F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 19 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-3110
(D.C. No. 94-CR-10128-2)
PIYARATH S. KAYARATH, (District of Kansas)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before SEYMOUR, Chief Judge, MURPHY, Circuit Judge, and McWILLIAMS,
Senior Circuit Judge.
Five young Asian-American males robbed the owners of the Mandarin Chinese
Restaurant and Lounge in Wichita, Kansas, and in the course of the robbery shot and
killed one of its co-owners, Barbara Sun. One of the five later indicted for participation
in the robbery-murder was Piyarath S. Kayarath, identified in the indictment by that name,
and also referred to therein as “a/k/a ‘B’.” Kayarath will be hereinafter referred to by us
as “Mr. B.” In this appeal, we are only concerned, as such, with Mr. B. and none of the
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3
other four participants in the robbery-murder.
Based on the robbery-murder, Mr. B was charged in a second superseding
indictment as follows: in count 1 he was charged with knowingly and willfully
obstructing and affecting interstate commerce on November 8, 1994, by robbing
employees of the Mandarin Chinese Restaurant and Lounge (“Mandarin Restaurant”) in
Wichita, Kansas, against their will by force and violence, in violation of 18 U.S.C. § 1951
(Hobbs Act) and 18 U.S.C. § 2; and in count 2 he was charged with carrying and using a
firearm in that robbery and during the course thereof causing the death of a person, by
murder, through the use of a firearm, in violation of 18 U.S.C. §§ 924(c)(1) and 924(j)(1)
and 18 U.S.C. § 2.
Mr. B was found guilty by a jury on both counts, and, after his motion for a new
trial was denied, he was sentenced to imprisonment for 240 months on count 1 and life
imprisonment without release on count 2. Mr. B appeals his convictions.
On appeal, counsel raises basically two issues: (1) the district court erred in
denying Mr. B’s pre-trial motion to suppress his “confession,” which, according to
counsel, was the “fruit of the poisonous tree,” i.e., the confession resulted from an “illegal
arrest”; and (2) the district court committed plain error in its answer to a written question
given the court by the jury during the course of its deliberations. Finding no reversible
error, we affirm. Some background is in order.
Mr. B and the other four robbers were all living in the Wichita, Kansas area. At
-2-
trial, the government called as witnesses several “girlfriends” of the robbers who testified
that they overheard Mr. B and the other four plan the robbery in question. One of the five
robbers drove the get-away car, and did not himself enter the Mandarin Restaurant. The
other four did enter the restaurant, two of the four carrying guns. It was the government’s
theory of the case that Mr. B and one of the others forced Mark Sun to open the cash
register and then tied and bound him along with a waiter. Mark Sun, the waiter, and the
two Sun daughters were then forced to lie down on the floor.1 In this connection, Mark
Sun, the co-owner of the Mandarin Restaurant with his wife, Barbara Sun, testified that
he was forced to open the cash register and then tied and bound and forced to lie down on
the floor. Also, the government called as its witness one of the four robbers who testified
that he and Mr. B tied and bound Mark Sun. The driver of the get-away car also testified
against Mr. B as a government witness.
It was the government’s further theory of the case that the other two of the four
robbers who entered the restaurant dragged Barbara Sun upstairs to the second floor and
that one of the two shot and killed Barbara Sun when she could not open a safe. The gun
used in the killing belonged to Mr. B. The four then fled the Mandarin Restaurant in a
stolen get-away car, taking with them a relatively small amount of currency and some
costume jewelry. The four entered a second get-away car driven by the fifth robber a
1
Mark and Barbara Sun were born in South Korea and knew each other in that
country. Each later emigrated to the United States and were married in Wichita, where
they, together, owned and operated the Mandarin Restaurant.
-3-
short distance from the Mandarin Restaurant and the five successfully fled the scene.
Nearly three weeks later, Mr. B was arrested by authorities on November 29, 1994,
in a house trailer located in Wichita. The authorities had a search warrant to search the
trailer for drug activity therein. The authorities found “white powder” on a tray in the
trailer, as well as a loaded shotgun. As indicated, Mr. B was in the trailer, along with
others, and all were arrested and taken to police headquarters. After being advised of his
Miranda rights, Mr. B admitted to participating in the robbery by tying up people and
looking for currency and jewelry, though he denied that he shot and killed Barbara Sun.
After the government rested its case, Mr. B called no witnesses and rested his case.
As indicated, prior to trial, counsel for Mr. B filed a motion to suppress the use at
trial of Mr. B’s confession made to an FBI agent, Dan Jablonski, who headed the Violent
Crime Task Force in Wichita, which was investigating the robbery-murder. It was
counsel’s general position that Mr. B’s arrest was without probable cause and thus illegal,
and that the confession being the result of the illegal arrest was therefore inadmissable.
Additional facts and circumstances surrounding his arrest become pertinent.
The Task Force, based on information acquired from various persons, was aware
of Mr. B and his possible involvement in the Mandarin Restaurant robbery. The Task
Force was also aware of another individual, a Mr. Ph, whom they suspected might be
involved in some other robberies, if not involved in the robbery of the Mandarin
Restaurant. To further its investigation, the Task Force on November 29, 1994,
-4-
established a surveillance of a “trailer” located at 3200 S.E. Boulevard in Wichita, the
Task Force having information that the trailer was a hangout for Asian gang members,
including Mr. Ph. During that surveillance, they saw two Laotian males leave the trailer
and drive off in a red Chevy Blazer. Believing one of the individuals in the vehicle was
Mr. Ph (it subsequently developed that they were mistaken in that belief), the agents
followed and then stopped the Blazer. A consensual search of the vehicle disclosed
quantities of cocaine which the occupants said they had obtained from Mr. Ph in the
trailer and which they intended to distribute to others.2 Based on that information,
members of the Task Force obtained a warrant to conduct a search of the trailer.
This search warrant was executed about 3:00 p.m. on November 29, 1994, by
Jablonski and other members of the Task Force. Mr. Ph answered the knock-at-the-door.
After entering the trailer, the agents found cocaine in a tray and a loaded shotgun. Mr. B
was in the trailer and he, and others in the trailer, were arrested, along with Mr. Ph, and
all taken to police headquarters. After being given a Miranda warning, Mr. B was
questioned about drug activities at the trailer, as well as the robbery of the Mandarin
Restaurant and several other similar robberies. In this latter connection, Mr. B. later
admitted, under questioning, his participation in the Mandarin Restaurant robbery,
2
The two arrested in the red Chevy Blazer were Souphaphone Lang and
Douangmala Lang. They were later charged with drug violations, and their convictions
on the drug charges were affirmed on appeal. We reversed their convictions on the
charges of carrying a firearm. See United States v. Lang, 81 F.3d 955 (10th Cir. 1996).
-5-
although denying that he shot Barbara Sun.
After hearing, the district court denied the motion to suppress. In so doing, the
district court observed that Agent Jablonski, based on statements made to him by an
informant, had already suspected that Mr. B was involved in the robbery of the Mandarin
Restaurant, but that since there was “nothing more” known about the informant, his
statement to the Task Force had “limited value in deciding whether probable cause
existed [although] [i]t is, however, a factor to consider.” Rather, in denying the motion to
suppress the district court spoke as follows:
Kayarath was found crammed into a small bedroom
with 7 other people immediately after the agents discovered
cocaine residue in the kitchen and a loaded .12 gauge shotgun
under the couch. The Task Force knew from the Lang
brothers’ statements that a drug deal had occurred within the
trailer earlier that day, and the agents had observed no one
come in or go out of the trailer since that time.
We agree with the district court that the Task Force had probable cause to believe
that cocaine was being distributed by persons in the trailer. The Task Force thereafter
obtained a search warrant based on the fact that the two Laotian males in the red Chevy
Blazer had cocaine in their possession shortly after leaving the trailer, where they said
they had obtained the cocaine. Such, in our view, constitutes probable cause to believe
that the occupants of the trailer were involved in drug distribution out of the trailer.
Further, in our view, any possible error in arresting Mr. B is, under the circumstances,
harmless error. See Chapman v. California, 386 U.S. 18 (1967); and United States v.
-6-
Espinosa, 771 F.2d 1382, 1415 (10th Cir.), cert. denied, 474 U.S. 1023 (1985). Evidence
later adduced at trial was overwhelming that Mr. B did participate in the robbery. We
refer especially to the testimony of Mark Sun and two of Mr. B’s accomplices. Indeed,
though Mr. B did not testify, counsel’s defense, as he stated in closing argument to the
jury, was that though Mr. B was guilty of robbery, he was not guilty of murder. And, as
noted, the search of the trailer was pursuant to a search warrant.
Counsel also argues on appeal that the district court committed plain error in
responding to a question from the jury during the course of its deliberation. In both
counts 1 and 2, Mr. B was charged as a principal and as an aider and abettor under 18
U.S.C. § 2. In this latter connection, the district court, without objection, instructed the
jury as follows:
INSTRUCTION NO. 32
Counts 1 and 2 of the indictment also charge the
defendant with a violation of Section 2, Title 18 of the United
States Code, which provides that: “Whoever commits an
offense against the United States, or aids, abets, counsels,
commands, induces or procures its commission, is punishable
as a principal.”
If you find that the United States has proved beyond a
reasonable doubt that defendant personally committed each
element of the crimes charged in Counts 1 and 2, you need not
consider whether he violated 18 U.S.C. Section 2. On the
other hand, if you find that defendant personally did not
commit each element of either or both of the crimes, you must
consider 18 U.S.C. Section 2. This is because a person may
violate the law even though he or she does not personally do
each and every act constituting the crime if that person “aided
and abetted” someone else in the commission of the crime.
-7-
Before the defendant may be found guilty as an aider
and abettor to the crime or crimes charged, the United States
must prove, beyond a reasonable doubt, that someone
committed each of the essential elements of the crime or
crimes charged. In addition, the United States must prove
beyond a reasonable doubt that the defendant:
1. Knew that the crime or crimes charged
were to be committed or were being
committed; and
2. Knowingly did some act for purpose of
aiding, commanding, or encouraging the
commission of the crime or crimes; and
3. Acted with the intention of causing the
crime or crimes charged to be committed.
In other words, the United States must prove beyond a
reasonable doubt that the defendant knowingly and willfully
associated himself with the crime or crimes in some way as a
participant--someone who wanted them to be committed--not
as a mere spectator.
Merely being present at the scene of a crime or merely
knowing that a crime is being committed or is about to be
committed is not sufficient conduct for the jury to find that a
defendant aided and abetted the commission of that crime.
After several hours of deliberation, the jury sent the following communication to
the district court:
We request clarification of Instruction 32. The second
paragraph reference 18 U.S.C. section 2, seems to conflict
with items 1, 2 and 3 below, in that 1 below . . . seems to
indicate that the defendant had to know that a murder either
was going to be or was being committed.
Does the reference to crime or crimes mean the
murder only or does it refer to “robbery and/or murder.”
After discussion, the district court, with consent of the parties, answered that
question as follows: “in answer to your question, the reference to crime or crimes refers to
-8-
the robbery and/or murder.”
As indicated, there was no objection to instruction No. 32 nor was there any
objection to the district court’s response to the jury’s question. Counsel necessarily must
now argue that the court’s answer constituted plain error. We do not agree.
We reject any suggestion that in order for Mr. B to be convicted as an aider and
abettor to his accomplice’s killing of Barbara Sun, Mr. B had to somehow know, in
advance, that his accomplice was going to shoot and kill Barbara Sun. We are here
concerned with a murder occurring during the course of a robbery.3 In our view the jury
was not misled by the district court’s answer to the jury’s question. And, again, in any
event, the evidence shows quite clearly that Mr. B, who apparently at trial conceded, in
effect, that he was involved in the robbery of the Mandarin Restaurant, aided and abetted
In this general connection, the Supreme Court in Schad v. Arizona, 501 U.S. 624,
3
640-41 (1991) spoke as follows:
At common law, murder was defined as the unlawful killing
of another human being with “malice aforethought.” The
intent to kill and the intent to commit a felony were
alternative aspects of the single concept of “malice
aforethought.” See 3 J. Stephen, History of the Criminal Law
of England 21-22 (1883). Although American jurisdictions
have modified the common law by legislation classifying
murder by degrees, the resulting statutes have in most cases
retained premeditated murder and some form of felony
murder (invariably including murder committed in
perpetrating or attempting to perpetrate a robbery) as
alternative means of satisfying the mental state that first-
degree murder presupposes.
-9-
his accomplice who shot and killed Barbara Sun. After all, it was Mr. B’s gun used in the
shooting of Barbara Sun, occurring at the time when Mr. B was ransacking the first floor
of the Mandarin Restaurant. That, to us, is aiding and abetting.4
This is a tragic case. Mr. B, then age 21 years, has now been sentenced to 240
month’s imprisonment on count 1 and a life sentence without parole on count 2. From the
present record it appears that the driver of the get-away car and the robber who helped
Mr. B tie and bind Mark Sun pled guilty to both robbery and murder. What has happened
to the two who dragged Barbara Sun by the hair to the second floor and killed her, we do
not know. There is, however, the suggestion in the present record that the government
was seeking the death penalty against them. And, of course, the crimes they committed
were violent and unprovoked, and decimated the Sun family.5
Judgment affirmed.
4
Additionally, counsel suggests, mildly, that the evidence is insufficient to show
that the robbery obstructed or otherwise affected interstate commerce. In this regard,
Mark Sun testified that he bought products from outside the state and sold them at the
Mandarin Restaurant and that many of his customers used credit cards for payment which
resulted in out-of-state collections. Further, he stated that the robbery and murder
ultimately caused him to close the restaurant and cease buying from out-of-state. Counsel
recognizes that we have repeatedly held that the “affect” on interstate commerce need
only be de minimis to trigger the Hobbs Act. See, e.g., United States v. Romero, 122 F.3d
1334, 1339-40 (10th Cir. 1997), cert. denied, 118 S.Ct. 1310 (1998); United States v.
Bolton, 68 F.3d 396, 399 (10th Cir. 1995), cert. denied, 516 U.S. 1137 (1996); and United
States v. Ziegler, 19 F.3d 486, 489-90 (10th Cir.), cert. denied, 513 U.S. 1003 (1994).
The present case meets that low de minimis standard.
5
After oral argument of this case, counsel for the appellee filed a motion to correct
a statement made by him at argument. That motion is granted. In connection therewith,
counsel for the appellee also moved to supplement the record. That motion is denied.
- 10 -
Entered for the Court
Robert H. McWilliams
Senior Circuit Judge
- 11 -