United States v. Phouc H. Nguyen, A/K/A Jimmy Nguyen

Citations: 155 F.3d 1219; 1998 Colo. J. C.A.R. 4771; 1998 U.S. App. LEXIS 21560; 1998 WL 559685Docket: 97-3106

Court: Court of Appeals for the Tenth Circuit; September 3, 1998; Federal Appellate Court

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

Defendant Phouc H. Nguyen, also known as Jimmy Nguyen, appeals his convictions for robbery-related charges and the murder of Barbara Sun, stemming from a November 8, 1994, incident at the Mandarin Restaurant and Lounge in Wichita, Kansas. Alongside three co-defendants, Nguyen participated in a robbery during which Mrs. Sun was taken upstairs, beaten, and fatally shot. Following the incident, the restaurant was closed for 22 days and eventually shut down permanently in June 1995.

On January 4, 1996, Nguyen was indicted on two counts: (1) interference with interstate commerce by robbery and aiding and abetting the robbery, and (2) carrying and using a firearm during the robbery which resulted in Mrs. Sun's death. The district court denied Nguyen's motions to suppress his post-arrest confession to the FBI, which he claimed was involuntary due to promises of leniency. A jury found him guilty on both counts, sentencing him to 240 months for Count 1 and life imprisonment without parole for Count 2, to be served concurrently.

Nguyen's appeal raises issues regarding the voluntariness of his confession, with the court noting that it reviews factual findings for clear error and the legal determination of voluntariness de novo, based on a totality of circumstances including the suspect's characteristics and interrogation conditions.

Several factors support the conclusion that the Defendant's statement was given voluntarily. At the suppression hearing, the Defendant confirmed he was informed of his Miranda rights and understood them prior to making his statement. He acknowledged initialing the waiver of rights form and stated that the FBI agent did not threaten or physically coerce him. There is no indication that the Defendant was particularly vulnerable to coercion based on his age, education, or intelligence. At twenty-one years old, with a GED and proficiency in English, he demonstrated the ability to comprehend his written statement, even correcting a word, which indicated his alertness and cooperation. The district court noted that the interview was conducted in a non-coercive manner and was not excessively lengthy.

Additionally, while courts may assess a defendant's awareness of the nature of the investigation when evaluating confession voluntariness, the lack of full disclosure about potential charges does not, by itself, render the confession coerced. Relevant case law indicates that law enforcement has no obligation to inform suspects of the nature of the crime unless directly asked, and a suspect's knowledge of all possible questioning topics does not affect the voluntariness of a waiver of Fifth Amendment rights.

During the suppression hearing, the Defendant claimed his confession was coerced due to the FBI agent discussing potential penalties and suggesting leniency for cooperation. However, Agent Wenko asserted that he made no promises of leniency or assistance, nor did anyone else in his presence. The district court found both the Defendant and Agent Wenko credible but ultimately deemed Agent Wenko's testimony more reliable due to corroboration from the Defendant's own statements.

Defendant claims the court made an incorrect credibility determination by favoring Agent Wenko's testimony, which he argues changed at trial, over his own testimony at the suppression hearing. Agent Wenko consistently testified that he did not discuss sentence lengths or promises of leniency with Defendant, while acknowledging that another agent, Agent Flosnick, might have made such statements. The court found that Agent Wenko's trial testimony did not constitute newly discovered evidence and held that any statements made by Agent Flosnick did not amount to coercion. The court emphasized that a mere indication of informing the prosecutor about cooperation does not imply a promise of leniency, referencing precedents that outline what constitutes coercion. After reviewing the record, the court upheld its credibility determination, concluding that Defendant's statement was voluntary and there was no new evidence supporting claims of coercion.

Regarding the sufficiency of the evidence, Defendant contends that the government failed to demonstrate how the robbery affected interstate commerce under the Hobbs Act. The court clarified that, following the Supreme Court's ruling in United States v. Lopez, only a minimal effect on interstate commerce is required for a conviction. This can be established by showing that a business's assets, engaged in interstate commerce, were depleted, thus affecting its purchasing capabilities. The court noted that such depletion constitutes evidence of an impact on commerce, confirming that the government's case met the required legal standards.

Evidence presented during the trial established that the Mandarin Restaurant was engaged in interstate commerce and suffered significant asset depletion due to a robbery. Mr. Sun, the restaurant owner, testified that prior to the robbery, the establishment frequently purchased specialty food products from vendors in multiple states. Following the robbery, the restaurant faced a decline in out-of-state purchases, partially due to a twenty-two-day closure and a significant drop in customer traffic stemming from fears related to the incident. Additionally, sales made with out-of-state credit cards decreased.

Mr. Sun indicated that as a result of these factors, the restaurant ultimately failed, unable to generate sufficient revenue or attract customers, which hindered its ability to purchase supplies in interstate commerce. An FBI agent corroborated Mr. Sun's claims regarding the decline in credit card sales and overall business revenue.

The defendant contended that the murder of Mrs. Sun during the robbery should not be considered as evidence of the robbery's effect on interstate commerce. However, the government argued that the impact on commerce could be demonstrated not only through the direct effects of stolen money but also through any interference caused by the robbery. Previous case law supports that crimes like robbery can affect interstate commerce, even through the experiences of customers during the event.

The court found that the murder, even as a separate crime, was connected to the robbery's impact on the restaurant's business. Testimony indicated that the restaurant's customer base dwindled following both the robbery and Mrs. Sun's murder, which directly affected Mr. Sun's ability to operate the business. This evidence was deemed sufficient to illustrate the robbery's detrimental effects on interstate commerce, demonstrating a clear nexus between the crime and the subsequent decline in business operations.

The stolen money from Mrs. Sun's purse is relevant to interstate commerce as it was taken during a robbery at a restaurant involved in interstate business, linking the theft to broader economic impacts, including declines in sales and temporary closures. The court upheld the defendant's conviction on Count 1, citing a substantial connection to interstate commerce. 

Regarding Count 2, the defendant argued insufficient evidence for aiding and abetting Mrs. Sun's murder, asserting a lack of intent to kill. Under 18 U.S.C. 924(j)(1), a person is guilty if they cause a death while using a firearm in a violent crime. Evidence showed that co-defendant Mr. Chanthadara shot Mrs. Sun during the robbery, constituting felony murder under 18 U.S.C. 1111(a). The definition of murder includes unlawful killings with malice aforethought, and felony murder applies when a death occurs during the commission of a dangerous felony.

The court clarified that for felony murder, the only required intent is the intent to commit the underlying felony. Thus, once intent to commit robbery and a related killing are established, no further proof of intent is necessary. This interpretation aligns with precedents confirming that intent to commit robbery suffices to establish malice. The court affirmed the conviction, emphasizing that participation in a dangerous felony supports a finding of murder, even if the death was unintended.

Evidence presented to the jury established the necessary intent for the conviction under Count 2, as the Defendant admitted to participating in the armed robbery that resulted in Mrs. Sun's death. The government did not need to prove that the Defendant specifically intended to kill her. Sufficient evidence indicated that the Defendant aided and abetted the killing by holding Mrs. Sun at gunpoint, taking her upstairs, and beating her. He was aware that his co-defendant, Mr. Chanthadara, was armed and had a violent disposition. The Defendant remained in the room during the shooting, suggesting his actions incited or encouraged the murder. The conviction on Count 2 was affirmed, as the jury could reasonably conclude that the Defendant intended to commit the felony, that the killing occurred during its commission, and that he aided in the murder.

In addressing the constitutionality of 18 U.S.C. 924(c)(j)(1), the Defendant argued that Congress exceeded its authority under the Commerce Clause, referencing the Supreme Court's Lopez decision. He claimed the statute lacks an independent jurisdictional element and does not regulate interstate commerce, framing it as merely criminalizing firearm use in violent crimes, including murder. Section 924(j)(1) stipulates that if a person causes a death through firearm use during a violation of subsection (c), and the killing constitutes murder, they face severe penalties.

To secure a conviction for aiding and abetting murder under section 924(j)(1), the defendant must first violate section 924(c)(1) by using or carrying a firearm in connection with a crime of violence. This requirement is satisfied as the evidence supports the occurrence of an armed robbery, qualifying as a crime of violence under the Hobbs Act, which has been upheld as constitutional against Commerce Clause challenges. Previous cases, including Bolton, have reinforced the validity of section 924(c) based on its connection to Hobbs Act jurisdiction, and various circuit courts have similarly rejected Commerce Clause challenges to section 924(c)(1) concerning both violent crimes and drug trafficking.

Additionally, the constitutionality of 18 U.S.C. 924(j) is affirmed, as the robbery serves as the necessary crime of violence for the charge, with the conviction being tied to the interstate commerce impact of the robbery under the Hobbs Act. This establishes a sufficient nexus to interstate commerce for section 924(j).

Regarding jury instructions, the defendant contends that the instructions given by the district court were flawed and misleading. The court will assess the appropriateness of jury instructions for abuse of discretion and apply a de novo standard for any objections raised during the trial, focusing on whether the overall instructions misled the jury.

Defendant argues that the court erred by not instructing the jury to disregard the impact on interstate commerce from both the murder of Mrs. Sun and the theft of money from her purse. This argument is rejected for two key reasons: First, the court previously determined that evidence of Mrs. Sun's murder is relevant to assessing the robbery's effect on interstate commerce under the Hobbs Act, as her death is a direct consequence of the robbery. Second, the money stolen from her purse, which belonged to a business owner engaged in interstate commerce, is also relevant. This situation is distinct from the cases cited by Defendant, where the victims were not involved in interstate commerce during the robbery.

Defendant further contends that the district court incorrectly instructed the jury that the robbery could have a "potential" or "probable" effect on interstate commerce, rather than requiring an actual effect. The court clarified that the government must prove beyond a reasonable doubt that the defendant's actions resulted in an actual or potential delay or obstruction to interstate commerce. The jury was instructed that if the defendant intended to commit robbery and those actions likely caused an effect on interstate commerce, the requirements would be satisfied. It was also noted that the defendant does not need to intend to affect interstate commerce, as such effects could be a natural consequence of his actions.

The terms actual, potential, and probable were used to illustrate the types of effects the government must demonstrate to meet the jurisdictional requirement of the Hobbs Act. This aligns with the precedent set in Wickard and Lopez, indicating that the government does not need to show that the specific stolen money would have entered interstate commerce, but rather that the theft affected the total assets of the restaurant that could engage in interstate commerce.

A depletion of assets impacting interstate commerce establishes a sufficient nexus under the Hobbs Act, requiring the government to demonstrate that a crime diminished a business's assets involved in interstate commerce, thereby limiting its purchasing capacity. Relevant cases affirm that even a de minimis effect can suffice, as seen in United States v. Stillo and United States v. Brown, where a realistic probability of affecting interstate commerce is adequate. The jury's instruction using "probable" allows them to determine the likelihood of robbery's impact on interstate commerce. The discussion references Wickard's rule of aggregate impact, indicating that robbery or extortion of small amounts from businesses purchasing interstate goods meets the jurisdictional requirement. The defendant's reliance on United States v. Levine is deemed misplaced, as that case focused on timing rather than potential impact on commerce. The court validated a jury instruction requiring proof of actual or potential obstruction of interstate commerce, which was similarly applied in this case without error. Additionally, the defendant contested the jury instruction on malice aforethought, arguing it conflated the elements of robbery and malice. The instruction aligned with the definition of felony murder under 18 U.S.C. § 1111(a), affirming that any murder occurring during the commission of a felony, such as robbery, meets the criteria for that charge.

Defendant contends that a conviction for Count 2 necessitates proof of his state of mind beyond intent to commit the underlying felony and the occurrence of a killing during that felony. This argument is rejected, as the statute does not require additional intent proof; it suffices that the Defendant intended the felony and that a killing occurred in its commission. Thus, felony murder charges do not warrant a separate instruction on state of mind. The court's jury instructions accurately reflected the felony murder definition, indicating that all killings during a robbery qualify as first-degree murder under 18 U.S.C. § 1111(a). Furthermore, the court provided instructions clarifying the government's burden to demonstrate that Defendant aided and abetted the killing, as well as outlining the elements of robbery and related offenses. These instructions collectively defined the necessary state of mind for violations of 18 U.S.C. § 924(j)(1) and felony murder, and did not prejudice the Defendant. Consequently, the convictions are affirmed. The relevant statute has been updated from 18 U.S.C. § 924(i)(1) to § 924(j)(1), with prior references to § 924(i) acknowledged. Lastly, the court dismissed Defendant's claim regarding the applicability of "potential or probable" language, clarifying that it is relevant in contexts beyond extortion or attempts, as previously affirmed in Zeigler, which involved completed robberies.