United States v. Van Anh

United States Court of Appeals
For the First Circuit

Nos. 07-1010
07-1011
07-1012

UNITED STATES OF AMERICA,

Appellee,

v.

VAN ANH, a/k/a ANH VAN,
KHONG NGUYEN, and THINH CAO,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Lynch, Circuit Judge,

John R. Gibson,* Senior Circuit Judge,

and Howard, Circuit Judge.

Inga S. Bernstein, for appellant, Anh Van.
John T. Ouderkirk, Jr., for appellant, Thinh Cao.
Alan Jay Black, for appellant, Khong Nguyen.
Donald C. Lockhart, Assistant United States Attorney, with
whom Robert Clark Corrente, United States Attorney, and Kenneth P.
Madden, Assistant United States Attorney, were on brief, for
appellee.

*
Of the United States Court of Appeals for the Eighth Circuit,
sitting by designation.
April 11, 2008
 HOWARD, Circuit Judge. A jury convicted Anh Van,1 Khong

Nguyen, and Thinh Cao of multiple counts of conspiring to use or

using extortionate means to collect an extension of credit in

violation of 18 U.S.C. § 894. On appeal, the defendants challenge

their convictions, their sentences, or both. We affirm in all

respects.

I. Background

We rehearse the background facts here, reserving the

discussion of other facts for our later examination of defendants'

challenges. We view these facts in the light most favorable to the

jury's verdict. United States v. Turner, 501 F.3d 59, 63 (1st Cir.

2007).

Tommy Nguyen ("Tommy"), the victim, was a co-manager of

a nail salon in Rhode Island. In April 2005, he and a friend

decided to gamble on a number of NBA basketball games, wagering a

total of $12,000. The men split the investment nearly evenly --

Tommy pledged $6,800 and his friend the remainder. Tommy placed

the bets through a middleman; the bookmaker was in Georgia. Their

predictions proved inaccurate and the $12,000 was lost.

Tommy soon received a phone call. The caller was

defendant Anh Van ("Van"), who ran the collection end of the

gambling business. Van informed Tommy that he would be stopping by

1
Although the government indicted Mr. Van as Van Anh, his true
name is Anh Van. We will refer to him as "Van" throughout the
opinion.

-3-
Tommy's shop to have a talk. Minutes later, Van arrived at the

salon with two men, one of whom was defendant Khong Nguyen

("Nguyen").

All four men proceeded to the parking lot. At this

point, Van and Nguyen demanded the $12,000. Tommy explained that

he needed more time and asked for an extension. Nguyen told Tommy

that he had "come from far away" and that he "wanted the money."

Ultimately, Van gave Tommy a few more days to get the money.

Throughout July, a series of "collection meetings" took

place. Both Van and Nguyen attended the first four meetings;

additional men accompanied them on three of the four. At each of

the first three meetings, Tommy paid the men $2,000. He paid cash

at the first two meetings, and at the third he had his co-manager

at the salon, a woman named Yvonne, make out a check for $2,000

with the payee section left blank. At the fourth meeting he made

out a check for $800 with the payee section left blank. At this

point, Tommy had paid Van a total of $6,800 -- his share of the

$12,000 debt.

Despite the payments already made, Van called Tommy and

demanded the $5,200 balance. Tommy explained to Van that he had

already paid his share and did not owe any more money. This logic

failed to placate Van who told Tommy that he had to pay the

remainder. When Tommy refused, Van told him that he could not "run

nowhere" and that he, Van, would "send somebody down."

-4-
 On the evening of July 25th, Tommy was working late at

the nail salon. Tommy's co-manager Yvonne had left the salon

temporarily but several customers and another employee named Tammy

were present. When Tommy went outside to smoke a cigarette, he was

confronted by Nguyen and two other men. The other men were

Nguyen's brother, Quoc Nguyen ("Quoc"), and defendant Thinh Cao

("Cao"). Nguyen demanded the $5,200 balance. Tommy refused and

retreated into the salon.

One hour later, Tommy emerged with Tammy. Again the men

confronted him, preventing him from getting in his car. Yvonne

had, by this point, returned to the shop and witnessed the

confrontation. Nguyen told Tommy that he had "come down here to

get the money" and that Tommy had "better pay him right now." Cao

and Quoc also demanded the money. Tommy explained to the men that

he had already paid Van. Cao then placed a call to Van and, when

Van answered, gave the phone to Tommy. Over the phone Tommy again

emphasized that he had already paid his share. Van remained

unmoved. He told Tommy that he better pay the balance because

"otherwise, you know, they [will] take care of you." Van then hung

up. At this point, Cao instructed Nguyen and Quoc to "take care of

him" and "go home."

The men attacked Tommy. Nguyen and Quoc knocked him to

the ground and, as he covered his head, began kicking and punching

him. As the men beat Tommy, Cao told Tommy that he should "just

-5-
pay the money." At some point, Yvonne tried to shield Tommy. Her

intervention provided Tommy a window of escape and he fled.

Although Nguyen and Quoc initially gave chase, Cao called them off,

noting that Tommy "ha[d] a business [t]here" and "could not run

anywhere." When Yvonne yelled that she was calling the police, the

three men ran to their car and left the scene. As a result of the

beating, Tommy suffered injuries to his neck, ribs, and legs.

Ultimately, police stopped the car in Massachusetts,

arrested the three men, and returned them to Rhode Island

authorities. A few weeks later, Tommy placed a recorded phone call

to Van at the FBI's direction. When Tommy complained to Van about

Van's behavior, Van stressed that he did not want to talk about

"that matter" and warned Tommy repeatedly not to talk on the phone.

The call ended with Van telling Tommy that they could meet in

person to discuss the situation.

Cell phone records tied Van, Nguyen, and Cao to each

other and to the beating. On December 7, 2005, a federal grand

jury issued a two-count indictment against Van, Nguyen, Cao, and

Quoc. The indictment alleged that the men either used or conspired

to use extortionate means for the purpose of collecting an

extension of credit in violation of 18 U.S.C. §§ 894 and 2.

-6-
 The defendants, excluding Quoc, were tried together.2

After a four-day trial, a jury convicted on all counts.

II. Discussion

A. Challenges to Conviction

Altogether, the defendants press six challenges to their

convictions. The first four challenges concern the district

court's (1) denial of Nguyen's motion for new counsel; (2) handling

of the government's alleged discovery violation; (3) exclusion of

certain evidence; and (4) denial of a mistrial motion. The

defendants also challenge (5) the prosecutor's closing argument and

(6) the district court's reasonable doubt instruction. We address

each challenge in order.

1. Motion for New Counsel

Nguyen argues that the district court erred in denying

his pro se motion for new counsel. We review a district court's

decision to deny a defendant's motion for new counsel for an abuse

of discretion. United States v. Allen, 789 F.2d 90, 92 (1st Cir.

1986).3 Our review focuses on the following factors: (1) "the

2
Although Quoc, Nguyen's brother, was indicted with the three
defendants, he was tried separately.
3
Nguyen's brief colors the issue before the district court as one
concerning "counsel of choice." That is inaccurate. A case
presents a "counsel of choice" issue if a court denies a defendant
the right to "paid counsel of his choosing." United States v.
Gonzalez-Lopez, 126 S. Ct. 2557, 2561 (2006) ("[A]n element of [the
right to have the assistance of counsel] is the right of a
defendant who does not require appointed counsel to choose who will
represent him . . . A defendant should be afforded a fair

-7-
timeliness of the motion"; (2) "the adequacy of the court's inquiry

into the defendant's complaint"; and (3) "whether the conflict

between the defendant and his counsel was so great that it resulted

in a total lack of communication preventing an adequate defense."

Allen, 789 F.2d at 92. In considering these factors, we may bear

in mind that "the right to counsel does not involve the right to a

'meaningful relationship' between an accused and his counsel."

United States v. Machor, 879 F.2d 945, 952 (1st Cir. 1989) (citing

Morris v. Slappy, 461 U.S. 1, 14 (1983)).

Nguyen's pro se motion was based on what he considered to

be inadequate representation by his court-appointed counsel. When

Nguyen filed the motion, his counsel had represented him for

approximately four months. Initially, their relationship appeared

to be satisfactory. Counsel filed several successful motions on

Nguyen's behalf including motions to sever his case from that of

his brother and to exclude certain evidence. Nguyen and his

counsel also attended joint defense meetings with Van and his

attorneys and discussed both the strength of the government's case

and a proposed plea agreement.

opportunity to secure counsel of his own choice.") (emphasis added)
(citation omitted); see also United States v. Gaffney, 469 F.3d
211, 215-16 (1st Cir. 2006). Nguyen was an indigent defendant.
Although indigent defendants have the right to appointed counsel,
Gideon v. Wainwright, 372 U.S. 335, 345 (1963), they have neither
the right to be represented by counsel of their choosing, United
States v. Poulack, 556 F.2d 83, 86 (1st Cir. 1977), nor the right
to demand different counsel except for good cause. Allen, 789 F.2d
at 92.

-8-
 Nevertheless, six days before the start of trial Nguyen

filed his pro se motion. In the motion, Nguyen claimed that his

counsel was trying to "coerce" him into pleading guilty.

After receiving Nguyen's motion, the court held a

hearing. The court first asked Nguyen if he wanted to add anything

to his motion. Nguyen stated that his counsel had not identified

a potential defense and had told him that she could not help him at

trial. The court then gave his counsel the opportunity to respond.

She stated that Nguyen's attitude toward her had changed

dramatically as a result of his contact with Malik Nbala. Nbala

was a friend of Nguyen's and a self-professed law student.

Nguyen's counsel had seen the two conferring when she left an

earlier meeting she had with Nguyen. Nguyen's counsel told the

court that prior to Nbala's involvement, she had discussed with

Nguyen the weight of the evidence against him as well as the

government's proposed plea agreement. She continued with these

discussions after Nguyen's conference with Nbala. However, she

told the court that Nbala's continued involvement with her client

made it "impossible" for her to represent her client and that

Nguyen was "profoundly dissastisfied" that she had not "found a way

out of this for him." She added that "communications are pretty

entirely broken down at this point."

The district court asked some follow up questions about

Nbala and asked Nguyen if he had anything to further to say.

-9-
Nguyen replied that if the court denied his motion he would believe

his trial to be unfair.

The court denied the motion, citing three reasons.

First, the court suggested that any communication problems likely

stemmed from Nguyen's misperception of his attorney's plea

negotiations with the government. The court told Nguyen that his

attorney had a duty to give him her "best assessment of what his

chances were at trial" and that while he had the right to make the

"ultimate decision," he should not "misconstrue a lawyer telling

you that he or she thinks that you ought to plead with a failure to

represent you as best that can be done." Second, the district

court described the breakdown as unilateral. The court observed

that Nguyen had chosen not to communicate with counsel and that, in

its opinion, the breakdown did not appear irreparable. Finally,

the court noted the lateness of Nguyen's motion -- specifically

that it came less than a week before trial.

The district court did not abuse its discretion in

denying Nguyen's motion, as the ruling is supported by all three

Allen factors.

First, Nguyen's motion for new counsel, filed six days

before trial, was not timely. As we noted in Allen, "Judges must

be vigilant that requests for appointment of a new attorney on the

eve of trial should not become a vehicle for achieving delay." 789

F.2d at 93 (quoting United States v. Llanes, 374 F.2d 712, 717 (2d

-10-
Cir. 1967)). Given the eleventh hour nature of Nguyen's motion,

this factor supports the court's decision to deny his motion. See

United States v. Reyes, 352 F.3d 511, 515 (1st Cir. 2003)

(concluding defendant's motion untimely where filed a week before

trial); United States v. Woodard, 291 F.3d 95, 107 (1st Cir. 2002)

(concluding defendant's motion untimely where filed thirteen days

before trial).

Second, the district court conducted a thorough hearing

on Nguyen's motion.4 The court gave Nguyen an opportunity, which

he took, to supplement his written motion with oral testimony.

The court asked Nguyen's counsel to explain her thoughts on the

substance of Nguyen's motion and asked her follow up questions.

After hearing from Nguyen's counsel, it gave Nguyen yet another

opportunity to speak. In sum, the court gave Nguyen multiple

opportunities to explain the reasons behind his motion and it

thoughtfully probed his counsel regarding her view of the

situation. This inquiry was clearly sufficient to apprise the

court of the merits of Nguyen's motion and was more than adequate.

See Reyes, 352 F.3d at 516-17 (holding inquiry adequate where judge

asked defendant why he wanted new counsel); Woodard, 291 F.3d at

108 (holding inquiry adequate where district court inquired as to

4
Although a district court is not required to conduct a full
formal hearing when presented with a motion for new counsel, it did
in this case. See Woodard, 291 F.3d at 108 ("The extent and nature
of the inquiry may vary in each case; it need not amount to a full
formal hearing.").

-11-
the reasons for the motion); Allen, 789 F.2d at 93 (holding inquiry

adequate where court gave defendant opportunity both to voice his

concerns and to explain reasons for motion).

Nguyen focuses his challenge on the third Allen factor --

conflict resulting in a breakdown in communication. He contends

that this factor weighed heavily in favor of the appointment of new

counsel for two reasons. First, he argues that there was

significant conflict between himself and his counsel regarding

trial strategy. He notes that he informed the court that his

counsel had not identified a defense and had sought to coerce him

into pleading guilty. Second, he suggests that the record

reflected a total breakdown in communication. He points to the

fact that his counsel stated during the hearing that her

communications with Nguyen had broken down. These arguments fail.

Nguyen's first argument is unconvincing for two reasons.

First, it is contradicted in part by the record. Although Nguyen's

counsel did advise him to consider a plea agreement, she also filed

a successful motion to exclude evidence -- an action consistent

with trial preparation. Second, there was no evidence of coercion

and the district court was not required to award Nguyen new counsel

simply because he and his counsel disagreed regarding the merits of

a plea. As we noted in United States v. Genao, "[T]he mere fact

that a defense attorney and his client disagree about the

-12-
advisability of a plea does not justify appointing new counsel."

281 F.3d 305, 313 (1st Cir. 2002) (citing Allen, 789 F.2d at 93).

Nguyen's second argument also fails to gain traction.

Despite statements made by Nguyen's counsel, the district court did

not abuse its discretion in concluding that the breakdown in

communication was a unilateral one that could be repaired. The

testimony by Nguyen's counsel strongly suggested that the

communication problems stemmed solely from Nguyen's interactions

with Nbala and his subsequent change in attitude rather than from

any unwillingness of counsel to communicate. Nguyen's choice not

to communicate with counsel does not automatically entitle him to

substitute counsel.

2. The Discovery Claim

All three defendants argue that the government committed

a discovery violation by not disclosing the criminal record of the

victim and prosecution witness, Tommy Nguyen, until six days before

trial. The defendants contend that the delayed disclosure of this

evidence warrants a new trial because it limited their ability to

impeach Tommy during cross examination.

The government learned about Tommy's criminal record six

days before trial and faxed a letter to defense counsel the next

day informing them of this fact and notifying them that it was

obtaining the record. The government faxed the record to defense

counsel two days later and notified the defense that the record

-13-
failed to reflect a potential parole violation by Tommy. On the

second day of trial, defense counsel conducted a voir dire of Tommy

regarding his criminal record. Defense counsel neither requested

a continuance nor moved for a mistrial because of the delay.

Prosecutors must provide potentially exculpatory evidence

that they are aware of to the defense in a timely fashion. United

States v. Sepulveda, 15 F.3d 1161, 1178 (1st Cir. 1993).5 Where a

defendant has properly preserved a discovery claim, we review the

district court's handling of a delayed disclosure for abuse of

discretion. United States v. Casas, 425 F.3d 23, 43 (1st Cir.

2005).6

Because the defendants failed to ask for a continuance,

we seriously doubt they have preserved their delayed discovery

claim.7 In any event, the district court did not abuse its

5
See Brady v. Maryland, 373 U.S. 83, 87 (1963). Evidence that is
potentially useful to impeach a witness, the variety at issue here,
is a subset of Brady material called "Giglio" material. Giglio v.
United States, 405 U.S. 150, 153-54 (1972).
6
The government persuasively maintains that there was no delayed
disclosure at all because it immediately notified defense counsel
when it learned of Nguyen's criminal record and faxed the record
once the record was in its possession. For purposes of our
analysis we will assume arguendo that there was a delayed
disclosure.
7
See United States v. Smith, 292 F.3d 90, 102-103 (1st Cir. 2002)
("[D]efense counsel must typically request a continuance to
preserve a claim of prejudice by delayed disclosure of evidence.");
Sepulveda, 15 F.3d at 1178 ("As a general rule, a defendant who
does not request a continuance will not be heard to complain on
appeal that he suffered prejudice as a result of late-arriving
discovery."); United States v. Diaz-Villafane, 874 F.2d 43, 47 (1st

-14-
discretion in allowing the trial to proceed despite the delayed

disclosure. In delayed disclosure cases, we need not address

whether the evidence was material8 unless the defendant can

demonstrate that the delay prevented defense counsel from using the

disclosed material effectively in preparing and presenting the

defendant's case. Smith, 292 F.3d at 102. "The defendant must at

a minimum make a 'prima facie' showing of a plausible strategic

option which the delay foreclosed." Id. at 104.

The defendants have made no such showing here and it is

evident the delay did not hamper their use of Tommy's criminal

record. First, the defendants' failure to request a continuance,

besides raising the spectre of waiver, causes us to entertain their

discovery claim with a significant amount of skepticism. See

United States v. Osorio, 929 F.2d 753, 758 (1st Cir. 1991) ("[W]e

have viewed the failure to ask for a continuance as an indication

that defense counsel was himself satisfied he had sufficient

Cir. 1989) ("[A defendant's] claim that he was unfairly surprised
is severely undermined, if not entirely undone, by his neglect to
ask the district court for a continuance to meet the claimed
exigency."). Although we have said that other actions may preserve
a delayed discovery claim, such as requesting a mistrial or moving
to exclude evidence, the defendants failed to take these actions as
well. See Smith, 292 F.3d at 103 (questioning whether defendant
preserved discovery claim where defendant neither asked for a
continuance nor moved for a mistrial); United States v. Lemmerer,
277 F.3d 579, 587 n. 2 (1st Cir. 2002) (noting that defense
counsel, though failing to ask for continuance, preserved discovery
claim because of motion to exclude belatedly disclosed evidence).
8
We discuss the materiality requirement below.

-15-
opportunity to use the evidence advantageously."). But even had

the defendants been operating on a clean slate, our conclusion

would be the same given that the record reflects ample use of the

disclosed evidence. Defense counsel cross-examined Tommy regarding

his criminal record, getting him to admit that he had Georgia

convictions for breaking and entering and driving without

insurance. See United States v. Ingraldi, 793 F.2d 408, 412 (1st

Cir. 1986) (noting that the impact of the delayed disclosure on

defense counsel's cross examination turns in part on "the extent

the defendant actually managed to use [the disclosed material]

despite the delay"). It is not surprising that defense counsel

effectively used this evidence, having had three days to determine

how to best put it to use. See Sepulveda, 15 F.3d at 1179 (noting

that delayed disclosure did not prevent defendant from effectively

preparing and presenting case where defense counsel received

evidence while witness was testifying and effectively incorporated

its contents into the cross-examination).

Notwithstanding the cross-examination of Tommy about his

criminal record, defendants insist that the delay was prejudicial.

Van and Cao say there are two potential sources of additional

impeachment material that were buried within the disclosed

material. First, an investigation of Tommy's social security

number gave rise to an inference that "more than one person was

improperly using the number." Second, Tommy had different dates of

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birth attributed to him within the various disclosed court

documents. The defendants suggest that, given these discrepancies,

had the government disclosed Tommy's criminal records earlier they

could have either uncovered other crimes Tommy committed or more

vigorously pressed him regarding potential dishonesty with

government officials about his birth date.

The defendants' speculative arguments about potential

additional uses of the disclosed material are unavailing. The

defense conducted voir dire of Tommy about his social security

number, his birth date and his criminal record. If they believed

their inquiry raised red flags, they easily could have requested a

continuance in order to conduct additional investigation. They

failed to do so. This reflects not only their own satisfaction

with their use of the disclosed material in their cross-examination

of Tommy but also a conscious decision to forgo a strategic option.

3. Exclusion of Evidence

During the cross-examination of Tommy, Nguyen's counsel

sought to introduce evidence for the purpose of impeaching Tommy.

The district court excluded the evidence under Rule 403 of the

Federal Rules of Evidence. Defendants Nguyen and Van argue this

ruling was erroneous. We review a district court's decision to

exclude evidence under Rule 403 for an abuse of discretion. United

States v. Flemmi, 402 F.3d 79, 86 (1st Cir. 2005).

-17-
 During cross-examination, Nguyen's counsel asked Tommy a

series of questions concerning a nickname Tommy had bestowed upon

Nguyen. Tommy admitted that he had initially not known Nguyen's

name and had therefore referred to Nguyen as "Fat Guy." The line

of questioning was part of Nguyen's defense theory -- that Tommy's

"nicknaming" of Nguyen, and not Tommy's failure to repay his debt,

was the cause of the July 25 scuffle and not Tommy's failure to

repay his debt. Nguyen's counsel asked Tommy on cross examination,

"You have something of a temper, don't you [Tommy]?". When Tommy

responded, "Not really," Nguyen's counsel attempted to question

Tommy about incidents which had allegedly occurred nine months

after the collection meeting. The government objected.

At a sidebar after the objection, Nguyen's counsel made

an offer of proof concerning two incidents. The first incident

involved a verbal argument that occurred between Tommy and Yvonne

over a loan. Although the argument resulted in the police being

called to the scene, no report was made. The second incident

occurred the day after the first. Yvonne and her boyfriend

discovered that someone had smashed her boyfriend's car windshield.

The police were again called to the scene, and Yvonne reported that

Tommy had been drinking all day and that she and her boyfriend saw

his car leaving the parking area where the damaged car was parked

immediately prior to their discovery of the damage.

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 Nguyen's counsel suggested that this evidence supported

her theory that Tommy had used "fighting words" to incite Nguyen.

The district court sustained the government's objection, concluding

that the evidence was "too far afield," and added, "We're going to

try this case and not some other case that sounds like it's not

very conclusive." The court also noted that Nguyen's counsel had

made her point about the incitement theory during her cross-

examination. Another defense attorney objected to the court's

ruling, contending that the evidence was admissible to contradict

Tommy's testimony that he did not have a temper.

Nguyen and Van argue that the evidence was admissible

under two theories and, further, that the district court's decision

to exclude the evidence pursuant to Rule 403 was an abuse of

discretion.9

Regardless of the merits of the defendants' theories of

admissibility, the court's ultimate decision to exclude the

evidence under Rule 403 did not constitute an abuse of discretion.

Rule 403 states:

Although relevant, evidence may
be excluded if its probative

9
Although Van also suggests that the court erred in preventing
Nguyen's counsel from presenting her theory of the case, he does
not sufficiently develop this argument and thus it is waived. See
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). In any
event, the district court gave Nguyen's counsel ample opportunity
to pursue the "incitement theory" and only cut off her questioning
when she attempted to introduce evidence concerning incidents
unrelated to the July 25th beating.

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 value is substantially
outweighed by the danger of
unfair prejudice, confusion of
the issues, or misleading the
jury, or by considerations of
undue delay, waste of time, or
needless presentation of
cumulative evidence.

Fed. R. Evid. 403.

The probative value of the proffered evidence is suspect.

The evidence concerned incidents that took place nearly nine months

after the July 25 beating and did not involve the defendants.

Moreover, the evidence itself was paltry. No police report was

taken regarding the first incident, and Tommy was not conclusively

linked to the second incident involving the smashed windshield.

The district court recognized this, noting that the evidence was

both "too far afield," and "not very conclusive." As we have noted

in the past, "[o]nly rarely -- and in extraordinarily compelling

circumstances -- will we, from the vista of a cold appellate

record, reverse a district court's on-the-spot judgment concerning

the relative weighing of probative value and unfair effect."

Freeman v. Package Mach. Co., 865 F.2d 1331, 1340 (1st Cir. 1988).

We cannot say the district court's on-the-spot judgment was

erroneous.10

10
The defendants also suggest that the district court's Rule 403
analysis was erroneous because of a procedural infirmity in the
court's ruling. Specifically, they take issue with the fact that
the court did not recite the balancing test set forth in Rule 403.
This argument goes nowhere. A court is not required to quote the
language of Rule 403 when making such a ruling. See United States

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 4. Mistrial Motion

Nguyen argues that the district judge should have granted

his mistrial motion because he was unduly prejudiced by a police

officer's improper testimony at trial. The testimony concerned the

officer's seizure of a weapon from the car Nguyen and the others

were traveling in when they were stopped by police.

The testimony should never have been given. Prior to

trial, Nguyen filed a motion in limine to exclude evidence about

the discovery of the weapon, a machete, and the motion was granted.

Yet when the police officer who stopped the car was asked by the

prosecutor on the stand whether he had discovered any "weapons"

during a pat down frisk of the car's occupants the police officer

responded, "Not on their person. In the vehicle." Nguyen's

counsel objected to the officer's testimony and moved to strike.

The court granted the motion and instructed the jury to

"[D]isregard the last portion of the answer." Ultimately, Nguyen's

counsel moved for a mistrial arguing that the government intended

to offer evidence that the car was registered to Nguyen. After the

government offered not to introduce this evidence, Nguyen's counsel

joined Van's counsel in proposing curative instructions. The court

obliged and instructed the jury that: (1) there was no evidence

about ownership of the vehicle; (2) despite the officer's reference

v. De la Cruz, 902 F.2d 121, 123-24 (1st Cir. 1990).

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to a weapon, the only object seized was a "tool of some sort"; (3)

the item was not "a gun or some other kind of weapon"; and (4) the

item "had nothing whatsoever to do with the alleged assault."

Although at trial Nguyen never claimed the court's

instructions were inadequate, he now insists that they failed to

neutralize the testimony's prejudicial effect. Specifically, he

contends that the officer's statement regarding the presence of a

weapon in the vehicle could have persuaded the jurors that the

defendants were the initial aggressors in the scuffle.

We review a district court's denial of a mistrial motion

for a manifest abuse of discretion.11 United States v. Glenn, 389

F.3d 283, 287 (1st Cir. 2004). Whenever "a curative instruction is

promptly given, a mistrial is warranted only in rare circumstances

implying extreme prejudice." United States v. Reiner, 500 F.3d 10,

16 (1st Cir. 2007); see also Sepulveda, 15 F.3d at 1184 ("[C]ourts

have long recognized that, within wide margins, the potential

prejudice stemming from improper testimony or comments can be

satisfactorily dispelled by appropriate curative instructions.").

The district court did not abuse its discretion in

denying the mistrial motion. The officer never described the

11
There is some disagreement regarding whether Nguyen forfeited
this argument at trial. The government suggests that he did
because he neither argued that the curative instructions were
inadequate nor renewed his mistrial motion. Because we conclude
that there was no error even under the manifest abuse of discretion
standard, we do not reach the preservation question.

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"weapon" he seized from the vehicle, and the curative instruction

suggested that the officer mischaracterized what he found in the

vehicle. Moreover, the government presented no evidence regarding

the ownership of the vehicle and thus gave no indication to the

jury as to which one of the three men was most likely associated

with the "weapon." Because the court gave prompt curative

instructions, Nguyen has to argue that he suffered extreme

prejudice. Although the officer's unsolicited testimony was

unfortunate, the district court did not abuse its discretion in

determining its curative efforts prevented such prejudice.

5. Prosecution's closing argument

Nguyen and Cao argue that the prosecutor made

inappropriate statements during closing argument that prejudiced

the outcome of the case, and thus denied them due process. Both

defendants take aim at one set of statements made by the

prosecutor, and Cao alone challenges additional statements.

Because neither defendant objected to the relevant

portions of the prosecutor's closing argument, our review is for

plain error. United States v. Allen, 469 F.3d 11, 16 (1st Cir.

2006) (internal citation omitted). Under this standard, the

defendant must show that "(1) [] an error occurred (2) which was

clear or obvious and which not only (3) affected the defendant's

substantial rights, but also (4) seriously impaired the fairness,

integrity, or public reputation of judicial proceedings." United

-23-
States v. Bennett, 469 F.3d 46, 52 (1st Cir. 2006) (quoting United

States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)). "An error

affects substantial rights if it was 'prejudicial,' meaning that

the error 'must have affected the outcome of the district court

proceedings.'" Ramirez-Burgos v. United States, 313 F.3d 23, 29

(1st Cir. 2002) (citation omitted).

Both defendants challenge statements made by the

prosecutor which intimated that Cao attended the final collection

meeting to ensure Nguyen did not lose control and unduly harm

Tommy. The remarks in question were:

Let me suggest to you the reason Mr. Cao has
to show up is Mr. Van [] can't trust [] Nguyen
to just slap [Tommy] around a little. They
don't want to hurt him seriously. Do they
want the ambulance to come? Do they want the
police to come? When people get beaten up,
they get upset. They may go to the police.

The defendants contend that these statements inaccurately

characterized the evidence. Nguyen argues that nothing in the

evidence suggested either that Van did not trust Nguyen or that Cao

was supervising Nguyen to make sure he did not get out of hand.

Cao advances essentially the same argument.

Arguably, the prosecutor's statements were supported by

reasonable inferences drawn from the evidence. See United States

v. Grant, 971 F.2d 799, 810 (1st Cir. 1992). The evidence revealed

the following: (1) Nguyen never visited Tommy to collect payments

alone -- Van accompanied him on the first four visits and Cao on

-24-
the final visit; (2) Cao gave the order to "take care" of Tommy and

watched as Nguyen and Quoc beat Tommy; (3) Cao ultimately called

off both Nguyen and Quoc after Tommy broke free of the scuffle and

also reminded the men that Tommy had a shop and could not run

anywhere. This evidence supports the inference that Cao played the

role of supervisor during the last visit and Nguyen the role of

enforcer. It also could reasonably support, though less

comfortably, the inference that Van did not trust Nguyen to collect

the debt alone.

Ultimately, whether or not the prosecutor's statements

were appropriate they did not amount to plain error. The

prosecution presented ample evidence that the July 25th beating was

motivated by Tommy's debt. There is no reason to believe the

prosecutor's remarks concerning the respective roles played by

Nguyen and Cao was the cause of their convictions.

Cao argues that three additional sets of statements by

the prosecutor were erroneous. These involved the prosecutor's

statements: (1) asking the jury to exercise "common sense"; (2)

paraphrasing what Cao said during the final collection meeting with

Tommy; and (3) regarding phone records.

First, Cao argues that the prosecutor suggested to the

jury that it could convict based on a common sense standard rather

than a reasonable doubt standard. The prosecutor said, "And I

stress your God-given common sense in this case, because if ever a

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verdict should be based just upon your God-given common sense, this

is it . . . .Ladies and gentlemen, let me suggest that you get into

the real world."

Second, Cao contends that the prosecutor inaccurately

paraphrased his comments during the final collection meeting.

Tommy testified that after he got off the phone with Van, Cao told

the other men to "take care of him and go home." However, during

closing argument, the prosecutor said, "What does Thinh Cao say?

Just pay the money, take care of him, we'll go home." Cao argues

that by adding the contraction "we'll," the prosecutor led the jury

to believe that Cao considered himself allied with the other two

men and that this was not the case.

Finally, Cao claims that the prosecutor committed an

error during closing argument by referencing a potential

discrepancy in phone records. During the trial, for the purpose of

connecting Cao to Van, the government presented evidence that

indicated both that Cao was the subscriber for a certain cell phone

number and that there was substantial call traffic between this

number and Van's cell phone number in the days leading up to the

final collection meeting and on the day of the meeting itself.

However, Cao's phone records established that following Cao's

arrest and subsequent detention, during a period in which he

presumably was not in control of his phone, three outbound calls

were made from his number. All three calls resulted in zero

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airtime minutes. Defense counsel pointed to this evidence as

indicating that someone other than Cao was in possession of the

phone on the day of the final collection meeting. During closing

argument the prosecutor, in addressing defense counsel's theory,

suggested to the jury that a mistake in phone records could explain

the three calls. Cao argues that the prosecutor's statement had no

basis in the evidence.

Regardless of the propriety of these three categories of

statements, the remarks did not rise to the level of plain error.

With respect to the prosecutor's common sense remarks, we

note that nowhere did the prosecutor imply that common sense is a

standard much less that it is a substitute for the reasonable doubt

standard. But in any event, when the remarks are placed in the

larger context of the closing argument as a whole we are confident

that they did not affect the outcome of the proceedings.

The same is true for the prosecutor's statement

paraphrasing Cao's comments and the prosecutor's suggestion that

Cao's phone records were inaccurate. The government presented

ample evidence indicating that Cao was allied with the two others.

For example, Cao directed the others to commence and to cease the

beating of Tommy. The fact that the prosecutor added the word

"we'll" to Cao's statement to the others is insignificant in light

of the record evidence. With respect to the prosecutor's comments

concerning Cao's phone records, even if the evidence did not

-27-
warrant the inference the phone records may have been inaccurate,

a proposition we are inclined to disagree with,12 the government

presented other evidence connecting Cao to Van. Cao admitted to

subscribing to the cell phone number that had made the numerous

calls to Van in the days leading up to the beating, and phone

records indicated that both Cao and Van had called Nguyen numerous

times on the day of the collection meeting.

6. Reasonable Doubt Instruction

All three defendants argue that the district court

committed error when instructing the jury on reasonable doubt. Van

objected to the instruction; therefore, if we find the instruction

erroneous we must reverse his conviction. Sullivan v. Louisiana,

508 U.S. 275, 279 (1993); United States v. Lopez, 71 F.3d 954, 960

(1st Cir. 1995) ("[A] defective reasonable doubt instruction

objected to at trial cannot be harmless error."). Because Cao and

Nguyen failed to object, review as to them is for plain error.

United States v. Vavlitis, 9 F.3d 206, 211 (1st Cir. 1993).

A reasonable doubt instruction will constitute reversible

error if, taken as a whole, it has a "reasonable likelihood" of

leading the jury to believe that it can convict on some lesser

12
The government produced exhibits indicating that Cao's phone
records could have been inaccurate. For example, Cao's phone
records indicated that 55 calls had been made from Cao to Van
whereas Van's phone records indicated that 52 such calls had
occurred. Such evidence supports a reasonable inference that Cao's
phone records were simply inaccurate.

-28-
standard of proof than that required under the reasonable doubt

standard. O'Shea, 426 F.3d at 482.

The defendants take issue with a particular portion of

the court's reasonable doubt instruction. This portion reads:

That brings us to the question of what's a
reasonable doubt. I'm afraid I can't be a
great deal of help to you on this one. It's a
term that pretty much defies definition. All
I can say is that the Government's obligation
to prove these elements or to prove the
defendant guilty beyond a reasonable doubt
does not mean that the Government must prove
the defendant guilty beyond all shadow of a
doubt or beyond all doubt. What it means is
that the Government must prove the defendant
guilty beyond a reasonable doubt. And in
determining whether a reasonable doubt exists,
you should use your common sense to determine
what the facts are.

A reasonable doubt may arise from evidence
that's been presented to you, or it may arise
from a lack of evidence. I can't provide you
with any better definition than that. The
reason you're here is you know what a doubt
is, and you know what's reasonable, and it's
up to you to decide whether you think the
government has proven the things it must prove
beyond a reasonable doubt. (emphasis added).

The defendants criticize the court's decision to

immediately follow its statement regarding the difficulty of

defining reasonable doubt with a description of reasonable doubt

using "negative terms" (i.e., describing what the government did

not have to prove). They contend that this phrasing, along with

the court's failure to describe reasonable doubt in "positive

-29-
terms," created a reasonable likelihood that the government's

burden of proof was diminished.

We have previously explained that reasonable doubt is

difficult to define, see United States v. Munson, 819 F.2d 337, 346

(1st Cir. 1987), and that a court need not define reasonable doubt

for a jury. United States v. Rodriguez-Cardona, 924 F.2d 1148,

1160 (1st Cir. 1991). We have also upheld jury instructions that

defined reasonable doubt using negative terms. United States v.

Whiting, 28 F.3d 1296, 1303-04 (1st Cir. 1994)(noting that

government's burden of proof is not likely to be lessened "by an

instruction that with a few general phrases indicates that not

every doubt is a reasonable one").

The defendants do not argue otherwise. They instead

contend that the court's various statements in combination and

without a positive definition of reasonable doubt, caused its

instruction to be constitutionally defective.

The court's reasonable doubt instruction was not a model

instruction and in no way do we endorse it. We have, in the past,

warned against attempts to define reasonable doubt noting that such

attempts often "result in further obfuscation of the concept."

O'Shea, 426 F.3d at 482; United States v. Andujar, 49 F.3d 16, 23

(1st Cir. 1995) (internal quotation and citation omitted).

However, we are mindful that in determining whether an

instruction is constitutionally sound, we must view the instruction

-30-
as a whole. United States v. Ranney, 298 F.3d 74, 80 (1st. Cir.

2002) (analysis of reasonable doubt instruction must consider "the

entire jury charge"). Though we are troubled by the instruction,

given its other defendant-favorable aspects we cannot say that the

jury was misled regarding the government's burden of proof.

In particular, the district court did three things that

persuade us that its instruction adequately communicated the

government's burden. First, throughout the instruction the court

emphasized the government's duty to prove the defendants guilty

beyond a reasonable doubt. All told, it mentioned the government's

burden of proof a total of ten times. See United States v.

Burnette, 375 F.3d 10, 21 (1st Cir. 2004) (concluding instruction

adequate where, among other things, court referenced government's

burden of proof ten times), vacated on other grounds, 543 U.S. 1181

(2005). Second, the court noted that reasonable doubt could arise

either from the evidence that had been presented to the jury or

from a lack of evidence. Third, the court stressed the presumption

of innocence afforded to the defendants. It stated to the jury:

I told you at the beginning of the trial about
the presumption of innocence, that a defendant
starts a trial presumed to be not guilty and
that presumption remains with him unless and
until the Government presents evidence that
convinces you beyond a reasonable doubt that
he is guilty. And if the Government doesn't
present such evidence, then the presumption of
innocence is sufficient to require you to
acquit the defendant.

-31-
See O'Shea, 426 F.3d at 482 (instruction adequate where "district

court gave a careful and cogent discussion of the presumption of

innocence").

Our decision in United States v. Wallace, 461 F.3d 15

(1st. Cir. 2006) provides additional support for our conclusion.

There we found no error in a reasonable doubt instruction that was

materially the same as the one the district court delivered here.

In Wallace, the district court instructed the jury as follows:

The Government must prove facts sufficient to
prove all the elements of the offenses with
which the defendant is charged as I have
explained. Now, the Government's obligation
to prove the defendant's guilt beyond a
reasonable doubt does not mean that it must do
so beyond all doubt or beyond any conceivable
shadow of a doubt. What it means is that the
Government must prove the defendant's guilt by
a reasonable doubt.

I cannot provide you with the definition of a
reasonable doubt. You know what 'reasonable'
means and you know what 'a doubt' means.
Therefore it is up to you to decide whether
the Government has proved the defendant guilty
beyond a reasonable doubt.

461 F.3d at 30 (emphasis added).

Like the defendants in this case, the defendant in

Wallace argued that the court's statement that it could not provide

the jury with a definition of reasonable doubt, combined with its

statement focusing on what the government did not have to prove,

impermissibly diminished the government's standard of proof. Id.

However, we disagreed after finding other language in the

-32-
instruction that ensured the government's burden of proof was not

impermissibly diminished. Id. So it is here.

We emphasize that courts must exercise the utmost care

when instructing a jury as to reasonable doubt. In that vein, we

note that there is value in consulting the First Circuit Pattern

Jury Instruction, § 3.02, and in using it for the guidance it is

intended to provide.

B. Sentencing Phase

The district court sentenced the defendants to the

following terms of incarceration: Van, 52 months; Nguyen, 46

months; Cao, as a career offender, 150 months. Nguyen and Cao

challenge their sentences. We address each challenge in turn.

Nguyen's 46 month sentence was within the advisory

guideline range of 41-51 months that the probation office proposed

in its pre-sentence report ("PSR"). Nguyen did not object to the

PSR.

Nevertheless, Nguyen argues that his sentence was

unreasonable for two reasons. First, he argues that the district

court's sentence was unduly influenced by erroneous First Circuit

precedent. He claims that we have held that a within-guideline

sentence is "presumptively reasonable" and that this causes

district courts to favor within-guideline sentences. He argues

that such a presumption is unconstitutional according to Booker v.

-33-
United States, 543 U.S. 220 (2005).13 Second, he argues that the

district court did not adequately consider the factors set forth in

18 U.S.C. § 3553(a) when imposing his sentence. Specifically, he

asserts that the court failed to consider his "history and

characteristics," in particular, that: (1) he was born in Vietnam;

(2) he was the oldest of three children; and (3) his family fled

from Vietnam in 1975 due to the political unrest there.

We review sentences for reasonableness regardless of

whether they fall inside or outside the applicable guideline

sentencing range. United States v. Jimènez-Beltre, 440 F.3d 514,

519 (1st Cir. 2006) (en banc). Nevertheless, "a defendant who

attempts to brand a within-the-range sentence as unreasonable must

carry a heavy burden." United States v. Pelletier, 469 F.3d 194,

204 (1st Cir. 2006).

Nguyen's first argument is legally incorrect. The

Supreme Court has said that it is not improper for a court of

appeal to presume that a within-guideline sentence is reasonable.

Rita v. United States, 127 S. Ct. 2456, 2467-68 (2007). But

moreover, contrary to Nguyen's contention, we do not attach a

presumption of reasonableness to within-guideline sentences. See

Jimènez-Beltre, 440 F.3d at 519; United States v. Taylor, 499 F.3d

94, 102 n.3 (1st Cir. 2007).

13
Because Nguyen failed to raise his constitutional argument
below, this argument is governed by the plain error standard.
United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).

-34-
 Nguyen's second argument lacks merit for two reasons.

First, Nguyen's counsel never mentioned the "history and

characteristics" factor at sentencing. The district court can

hardly be faulted for not adequately considering an argument that

was never made to it. See United States v. Alli, 444 F.3d 34, 41

(1st Cir. 2006) (holding district court's examination of 3553(a)

factors adequate, despite defendant's claim that court failed to

consider particular § 3553(a) factor, where defendant failed to

mention factor at sentencing). But second, and more importantly,

notwithstanding the fact that Nguyen's counsel failed to apprise

the court of his "history and characteristics," the record

indicates that the district court did in fact consider this §

3553(a) factor. The information Nguyen references was set forth in

the PSR and the court expressly stated at sentencing, "The

Probation Officer has described your upbringing." Moreover, when

considering what sentence to impose the court described Nguyen's

background as "unfortunate."

We now turn to Cao's sentencing argument. The district

court sentenced Cao as a career offender after concluding that he

met all the requirements of the career offender provision.

Specifically, the court concluded that: (1) Cao was at least 18

years old when he committed the instant felony offense; (2) the

felony offense was a crime of violence; and (3) Cao had two prior

felony convictions of crimes of violence. See U.S.S.G. § 4B1.1.

-35-
Cao's two prior felony convictions included a 1987 New Jersey

conviction for (1) armed robbery, (2) theft by extortion, and (3)

"terroristic threats" and a 1991 Massachusetts conviction for (1)

armed robbery and (2) assault and battery with a dangerous weapon.

Cao was sentenced to 3 to 9 years in prison following his New

Jersey conviction, and to concurrent terms of 16 to 22 years and 8

to 10 years following his Massachusetts conviction.

Cao argues that the court should not have counted his

1987 New Jersey conviction as a predicate offense. He contends

that his 1987 conviction does not satisfy an additional requirement

that predicate offenses must meet in order to be counted under the

career offender provision. Specifically, he points to U.S.S.G. §

4A1.2(e)(1)'s time limitation. This section reads in part:

Any prior sentence of imprisonment exceeding
one year and one month that was imposed within
fifteen years of the defendant's commencement
of the instant offense is counted.

Cao argues that because his 1987 conviction resulted in

a sentence exceeding thirteen months, and because his sentence was

imposed eighteen years and four months before the commencement of

the instant offense, the court could not use the 1987 conviction as

a predicate offense.

We disagree. Whether or not Cao's reading of this clause

of section 4A1.2(e)(1) is sound, because Cao violated conditions of

parole that attached to his New Jersey conviction the district

-36-
court was still entitled to include the 1987 conviction as a

predicate offense under a different clause of section 4A1.2(e)(1).

This second clause of section 4A1.2(e)(1) provides:

Also count any prior sentence of imprisonment
exceeding one year and one month, whenever
imposed, that resulted in the defendant being
incarcerated during any part of such fifteen-
year period.

U.S.S.G. § 4A1.2(e)(emphasis added).

As a result of his parole revocation, Cao's 1987 New

Jersey sentence was reinstated in 2002 and he served an additional

one year and seventeen days in connection with the New Jersey case.

The district court was entitled to count Cao's 1987 sentence as a

predicate offense because: (1) he was sentenced for a period

exceeding 13 months ("a prior sentence of imprisonment exceeding 13

months"), (2) the sentence was imposed in 1987 ("whenever

imposed"), and (3) the sentence "resulted" -- because of Cao's

parole violation and the subsequent reinstatement of the New Jersey

sentence -- in Cao being incarcerated on August 31, 2002

(incarcerated "within fifteen years of the defendant's commencement

of the instant offense").

Cao, for his part, protests this use of his parole

revocation. He contends that his parole revocation cannot affect

the career offender analysis because parole revocation does not

involve an "adjudication of guilt." Cao's argument is misguided.

The "adjudication of guilt" took place when Cao was convicted in

-37-
1987. See Morrissey v. Brewer, 408 U.S. 471, 480-81 (1972).

Moreover, Cao's argument ignores the fact that the career offender

guidelines treat sentences imposed pursuant to a revocation of

parole as part of the original sentence. U.S.S.G. § 4A1.2(k)(1)

provides:

In the case of a prior revocation of . . .
parole, add the original term of imprisonment
to any term of imprisonment imposed upon
revocation.

Thus, under the guidelines, parole revocation sentences

relate back to the original adjudication of guilt.

III. Conclusion

For the foregoing reasons, we affirm the convictions and

sentences in all respects.

Affirmed.

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