2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-25-2010

USA v. Lan Dang

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-4335

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 08-4335

____________

UNITED STATES OF AMERICA

v.

LAN DANG, a/k/a Uncle,

Lan Dang Appellant

____________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Crim. No. 2-06-cr-00690-001)

District Judge: Honorable J. Curtis Joyner

____________

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

December 15, 2009

Before: SLOVITER, JORDAN and WEIS, Circuit Judges.

 (Filed January 25, 2010)

____________

OPINION 

 

WEIS, Circuit Judge.

 Evidence at the defendant’s trial demonstrated that defendant and his

associates imported and distributed, or attempted to distribute, 138,000 MDMA
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(“ecstacy”) pills and laundered $190,000. The jury found defendant guilty of count I,

conspiracy to import ecstacy, in violation of 21 U.S.C. § 963; count II, importation of

ecstacy, in contravention of 21 U.S.C. § 952(a) and §§ 960(a) and (b); and count IV,

conspiracy to launder monetary instruments, in violation of 18 U.S.C. § 1956(h). The

District Court sentenced defendant to 180 months on count I; a consecutive 120 months

on count II; and a consecutive 180 months on count IV, making the total sentence 480

months’ imprisonment. In addition, supervised release and a fine were imposed.

I.

Defendant contends on appeal that the District Court erred in permitting the

government to introduce charts that included information unrelated to the underlying

documents and which referred to defendant as “Uncle.” We disagree. 

The government had to rely on circumstantial evidence to show that

defendant was known as “Uncle” and was the supplier of the pills. The government’s

evidence consisted of, among other things, the interfamilial relationships among many of

those involved in the transactions, photographs of the participants, cell phone records of

various conspirators, and transcripts of intercepted telephone calls. 

The documentation was extensive, and in presenting its case, the

government utilized charts containing photographs of alleged conspirators, telephone

numbers, the number of contacts, and dates when calls occurred. These factors were used

to show communications among the conspirators, and captions in the charts designated

criminal transactions, the dates that those transactions took place, and a photograph of
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defendant by name and as “Uncle.” A special agent testified about preparation of the

charts and the documentary source of the information they presented. 

The District Court instructed the jurors on the use of charts and later

specifically noted that they were to resolve whether defendant was “Uncle.” Admission

of the charts for consideration by the jury was at the discretion of the trial court. See

United States v. Starnes, 583 F.3d 196, 213-14 (3d Cir. 2009). We find no error in the

admission here. See id. at 214 (“[w]e will not disturb a trial court’s exercise of discretion

unless no reasonable person would adopt the district court’s view”); see also United

States v. Velasquez, 304 F.3d 237, 240 (3d Cir. 2002) (“[t]he use of summaries and charts

is proper and may be put before a jury with limiting instructions”).

II.

The government called Tram “Sara” Nguyen as a witness to identify a

photograph of defendant as her uncle. On taking the stand, Sara invoked the Fifth

Amendment. The prosecution then read to the jury a court order granting immunity to

Sara. Defendant contends that he was prejudiced by this procedure because the

government knew in advance that the witness would invoke the Fifth Amendment and the

immunity order was signed by the district judge and conveyed that Sara’s testimony “may

be necessary to the public interest.” Trial counsel did not object and, therefore, we

review the matter for plain error. United States v. Boone, 279 F.3d 163, 174 n.6 (3d Cir.

2002). 

Defense counsel had the opportunity to cross-examine the witness on the
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details of her initial refusal to testify and her compliance with the grant of immunity. The

jury was instructed to examine and weigh her testimony “with greater care than the

testimony of” a non-immunized witness in determining her credibility. It matters not

whether the information was presented by the government or the defense in this case. 

There was no prejudice to the defendant and no error, let alone plain error, in the

admission of this testimony. See United States v. Crouch, 528 F.2d 625, 632-33 (7th Cir.

1976) (where a government witness invoked the Fifth Amendment and was subsequently

given immunity, no “impermissible inferences could have been drawn . . . since the

witness took the stand, testified, and was the subject of rather extensive crossexamination”).

III.

Defendant finally contends that the sentence of 480 months’ incarceration

imposed on him was unreasonable in view of the fact that he had no prior criminal history

and his co-defendants, who were career criminals, received less severe sentences. 

The maximum Guideline sentence that could be imposed in this case was

720 months. Defense counsel argued ably and at length in the District Court that the

maximum punishment was not appropriate. He noted that although conspiracy and its

substantive offense are separate crimes, generally it is inappropriate to impose

consecutive sentences for the two counts. See 28 U.S.C. § 994(l)(2). Moreover, two codefendants each received 360 months terms of imprisonment. 

The Court pointed out that defendant was a leader in the operation, that a
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very large number of pills had been imported, and that defendant had also obstructed

justice. In addition, the Court reviewed the factors listed in 18 U.S.C. § 3553 and

concluded that the sentence was in accordance with those requirements. The Court noted

its obligation to give strong consideration to the Guidelines. 

It is not our function to consider what sentence we would impose here. See

United States v. Wise, 515 F.3d 207, 218 (3d Cir. 2008) (“[w]e may not reverse the

district court simply because we would have imposed a different sentence”). The District

Court heard the evidence on the scope of the illegal activities and exercised its discretion. 

We defer to that discretion where the District Court committed no error in its calculations. 

See United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (“absent any significant

procedural error, we must ‘give due deference to the district court’s determination that the

§ 3553(a) factors, on a whole,’ justify the sentence” (citation omitted)). We see no basis

for a finding of error, particularly here where the Court had the opportunity to assess the

legality of the sentence under § 3553. 

Accordingly, we will affirm the Judgment of the District Court.