United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-1719
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United States of America, *
*
Appellee, *
* Appeals from the United States
v. * District Court for the
* District of Minnesota.
Narin Prasert Vong, *
*
Appellant. *
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No. 98-1725
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United States of America, *
*
Appellee, *
*
v. *
*
Khanesavanh Nhalay, also known as *
Khan, *
*
Appellant. *
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No. 98-2342
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United States of America, *
*
Appellee, *
*
v. *
*
David Edward Martin, *
*
Appellant. *
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Submitted: February 9, 1999
Filed: April 9, 1999
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Before MCMILLIAN, LAY, and MURPHY, Circuit Judges.
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LAY, Circuit Judge.
Narin Prasert Vong, Khanesavanh Nhalay, a.k.a. Khan, Phillip Adrian
Robertson, Bounsong Thatsanaphone and David Edward Martin were indicted on an
eleven count Superseding Indictment involving armed robberies of several jewelry
stores located in the Minneapolis/St. Paul area. Khan, Thatsanaphone and Martin
cooperated with the government and testified at the trial of Vong and Robertson.
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The jury found Vong guilty of four counts: one count of conspiracy to defraud
the United States in violation of 18 U.S.C. § 371 (Count One); two counts of aiding
and abetting a robbery affecting interstate commerce in violation of 18 U.S.C. §§ 2
and 1951 (Counts Eight and Ten); and one count of aiding and abetting the use of a
firearm in a crime of violence in violation of 18 U.S.C. § 924(c) (Count Nine).1
Khan pled guilty to Counts One, Two and Three of the Superseding Indictment.
Count One was conspiracy to defraud the United States in violation of 18 U.S.C.
§ 371, which carries a statutory maximum imprisonment term of five years. Count
Two was a Hobbs Act offense of aiding and abetting robbery affecting interstate
commerce in violation of 18 U.S.C. §§ 2 and 1951, which carries a statutory
maximum imprisonment term of twenty years. Count Three was aiding and abetting
the use of a firearm in a crime of violence in violation of 18 U.S.C. § 924(c), which
carries a five-year mandatory consecutive term of imprisonment.2
David Martin pled guilty to Counts One, Four and Five of the Superseding
Indictment. Count One was conspiracy to defraud the United States in violation of
18 U.S.C. § 371. Count Four was a Hobbs Act offense of aiding and abetting robbery
affecting interstate commerce in violation of 18 U.S.C. §§ 2 and 1951. Count Five
was aiding and abetting the use of a firearm in a crime of violence in violation of 18
1
Vong was sentenced to 60 months imprisonment on Count One, 87 months
each on Counts Eight and Ten, all to be served concurrently, plus 60 months on
Count Nine, to be served consecutively.
2
After granting the government’s motions for downward departures pursuant
to §5k1.1 of the Sentencing Guidelines and 18 U.S.C. § 3553(e) for the cooperation
of Khan and Martin, Khan was sentenced to 30 months imprisonment on Counts One
and Two, to be served concurrently, and a consecutive term of 60 months on Count
Three.
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U.S.C. § 924(c), which carries a five-year mandatory consecutive term of
imprisonment.3
Narin Prasert Vong
On appeal, Vong argues that (1) the district court’s denial of his pre-trial
motion for a severance was an abuse of discretion; (2) the district court’s denial of his
motion for a mistrial was an abuse of discretion; and (3) the evidence was insufficient
to support the jury’s guilty verdict.
Severance/Mistrial
Vong made a pre-trial motion for a severance. The court adopted the
magistrate judge’s report and recommendation which found that no evidence existed
“that a jury would be unable to distinguish and apply the evidence relating to one
defendant from evidence relating to other defendants.” United States v. Vong, No.
97-147(1), at 7 (D. Minn. July 14, 1997) (Report and Recommendation).
Vong and Robertson were charged with aiding and abetting and conspiracy to
commit robbery. This court has “consistently held that persons charged with
conspiracy should generally be tried together.” United States v. Kindle, 925 F.2d 272,
277 (8th Cir. 1991). The preference for joinder cannot be overcome in this situation,
where the evidence admitted throughout the trial was relevant against both Robertson
and Vong to develop their respective roles in the conspiracy. Severance is necessary
where the proof is such that the jury cannot be expected to compartmentalize the
evidence relating to separate defendants. United States v. Jackson, 549 F.2d 517, 525
(8th Cir. 1977). In this case, the jury was able to distinguish and apply the evidence
3
The court sentenced Martin to 30 months imprisonment on Counts One and
Four, to be served concurrently, and a consecutive term of 30 months on Count Five.
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presented at trial because Vong was acquitted on five counts while Robertson was
convicted on each count against him. See, e.g., United States v. Flaherty, 76 F.3d
967, 972 (8th Cir. 1996) (finding that the fact that jury did not convict both
defendants of both counts is evidence of jury’s ability to analyze and distinguish
evidence as to each). Finally, Vong argues that statements made by a government
witness and by Robertson’s counsel were prejudicial and required severance or
mistrial.4 We disagree.
During cross-examination of FBI Special Agent John Sapliway by co-
defendant Robertson’s counsel, Jerry Strauss, Agent Sapliway stated that
“[e]verybody in this investigation was offered the same deal as Mr. Thatsanaphone.”
Trial Tr. at 951. Vong’s attorney immediately made a motion for a mistrial because
Vong had not been offered a deal and because he claimed Agent Sapliway’s answer
was non-responsive to the question. The district court denied Vong’s motion and his
request for a curative instruction, but gave Vong’s attorney the option of further
questioning. Vong’s attorney made a tactical decision to have Robertson’s attorney
continue cross-examination to clarify Agent Sapliway’s comment. Robertson’s
4
On November 18, 1998, the district court vacated the jury’s verdict against
Vong’s co-defendant Robertson and ordered a new trial after finding that Robertson’s
counsel was ineffective because he failed to advise Robertson to accept the plea
negotiations offered by the government. The court also noted that it had admonished
Robertson’s counsel and held him in contempt for making inappropriate comments
to witnesses. Vong argues that he is entitled to a new trial because he was prejudiced
by Robertson’s counsel’s inappropriate courtroom behavior. We reject this
contention. It is evident from the court’s order that it granted the new trial because
Robertson suffered prejudice due to his attorney’s failure to advise him regarding plea
negotiations; Robertson was not granted a new trial because his counsel made
inappropriate comments during trial. Nonetheless, any effect the inappropriate
comments had on Vong we find to be harmless in light of the overwhelming evidence
presented against Vong.
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attorney then elicited the names of the individuals who cooperated and received deals
in return for their testimony.
Vong now contends that Agent Sapliway intentionally misrepresented the truth
to prejudice him. He claims he was prejudiced by Agent Sapliway’s statement
because it allowed the jury to falsely perceive that Vong had been offered a deal but
rejected it because he viewed himself as superior to those who had accepted plea
agreements from the government. He also argues that he was not given the
opportunity to examine Agent Sapliway to cure the improper testimony, and that
further questioning by his co-defendant’s counsel did not cure the prejudice.
We find the district court did not abuse its discretion in denying a mistrial.
Agent Sapliway’s answer was in response to a rather vague and speculative line of
questioning. Furthermore, any error that occurred by the statement was harmless and
was cured by further questioning. First, as discussed below, there was overwhelming
evidence to support Vong’s guilt. Second, the district court ordered further
questioning of Agent Sapliway to accurately set forth for the jury the individuals who
cooperated with the government. Finally, the court explicitly gave Vong’s counsel
the opportunity to voir dire Agent Sapliway and he declined it. Therefore, Vong
cannot now argue that he was not given the opportunity to cure the testimony.
Sufficiency of the Evidence
Vong next claims the evidence was insufficient to support his conviction
because the case against him was based on uncorroborated and conflicting
accomplice testimony. We review the sufficiency of the evidence in the light most
favorable to the government with all reasonable inferences and credibility
determinations made in support of the jury’s verdict. United States v. Liebo, 923 F.2d
1308, 1311 (8th Cir. 1991). We have reviewed the evidence and are satisfied there
was sufficient evidence to implicate Vong and support the jury’s verdict.
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The testimony developed at trial revealed that someone referred to as “O.G.”
or “Old Man” was requesting the robberies and buying the jewelry stolen during the
robberies. Vong claims the evidence was insufficient to identify him as the O.G.
behind the robberies of Bockstruck’s Jewelry Store and Duke Henry Cheng, the
jewelry salesman visiting from California. We disagree. The jury heard testimony
from Bounthanh Keomany that identified Vong as the man who purchased the jewelry
stolen in the first robbery. The jury heard testimony from Khan, who several co-
conspirators identified as the primary contact with the O.G., that Vong ordered the
robbery of watches at Bockstruck’s Jewelry Store and drove Khan to the store to
show him its location. Khan testified that Vong picked him and Bounsong
Thatsanaphone up in his black Mercedes after the Bockstruck’s robbery and paid him
$6,000 for the stolen watches. Khan also testified that Vong discussed with him the
use of weapons during the robberies and eventually asked him to rob his friend Cheng
when he arrived from California.
Thatsanaphone reiterated Khan’s testimony that Vong picked them up after the
Bockstruck’s robbery, paid Khan for the watches, and discussed the robbery of
Cheng. Phone records also confirmed Khan’s testimony that Vong made several
phone calls to the apartment where his co-conspirators would gather and to Khan’s
pager. Although the crux of the case against Vong consisted of accomplice testimony
and various minor inconsistencies existed within their testimony, the credibility,
reliability and weight to be given to the testimony of any witness lies with the jury
alone. United States v. Hankins, 931 F.2d 1256 (8th Cir. 1991). We affirm Vong’s
conviction.
Khanesavahn Nhalay, a.k.a. Khan
Khan argues on appeal that he was sentenced incorrectly under United States
Sentencing Guideline § 5G1.1 because the court did not reduce his sentencing range
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from seventy months to sixty months, the statutory maximum sentence, before
departing downward to sentence him to thirty months for violation of 18 U.S.C. §
371.5 Therefore, Khan contends that he was deprived of ten months of his reward for
his substantial assistance to the government. We review the court’s sentencing
findings for clear error. United States v. Fitzhugh, 78 F.3d 1326, 1330 (8th Cir.
1996).
Sentencing Guideline § 5G1.1(a) states that “[w]here the statutorily authorized
maximum sentence is less than the minimum of the applicable guideline range, the
statutorily authorized maximum sentence shall be the guideline sentence.” Khan
concedes that the court accurately determined his adjusted offense level at 27, with
a criminal history category of I for Counts One and Two. This resulted in a
sentencing range of 70-87 months, which is greater than the statutory maximum
sentence allowed for violation of 18 U.S.C. § 361 (Count One) but within the
maximum sentence allowed for Count Two. The court, however, granted the
government’s motion to depart downward pursuant to U.S.S.G. § 5K1.1 and
sentenced Khan to thirty months of concurrent imprisonment on Counts One and
Two. Although the court listed Khan’s imprisonment range as 70-87 months, the
sentence imposed does not violate U.S.S.G. § 5G1.1 because the thirty-month
sentence imposed for Count One is far below the sixty-month statutory maximum set
forth in 18 U.S.C. § 361. See United States v. Behler, 14 F.3d 1264, 1273 n.6 (8th
Cir. 1994) (noting that counts may be grouped for sentencing computation purposes,
but when the Guideline range for the group exceeds the statutory maximum for one
5
Appellant Khan’s pro se briefs are unclear whether he is appealing his 30
month sentence for violation of 18 U.S.C. § 361, or for violation of 18 U.S.C. §
924(c). His opening brief pertains to the former statute, while his reply brief pertains
to the latter. We will assume that he is appealing his sentence for violation of § 361,
because it carries a maximum sentence of five years imprisonment, while § 924(c)
carries a mandatory minimum sentence of five years imprisonment. See 18 U.S.C. §§
361 and 924(c).
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of the counts within the group, that count can only be sentenced at its statutory
maximum). We affirm his sentence.6
David Martin
David Martin appeals his thirty month consecutive sentence for his violation
of 18 U.S.C. § 924(c) and argues that the local jewelry stores robbed in the
conspiracy did not have a sufficient impact on interstate commerce to warrant federal
legislation. Martin also contends that the court should have imposed a concurrent
sentence rather than a consecutive sentence for his violation of 18 U.S.C. § 924(c)
because he did not personally possess a firearm during the robberies. Both arguments
are without merit. First, we reject Martin’s consecutive sentence argument. Martin
knowingly and voluntarily pled guilty to the firearm offense. The statute expressly
dictates the court to impose a consecutive sentence rather than a concurrent sentence
for its violation.7
6
Khan raises other arguments in his brief. Upon careful review, these claims
lack merit and we decline to address them further in this opinion.
7
18 U.S.C. § 924(c)(1) provides:
Whoever, during and in relation to any crime of violence or drug
trafficking crime . . . for which he may be prosecuted in a court of the
United States, uses or carries a firearm, shall, in addition to the
punishment provided for such crime of violence or drug trafficking
crime, be sentenced to imprisonment for five years . . . .
Notwithstanding any other provision of law, the court shall not place on
probation or suspend the sentence of any person convicted of a violation
of this subsection, nor shall the term of imprisonment imposed under
this subsection run concurrently with any other term of imprisonment
including that imposed for the crime of violence or drug trafficking
crime in which the firearm was used or carried.
18 U.S.C. § 924(c)(1) (emphasis added).
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We also reject Martin’s argument that the jewelry stores robbed in the
conspiracy did not have a sufficient impact on interstate commerce. As the
indictment states, the jewelry stores robbed bought and resold jewelry that was
manufactured, in part, outside the State of Minnesota and shipped to the stores using
interstate transportation channels. See United States v. Farmer, 73 F.3d 836, 843 (8th
Cir.1996)(finding that a single Waterloo, Iowa convenience store robbery had an
effect on interstate commerce because the store sold products that came from outside
the state and the country and its parent company had stores in several states). When
Martin entered his plea of guilty, he stated that he had “no doubt” that the government
could prove that the jewelry store at issue purchased jewelry and other merchandise
in interstate commerce. Change of Plea Tr. at 19:20-25. By pleading guilty, Martin
admitted all of the factual allegations made in the indictment, see O’Leary v. United
States, 856 F.2d 1142, 1143 (8th Cir. 1988), and he waives all nonjurisdictional
defenses. United States v. Boone, 869 F.2d 1089, 1092 (8th Cir. 1989); see also
United States v. Ryan, 41 F.3d 361, 363-64 (8th Cir. 1994).8 To the
extent that Martin makes a jurisdictional argument by claiming that Congress
exceeded the legislative power granted to it under the Commerce Clause by relying
on United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624 (1995), we reject his
8
In Ryan, this court considered the interstate commerce aspect of 18 U.S.C. §
844(i), which made arson of any building or property used in or affecting interstate
commerce a federal crime, and rejected the defendant’s challenge to the court’s
subject matter jurisdiction:
The district court had subject-matter jurisdiction in this case by virtue
of the fact that [the defendant] was charged with an “offense against the
United States.” 18 U.S.C. § 3231. The interstate commerce aspect of
this case arises merely as an element of the section 844(i) offense. If
that element is not satisfied, then [the defendant] is not guilty; but the
court is not by the failure of proof on that element deprived of judicial
jurisdiction.
Ryan, 41 F.3d at 363-64.
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contentions. This court has specifically stated that Lopez does not apply to cases
involving commercial establishments. Farmer, 73 F.3d at 843 (quoting the Supreme
Court’s statement in Lopez, 514 U.S. at 558, 115 S. Ct. at 1629, that Congress has the
power to “protect . . . persons or things in interstate commerce”). We said that “[w]e
have no doubt of the power of Congress to protect from violence businesses that are
part of an interstate chain.” Id. Nonetheless, the statute at issue in Lopez was much
different from the statute at issue here. Lopez invalidated a statute that made it
unlawful to possess a firearm within a certain distance from a school because the
statute did not contain an express jurisdictional nexus to interstate commerce. Lopez,
514 U.S. at 562. The statute at issue in this case, however, 18 U.S.C. § 1951,
expressly contains such a jurisdictional nexus by requiring that the conduct “affect
commerce,” and by defining the term commerce to mean interstate commerce.
Conclusion
For the foregoing reasons, we affirm the convictions and sentences of Narin
Vong, Khanesavanh Nhalay, and David Edward Martin.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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