United States Court of Appeals
For the First Circuit
No. 15-2133
SINY VAN TRAN,
Petitioner, Appellant,
v.
GARY RODEN,
Respondent, Appellee.
No. 15-2134
NAM THE THAM,
Petitioner, Appellant,
v.
LISA A. MITCHELL,
Respondent, Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Indira Talwani, U.S. District Judge]
Before
Torruella, Thompson, and Kayatta,
Circuit Judges.
Janet Hetherwick Pumphrey, for appellant Siny Van Tran.
Robert F. Shaw, Jr., with whom Law Offices of Robert F. Shaw,
Jr. was on brief, for appellant Nam The Tham.
Thomas E. Bocian, Assistant Attorney General, Criminal
Bureau, with whom Maura Healey, Attorney General of Massachusetts,
was on brief, for appellees Roden and Mitchell.
January 30, 2017
TORRUELLA, Circuit Judge. Petitioners-appellants, Siny
Van Tran ("Tran") and Nam The Tham ("Tham"), contest the district
court's denial of their petitions for writs of habeas corpus under
28 U.S.C. § 2254. They argue that the Commonwealth of
Massachusetts's use of photocopies of United Airlines flight
records at their trials violated their Sixth Amendment
Confrontation Clause rights, albeit for slightly different
reasons. Tran contends that he had a right to confront someone
who knew about United Airlines's procedures for verifying
passenger identities at the time of the flight. Tham contends
that he had a right to confront the person who created the records.
After careful consideration, we affirm the district court's denial
of habeas corpus relief.
I. Background1
On January 12, 1991, six men were shot, execution-style,
in the basement of an illegal gambling club in Boston's Chinatown
district; only one survived the resulting injuries. Commonwealth
v. Siny Van Tran, 953 N.E.2d 139, 145 (Mass. 2011). According to
the testimony of the surviving victim, Pak Wing Lee ("Lee"), and
1 Because we must accept the findings of fact of the state court
unless convinced by clear and convincing evidence they are in
error, we recount the facts as found by the Supreme Judicial Court,
and note supplementary facts from the record as such. Lynch v.
Ficco, 438 F.3d 35, 39 (1st Cir. 2006) (quoting McCambridge v.
Hall, 303 F.3d 24, 26 (1st Cir. 2002) (en banc)).
-3-
the proprietor of the gambling club, Yu Man Young, Tran arrived at
the gambling club at approximately 2:30 a.m. with another one of
the victims after they had both been drinking at a nightclub
together. Tran soon left by himself, returned to the gambling
club, and left again. Tran returned once again, this time with
Tham and another man, Hung Tien Pham ("Pham"). All three had
guns. Upon entering the club, they told everyone to stop moving
and kneel down. Lee felt a gun placed to the back of his head,
heard a bang, and lost consciousness. Two hours later, Lee
regained consciousness and stumbled out of the building to find
help. A young couple passing by saw him and flagged down a
security guard at a nearby hospital. The security guard contacted
two police officers who entered the gambling club and found five
people dead, all with gunshot wounds to the head.
Arrest warrants were issued for Tran, Tham, and Pham
after the shootings, but they had already left the United States.
Authorities in China arrested Tran in 1999, and Tham in 2000.2 A
grand jury in Massachusetts state court indicted Tran and Tham in
1999, and they were extradited from Hong Kong in December of 2001.
The Commonwealth jointly tried Tran and Tham in 2005.
At trial, the Commonwealth sought to introduce a passenger manifest
2 Pham has never been detained.
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and ticket inquiry showing that on February 1, 1991 -- three weeks
after the gambling club shooting -- passengers named Wah Tran,3
Nam The Tham, and Hung Tien Pham flew on United Airlines ("United")
from New York City to Hong Kong via Narita, Japan. The flight
manifest -- a computer-generated report created for the pilot and
flight crew listing all of the passengers on a flight with each
passenger's seat number -- showed that "Wah Tran" sat in seat 53F
and "Nam The Tham" sat in seat 46J on a flight from New York to
Narita and both passengers had a connecting flight to Hong Kong.
The manifest also showed that someone named "Hung Tien Pham" was
on the flight and that the passengers named Tran, Tham, and Pham
had the same "group code," meaning that they had purchased their
tickets together. The ticket inquiry -- a computer-generated
report from United's ticket database -- showed that tickets for
"Tran/Wah Mr.," "Tham/Nam The Mr.," and "Pham/Hung Tien Mr." were
purchased on the same date (January 30, 1991) and, based on their
consecutive ticket information numbers, around the same time. An
unidentified United employee gave the Boston police the manifest
and ticket inquiry on February 12, 1991.
The Commonwealth argued that these records helped prove
that Tran and Tham fled the country, and their flight was evidence
3 It is not disputed that Tran obtained a passport issued in the
name of Wah Tran.
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of their consciousness of guilt. Both Tran and Tham sought to
exclude the documents on the grounds that they were improperly
authenticated, were inadmissible hearsay, and violated their
Confrontation Clause rights. Their motions were ultimately
denied,4 and the Commonwealth introduced the manifest and ticket
inquiry as business records through the testimony of David
Contarino ("Contarino"), the business manager of United in Boston.
Contarino began working for United in 1999, and therefore was not
a United employee at the time of the flight in question in 1991.
Contarino authenticated the documents by stating that the
passenger manifest and ticket inquiry contained almost the exact
same identifying information that then-current United passenger
manifests and ticket inquiries contained, and he described the
various numbers and codes on each item. Contarino also testified
that United created manifests and kept ticket information in the
regular course of business. He stated that a United employee
created a manifest before every flight to give to the crew.
Contarino further testified that United entered information about
4 The trial court originally ruled in Tran and Tham's favor, but
the Commonwealth sought interlocutory review by the Supreme
Judicial Court of Massachusetts. A single justice resolved the
appeal and concluded that the manifest and ticket inquiry were
admissible subject to the prosecution laying a proper foundation.
The prosecution did so, and then the district court admitted the
documents.
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every ticket at the time of purchase and stored that information
in order to comply with federal regulations and for "revenue
collection from credit card companies."
The jury convicted Tran and Tham of five counts of first-
degree murder on theories of deliberate premeditation and extreme
atrocity or cruelty, one count of armed assault with intent to
murder, and one count of carrying a firearm without a license.
Both petitioners were sentenced on the murder charges to five
consecutive terms of life in prison. On the additional charges,
they were both sentenced to an aggregate of twenty-four to twenty-
five years to follow the consecutive life sentences.
Tran and Tham appealed their convictions to the Supreme
Judicial Court of Massachusetts ("SJC"), asserting -- among other
issues -- that the trial court erred in admitting the passenger
manifest and ticket inquiry. In 2011, the SJC affirmed the
convictions, stating that the "jury could rationally have
concluded . . . that the documents were authentic," that the names
on the documents were not hearsay because they "were not offered
for their truth," and that the documents were not testimonial for
Sixth Amendment purposes and, thus, their rights under the
Confrontation Clause had not been violated. Siny Van Tran, 953
N.E.2d at 152, 154-57.
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Tran and Tham filed petitions for writs of habeas corpus
with the district court in 2013. Petitioners argued that their
incarcerations violated federal law in a number of ways, including
that they were deprived of the federal constitutional right to
confront the witnesses against them. The district court denied
each petition and issued a certificate of appealability with
respect to the Confrontation Clause claim. Their timely appeals
followed.
II. Analysis
A. Antiterrorism and Effective Death Penalty Act Standards
We review petitioners' claims under the deferential lens
of the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"). Under AEDPA, habeas relief will not be granted unless
the state court's adjudication of the claim on the merits "resulted
in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1),
or "resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding," id. § 2254(d)(2); Zuluaga v. Spencer,
585 F.3d 27, 29 (1st Cir. 2009).
It is well established that
[a] state court decision is contrary to clearly
established federal law if the state court applies a
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rule that contradicts the governing law set forth by
the Supreme Court or confronts a set of facts that
are materially indistinguishable from a decision of
[the Supreme Court] and nevertheless arrives at a
result different from [its] precedent.
Linton v. Saba, 812 F.3d 112, 122 (1st Cir. 2016) (alterations in
the original) (citations and internal quotation marks omitted).
"And a state court adjudication constitutes an unreasonable
application [of clearly established federal law] if the state court
identifies the correct governing legal principle from the Supreme
Court's then-current decisions but unreasonably applies that
principle to the facts of the prisoner's case." Id. (alteration
in the original) (citations and internal quotation marks omitted).
"A state court's determination that a claim lacks merit
precludes federal habeas relief so long as 'fairminded jurists
could disagree' on the correctness of [the state court's]
decision." Id. at 122-23 (alteration in the original) (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). "Thus, to
obtain federal habeas relief, a petitioner must show 'the state
court's ruling on the claim . . . was so lacking in justification
that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.'"
Id. at 123 (quoting Harrington v. Richter, 562 U.S. 86, 103
(2011)).
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B. Petitioners' Claims
Petitioners argue that the introduction of the flight
manifest and ticket inquiry at trial violated their Confrontation
Clause rights. Specifically, Tran argues that the admission of
the flight manifest and ticket inquiry violated his Confrontation
Clause right because he was not able to confront a witness who
could testify that he and Tham were the individuals who boarded
the United flight. Tran contends that the manifest and ticket
inquiry contained two levels of hearsay: (1) the documents
themselves were out-of-court statements made by whoever created
them; and (2) the names of the passengers were recorded by an out-
of-court declarant who, in turn, relied on the out-of-court
statements of the passengers who gave their names. Tran argues
that Contarino's testimony did not address United's procedures for
verifying passengers' identities in 1991 and therefore only cured
the first level of hearsay. He claims that he had a right to
confront someone who had personal knowledge about the accuracy of
the names contained in the manifest given that, according to him,
the Commonwealth relied on the documents for their truth -- i.e.,
to prove that he was on the flight from Boston to Narita and Hong
Kong.
Additionally, Tran argues that the SJC's application of
the facts was objectively unreasonable in holding that Contarino's
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testimony properly authenticated the airline documents. According
to him, the Commonwealth needed to produce a witness who could
explain where the documents came from.
Tham makes a slightly different argument than Tran.
Tham argues that the admission of the manifest and ticket inquiry
was improper because he did not have an opportunity to confront
the individual who produced those documents. Tham contends that
the SJC had no way of knowing whether the documents were
testimonial or not because of the lack of information presented
about how they were produced. He notes that in the context of the
Fifth Amendment's right against self-incrimination, the production
of records can be incriminating testimony. Tham argues that this
rule applies in the Sixth Amendment context, and that the
Commonwealth's failure to present any evidence as to how the police
obtained the documents or where they came from creates a
Confrontation Clause violation.
C. Discussion
In this case, the SJC held that Tran and Tham's
Confrontation Clause rights were not violated because the manifest
and ticket inquiry were neither testimonial nor offered for their
truth. Siny Van Tran, 953 N.E.2d at 154-57. The SJC stated that
the passenger manifest and ticket inquiry were admissible under
the business records exception to the state rule against hearsay
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evidence, Mass. Gen. Laws ch. 233, § 78. Id. at 154. The SJC
also concluded that the statements contained within these
documents were not offered for their truth, but rather for a
nonhearsay purpose -- to show "that the statements were made by
someone, even, perhaps, a person being untruthful, who held
themselves out to be these men." Id. at 155. The SJC also
concluded that, based on Contarino's testimony and other
circumstantial evidence introduced at trial, "the jury could
rationally have concluded, applying a preponderance of the
evidence standard, that the documents were authentic." Id. at
152-53.
As to the confrontation challenge, the SJC noted that
"the [C]onfrontation [C]lause guarantees a defendant the
opportunity to confront any person, in the 'crucible of cross-
examination,' whose 'testimonial' statements are introduced
against him." Id. at 156 (quoting Crawford v. Washington, 541
U.S. 36, 50-52, 61 (2004)). It stressed that "[i]t is the
testimonial character of any item of evidence that triggers the
confrontation right." Id. (citing Meléndez–Díaz v. Massachusetts,
557 U.S. 305, 324 (2009)). It further noted that, as "[t]he
Supreme Court has stated: '[b]usiness and public records are
generally admissible absent confrontation . . . because -- having
been created for the administration of an entity's affairs and not
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for the purpose of establishing or proving some fact at trial --
they are not testimonial.'" Id. (third alteration in the
original) (quoting Meléndez-Díaz, 557 U.S. at 324). Relying on
these Supreme Court precedents, the SJC concluded that the
passenger manifest and ticket inquiry were created "for the
administration of an entity's affairs," and not in anticipation of
use at trial, as evidenced by Contarino's testimony, and, thus,
the documents were not testimonial and Tran and Tham's
Confrontation Clause rights had not been violated. Id. at 156-57
(quoting Meléndez–Díaz, 557 U.S. at 324).
The district court determined that the SJC's conclusion
that the documents were not testimonial and, thus, petitioners'
Confrontation Clause rights were not implicated, was not an
unreasonable application of Supreme Court precedent. Accordingly,
it denied habeas relief.
We review the district court's denial of habeas relief
de novo. Sánchez v. Roden, 753 F.3d 279, 293 (1st Cir. 2014).
The district court is not entitled to deference. Healy v. Spencer,
453 F.3d 21, 25 (1st Cir. 2006). Rather, we must "determine
whether the habeas petition should have been granted in the first
instance." Sánchez, 753 F.3d at 293.
Because it is undisputed that the SJC properly
recognized the controlling Supreme Court precedent, see Siny Van
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Tran, 953 N.E.2d at 156 (citing Crawford, 541 U.S. at 51-52, 61;
Meléndez-Díaz, 557 U.S. at 323-26), the SJC's determination that
the admission of the airline records did not violate the
Confrontation Clause will be upheld unless the SJC applied the
principles of Crawford and Meléndez-Díaz in an objectively
unreasonable manner or unreasonably refused to extend those
principles to a new context where they should clearly apply.
See Linton, 812 F.3d at 122.
As the SJC correctly noted, the Confrontation Clause
applies only to evidence that is testimonial. Davis v.
Washington, 547 U.S. 813, 823-25 (2006). The Supreme Court has
defined a "core class" of testimonial statements as including
affidavits, custodial examinations, or prior testimony without
cross-examination. Crawford, 541 U.S. at 51. Testimonial
statements also include those made with "a primary purpose of
establishing or proving past events potentially relevant to later
criminal prosecution." Bullcoming v. New Mexico, 564 U.S. 647,
659 n.6 (2011) (quotations and brackets omitted). Generally,
courts do not label business records as testimonial as long as
they are not created for the purpose of prosecution. Meléndez-
Díaz, 557 U.S. at 322-24.
Here, the SJC could reasonably conclude that the
manifest and ticket inquiry were not testimonial. Neither Tran
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nor Tham contend that the manifest or ticket inquiry fell within
Crawford's core class of testimonial documents. Rather, they
focus their attacks on the documents' purpose. Petitioners take
issue with the documents' unknown origin and argue that the
Commonwealth failed to rule out the possibility that the manifest
and ticket inquiry were created for the primary purpose of
establishing past events relevant to a later criminal prosecution.
They fail, however, to cite any on-point Supreme Court decisions
stating that the unknown origin of otherwise standard business
records makes those documents testimonial. See Hensley v. Roden,
755 F.3d 724, 732-33 (1st Cir. 2014), cert. denied, 135 S. Ct. 964
(2015) (noting that the Supreme Court has declined to "produce an
exhaustive classification of all conceivable statements . . . as
either testimonial or nontestimonial" (alteration in the original)
(quoting Davis, 547 U.S. at 822)); Nardi v. Pepe, 662 F.3d 107,
112 (1st Cir. 2011) (rejecting habeas petition arguing that
forensic laboratory reports were testimonial and "stress[ing] the
present uncertainty of the law").
Contrary to petitioners' contentions, Supreme Court
precedent suggests that the manifest and ticket inquiries were not
testimonial. Contarino testified that United kept both the
manifest and ticket information in its ordinary course of business.
Contrary to Tham's argument, the act of an unknown United employee
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handing these documents to the police does not make them
testimonial. After all, business records must be handed to either
the police or the parties in order to be introduced at trial and
the Supreme Court has explicitly held that ordinarily business
records are not testimonial. Meléndez-Díaz, 557 U.S. at 324;
see also United States v. Fujii, 301 F.3d 535, 539 (7th Cir. 2002)
(holding check-in and reservation records from Korean Airlines
flight fit within business record exception and fact that "the
information was printed out at the request of the INS does not
deprive the printouts of its business-record character").
Tham's reliance on this court's decision in United
States v. Cameron, 699 F.3d 621 (1st Cir. 2012) -- a circuit court
case that post-dates the SJC's 2011 opinion -- is misplaced. Tham
contends that Cameron supports his argument that the act of
production can make evidence testimonial. In Cameron, Yahoo
created reports whenever it suspected a user's account contained
child pornography. Id. at 628-29. This court held that the
reports, although created in Yahoo's ordinary course of business,
were testimonial because the reports were always sent to the
National Center for Missing and Exploited Children, "an
organization that is given a government grant to forward any such
reports to law enforcement." Id. at 644. In Cameron, it was not
Yahoo's act of turning the reports over to law enforcement that
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made the documents testimonial -- it was that Yahoo created the
documents for the primary purpose of turning them over. In Tran
and Tham's case, however, there is no evidence that the manifest
and ticket inquiries were created for law enforcement. The
production of the documents to the police does not change their
primary purpose or make them testimonial.
Furthermore, Tran and Tham's arguments relating to the
origin of the manifest and ticket inquiry go to authentication and
not the Confrontation Clause. Petitioners are correct that
Contarino could not testify directly about the documents'
authenticity or whether they were at any point altered to contain
petitioners' names; he could testify only that they bore similar
markings to genuine United manifests and ticket inquiries.
Although the Supreme Court has forbidden a witness from testifying
about "another's testimonial statements," Bullcoming, 564 U.S. at
662 (emphasis added), as stated above, the manifest and ticket
inquiry were not testimonial in the first instance. Moreover,
even for testimonial documents, the Supreme Court has not clearly
stated which witnesses the prosecution must call in the chain of
custody. See Meléndez-Díaz, 557 U.S. at 311 n.1 ("[W]e do not
hold, and it is not the case, that anyone whose testimony may be
relevant in establishing the chain of custody, authenticity of the
sample, or accuracy of the testing device, must appear in person
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as part of the prosecution's case. . . . '[G]aps in the chain [of
custody] normally go to the weight of the evidence rather than its
admissibility.'" (quoting United States v. Lott, 854 F.2d 244, 250
(7th Cir. 1988) (third alteration in the original)).5
In light of the above, we conclude that the SJC's
decision did not contradict, nor was it an unreasonable application
of, Supreme Court precedent.
III. Conclusion
Because the SJC did not rule "contrary to" or
unreasonably apply "clearly established Federal law," Linton, 812
F.3d at 122, we affirm the district court's denial of Tran and
Tham's habeas corpus petitions.
Affirmed.
5 Because we conclude that the manifest and ticket inquiry were
not testimonial, we do not need to reach petitioners' additional
argument that the documents constituted hearsay and they had the
right to confront a witness who knew about United's identification
procedures in 1991. See United States v. Castro-Davis, 612 F.3d
53, 64 n.14 (1st Cir. 2010) (noting that "Crawford draws a
distinction between testimonial and non-testimonial hearsay and
applies only to the former category of statements" (quoting Horton
v. Allen, 370 F.3d 75, 84 (1st Cir. 2004))).
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Van Tran v. Roden
Court: Court of Appeals for the First Circuit
Date filed: 2017-01-30
Citations: 847 F.3d 44
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