United States v. Tahn Le

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 12-2163
_____________

UNITED STATES OF AMERICA

v.

TAHN LE, a/k/a LEE, a/k/a TAHN LEE

Tahn Le,

Appellant

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(District Court No.: 2-11-cr-00104-4)
District Judge: Honorable Legrome D. Davis

Submitted under Third Circuit LAR 34.1(a)
on September 9, 2013

(Opinion filed: October 23, 2013)

Before: RENDELL, JORDAN, and GREENAWAY, JR., Circuit Judges

OPINION

RENDELL, Circuit Judge:

Appellant Tahn Le was convicted by a jury of multiple counts arising out of a

series of armed robberies in four private homes located in Pennsylvania, New Jersey and
Virginia. Le’s appointed appellate counsel has moved for permission to withdraw under

Anders v. California, 386 U.S. 738 (1967), on the ground that Le has no non-frivolous

arguments on appeal. We will grant the motion to withdraw and affirm Le’s sentence.

I. Background1

Because we write primarily for the parties, we set forth only those facts and

procedural history relevant to our conclusion.

1. The Bartonsville Robbery

On the evening of January 26, 2010, Le, along with co-conspirators Thach Van

Nguyen, Teo Van Bui, Buu Huu Truong, and Den Van Nguyen, committed an armed

home invasion at the home of Steve Tran. The planning for the robbery took place at a

pool hall in Philadelphia. Thach Van Nguyen had previously worked for Tran, the owner

of multiple profitable nail salons, and suggested that Tran may keep money from his

businesses in his home. On the night of the robbery, the men drove from Philadelphia to

Tran’s home in Bartonsville, Pennsylvania. When Tran arrived home, Truong, Den Van

Nguyen, Bui and Le entered the home and pushed Tran to the floor. Wearing masks and

gloves and brandishing firearms, they informed Tran that they would kill him if he

refused to tell them where his valuables were hidden. The men stole between $7,000 and

$8,000 in cash, some of which represented proceeds from the nail salons, along with

other property.

1
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have appellate
jurisdiction pursuant to 28 U.S.C.§ 1291.
2
 2. The Freehold Robbery

On January 29, 2010, Buu Huu Truong, Thach Van Nguyen, and Thanh Le met in

Philadelphia and drove to Freehold, New Jersey to rob the home of Tessa Tran and Thanh

Nguyen. Again, the home was targeted because Thach Van Nguyen had previously

worked at a nail salon owned by the victims and believed that they kept business

proceeds in their home. After obtaining entry into the home, Truong threatened Tessa

Tran with a firearm and tied her up. Truong and Le then robbed Tran of approximately

$2,000 in cash representing proceeds from her business, along with other valuables.

3. The Monroe Township Robbery

Shortly after the Freehold robbery, Thach Van Nguyen, Buu Huu Truong, Le, and

Le’s girlfriend Denise Novelli met at the Philadelphia pool hall and discussed plans to

rob the owner of another nail salon where Thach Van Nguyen had worked in Monroe

Township, New Jersey. Again, Van Nguyen believed that the owner, Kelly Hang, kept

cash from her business in her home. On February 24, 2010, the four drove to the home.

After forcing their way in, Truong assaulted Hang’s babysitter and Truong and Le tied

her up. The men then stole approximately $60,000 in proceeds from the nail salon, along

with over $30,000 in jewelry and other property.

4. The Falls Church Robbery

Sometime in 2009 or 2010, Le met and became friendly with Hung T. Ngo. Ngo

worked at a seafood restaurant, Jesse Taylor Seafood, in Washington, DC, and disliked a

female co-worker. Believing that the woman had an ownership interest in the restaurant

and kept business proceeds in her home, Le, Novelli and Ngo planned to rob her. In

3
planning the robbery, Le followed the woman from the restaurant to her Falls Church,

Virginia home on several occasions. On April 30, 2010, Novelli persuaded the intended

victim’s son, Tai Xuan Le, to open the door to the home, at which point Than Le forced

his way into the home. Tahn Le beat Tai Xuan Le in the head with a gun and left him

bleeding on the floor. Believing Tai Xuan Le’s sister to be home but unable to find her,

Tahn Le and Novelli left the home empty-handed. Tai Xuan Le required hospitalization

to treat his extensive head wounds.

On February 23, 2011, a grand jury in the Eastern District of Pennsylvania

returned an indictment charging Le, Thach Van Nguyen, Buu Huu Truong, and Den Van

Nguyen with conspiracy to commit Hobbs Act robbery, 18 U.S.C. § 1951(a), Hobbs Act

robbery, 18 U.S.C. § 1951(a), possession of a firearm during and in relation to a crime of

violence, 18 U.S.C. § 924(c), and possession of a firearm by a convicted felon, 18 U.S.C.

§ 922(g)(1). On November 16, 2011, Le and his co-defendants were charged with the

same offenses in a superseding indictment.2 Between August 27, 2012, and October 3,

2012, each of Le’s co-defendants pled guilty.

On January 4, 2012, Le, through counsel, filed a motion to dismiss the indictment

on speedy trial grounds, which was denied by the District Court on January 6, 2012. On

January 6, 2012, the Government filed a motion to admit tape recordings of a

conversation that took place between Le and co-conspirator Denise Novelli while Le was

2
The only change between the initial and superseding indictments was the addition of
two defendants, Denise Novelli and Sidney Biggs, as co-conspirators in the Hobbs Act
conspiracy claim.
4
incarcerated awaiting trial. Le did not file an opposition to the Government’s motion,

and the District Court granted the motion on January 16, 2012.

Le’s trial began on January 17, 2012. Co-defendants Buu Huu Truong, Thach Van

Nguyen, Den Van Nguyen, Teo Van Bui, Hung T. Ngo, and Denise Novelli all testified

regarding Le’s participation in the crimes. On January 20, 2012, after a four-day trial, a

jury found Le guilty on all four counts.3 On April 23, 2012, Le, through his trial counsel,

filed a timely notice of appeal. On May 14, 2012, Le submitted a letter to the District

Court, which the Court construed as a motion for appointment of new counsel. In

response, Le’s trial counsel filed a motion to withdraw as court appointed counsel, which

the District Court granted on May 31, 2012. On August 21, 2012, the District Court

issued an Order appointing Michael J. Kelly, Esq. as CJA counsel to represent Le on

appeal.

On February 22, 2013, Kelly filed a brief pursuant to Anders v. California, supra,

and a Motion to Withdraw Representation. In the Anders brief, counsel identified three

issues which potentially could have given rise to grounds for appellate relief: (1) whether

the evidence was sufficient to establish that the conspiracy to commit Hobbs Act robbery

3
On April 23, 2012, the District Court sentenced Le as follows: (1) on the Hobbs Act
conspiracy and robbery charges (counts one and two), Le received 240 months, to be
served concurrently, three years supervised release, and restitution in the amount of
$112,689.55; (2) on the charge of possession of a firearm during and in relation to a
crime of violence (count three), Le received 84 months, to be served consecutively to
counts one, two and seven, and five years supervised release; and (3) on the charge of
possession of a firearm by a convicted felon (count seven), Le received 316 months, to be
served concurrently with counts one and two, and five years supervised release. Le’s
total sentence amounted to 400 months in prison and ten years supervised release. Le
was not charged in counts four, five or six of the indictment, which involved other
defendants.
5
and Hobbs Act robbery affected interstate commerce; (2) whether the evidence was

sufficient to demonstrate that Le had possession of a firearm during the Bartonsville

robbery; and (3) whether the District Court committed procedural error by granting the

Government’s request for application of a sentencing enhancement for obstruction of

justice pursuant to U.S.S.G. § 3C1.1.

Le filed a pro se brief on April 8, 2013, in which he raised three additional issues:

(1) whether the District Court erred in admitting a tape recorded conversation between Le

and co-conspirator Denise Novelli; (2) whether the evidence adduced at trial was

sufficient to support his convictions; and (3) whether the ten-and-a-half month period

between his arraignment and commencement of trial violated his right to a speedy trial

under the Sixth Amendment and/or the Speedy Trial Act, 18 U.S.C. § 3161.

II. Standard

Third Circuit Local Appellate Rule 109.2(a) provides that, “[w]here, upon review

of the district court record, counsel is persuaded that the appeal presents no issue of even

arguable merit, counsel may file a motion to withdraw and supporting brief pursuant to

Anders v. California, 386 U.S. 738 (1967), . . . .” If the Court “agrees that the appeal is

without merit, it will grant counsel’s Anders motion, and dispose of the appeal without

appointing new counsel.” Id. “The Court’s inquiry when counsel submits an Anders

brief is thus twofold: (1) whether counsel adequately fulfilled the rule’s requirements;

and (2) whether an independent review of the record presents any nonfrivolous issues.”

United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). In preparing an Anders brief,

counsel should “(1) [] satisfy the court that counsel has thoroughly examined the record

6
in search of appealable issues, and (2) [] explain why the issues are frivolous.” Id.

“Counsel need not raise and reject every possible claim. However, at a minimum, he or

she must meet the ‘conscientious examination’ standard set forth in Anders.” Id.

III. Discussion

A. Issues Identified in the Anders Motion

1. Whether the Government Established a Sufficient Nexus to Interstate
Commerce to Convict Le of Conspiracy to Commit Hobbs Act Robbery
and Hobbs Act Robbery

a. Hobbs Act Robbery

To prove that a defendant committed Hobbs Act robbery, the government must

prove “beyond a reasonable doubt that (1) the defendant knowingly or willfully

committed . . . robbery or extortion, and (2) the defendant’s conduct affected interstate

commerce.” United States v. Powell, 693 F.3d 398, 401 (3d Cir. 2012). In reviewing

challenges to the sufficiency of the evidence supporting conviction, we apply a

“particularly deferential standard of review.” Id. at 401 n.6. “We view all evidence in

the light most favorable to the government, and sustain conviction as long as any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Id. (internal citations and quotation marks omitted).

Though the Government’s evidence demonstrated that Le was involved in four

different robberies, he was charged with Hobbs Act robbery only for the Bartonsville

robbery. As noted supra, the Government introduced extensive testimony from Le’s co-

defendants regarding Le’s participation in the Bartonsville robbery. Accordingly, the

issue identified in counsel’s Anders motion was not whether the evidence was sufficient

7
to show that Le participated in the robbery, but whether the Government proved beyond a

reasonable doubt that the robbery had an effect on interstate commerce.

The record demonstrates that the Government’s evidence was sufficient on this

point. We recently held, in a case factually similar to this one, that where the evidence

establishes that a defendant has targeted a residence in order to rob the home of proceeds

from a business that engages in interstate commerce, the jurisdictional element of Hobbs

Act robbery is satisfied. In United States v. Powell, supra, defendant and his accomplices

targeted business owners by following them from their businesses to their homes in order

to rob them of business proceeds. Id. at 399. They specifically targeted Asian-owned

businesses on the belief that the owners of such establishments did not use banks. Id.

Evidence showed that the business establishments they targeted sold merchandise from

out-of-state suppliers, and therefore, were engaged in interstate commerce. Id at 399-

400. The defendant moved to dismiss the indictment for insufficient evidence to

demonstrate an effect on interstate commerce, arguing that the robbery of a private

residence, rather than a place of business, did not satisfy the Hobbs Act’s requirement

that the robbery must affect interstate commerce. Id. at 400, 402. We rejected the

defendant’s arguments, joining several of our sister circuits in holding that where a

defendant targets a home for the purpose of stealing proceeds from a business that

engages in interstate commerce, “such targeting satisfies the Hobbs Act’s jurisdictional

nexus.” Id. at 403. See also United States v. Le, 256 F.3d 1229, 1237 n.8 (11th Cir.

2001) (“Our conclusion that Le’s actions implicated interstate commerce to a degree

sufficient to create jurisdiction under the Hobbs Act is based on the fact that Le

8
specifically targeted business assets that were temporarily kept at a private residence

which, if stolen, had the potential to delay or obstruct the purchase of products from

another state . . . .”); United States v. Nguyen, 246 F.3d 52, 54 (1st Cir. 2001).

Multiple witnesses testified that defendants chose to rob the house in Bartonsville

on the belief that Mr. Tran, the homeowner, kept proceeds from his nail salon business in

the home. In addition, the Government introduced evidence that Mr. Tran’s nail salons

were engaged in interstate commerce. Mr. Tran testified that he purchased supplies for

his nail salons from a supplier in California via UPS shipments. Finally, the evidence

indicated that at least some of the money stolen represented proceeds from the victim’s

nail salons. The Hobbs Act’s jurisdictional nexus was clearly satisfied here.

b. Conspiracy to Commit Hobbs Act Robbery

The evidence adduced at trial was similarly sufficient to prove beyond a

reasonable doubt that Le was guilty of conspiracy to commit Hobbs Act robbery. The

Government introduced evidence that Le conspired with six other defendants to commit

four robberies between January 2010 and April 2012. In addition to the Bartonsville

robbery described supra, Le’s co-defendants testified regarding Le’s participation in the

planning and execution of home invasion robberies in Freehold, New Jersey, Monroe

Township, New Jersey, and Falls Church, Virginia. Again, the Government’s evidence

demonstrated that each of the homes was targeted for robbery because the co-

conspirators, including Le, believed that the homes were occupied by business owners

who kept proceeds from their businesses in their homes.

9
 Moreover, the evidence demonstrated that the targeted proceeds came from

businesses that engaged in interstate commerce. The co-owner of the salon targeted in

the Freehold robbery testified that she drove once a week to Philadelphia to purchase

supplies for the salon, which served customers from neighboring states. Similarly, the

owner of the salon targeted in the Monroe Township robbery testified that she purchased

supplies for her New Jersey nail salon every two or three weeks from a store in

Philadelphia.

The Falls Church robbery warrants a separate discussion. As with the other

robberies, Le and his co-defendants believed they were robbing the home of a business

owner who kept proceeds from the business—a Washington, DC seafood restaurant—in

her home. The evidence demonstrated that the woman did not in fact own the business,

but merely worked there as a cashier. Accordingly, the object of the conspiracy, Hobbs

Act robbery, was thwarted. Indeed, in the absence of facts indicating that business

proceeds were in the cashier’s home, it was an impossibility.4 Such fact does not,

however, undermine Le’s conviction for conspiracy to commit Hobbs Act robbery, as

“legal impossibility is not a defense to conspiracy.” United States v. Hsu, 155 F.3d 189,

203, 204 (3d Cir. 1998); see also United States v. Olgin, 745 F.2d 263, 273 (3d Cir. 1984)

4
Counsel did not identify the impossibility argument with respect to the Falls Church
robbery as a non-frivolous issue in its Anders brief. We mention the issue here because
the Government noted it in its trial brief as a possible attack on the sufficiency of the
evidence of conspiracy to commit Hobbs Act robbery. Counsel’s failure to raise this
issue in the Anders brief as a possible nonfrivolous issue does not undermine the
adequacy of the brief, however, as it is well settled in this Circuit that impossibility is not
a defense to conspiracy; accordingly, a challenge on this ground would have been
frivolous.
10
(“[T]he objective impossibility of attaining the goals of a conspiracy is irrelevant to the

guilt of those who conspire.”).

The more difficult question is whether the record contains sufficient evidence to

find that the seafood restaurant in question, Jessie Taylor Seafood, was engaged in

interstate commerce. The Anders brief acknowledges that no direct evidence was

presented regarding the restaurant’s interstate commerce activities. Rather, the brief

argues that engagement in interstate commerce may be inferred under the circumstances

because it is “inconceivable that a seafood business could operate in a landlocked

location such as Washington, D.C. without having inventory from out-of-state.”

In United States v. Needham, 604 F.3d 673 (2d Cir. 2010), the Court of Appeals

for the Second Circuit reversed certain of the defendants’ convictions for Hobbs Act

robbery, where defendants targeted marijuana proceeds, due to the government’s failure

to introduce evidence of an interstate effect. The court pointed out that it was possible

for marijuana to be grown, processed and sold entirely within the state of New York;

accordingly, no interstate effect could be inferred absent evidence of such connection. Id.

at 681. The court affirmed the defendants’ convictions for conspiracy to commit Hobbs

Act robbery, however, where the targeted proceeds were from the sale of cocaine and

heroin, stating that because such drugs “cannot be produced in New York, and thus

necessarily travel in interstate commerce,” such connection could be inferred. Id. at 680.

Moreover, the Needham court pointed out that the robberies targeting marijuana

and the robberies targeting cocaine and heroin were all planned as part of a single

conspiracy. See id. at 680 (“The indictment charged—and the jury found—a single

11
Hobbs Act conspiracy in which each of the defendants participated. . . . Thus, if the

overall conspiracy targeted products moving in interstate commerce, as the cocaine and

heroin robberies suggest, all three defendants are liable.”). Thus, given the inference that

could be drawn here regarding the restaurant’s engagement in interstate commerce and

the fact that, as in Needham, the indictment charged one overall conspiracy in which the

defendants, including Le, conspired and agreed to commit armed robberies targeting the

proceeds of businesses that engaged in interstate commerce, the Government’s failure to

demonstrate an interstate connection for one of the targeted businesses does not

undermine Le’s conviction for the overall conspiracy.5

In sum, we agree with counsel that any argument that Le could not be convicted of

Hobbs Act robbery or conspiracy to commit Hobbs Act robbery due to a lack of

connection to interstate commerce would be frivolous.

2. Whether there was Sufficient Evidence for the Jury to Find that Le had
Constructive or Actual Possession of a Firearm

The second issue identified by counsel in its Anders brief is whether there was

sufficient evidence for a rational trier of fact to convict Le of possession of a firearm in

5
The Anders brief raises one additional issue with respect to the Falls Church robbery.
For each of the other robberies, venue was appropriate in the Eastern District of
Pennsylvania because testimony indicated that the planning for each took part at a pool
hall in Philadelphia. There was no testimony, however, indicating that planning for the
Falls Church robbery took place in Philadelphia; indeed, the evidence indicates that such
planning occurred in Washington, DC. However, the Anders brief correctly notes that
absence of grounds for venue is waived where defendants fail to timely object. United
States v. Perez, 280 F.3d 318, 328 (3d Cir. 2002). And in any case, we believe that venue
was proper in the Eastern District of Pennsylvania because, as described supra, the
planning for the Falls Church robbery was part of a single overall conspiracy, and much
of the planning in connection with that conspiracy took place in the Eastern District of
Pennsylvania.
12
relation to a crime of violence, 18 U.S.C. § 924(c), and possession of a firearm by a

convicted felon, 18 U.S.C. § 922(g). Like the Hobbs Act robbery charge, these charges

relate only to the Bartonsville, Pennsylvania robbery, and not to the robberies committed

outside Pennsylvania. There can be no question that the evidence was sufficient to

establish that the Bartonsville robbery was a crime of violence, or that at the time of the

robbery Le was a convicted felon. Thus, the issue raised in the Anders brief is whether

the evidence was sufficient to establish possession of a firearm by Le.

Section 924(c) applies to “any person who, during and in relation to any crime of

violence . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses

a firearm . . . .” Similarly, § 922(g) makes it unlawful for any person who has been

convicted of a felony “to . . . possess in or affecting commerce, any firearm or

ammunition . . . .” Co-defendants Buu Huu Truong and Teo Van Bui each testified that

they carried a firearm during the Bartonsville robbery. Truong testified that he handed

his gun to Le while he broke into the home. He testified that at some point during the

robbery he took the gun back from Le, and used it to strike the victim before returning the

gun to Le. Both Thach Van Nguyen and Truong testified that Le stated that he threw a

gun away in the house, and Den Van Nguyen testified that he witnessed Le throw a gun

in the house. Police recovered two firearms from the house. The credibility of these

witnesses was for the jury to decide. See United States v. Starnes, 583 F.3d 196, 206 (3d

Cir. 2009) (“In reviewing a sufficiency-of-the-evidence claim, . . . we must examine the

totality of the evidence, both direct and circumstantial, and interpret the evidence in the

light most favorable to the government as the verdict winner.”) (internal quotation marks

13
omitted). We agree the evidence is sufficient for a rational trier of fact conclude that Le

possessed a weapon during the Bartonsville robbery, and that any argument to the

contrary would be frivolous.

3. Whether the District Court Committed Procedural Error by Applying a
Sentencing Enhancement for Obstruction of Justice

The third issue identified by counsel’s Anders brief is whether the District Court

erred in applying a two-step enhancement for obstruction of justice under U.S.S.G.

§ 3C1.1, based on Le’s recorded statements to Denise Novelli.6 In the recorded

conversation, Le urged Novelli, among other things, to tell the FBI she had never gone

with Le to any other states, when in fact she had traveled with him to robberies in both

New Jersey and Virginia, and to tell the FBI she knew nothing about a gun. Le also

challenges the District Court’s application of the enhancement in his pro se brief.

The presentence investigator did not recommend applying the two-level

enhancement to Le, opining that Le’s motivation in encouraging Novelli to lie was to

protect her, rather than to impede his own prosecution. The Government objected, and

the District Court, after hearing argument on the issue, decided to apply the enhancement,

stating that, though Le may have had several motivations to encourage Novelli to lie, one

motivation was his own self-interest in avoiding prosecution.

6
Section 3C1.1 provides that “[i]f (1) the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of justice with respect to the
investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the
obstructive conduct related to (A) the defendant’s offense of conviction and any related
conduct; or (B) a closely related offense, increase the offense level by 2 levels.”

14
 Because the appropriateness of the enhancement depends on the factual issue of

Le’s motivation, we review the District Court’s application of the enhancement for abuse

of discretion. See United States v. Wise, 515 F.3d 207, 218 (3d Cir. 2008) (“[T]he

District Court will have abused its discretion in imposing a sentence if it based its

Guidelines calculation on clearly erroneous facts.”). In this case, the District Court

listened to the recording at issue on multiple occasions and heard argument from both the

Government and Le regarding Le’s motives in urging Novelli to lie. The court concluded

that Le was motivated, at least in part, by a desire to impede his own prosecution. We

agree with counsel that it would be frivolous to argue that the District Court’s decision to

apply the enhancement was an abuse of discretion.

B. Additional Issues Identified in Appellant’s Pro Se Motion

Having concluded that counsel has “thoroughly examined the record in search of

appealable issues, and [] explain[ed] why the issues are frivolous,” we may appropriately

conclude our inquiry. Youla, 241 F.3d at 300, 301 (“Where the Anders brief initially

appears adequate on its face, the proper course ‘is for the appellate court to be guided in

reviewing the record by the Anders brief itself.’”) (quoting United States v. Wagner, 103

F.3d 551, 553 (7th Cir. 1996)). However, we briefly address the additional issues

advanced by Le in his pro se brief.7 See Youla, 241 F.3d at 301-02 (examining issues

addressed in defendant’s pro se brief that were not addressed in counsel’s Anders brief).

7
One issue raised in Le’s pro se brief is “[w]hether the sentence imposed by the district
court was procedurally and substantially reasonable.” The only aspect of the sentence Le
appears to challenge, however, is the two-level enhancement applied under U.S.S.G. §
3C1.1. That issue is discussed supra, and we do not repeat our analysis here.
15
 1. Whether the District Court Erred in Admitting Tape Recorded Statements
Made by Le to a Co-Conspirator

As noted above, at trial, the Government introduced a tape recorded conversation

that took place between Le and his ex-girlfriend, co-conspirator Denise Novelli. During

this conversation, Le made several statements that could be interpreted as incriminating.

The Government filed a pretrial motion to have the tape admitted into evidence, and Le

failed to oppose this motion. The District Court granted the Government’s motion. Le

now objects to the admission of the tape recording on authenticity grounds, and on the

ground that the recording was “prejudicial.” Because Le failed to oppose the

Government’s motion to admit the recording at trial, he cannot successfully challenge the

ruling on appeal unless it was plain error. See United States v. Brennan, 326 F.3d 176,

182 (3d Cir. 2003). “[T]he plain-error exception to the contemporaneous-objection rule

is to be ‘used sparingly, solely in those circumstances in which a miscarriage of justice

would otherwise result.’” United States v. Young, 470 U.S. 1, 15 (1985) (quoting United

States v. Frady, 456 U.S. 152, 163 n.14 (1982)).

Fed. R. Evid. 901(a) provides that “[t]o satisfy the requirement of authenticating

or identifying an item of evidence, the proponent must produce evidence sufficient to

support a finding that the item is what the proponent claims it is.” One way of satisfying

this requirement is to have a witness with knowledge testify “that an item is what it is

claimed to be.” Fed. R. Evid. 901(b)(1). In its motion to admit the tape recording, the

Government noted that one of the participants to the conversation, Denise Novelli, would

be available to testify that the recording was an accurate reproduction of the conversation

16
she had with Le. Indeed, Novelli did testify at trial as to the accuracy of the recording.

We agree that the Government met its burden regarding authentication of the tape

recording.8

Le further argues that the recording should not have been admitted because it was

“prejudicial.” Le does not, however, explain how the recording was unfairly prejudicial,

i.e., that it was so inflammatory as to inhibit the jury’s neutral application of the law to

the facts. See Starnes, 583 F.3d at 215. We have reviewed the transcript of the recording

and do not believe it may reasonably be characterized as unfairly prejudicial.

2. Whether Sufficient Evidence Existed to Support the Convictions

Le argues generally that his convictions were unsupported by the evidence. He

appears to base this argument on the lack of physical evidence connecting him to the

crimes, and on the Government’s reliance on testimony from cooperating co-defendants.9

Le’s argument must fail. The testimony of co-conspirators is, by itself, sufficient to

sustain a conviction if the jury finds such testimony to be credible. See United States v.

De Larosa, 450 F.2d 1057, 1060 (3d Cir. 1971) (“In view of the frequent absence of

proof of crime other than the account of a participant, a jury should be permitted as a

8
In his pro se motion, Le states that the District Court should have conducted a Starks
hearing to determine whether the recording should have been admitted. See United States
v. Starks, 515 F.2d 112 (3d Cir. 1975). It is unclear whether Starks remains relevant after
the enactment of Fed. R. Evid. 901. In any case, the Government averred in its pretrial
motion that each of the Starks factors was met. Le failed to oppose the Government’s
motion; as a result, he waived his right to a Starks hearing.
9
Le also asserts that, absent the tape recording between himself and Novelli, the jury
would not have been able to find beyond a reasonable doubt that he was involved in the
crimes. Because we believe the tape recording was properly admitted, we need not
address this argument.

17
general rule to convict when persuaded of the credibility of the testimony of an

accomplice.”); see also United States v. Hernandez, 962 F.2d 1152, 1157 (5th Cir. 1992)

(“There is no requirement that testimony by a co-conspirator fulfilling a plea bargain be

corroborated by independent evidence. The jury is entrusted with the responsibility of

evaluating the witness’s credibility, and uncorroborated testimony of a co-conspirator

will sustain a guilty verdict unless, as is not the case here, the testimony is incredible or

otherwise insubstantial on its face.”). Six of Le’s co-conspirators testified as to Le’s

planning of and participation in the four robberies at issue. It would be frivolous to argue

that a conviction could not be sustained on the basis of such cumulative evidence.

3. Whether Appellant was Denied the Right to a Speedy Trial

Lastly, Le argues that his indictment should have been dismissed because his

rights to a speedy trial were violated. The Speedy Trial Act generally requires that a

defendant’s trial begin no more than 70 days after the initial appearance. See generally

18 U.S.C. § 3161. However, the statute specifically excludes from that time calculation

“[a]ny period of delay resulting from a continuance granted by any judge . . . at the

request of the defendant or his counsel or at the request of the attorney for the

Government, if the judge granted such continuance on the basis of his findings that the

ends of justice served by taking such action outweigh the best interest of the public and

the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7)(A). In addition, the statute

excludes any “reasonable period of delay when the defendant is joined for trial with a

codefendant as to whom the time for trial has not run and no motion for severance has

been granted.” 18 U.S.C. § 3161(h)(6). See also United States v. Arbelaez, 7 F.3d 344,

18
347 (3d Cir. 1993) (“[A]fter defendants are joined for trial, an exclusion applicable to one

defendant applies to all codefendants.”) (internal quotation marks omitted).

Le made his initial appearance on March 1, 2011. On March 11, 2011, the District

Court scheduled the trial to commence on May 2, 2011. Between April 18, 2011 and

April 26, 2011, various of Le’s co-defendants filed motions to continue the trial, citing

the need for additional time to prepare and time to determine whether non-trial

disposition was possible. On April 25, 2011, the Government filed its own motion to

continue, explaining that it had been advised the previous week that the State Police

laboratory had recovered DNA evidence from the scene of one of the robberies and

needed additional time to compare the DNA recovered to that of the defendants. The

District Court, finding that the requirements of § 3161(h)(7)(A) were met, granted each

of these motions and ordered that a new trial date be set in the future. On October 26,

2011, the District Court scheduled the trial for January 17, 2012. Because each of the

delays between April 2011 and the date his trial commenced in January 2012 were due to

specific statutory exceptions to the Speedy Trial Act, Le’s argument that his indictment

should have been dismissed is frivolous.

IV. Conclusion

For the reasons stated above, we will grant counsel’s motion to withdraw and

affirm the Order of the District Court. Counsel is also relieved of any obligation to file a

petition for writ of certiorari in the Supreme Court. See 3d Cir. L.A.R. 109.2(b).

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