US v. Nguyen

• Decision Date: 22 May 1992
• Docket Number: Cr. A. No. 91-526(AJL).
• Citation: 793 F. Supp. 497
• Parties: UNITED STATES of America Prosecution, v. Tom NGUYEN, a/k/a "Johnny" Defendant.
• Court: U.S. District Court — District of New Jersey

793 F. Supp. 497

UNITED STATES of America Prosecution, v. Tom NGUYEN, a/k/a "Johnny" Defendant.

Cr. A. No. 91-526(AJL).

United States District Court, D. New Jersey.

May 22, 1992.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Jane Meyers, Mark Rufolo, Asst. U.S. Attys., U.S. Atty.'s Office, Newark, N.J., for Government.

James C. Patton, Livingston, N.J., for defendant.

OPINION

LECHNER, District Judge

In this case defendant Tom Nguyen, a/k/a "Johnny" ("Nguyen"), was indicted on three counts (the "Indictment").¹ Count One alleged that during the time period beginning January 1991 and ending July 1991 Nguyen conspired to engage in the business of dealing in firearms without a federal license in violation of 18 U.S.C. § 922(a)(1)(A) and (2). Count Two alleged Nguyen knowingly and willfully engaged in the business of dealing in firearms without a federal license and sold a weapon in violation of 18 U.S.C. § 922(a)(1)(A) and (2). Count Three charged Nguyen with possession of a weapon while a convicted felon in violation of 18 U.S.C. § 922(g)(1). On 19 May 1992, after a three-day trial, Nguyen was found not guilty on all three counts of the Indictment.

Prior to trial, Nguyen moved for a bifurcated trial on the count charging him with possession of a weapon while a convicted felon, for an order precluding in-court and out-of-court identification testimony of Nguyen and for the introduction of expert testimony regarding eyewitness identification.²

At a pretrial hearing, for the reasons set forth below, the motion to bifurcate the trial on the issue that Nguyen possessed a weapon while a convicted felon was denied and the motion to exclude in-court and out-of-court identification testimony was denied. Prior to trial, Nguyen indicated that he was uncertain whether he would call the expert,³ therefore, no ruling on the motion to introduce expert testimony concerning eyewitness identification was made prior to trial. At trial, Nguyen did not call the expert to testify. If Nguyen had called the expert during trial, the motion would have been denied for the reasons set forth below.

Factual Allegations

The Indictment charged Nguyen neither applied for nor obtained a license to deal in firearms, as required by federal law. Indictment at 2. It alleged that on or about 2 February 1991 Nguyen placed a telephone call to an individual to discuss the sale of firearms and ammunition. Id. at 3. The Indictment charged, on that same date, Nguyen willfully and knowingly sold a .25 caliber semi-automatic pistol, Raven Arms model MP-25, bearing serial number 1733273 (the "Weapon"), to an individual in Jersey City, New Jersey. Id. at 3, 5. The individual was Investigator Mark Peterkin ("Peterkin") of the Hudson County Prosecutor's Office, who was working undercover. The sale of the Weapon occurred around dusk in Lincoln Park (the "Park") in Jersey City, New Jersey. 2 April 1992 Letter Brief at 3; 8 May Hearing Tr. at 5. The Indictment charged that at the time of such sale, Nguyen had previously been convicted of forcible theft with a firearm which is a felony offense.⁴ Indictment at 10.

On 2 February 1991, an hour after Peterkin arrived at the Park, a white Camaro, in which four individuals were riding, drove up next to the Park.⁵ 8 May Hearing Tr. at 19. Peterkin stated a man got out of the car and swaggered over to him. Id. at 6. He described the man as a five foot, three inches to five foot, five inches, Asian, wearing a long black, full-length coat, a scarf, black patent leather shoes, white socks and a white shirt, completely buttoned to the collar. Id.

Peterkin stated he had a three to five minute conversation during which the man sold Peterkin the Weapon and discussed future sales. Id. Peterkin testified that during this time, he stood face to face with this person, only an arm's length from him. Id. at 7. Peterkin said that although it was dark, he could clearly see this man because of the artificial lights from the street lamps overhead. Id. He testified the man pulled out the Weapon, put a clip in it, but did not put a round in the chamber, and handed it to Peterkin, initially with the barrel pointing at him but then by holding the barrel and flipping the butt of the Weapon over to him. Id. at 7, 24-25.

Following the sale of the Weapon, Peterkin returned to the Hudson County Prosecutor's Office where he looked through a book of approximately sixty photographs of Asian men (street gang members)⁶ between the ages of twenty and twenty-five.⁷ Id. at 8. Peterkin identified a photograph of Nguyen as the man in the Park who sold him the Weapon. Id.

On 15 April 1991 Nguyen was arrested in New York City and charged with first degree robbery. Moving Brief at 1. Subsequently, Nguyen was incarcerated at Rikers Island New York State Prison ("Rikers Island") on the robbery charge. Id. In August 1991, during Peterkin's investigation, he discovered that Nguyen, the man he identified on 2 February 1991, may have then been at Rikers Island. 8 May Hearing Tr. at 11. To verify this information, Peterkin again identified a photograph of Nguyen as the man in the Park who sold him the Weapon; Peterkin received the photograph by facsimile transmission. Id. at 12.

Because the facsimile was dark, however, Peterkin went to Rikers Island for a lineup. Id. Peterkin was accompanied by Officer Wisniewski.⁸ 13 May Hearing Tr. at 185. After checking in, Peterkin and Officer Wisniewski went to an office. After about ten to fifteen minutes they left the office and went into the corridor. Id. at 186. Peterkin immediately recognized Nguyen, who was walking in a corridor about twenty to twenty-five feet from Peterkin, as the man in the Park. Id. at 186-89; 8 May Hearing Tr. at 12. Nguyen was being escorted by two prison guards at the time Peterkin identified him; however, there were other prisoners and guards in the corridor.⁹ 13 May Hearing Tr. at 186-88.

On 3 December 1991 Nguyen was arraigned on the Indictment and entered a plea of not guilty. Opp. Brief at 1. On that date, Nguyen was transferred from Rikers Island to Union County Jail to await trial in this action. Id.

Discussion

A. Bifurcation of Count Three

Prior to trial, Nguyen moved for a bifurcated trial with respect to elements of the crime charged in Count Three of the Indictment. 25 March 1992 Letter Brief at 2. Specifically, Nguyen requested "that the jury be asked initially to determine whether ... Nguyen possessed a firearm. If the jury finds that he did, ... Nguyen would stipulate that prior to February 2, 1991, the date in question, he had been convicted of a felony. The jury would then be asked to retire to determine whether ... Nguyen was guilty of possessing a firearm while a felon." Id. Nguyen argued bifurcation was necessary because the prior felony conviction was unfairly prejudicial; he argued "a juror would use the evidence of ... Nguyen's prior conviction to conclude that ... Nguyen was the man in the Park who sold the Weapon to Peterkin...."¹⁰ Id. at 2.

The Government argued the felony alleged in the Indictment is admissible as an element of Count Three which asserts a charge for possessing a firearm while being a convicted felon. Opp.Brief at 7.

Count Three alleged a violation of 18 U.S.C. § 922(g)(1). Section 922(g)(1) makes it unlawful for a person who has been convicted of a crime punishable by a term exceeding one year to possess a firearm. 18 U.S.C. § 922(g)(1); see also United States v. Paolello, 951 F.2d 537, 541 n. 3 (3d Cir.1991); United States v. Schoolcraft, 879 F.2d 64, 69 (3d Cir.), cert. denied, 493 U.S. 995, 110 S.Ct. 546, 107 L.Ed.2d 543 (1989). "In order to convict someone under this statute, the government must prove: (1) that the defendant had a previous felony conviction, (2) that the defendant possessed a firearm, and (3) that the firearm had travelled in or affected interstate commerce." United States v. Petitjean, 883 F.2d 1341, 1346 (7th Cir.1989).

The Government is entitled to offer proof on an element of the crime. See, e.g., United States v. Williams, 612 F.2d 735, 740 (3d Cir.1979), cert. denied, 445 U.S. 934, 100 S.Ct. 1328, 63 L.Ed.2d 770 (1980) (government does not have to accept stipulation of prior felony conviction which is element of charged crime). The argument that the prior felony conviction would unfairly prejudice Nguyen because it would show a propensity for crime or a bad character was rejected. The nature of the prior felony conviction, armed robbery, was not admitted into evidence, but only the fact that Nguyen had a prior felony conviction was introduced into evidence. Moreover, strong limiting instructions were given during trial, at the time the evidence was introduced and again when the jury was charged, with respect to the introduction of a prior criminal conviction. Accordingly, the motion for bifurcation was denied.

B. Identification Testimony

Nguyen moved to suppress the in-court and out-of-court identifications on the ground that they were the product of impermissively suggestive procedures which violated his right to due process under the Fifth and Fourteenth Amendments. Moving Brief at 11. Nguyen argued the out-of-court photographic identifications by Peterkin were impermissively suggestive because he made the identifications from a book of mug shots of Asian men. Nguyen argued because the photobook was specifically compiled for an ongoing investigation of Asian street gangs and Peterkin was aware the photographs in the book included members of the particular Asian street gang to which Peterkin believed the man in the Park belonged, Peterkin believed the man in the Park would be in the book. 14 May Hearing Tr.

Nguyen also argued testimony of the identification at Rikers Island should be excluded because it was the result of a suggestive procedure. Specifically, he argued because Nguyen was escorted by two prison guards there was a suggestion to Peterkin that Nguyen was...