before it permanently closed in June 1995.

On January 4, 1996, Defendant was charged in a superseding indictment with two counts: (1) interference with interstate commerce by robbery in violation of 18 U.S.C. § 1951 [Hobbs Act], and aiding and abetting the robbery in violation of 18 U.S.C. § 2; and (2) carrying and using a firearm during and in relation to the robbery in violation of 18 U.S.C. § 924(c)(1), causing the death of a person through the use of a firearm, which constitutes murder under 18 U.S.C. §§ 924(i)(1) & 1111(a), and aiding and abetting the killing of Mrs. Sun in violation of 18 U.S.C. § 2. The district court denied Defendant's motions to suppress statements and to dismiss Count 2, and a jury convicted Defendant on both counts. The jury convicted Defendant under Count 2 for aiding and abetting the murder of Mrs. Sun. Defendant was sentenced to 240 months imprisonment on Count 1 and life imprisonment without the possibility of release on Count 2, to be served concurrently. Defendant raises several issues on appeal.

I. Voluntariness of Defendant's Statement

Defendant argues that his Fifth Amendment rights were violated by the district court's erroneous admission of his post-arrest statement to the FBI in which he confessed involvement in the robbery. He asserts that the statement was involuntary because it was conditioned on assurances of favorable treatment and leniency, however slight. After a hearing, the district court found that Defendant's statement was voluntary and denied his motion to suppress.

In reviewing a district court's denial of a motion to suppress a statement or confession, we accept the district court's underlying factual findings unless they are clearly erroneous. See United States v. Roman-Zarate, 115 F.3d 778, 783 (10th Cir.1997). The ultimate issue of whether a statement was voluntary is a question of law which we review de novo. See Miller v. Fenton, 474 U.S. 104, 110, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985); United States v. Perdue, 8 F.3d 1455, 1466 (10th Cir.1993). A determination of voluntariness is based on the totality of the circumstances. See Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Perdue, 8 F.3d at 1466. We examine several factors including the characteristics of the suspect, such as his age, intelligence, and education, and the details of the interrogation, such as whether the suspect was informed of his rights, the length of the detention and the interrogation, and the use or threat of physical force. See Roman-Zarate, 115 F.3d at 783; Perdue, 8 F.3d at 1466; United States v. Muniz, 1 F.3d 1018, 1021 (10th Cir.), cert. denied, 510 U.S. 1002, 114 S.Ct. 575, 126 L.Ed.2d 474 (1993).

Several factors indicate that Defendant's statement was given voluntarily. Defendant testified at the suppression hearing that he was advised of his Miranda rights and that he understood those rights before making his statement. He admitted that he initialed the waiver of rights form and conceded that the FBI agent neither threatened him nor used physical force against him. See Muniz, 1 F.3d at 1022. "[T]here is no evidence suggesting [Defendant] was unusually susceptible to coercion because of age, lack of education, or intelligence." Roman-Zarate, 115 F.3d at 783. The record shows that Defendant was twenty-one years old at the time of his arrest, had a GED, was comfortable with the English language, was intelligent, and was capable of understanding his statement when it was reduced to writing. Defendant's correction of one word in the written statement provides support for the court's determination that Defendant was alert and cooperative and acted of his own free will. The district court correctly found that "[t]he interview itself was conducted in a non-coercive fashion and was not lengthy." R., Vol. II, Doc. 123 at 5. We note that, although courts may consider whether a defendant knew the nature of the offense under investigation when determining the voluntariness of a confession, this confession was not coerced merely because the police did not inform Defendant of all the potential charges that could be brought against him. See United States v. Braxton, 112 F.3d 777, 783-84 (4th Cir.) (stating that officers have no duty to inform suspects of nature of crime being investigated unless suspect asks), cert. denied, --- U.S. ----, 118 S.Ct. 192, 139 L.Ed.2d 130 (1997); cf. Colorado v. Spring, 479 U.S. 564, 575-77, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987) (holding that "a suspect's awareness of all the possible subjects of questioning in advance of interrogation is not relevant to determining whether the suspect voluntarily, knowingly, and intelligently waived his Fifth Amendment privilege"); Harvey v. Shillinger, 76 F.3d 1528, 1536-37 (10th Cir.) (holding defendant's statement voluntary because the "Constitution does not require that a criminal suspect know and understand every possible consequence of a waiver of the Fifth Amendment privilege") (quotation marks and citation omitted), cert. denied, U.S., --- U.S. ----, 117 S.Ct. 253, 136 L.Ed.2d 179 (1996).

At the suppression hearing, Defendant testified that his confession was coerced because the FBI agent told him about the penalties he would face and indicated that he might receive lenient treatment if he cooperated. FBI Agent Wenko, however, testified at the suppression hearing that he did not make any offers of assistance or leniency and did not discuss possible sentences with Defendant. Agent Wenko also stated that no one else made such statements in his presence. In attempting to resolve this discrepancy and determine the credibility of the witnesses, the district court found both Defendant and Agent Wenko credible. "[I]nsofar as the discrepancy [was] concerned," however, the court found the FBI agent's "testimony to be more credible, primarily because so much of [it] was corroborated by [D]efendant." R., Vol. II, Doc. 123 at 7.

Defendant argues that the court's credibility determination was erroneous because Agent Wenko changed his testimony at trial and, therefore, Defendant's own testimony at the suppression hearing is more credible. At trial, Agent Wenko testified that he neither discussed the length of a sentence with Defendant nor made any statements about informing the prosecutor or judge if Defendant cooperated. This testimony is consistent with Agent Wenko's testimony at the suppression hearing. Agent Wenko also testified at trial that another FBI agent present at the interview, Agent Flosnick, may have made statements about cooperation or length of sentence. This trial testimony represents that Agent Wenko could not testify, of his own knowledge, that nobody else made such statements. The agent's trial testimony is sufficiently consistent with his prior testimony at the suppression hearing that it does not constitute newly discovered evidence, even if it is slightly different than his suppression hearing testimony. In any case, a statement to inform the prosecutor of a defendant's cooperation without any other indications of coercion does not constitute a promise of leniency. See Roman-Zarate, 115 F.3d at 780, 783-84; United States v. Garot, 801 F.2d 1241, 1244-45 (10th Cir.1986); cf. Clanton v. Cooper, 129 F.3d 1147, 1158-59 (10th Cir.1997) (stating that evidence that sheriff told suspect he would get twenty-five-year sentence if he did not confess, but would get off lightly if he did confess, raised question of fact over whether confession was voluntary); Griffin v. Strong, 983 F.2d 1540, 1541-42 (10th Cir.1993) (holding that statement was coerced by threat that defendant would be unable to see his child again coupled with promise to protect defendant's health and safety in jail). Any such statement that is possibly attributable to Agent Flosnick did not coerce Defendant's statement. After reviewing the entire record and considering the totality of the circumstances, we hold that the record supports the court's difficult credibility determination, its determination that Defendant's statement was given voluntarily, and its decision that no new evidence supported Defendant's claim of coercion. See Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 575, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (great deference owed to credibility determinations). The court did not err in admitting Defendant's statement at trial.

II. Sufficiency of the Evidence

Defendant argues that the evidence was insufficient to convict him on both Count 1 and Count 2. We review the sufficiency of the...