UNITED STATES OF AMERICA, Plaintiff-Appellee, versus CONGHAU HUU TO a.k.a. Tigo, et al., Defendants-Appellants.
No. 96-3045
D.C. Docket No. 94-293-Cr-T-17E
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
(June 23, 1998)
Before HATCHETT, Chief Judge, EDMONDSON and COX, Circuit Judges. HATCHETT, Chief Judge:
In this complex criminal conspiracy case, we affirm the convictions and sentences of four members of a violent gang that committed a series of home and business robberies targeting Asian-American restaurant owners and managers in the Tampa, Florida area. We reverse the convictions of one alleged gang member because the evidence against him was insufficient.
On April 23, 1994, Thanh Xuan Nguyen (T.X.) and Tung Van Nguyen (Tony) went to the Saigon Palace restaurant, where they met their roommate, Tuan Duc Phung (Phung), and a number of other individuals attending a birthday party. The birthday party was for a friend of Phung‘s named Conghau Huu To (To). Before T.X. and Tony arrived at the Saigon Palace, To and An Thanh Le began plotting a scheme to rob the manager of the Big Easy restaurant, Khanh Quoc Le, who happened to be eating at the Saigon Palace. After some preliminary plotting, An Thanh Le left the Saigon Palace to obtain weapons and more manpower. An Thanh Le later returned to the Saigon Palace with weapons and two cohorts, Tam Minh Le and Dung Quoc Nguyen.
Soon after An Thanh Le returned to the Saigon Palace, Phung approached T.X. and Tony and told them to go back to their room at the Rembrandt Apartment complex, so that he could “take care of some business.” After T.X. and Tony complied with the request, Phung, To and the others spoke further about the planned robbery. Ultimately, they decided that Phung, Tam Minh Le and Dung Quoc Nguyen should actually commit the robbery. Shortly thereafter, when Khanh Quoc Le left the restaurant, Phung, Dung
Soon after the murder, T.X. and Tony began committing a series of home invasion robberies with An Thanh Le. On at least one occasion, May 13, 1994, Tam Minh Le also participated in a home invasion robbery with T.X., Tony and An Thanh Le. The robberies -- often of Asian-American restauranteurs -- did not generate much money. Frustrated with the minimal robbery proceeds, T.X. and Tony eventually complained to Phung. Phung suggested that T.X. and Tony meet with To to discuss the possibility of committing robberies with him. T.X. and Tony accepted Phung‘s suggestion and arranged for a meeting with To. During the meeting, To told T.X. and Tony that they should not deal with An Thanh Le anymore because To suspected An Thanh Le of conspiring with the Federal Bureau of Investigation (FBI). To also told T.X. and Tony about Hai Van Nguyen, who had committed robberies with To in the past.
A few days later, To, T.X. and Tony went to the Mekong restaurant in St. Petersburg, Florida, where they met To‘s partner, Hai Van Nguyen. Hai Van Nguyen introduced them to five other men who had just come to Florida from Atlanta, Georgia -- Tai Tan Pham (Pham), Liem Thanh Luong (Luong), Lap Van Le, Nguyen Tu Doan (Doan) and another individual named Lap. Hai Van Nguyen had met some of the men while on a trip to Atlanta in April 1994. During that trip, Hai Van Nguyen invited some of the Atlanta men to the Tampa area so that he could show them where they could commit robberies. The trial testimony does not establish that Pham heard this invitation before deciding to accompany the Atlanta group to the Tampa area. The trial testimony does, however, reflect that Pham‘s estranged girlfriend lived in the Tampa area, and that Pham contacted her soon after arriving from Atlanta.
As the money from the 7-Eleven robbery began to run out, To decided that the group should rob the Shanghai Buffet restaurant, where Phung worked. To discussed his plan in the presence of at least some of the others, including Pham, Tony and Lap Van Le, none of whom expressed any objections or reservations. To did not, however, immediately tell the others when the robbery would occur or the men that would participate in the robbery. On the night of May 28, 1994, To decided that it was time to commit the robbery. He paged T.X., who was at the China Town restaurant with Tony, Luong and Pham, and instructed him to return to the Expressway Inn. When T.X. arrived at the Expressway Inn, he met To, Hai Van Nguyen, Doan and Lap Van Le. To decided
To, T.X., Doan and Lap Van Le then drove to the Shanghai Buffet, armed with a .380 handgun, a BB gun and a knife. When the restaurant owners, Richard and Gina Lin, left for the evening, To and his cohorts followed the Lins home and accosted them. They tied the Lins up, covered their eyes with duct tape, and, on several occasions, threatened to kill them. One of the robbers put a knife to Gina Lin‘s neck, while another used a handgun and pointed it at the Lins’ heads. Unsatisfied with the money and jewelry found at the house, the robbers brutally assaulted Richard Lin until he acknowledged that more money was kept back at the Shanghai Buffet in a safe. To then instructed T.X. and Lap Van Le to keep Gina Lin and the Lins’ children hostage at the house while he and Doan drove Richard Lin back to the Shanghai Buffet to get the money from the safe. When To and Doan arrived at the Shanghai Buffet with Richard Lin, Lin removed $10,000 from the safe and gave it to To. The three men then returned to Richard Lin‘s house. As To and his cohorts left the Lins’ house, they told Richard Lin they would kill his whole family if he called the police.
T.X. then called Luong at the China Town and told him that the robbery was complete and that Luong should return to the Expressway Inn. Luong promptly gathered his companions and returned to the Expressway Inn. Phung also came to the Expressway
On May 30, 1994, An Thanh Le, Tam Minh Le and Dung Quoc Nguyen came to the China Town restaurant together, where To and his cohorts also happened to be dining. As An Thanh Le entered the China Town, To indicated that he wanted to shoot An Thanh Le. As noted earlier, To suspected An Thanh Le of working for the FBI. Neither To nor any of his cohorts had a weapon with them so To sent Tony back to the motel for guns.4 Tony returned with two guns and gave one to Luong, who displayed the gun openly. Hai Van Nguyen then expressed concern about any action being taken against An Thanh Le in the restaurant because he feared that one of the customers might be an FBI agent. Luong
On or about June 1, 1994, To again gathered guns and went after An Thanh Le, this time at An Thanh Le‘s home. Doan accompanied To and tried to shoot An Thanh Le with a gun that Hai Van Nguyen had previously given him. On June 15, 1994, police arrested Pham, Doan, Hai Van Nguyen, Tony, Lap Van Le, Luong and T.X. outside the China Town restaurant. Lap Van Le, Hai Van Nguyen, Doan and Pham were in Lap Van Le‘s Nissan Maxima. Tony, Luong, T.X. and a juvenile were in Tony‘s Toyota Supra. T.X. had a .380 handgun in his waistband. Luong had a 9mm Glock in his waistband. Police found a 9mm pistol, a .380 semi-automatic handgun, a semi-automatic pistol, a BB gun, a magazine for the 9mm pistol and a roll of duct tape in the Maxima. The police also noticed that three members of the group -- Doan, Pham and T.X. -- had a series of three cigarette burns on their arms, allegedly a mark of courage and loyalty. At trial, however, Pham‘s estranged girlfriend testified that Pham had inflicted at least one of the burns during an argument with her about their relationship.
II. PROCEDURAL HISTORY
On December 21, 1994, a federal grand jury in the Middle District of Florida returned a multi-count indictment against eleven defendants, including all the appellants.
Count Two charged To, Hai Van Nguyen, Lap Van Le, Phung, Pham, Luong, Tony, Doan, An Thanh Le, Tam Minh Le and Dung Quoc Nguyen with conspiring to engage in racketeering, in violation of
Six defendants, Tony, An Thanh Le, Lap Van Le, Dung Quoc Nguyen, Doan and Phung, pleaded guilty to certain of the counts.
On February 6, 1996, trial commenced against the five remaining defendants, To, Hai Van Nguyen, Pham, Luong and Tam Minh Le. Following the conclusion of the government‘s case, the district court dismissed racketeering acts three and four, the May 7 and 13, 1994 home-invasion robberies, on the ground that they were part of a different enterprise.
On March 1, 1996, the jury found To guilty of all nine counts and racketeering acts 1(a), 1(b), 2(a), 2(b), 5, 6 and 7(b); Hai Van Nguyen guilty of Counts One, Two, Three and Six, the four counts against him, including racketeering acts 1(a), 1(b) and 6; Pham guilty of Counts Two, Three and Six, the three counts against him; Luong guilty of Counts Two, Three and Six, the three counts against him; and Tam Minh Le guilty of
On July 16, 1996, the district court sentenced the appellants. To received a sentence of life imprisonment plus forty-five years. Tam Minh Le received a sentence of 420 months of imprisonment. Hai Van Nguyen received a sentence of 165 months of imprisonment. Pham and Luong each received sentences of 57 months of imprisonment.
III. ISSUES
We discuss the following issues: (1) whether the district court erred in denying Pham‘s motion for a judgment of acquittal and alternative motion for a new trial based on the alleged insufficiency of the evidence; and (2) whether the evidence against Tam Minh Le was insufficient to justify his convictions on the RICO conspiracy and substantive RICO counts.5
A. Standards of Review
Whether the record contains sufficient evidence to support the jury‘s verdict is a question of law subject to de novo review. United States v. Harris, 20 F.3d 445, 452 (11th Cir.), cert. denied, 513 U.S. 967, 1031, 1032 (1994). When conducting the review of the record, we view “the evidence in the light most favorable to the government and resolve all reasonable inferences and credibility evaluations in favor of the jury‘s verdict.” United States v. High, 117 F.3d 464, 467 (11th Cir. 1997). We must uphold the jury‘s verdict whenever a reasonable factfinder could conclude that the evidence establishes guilt beyond a reasonable doubt. High, 117 F.3d at 467-68.
A district court‘s order denying a motion for a new trial based on the weight of the evidence is subject to review for abuse of discretion. United States v. Cox, 995 F.2d 1041, 1044 (11th Cir. 1993).
B. The Counts Against Tam Minh Le and Pham
As noted above, the jury convicted both Tam Minh Le and Pham of RICO and Hobbs Act related offenses. Both men were convicted on Count Two, the RICO conspiracy, and Count Three, the Hobbs Act conspiracy. Tam Minh Le was also convicted on Count One, the substantive RICO offense; Count Four, the attempted Hobbs Act robbery of Khanh Quoc Le; and Count Seven, for carrying a firearm during the
1. The RICO Conspiracy
To establish a RICO conspiracy, the government needed to prove that Tam Minh Le and Pham “objectively manifested, through words or actions, an agreement to participate in ... the affairs of [an] enterprise through the commission of two or more predicate crimes.” United States v. Starrett, 55 F.3d 1525, 1543 (11th Cir. 1995) (quoting United States v. Russo, 796 F.2d 1443, 1455 (11th Cir. 1986)), cert. denied, 517 U.S. 1111, 1127 (1996). As we assess that proof, “[t]he focus is on the agreement to participate in the enterprise through the pattern of racketeering activity, not on the agreement to commit the individual predicate acts.” Starrett, 55 F.3d at 1543. The enterprise need not be a legal entity such as a corporation or partnership; it may also be “a group of persons associated together for a common purpose of engaging in a course of conduct.” United States v. Turkette, 452 U.S. 576, 583 (1981).
Regardless of the method used to prove the agreement, “the government does not have to establish that each conspirator explicitly agreed with every other conspirator to commit the substantive RICO crime described in the indictment, or knew his fellow conspirators, or was aware of all the details of the conspiracy.”
Starrett, 55 F.3d at 1544 (quoting United States v. Pepe, 747 F.2d 632, 659 (11th Cir. 1984)). Moreover, the fact that “each conspirator may have contemplated participating in different and unrelated crimes is irrelevant.” Starrett, 55 F.3d at 1544 (internal quotation marks omitted).
Tam Minh Le and Pham both argue that the government failed to prove their intent to participate in the affairs of an enterprise through a pattern of racketeering activity.
Tam Minh Le echoes Pham‘s arguments, but with a slight variance. Tam Minh Le concedes his involvement in the murder of Khanh Quoc Le, but denies that his involvement in that offense may serve as a basis for RICO conspiracy liability. According to Tam Minh Le, his involvement with the alleged enterprise began and ended at Saigon Palace on the night Khanh Quoc Le died, save for the day in late May 1994 when he accompanied An Thanh Le to the China Town Restaurant. The fact that Tam Minh Le knew or associated with some of the enterprise members is, Tam Minh Le contends, of no consequence as RICO does not punish mere association with conspirators or simple knowledge of illegal activity.
The government counters that it introduced ample evidence that Tam Minh Le and Pham agreed to an overall conspiracy objective to support the enterprise through a series of robberies within the Asian-American community. With respect to Tam Minh Le
Although it is a close call, we find the government‘s argument and proffered evidence too attenuated to sustain the RICO conspiracy conviction against Pham. We base our conclusion, in large part, on our holding in United States v. Gonzalez, 921 F.2d 1530 (11th Cir.), cert. denied, 502 U.S. 827, 860 (1991). In Gonzalez, we considered the arguments of several individuals convicted of RICO conspiracy for their involvement in a drug importation ring. 921 F.2d at 1532. All of the individuals made arguments challenging the legal sufficiency of the evidence underlying their convictions. 921 F.2d at 1539. Two of the arguments advanced in Gonzalez are relevant to our
Even if we assume that Pham was a willing accomplice to the robbery of the Lins, that fact alone would not prove that he agreed to an overall objective of supporting the enterprise through a series of robberies within the Asian-American community. The government offered no proof that Pham was present when Hai Van Nguyen recruited some of Pham‘s fellow Atlantans to Tampa for the general purpose of committing robberies. Nor did the government offer proof that Pham had a criminal relationship with the other Atlantans that predated his decision to accompany them to the Tampa area. The
The evidence of Tam Minh Le‘s participation in a RICO conspiracy is, in our view, much stronger and sufficient to sustain his conviction on Count Two. We reach this conclusion based, again, on our holding in Gonzalez. In that case we considered an argument from one individual, Michael Timothy Sweeton, that was premised on the fact that he was linked to only one incident of drug importation. 921 F.2d at 1542-45. We first determined that the test for establishing Sweeton‘s RICO conspiracy liability under such facts was the “single objective” test. 921 F.2d at 1542-43. Under this test, we indicated that the government needed to show Sweeton‘s agreement to commit personally two predicate acts. 921 F.2d at 1543. After finding that Sweeton had committed two predicate acts in connection with the single incident of drug importation, we then considered the impact of the fact that the two acts occurred in close temporal proximity. 921 F.2d at 1545. We concluded that predicate acts occurring in close temporal proximity may satisfy RICO‘s pattern requirement if “the predicates themselves amount to, or ... otherwise constitute a threat of continuing racketeering activity.” 921 F.2d at 1545 (internal quotation marks omitted) (emphasis in original). We then quoted the following explanation of our conclusion from the Supreme Court‘s decision in H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229 (1989):
Though the number of related predicates involved may be small and they may occur close together in time, the racketeering acts themselves [may] include a specific threat of repetition extending indefinitely into the future,
and thus supply the requisite threat of continuity. In other cases, the threat of continuity may be established by showing that the predicate acts or offenses are part of an ongoing entity‘s regular way of doing business. Thus, the threat of continuity is sufficiently established where the predicates can be attributed to a defendant operating as part of a long-term association that exists for criminal purposes.
Gonzalez, 921 F.2d at 1545 (alteration in original). Finally, turning to Sweeton‘s specific argument, we found that RICO‘s pattern requirement was met in his case because his actions, albeit close in time, took place as part of the enterprise‘s drug importation operation, an operation that existed before Sweeton‘s involvement and continued to exist after Sweeton‘s involvement ended. 921 F.2d at 1545. Because the enterprise‘s operations were ongoing, we reasoned, the “threat of continuing racketeering activity was present, and was, in fact a threat fulfilled.” 921 F.2d at 1545.
Applying the rationale of Gonzalez to Tam Minh Le‘s case, we conclude that Tam Minh Le‘s conviction must be affirmed. The evidence is sufficient to show that he personally committed three predicate acts: conspiracy to commit a Hobbs Act robbery; attempted Hobbs Act robbery; and murder. Although the acts all occurred within a span of several hours, To, Phung and An Thanh Le -- all enterprise members -- were also deeply involved in the incident, and the targeted victim, an Asian-American restauranteur, fit the profile that the enterprise specialized in robbing. Because the enterprise continued to exist and continued targeting Asian-Americans in general -- and restauranteurs in particular -- a reasonable juror could conclude that the threat of continuing racketeering activity was present in this case. Gonzalez, 921 F.2d at 1545.
Having concluded that Tam Minh Le‘s conviction for RICO conspiracy must be affirmed, we also conclude that his convictions must be upheld on the other counts against him. To establish a substantive RICO violation under
Tam Minh Le argues that the evidence in this case failed to establish elements four and five. With respect to element five, Tam Minh Le‘s argument mirrors his argument regarding his RICO conspiracy liability. We reject the argument for the reasons stated above. With respect to element four, Tam Minh Le argues that he cannot be held liable under the so-called Reves operation or management test which this court adopted in Starrett, because he did not implement any enterprise decisions relating to any enterprise activities subsequent to the attempted robbery and murder of Khanh Quoc Le. See Starrett, 55 F.3d at 1542. This argument is unavailing because Tam Minh Le‘s knowing commission of multiple predicate acts in connection with the attempted robbery and
3. The Hobbs Act Conspiracy and Hobbs Act Robbery of the Lins
To prove a Hobbs Act conspiracy under
Pham argues that the evidence presented at trial in this case establishes nothing more than his mere association with the individuals conspiring to commit Hobbs Act robberies. The government contends that the jury was entitled to infer Pham‘s knowing and voluntary participation in the Hobbs Act conspiracy from the following evidence: (1) his presence during discussions of the planned robbery; (2) his decision not to object to the plan; (3) his waiting with Luong at the China Town during the Lin family robbery; (4) his decision to return to the Expressway Inn with Luong following the robbery; and (5) his receipt of some of the robbery proceeds following the robbery. Although we find the issue close, we ultimately agree with Pham that the government‘s evidence was insufficient, even when viewed in the light most favorable to the government. The
Because the government‘s only theory of support for the substantive Hobbs Act count against Pham is based on so-called Pinkerton doctrine liability, i.e., the view that each member of a conspiracy is liable for all reasonably foreseeable crimes committed during and in furtherance of the conspiracy, we also reverse Pham‘s conviction on Count Six, the Hobbs Act robbery of the Lins. See Pinkerton v. United States, 328 U.S. 640 (1946).
V. CONCLUSION
Because the evidence was insufficient to support the convictions of Pham, we reverse on all counts against him. We affirm the convictions and sentences of all the other appellants.
AFFIRMED IN PART and REVERSED IN PART.
HATCHETT
CHIEF JUDGE