United States v. David Thai, Lan Ngoc Tran, Minh Do, Jimmy Nguyen, Hoang Huy Ngo, Quang Van Nguyen, and Lv Hong, A/K/A "l.v. Hong"

Citations: 29 F.3d 785; 40 Fed. R. Serv. 1387; 1994 U.S. App. LEXIS 17325Docket: 92-1700

Court: Court of Appeals for the Second Circuit; July 11, 1994; Federal Appellate Court

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Defendants David Thai, Lan Ngoc Tran, Minh Do, Jimmy Nguyen, Hoang Huy Ngo, Quang Van Nguyen, and LV Hong appeal convictions from the United States District Court for the Eastern District of New York. They were found guilty after a jury trial, presided over by Judge Carol Bagley Amon, for various crimes related to their involvement in a street gang, including murder, robbery, and extortion. All defendants were convicted of violating the Racketeer Influenced and Corrupt Organizations Act (RICO) for participating in a racketeering enterprise. 

David Thai faced additional convictions on 14 counts, including conspiracy to commit murder and assault in aid of racketeering, multiple counts of conspiracy to obstruct commerce via robbery or extortion under the Hobbs Act, and firearm-related offenses. Lan Ngoc Tran was convicted on seven counts, including conspiracy to commit murder and multiple counts of obstruction of commerce. Minh Do, Jimmy Nguyen, Hoang Huy Ngo, Quang Van Nguyen, and LV Hong each received one additional count for conspiracy to obstruct commerce.

Thai was sentenced to two concurrent life terms, along with additional concurrent prison terms totaling 33 years and three years of supervised release. He was also ordered to pay $413,285 in restitution.

Lan Tran received two concurrent life sentences, along with an additional twenty-year and ten-year term, both served concurrently with his life sentences, followed by two concurrent three-year supervised release terms. Jimmy was similarly sentenced to two concurrent life terms and an additional twenty-year term, with one three-year supervised release to follow. Other defendants received varying terms of imprisonment, all followed by three concurrent three-year supervised release terms: Minh Do (130 months), Hoang Ngo (188 months), Quang (168 months), and LV Hong (121 months). On appeal, the defendants challenged their convictions on several grounds, including the use of an anonymous jury, prosecutorial conduct, evidentiary rulings, and the sufficiency of the evidence, as well as aspects of their sentencing. The court reversed Thai's conspiracy conviction and remanded for resentencing but affirmed all other aspects of the case.

The appeals arose from the prosecution of seven defendants associated with the gang "Born To Kill" (BTK), involved in violent crimes like robbery and extortion. The government presented extensive evidence, including testimonies from over 80 witnesses and physical evidence such as firearms and explosives. Thai led BTK from 1988 until his arrest in 1991, overseeing operations and planning crimes. Lan Tran and LV Hong were key assistants, with Lan supervising gang members and participating in crimes, while LV managed internal discipline and extortion activities. BTK primarily consisted of young Vietnamese males living in communal safehouses, with strict discipline enforced through violent measures. The gang operated mainly in New York City's Chinatown, targeting primarily Asian victims based on a belief they would be less likely to report crimes. Robberies were meticulously planned by Thai, who chose victims and orchestrated the crime details, while extortion involved regular collections from local Asian businesses.

Gang members recorded store addresses and amounts collected under the supervision of LV Hong, who managed operations and dealt with non-compliant merchants through violence. A 21-count indictment charged the gang and its members with racketeering and RICO conspiracy, alongside various other offenses. 

Key incidents include:

1. **W.C. Produce Robbery and Cuong Pham’s Death**: In August 1990, gang members, including Jimmy, robbed W.C. Produce in Chinatown, wielding guns and assaulting employees. During the robbery, Jimmy attempted to shoot the store owner but accidentally killed gang member Cuong Pham instead. The robbers escaped with approximately $3,000 in cash and jewelry.

2. **Bangkok Health Spa Robbery**: In November 1990, under instructions from Thai, gang members Lan Tran, Kenny Vu, and others robbed the Bangkok Health Spa in Bridgeport, Connecticut. Lan Tran forced an employee, Chin Suk Ruth, to open the door for the others, where they threatened and assaulted employees and customers while searching for valuables. They stole money, a VCR, and personal items from Ruth, threatening her life if she contacted the police.

3. **Vientiane Restaurant Robbery**: Shortly after, Thai directed another robbery at the Vientiane Restaurant in Bridgeport. Lan Tran entered first, herding employees into a back room as Kenny Vu and another member joined. They stole cash from the register and jewelry from patrons, disconnecting telephones before leaving. Lan Tran threatened the owner with his gun during the escape. 

These incidents illustrate the organized and violent nature of the gang's criminal activities.

Robbers went to the Bridgeport house, where gang members, including Thai, received approximately $5,000 from a robbery. In late November 1990, Thai informed Tinh Ngo and other gang members of a planned robbery in Georgia. The group met in Gainesville, where they stayed at Hoang Ngo's uncle's home. Thai and several members, including Hoang Ngo and Lan Tran, strategized the robbery at the San Wa Fine Jewelry store in Doraville. Thai assessed the store as an easy target.

On the day of the robbery, ten gang members traveled in three cars to a parking lot near the store. Nicky entered the store under the pretense of needing a necklace repair, then took Kim Lim and her daughters hostage at gunpoint. Lan Tran stole money from the safe while Tinh Ngo broke displays for jewelry, and Kenny Vu guarded the entrance. During the robbery, Tan Lai attacked Odum Lim, stabbing him multiple times, and Lan Tran ultimately shot Lim in the head. The gang escaped with over $53,000 in cash and jewelry, which they handed over to Thai, who later distributed $400-500 to each member and instructed them to return to New York.

Odum Lim survived the attack after nearly a month in the hospital. Shortly before the jewelry store robbery, Quang suggested another heist at the Asian Market in Tennessee. On November 22, 1990, Jimmy and another gang member entered the store, then later returned to rob Ms. Quang Nguyen at gunpoint, stealing her bag containing approximately $4,000 in cash and $62,000 worth of jewelry.

Ms. Nguyen was forcibly restrained and assaulted by gang members, including being bound with plastic tape and pistol-whipped. One gang member stabbed a bag of rice near her until she lost consciousness. Following this, the gang returned to a Gainesville house and handed over the stolen items to a member named Thai.

In early 1991, Thai organized a robbery at Golden Star Jewelry Store, selecting gang members, including Jimmy, to participate. On January 21, 1991, armed members entered the store, ordered employees and the owner, Sen Van Ta, to lie down, and robbed them of jewelry and cash, during which several employees were assaulted. Police pursued the robbers as they fled in a blue Cadillac, whereupon guns and ammunition were discarded. The Cadillac eventually crashed, leading to the arrest of driver Hoang Ngo and three other gang members, with some stolen jewelry recovered.

That night, Jimmy, who was not in the Cadillac, delivered a bag of jewelry from the robbery to Thai. The arrested gang members later pleaded guilty to robbery charges.

After the robbery, Sen Van Ta identified several robbers in a line-up, prompting BTK members to attempt to intimidate him into not testifying. Thai spoke to Ta and an employee, claiming to have convinced them not to testify. Ta received an anonymous threatening letter, and Thai later pressured him to deny the robbers’ identities in court. 

In February 1991, after Ta refused extortion demands from LV Hong and other gang members, he reported the threats to police, leading to the arrest of LV Hong and another member, who were subsequently released. Following their release, LV Hong informed Thai about Ta’s police report, leading to a plot to eliminate Ta. On March 10, 1991, Lan Tran fatally shot Ta in the store.

In March 1991, E5 Communications, a key supplier for BTK, refused to provide free beepers to certain members, including LV Hong. LV Hong later pressured E5 for free services, asserting his influence in the area.

E5 Communications faced intimidation and extortion from the BTK gang, which began with threats for free beeper services. After E5 refused to comply, LV Hong suggested robbing the store, leading to a robbery on March 25, 1991, where gang members, armed with guns, assaulted employees and stole cash, jewelry, and a telephone. Following the robbery, Kenny Vu informed E5 that the robbery was a consequence of their refusal to provide beepers for free to gang members.

BTK members frequently demanded discounted beeper services, threatening disruption if their requests were denied. E5 received threats of violence, including bomb threats, prompting them to eventually offer a 33% discount to the gang. However, gang members sometimes refused to pay even this reduced rate. In early 1991, after E5 deactivated beepers for non-payment, Minh Do and LV Hong insisted on reactivating them, resorting to intimidation to achieve their demands.

On April 15, 1991, Nigel Jagmohan and other gang members committed a robbery at a jewelry store but crashed their getaway car. Afterward, LV Hong and Thai confronted Jagmohan at a safehouse, attempting to force him to reveal the location of stolen jewelry. They physically assaulted him for about 30 minutes before ceasing when they concluded he had no further information, leaving him injured and bleeding.

In early May 1991, Thai and Lan Tran planned another robbery, this time targeting the Ming Jewelry Store in Rochester, enlisting Tinh Ngo and others to participate in the operation.

Thai instructed gang members to shoot store employees in the head if they resisted during a robbery. Tinh Ngo, who had become a government informant, alerted law enforcement about the planned robbery, leading to the gang's detention and the discovery of weapons in their vehicles. However, to protect Tinh, the police released the gang members, claiming they were stopped due to resembling drug traffickers.

In early August 1991, Thai informed Tinh that he had been offered $10,000 to bomb the Pho Bang Restaurant. After a previous failed bombing attempt by Minh Do, Thai provided Tinh with a homemade bomb and directed him to find a new accomplice. Tinh recruited Tom, with another gang member, Hai, agreeing to be a lookout. However, police arrested Tom and Hai before they could execute the bombing.

At the same time, Thai and Lan Tran conspired to rob Sun Moon Trading in Manhattan. They planned for accomplices to pose as federal agents to gain entry. On the day of the robbery, Thai dropped off Lan Tran and LV Hong but later abandoned the plan when their accomplices noticed police surveillance.

In August 1991, many BTK members were arrested, leading to a 21-count superseding indictment against 12 defendants, including the seven appellants, charged with racketeering activities under RICO. Thai and Lan Tran faced additional charges for conspiring to murder Sen Van Ta and for the bombing conspiracy. Thai also faced multiple counts of Hobbs Act conspiracy related to various robbery plans. Other appellants were charged with Hobbs Act conspiracy based on their involvement in specific robberies.

The seven appellants were tried together, resulting in convictions for most counts, while an eighth defendant, David Nguyen, was acquitted of all charges. Thai and Lan Tran were acquitted of one robbery conspiracy count but convicted on all other counts, while the remaining defendants were convicted on all charges against them.

Appellants were sentenced and subsequently appealed their convictions, raising multiple challenges. Key arguments include due process violations related to jury proceedings, the admission of hearsay testimony regarding Sen Van Ta, and the inclusion of evidence pertaining to "other crimes." Minh Do raised claims of prosecutorial misconduct related to the handling of evidence, while Lan Tran and Jimmy contested victim identifications. Quang challenged the sufficiency of evidence for his RICO convictions and Thai questioned the evidence supporting his Sec. 1959 conviction linked to the Pho Bang bombing conspiracy. Only Thai's sufficiency challenge warranted reversal.

Defendants focused on jury-related issues, contesting the use of an anonymous jury and alleging premature deliberations and confusion in the jury's verdict. The precedent establishes that anonymous juries can be justified when there is a risk of tampering or when pretrial publicity has been extensive, particularly in violent cases. If justified, courts must protect defendants' rights through careful voir dire and appropriate reasoning for juror anonymity. In this instance, the government justified the anonymous jury request based on evidence of intimidation and threats by the defendants against victims, including the murder of Sen Van Ta. The district court deemed the reasons for empaneling an anonymous jury compelling, citing direct attempts by defendants to interfere with the judicial process as a significant factor.

The court determined that the case had garnered significant media attention and that the violent nature of the crimes, along with the defendants' extensive criminal records, created a legitimate safety concern for jurors. Consequently, the court decided to implement an anonymous jury to safeguard juror privacy and mitigate potential intimidation. A 68-question juror questionnaire was developed, with input from both parties, to assess possible juror bias and personal backgrounds. The questionnaire included an explanation for the anonymity, framing it as a standard practice in federal court to protect jurors' privacy.

The court's decision to use an anonymous jury was supported by evidence of the defendants' attempts to undermine the judicial process through intimidation and violence, and there was no abuse of discretion in this choice.

Additionally, defendants claimed they were denied a fair trial due to the jury's premature deliberations, which allegedly occurred three times despite court instructions to refrain from discussing the case until all evidence was presented. The first incident involved a juror's request for a translator, prompting the court to reiterate the prohibition on discussions. No objections or mistrial motions were raised by the defendants regarding this matter. 

In the second incident, a jury note sought clarification on the identification of defendants during witness testimony, which the court found to be a reasonable concern. Defense counsel echoed this concern, leading to an agreement on the need for clearer identification during the trial.

The court informed the jury that any confusion regarding the defendants' names would likely be resolved. It reiterated that the jury should refrain from discussing the case until all testimony and summations were complete and legal instructions were provided. A subsequent jury note requested clarification on the testimony but confirmed no premature discussions had taken place. The jurors acknowledged the importance of following the court's procedures. During cross-examination, two jurors expressed concerns about another juror's demeanor, describing it as "obnoxious," but no mistrial motion was made, and the court deemed no immediate action necessary. The handling of juror misconduct allegations falls under the trial court's discretion, which has broad authority unless external influences are involved. The court's reiteration of cautionary instructions is often sufficient. The district court's approach to juror conduct was deemed appropriate, as the notes indicated only confusion over names and not substantive discussions, and no evidence of further premature deliberations emerged.

Defendants' claim that complaints from two jurors about a fellow juror being "obnoxious" indicated ongoing case discussion is dismissed as unfounded. No defendant objected to the court's management of these incidents, eliminating grounds for appellate relief. Hoang Ngo's argument that juror confusion over names led to his conviction and denied him due process is also rejected. While similar names among defendants raised initial concerns, the court implemented measures to minimize confusion, such as having witnesses clearly identify defendants and allowing them to stand during testimony for visual confirmation. Instances of confusion occurred early in the trial, but the record shows no ongoing issues. The successful acquittal of co-defendant David Nguyen, despite name similarities, further undermines claims of juror confusion. The evidence against Hoang Ngo was substantial, including testimony linking him to two robbery predicate acts and his guilty plea in state court for one of them. Overall, the evidence sufficiently supported the defendants' convictions, with no signs of juror confusion. Minh Do's assertion of prosecutorial misconduct due to pretrial evidence disclosure failures, while noted as concerning, does not warrant reversal of his conviction. The government provided defendants with tape recordings made by a confidential informant and a transcript book prior to trial, although the completeness of this book is questioned.

Minh Do's counsel, during her opening statement, informed the jury that they would hear tapes and see videos of Minh Do's activities, attempting to portray him as an innocent young man navigating a foreign environment. However, a recorded conversation presented by the government during Tinh Ngo's testimony revealed Minh Do discussing a robbery attempt, which contradicted the defense's narrative. This conversation was not included in the translated materials provided to Minh Do's counsel, leading her to request a mistrial on the grounds of potential prejudice against her client.

The district court acknowledged that the final translations should have been disclosed before the opening statements, per Federal Rule of Criminal Procedure 16(a). However, the court determined that Minh Do did not suffer actual prejudice, offering his counsel additional time for cross-examination. The court noted that the government must provide relevant statements made by the defendant upon request, and while it has discretion in remedying violations of this rule, a new trial is not warranted unless substantial prejudice is demonstrated.

The court assessed that Minh Do was not prejudiced by the lack of translation prior to trial, as he had access to the tapes and had consulted a translator beforehand. Furthermore, other recorded conversations available to his counsel prior to the opening statements contradicted the defense's claim of his innocence, including discussions about planning robberies and extorting money. Thus, the court found no basis for reversal of the trial outcome.

A request for financial assistance was made by Loc, who stated he had not been able to sell anything that day. Minh expressed frustration over the situation, suggesting destructive actions if Loc did not receive payment. A taped conversation from June 29, 1991, contradicted Minh Do's opening statement, leading to a conclusion that the district court's admission of evidence and denial of a mistrial were not abuses of discretion.

During the trial, the defense sought all statements made by confidential informant Tinh Ngo under the Jencks Act and Brady v. Maryland, but the government initially claimed all such materials had been provided. Tinh Ngo later indicated that his initial police interview had been recorded, prompting the defense to request a mistrial. The Assistant U.S. Attorney (AUSA) Vinegrad initially stated no recording existed, but later corrected himself, revealing that the interview had indeed been recorded, and copies were provided to the defense.

The district court denied the renewed mistrial motion, emphasizing that the tape served primarily as impeachment material and allowed a one-day recess for the defense to review it. The court noted that cross-examination of Tinh Ngo had not yet started, delaying it by five days after the tape's disclosure. To establish a Brady violation, a defendant must demonstrate a reasonable probability that timely disclosure would have changed the jury's outcome. Here, no such probability was found, as the tape confirmed Tinh Ngo's prior deception, which was already acknowledged during his testimony. Consequently, while the government's failure to produce evidence timely was noted, it did not result in any prejudicial impact warranting reversal.

Tinh Ngo testified about a conspiracy to rob Ming Jewelry Store, detailing a trip to retrieve a knife from Minh Do's apartment after failing to buy one in Manhattan. Minh Do's defense questioned the credibility of this account, suggesting it was implausible to take a three-hour detour. During the trial, a BATF agent testified that a knife was found in one of the gang's vehicles, prompting Minh Do to move for a mistrial on the basis that this evidence was not disclosed in police reports. The district court denied the mistrial but allowed the option to strike the testimony or recall Ngo for further questioning. Minh Do chose to extensively cross-examine government agents regarding the knife's nondisclosure, arguing for a mistrial, which was ultimately rejected as the knife's existence was not disputed, and the testimony's impact was deemed minimal.

The court concluded that even if the government had failed to disclose the knife’s existence, it did not rise to the level of requiring a mistrial. The court also noted that the defense had ample opportunity to challenge the credibility of the government agents during cross-examination. Additionally, Minh Do raised other claims of prosecutorial misconduct, alleging that the government's summation vouched for witness credibility and commented on the defense's failure to cross-examine a tape translator. While acknowledging that prosecutors cannot vouch for witnesses, the court maintained that rebuttal to attacks on prosecutorial integrity is permissible.

The integrity of the prosecutors in United States v. Praetorius was challenged, particularly regarding the selection of an interpreter. Minh Do's counsel accused the government of seeking an interpreter who would conform to biased interpretations, while Lan Tran's counsel suggested that the prosecution sought publicity for their agents. In rebuttal, AUSA Patricia Pileggi defended the prosecution's motivations, asserting that no prosecutor would be interested in a distorted representation of events. The court found this response to be appropriate and noted that it was proper for the prosecution to highlight that the defendants did not cross-examine the government’s translator regarding the accuracy of evidence presented. Minh Do's claim that the prosecutor's comments were unfair due to the exclusion of a specific conversation from trial materials was rejected, as he had not sought to cross-examine the translator despite being offered additional time.

Additionally, Lan Tran and Jimmy contested the admissibility of identification testimony from victims, based on the principle that defendants have a due process right against suggestive police identification procedures that could lead to misidentification. The right applies to both live and photographic identifications, with appellate courts tasked with reviewing the suggestiveness of identification arrays.

Challenges to pretrial identification procedures require courts to assess the methods used against the specific facts and overall circumstances of the case. Findings by the district court regarding these procedures can only be overturned if deemed clearly erroneous, with witness credibility assessments receiving deference. If pretrial identification procedures are not suggestive, questions regarding reliability, such as a witness's inability to identify the same person at trial, pertain to the weight of the identification rather than its admissibility. Conversely, if procedures are found to be unduly suggestive, in-court identifications may still be admissible if proven independently reliable. Reliability is evaluated based on factors such as the witness's opportunity to observe the suspect during the crime, attention level, accuracy of their prior description, certainty of identification during confrontation, and the time elapsed between the crime and identification.

In this case, the court concluded that the photo array was not impermissibly suggestive, rejecting claims by Lan Tran and Jimmy regarding the unfairness of their photographs. The assessment of whether an array is overly suggestive involves examining factors like array size, presentation manner, and content. There were no inherent prejudicial aspects in this instance, affirming that the eight-photo array and six-photo array were not unduly suggestive.

The legal document addresses the admissibility of photo identification in two robbery cases. In the first case, the photo array presented to Ms. Quang Nguyen, the victim of the Asian Market robbery, included over 50 photographs of Asian males with similar characteristics. Although Ms. Nguyen initially selected a different photograph, she later identified Jimmy after the police substituted a color photo for his original black-and-white image. The court found that this substitution was not unduly suggestive, as Ms. Nguyen believed the entire array had been changed, and there was no evidence that police influenced her choice.

In the second case involving the robbery of San Wa Fine Jewelry, Elizabeth Lim, who was 6 1/2 years old at the time of the robbery, identified multiple photos in a photo array. Detective Oldham's testimony indicated discrepancies in Elizabeth's selections, as she picked different photos during her multiple viewings. Ultimately, the court's evaluation of the identifications focused on the absence of suggestiveness in the arrays and the credibility of witness testimonies.

Elizabeth identified the same five photographs (numbers 8, 15, 24, 29, and 40) during her grand jury appearance as she did in previous identifications. Both Detective Oldham and Elizabeth confirmed that no undue influence was exerted by the officers during the identification process. Lan Tran's motion to suppress the photo identification was denied on grounds of Elizabeth's competence and the suggestiveness of the procedure. The court found Elizabeth to be a competent witness, describing her as intelligent and understanding of the process. Regarding suggestiveness, the court ruled that the identification procedure was unobjectionable, noting the large number of photographs and suspects involved, which mitigated any concerns about suggestiveness. At trial, Elizabeth identified photos 15, 36, 40, and 51, and the government was allowed to introduce her prior grand jury testimony. The court rejected the argument that her inability to select the same five photos at trial warranted exclusion of the pretrial identification, asserting that discrepancies in identification affect weight, not admissibility. Furthermore, the court referenced that while a generally fair pretrial identification could be deemed suggestive if influenced by subsequent actions or remarks from government agents, the procedures in this case did not meet that standard.

In United States v. Leonardi, it is established that strong and unequivocal original identifications are not invalidated by subsequent flawed post-identification remarks or actions. In the case of Lan Tran, two instances of post-identification impropriety were raised. Bounmy Banavong, the owner of the Vientiane Restaurant, provided a clear physical description fitting Lan Tran and positively identified him from a photo array, asserting her certainty based on her close observation during the robbery. Despite an inappropriate post-identification showing of another photo and the police officer’s comments, the district court concluded that Bounmy had sufficient opportunity and attention to independently identify Lan Tran. Similarly, Mike Ganopoulos, a customer at the Bangkok Health Spa, was able to view the robbers during the incident and made a positive identification of Lan Tran. Although post-identification comments made by officers to Ganopoulos were deemed inappropriate, the court found independent bases for both identifications.

Lan Tran also challenged identifications made by other robbery victims, including Kim Lim, Jenny Ngaopraseutsck, and Vinh Tran. Kim Lim initially selected pictures of other men, and concerns were raised about Ngaopraseutsck’s presence during the identification process. Vinh Tran, who was 13 at the time, had difficulty recalling details about the identification. Nonetheless, testimonies indicated that the 50-photo array was presented neutrally, without directing attention to any specific photo, and Vinh Tran ultimately identified Lan Tran’s photo among others. The testimonies supported that the identification processes were conducted appropriately, leading the court to uphold the validity of the identifications despite the noted issues.

Detective Oldham testified regarding Kim Lim's identification of a jewelry store robber, noting he did not direct her to any specific photograph and did not influence her selections afterward. The district court found the identification procedures were not unduly suggestive, crediting the officers' testimonies. For Ngaopraseutsck, witnesses confirmed her attention was not directed to any particular photograph, and she was unaware of prior identifications made by others until after selecting a photograph of Lan Tran. This finding was also supported by evidence. 

Lan Tran argued that the district court erred by allowing Vinh Tran to provide "unsworn" testimony, which was dismissed as frivolous. The court appropriately crafted an oath for the child witness, ensuring he understood the importance of truthfulness, which was confirmed during questioning. 

Defendants raised evidentiary challenges, claiming the trial court improperly admitted evidence of uncharged "other crimes" violating Fed. R. Evid. 404(b), as well as certain recorded statements related to conspiracy and hearsay. Specific examples included allegations against Thai and LV Hong regarding violence and extortion, and Jimmy's involvement in another robbery. However, the court maintained that the contested evidence did not qualify as "other crimes" under Rule 404(b), as it was not used to prove character conformity.

When an indictment includes a conspiracy charge, evidence of uncharged acts can be admissible if they demonstrate the existence of the conspiracy. This principle allows the government to introduce evidence of actions not explicitly listed in the indictment as long as they support the conspiracy's objectives. For instance, the robbery of Golden Star Jewelry, involving Jimmy, was directly linked to the ongoing RICO conspiracy, justifying its admission as evidence despite not being specified in the indictment. Additionally, testimonies regarding violence within the BTK enterprise, such as the beating of Jagmohan, served to illustrate the organization's structure and leadership dynamics rather than constituting evidence of separate crimes. The graphic nature of Detective Oldham's testimony about bloodstains was deemed relevant and was not excluded under Federal Rule of Evidence 403, as its probative value was found to outweigh any potential prejudice. The trial court's discretion in this matter was upheld, particularly in light of the defense's claims of informant dishonesty. Moreover, LV Hong's involvement in extortion activities further exemplified his role within the conspiracy, reinforcing the leadership hierarchy and confirming Thai's position as the leader of the BTK group.

A tape recording introduced by the government captured a conversation among gang members, including Son and Tinh Ngo, prior to an attempted robbery of the Ming Jewelry Store. In this conversation, Son recounted the 1990 robbery of W.C. Produce and the accidental killing of gang member Cuong Pham by Jimmy. Jimmy sought to exclude this tape as hearsay, but the trial court ruled it admissible, asserting it was a statement made by Son in furtherance of the conspiracy. Under Federal Rule of Evidence 801(d)(2)(E), statements made by a coconspirator during the conspiracy are classified as nonhearsay if they promote the conspiracy's objectives. The court emphasized that statements need not be direct instructions; they can serve to reinforce group cohesion or provide reassurance among members. The determination of whether a statement furthers the conspiracy must be based on a preponderance of evidence and will not be overturned unless clearly erroneous. Although Jimmy argued that Son's statement was retrospective, Tinh Ngo's testimony indicated that Son shared this information to establish credibility and instill confidence in Tinh Ngo regarding their planned robbery. The trial court found Tinh Ngo's account credible, supporting the conclusion that Son's statements advanced the conspiracy's goals, thereby validating the tape's admissibility.

Lan Tran's argument that the trial court should have excluded Detective Henry Murray's testimony regarding Sen Van Ta's statements about extortion attempts and robbery by BTK members was rejected. Detective Murray testified that Van Ta mentioned receiving an anonymous letter and a warning from Thai to falsely testify about the BTK members. Lan Tran claimed these statements were hearsay and violated his Confrontation Clause rights, warranting a reversal of his conviction. The court disagreed, citing precedent that if a defendant causes a witness's silence through violence or intimidation, they cannot invoke confrontation rights to exclude prior testimony. This principle applies beyond grand jury testimony and includes complaints to law enforcement after intimidation. 

A district court is required to hold a hearing to determine if the defendant was responsible for the witness's absence, with the burden on the government to prove this by a preponderance of the evidence. Additionally, the court must balance the probative value against the prejudicial effect of the evidence. In this case, the district court conducted such a hearing and found, by clear and convincing evidence, that Thai and Lan Tran caused Van Ta's unavailability to prevent him from testifying. The court deemed the statements reliable and admissible under Rule 403. Evidence supported the findings that Thai ordered Van Ta's murder and that Lan Tran was involved, with testimonies from Kenny Vu and Eddie Tran confirming this. The court found their testimonies credible, supporting the conclusion that Thai and Lan Tran were responsible for Van Ta's murder.

The court found that Sen Van Ta was murdered due to his cooperation with police, specifically as a witness against the Born To Kill (BTK) gang and David Thai. Testimony from Kenny Vu indicated that Thai referred to Ta as "the one who called the policemen," supporting the motive for the murder. 

Quang challenged his RICO convictions on two grounds: he claimed insufficient evidence regarding one predicate act and argued that the jury instructions were erroneous based on the Supreme Court's decision in *Reves v. Ernst & Young*. Both arguments were rejected. Quang contended that the robbery at the Asian Market in Tennessee was unrelated to BTK activities, asserting it was an independent venture. However, RICO requires that predicate acts be related to the criminal enterprise, a condition satisfied if the crime is connected to the enterprise's activities or if the defendant's position within the enterprise facilitated the crime. 

Evidence indicated that Quang proposed the robbery, targeting an Asian market, and involved other BTK members, with the proceeds being handed over to Thai. This established sufficient relatedness to uphold the RICO conviction. 

The jury instructions clarified that to prove Quang's involvement, it was necessary to demonstrate that he conducted or participated in the enterprise's affairs, which included performing acts beneficial to its operations.

A person can be involved in an enterprise's operations without being part of its management or receiving profits. In the Supreme Court case Reves, the issue of whether participation in the enterprise's management is necessary for RICO liability was addressed. The Court concluded that while one must have a role in directing the enterprise's affairs to be liable under Section 1962(c), this liability does not extend only to upper management. Instead, it includes lower-level participants under the direction of higher-ups. The Court did not specify how far down the management chain liability extends but affirmed that it includes individuals like Quang, who was actively involved in planning and executing a robbery independently. No defendants contested the RICO instructions at trial, so any potential errors would not warrant reversal unless they were egregious. Furthermore, defendants challenging the sufficiency of evidence for their convictions bear a significant burden, with courts required to view evidence in the light most favorable to the government.

A jury must consider all reasonable inferences and credibility assessments in favor of the government when evaluating evidence, drawing from precedents like United States v. Matthews and others. Evidence should be viewed collectively rather than in isolation, and a conviction can be affirmed if the jury could reasonably conclude guilt beyond a reasonable doubt, as established in cases such as United States v. Skowronski. The weight of the evidence is reserved for jury deliberation, not for appeal challenges.

In the context of Thai’s conviction under 18 U.S.C. § 1959 for conspiring to bomb the Pho Bang Restaurant, the indictment claimed he conspired to assault to enhance his position in the BORN TO KILL (BTK) gang. Thai contended there was insufficient evidence to support that his actions were intended to maintain or increase his standing within BTK; the court agreed. To prove a violation of § 1959, the government must demonstrate that the violent crime was committed with the intent to enhance the defendant's position in the racketeering enterprise. 

The motive does not have to be the defendant's sole objective; it suffices if the act was part of the membership expectations within the enterprise. The jury can infer that the violent act was committed because it was anticipated of him as a member of the organization. An example cited involved a defendant leading a violent response to a competitor's threat, illustrating the expectation of action in defense of the enterprise’s interests.

In United States v. Rosa, the court established that a defendant's motive for murder can be linked to maintaining a leadership position within a criminal organization, as seen when a defendant rose through the ranks and committed murder over narcotics distribution. In contrast, in the current case involving David Thai, there is insufficient evidence to suggest his motive for bombing the Pho Bang was anything other than financial gain. Testimony from Tinh Ngo indicated that Thai was offered over $10,000 to carry out the bombing, with no further clarification on the motive or connection to Thai's status in the BTK organization. The government argued this crime was part of BTK's criminal activities aimed at profiting through violence against Asians, suggesting it was intended to reinforce Thai's leadership role. However, the court found this argument unconvincing, noting that the government failed to prove other crimes as violations of Sec. 1959 and that merely being part of BTK did not automatically constitute a Sec. 1959 violation. Additionally, the jury could not reasonably infer that a previous failed bombing attempt motivated Thai to carry out a second attempt in order to solidify his position within BTK, as there was no direct evidence linking the two events.

No evidence indicated that the initial unsuccessful bombing raised concerns about Thai's leadership among gang members or led anyone to question his abilities. Prior to Thai's conversation with Tinh Ngo, it appears that only Minh Do was aware that the incorrect building was targeted, suggesting that any claim linking the first bombing to Thai's motivation for the second was speculative. A defendant's conviction under Section 1959 requires reasonable inference from evidence, not mere guesswork. Thus, the insufficient evidence led to the reversal of Thai's conspiracy conviction related to the bombing of Pho Bang.

Regarding the sufficiency challenges of other defendants, Minh Do and LV Hong's claims of insufficient evidence for their roles in the E5 extortions were unsubstantiated. Testimony confirmed Minh Do's involvement in extorting discounted beeper services through threats, particularly during a visit to E5 where he asserted his leadership role. Similarly, LV Hong's participation in extortion was supported by circumstantial evidence during a visit to E5, where his presence implied an additional threat to reinforce Lan Tran's demands.

LV Hong's challenge regarding his involvement in the Canal Street extortions was dismissed as insignificant, with Tinh Ngo's testimony and recorded conversations confirming his leadership in collecting payments. Additionally, LV Hong's objection to his Hobbs Act conviction related to the Sun Moon Trading robbery conspiracy lacked merit, as both Tinh Ngo and Eddie Tran testified about Thai's statement regarding LV Hong's involvement in the robbery.

Testimony indicated that on the day of the robbery, Thai, Tinh Ngo, Eddie Tran, and others met with LV Hong, who initially spoke with Thai and Lan Tran before engaging with Italian coconspirators. After the robbery plan was abandoned, Lan Tran mentioned he needed to inform LV Hong about the events. 

Defendants raised several sentencing challenges, questioning the district court's procedures, findings related to their roles in the crimes, and the consideration of uncharged conduct under federal Sentencing Guidelines. These challenges were largely unpersuasive and consistent with established precedents in the Circuit, stipulating that sentencing facts need only be proven by a preponderance of evidence. The relevant case law supports the use of uncharged conduct to enhance sentences and affirms the district court's discretion in assessing witness credibility and sentencing procedures. 

The only notable contention was LV Hong's objection to the elevation of his offense level based on uncharged acts, such as extortion and robbery, which he argued should not be grouped under the Guidelines. While there was skepticism about this argument, the court chose not to rule on it in this case.

Conduct classified as "relevant conduct" under Sec. 1B1.3 cannot be used for upward departures under Sec. 5K2.0. However, conduct not deemed "relevant" may serve as a basis for such departures. In United States v. Kim, it was determined that while acts of misconduct not resulting in conviction should not lead to departures if unrelated to the offense, departures are permissible for acts that are somewhat related. In the sentencing of LV Hong, the district court considered uncharged crimes as relevant conduct, but also indicated it could impose an upward departure if that consideration was inappropriate. The court found that Hong's uncharged conduct related to his RICO and Hobbs Act convictions, thus justifying an upward departure. The court's alternative rationale for establishing Hong's offense level was deemed sound, leading to no grounds for disturbing his sentence. The conclusion affirmed all convictions except for count 15, which was reversed and remanded for dismissal and recalculation of the sentence.