IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

UNITED STATES OF AMERICA, 

Plaintiff, 

v. 

BUNRIAM MAKHAM , 

Defendant. 

CR NO. 03-30069-AA 

OPINION AND ORDER 

A1 KEN, Judge : 

On November 18, 2005, after trial by jury, defendant was 

convicted of one count of Accessory after the Fact in violation of 

18 U.S.C. § 3, one count of Destroying Evidence in violation of 18 

U.S.C. § 1512 (c) (1) , and one count of Witness Tampering in 

violation of 18 U.S.C. § 1512 (b) (3) . Defendant moves for judgments 

of acquittal on all three counts, or in the alternative, for new 

trial. Defendant's motions are granted. 

1 - OPINION AND ORDER 
BACKGROUND 

The court briefly summarizes the evidence adduced at trial. 

Defendant is a Thai national who moved to the United States 

after her marriage to Dave Reynolds. Reynolds was a reputed 

methamphetamine cook and suspected of manufacturing MDMA, also 

known as "ecstasy." Despite the fact that they were divorced 

(apparently to resolve an issue involving title to property in 

Thailand) , defendant and Reynolds continued to live at the same 

residence located on Williams Highway in Murphy, Oregon. Based on 

evidence at trial, Reynolds and defendant functioned and were 

considered as husband and wife. 

Reynolds and defendant maintained a nursery, Southern Oregon 

Botanicals, and a fan import business, Chiang Mai, on adjoining 

property located at 7515 Williams Highway. Numerous greenhouses 

and warehouses were located on the property. Reynolds also had a 

chemical supply business, Chem King, along with a warehouse and an 

apartment in Grants Pass, Oregon. Prior to moving to Murphy, 

Reynolds and defendant lived in Fresno, California. 

On August 27, 2003, Reynolds was fatally injured in a flash 

explosion that occurred in a warehouse located at 7515 Williams 

Highway. Defendant was not home, and Kori Hiser, the daughter of 

the property's caretaker, drove Reynolds to the hospital in nearby 

Grants Pass, Oregon. It is not disputed that Reynolds likely was 

manufacturing methamphetamine at the time of the explosion. 

2 - OPINION AND ORDER 
Defendant subsequently arrived home. Kori Hiser told 

defendant about the fire and of Reynolds' injuries, and the two of 

them drove to the hospital in Grants Pass. Reynolds was later 

transferred to the burn unit at Legacy Emanuel Hospital in 

Portland, Oregon. 

After defendant returned home from the hospital that night, 

she went to the warehouse where the explosion occurred and began 

cleaning it up. Defendant's sister, Samram Makham Thomas, assisted 

defendant in cleaning the warehouse area. Defendant and her sister 

placed broken glass and other debris in bags and boxes and loaded 

them into a white cargo van. They also attempted to salvage 

necessary papers for the businesses from an adjacent office area. 

According to defendant's testimony, she was worried, could not 

sleep, and wanted to clean up the area so that her "baby" 

(presumably her youngest daughter) would not get hurt. 

On August 28, 2003, defendant called Fred Ladd, a friend and 

drug associate of Reynolds. She told Ladd about the fire and asked 

Ladd for help. Ladd drove to Grants Pass with Vanessa Fox, who 

worked for Reynolds and defendant at the nursery. When they 

arrived, defendant asked Ladd to take the boxes in the van to Chem 

King, Reynolds1 chemical business in Grants Pass. Instead, Ladd 

rented a storage unit in Grants Pass, drove the van to the storage 

unit and unloaded the boxes. While Fox testified that defendant 

asked Ladd to rent the storage unit, defendant testified that Ladd 

3 - OPINION AND ORDER 
did so when he could not access Chem King. 

Debris from the explosion was loaded on a trailer and 

eventually taken to the property of Phil Davis, who lived across 

Williams Highway. Phil Davis and others who helped load the 

trailer testified that they did so at the request of Rory Hiser, 

the live-in caretaker and that defendant was not involved. 

That same day, August 28, 2003, defendant visited Reynolds in 

Portland with her sister, two daughters, and Kori Hiser. While in 

Portland, defendant called Sissie Smith and told her that Reynolds 

had been injured in a fire. Smith was a long-time friend and drug 

associate of Reynolds, and Reynolds delivered methamphetamine to 

her several times a year for Smith to distribute. Although 

Reynolds sometimes brought defendant on those trips, he would leave 

defendant at her friend Tipsidars house while he stayed in a motel 

and went to dinner, shopping, and to the movies with Smith. 

Defendant testified that she called Smith because Reynolds was 

supposed to meet her in Fresno, where Smith lived. Smith testified 

that defendant called and said Smith needed to come up and see 

Reynolds. 

A few days later, Smith arrived at defendant's residence. 

Defendant was in Portland at the hospital with Reynolds, so Smith 

spent the night and drove to Portland the next day. Smith 

testified that while she was visiting Reynolds in the hospital, she 

told defendant that there would be an "investigation" because a 

4 - OPINION AND ORDER 
chemical burn was different from a fire burn. In response, Smith 

testified that defendant nodded. 

Smith testified that after she and defendant drove back to 

Grants Pass, she discovered the "real" reason that defendant called 

her - to help defendant with "this mess." 

Although Smith's testimony was not a model of clarity, she 

testified that on September 6, 2003, she and defendant loaded boxes 

from the storage unit rented by Fred Ladd into the white cargo van 

andtookthemtoChemKing. Smith testified that she and 

defendant also washed glassware at Chem King and loaded up the 

glassware in boxes, and that defendant asked Smith if she could 

sell the glassware. While defendant admitted loading up the boxes, 

she denied helping Smith wash the glassware. Smith testified that 

she and defendant agreed that Smith should rent a U-Haul to haul 

the boxes back to Fresno. Defendant testified that it was Smith's 

idea to rent the U-Haul. 

Defendant accompanied Smith to rent a U-Haul in Grants Pass. 

Smith testified that defendant obtained a key to Reynolds's 

warehouse from Tony Huckaba, a business associate of Reynolds, to 

retrieve items from the warehouse. Smith testified that she 

llassumedll they were getting items from the warehouse because Smith 

knew Huckaba and Reynolds manufactured methamphetamine there. 

Smith testified that she and defendant spoke with Tony Huckaba 

about driving the U-Haul truck down to California. However , 

5 - OPINION AND ORDER 
Huckaba did not maintain contact with defendant, and Smith decided 

to drive the truck herself. Defendant and Samram attempted to 

persuade Smith to spend the night and leave the next morning, but 

Smith became anxious and left in the middle of the night. 

Early the next morning, on September 7, 2003, Smith was 

involved in an automobile accident on 1-5 near Red Bluff, 

California while driving the U-Haul truck with her Toyota Camry in 

tow. After a vehicle driven by Patricia Neese crashed into the 

Toyota, Smith lost control of the truck and the U-Haul truck rolled 

on its side in the center median. Smith remarked to the Neese that 

she was hauling chemicals and could not go back to prison. The CHP 

soon arrived on the scene, and Smith asked to use Neesets cell 

phone. 

Defendant received a call from Smith at 5:46 a.m., and Smith 

informed either defendant or defendant's daughter that she had 

rolled the U-Haul. 

Upon questioning, Smith admitted that she had chemicals and 

glassware used for manufacturing methamphetamine in the truck. 

After obtaining a search warrant, officers found 168 grams and 12 

grams of methamphetamine in separate containers, and 374 grams of 

pure ecstasy. Officers also located a box with the address of 

Southern Oregon Botanicals. 

DEA Agent Mark Shaver obtained search warrants for Reynolds' 

properties in Murphy, including Oregon Botanicals, Chem King, and 

6 - OPINION AND ORDER 
various storage facilities. The search warrants were executed on 

September 10 and 11, 2003. 

Defendant was in Portland with Kori Hiser during the execution 

of the search warrants. On September 12, 2003, agents contacted 

defendant at her residence. Government agents contend that 

defendant denied any knowledge of the fire or cleanup, initially 

denied knowing Smith, and denied knowing that Smith had rented a UHaul. Defendant was arrested and advised of her Miranda rights. 

On September 14, 2003, defendant was questioned while in the 

Jackson County Jail. Defendant admitted that she cleaned up the 

explosion site, she loaded the debris from the explosion in a white 

van, and that she had called Fred Ladd to help and take the 

glassware to Reynold's business. 

On September 16, 2003, Reynolds died from his injuries. 

Defendant was charged in a Superseding Indictment with 

Accessory After the Fact and Destroying Evidence on or about August 

28, 2003, (Counts 1 and 2), Accessory After the Fact and Destroying 

Evidence on or about September 6, 2003 (Counts 3 and 4), Witness 

Tampering (Count 5) , Distribution of Methamphetamine (Count 6), 

Distribution of MDMA (Count 7), and Conspiracy to Distribute 

Methamphetamine (Count 8) . 

Trial commenced on November 14, 2005. During her testimony, 

defendant admitted that she cleaned up the so-called lab site the 

night of the explosion, that she asked Fred Ladd to take boxes from 

7 - OPINION AND ORDER 
the lab site the day after the explosion, and that she assisted 

Sissie Smith in loading glassware and chemicals from Chem King and 

storage units into a U-Haul. However, defendant denied that she 

did so with the intent to help Reynolds avoid apprehension for the 

manufacture of methamphetamine, conceal evidence of a crime, or 

assist Smith or anyone else in committing or concealing evidence of 

a crime. Defendant also denies that she told or attempted to 

persuade Kori Hiser not to speak with law enforcement officers 

about Reynolds1 methamphetamine manufacturing. 

On November 18, 2004, after the close of evidence, defendant 

moved for judgments of acquittal as a matter of law under Federal 

Rule of Criminal Procedure 29. The court reserved ruling on 

defendant's Rule 29 motions and the jury deliberated as to all 

counts . 

After several hours of deliberation, the jury returned 

verdicts of not guilty on Counts 1, 2, 6, 7, and 8 and verdicts of 

guilty on Counts 3, 4, and 5. Thus, the jury found defendant 

guilty of Accessory After the Fact and Destroying or Concealing 

Evidence on or about September 6, 2003, and Witness Tampering on or 

about September 12, 2003. The court subsequently took defendant's 

Rule 29 motion under advisement. 

On November 25, 2005, defendant moved for new trial pursuant 

to Federal Rule of Criminal Procedure 33. Pursuant to Rule 

29(d)(l), the court considers both motions. 

8 - OPINION AND ORDER 
DISCUSSION 

At the outset, it is impossible to convey the difficulties 

associated with this trial because of defendant's limited ability 

to speak English, her difficulty in understanding English, and her 

illiteracy in both the English and Thai languages, all of which 

exacerbated the court's, counsel's, and the jury's difficulty in 

comprehending defendant's testimony. Defendant's English is 

heavily accented, with /r/ sounding like /1/, /v/ sounding like 

/w/, and /s/ sounding like /th/ as some examples, and even when 

speaking slowly it is difficult to understand her. During her 

testimony, defendant often mixed her tenses and always used the 

pronoun "he," even if referring to a woman or more than one person. 

Additionally, defendant is a rather unsophisticated 

individual, having attended school for one day in Thailand and 

coming to the United States after Reynolds visited Thailand and was 

introduced to defendant upon telling his driver he was looking for 

a bride. Uncontested testimony at trial depicted Reynolds to be a 

controlling, abusive, and secretive man who treated defendant more 

like a maid than a wife. 

Several times during the trial, it was apparent that defendant 

was confused, either because of the testimony or the proceedings. 

One of the interpreters interrupted defendant's testimony at least 

once to inform the court that defendant's testimony and answers to 

questioning, spoken in Thai, were confusing. 

9 - OPINION AND ORDER 
Likewise, the court reporter interrupted defendant's testimony 

repeatedly, and the court often read back defendant's testimony to 

help the court reporter, counsel, and the jury understand what 

defendant had said. At one point, the court reporter, a seasoned 

professional, stated to the court that she was not confident that 

she could certify an accurate transcript of the proceedings. 

Thus, the tenor of the testimony, along with the demeanor, 

appearance and credibility of defendant, simply cannot be fully 

grasped when reduced to words in a transcript. 

A. Motion for Judqments of Acquittal as a Matter of Law 

The court must determine whether sufficient evidence supports 

the jury's guilty verdicts on Counts 3, 4, and 5. 

A challenge to the sufficiency of the evidence requires this 

court to determine whether 'after viewing the evidence in the 

light most favorable to the prosecution, any rational trier of fact 

could have found the essential elements of the crime beyond a 

reasonable doubt.'" United States v. Pearson, 391 F.3d 1072, 1075 

(9th Cir. 2004) (quoting Jackson v. Virqinia, 443 U.S. 307, 319 

(1979) ) . However, "when there is an innocent explanation for a 

defendant 's conduct as well as one that suggests that the defendant 

was engaged in wrongdoing, the Government must produce evidence 

that would allow a rational jury to conclude beyond a reasonable 

doubt that the latter explanation is the correct one.11 United 

States v. Delqado, 357 F.3d 1061, 1068 (9th Cir. 2004) (citing 

10 - OPINION AND ORDER 
United States v. Vasguez-Chan, 978 F.2d 546, 549 (9th Cir. 1992)). 

1. Accessory After the Fact and Destrovinq Evidence 

The jury found defendant guilty of Accessory After the Fact to 

the crime of Manufacture and Distribution of Methamphetamine on or 

about September 6, 2003 as charged in Count 3, and Destroying 

Evidence on or about September 6, 2003 as charged in Count 4. The 

court discusses these counts together, because they are based on 

the same conduct of defendant. 

Under 18 U.S.C. § 3, a person is an accessory if the person 

knows a crime has been committed by someone and assists the 

offender in order to hinder or prevent the offender's arrest. 

Thus, to be found guilty of Accessory After the Fact as charged in 

Count 3, the government was required to prove beyond a reasonable 

doubt that: 1) defendant knew that Dave Reynolds had committed the 

crime of manufacture and distribution of methamphetamine; and 2) 

that defendant assisted Dave Reynolds with the intent to hinder or 

prevent their apprehension or punishment by concealing chemicals 

and laboratory glassware on or about September 6, 2003. 

Under 18 U.S.C. § 1.512 (c) (1) , it is unlawful to "corruptly" 

alter, destroy, or conceal "a record, document, or other object, 

with the intent to impair the object's integrity or availability 

for use in an official proceeding." Thus, to be found guilty of 

Destroying or Concealing Evidence as charged in Count 4, the 

government was required to prove beyond a reasonable doubt that : 1) 

11 - OPINION AND ORDER 
on or about September 6, 2003, the defendant knowingly and 

corruptly concealed chemicals and laboratory glassware; and 2) 

defendant acted with the intent to impair such physical evidence's 

integrity or availability for use in an official proceeding. 

Significantly, the jury acquitted defendant of Accessory After 

the Fact and Destroying Evidence as charged in Counts 1 and 2. 

These charges were based on defendant's actions in cleaning the 

explosion site and removing boxes and glassware from the site on 

August 28, 2003. It is difficult to reconcile the jury's verdicts 

on Counts 1 and 2 with their verdicts on Counts 3 and 4, given the 

evidence presented at trial. 

In support of Counts 1 and 2, the government presented 

evidence that after visiting Reynolds in the hospital with Kori 

Hiser, defendant returned home and - using headlights from the van 

- cleaned up the site of the explosion. Rory Hiser, the caretaker 

for the property, testified that defendant stated that she needed 

to clean the area because she did not want the police to come, or 

words to that effect. Rory Hiser also testified that defendant 

asked him to remove some damaged cabinetry from the warehouse and 

move it to Davis's property. Finally, Fox testified that defendant 

called Fred Ladd and asked for his help in moving some boxes from 

the warehouse to the place of Reynolds chemical business. 

The jury necessarily rejected the testimony of Hiser and did 

not find that her actions in cleaning up the warehouse site or 

12 - OPINION AND ORDER 
calling Fred Ladd proved beyond a reasonable doubt that defendant 

concealed debris from the explosion with the knowledge that 

Reynolds had committed the crime of methamphetamine manufacturing 

and with the intent to prevent or hinder his apprehension or 

arrest. Likewise, the jury necessarily found that the government 

had not proven beyond a reasonable doubt that defendant acted with 

the intent to conceal evidence of methamphetamine manufacturing to 

prevent the use of such evidence in an official proceeding. Given 

that the evidence in support of Counts 1 and 2 was far more 

incriminating, the jury's verdicts on Counts 3 and 4 are not 

justified by the evidence. Regardless, I find the evidence 

insufficient to establish the necessary criminal intent. 

In support of Counts 3 and 4, the government presented 

evidence that defendant and Sissie Smith loaded a U-Haul truck with 

glassware and chemicals for transport to Fresno. However, unlike 

the evidence presented in support of Count 1 and 2, no witness 

testified that defendant was worried about the police or any 

investigation. Instead, Smith testified that defendant asked for 

help "with this mess" and asked Smith to sell the glassware. While 

Smith testified that she told defendant there might be an 

"investigation," defendant did not respond and only nodded. Given 

the admitted communication difficulties between Smith and 

defendant, such evidence is hardly sufficient evidence to show 

defendant's intent beyond a reasonable doubt. Indeed, Smith 

13 - OPINION AND ORDER 
testified that she simply made uassumptionsn as to what defendant 

was telling her because Smith could not understand her. 

Further, Smith testified that it was she, not defendant, who 

was anxious to leave with the U-Haul, and that defendant tried to 

convince Smith to spend the night. Kori Hiser testified that 

defendant expressed no concern about the police or law enforcement 

authorities after defendant found out that Smith had been in an 

accident and rolled the U-Haul. Instead, defendant told Kori that 

she did not know why people kept calling her with their problems. 

If defendant had sent the glassware and chemical with Smith to 

conceal them, common sense dictates that she would view Smith's 

accident as her problem, too. However, the testimony reflects 

defendant's lack of concern. 

Moreover, no witness testified that defendant was concerned 

that Reynolds would be arrested or detained when she and Smith 

loaded the U-Haul on September 6, one week after the explosion. 

There was simply not sufficient evidence presented to show beyond 

a reasonable doubt that defendant acted with the intent to conceal 

the chemical and glassware to assist Reynolds in avoiding arrest 

and apprehension, or to prevent the glassware and chemicals from 

being used in an official proceeding. 

Further, as to Count 3, I find the evidence insufficient to 

establish beyond a reasonable doubt that defendant knew Reynolds 

was manufacturing or distributing methamphetamine. No witness 

14 - OPINION AND ORDER 
testified that defendant was present when Reynolds manufactured 

methamphetamine, or that defendant ever saw methamphetamine, knew 

was it was, or knew that it was an illegal drug. Further, no 

witness testified that defendant knew Smith and Ladd distributed 

drugs for Reynolds. Although Smith testified that defendant was 

present on one or two occasions where Reynolds ordered her to 

retrieve a package or count money, no mention of drugs or 

methamphetamine was made, and the drugs were always sealed in a pet 

food or laundry detergent box. While the totality of the 

circumstances may have led defendant to believe that Reynolds was 

involved in illegal activity of some kind associated with 

chemicals, the evidence does not establish beyond a reasonable 

doubt that defendant knew Reynolds had committed the crime of 

manufacturing or distributing methamphetamine. 

As to Count 4, the government also failed to establish that a 

sufficient nexus between defendant's acts of concealing evidence 

and an official proceeding. Arthur Andersen v. United States, 125 

S. Ct. 2129, 2137 (2005). In Arthur, the Securities and Exchange 

Commission had begun an investigation into alleged accounting 

improprieties when Arthur Andersen employees were instructed to 

destroy documents under their document retention plan. Id. at 

2133. The Court found the relevant instruction erroneous, because 

it did not require a nexus between the document destruction and the 

"official proceeding." 'If the defendant lacks the knowledge that 

15 - OPINION AND ORDER 
his actions are likely to affect the judicial proceeding . . . he 

lacks the requisite intent to obstruct." Id. 

Here, not only was no official proceeding impending or about 

to be instituted at the time defendant assisted Smith in loading 

boxes and chemicals into the U-Haul, no official proceeding was 

even foreseen. On September 6, 2003, there was no known 

investigation of the explosion, and no police officers had talked 

to defendant, her family, or her employees. Thus, no evidence 

suggests that defendant possessed the knowledge that her actions on 

September 6, 2003 were likely to affect an official proceeding, and 

the evidence is thus insufficient to support defendant's conviction 

on Count 4. 

Finally, the court provided an aiding and abetting instruction 

with regard to Count 4. To prove the defendant guilty of aiding 

and abetting, the government was required to prove that defendant 

"knowingly and intentionally aided, counseled, commanded, induced 

or procured" Sissy Smith to commit the crime of destroying 

evidence, and that defendant acted with the knowledge and intention 

of helping Smith commit the crime. For the reasons explained 

above, I find the evidence insufficient to establish defendant's 

intent that defendant acted with the intent to assist Smith in 

committing a crime. 

2. Witness Tamperinq 

Finally, the jury found defendant guilty of witness tampering 

16 - OPINION AND ORDER 
on or about September 12, 2003, as charged in Count 5. As relevant 

here, 18 U.S.C. § 1512 (b) (3) makes it unlawful to "corruptly 

persuade[] another person . . . with intent to . . . hinder, delay, 

or prevent the communication to a law enforcement officer or judge 

of the United States of information relating to the commission or 

possible commission of a Federal offense." 

The evidence presented at trial to support this charge 

consisted of the following: Kori Hiser testified that defendant 

repeated to her, "You know nothing,I1 and told Kori to say that she 

(Kori) "knew nothing. " Kori Hiser also testified that defendant 

stated that Reynolds had told her "they can't prove anything if you 

don't admit it," or words to that effect. 

In the Ninth Circuit, it remains an opens question whether 

"merely attempting to persuade a witness to withhold cooperation 

or not to disclose information to law enforcement officials - as 

opposed to actively lying - falls within the ambit of § 1512(b) ." 

United States v. Sanders, 421 F.3d 1044, PO50 (9th Cir. 2005) 

(quoting United States v. Khatami, 280 F.3d 907, 913 (9th Cir. 

2002) ) . However, I find persuasive the reasoning of the Third 

Circuit in United States v. Davis, 183 F.3d 231, 249-50 (3d Cir.) , 

as amended by, 197 F.3d 662 (3d Cir. 1999) and United States v. 

Farrell, 126 F.3d 484, 488 (3d Cir. 1997). In those cases, the 

Third Circuit reasoned that 'more culpability is required for a 

statutory violation [under § 1512 (b) ] than that involved in the act 

17 - OPINION AND ORDER 
of attempting to discourage disclosure in order to hinder an 

investigation." Davis, 183 F.3d at 250 (quoting Farrell, 126 F.3d 

at 489). 

Here, the evidence - when viewed in the light most favorable 

to the government - showed that defendant said to Kori Hiser, "You 

know nothing," and to repeat that Kori knew nothing when asked. 

Even if defendant intended to persuade Kori Hiser to withhold 

information from law enforcement officers, I find that this 

evidence does not establish the requisite culpability to sustain 

defendant's conviction on Count 5 under the reasoning in Davis, 

F.3d at 250. 

Moreover, the evidence presented is insufficient to show 

beyond a reasonable doubt that defendant at t,empted to " corruptly 

persuade" Kori Hiser with the intent to prevent or impede the flow 

of information to law enforcement officers regarding Reynolds' 

alleged methamphetamine crimes. In Arthur Andersen, the Supreme 

Court held that "corruptly" under § 1512 means "knowingly and 

dishonestly, with the specific intent to subvert or undermine the 

integrity" of an investigation by federal officers. 125 S. Ct. at 

2136. Here, the context of defendant's statement to Kori Hiser was 

never made clear. Defendant could have been concerned about Kori 

Hiser's culpability, or, as several people testified, did not want 

others to know that Reynolds was in the hospital. 

In sum, I find that the evidence was insufficient as a matter 

18 - OPINION AND ORDER 
of law to convict defendant of Accessory After the Fact and 

Destroying Evidence based on her actions on September 6, 2003, or 

of Witness Tampering based on defendant's statement to Kori Hiser 

on or about September 12, 2003. 

B. Motion for New Trial 

"A district court's power to grant a motion for a new trial is 

much broader than its power to grant a motion for judgment of 

acquittal. United States v. Alston, 974 F.2d 1206, 1211 (9th Cir. 

1992). "The court is not obliged to view the evidence in the light 

most favorable to the verdict, and it is free to weigh the evidence 

and evaluate for itself the credibility of the witnesses." United 

States v. Kellinqton, 217 F.3d 1084, 1097 (9th Cir. 2000). 

Thus, [ilf the court concludes that, despite the abstract 

sufficiency of the evidence to sustain the verdict, the evidence 

preponderates sufficiently heavily against the verdict that a 

serious miscarriage of justice may have occurred, it may set aside 

the verdict, grant a new trial, and submit the issues for 

determination by another jury." Kellinqton, 217 F.3d at 1097 

(quoting United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 

1980)). 

Here, even if evidence presented at trial is sufficient, in 

theory, to support convictions for Accessory After the Fact, 

Destroying Evidence, and Witness Tampering, I find that the clear 

weight of the evidence "preponderatesu heavily against the verdict 

19 - OPINION AND ORDER 
and that a serious miscarriage of justice has occurred. 

As explained above, defendant is an unsophisticated person and 

provided often-confusing testimony, even when speaking in her 

native Thai language through interpreters. Given the undisputed 

difficulty that others have in understanding defendant when she 

speaks English, this court is not confident that any witness's 

account of her statements, or her intent in making those 

statements, is accurate. This is not to say that witnesses were 

untruthful (although Sissie Smith1 s and Vanessa Fox's testimony was 

inconsistent and inconclusive). Thus, what defendant said to Kori 

Hiser, Smith, Fox and others, and her intent underlying those 

statements, is questionable, at best. This is best exemplified by 

Smith's testimony that she was proceeding on "assumptions" as to 

what defendant meant. 

Likewise, the court is not confident that defendant's alleged 

statements to government agents during questiloning on September 12 

or September 14 are accurate, given that the government did not 

record her interviews or have an interpreter. Indeed, the reports 

containing the substance of defendant's questioning did not reflect 

defendant's "own wordsn given in response to the agents' questions. 

The agents' interpretation of defendant's answers indicate a 

vocabulary and mastery of the English language that defendant 

simply does not possess. At trial, the agents admitted that 

defendant does not speak in the matter depicted in the reports, and 

20 - OPINION AND ORDER 
that they had some difficulty speaking with and understanding her. 

After listening to defendant testify for two days, it is difficult 

to fathom that agents unfamiliar with defendant or the manner in 

which she speaks were able to understand her answers accurately or 

ensure that she understood them. 

Moreover, the government presented no persuasive evidence that 

defendant intended to conceal evidence in helping Smith load 

glassware and chemicals. As explained above, Smith testified that 

defendant simply wanted her help "with this mess" and that 

defendant asked her to sell the glassware. No witness testified 

that defendant was worried about a police investigation or the 

potential arrest of Reynolds. Further, I do not find credible 

Smith's testimony that defendant led her around when loading up 

boxes on September 6. Defendant testified that it was Smith who 

wanted the chemicals and glassware, and given Smith' s long- standing 

involvement with methamphetamine manufacturing and distribution and 

her knowledge of Reynolds' operation, it is more likely that Smith 

knew where Reynoldst chemicals and equipment were and viewed the 

situation as an opportunity to acquire this equipment to better her 

own financial lot. This interpretation of the evidence is also 

consistent with Fox's grand jury testimony, presented at trial, 

that Smith was "riding" defendant and "pushing" defendant to give 

Smith "everything." 

Finally, without question, Fox and Smith had ample motivation 

21 - OPINION AND ORDER 
to provide testimony favorable to the government. While the court 

recognizes that the government is allowed to, and often must, 

utilize cooperating witnesses, Fox and Smith were admitted 

methamphetamine manufacturers or distributers who received decades 

off of their sentences in exchange for their testimony against 

defendant. None of the cooperating witnesses, or any other person 

involved for that matter, was charged with Accessory After the Fact 

or Destroying Evidence, even though Smith, Fox, her sister Susie, 

Rory Hiser, and Fred Ladd were directly involved with disposing of 

evidence from the explosion site and had knowledge or were involved 

in Reynolds' drug activities. 

In further support of her motion for new trial, defendant 

argues that the jury instructions defining "corrupt" and 

"corruptly" were inadequate with respect to Counts 4 and 5. For 

the reasons explained regarding the sufficiency of the evidence, 

defendant is correct. The court should have provided instructions 

that "corruptly," as used in § 1512, means "knowingly and 

dishonestly, with the specific intent to subvert or undermine the 

integrity of a proceeding," or an investigation by a federal law 

enforcement officer. Arthur Andersen, 125 S. Ct. at 2136. 

Finally, with respect to the destroying evidence charge in 

Count 4, the court accepted the government's instruction that an 

official proceeding need not be pending or about to be instituted 

at the time of the offense, as provided in 18 U.S.C. § 1512(e). 

22 - OPINION AND ORDER 
However, in Arthur Andersen, the Supreme Court rejected such as 

instruction, reasoning that "[i] t is, however, one thing to say 

that a proceeding 'need not be pending or about to be instituted at 

the time of the offense, ' and quite another to say a proceeding 

need not even be foreseen." 125 S. Ct. at 2137. Thus, the Court 

held that § 1512 requires a "nexus between the obstructive act and 

the proceeding." - Id. (quoting United States v. Asuilar, 515 U.S. 

593, 599-600 (1995) . The court's instruction did not include a 

such a "nexus" and therefore was inadequate. 

In light of the overwhelming language barriers, defendant's 

credibility and her lack of sophistication, the obvious selfserving testimony of cooperating witnesses, and the absence of 

evidence establishing the intent to commit the offenses of 

conviction, I find that the evidence weighs heavily against the 

verdicts. Moreover, given that the court provided inadequate 

instructions regarding the meaning of "corruptly" and the necessary 

nexus with an official proceeding, a miscarriage of justice would 

occur if defendant, at a minimum, did not receive a new trial. 

CONCLUSION 

In my eighteen years on the bench as a state and federal 

judge, I have not granted a motion for judgment of acquittal as a 

matter of law after a jury has returned a verdict of guilty. 

However, I have also never had a criminal trial or a defendant such 

as this. 

23 - OPINION AND ORDER 
For the reasons explained above, defendant's Motion for 

Judgments of Acquittal as a Matter of Law as to Counts 3, 4, and 5 

of the Superseding Indictment is GRANTED. The verdicts of guilty 

rendered with respect to those counts are HEREBY VACATED. 

Alternatively and conditionally, defendant's Motion for New Trial 

(doc. 93) as to Counts 3, 4, and 5 is GRANTED. 

IT IS SO ORDERED. 

Dated thisi 3 day of December, 2005. 

Ann Aiken 

United States District Judge 

24 - OPINION AND ORDER