Sunday, June 28, 2009

Case o' The Week: Tran's-mission Not Clear, Says Ninth in Conspiracy Case

"Conspiracy is the darling of the prosecutor's nursery." Thankfully, the Hon. H.P. brings some well-deserved discipline to the little brat. United States v. Tran__ F.3d __, No. 07-30270, 2009 WL 1773149 (9th Cir. June 24, 2009) (decision available here).

Decision by Judge Harry Pregerson (left), joined by Judge Canby; dissent by Judge Noonan.

Facts: ICE learned of a big pot operation distributed out of a warehouse. Id. at *1. One car that had left the warehouse – and stopped by ICE – was a silver Mustang driven by Nguyen, with Tran as a passenger. Id. at *1. The feds found 27 kilos of pot in the car. Id. Nguyen pleaded guilty and was called by the government at Tran’s trial. Id. at *1.

To the government’s chagrin, at trial Nguyen exonerated Tran. Id. at *2.

The government impeached Nguyen, over Tran’s objection, with an ICE agent who reported an inconsistent interview with Nguyen a week before the trial. Id. Nguyen was also impeached by his plea agreement, which said that he and Tran had picked up 70 pounds of weed for redistribution that night. Id. at *2. The government also introduced evidence that Tran had been involved in prior marijuana deals, to show his “knowledge.” Id. at *3. Tran was convicted.

Issue(s): “Tran argues that the government failed to prove that he participated in the conspiracy to possess marijuana for distribution.” Id. at *5.

Held: “The evidence presented against Tran and the reasonable inferences drawn from that evidence do not support even a slight connection between Tran and the conspiracy . . . . Tran’s presence as a passenger in the silver Mustang while the marijuana was transported, and his knowledge of marijuana and marijuana distribution was insufficient as a matter of law to establish his guilt on the conspiracy charge.” Id. at *6.

Of Note: Tran won the war, but lost several evidence battles. The Court held that Nguyen’s plea agreement was admissible as both a prior inconsistent statement, id. at *4, and as substantive evidence because it was ‘given under oath.” Id. at *5. But, note that the “given under oath theory” was not objected to at trial, and thus was subject to plain error review. Id. at *4-*5. Judge Pregerson was careful to emphasize that this theory was only reviewed for plain error – Tran does not stand for the blanket proposition that plea agreements are admissible as substantive evidence.

How to Use: While a huge defense victory, Tran is entirely consistent with a string of Ninth cases that hold that a defendant’s mere presence in a car with drugs is insufficient to support conspiracy charges. Id. at *6-*7 (discussing Sanchez-Mata and Herrera-Gonzales).

(Aside: Nice also to see that, unlike the recent Overton decision, Tran uses the proper de novo standard of review).

Tran is that rare published opinion that rigorously holds conspiracy theory to its own limits. See, e.g., id. at *6 (discussing and rejecting ‘guilt by association’ as a basis for conspiracy convictions). The opinion deserves heavy citation in conspiracy Rule 29 motions.

For Further Reading: What happened to Nguyen, the government witness who flipped his story at trial? Turns out his plea agreement was not a §5K1.1 deal (though he did do a safety-valve debrief). See PACER docket for United States v. Tam Phu Quy Nguyen, 2:06-cr-00296-JCC-9 (defense sent. mem.) Moreover, Nguyen was compelled to testify despite not having entered into a cooperation agreement. Id. at Docket #243. (A chilling prospect for any defendant just trying to plea and do his time without snitching).

Indeed, it seems from the docket that the government learned info it liked at a safety-valve debrief, then got an order of immunity and compelled Nguyen’s trial testimony. Spooky abuse of the safety-valve procedure if that’s what happened. If that is in fact what happened, the ensuing mess frankly serves the government right. (Nguyen ultimately ended up with a 24 month sentence).

Image of the Hon. Harry Pregerson from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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