U.S. v. Si

• Decision Date: 12 September 2003
• Docket Number: No. 01-10112.,01-10112.
• Citation: 343 F.3d 1116
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tony SI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

343 F.3d 1116

UNITED STATES of America, Plaintiff-Appellee, v. Tony SI, Defendant-Appellant.

No. 01-10112.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 7, 2002 — San Francisco, California.

Filed September 12, 2003.

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Katherine Alfieri, San Francisco, California, for the defendant-appellant.

Amber S. Rosen, Assistant U.S. Attorney, United States Attorney's Office, San Jose, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California; James Ware, District Judge, Presiding. D.C. No. CV-99-20034-JW.

Before Dorothy W. NELSON, Robert R. BEEZER, and Kim McLane WARDLAW, Circuit Judges.

OPINION

BEEZER, Circuit Judge.

Tony Si was convicted and sentenced for (1) conspiracy to commit a robbery that affects interstate commerce in violation of the Hobbs Act, 18 U.S.C. § 1951(a), and (2) use of a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c).

Si alleges that he was denied a fair trial because (1) a Chinese translator was not appointed for him; (2) there was a Brady violation that resulted from the district court's reversal of the magistrate judge's discovery order requiring the government to produce information on an informant's activities; (3) the evidence was insufficient to sustain his convictions; (4) he was entrapped as a matter of law; (5) the supplemental jury instructions omitted an essential element of the offense; and (6) the district court erred in imposing upward adjustments to his sentence.

We have jurisdiction and we affirm the district court's judgment and sentence.

I

In November 1998, Si unexpectedly ran into an acquaintance, Han Tsai "Jake" Hsiung ("Hsiung"), at a Ranch 99 supermarket in San Jose, California. Unbeknownst to Si, Hsiung was working as an FBI informant at that time. Si told Hsiung that he had heard that Hsiung was involved in the computer industry. Si asked Hsiung if he knew of any homes to burglarize, trucks to hijack or items to steal. Si told Hsiung that he would share the proceeds of the robbery in exchange for his help. Hsiung told Si that he would think about it and the two exchanged telephone numbers.

Over the next few weeks, Hsiung and Si had several conversations, during which Si told Hsiung that he had a crew available to perform a robbery. Si told Hsiung elaborate stories about how his crew had recently committed several other robberies. At the direction of the FBI, Hsiung told Si that he knew of trucks carrying products from computer chip manufacturing companies to the San Francisco airport that they could rob.

Hsiung then introduced Si to an undercover police officer, Alex Nguyen, who went by the alias Alex Vu ("Nguyen"). Nguyen's undercover role was to play the part of a driver of a small truck who picks up computer parts to deliver to bigger trucks, which then take the computer parts to the San Francisco airport to be shipped out of state. Nguyen's specific job in the robbery was to provide the location of the larger truck so that it could be robbed.

Si determined that the crew performing the truck robbery would be paid $85,000. Si suggested that Hsiung and Nguyen each put up one-third of the crew's pay up-front. Si's defense is that he never intended to rob the truck, but that he just wanted to trick Hsiung and Nguyen out of their up-front money.

Testimony from others involved in the conspiracy indicated that Si's role in the robbery was to arrange for the sale of the stolen computer parts, from which the three men would split the profit from the proceeds of the sale. The truck that was targeted was supposedly carrying between $800,000 to $1,000,000 worth of computer parts.

The crew was managed by Minh Ha Lam ("Lam"), who also provided the firearms to be used in the robbery. Roderick Macasaet drove the van carrying the crew to the truck that was to be robbed. Lonnie McIntosh and Talmage Jones had the job of restraining the driver of the truck during the robbery. Christopher Chib had the job of driving the truck to the drop off location once it had been robbed.

The crew was arrested on February 25, 1999, as they were approaching the location of the targeted truck. Si was also arrested en route to a pre-arranged meeting location.

On March 3, 1999, Si and his five co-defendants were charged in a two count indictment for (1) conspiracy to commit a robbery that affects interstate commerce in violation of the Hobbs Act, 18 U.S.C. § 1951(a), and (2) use of a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c). On March 20, 2000, three co-defendants entered guilty pleas. The next day, one other co-defendant pleaded guilty. After the close of the government's case-in-chief, the remaining co-defendant pleaded guilty. This left Si as the only remaining defendant.

A jury found Si guilty of both charges on April 20, 2000. On February 12, 2001, Si was sentenced to a total of 138 months. Si appeals his judgment and sentence.

II

In a published order, we addressed Tony Si's argument that his statutory and constitutional rights to an interpreter at trial were violated.¹ United States v. Si, 333 F.3d 1041 (9th Cir.2003). We stated that the determination whether a party needs an interpreter "is one that should be made on the record by the district court whenever the court is put on notice that there is a potential language difficulty." Id. at 1044. We remanded the matter to the district court for the purpose of determining "(1) whether Si's language abilities inhibited his comprehension of the proceedings or his ability to communicate with counsel and the court, and if so, (2) whether Si waived his right to an interpreter by not taking advantage of any interpreter that may have been available during Si's trial." Id. at 1045.

The district court has responded to our order, finding:

Based on all papers filed to date, as well as on the oral and documentary evidence presented at the hearing and the oral argument of counsel, the Court finds that: (1) Si's language abilities did not impair his comprehension of the proceedings or Si's ability to communicate with his counsel and the Court and (2) even assuming there had been an impairment Si waived his right to an interpreter by failing to take advantage of either of the two (2) Cantonese interpreters which were present throughout the duration of Si's criminal trial.

Although we would ordinarily review the district court's findings for clear error, see United States v. Lim, 794 F.2d 469, 471 (9th Cir.1986), Si neither made any objections to these findings before the district court nor submitted any objections to this Court. With no objection, we presume the district court's findings to be correct.

On the basis of the district court's unchallenged first finding — that Si's abilities to comprehend the proceedings and communicate with his counsel were not impaired by language difficulties — we hold that the district court did not violate Si's statutory or constitutional rights to an interpreter. So long as Si's ability to communicate was not inhibited by language problems, appointment of an interpreter was within the district court's discretion, and "especially in light of [Si's] failure to [request an interpreter] we cannot say that the court abused its discretion here." Gonzalez v. United States, 33 F.3d 1047, 1051 (9th Cir.1994). We need not reach the question whether Si waived any right to an interpreter by failing to take advantage of interpreters that were available in the courtroom.

III

On January 5, 2000, Si moved for discovery of information pertaining to Jake Hsiung's criminal activities and informant activities. The government was ordered to produce the information pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The government produced most of the requested material, including Hsiung's criminal history and all reports of Hsiung's activity as an informant in Si's case. Nonetheless, the government withheld reports pertaining to Hsiung's participation as an informant in unrelated, ongoing investigations, and redacted names and identifying information of unrelated individuals from reports about Hsiung's past criminal activities. The district court subsequently reversed the discovery order to the extent that it required the government to produce anything beyond what it had already produced. Si challenges this reversal on appeal.

We review the district court's decision to allow the government to withhold evidence de novo. United States v. Monroe, 943 F.2d 1007, 1012 (9th Cir.1991). We review the decision to allow the production of redacted documents for clear error. Id. We hold that there was no Brady violation under either standard of review.

The Supreme Court has identified the three components of a Brady violation: "The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). Prejudice is shown only if the withheld evidence is material to the defendant's guilt or punishment, such that "`there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Id. at 280, 119 S.Ct. 1936 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). A defendant has the burden of showing that withheld evidence is material. United States v. Zuno-Arce, 44 F.3d 1420, 1425 (9th Cir.1995) ("To prove a Brady violation, a defendant must show that the government withheld material exculpatory evidence.").

With respect to the redacted names and identifying information, we cannot conclude that this...