U.S. v. Tham, 95-9533
| Decision Date | 11 August 1997 |
| Docket Number | No. 95-9533,95-9533 |
| Citation | 118 F.3d 1501 |
| Parties | 11 Fla. L. Weekly Fed. C 308 UNITED STATES of America, Plaintiff-Appellee, v. Andy THAM, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Appeal from the United States District Court for the Middle District of Georgia.
Charles T. Erion, Macon, GA, for defendant-appellant.
Sharon T. Ratley, U.S. Atty's Office, James N. Crane, Macon, GA, for plaintiff-appellee.
Before BLACK, Circuit Judge, and FAY and ALARCON *, Senior Circuit Judges.
In August of 1995, a federal jury convicted Appellant Andy Tham of arson, mail fraud, and conspiracy to commit each of these substantive offenses. Pursuant to a cross-referencing provision contained in the arson sentencing guideline, the district court calculated Tham's sentence in accordance with the first-degree murder sentencing guideline because the arson resulted in the death of a cofelon. On appeal, Tham asserts that the district court erred by admitting into evidence involuntary or coerced statements and by denying his motions for judgment of acquittal. Tham also assigns error to the district court's determination that his arson sentence must be determined with reference to the first-degree murder sentencing guideline. We affirm Tham's convictions and sentence.
In January of 1993, Appellant Andy Tham decided to open an elegant Chinese restaurant in Macon, Georgia, with his wife, Judy, and his brother, Tony. In pursuit of this objective, the Tham brothers established a closely-held corporation that would own the restaurant, with each brother holding fifty percent of the outstanding shares. The principals agreed that Andy Tham would serve as president of the corporation, Tony Tham as vice-president, and Judy Tham as secretary-treasurer. To finance the operation, the Tham brothers contributed $50,000 of their own funds.
The Thams subsequently leased the building that would become the Fortune Garden restaurant and initiated the costly renovation process. The lease entered into obligated the Tham brothers to make payments of $2,250 each month for the next three years. The agreement also specified that the entire amount owed under the lease agreement would become immediately due and payable in the event of a default. An escape clause provided that total destruction of the premises by fire or other casualty would terminate the lease, however, leaving the tenant liable for rent only up to the time of the destruction.
Viewed most favorably to the jury's verdict, the evidence adduced at trial demonstrated that financial difficulties beset the Thams' business venture from its inception. In April, the first month the Thams were required to pay rent under their lease agreement, Judy Tham wrote the lessor requesting a reduction in rent. Judy Tham enclosed with the request a check for $1,150, approximately one half the agreed upon monthly rate. After the lessor refused the request, the Thams eventually paid the remainder of their April rent. To sustain their business, however, the Thams were forced to borrow $20,000 from the bank and additional funds from relatives.
By June of 1993, the strain associated with the struggling enterprise caused the principals in the Fortune Garden restaurant to squabble amongst themselves. The acrimony prompted Judy Tham to resign from the corporation and to cease working at the Fortune Garden on June 15, 1993. A few months later, Judy further disassociated herself from the business when she divorced Andy Tham.
From June through October of 1993, the financial condition of the restaurant deteriorated steadily. The restaurant consistently failed to pay its rent on time. In July of 1993, the Fortune Garden's rent check was returned for insufficient funds. In October of 1993, the restaurant proved unable to pay its rent at all. At approximately the same time, Fortune Garden stopped making timely payments to its poultry supplier. The delinquency led the poultry supplier to revoke Fortune Garden's credit privileges. By October 31, 1993, Fortune Garden owed the poultry supplier $3,000. Indeed, the restaurant's financial predicament proved so severe that the Tham brothers found it necessary to suspend their own salaries and live off borrowed funds.
On October 31, 1993, Andy Tham, Tony Tham, Loni Tham (Tony's wife), and Simon Lee Kwong 1 closed the Fortune Garden restaurant for the night. After closing the restaurant, Appellant Tham visited his ex-wife at her apartment. Shortly after midnight, Andy Tham borrowed his ex-wife's car for the ostensible purpose of retrieving some movies from his brother's apartment. Appellant Tham indicated to his ex-wife that he would return to her apartment later to watch the movies. Andy Tham then proceeded to his brother's apartment where he spent several hours in the company of his brother and Simon Kwong.
At approximately 2:00 a.m., Andy Tham, Tony Tham, and Simon Kwong drove Tony Tham's automobile to the Fortune Garden restaurant. Andy Tham dropped Tony Tham and Simon Kwong off at the restaurant and then continued down the road to a Kroger market four-tenths of a mile away. Andy Tham circled the parking lot repeatedly before stopping in front of the market.
At 2:18 a.m., the 911 emergency service in Macon received a call reporting a fire at the Fortune Garden. Shortly thereafter, two badly burned individuals, later identified as Tony Tham and Simon Kwong, entered the Kroger shouting that they had been kidnaped. Kroger employees detected an odor of gasoline emanating from their charred figures. A Kroger employee placed a 911 call to report the incident. Andy Tham then entered the Kroger store and asked the two burned men what had happened.
Moments later, police and medical personnel arrived at the scene. The fire department also arrived and managed to subdue the blaze at the Fortune Garden, but not before it had consumed the building. Meanwhile, the burned men were transported to local hospitals by ambulance and then transferred to the burn center in Augusta, Georgia. Tony Tham ultimately died from his burns. Simon Kwong survived, but suffered severe disfiguration.
Expert witnesses subsequently determined that the fire at the Fortune Garden had been intentionally set by spreading gasoline around the interior of the restaurant. The fire apparently started prematurely, however, when the pilot light on the water heater came into contact with the gasoline vapors. At that point, a fireball flashed through the restaurant, sending the internal temperature to between 900 and 1200 degrees Fahrenheit within 60 seconds. The United States also presented evidence that the clothing of both Tony Tham and Simon Kwong contained liquid gasoline and gasoline vapors. In addition, police officers recovered a Bic lighter from Simon Kwong's pant pocket.
Law enforcement officials commenced their investigation immediately after arriving at the scene of the fire. Macon Police Department Officer Carolyn Marion first questioned Appellant Tham shortly after her arrival at 2:34 a.m. At that time, Appellant Tham told Officer Marion that he had taken two of his employees to the restaurant to work the "midnight shift." Appellant Tham explained that after dropping the employees off at the restaurant, he went to the Kroger, returned to the restaurant, then saw that the building was on fire. Approximately 15 to 20 minutes later, Appellant Tham again spoke with Officer Marion in the Kroger parking lot. On this occasion, Tham stated that he went home after dropping his employees off at the restaurant. Appellant Tham indicated that he then decided to come back to the Kroger, where he encountered his two burned employees.
Subsequently, Officer Bennie Gibson arrived at the Kroger parking lot. Officer Gibson also attempted to interview Tham, but could not understand the language Tham started to speak. Officer Gibson told Tham that if he was not able to speak in a way that he could understand, he would "take him down to the jail where we could talk." Appellant Tham then resumed speaking in comprehensible English. Officer Gibson then asked Tham why he had been circling the Kroger parking lot prior to the fire. Appellant Tham responded that someone had called him to request a ride. Without eliciting any further comments from Tham, Officer Gibson turned the investigation over to detectives of the Macon Police and Fire Departments.
During a subsequent interview with a fire investigator, Tham indicated that he needed to inform Tony Tham's wife about the fire. The officers on the scene arranged for Andy Tham to be escorted in a police cruiser to his sister-in-law's residence. The officers then apparently brought Andy Tham and his sister-in-law back to the Kroger market.
Eventually, Macon Police Department Detective Robert Robinson assumed control of the arson investigation. In response to questions posed by Detective Robinson, Tham now indicated that he had dropped his brother and Simon Kwong off at work, went home to eat, and then came back to Kroger to get something to drink. When Detective Robinson expressed surprise that Tham would travel to Kroger to get something to drink even though his own restaurant was right down the road, Tham explained that he wanted a Coke and his restaurant only served Pepsi.
Appellant Tham subsequently agreed to continue the interview at the Macon Police Department. In accordance with standard procedures, an officer advised Tham of his Miranda rights at the time of his arrival. The Police Department also summoned the owner of a local Chinese restaurant to act as an interpreter for Tham. During this interview, Tham claimed that after he dropped his brother and Kwong off at the restaurant, he returned home to retrieve his wallet, not to get something to eat. Detective Robinson also questioned why Tham had parked in the middle of an empty parking lot during the early morning hours. Appellant Tham replied that he...
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