United States v. Tran

16 F.3d 897
CourtCourt of Appeals for the Eighth Circuit
DecidedFebruary 15, 1994
DocketNos. 93-2983, 93-3037 and 93-3095
StatusPublished
Cited by28 cases

This text of 16 F.3d 897 (United States v. Tran) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Tran, 16 F.3d 897 (8th Cir. 1994).

Opinion

KOPF, District Judge.

Phuong Van Luu (Luu), Minh The Tran (Tran), and Phap Ngoc Nguyen (Nguyen) appeal from their criminal convictions and resulting sentences in the United States District Court for the Western District of Missouri.1 After carefully considering the arguments of each of the appellants, we affirm.

I.

A.

The grand jury in this case handed up a three-count indictment. Count I of the indictment charged each of the defendants with conspiracy to distribute “crack cocaine” from at least early November, 1992, until on or about December 14, 1992, in violation of 21 U.S.C. § 846. Count II charged that on or about November 27, 1992, the defendants, aided and abetted by each other, distributed crack cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Count III of the indictment charged Luu with knowing and intentional possession of a machine gun on or about December 14, 1992, in violation of 18 U.S.C. §§ 922(o)(1) and 924(a)(2).

Trial commenced on May 17, 1998, and on May 19, 1993, the jury returned verdicts of guilty on all counts.

Luu was sentenced to concurrent terms of imprisonment of 151 months on Counts I and II, and 120 months on Count III. Tran was sentenced to concurrent terms of imprisonment of 121 months on Counts I and II. Nguyen was sentenced to concurrent terms of imprisonment of 188 months on Counts I and II.2

B.

Dan Schrader, an officer of the Springfield, Missouri, police department, began an investigation of “crack cocaine” being distributed out of the Saigon Inn restaurant by a group of individuals known as the “China boys.”3 We briefly summarize the evidence uncovered by this investigation.

On November 3, 1992, a confidential informant arranged for Schrader to be introduced to the so-called China boys. Schrader was introduced as a gun dealer and marijuana grower and distributor. Schrader proceeded to meet Luu at the Saigon Inn. Luu talked to Schrader about whether Schrader had access to guns, specifically referring to an “Uzi” and 9mm handguns. They also discussed marijuana.

Their conversation turned to crack cocaine when Luu asked Schrader what he needed. Schrader told Luu he was interested in purchasing “crack” and gave Luu fifty dollars. In return, Luu handed Schrader “rocks” of “crack” cocaine. When Schrader told Luu what he needed, Luu called to a second individual who walked over to Luu and [900]*900poured 15 to 20 rocks of crack into Luu’s hand. Luu gave Schrader his pager number so Schrader could call him and assigned Schrader the code number “07” with which to identify himself.

On November 5, 1992, Schrader paged Luu. They talked on the phone about purchasing a large quantity of crack, and Luu told Schrader to come to the restaurant. When Schrader arrived at the restaurant, Luu told him he would be back in a few minutes because he did not have that much on him and would have to get it. Luu returned approximately five to ten minutes later. He handed Schrader crack cocaine, and Schrader handed Luu three hundred dollars.

Luu also talked about guns on this occasion, as he did during almost every contact with Schrader. Luu told Schrader he used to have an “Uzi,” but indicated with gestures that he did not like the “Uzi” because he could not conceal it. Luu preferred a 9mm Barretta because it was smaller.

Officer Counts testified that he conducted surveillance at the Saigon Inn on November 5, 1992. He saw Schrader arrive at the restaurant and contact Luu. Following their contact, Luu left and Counts followed him to the El Madrid apartments. Luu was at the apartment complex approximately two to three minutes before returning to the Saigon Inn where he again contacted Schrader.

On November 10, 1992, Schrader paged Luu and was told to come to the restaurant. When Schrader pulled into the restaurant parking lot, he saw Luu and Tran. The two men walked over to Schrader’s car, and Luu and Schrader talked about purchasing marijuana. After their conversation, Tran walked away from the vehicle. Schrader and Luu went on to discuss guns, and Schrader purchased crack from Luu which was contained in a Tylenol bottle.

On November 11,1992, Schrader made two purchases of crack at the Saigon Inn. An individual by the name of “Tony” handed him crack from a Tylenol bottle in exchange for cash. Schrader also purchased crack from Luu later the same day. When Schrader arrived at the parking lot, Luu walked over to his vehicle and sold him crack contained in a Tylenol bottle. When he paid Luu, Schrader observed Luu remove a wad of money from his pocket that appeared to be between two thousand and five thousand dollars in currency.

Schrader contacted Luu again on November 17,1992. The two talked about guns and Schrader purchased crack from Luu. Luu and Schrader discussed purchasing a larger amount in the future.

On November 24, 1992, Schrader paged Luu and was directed to come to the restaurant. Schrader went to the restaurant and purchased crack cocaine from Luu. Once again, Luu had the crack in a Tylenol bottle.

On November 27,1992, Schrader contacted Luu and told him he wanted to purchase an ounce of “crack.” By ordering a larger amount, Schrader hoped to be able to identify the “stash house” and as many of the individuals in the organization as possible. When Schrader arrived at the restaurant, Luu was standing at the rear door and he motioned for Schrader to come in.

When Schrader entered the restaurant, Nguyen held the door open for him and told him to follow Luu. Schrader followed Luu into the men’s rest room where they talked about the purchase of an ounce. After patting him down for a body microphone, Luu told Schrader he “makes five thousand to six thousand a night selling it by rock versus by the weight.” Schrader eventually agreed to purchase 112 rocks for sixteen hundred dollars. Luu removed a Tylenol bottle and handed Schrader two hundred dollars worth of crack cocaine. Luu exited the rest room and then returned and told Schrader “they would be right back.”

Schrader and Luu left the rest room and went to the dining area of the restaurant where they discussed future purchases of crack and guns. They discussed “fronting” Schrader’s crack. Luu told Schrader he could work for him, and Luu would pay Schrader ten dollars for every one hundred dollars of crack he sold. Schrader testified that Luu told him “he wasn’t concerned about me ripping him off because he had ways to find where I was and he didn’t want to have to kill anyone.”

[901]*901After about ten minutes, Nguyen returned and spoke to Luu in a foreign language. Luu told Schrader, “It’s here.” The two then walked back to the women’s rest room because it had a lock on it. Shortly after Luu and Schrader entered the rest room, Tran entered and handed Luu a Tylenol bottle. Luu poured rocks of crack from the bottle and gave Schrader the crack in exchange for sixteen hundred dollars.

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