United States v. Min

• Decision Date: 03 January 2013
• Docket Number: Nos. 11–4702,11–4796.,11–4703,11–4704,11–4758,11–4795,s. 11–4702
• Citation: 704 F.3d 314
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Saraeun MIN, a/k/a Saraevn B. Min, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Marc Eric Johnson, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Jan Stevens, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Senh Phun, a/k/a Sehn Phun, a/k/a Tommy, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. James Dwayne McCalister, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Khem Un, a/k/a Khem Roeutanck Un, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

704 F.3d 314

UNITED STATES of America, Plaintiff–Appellee,

v.Saraeun MIN, a/k/a Saraevn B. Min, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Marc Eric Johnson, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Jan Stevens, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Senh Phun, a/k/a Sehn Phun, a/k/a Tommy, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.James Dwayne McCalister, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Khem Un, a/k/a Khem Roeutanck Un, Defendant–Appellant.

Nos. 11–4702, 11–4703, 11–4704, 11–4758, 11–4795, 11–4796.

United States Court of Appeals, Fourth Circuit.

Argued: Oct. 25, 2012.

Decided: Jan. 3, 2013.

ARGUED:Douglas Adrien Steinberg, Alexandria, Virginia; Jonathan L. Katz, Silver Spring, Maryland; Michael Steven Arif, Arif & Associates, PC, Springfield, Virginia; John Louis Machado, Law Office of John Machado, Washington, D.C., for Appellants. Marc Birnbaum, Office of the United States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF:John E. Gullette, Woodbridge, Virginia, for Appellant Saraeun Min; Frank G. Aschmann, Aschmann & Aschmann, Alexandria, Virginia, for Appellant Khem Un. Neil H. MacBride, United States Attorney, Mary K. Daly, Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for Appellee.

Before DUNCAN and DIAZ, Circuit Judges, and Catherine C. EAGLES, United States District Judge for the Middle District of North Carolina, sitting by designation.

Affirmed by published opinion. Judge DUNCAN wrote the opinion, in which Judge DIAZ and Judge EAGLES joined.

OPINION

DUNCAN, Circuit Judge:

Senh Phun organized a group of associates to steal cocaine from the stash house of a drug cartel. Phun, along with Saraeun Min, Khem Un, Marc Eric Johnson, Jan Stevens, and James Dwayne McCalister (collectively, the “defendants”) conspired to commit the robbery, but were arrested just before they could attempt to complete the object of their conspiracy. In fact, unbeknownst to the defendants, the stash house and the cocaine never existed, but were rather a fiction created by undercover law enforcement officers. After a joint trial, each defendant was convicted on several counts related to his participation in the conspiracy. The defendants now challenge multiple aspects of the trial and their respective convictions. Having fully considered the defendants' contentions, we affirm the judgment of the district court.

I.

A.

In 2010, Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) agents began laying the foundation for a sting involving Phun. Based on information that Phun was dealing in narcotics, large quantities of marijuana, and contraband cigarettes and had previously discussed committing robbery, agents established undercover identities and, over a series of meetings, sold Phun contraband cigarettes in exchange for cash and marijuana.

At one such meeting, Detective Robert Snyder presented Phun with an opportunity to rob a drug stash location in Virginia. Snyder explained that he and his “partner” had been buying five kilograms of cocaine at a time for their “boss,” that the cocaine supplier had recently failed to supply two kilograms, and that it was imperative he retrieve this missing cocaine from the supplier's stash house. This was all fiction: there was no “boss,” no missing cocaine, and no stash house. But Phun took the bait and agreed to assemble a crew to undertake the robbery.

The plan was for Phun's crew to steal whatever was at the stash house, which they were told repeatedly would be between five and ten kilograms of cocaine, and some unknown amount of cash. Snyder would receive the two kilograms of cocaine he owed his boss, and the crew would keep whatever else they were able to seize.

On October 28, 2010, the day the robbery was to occur, every defendant except Phun, who never intended to participate directly, drove to a storage facility in Virginia. There they met undercover agents waiting with a van to execute the robbery. While McCalister and Stevens remained in the defendants' rented SUV, Johnson, Min, and Un got out and discussed final details with the agents. Snyder reiterated, “[A]ll's I want is my two. There would be like at least ten in there.” S.A. 96. Johnson responded, “It's ten and cash, right?” S.A. 98. The group then discussed whether and to what extent the stash house traffickers would be armed, and Snyder asked, “You got your shit though, right?” S.A. 98. All three responded in the affirmative.¹ After Snyder suggested that the crew load the van, McCalister and Stevens got out of the SUV and transferred items concealed under their clothing into the van. The agents observed McCalister and Stevens taking apart plastic molding in the van and lifting up some of the floorboards. Finally, Snyder asked all five defendants present whether they were ready to carry out the robbery, and they all nodded yes.

Shortly thereafter, law enforcement moved in on the parking lot, arresting the defendants and recovering five loaded firearms from the wheel wells of the van. Min alone waived his Miranda rights and confessed to his involvement in a plan to rob a drug trafficker of cocaine and money. Phun was arrested later that day in Philadelphia.

B.

The six defendants were each indicted on three counts: (1) conspiracy to interfere with interstate commerce by robbery, 18 U.S.C. § 1951(a); (2) possession of firearms during a crime of violence, 18 U.S.C. § 924(c); and (3) conspiracy to possess with the intent to distribute 5 kilograms or more of cocaine, 21 U.S.C. §§ 841(a)(1), 846.

After the district court denied defendants' motions to sever, all six defendants were tried jointly and Min's redacted confession was introduced against him with a limiting instruction. The government had replaced the names of any defendants except Min with non-specific terms such as “another person,” “a third person,” “others,” and “one of the others,” and had written the statement from the perspective of an officer interviewing Min. See, e.g., J.A. 103 (“MIN stated the following: At approximately 9:00 p.m. the night before, another person asked MIN if he would take a trip the next day to ‘take care of business,’ which MIN understood to mean that they were to pick up some drugs in Virginia. To MIN's knowledge, this other person was making the trip at the request of a third person.”). None of the defendants testified at trial. Detective Snyder testified extensively about his understanding of recorded conversations he had with Phun in the course of planning the robbery.

Phun, Un, Min, and Johnson were convicted on all three counts; Stevens and McCalister were convicted on counts one and two only. All six defendants timely appealed.

II.

A.

We first address whether the district court erred in denying the five non-confessing defendants' motions to sever and admitting the redacted confession of their non-testifying codefendant, Min, in the resulting joint trial. We review the decision to deny a motion to sever for abuse of discretion, though we review whether the admission of evidence violated the Confrontation Clause de novo. United States v. Lighty, 616 F.3d 321, 348, 376 (4th Cir.2010).

Generally, defendants may, and indeed should, be indicted and charged together if they are alleged to have participated in the same act or transaction. SeeFed.R.Crim.P. 8(b); Zafiro v. United States, 506 U.S. 534, 537, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). When such defendants have been joined properly under Rule 8(b), a district court should grant severance under Rule 14 “only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” Zafiro, 506 U.S. at 539, 113 S.Ct. 933. Although limiting instructions often will suffice to cure any risk of prejudice as a result of the joint trial, in some situations the risk of prejudice is so high as to require a separate trial. United States v. Hayden, 85 F.3d 153, 160 (4th Cir.1996).

Such a situation can arise where the out-of-court confession of a non-testifying codefendant, admissible against himself but inadmissible hearsay against anyone else, inculpates one or more of the other defendants. In Bruton v. United States, the Supreme Court acknowledged that the prejudice resulting from the introduction of a non-testifying codefendant's confession that directly implicates the defendant is so severe that even when the jury is instructed to consider the confession only against the codefendant, the other defendant's Sixth Amendment right to confrontation is necessarily violated. 391 U.S. 123, 135–37, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (“[W]here the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial ... we cannot accept limiting instructions as an adequate substitute for [the defendant's] constitutional right of cross-examination.”).

Subsequent decisions have refined Bruton's holding significantly. First, in Richardson v. Marsh, the Supreme Court held that the Confrontation Clause is not implicated so long as the codefendant's confession, accompanied by a limiting instruction, “is redacted to eliminate not only the defendant's name, but any reference to his or her existence.” 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). This is true even when the confession “inferentially incriminates” the defendant because other evidence admitted subsequently at trial clearly links the defendant to the statement in an inculpatory manner. Id.²

The Supreme Court later clarified that a codefendant's confession is facially, not inferentially, incriminatory if it “replace[s] a proper name with an obvious blank, the word ‘delete,’ a symbol, or similarly notif[ies] the jury...