United States v. Cuong Huy Pham

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 28, 2006

Charles R. Fulbruge III
Clerk
No. 05-11057
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CUONG HUY PHAM,

Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:05-CR-56-1
--------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Cuong Huy Pham (Cuong) appeals his convictions, following a

jury trial, of conspiracy to possess with intent to distribute 3,

4-methylenedioxymethamphetamine (MDMA), or Ecstasy, and

possession of MDMA with intent to distribute, in violation of 21

U.S.C. §§ 846 and 841(a). The district court imposed consecutive

prison sentences of 240 and 120 months and concurrent supervised-

release terms of three years.

Cuong challenges the district court’s denial of his motion

to suppress approximately 10,000 MDMA tablets and other evidence

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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seized on March 9, 2005, from a brown Lexus in which he was a

passenger and in which codefendant Thuan Pham (Thuan) was the

driver. “The standard of review for a motion to suppress based

on live testimony at a suppression hearing is to accept the trial

court’s factual findings unless clearly erroneous or influenced

by an incorrect view of the law.” United States v. Outlaw, 319

F.3d 701, 704 (5th Cir. 2003) (citations and internal quotation

marks omitted). Under Terry v. Ohio, 392 U.S. 1, 30 (1968),

“police officers may stop and briefly detain an individual for

investigative purposes if they have reasonable suspicion that

criminal activity is afoot.” Goodson v. City of Corpus Christi,

202 F.3d 730, 736 (5th Cir. 2000). Under Terry’s two-pronged

test, “[c]ourts first examine whether the officer’s action was

justified at its inception, and then inquire whether the

officer’s subsequent actions were reasonably related in scope to

the circumstances that justified the stop.” United States v.

Brigham, 382 F.3d 500, 506 (5th Cir. 2004) (en banc) (citing

Terry, 392 U.S. at 19-20). “‘Reasonable suspicion must be

supported by particular and articulable facts, which, taken

together with rational inferences from those facts, reasonably

warrant an intrusion.’” Goodson, 202 F.3d at 736 (citation

omitted).

Cuong asserts that the purported justification for the stop

of the Lexus was a traffic violation and argues that Thuan had

committed no such violation. He is incorrect about the

investigating agents’ basis for the stop. Those agents were

acting upon specific information supplied by a man named Phuong
 No. 05-11057
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Truong, who was stopped with approximately 1,000 MDMA tablets

earlier on the evening of March 9, 2005.

Cuong maintains that, even if a traffic violation had not

been the purported basis for the stop, the information provided

by Truong was “vague and uncorroborated” and “void of

credibility.” “A tip, even an anonymous tip, may provide the

reasonable suspicion necessary to justify an investigatory stop.”

United States v. Gonzalez, 190 F.3d 668, 672 (5th Cir. 1999)

(citing Alabama v. White, 496 U.S. 325, 327-29 (1990)).

Reasonable suspicion to justify the stop of an automobile may be

based upon information obtained from an informant that possesses

“indicia of reliability.” Adams v. Williams, 407 U.S. 143, 147

(1972). Whether an informant’s tip provides officers with

reasonable suspicion to justify a stop “is dependent upon both

the content of information possessed by police and its degree of

reliability.” White, 496 U.S. at 330. Both the quantity and

quality of the information are considered under the “totality of

the circumstances” approach. Id.

The stop of the Lexus was based on the following

information: Upon being arrested for carrying MDMA tablets,

Truong agreed to cooperate with investigators. He told them that

he was to assist Cuong and another Asian male, who had traveled

from Houston to Fort Worth in a brown Lexus, with the delivery of

a larger quantity of MDMA later that evening. Truong asserted

that he was an informant for a Houston-area DEA agent. Fort

Worth agents contacted the Houston-area agent and confirmed that

Truong was in fact an informant and that a man named “Cuong” was
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the target of an investigation of large-scale MDMA distribution

in Houston. In the presence of Forth Worth agents, Truong

purported to make telephone calls to Cuong and Thuan to arrange a

meeting at a nearby Kroger grocery-store parking lot. Although

these conversations were in Vietnamese, which the agents did not

understand, Truong communicated the contents of the conversations

to the agents. Truong and the agents then proceeded to the

Kroger lot, where they saw two Asian males standing by a brown

Lexus, apparently looking for someone. Truong identified one of

the men as Cuong. The two men then got into the Lexus and began

circling the lot, whereupon patrol officers stopped them.

Codefendant Thuan gave oral and written consent to a search of

the Lexus, which resulted in the discovery of the MDMA tablets.

The information provided by Truong, coupled with subsequent

corroborating observations by investigating agents, was more than

sufficient to create reasonable suspicion to stop the Lexus in

which Cuong was a passenger. See White, 496 U.S. at 329, 331

(even if the tip by itself “would not warrant a man of reasonable

caution in the belief that [a stop] was appropriate,” there was

“more than the tip itself” so as to corroborate the tip (internal

quotation marks and citation omitted)).

Cuong also contends that the district court erred in denying

his motion to sever his trial from Thuan’s. He argues that the

denial prevented him from presenting Thuan’s exculpatory

testimony that the MDMA tablets belonged to him, Thuan, and not

Cuong. Because Thuan did not express an “unequivocal”

willingness to testify on Cuong’s behalf, the district court did
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not abuse its discretion in denying the severance motion.

See United States v. Valdez, 453 F.3d 252, 261 (5th Cir. 2006);

United States v. Manges, 110 F.3d 1162, 1175 (5th Cir. 1997).

Cuong’s related contention that the district court did “not

allow[]” Thuan to testify at his trial is not supported by the

record. Finally, the district court did not abuse its discretion

in declining to allow Cuong to cross-examine Fort Worth

investigator Jerry Cedillo about exculpatory statements that

Thuan might have made to Cedillo. See United States v. Waldrip,

981 F.2d 799, 803 (5th Cir. 1993).

The judgment is AFFIRMED.