Filed: Jan. 06, 2015
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4803 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. BACH TUYET TRAN, a/k/a Julie Tran, a/k/a J. Bach, a/k/a Bach T. Tran, a/k/a J. Tran, Defendant – Appellant. Appeal from the United States District Court for the Western District of Virginia, at Harrisonburg. Michael F. Urbanski, District Judge. (5:11-cr-00005-MFU-1) Argued: October 31, 2014 Decided: January 6, 2015 Before DUNCAN, WYNN, and DIAZ, Circuit Judges. Affirme
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4803 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. BACH TUYET TRAN, a/k/a Julie Tran, a/k/a J. Bach, a/k/a Bach T. Tran, a/k/a J. Tran, Defendant – Appellant. Appeal from the United States District Court for the Western District of Virginia, at Harrisonburg. Michael F. Urbanski, District Judge. (5:11-cr-00005-MFU-1) Argued: October 31, 2014 Decided: January 6, 2015 Before DUNCAN, WYNN, and DIAZ, Circuit Judges. Affirmed..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4803
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BACH TUYET TRAN, a/k/a Julie Tran, a/k/a J. Bach, a/k/a Bach
T. Tran, a/k/a J. Tran,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Michael F. Urbanski,
District Judge. (5:11−cr−00005−MFU−1)
Argued: October 31, 2014 Decided: January 6, 2015
Before DUNCAN, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished opinion. Judge Wynn wrote the opinion,
in which Judge Duncan and Judge Diaz joined.
ARGUED: Aaron Lee Cook, AARON L. COOK, PC, Harrisonburg,
Virginia, for Appellant. Jeb Thomas Terrien, OFFICE OF THE
UNITED STATES ATTORNEY, Harrisonburg, Virginia, for Appellee.
ON BRIEF: Timothy J. Heaphy, United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Harrisonburg, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
WYNN, Circuit Judge:
Bach Tran appeals her jury conviction on 139 counts of
trafficking in contraband cigarettes and money laundering.
Tran contends that the district court erred by: (1) denying her
motion to suppress statements she made to federal agents while
under custody; and (2) denying her Fed. R. Crim. P. 29 motion
for judgment of acquittal. Finding no error, we affirm.
I.
Tran arrived in the United States as an immigrant from
Vietnam in the early 1970s. After working in a bank as a teller
and in the human resources department, Tran opened Armel Country
Store in Winchester, Virginia, which she owned at the time of
her arrest. Although the Armel store ostensibly functioned as a
convenience store, the front doors were often chained shut
during business hours, and its interior was dimly lit. Dust and
expired product filled the shelves.
In 2008, federal agents with the Bureau of Alcohol,
Tobacco, and Firearms (“ATF”) commenced an undercover
investigation in response to trafficking in contraband
cigarettes. As part of its operation, ATF set up a fake
cigarette wholesaler, Valley Tobacco, which distributed
cigarettes to suppliers in the Winchester, Virginia area.
2
Tran’s high-volume cigarette sales out of her small, run-down
store attracted Valley Tobacco’s attention.
On January 15, 2009, an undercover agent, acting on a tip,
approached Tran at her store and offered to sell her large
quantities of cigarettes. She promptly ordered 570 cartons of
stamped (taxed) cigarettes 1 and arranged for further deliveries.
On January 29, while making another delivery, the agent offered
to sell Tran unstamped (untaxed) cigarettes. The agent told
Tran that all transactions would be in cash. By purchasing
unstamped cigarettes, Tran would save $2 to $3 per carton, the
cost of the Virginia Tax. On February 26, the agent made the
first delivery of unstamped cigarettes.
Over the following eighteen months, Tran purchased
approximately 140,000 cartons of untaxed cigarettes from
undercover agents, paying nearly $3.5 million in forty-five
separate transactions. She also purchased counterfeit Virginia
tax stamps to place on unstamped cigarettes she had received
from other sources.
1
Cigarette packets bear special stamps that indicate
whether the proper state cigarette tax has been paid.
Disparities in state cigarette taxes have resulted in an
interstate black market in contraband cigarettes. Traffickers
purchase cigarettes in states with a low cigarette tax and
transport the cigarettes to high-tax states to be sold or,
alternatively, sell unstamped cigarettes in states where tax
stamps are required.
3
Tran functioned as a middleman in her cigarette operations
and often spoke of her “special customers.” J.A. 342, 345-46.
In May of 2009 she told an agent that one of her special
customers had been arrested for trafficking in cigarettes and
thus was apprehensive about picking up large quantities at a
time. Tran would become upset when the undercover agent did not
deliver the agreed-upon amount of cigarettes because her special
customer would not “come down” for a partial order. J.A. 354.
Tran spread her income across at least sixteen bank
accounts and significantly underreported her gross sales. She
also instructed an undercover agent on how to avoid filing
currency transaction reports for large deposits that would draw
unwanted attention.
Federal agents arrested Tran on November 2, 2011. Before
interrogating her, the agents informed Tran of her rights under
Miranda v. Arizona, 384 U.S. 436 (1966). As the agents were
explaining her rights, Tran asked questions such as, “What is
silent?,” “What is a waiver?” and, “Is that I don’t have to talk
to you and then you punish me?” J.A. 96-109. The officers
answered her questions, explained that Tran did not have to
speak to them, and provided her with a written waiver form. The
agents also repeatedly assured Tran that she would not be
punished for choosing to remain silent.
4
At several points during the agents’ exchange with Tran,
she demonstrated some understanding of her rights. For
instance, she said, “So I can be quiet[?]”, to which an agent
replied, “Yes.” J.A. 104. When she asked, “So I don’t have to
talk to you?”, the agent answered, “That is correct.” J.A. 100.
At one point, she remarked, “So I have a right to silence
. . . .” J.A. 103. When she asked what would happen if she
didn’t talk, the agent explained, “[I]t just means that you
don’t want to talk to me, which is fine. . . . If I ask you a
question and you don’t want to answer the question, you don’t
have to. Okay? You’re nodding your head up and down. Okay.”
J.A. at 101.
Eventually the agents decided that Tran in fact did
understand her Miranda rights and had impliedly waived those
rights by continuing to talk to them, so they commenced the
interrogation. During the following two hours, Tran discussed
her purchase of cigarettes, how she operated her business, and
her employment as a bank employee. She appeared to have no
trouble understanding the questions asked.
On February 17, 2011, a federal grand jury returned a 142-
count indictment charging her with conspiracy to traffic in
contraband cigarettes in violation of 18 U.S.C. § 371;
trafficking in contraband cigarettes in violation of 18 U.S.C.
§ 2342(a); money laundering in violation of 18 U.S.C.
5
§ 1956(a)(1)(A)(i); money laundering in violation of 18 U.S.C.
§§ 1956(a)(1)(A)(i), 1956(a)(1)(B)(i), and 1956(a)(1)(B)(ii);
and money laundering in violation of 18 U.S.C. § 1957.
Before her trial, Tran filed a motion to suppress the
statements obtained during her interrogation, contending that
her Miranda waiver was not voluntary, knowing, or intelligent
because of her “limited English proficiency and lack of
familiarity with the criminal justice system.” J.A. 64-65. The
district court denied the motion.
At the close of her trial—during which Tran testified
without the aid of an interpreter—the jury returned guilty
verdicts on 139 of the 142 charged counts. Tran filed a motion
for acquittal based on her entrapment defense, which the
district court also denied. Tran then timely appealed.
II.
Tran first argues that the district court erred in denying
her motion to suppress because her waiver of her Miranda rights
was not knowing and intelligent. In reviewing a district
court’s denial of a motion to suppress, we examine factual
findings for clear error and consider legal conclusions de novo.
United States v. McGee, 736 F.3d 263, 269 (4th Cir. 2013).
Further, when the district court denies a defendant’s motion to
suppress, the evidence is viewed “in the light most favorable to
6
the Government.” United States v. Green, 599 F.3d 360, 375 (4th
Cir. 2010).
In Miranda, the Supreme Court held that, once in custody,
an individual may not be subject to interrogation until she is
informed of her right to remain silent and her right to an
attorney. 384 U.S. at 444. “Once the proper warnings have been
given, the suspect ‘may knowingly and intelligently waive [her]
rights and agree to answer questions or make a statement.’”
United States v. Dire,
680 F.3d 446, 469-70 (4th Cir. 2012)
(quoting
Miranda, 384 U.S. at 479). The waiver may be express
or implied. See Berghuis v. Thompkins,
560 U.S. 370, 384
(2010).
To be effective, a waiver “must have been voluntary in the
sense that it was the product of free and deliberate choice
rather than intimidation, coercion, or deception.” United
States v. Cristobal, 293 F.3d 134, 139-40 (4th Cir. 2002)
(internal quotation marks and citation omitted). In addition,
“the waiver must have been made with a full awareness of both
the nature of the right being abandoned and the consequences of
the decision to abandon it.”
Id. The government must
establish, “by a preponderance of the evidence, that the
defendant’s waiver of his Miranda rights was knowing and
voluntary.” United States v. Robinson,
404 F.3d 850, 860 (4th
Cir. 2005).
7
In considering Tran’s motion to suppress, the district
court reviewed the written transcript of Tran’s interrogation,
listened to the audio recording of the interview, and viewed a
video file. The court recognized that Tran appeared from the
interview transcript to have had difficulty understanding the
agents, but found that the audio recording heard in its entirety
“paints a different picture.” J.A. 230.
We agree. In determining whether Tran’s Miranda waiver was
knowing and intelligent, we must look to “the totality of the
circumstances surrounding the interrogation, including [Tran’s]
intelligence and education, age and familiarity with the
criminal justice system, and the proximity of the waiver to the
giving of the Miranda warnings.” Dire, 680 F.3d at 474
(internal quotation marks and citation omitted).
Considering the totality of the circumstances, we conclude
that Tran’s waiver was knowing and intelligent. At several
stages of the interview Tran indicated that she understood she
was under no obligation to speak. J.A. 100 (“So I don’t have to
talk to you?”), 104 (“So I can be quiet.”), 103 (“So I have a
right to silence . . . .”). We also agree with the district
court that Tran’s professional experience in the banking
industry, her experience as a business owner, and her ability to
communicate with the agents throughout her interrogation
indicate that she understood her rights when they were (quite
8
thoroughly) explained to her. We further note that Tran appears
to have had no difficulty testifying at great length at her
trial without the aid of an interpreter. We therefore affirm
the district court’s denial of Tran’s motion to suppress.
III.
Tran next argues that the district court erred in denying
her motion for judgment of acquittal. She contends that the
government failed to introduce sufficient evidence to overcome
her entrapment defense. “We review de novo a district court’s
denial of a [Federal Rules of Criminal Procedure] Rule 29 motion
for judgment of acquittal.” United States v. Alerre, 430 F.3d
681, 693 (4th Cir. 2005). This Court will uphold a jury’s
verdict if, “viewing the evidence in the light most favorable to
the Government, it is supported by ‘substantial evidence.’”
Id.
(quoting United States v. Burgos,
94 F.3d 849, 862 (4th Cir.
1996) (en banc)). Substantial evidence is “evidence that a
reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond
a reasonable doubt.”
Burgos, 94 F.3d at 862.
The affirmative defense of entrapment recognizes that,
while the government may provide the opportunity to commit a
crime for those predisposed to do so, it may not “implant in an
innocent person’s mind the disposition to commit a criminal act,
9
and then induce commission of the crime so that the Government
may prosecute.” Jacobson v. United States, 503 U.S. 540, 548
(1992)). The defense has two parts: (1) “government
inducement,” and (2) “a lack of predisposition on the part of
the defendant to engage in criminal conduct.” Mathews v. United
States,
485 U.S. 58, 63 (1988). If a defendant presents
evidence that she was induced to commit the crime, the burden
shifts to the government to prove beyond a reasonable doubt that
the defendant was predisposed to commit the crime. United
States v. Jones,
976 F.2d 176, 179 (4th Cir. 1992).
The government may meet this burden by showing that the
defendant readily responded to an undercover agent’s inducement.
Id. Indeed, “it is sufficient to show that ‘the defendant is of
a frame of mind such that, once his attention is called to the
criminal opportunity, his decision to commit the crime is the
product of his own preference and not the product of government
persuasion.’”
Id. at 179-80 (quoting United States v. Osborne,
935 F.2d 32, 38 (4th Cir. 1991)). Further, to make its case,
the government may ask the jury to consider actions that took
place both before and after the defendant was contacted by the
government. See United States v. Squillacote,
221 F.3d 542, 566
(4th Cir. 2000) (rejecting a jury instruction forbidding jurors
from considering actions that occurred after the defendant was
10
contacted by the government in determining whether the defendant
was predisposed to commit the crime).
We have held that where “the issue of entrapment is
submitted to the jury, the jury’s finding of guilt comprehends a
finding of no entrapment.” Jones, 976 F.2d at 180. As a
result, “[we] may overturn this determination only if no
rational trier of fact could have found predisposition beyond a
reasonable doubt, viewing the evidence in the light most
favorable to the prosecution.”
Id.
The district court concluded that the government had
introduced sufficient evidence such that a rational jury could
conclude that Tran was predisposed to traffic in cigarettes.
Specifically, the district court pointed to the speed with which
Tran responded to the government’s overtures, the large-scale
purchases she had been making prior to meeting the agents, and
the illegitimate nature of her convenience store business.
On appeal, Tran focuses on the government’s failure to
introduce evidence that she trafficked in contraband cigarettes
before being approached federal agents. However, the government
did not need to do so to meet its burden. Tran’s ready
willingness to engage in that conduct was sufficient, and that,
the government showed. Agents did not have to pressure Tran
into purchasing unstamped cigarettes. As early as January 29,
2009, just two weeks after Tran’s first encounter with the
11
agents, Tran expressed interest in purchasing unstamped
cigarettes at a discounted price and made clear that the
purchases would be for special customers. Over the following
eighteen months, Tran purchased approximately 140,000 cartons of
contraband cigarettes from undercover agents in approximately
forty-five separate transactions, operating as the middleman for
other traffickers. Tran sold large quantities of cigarettes
even though her convenience store appeared to be seldom open for
business.
Tran nevertheless argues that her conversations with
federal agents during the early stages of the operation revealed
that she did not understand her conduct to be illegal. When
Tran asked her ATF contact, “We aren’t doing anything illegal,
are we?,” the agent responded, “No, except for the tax stamps.”
J.A. 518. While this exchange may constitute some evidence of
Tran’s desire not to break the law, the agents advised Tran on
“numerous occasions” that her conduct was illegal and that “we
don’t want to get caught.” J.A. 518. Moreover, Tran’s
awareness or lack of awareness of the criminality of trafficking
in untaxed cigarettes is immaterial to whether she was
predisposed to commit that offense. See Jones, 976 F.2d at 180
(“The core issue raised by the entrapment defense is whether the
defendant was predisposed to conduct which is criminal,
regardless of whether the defendant appreciated its criminality
12
. . . .”). A reasonable jury could have found that Tran’s ready
acceptance of the agent’s offers and her subsequent decision to
repeatedly engage in large-scale purchases of unstamped
cigarettes was a “product of h[er] own preference and not the
product of government persuasion.” Id. at 179-80.
We therefore conclude that the government produced
substantial evidence such that a rational factfinder could have
found predisposition beyond a reasonable doubt.
IV.
For the foregoing reasons the district court’s denial of
Tran’s motion to suppress and denial of Tran’s motion for
acquittal are
AFFIRMED.
13
