U.S. v. Piche

• Decision Date: 25 November 1992
• Docket Number: Nos. 91-5692,91-5705,s. 91-5692
• Citation: 981 F.2d 706
• Parties: 37 Fed. R. Evid. Serv. 430 UNITED STATES of America, Plaintiff-Appellee, v. Lloyd Ray PICHE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellant, v. Lloyd Ray PICHE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 706

981 F.2d 706

37 Fed. R. Evid. Serv. 430

UNITED STATES of America, Plaintiff-Appellee, v. Lloyd Ray PICHE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellant, v. Lloyd Ray PICHE, Defendant-Appellee.

Nos. 91-5692, 91-5705.

United States Court of Appeals Fourth Circuit.

Argued May 8, 1992.

Decided Nov. 25, 1992.

Mary Elizabeth Manton, Federal Public Defender, Raleigh, NC, argued for defendant-appellant.

Leslie A. Simon, U.S. Dept. of Justice, Washington, DC, argued (John R. Dunne, Asst. Atty. Gen., David O. Simon, Acting Deputy Asst. Atty. Gen., Dennis J. Dimsey, U.S. Dept. of Justice, on brief), for plaintiff-appellee.

Before ERVIN, Chief Judge, WILLIAMS, Senior United States District Judge for the Western District of Virginia, sitting by designation, and WILLIAMS, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

OPINION

ERVIN, Chief Judge:

Lloyd Ray Piche (Lloyd) and his brother Robert Piche (Robert) harassed a group of seven Asian-American men at a Raleigh, North Carolina bar. Robert, with Lloyd's participation, killed one of the men, Ming Hai "Jim" Loo, by hitting him in the head with a pistol. Robert was convicted in state court of second degree murder and assault with a deadly weapon and sentenced to 37 years' imprisonment. Lloyd was convicted of misdemeanor assault and sentenced to six months' imprisonment; he actually served one and a half months.

The government prosecuted Lloyd alone in federal court. Lloyd was convicted in the Eastern District of North Carolina on eight counts of violating 18 U.S.C. 241 (conspiring to injure, oppress, threaten and intimidate the Asian-American men, with death resulting) and 18 U.S.C. §§ 2 and 245(b)(2)(F) (intimidating and interfering with the Asian-American men because of their race, color or national origin and because they were enjoying the goods and services of a public facility). The district court sentenced Lloyd to 48 months' imprisonment by downwardly departing from the sentencing guidelines to equalize Lloyd's federal and Robert's state sentence. In addition, the court imposed a $28,000 restitutionary fine upon Lloyd. Lloyd appeals his conviction and sentence on various grounds, and the government cross-appeals the downward departure. We affirm Lloyd's conviction. We vacate his sentence, however, because the district court failed to make sufficient findings regarding Lloyd's ability to pay the restitution award and improperly departed from the guidelines.

I.

On the night of July 28, 1989, Jim Loo and six other Asian-American men--Chi Cuong "Jim" Ta, Lanh Tang, Tai Trong Le, Thai Nguyen "Teo" Ton, Minh Van Lam, and Hong Thanh Nguyen--were playing pool at the Cue 'N Spirits, a bar/poolroom in Raleigh. Lloyd, drinking heavily but still coherent, was at the Cue 'N Spirits with his brother Robert and a third man. Lloyd approached the group of men and challenged them to play pool for money. The men declined the offer.

Thereafter, Lloyd and his brother began harassing the men by calling them derogatory racial names, making threatening gestures, and challenging them to fight. Lloyd, who did most of the talking, and Robert called the men such names as "slanty eyed gooks" and "black pajamas" (J.A. 89), "gooks" and "rice eaters" (J.A. 151), and "chinks" (J.A. 173). The brothers said that they hated the Vietnamese because their brother had been killed in Vietnam, and that the Vietnamese should never have come to America. Lloyd threatened the men by making kung fu gestures and pretending to fire a machine gun at them. At one point, Lloyd confronted Lanh Tang by laying his arm on Tang's and then telling Tang to take his arm off. After Tang removed his arm and walked away, Lloyd followed him and said that he hated Vietnamese people and wanted to fight the men and "finish [them] off." J.A. 109-110. With Robert standing behind him, Lloyd said that they would meet the men outside in the parking lot and that the men would have to go outside sooner or later.

Lloyd also confronted Tai Trong Le and Teo Nguyen Ton, whom he recognized from an earlier encounter at the Korner Pocket, another Raleigh bar/poolroom. On that occasion, Lloyd and a friend harassed a mixed group of ten Asian-Americans and Caucasians, calling them racially derogatory names, threatening them, and eventually pursuing them into the parking lot. Lloyd said to Le, "Before you guys were ten of you guys on two of us and tonight it's six of you guys and three of us, we can finish it tonight." J.A. 174.

At one point, Lloyd went up to Steven Ecklard, another bar patron, and said, "When the shit goes down remember what color you are," which Ecklard interpreted as an attempt to recruit him to help the Piches in the upcoming fight. J.A. 152-53. Myron Owens, who was playing pool at a nearby table, also recognized that something was going to happen and offered to help the Asian-American men if necessary.

Throughout the harassment, the victims remained quiet and attempted to avoid or ignore the Piches. After some time, Hong Nguyen and Jim Loo went to the bar area to buy a beer and make a phone call, respectively. Lloyd began yelling at Loo. While Lloyd pointed his finger in Loo's face, Robert wrapped his belt around his fist with the buckle dangling and told Loo to step outside. Lloyd said at this time to a Caucasian bar patron, Cyrus Bailey, that "if anybody walked behind his brother, any nigger, any chink, he'd cut their head off." J.A. 318.

The bartender at this point sent everyone outside. Robert pushed Loo outside, and Lloyd, along with Tang and Ta, went out at the same time. Lloyd continued to "run[ ] his mouth." J.A. 319. Robert went into the trunk of his car and took out a shotgun. He attempted to hit Tang with it, swinging the gun like a baseball bat. Tang managed to slip away. Jim Ta and Lanh Tang testified that Lloyd came up behind Tang and held his head against the car so that Robert could hit him, but Tang slipped away again and the shotgun fell to the ground and broke. Robert then returned to his car and pulled out a pistol. Lloyd was standing near the entrance to the bar, apparently to guard it. At this point, Cyrus Bailey, who had also come outside, went back into the bar. Lloyd briefly followed Bailey through the door, pushed him in the back of the head and said, "If you didn't want trouble why did you come outside," and then came back outside. J.A. 321-23.

Robert pointed the pistol at Tang. Tang ran, and Robert headed toward Loo, who was standing near the entrance to the bar. Robert swung the pistol at Loo, hitting him on the left side of his head around the eye. Loo fell immediately to the ground, bleeding heavily from his face. When a police officer arrived soon afterwards, Lloyd told Robert to run away. Robert did run, but was eventually caught and arrested.

When bystanders attempted to help Loo, Lloyd became upset, told them to let Loo up, and gestured with a clenched fist. When Lloyd was sitting on a bench close to where Loo was lying, bystanders saw Lloyd smiling, laughing, making sarcastic remarks, and saying that the victim "deserved this." J.A. 287. Lloyd later told a police officer and others that Loo hit himself with a bottle, and that no one had hit Loo.

Loo was taken to the hospital, where he never regained consciousness. He died two days later from brain injuries. It is not clear whether these injuries were caused by the pistol blow or by Loo's having fallen on a piece of glass after being hit.

II.

Lloyd first contends that the district court's instruction on "death resulting" constituted reversible error. The offense charged in count one, 18 U.S.C. § 241, applies:

If two or more persons conspire to injure, oppress, threaten, or intimidate any inhabitant of any State ... in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same....

They shall be fined not more than $10,000 or imprisoned not more than ten years, or both; and if death results, they shall be subject to imprisonment for any term of years or for life.

18 U.S.C. § 241 (1992) (emphasis added). Count three, 18 U.S.C. § 245(b)(2)(F), violations include a similar "death resulting" penalty provision. See 18 U.S.C. § 245(b)(5) (1992).

The district court instructed the jury on the "death resulting" provision as follows:

The fifth and final essential element that the United States must prove is that the defendant's actions resulted in the death of Ming Hai Loo, also known as Jim Loo. In order for you to find the defendant guilty as to this portion of count one, you must find that Ming Hai Loo's death was a natural and foreseeable consequence of the acts committed by the defendant or a co-conspirator.

It is not necessary for the United States to prove that the defendant intended Mr. Loo to die as a result of his actions. Nor need the United States prove that the defendant struck the blow that directly caused Mr. Loo's death. "If death results" does not mean "if death was intended" or "directly caused by the defendant." Rather, the statute is designed to deter the type of conduct that creates an unacceptable risk of loss of life.

If you find that the defendant willfully engaged in a conspiracy, that the defendant or a co-conspirator committed acts during the course of the conspiracy which resulted in the victim's death, and the death was a natural and foreseeable result of the acts, then you may find that this final element has been established.

J.A. 776-77. The court's instructions with respect to count three were substantially identical as to this element. See J.A. 786-87.

Lloyd does not contest the court's statement that the phrase "if death results" requires only that death foreseeably and naturally, rather than directly and intentionally, result from the rights-violating conduct, for that is clearly the law of this circuit....