UNITED STATES OF AMERICA, Plaintiff, v. TONY SAELEE, Defendant.
Case No. 18-CR-199-CRB
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
April 10, 2020
CHARLES R. BREYER, United States District Judge
In December 2019, Defendant Tony Saelee was convicted of attempted possession of MDMA with intent to distribute, and conspiracy to distribute and possess with intent to distribute MDMA. See Verdict Form (dkt. 103). He now moves for a judgment of acquittal or a new trial, arguing that (A) there was insufficient evidence to prove both counts; (B) the Court erred by declining to give a lesser included offense instruction; (C) the government‘s questioning led to the admission of un-Mirandized statements that the Court had ordered excluded; and (D) the Court also admitted other prejudicial evidence. See Mot. (dkt. 112) at 1. A judgment of acquittal is unwarranted, because a rational jury could have convicted—indeed, did convict—Saelee of both counts. Nor is a new trial warranted based on either the jury instructions or evidentiary rulings.1
I. BACKGROUND
Saelee was initially indicted in May 2018. See Indictment (dkt. 9). In July 2018, a grand jury charged Saelee with (1) violation of
At the conclusion of a three day trial, the jury convicted Saelee on December 11, 2019, on both counts. See Jury Trial (dkts. 96, 98, 100); Verdict Form. He now moves for a judgment of acquittal or, in the alternative, a new trial.
II. LEGAL STANDARD
A. Rule 29 Acquittal Standard
Federal Rule of Criminal Procedure 29 provides that “the court on the defendant‘s motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.”
B. Rule 33 New Trial Standard
Federal Rule of Criminal Procedure 33 provides that “[u]pon the defendant‘s motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.”
III. DISCUSSION
Saelee argues (A) that the Court should acquit him on Counts One and Two, because the government did not establish the alleged conspiracy. He argues next that he is entitled to a new trial, because: (B) the Court did not give a lesser included offense instruction; (C) the Court admitted an un-Mirandized statement that it had excluded pre-trial; and (D) the Court admitted additional prejudicial evidence. The Court rejects each of these arguments.
A. Failure to Establish Conspiracy
Saelee argues first that the Court should acquit him on Counts One and Two “because the Government failed to independently establish the alleged conspiracy.” See Mot. at 4. The conspiracy is the basis of Count Two (Conspiracy to Distribute and Possess), but not a part of Count One (Attempted Possession), and so this argument is a non-starter for Count One.2 As to Count Two, however, Saelee argues that the government introduced the text messages from his
“A co-conspirator‘s statement is admissible against a defendant under the Federal Rules of Evidence if ‘a conspiracy existed at the time the statement was made; the defendant had knowledge of, and participated in, the conspiracy; and the statement was made in furtherance of the conspiracy.‘” United States v. Loya-Chavez, 3 F. App‘x 628, 629 (9th Cir. 2001) (quoting United States v. Bowman, 215 F.3d 951, 960–61 (9th Cir. 2000);
While M.N.‘s statements in the text exchange are hearsay that must meet the exception for coconspirator statements,4 Saelee‘s are not. See United States v. Reed, 726 F.2d 570, 580 (9th Cir. 1984) (“‘defendant‘s own statements are admissions wholly apart from the coconspirator exception and as such are admissible as nonhearsay‘“) (quoting United States v. Perez, 658 F.2d 654, 659 (9th Cir. 1981)). Saelee‘s words—saying that he would set an alarm before the package arrived, saying that he would leave his door open to hear the delivery person, saying okay when told that the package was delayed two days, and asking “Did it said delivered” in response to M.N.‘s inquiry about the packages (while not saying anything about the pills)—support the notion that he was a knowing participant in a conspiracy with M.N. When the packages that originally contained thousands of Ecstasy pills arrived via controlled delivery, Saelee received them, said
The evidence involving Saechao also supports the existence of a conspiracy. Saelee agreed to sell Saechao 100 Ecstasy pills just days before the controlled delivery. Trial Ex. 47.5 Saechao also testified that he had previously bought drugs from Tony through his partners at clubs. See Tr. Transcript of 12/10/19 (dkt. 108) at 65:7–8 (“His friends gave me the pill, but I know for myself it‘s coming from him.“); 65:11–15 (Q. “. . . . So you‘re making requests of ecstasy from Tony‘s partners?” A. “Yeah.” Q. “And they‘re giving you ecstasy?” A. “Yeah.“); 65:20 (“I know it comes from him.“); id. at 66:16–19 (A. “. . . . He give it to somebody else to give it to me, but I know it‘s his.” Q. “Bottom line, you know it‘s Tony‘s ecstasy?” A. “Yeah. Yeah.“).6 Saelee‘s exchange with Saechao days before the Ecstasy at issue in this case was expected to arrive, and Saelee‘s practice of dealing Ecstasy to Saechao though friends/partners, both give context to the messages from M.N. about the important packages that were arriving.
The government did not rely on “‘[e]vidence of wholly innocuous conduct.‘” See Castaneda, 16 F.3d at 1507. It demonstrated by a preponderance of the evidence that “a conspiracy existed at the time [M.N.‘s] statement[s were] made; [Saelee] had knowledge of, and participated in, the conspiracy; and [M.N.‘s statements were] made in furtherance of the conspiracy.‘” See Loya-Chavez, 3 F. App‘x at 629. The Court therefore did not abuse its discretion by admitting M.N.‘s statements. In light of Saelee‘s exchanges with M.N., and all of the other evidence, viewed in the light most favorable to the prosecution, the evidence was
The motion for acquittal is therefore DENIED.
B. Lesser Included Offense Instruction
Saelee argues next that he is entitled to a new trial because the Court improperly declined to give his proposed lesser included offense instruction. See Mot. at 14–17. Saelee asked the Court to give an instruction on “simple possession of a controlled substance.” See Proposed Jury Instructions (dkt. 73) at 58. He also requested that instruction at the charging conference. Trial Tr. of 12/10/19 at 169:2–6.8 A court must give a lesser-included instruction where (1) “the elements of the lesser offense are a subset of the elements of the charged offense,” and (2) “the evidence would permit a jury rationally to find [the defendant] guilty of the lesser offense and acquit [him] of the greater.” United States v. Arnt, 474 F.3d 1159, 1163 (9th Cir. 2007) (quoting Schmuck v. United States, 489 U.S. 705, 716 (1989) and Keeble v. United States, 412 U.S. 205, 208 (1973)).
As the government pointed out pretrial, Saelee was not charged with possession with intent to distribute; he was charged with attempted possession with intent to distribute, and with conspiracy to distribute and possess with intent to distribute. See Superseding Indictment; Proposed Jury Instructions at 59. Saelee need not have possessed the Ecstasy in order to have committed either of the charged crimes. Simple possession is simply not a subset of the elements of those offenses, as the Court explained at the charging conference. See Trial Tr. of 12/10/19 at 169:15–17. Moreover, as the government points out now, “in this case, Saelee never actually possessed the Ecstasy pills from the packages—the pills were replaced with sham drugs before the delivery—yet he could be, and in fact was, still guilty of conspiring with his roommate to distribute and possess with intent to distribute those pills.” Opp‘n at 12. He therefore fails to
The Court‘s declination to give Saelee‘s lesser included offense instruction does not warrant a new trial.
C. Un-Mirandized Statement
Saelee next argues that the admission of un-Mirandized statements so tainted the proceedings as to require a new trial under Rule 33. See Mot. at 20–23. Pretrial, the Court had excluded Saelee‘s un-Mirandized statement that the room the packages were found in was his bedroom. See MIL (dkt. 65); Motion Hearing 12/3/19 (dkt. 93). Notwithstanding that ruling, at trial, in response to the question “When you talk about a room identified as the defendant‘s room, what do you mean,” an agent testified, “There was a room in the apartment that was the middle room between the other two I discussed. That room was identified as the defendant‘s room. He had his wallet in there and he said that—he told us that was his room.” Trial Tr. Vol. I at 82–83. Defense counsel objected and move to strike, and, after a sidebar, the Court instructed the jury as follows:
Okay. Ladies and gentlemen, there was some testimony, recent testimony, as to a statement made by the defendant. Because there was an understanding that no statements of the defendant are going to be admitted in this case, accordingly, you are—that statement is stricken and you are admonished to disregard it.
Id. at 83.
Saelee argues that “[t]here was no ‘understanding‘” and the Court‘s choice of language suggested that the defense might have bargained something away to hide something about Saelee,
The Court has no reason to believe that the government deliberately solicited the trial testimony at issue. See Trial Tr. Vol. 1 at 82:21. The Court‘s use of the word “understanding” in its curative instruction was intended to be broad, and to convey to a jury of laypeople that Saelee‘s statement was not supposed to come in, without confusing them by describing the legal process by which the Court made that determination. Nor did the curative instruction prompt Saelee to object or move for a mistrial at the time. Courts “normally presume that a jury will follow an instruction to disregard inadmissible evidence inadvertently presented to it, unless there is an ‘overwhelming probability’ that the jury will be unable to follow the court‘s instructions, and a strong likelihood that the effect of the evidence would be ‘devastating’ to the defendant.” Greer v. Miller, 483 U.S. 756, 766 n.8 (1987) (internal citations omitted).
The government did not bring up the statement again. And there was other evidence that the packages were in Saelee‘s room. See Trial. Tr. of 12/10/19 at 15:11–12 (parcels in Room C); id. at 16:4–6 (fishing equipment in Room C); id. at 20:13–19 (Saelee‘s wallet and fishing equipment in Room C); Tr. Ex. 27 (photo of Room C). Moreover, there was no dispute that the packages were addressed to Saelee‘s alias, that Saelee accepted the packages during the controlled delivery, that he said that he was expecting them, and that he took them inside. Saelee‘s admission about his bedroom preserved his defense that he accepted delivery of the packages as a favor for his roommate but did not know what was inside of them. See Trial Tr. of 12/11/19 (dkt. 118) (Saelee closing argument) at 32:15–16 (“I think we‘ll all look at accepting packages differently after having the experience of this case.“).
The admission of the un-Mirandized statement does not warrant a new trial.
D. Additional Evidentiary Rulings
Finally, Saelee argues that the Court made a number of evidentiary rulings that constitute
Saelee argues that the texts and messages he had with Saechao were not a part of the conspiracy and therefore only served to attack Saelee‘s character. Id. at 24–26. The text messages came just days before the controlled delivery and involved Saelee agreeing to sell over $1,000 worth of Ecstasy. See Trial Ex. 47. This was not character evidence—it was evidence of Saelee‘s contemporaneous involvement in drug dealing and his conspiracy with M.N., which is highly relevant.
Saelee also argues that the Court erred by admitting evidence that agents found ammunition in Saelee‘s apartment. Mot. at 26–29. The Court only admitted such evidence after Saelee cross-examined Agent Anderson about the controlled delivery, the number of individuals involved in the operation, and whether they were searching for weapons. See Trial Tr. Vol. 2 at 127:19–130:10 (series of questions about operation plan, ending with, “And you weren‘t searching for weapons or anything like that; right?“). Saelee‘s counsel argued at sidebar that “there were no weapons found and the officer wasn‘t expecting weapons to be there. . . . There‘s no history of Mr. Saelee having any guns.” Id. at 131:19–23. As the Court explained at the time, “The ammunition was kept out because of its prejudicial effect being greater than its probative value,” but that having raised the issue of weapons, defense counsel opened the door to the evidence of ammunition. Id. at 132:11–133:14.9 The evidence of ammunition prevented the jury from being misled.
Lastly, Saelee argues that the Court erred in admitting photographs on Saelee‘s phone of his bank account, a wad of $100 bills, and a large bag of marijuana. Mot. at 29–31. The government noted at the time it introduced the photo of Saelee‘s retirement account included the words “Good morning, Tony,” demonstrating that it was indeed Saelee‘s phone. See Trial Ex. 56;
The admission of the challenged evidence does not warrant a new trial. The motion for a new trial is therefore DENIED.
IV. CONCLUSION
For the foregoing reasons, the Court DENIES Saelee‘s motion.
IT IS SO ORDERED.
Dated: April 10, 2020
CHARLES R. BREYER
United States District Judge