United States v. Nghia Le

Citations: 256 F.3d 1229; 2001 U.S. App. LEXIS 15526Docket: 00-11124

Court: Court of Appeals for the Eleventh Circuit; July 11, 2001; Federal Appellate Court

Original Court Document: View Document

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Nghia Le, also known as Vince Le, organized a home invasion robbery targeting a Tallahassee businessman, Kenny Nguyen, who owned two nail salons. Le, believing Nguyen stored significant cash at home, recruited five accomplices from California to execute the robbery. He provided housing and weapons, but did not participate directly in the robbery. The plan failed when the robbers were unable to find the expected cash, only managing to steal a car and a wristwatch. Following the incident, Nguyen sold his business and relocated the salons.

Le was indicted on three counts: conspiracy to obstruct interstate commerce through robbery, obstruction of interstate commerce, and using a firearm during the commission of a crime. On appeal, the Eleventh Circuit Court confirmed federal jurisdiction under the Hobbs Act due to the robbery's effects on interstate commerce, upheld the admission of Le's post-arrest statements and transcripts of foreign-language conversations, and agreed with the district court's application of a two-level increase for carjacking. However, the court found error in the seven-level increase related to the firearm, prompting a reevaluation of the sentence.

Le was found guilty by a jury on three counts and subsequently sentenced by the district court to a total custodial term of 322 months, which includes consecutive sentences of 240 months for Count One, 22 months for Count Two, and 60 months for Count Three. Le is also subject to three years of supervised release and must pay restitution. 

In his appeal, Le contends that the government lacked jurisdiction under the Hobbs Act because it allegedly failed to demonstrate that his actions had a sufficient connection to interstate commerce. The Court reviews this jurisdictional challenge de novo, considering the evidence in the light most favorable to the government and acknowledging that the Hobbs Act prohibits any obstruction, delay, or effect on commerce through robbery or extortion, as outlined in 18 U.S.C. 1951(a). 

The definition of commerce includes all activities between states, and the Supreme Court has emphasized that proving an effect on interstate commerce is essential for federal jurisdiction in Hobbs Act cases. The Court clarifies that the evidence needed to establish this connection varies based on whether the defendant is charged with a substantive offense or with conspiracy or attempt. For substantive offenses, only minimal impact on commerce is required, while for attempts or conspiracies, the government can demonstrate the interstate nexus through potential impacts or actual minimal impacts. The assessment of potential impact is based on the circumstances at the time of the attempted crime, reflecting the likelihood of obstructing commerce.

Le's convictions can be affirmed if his actions either potentially or actually affected interstate commerce, as required by the Hobbs Act. The court has previously addressed this jurisdictional requirement in cases such as Kaplan, where the defendant attempted to extort money from Panamanian bank accounts through coercion. Although the extortion plan was not executed, the court upheld the convictions by finding that a realistic probability of effect on commerce existed, as the scheme involved transactions between Florida and Panama. The court noted that the extortion's success would have required funds to be transferred to Florida, establishing a close nexus between the coercive acts and interstate commerce. Furthermore, the orchestration of the plan in the U.S. and communication between co-conspirators across state lines demonstrated an actual effect on commerce. The court concluded that both potential and actual effects on commerce were sufficient for a Hobbs Act conviction. Similarly, in United States v. Farrell, the court affirmed conspiracy convictions when defendants kidnapped the daughter of a company officer engaged in interstate commerce, emphasizing that the success of their extortion scheme would have likely impacted commerce in multiple ways.

The excerpt addresses the jurisdictional implications of extortion under the Hobbs Act, emphasizing its application to both businesses and individuals when there is a demonstrable impact on interstate commerce. It highlights that a savings and loan's potential claim was inherently linked to interstate commerce, as was the significant extortion demand, which indicated an effect on interstate commerce. The victims' pledge of stock obstructed their ability to trade freely on the New York Stock Exchange, further illustrating this connection. 

In the referenced case, Diaz, the court clarified that crimes targeting individuals can violate the Hobbs Act if they either deplete the assets of an individual engaged in interstate commerce, cause that individual to deplete assets of an entity in interstate commerce, or if the scale of victimization or monetary amounts involved collectively impact interstate commerce. The court defined "deplete the assets" broadly, including any reduction in the number of an individual's assets.

The court affirmed the convictions of defendants for crimes, including conspiracy and substantive Hobbs Act violations, directed at individuals in different incidents. One incident involved victims who were corporate officers purchasing equipment interstate, where the defendants kidnapped one victim for ransom. The court noted that the victims' roles in their business directly engaged in interstate commerce were pivotal to establishing jurisdiction. Another incident featured a gas station owner, whose business purchased supplies from out of state; the defendants attempted extortion and robbery from him, and the court upheld convictions based on the demonstrated nexus between the criminal acts and interstate commerce. The court emphasized the necessity of examining the victims and their businesses to determine the effect on interstate commerce.

The victim's business engaged in regular purchases from out-of-state, establishing a connection to interstate commerce. The court determined that a reasonable jury could find that the victim, as part owner of a gas station, was directly involved in interstate commerce through his business activities. The attempted robbery and subsequent extortion were found to have depleted the victim's business assets, leading to the upholding of the defendants' convictions under the Hobbs Act. A similar case highlighted that motivation related to interstate commerce could sustain a conspiracy conviction under the same act. Evidence showed that the robbery organized by Le had both potential and minimal actual effects on interstate commerce, supporting jurisdiction over his Hobbs Act convictions. The robbery could have delayed or reduced the victim’s acquisition of necessary supplies, and the conspirators used interstate travel and communication in preparation. Le's targeting of a private residence did not weaken the connection to interstate commerce, as established by precedent. Additionally, Le contended that his Fifth and Sixth Amendment rights were violated during post-arrest questioning, claiming coercion in waiving his Miranda rights and giving an incriminating statement due to implied threats against his family.

Le asserts that the FBI was aware of his legal representation during the investigation, arguing for a precedent from the Ninth Circuit that a close connection between pre-indictment investigations and subsequent charges invokes the Sixth Amendment right to counsel when the government knows or should know of a defendant's ongoing relationship with counsel. However, the court notes that multiple statutes can be violated by the same conduct. The court explains that jurisdiction under the Hobbs Act is not solely derived from some co-conspirators traveling interstate but is supported by Le targeting business assets kept at a private residence, which could affect interstate commerce, alongside his use of interstate travel and communication for the robbery preparation. 

Le claims that the connection between robberies against individuals and interstate commerce is too weak to justify federal jurisdiction; however, the court clarifies that their ruling does not support this view. Le's argument regarding the FBI's knowledge of his legal representation is reviewed for plain error since he did not raise this in the district court. The court finds no plain error and notes that evidence of an ongoing attorney-client relationship is lacking. Le had only contacted a lawyer over a year prior, with no clear retention or follow-up, and no substantial evidence was presented. Furthermore, Le's claim of FBI coercion through threats to his family was rejected by the district court, which found him to have voluntarily provided a statement after being read his rights, with no invocation of counsel. The court upholds the district court's credibility determinations without reason to disturb them.

Le argued that the district court incorrectly admitted English-language transcripts of his telephone conversations in Vietnamese, used for impeachment without original recordings being played for the jury. However, he waived the right to contest the transcripts as he did not object to their admission after testifying in his defense. The government introduced Vietnamese audiotapes and a contract interpreter testified that the transcripts accurately reflected the conversations. Le did not follow the circuit's established procedure for challenging the accuracy of the transcripts, which involves producing an 'official' transcript or providing alternative versions. Although Le claimed he was denied the chance to submit a different translation, the government had listed the tapes in its discovery report. Additionally, Le acknowledged listening to one tape and had a minor dispute over a translation. His defense did not challenge the interpreter’s qualifications or request the tapes be played. Consequently, Le waived his right to contest the transcripts, and he failed to demonstrate any prejudice from the absence of the original recordings.

Regarding sentencing, the district court improperly applied a seven-level increase for a co-conspirator's firearm discharge to Le's offense level for his Hobbs Act convictions, despite a consecutive 60-month sentence for a separate firearms offense under 924(c). Amendment 599, effective November 1, 2000, to the Sentencing Guidelines, prohibits such dual enhancements and significantly revised the relevant application note. This amendment rejected the prior interpretation that permitted the increase in offense level for a co-conspirator's firearm use alongside a consecutive sentence under 924(c).

The revised Application Note 2 of U.S.S.G. 2K2.4 prohibits weapon enhancements when a co-defendant possesses a different firearm during joint criminal activity, directly relevant to Le's case. Amendment 599 to the guidelines applies retroactively and is binding on federal courts. The Supreme Court has affirmed that amended commentary is authoritative, and any failure to adhere to it, such as in Le's sentencing, necessitates setting aside the sentence unless the error is harmless. In Le's case, the erroneous application of a seven-level increase for co-conspirators' firearm use significantly raised his guideline range, warranting remand for re-sentencing without the increase.

Additionally, the district court's two-level increase for car-jacking under U.S.S.G. 2B3.1(b)(5) was contested by Le, who argued it violated Apprendi v. New Jersey. However, Apprendi does not apply to guideline calculations, and since both sentences imposed did not exceed the statutory maximums for the Hobbs Act convictions, the increase was deemed appropriate. The Supreme Court has recognized that Hobbs Act conspiracy and robbery are distinct crimes that may incur consecutive sentences, which aligns with the guidelines for achieving the total punishment required.

Le received a 240-month custodial sentence for conspiracy and an additional 22 months for robbery, both associated with violations of the Hobbs Act, which allows for consecutive sentences. The statutory maximum for each count was 20 years, and neither of Le's sentences exceeded this limit. The district court also imposed a consecutive 60-month sentence for using firearms in relation to these crimes, which Le did not contest. 

Le claimed ineffective assistance of counsel, alleging his lawyer failed to inform the court of his prior representation during arrest, did not confront FBI agents regarding informant conversations, neglected to play important tapes for witnesses, and did not prepare an alternative translation of the tapes. He pointed out that a letter from a local attorney explaining his refusal to take a polygraph was not produced, which he considered Brady material. However, the court found that the record was insufficient to evaluate these claims of ineffective assistance on appeal.

The court affirmed Le's convictions but vacated the imprisonment portion of his sentence regarding the Hobbs Act violations, allowing for a reconsideration of his total offense level without the seven-level firearm enhancement. The ruling clarified that the district court could reassess all aspects of the sentencing for the Hobbs Act offenses upon remand. Overall, the verdict was affirmed in part and vacated in part, with a remand for resentencing on the Hobbs Act convictions.