UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4841
BINH DUY PHAM,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Gerald Bruce Lee, District Judge.
(CR-02-275)
Argued: September 26, 2003
Decided: October 29, 2003
Before WIDENER, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Frank Willard Dunham, Jr., Federal Public Defender,
Alexandria, Virginia, for Appellant. LeDora Knight, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee. ON BRIEF: Michael S. Nach-
manoff, Assistant Federal Public Defender, Frances H. Pratt,
Research and Writing Attorney, Alexandria, Virginia, for Appellant.
Paul J. McNulty, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.
2 UNITED STATES v. PHAM
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Appellant Binh Duy Pham was convicted by a jury on two drug
charges — distribution of ecstasy, in violation of 21 U.S.C. § 841(a),
and conspiracy to distribute ecstasy, in violation of 21 U.S.C. § 846.
The district court sentenced Pham to 78 months of imprisonment and
three years of supervised release. Pham appealed, arguing that (1) the
district court improperly removed for cause a prospective juror who
stated that she was not certain she could be impartial, in part because
she was Vietnamese (like Pham and the key witnesses) and (2) the
district court improperly enhanced his sentence for obstruction of jus-
tice without making an independent finding that Pham committed per-
jury at trial. For the reasons that follow, we affirm the judgment of
the district court.
I.
A grand jury returned an indictment charging Pham with conspir-
acy to distribute, and distribution of, methylenedioxymethamphet-
amine (commonly known as ecstasy). At the outset of voir dire,
defense counsel introduced Pham to the jury along with his interpret-
ers. Counsel explained that Pham’s native language is Vietnamese.
After asking some preliminary questions, the district court asked
the potential jurors whether there were any members of the jury panel
"who because of individual beliefs, moral or religious experiences or
attitudes feel that you cannot sit in judgment of another human being
as a juror and follow the instructions of the law." There being no
response, the district court asked again, "Is there any person because
of religious, moral or other attitude believes you cannot sit as a juror
and follow the instructions of law as the judge would give them to
you at the end of the case?" Again, there was no response. The district
court rephrased his question once more: "Do you know of any reason
UNITED STATES v. PHAM 3
why you could not be fair to both the accused and the government in
this case?"
At this point, prospective juror Mai Bui indicated that she wished
to "[g]ive a reason why I cannot sit." The court called Bui to the
bench, where this exchange followed:
MS. BUI: Because I am Vietnamese and I’m Catho-
lic, I think I can’t sit, be fair to the — to
sit as a juror.
THE COURT: Okay. Why?
MS. BUI: Why? I think I have tend to be more com-
passionate? So, I cannot sit.
THE COURT: Okay, well —
MS. BUI: But, as you mentioned when I came up to
you, I can speak Vietnamese and I can
speak English very well, and I’m a doc-
toral student in theology, so maybe I don’t
know. I have very mixed feelings about,
you know.
THE COURT: Okay. When you say you have fixed [sic]
feelings, do you have an opinion right
now?
MS. BUI: No.
THE COURT: Do you think he’s guilty or —
MS. BUI: No, except that, you know, as a Vietnam-
ese, I feel that I cannot be fair, you know.
...
THE COURT: Suppose he was Anglo, the accused was
Anglo, do you think you would be fair to
someone who is Anglo?
4 UNITED STATES v. PHAM
MS. BUI: I’m sure that I’d be fair.
THE COURT: Suppose that he was Black. Do you think
you would be fair to him if he was a Black
defendant?
MS. BUI: Yeah, but you know the situation because
the situation of he’s — I don’t know about
him, but of our situation I think, emo-
tional.
Defense counsel then attempted to rehabilitate Bui by examining the
reasons why she thought she might not be fair:
[Counsel]: . . . Are you saying that because of your
religious background, because of your eth-
nic background, you’re a compassionate
person? Is that —
MS. BUI: Uh-huh, yeah.
[Counsel]: Can you say as you stand here whether
you were — if you were called upon to
make a verdict in this case would be influ-
enced by the fact that Mr. Pham and I
think some government witnesses are of
the same national origin as you?
MS. BUI: I think, if I hear all the witness[es], I may
be fair. But it’s going to be very hard for
me.
MR. CLARK: Because of your religious beliefs?
MS. BUI: Yeah, and you know, my Vietnamese
background, too.
The government moved to strike Bui for cause on the ground that
she "says candidly that she does not believe she can be fair because
UNITED STATES v. PHAM 5
of her ethnic background and also because of [her] religious back-
ground. And at one time she started to get very emotional and well
up as if she was going to cry as she was discussing this." The district
court struck Bui from the venire, concluding that "she exhibited that
she has an opinion that because of her ethnic background and religion
that she would find it difficult and maybe could not be fair." The dis-
trict court further noted that Bui "seemed to well up at one point that
she would cry, and I was afraid to push her."
At trial, the government’s witnesses testified that Thanh Ngo, a
government informant, arranged to purchase 3,000 pills of ecstasy
from Tuoc Kim Bao for $23,250. Bao agreed to the deal after con-
cluding that he could obtain 3,000 pills from his supplier, Pham. On
March 27, 2002, Bao drove to Pham’s house, where he picked up
Pham and a box containing the ecstasy pills. Pham placed the box in
the trunk of Bao’s car. Bao and Pham then drove from Philadelphia,
Pennsylvania (where they lived) to the Fairfax, Virginia restaurant
where the sale was to take place.
When they arrived at the restaurant, Bao called Ngo, who was
waiting inside. While they waited for Ngo to come out to the car,
Pham retrieved the box of pills from the trunk. According to Bao,
Pham then transferred the pills into an empty Burger King bag and
placed the bag on the floor by his feet. Almost immediately after Ngo
got into the back seat of Bao’s car, Ngo asked about the pills. Pham
picked up the bag from the floor by his feet and showed it to Ngo.
Ngo instructed Bao to deliver the bag to Ngo’s car, and he left. Ngo
retrieved a bag of money from the trunk of his car, got back in his car,
and exchanged bags with Bao. Bao was arrested when he left Ngo’s
car. Pham, who remained in Bao’s car, was also arrested. The officer
who searched Pham after his arrest discovered an address book, three
ecstasy tablets, two cell phones, and $1165 in cash.
Pham testified in his own defense. He admitted that he knew Bao
was a drug dealer, but he denied that he was Bao’s supplier. Pham
further testified that he thought the purpose of the trip to Fairfax was
to collect money and pay gambling debts, not to deliver drugs. Pham
also stated that he gave Bao an empty box on the morning of March
27; it was not until Bao transferred the pills from the box to the Bur-
ger King bag that Pham realized there were drugs in the box.
6 UNITED STATES v. PHAM
After two days of trial, the jury convicted Pham on both counts of
the indictment. The presentence report ("PSR") recommended
enhancing Pham’s sentence for obstruction of justice based on his tes-
timony at trial. The PSR described the testimony as follows:
At trial, the defendant testified that he was not aware that
the foil package given to the "confidential source" contained
MDMA, and it was his understanding Bao (co-defendant)
was making the trip to Virginia to collect a gambling debt.
However, Tuoc K. Bao’s (co-defendant) testimony revealed
that the defendant was the supplier of the MDMA tablets
and he was fully aware that the purpose of the trip to Vir-
ginia was to distribute the 3,000 MDMA tablets. The "confi-
dential source" collaborated [sic] Tuoc K. Bao’s testimony.
Pham made no objection to the presentence report, including the rec-
ommended enhancement for obstruction of justice. The district court
adopted the findings contained in the presentence report and sen-
tenced Pham to 78 months of imprisonment. This appeal followed.
II.
Pham raises two claims on appeal: (1) that the district court’s deci-
sion to remove Bui from the jury panel on account of her perceived
bias violated both the Due Process Clause of the Fifth Amendment
and 28 U.S.C. § 1862 and (2) that the district court improperly
enhanced Pham’s sentence for obstruction of justice without making
an independent finding that he had perjured himself during trial.
A.
Pham contends that the removal of Bui from his jury violated both
his Fifth Amendment due process right and a statutory prohibition
against discrimination in seating jurors. Pham argues that the district
court improperly removed Bui from the venire on account of her eth-
nicity and religion, not on account of her inability to be impartial. We
review a district court’s decision to remove a prospective juror for
cause for "manifest abuse of discretion." Poynter v. Ratcliff, 874 F.2d
219, 222 (4th Cir. 1989).
UNITED STATES v. PHAM 7
When presented with a request to remove a prospective juror for
cause, the district court must determine whether the juror "could be
fair and impartial and decide the case on the facts and law presented."
See United States v. Capers, 61 F.3d 1100, 1105 (4th Cir. 1995). The
Supreme Court of the United States has noted that "the determination
is essentially one of credibility, and therefore largely one of demea-
nor." Patton v. Yount, 467 U.S. 1025, 1038 (1984). Thus, "the trial
court’s resolution of such questions is entitled, even on direct appeal,
to special deference." Id.
Bui volunteered her own concerns about her ability to be fair and
impartial. She stated on multiple occasions that she did not believe
she could be fair. At best, Bui stated that it would be "very hard" for
her to remain impartial. As she explained these concerns, Bui
appeared to counsel and the court to be distressed. Given these cir-
cumstances, the district court was well within its discretion to remove
Bui from the venire. See Capers, 61 F.3d at 1104-05 (affirming dis-
trict court’s removal for cause of prospective juror who said "he
thought he might favor the government"); United States v. Thompson,
744 F.2d 1065, 1067-68 (4th Cir. 1984) (reversing conviction where
district court declined to remove a juror who stated during trial that
he was "not sure that [he] could be totally fair" after viewing certain
evidence).1
B.
Pham further contends that the district court erred by enhancing his
base offense level for obstruction of justice without making a specific
finding that Pham had committed perjury. Because Pham did not
object to this enhancement at sentencing, we review the district
court’s ruling for plain error. See United States v. Olano, 507 U.S.
1
Because we conclude that the district court excused Bui from jury ser-
vice on account of its concerns about her ability to be impartial — not
on account of her race or ethnicity — Pham’s claims under both the Fifth
Amendment and 28 U.S.C. § 1862 fail for lack of a factual predicate.
Thus, we need not decide here whether the rule announced in Batson v.
Kentucky, 476 U.S. 79 (1986), applies to for-cause challenges. Cf. United
States v. Elliott, 89 F.3d 1360, 1364-65 (8th Cir. 1996) (holding that Bat-
son is limited to peremptory challenges).
8 UNITED STATES v. PHAM
725, 732-37 (1993). Under this standard of review, Pham must estab-
lish an error that is plain and affects substantial rights. See id. at 732.
"Deviation from a legal rule is ‘error’ unless the rule has been
waived." Id. at 733. An error is plain if it is "clear under current law,"
and a plain error affects substantial rights if it "affected the outcome
of the district court proceedings." Id. at 734. Upon finding a plain
error, we may grant relief only if the error "seriously affects the fair-
ness, integrity, or public reputation of judicial proceedings." Id. at
736.
The United States Sentencing Guidelines instruct a sentencing
court to apply a two-level enhancement to the base offense level if the
defendant committed perjury during his testimony at trial. U.S.S.G.
§ 3C1.1 & comment. n.4(b). A defendant commits perjury if he "gives
false testimony concerning a material matter with the willful intent to
provide false testimony, rather than as a result of confusion, mistake,
or faulty memory." United States v. Dunnigan, 507 U.S. 87, 94
(1993). "[I]f a defendant objects to a sentence enhancement resulting
from her trial testimony, a district court must review the evidence and
make independent findings necessary to establish" perjury as defined
above. Id. at 95 (emphasis added).
The presentence report recommended an enhancement based on the
falsity of Pham’s trial testimony:
At trial, the defendant testified that he was not aware that
the foil package given to the "confidential source" contained
MDMA, and it was his understanding Bao (co-defendant)
was making the trip to Virginia to collect a gambling debt.
However, Tuoc K. Bao’s (co-defendant) testimony revealed
that the defendant was the supplier of the MDMA tablets
and he was fully aware that the purpose of the trip to Vir-
ginia was to distribute the 3,000 MDMA tablets. The "confi-
dential source" collaborated [sic] Tuoc K. Bao’s testimony.
Accordingly, the defendant’s offense level has been
enhanced two levels pursuant to Section 3C1.1 of the United
States Sentencing Guidelines.
UNITED STATES v. PHAM 9
Pham made no objection to the PSR generally or the obstruction
enhancement specifically. For this reason, the district court was enti-
tled to adopt the PSR’s findings. See Fed. R. Crim. P. 32(b)(6)(D)
("Except for any unresolved objection . . . the court may, at the [sen-
tencing] hearing, accept the presentence report as its findings of
fact."). See also United States v. Love, 134 F.3d 595, 606 (4th Cir.
1998) (stating that a sentencing court may adopt the findings in the
PSR without further inquiry unless the defendant makes an affirma-
tive showing that the information in the PSR is inaccurate or unreli-
able); United States v. Galbraith, 200 F.3d 1006, 1013 (7th Cir. 2000)
(stating that a sentencing court may adopt the PSR’s findings absent
an objection to the enhancement). Absent an objection from Pham,
the district court was not required by Dunnigan to make additional
findings of perjury. See Dunnigan, 507 U.S. at 95; Galbraith, 200
F.3d at 1014. Because there is no evidence suggesting that the presen-
tence report misstated the trial testimony and the district court was
authorized to adopt the presentence report, Pham cannot establish
plain error.2
III.
The district court properly removed prospective juror Bui from the
venire when she stated that she was not certain that she could be
impartial, and it properly enhanced Pham’s base offense level for
obstruction of justice. Accordingly, the judgment of the district court
is
AFFIRMED.
2
Pham contends that Bao’s trial testimony was inherently incredible
because Bao denied that he was testifying in order to obtain a lesser sen-
tence for his own crimes. We shall not second-guess the district court’s
evaluation of the credibility of witnesses who testified at trial. See United
States v. Sun, 278 F.3d 302, 314 (4th Cir. 2002) (affirming the district
court’s application of the obstruction enhancement where it determined
that the defendant perjured himself at trial). In any event, Bao’s testi-
mony was corroborated by Ngo’s testimony as well as a videotape of the
events that transpired in the restaurant parking lot.