United States v. Tran

568 F.3d 1156, 2009 U.S. App. LEXIS 13525, 2009 WL 1773149
CourtCourt of Appeals for the Ninth Circuit
DecidedJune 24, 2009
Docket07-30270
StatusPublished
Cited by53 cases

This text of 568 F.3d 1156 (United States v. Tran) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth 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, 568 F.3d 1156, 2009 U.S. App. LEXIS 13525, 2009 WL 1773149 (9th Cir. 2009).

Opinions

Opinion by Judge PREGERSON; Dissent by Judge NOONAN.

PREGERSON, Circuit Judge:

Defendant-Appellant Hao Quang Tran (“Tran”) appeals his jury convictions for conspiracy to possess more than 100 kilograms of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and § 846, and two counts of possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(D), and 18 U.S.C. § 2. Tran argues that the district court erred by admitting a portion of a co-defendant’s redacted plea agreement as substantive evidence under Federal Rule of Evidence 801(d)(1)(A). Tran further argues that there was insufficient evidence supporting his convictions. Although we find that the district court did not err in its evidentiary rulings, we reverse Tran’s convictions because there was insufficient evidence to support them.

I. BACKGROUND

A. The Marijuana Importation and Distribution Scheme

In June 2006, the Department of Homeland Security, Immigration and Customs Enforcement (ICE) was investigating a marijuana importation and distribution organization. Undercover federal agents arranged to rent a warehouse facility to an organization suspected of importing marijuana, while maintaining surveillance of the facility. Agents observed a trailer truck being driven into the warehouse. Then a man drove a series of different cars into and out of the warehouse. The trailer was then removed.

After monitoring the warehouse for approximately two weeks, the agents obtained a search warrant with approved delayed notification. Inside the warehouse, the agents found an insulated cargo container. Some insulation had been removed from the walls of the container to make a space for contraband.

On June 27, 2006, a new trailer was brought into the warehouse. Agents followed the same man who had been observed earlier as he drove cars into and then out of the warehouse and over to the mall. Agents stopped each car after it departed from the mall. They found marijuana in every car. In total, the agents seized approximately 344 kilograms, or over 700 pounds, of marijuana.

Tran, the defendant in this case, was a passenger in a silver Mustang, one of the cars stopped by the agents. The silver [1160]*1160Mustang was being driven by Tam Nguyen (“Nguyen”). The car was registered not to Tran or Nguyen, but to a third party. Nothing was found in the backseat of the car, but agents discovered approximately twenty-seven kilograms, or slightly over sixty pounds, of marijuana in garbage bags inside the trunk. Tran and Nguyen were promptly arrested.

B. Tran’s Trial

Tran was charged with conspiracy to possess more than 100 kilograms of marijuana with intent to distribute and two counts of possession of marijuana with intent to distribute. Nguyen, the driver of the silver Mustang, pleaded guilty to possession of marijuana with intent to distribute. Tran pleaded not guilty and proceeded to trial.

The government called Nguyen to testify against Tran. Nguyen stated that he had known Tran for about a year and that Tran had lived with him for about a month prior to their arrests. According to Nguyen, Tran was with him in the car when Nguyen picked up the marijuana, but Tran was not involved in the marijuana distribution scheme. Nguyen stated that Tran was with him at the time of their arrests because Nguyen was tired that day and asked Tran “to go hang out” with him.

The prosecuting attorney questioned Nguyen regarding how he learned of the drug transaction. According to Nguyen, he was at home alone when he received a phone call from a Vietnamese-speaking woman regarding the marijuana pick up. Nguyen stated that Tran was staying with him at the time, but was not present during the phone call. Nguyen testified that the woman gave him a code and told him that someone would call him when it was time to pick up the marijuana.

Nguyen testified that a man, later identified as Britton, the same man seen driving cars into and out of the warehouse, called him, identified Nguyen by his code, and arranged to meet him at the McDonald’s at the mall. At the McDonald’s, Tran was sitting and eating while Nguyen spoke with Britton. Britton drove away in Nguyen’s car. Half an hour later, Britton brought the car back to Nguyen. Nguyen testified that this was the first time he picked up a load of marijuana. Nguyen did not remember what he told the prosecuting attorney and an ICE agent, Agent Ingersoll, during an interview a week before he testified at trial regarding Tran’s involvement in the drug operation. He also did not remember saying in the interview that Tran set up the drug transaction. He testified that he did not know whether Tran had a connection with the people in Canada who were supplying the marijuana.

The government called Agent Ingersoll to impeach Nguyen. The district court allowed Agent Ingersoll’s testimony not for its truth, but only to impeach Nguyen’s credibility. Agent Ingersoll stated that he was present in a pre-trial interview with Nguyen, during which Nguyen told a very different story than what he had recounted at trial. According to Agent Ingersoll, Nguyen stated that he had worked for Tran, and that he expected to be paid by Tran for transporting the marijuana. According to Agent Ingersoll, Nguyen had further stated that the woman that Nguyen spoke to on the phone was a contact of Tran’s, and that Tran was standing next to Nguyen during the phone conversation. Finally, according to Agent Ingersoll, Nguyen said that Tran was with him during the marijuana exchange because it was the first time that Nguyen had picked up marijuana, and Tran was teaching him what to do.

The district court instructed the jury that Nguyen’s unsworn pre-trial statements to Agent Ingersoll were admitted only to assist the jury in judging Nguyen’s [1161]*1161credibility. The court explained that Agent Ingersoll’s testimony could not be considered for any purpose other than Nguyen’s credibility.

The government then sought to admit a redacted portion of Nguyen’s plea agreement under Federal Rule of Evidence 801(d)(1)(A).1 The Statement of Facts in the plea agreement reads in relevant part: “Tam Phy Quy Nguyen, together with Hao Quang Tran, picked up approximately 70 pounds of marijuana for redistribution that night.” Tran objected to the admissibility of the plea agreement, arguing that the statement in the plea agreement was not inconsistent with Nguyen’s in-court testimony, and that the introduction of the plea agreement would violate his right of confrontation. The district court admitted the evidence over Tran’s objection.

Under Federal Rule of Evidence 404(b)2 , the district court also admitted, over Tran’s objection, evidence that Tran had previously been involved in marijuana deals.

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Cite This Page — Counsel Stack

Bluebook (online)
568 F.3d 1156, 2009 U.S. App. LEXIS 13525, 2009 WL 1773149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-tran-ca9-2009.