United States Court of Appeals
For the First Circuit
No. 06-1224
UNITED STATES OF AMERICA,
Appellee,
v.
DUNG CAO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya, Circuit Judge,
and Schwarzer,* Senior District Judge.
Peter E. Rodway with whom Rodway & Horodyski, P.A. was on
brief for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief for appellee.
December 15, 2006
*
Of the Northern District of California, sitting by
designation.
BOUDIN, Chief Judge. In spring 2003 the Drug Enforcement
Administration ("DEA") began an investigation of drug dealing in
Portland, Maine. Evidence pointed to a drug operation led by Dung
Le and Dung Vu which brought cocaine from Massachusetts for local
distribution. In due course, the DEA identified Dung Cao, the
appellant in this case, as one of a number of lesser figures who
carried drugs as part of the conspiracy and facilitated sales.
Notably, in mid-July 2004, Cao was living at Le's
residence and made several trips to Massachusetts to purchase
cocaine for delivery to Maine. Extensive evidence showed that,
during 2004, he transported money for drug transactions and that he
regularly arranged and made deliveries. Some evidence was secured
from surveillance and from individuals; but a substantial amount of
the evidence was secured through wiretaps.
In December 2004, Cao was indicted with others for drug
offenses. The main count against Cao was conspiracy to possess
with intent to distribute 50 grams or more of cocaine base in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (2000); Cao was
also charged with two counts of distributing crack cocaine. Id. §§
841(a)(1), (b)(1)(C). In a trial of Cao alone in August 2005, he
was convicted on all counts and was later sentenced to 168 months
in prison.
On this appeal, Cao makes no claim that the evidence,
which included admissions by Cao, was insufficient. Instead, he
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argues that wiretap evidence should have been suppressed, that
certain recorded calls were wrongly excluded, and that the court
erred as to one of the instructions. He also claims that errors
occurred in the course of sentencing. We address these arguments
in order, the standard of review varying with the issue.
Under the governing wiretap statute, 18 U.S.C. §§ 2510-
2521 (2000), an application must be made to a judge, including a
"full and complete statement as to whether or not other
investigative procedures have been tried and failed or why they
reasonably appear to be unlikely to succeed if tried or to be too
dangerous." Id. § 2518(1)(c). If the application fails to satisfy
this "necessity" showing but is nevertheless granted, the wiretap
must be suppressed. See United States v. Lopez, 300 F.3d 46, 52
(1st Cir. 2002).
In this case, the lead DEA agent filed a 28-page
affidavit describing the investigation, assistance provided by
confidential sources, drug transactions, and information secured
through arrests and other means. The application also described
efforts by targets to avoid detection and it listed various
alternative avenues (e.g., informants, further surveillance, grand
jury), explaining why in this case they would not be likely to be
fruitful.
The judge who granted the application made the required
necessity finding. 18 U.S.C. § 2518(1)(c). Prior to trial, the
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trial judge held a hearing on co-defendant motions to suppress
wiretaps at which the lead agent testified; and Cao supplemented
his own request by asking for a Franks hearing. See Franks v.
Delaware, 438 U.S. 154, 155-56, 171-72 (1978). In a subsequent
ruling, the district court denied Cao's motion to suppress as well
as his request for a Franks hearing. United States v. Le, 377 F.
Supp. 2d 245, 261-66 (D. Me. 2005).
Cao's attack on the necessity finding rests on the lead
agent's description of the successes of the investigation prior to
the wiretap application. Such successes included the
identification of key members of the conspiracy, use of
confidential informants, evidence of specific sales, information
about sources of supply, the arrest of important members of the
conspiracy and related accomplishments. Thus, Cao says, how can
there have been necessity for wiretaps?
The affidavit in support of the wiretaps made clear that
although the investigation had secured much information through
conventional means, some of the sources of supply and some of the
other participants had not been identified; and, partly because of
the precautions (e.g., avoiding surveillance, changing of phone
numbers) taken by conspirators, the wiretaps remained essential.
The affidavit also explained why changed conditions made the
confidential informants of little use in further investigations.
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Plainly the partial success of the investigation did not
mean that there was nothing more to be done. Cao says that the
arrest of Dung Le (one of the co-heads of the conspiracy) and her
subsequent agreement to cooperate should have been enough to reveal
the other participants and sources of supply; but the affidavit
explained that her cooperation was short-lived and demonstrated
that she had resumed drug-trafficking activities. The necessity
finding is adequately supported. See United States v. Villarman-
Oviedo, 325 F.3d 1, 10 (1st Cir. 2003).
Cao's claim to a Franks hearing fares no better. A
Franks hearing is customarily ordered where the defendant makes a
preliminary showing that the affidavit contains knowing or reckless
material falsities or omissions; such a falsity or omission may
compromise the adequacy of the affidavit. Franks, 438 U.S. at 155-
56, 171-72; United States v. Paradis, 802 F.2d 553, 558 (1st Cir.
1986). Cao says that the affidavit did not reveal the full number
of confidential sources or of drug transactions--matters material
to necessity.
The trial judge found that the additional confidential
sources alleged by Cao were described in the affidavit, see Le, 377
F. Supp. 2d at 263, and we reach the same conclusion. As for
confidential informants, the affidavit refers to three; a later
reference by the agent to a fourth was adequately explained: that
person had played only a small role and was no longer available
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when the wiretap application was made. The Franks hearing was
unnecessary.1
Cao also contests the district court's decision not to
admit two recorded calls. In one of the calls, call number 2009,
Dung Le expressed concern to co-conspirator Yem Le that Cao was
using drugs, adding that "[t]here's money there to be had, and he
doesn't want to do that." The other call, call number 4191, is
summarized as "a conversation between Dung Le and Dung Vu, the
relevant portion of which is Dung Le telling Dung Vu that Dung Cao
is an informant and that she learned that from Dung Cao himself."
The district judge excluded the calls as hearsay and
rejected claims that the statements were admissible for state of
mind, as statements against interest, or under the residual
exception or the doctrine of completeness. Extensive discussion of
these interesting issues is unnecessary; neither call could
conceivably have altered the outcome of the case and, if exclusion
was error, such an error was harmless by any applicable standard.
That Cao was using drugs was arguably pertinent to his
defense that he was a user so incapacitated as to be unable to
conspire; but his substantial drug use was amply demonstrated by
1
Cao's additional claim that he was entitled to further cross-
examination following the submission of an affidavit supplementing
the agent's testimony is without merit. The exercise of good
judgment by the trial judge is what counts in situations like this,
see United States v. Carty, 993 F.2d 1005, 1009-10 (1st Cir. 1993);
and every indication here is that further cross-examination of the
agent would have been pointless.
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other evidence and the summary statement by Dung Le added nothing.
Further, the evidence that Cao had been substantially involved in
the conspiracy over many months, proved by co-conspirator witnesses
and recorded calls, was overwhelming.
The reference to Cao as an informant was pertinent to
Cao's further defense that he was cooperating with the authorities
and acting on their behalf--a matter we address next as bearing on
the instructions. However, Cao's more specific description of his
purported role as an informant was presented through his own
testimony and that of the Maine drug enforcement agents with whom
Cao claimed to be cooperating. Dung Le's suspicion of the role, or
Cao's summary admission, added nothing of importance.
Cao next says that the district court erred in refusing
to instruct the jury on the public authority defense. The defense
applies where the conduct of the defendant was undertaken at the
behest of a government official with the power to authorize the
action (e.g., a controlled drug buy at the behest of a DEA agent)
and the defendant reasonably relied on the authorization. United
States v. Baptista-Rodriguez, 17 F.3d 1354, 1368 n.18 (11th Cir.
1994).
A defendant is entitled to an instruction on a relevant
defense, but only if the evidence would permit a jury to accept the
defense. United States v. Gamache, 156 F.3d 1, 9 (1st Cir. 1988).
In making this judgment, the judge must draw reasonable inferences
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and assume credibility issues in favor of the defense; but the
defendant, who ordinarily bears the burden of proving an
affirmative defense, must point to the evidence from which a
rational jury could find the defense to be proved. United States
v. Rodriguez, 858 F.2d 809, 812 (1st Cir. 1988).
In this case, the evidence showed that in October 2004,
during the drug conspiracy, Cao was arrested in a domestic violence
dispute with Dung Le and, on being released, contacted the Maine
drug enforcement authorities and offered to provide information.
Agent Webster, whom the defense called at Cao's federal trial in
2005, testified that he told Cao to call him if Cao had useful
information about large-scale drug trafficking.
Webster testified, however, that he never authorized Cao
to engage in drug transactions and Cao conceded that the agents did
no more than ask to be called if Cao learned of something big.
This effectively dooms Cao's request for a public authority
instruction. Whether or not Webster had authority to use Cao to
make buys (he said he did not because of Cao's arrest), Webster did
not authorize any of the acts that constituted Cao's crimes.
It is remotely possible that Cao himself engaged in
certain transactions in order to have something with which to tempt
Webster into using him; but the details need not be recounted
because the public authority defense does not allow self-authorized
crimes in the hope of being useful. See generally United States v.
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Hilton, No. 97-78-P-C, 2000 WL 894679, at *4 (D. Me. June 30,
2000), aff'd, 257 F.3d 50, 56 (1st Cir. 2001). It is worth adding
that Cao's involvement in the conspiracy began well before he had
any contact with Webster.
Finally, we come to the sentence. Cao was given the
minimum guideline sentence--168 months in prison--based on the
amount of drugs attributed to him, a two-level adjustment and his
criminal history. We read the guidelines de novo, review factual
determinations for clear error and give some deference in the
application of general standards to particular facts. See United
States v. Gill, 99 F.3d 484, 485 (1st Cir. 1996).
Cao first argues that he should have been given a
downward adjustment, as he requested, as a minor or minimal
participant. U.S.S.G. § 3B1.2 (2005). Although Cao was doubtless
less culpable than the leaders of the conspiracy, that is not
enough: he was required to show that he was less culpable than the
average participant, United States v. Santos, 357 F.3d 136, 142
(1st Cir. 2004)--a judgment normally made not with statistics but
by practical indicia like role, frequency, and duration.
In this case, Cao had more than one source of drugs in
Massachusetts (and local sources in Maine), made multiple trips to
secure drugs, transported substantial sums of money from Maine to
Massachusetts and supplied multiple customers. He was, as the
government said, "a player rather than a . . . dabbler," United
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States v. Tom, 330 F.3d 83, 96 (1st Cir. 2003); he did not show
himself to be less important than the average; and the district
judge was well justified in refusing a downward adjustment.
The district court also made an upward adjustment for
obstructing justice on two different grounds: that Cao had sought
to intimidate a witness and that he had committed perjury at his
own trial. U.S.S.G. § 3C1.1. Both turned on findings of fact that
we review only for clear error. See Gill, 99 F.3d at 485. In both
cases the evidence is adequate, although either finding would
support the single adjustment.
As to intimidation, the district court found that Cao had
assaulted Joseph Broad, a person to whom Cao had delivered drugs,
after learning that Broad's wife was cooperating with the
authorities and, "in [the judge's] view," the assault was meant as
a warning to Broad's wife not to cooperate. The finding is not
clear error and it is irrelevant under the guideline whether the
attempt to intimidate succeeded. See U.S.S.G. § 3C1.1 & n.4(a).
The perjury finding rested on Cao's trial testimony that
he had used drugs but not sold them. The sales were amply proved.
On appeal, Cao argues that the district court failed to find
expressly that Cao knew that he had made the sales. Scienter is a
requirement of the enhancement for perjury but the finding in this
case is fairly implied from the judge's enhancement and also an
entirely reasonable inference by the judge.
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Affirmed.
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