2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-14-2010

USA v. Vutha Kao

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3852

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Recommended Citation

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 08-3852

____________

UNITED STATES OF AMERICA

v.

VUTHA KAO a/k/a/ “Tommy” Vutha Kao,

Appellant

____________

No. 08-4076

____________

UNITED STATES OF AMERICA

v.

JEREMY WARREN, a/k/a Doug,

Jeremy Warren, Appellant

____________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Crim. Nos. 2-06-cr-00690-005 & 2-06-cr-00690-006)

District Judge: J. Curtis Joyner

____________

Submitted Under Third Circuit L.A.R. 34.1(a)

December 15, 2009

Before: SLOVITER, JORDAN and WEIS, Circuit Judges.

(Opinion Filed January 14, 2010)

____________
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OPINION 

 

WEIS, Circuit Judge.

A Pennsylvania State trooper stopped a sport utility vehicle occupied by

defendant Vutha Kao, the driver, and defendant Jeremy Warren, the passenger, for

exceeding the speed limit. As he approached the defendants’ automobile, the trooper

observed inside several large opaque bags, an obscured box, empty cans of energy drink,

and multiple cell phones. He obtained a driver’s license from a nervous Kao, who

claimed not to possess the SUV’s registration and insurance information because the SUV

had been rented by Warren’s girlfriend, and then secured Warren’s identification.

The trooper returned to his patrol car, discovered that Warren had given

him a fraudulent identification card, and went back to the SUV to issue Kao a warning. 

After receiving the admonition, Kao was told that he “was free to go[,]” but, prior to

leaving, agreed to answer some additional questions. The questioning complete, the

trooper noticed the muzzle of a firearm protruding from a compartment underneath

Warren’s seat. 

Both defendants were removed from the SUV and handcuffed. The trooper

subsequently obtained and executed a search warrant for the vehicle, recovering the

firearm, ammunition, and a box containing a large amount of pills.

Defendants were tried jointly, and a jury convicted them of conspiracy to

distribute approximately 60,000 MDMA (“ecstacy”) pills in violation of 21 U.S.C. § 846,
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possession of around 45,000 ecstacy pills with the intent to distribute them in

contravention of 21 U.S.C. § 841, possession of a firearm by a convicted felon in breach

of 18 U.S.C. § 922(g), and possession of a “short-barreled rifle” in furtherance of a drug

trafficking offense in violation of 18 U.S.C. § 924(c). The District Court sentenced each

defendant to, among other things, 360 months imprisonment and supervised release for

five years. 

Defendants have appealed, and their cases have been consolidated. They

first contend that the District Court erred in denying their motions to suppress. According

to defendants, the legitimate purpose for the traffic stop ended when the trooper issued

Kao a warning, and the trooper’s subsequent inquiries and actions, which extended the

duration of the encounter, constituted an unlawful seizure under the Fourth Amendment. 

We disagree. The inquiries were proper. See Arizona v. Johnson, 129 S.Ct.

781, 788 (2009) (“[a]n officer’s inquiries into matters unrelated to the justification for the

traffic stop . . . do not convert the encounter into something other than a lawful seizure, so

long as those inquiries do not measurably extend the duration of the stop”). In addition,

the trooper’s observations and discovery of Warren’s false identification justified

detaining defendants and their vehicle until the trooper observed the firearm. See United

States v. Givan, 320 F.3d 452, 458 (3d Cir. 2003) (after a lawful traffic stop, “an officer

who develops a reasonable, articulable suspicion of criminal activity may expand the

scope of an inquiry beyond the reason for the stop and detain the vehicle and its

occupants for further investigation”). The District Court did not err in denying the
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defendants’ motions to suppress. 

Defendants next argue that the District Court should not have admitted

evidence from cooperating witnesses that they had, on a previous occasion, traveled to

North Carolina to collect money defendants owed them from a prior consignment of

ecstacy pills. The District Court indicated that the cooperating witnesses’ testimony was

evidence of a common scheme or plan. See Fed. R. Evid. 404(b) (evidence of prior

crimes admissible to show, among other things, “motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident”). It also was evidence that

defendants knew what they were carrying in the SUV on the day they were arrested. We

find no abuse of discretion in the District Court’s admission of that evidence. See Givan,

320 F.3d at 463. 

Defendants lastly assert that they were minor participants in a large-scale

drug trafficking operation and should have been given less severe sentences. The

evidence, however, was that there were approximately 45,000 ecstacy pills in the van,

defendants knew that a large shipment was involved, and they were not simply one-time,

outside “mules.” In fact, both defendants were career criminals. The District Court

weighed all of the evidence and was in a position to evaluate the defendants’ complicity. 

We find no clear error in the sentencing judge’s decision to deny minor participation

status to the defendants pursuant to U.S.S.G. § 3B1.2. See United States v. Carr, 25 F.3d

1194, 1207 (3d Cir. 1994) (where “defendant takes issue with [a] district court’s denial of

a reduction for being a minimal or minor participant which was based primarily on factual
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determinations, we review only for clear error”).

Accordingly, the judgments of the District Court will be affirmed.