Unpublished Disposition, 933 F.2d 1017 (9th Cir. 1991)

MEMORANDUM^* 

Yongyoot Lugpong, Sangnan Lugpong and Thadpong Homniyon appeal their convictions for importing heroin into the United States. At trial, defendants claimed that they had conspired to import an antique green jade Buddha figure, and not heroin. The jury convicted them of conspiracy to import heroin, conspiracy to possess with intent to distribute heroin, conspiracy to distribute heroin, and possession with intent to distribute heroin. See 21 U.S.C. §§ 952, 960, 841(a) (1) (1988). Defendants timely appeal. They raise thirteen issues for review. We have jurisdiction under 28 U.S.C. § 1291 (1988), and we affirm.

ANALYSIS

* The Alleged Bruton Violation

We review allegations of Bruton error de novo. United States v. Yarbrough, 852 F.2d 1522, 1536 (9th Cir.), cert. denied, 488 U.S. 866 (1988); Herd v. Kincheloe, 800 F.2d 1526, 1529 (9th Cir. 1986).

In Bruton v. United States, 391 U.S. 123 (1968), the Supreme Court held a defendant's Confrontation Clause rights are violated when his nontestifying codefendant's confession implicating him in the crime is introduced at their joint trial, even when the jury is instructed to use the confession only against the codefendant. The Court recently modified Bruton by holding:

the Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession ... when, as here, the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence.

Richardson v. Marsh, 481 U.S. 200, 211 (1987) (footnote omitted); see also United States v. Sherlock, 865 F.2d 1069, 1079 (9th Cir. 1989). The Court in Richardson decided it was irrelevant that the defendant had "linked" himself to the confession by his later testimony at trial, allowing the jury to infer how he fit into the redacted story. 481 U.S. at 208-09. The Court reasoned that so long as the codefendant's confession does not "expressly implicate" the defendant, there is no Sixth Amendment problem. Id. at 208.

Yongyoot Lugpong contends his trial was infected by Bruton error when the confession of his nontestifying codefendant, Homniyon, was introduced at trial. The potential for a Bruton problem was recognized before trial, and the government agreed to redact the portions of Homniyon's confession referring to Lugpong. Lugpong agrees the redacted confession, standing alone, did not violate Bruton. At trial, Captain Sangchai and DEA Special Agent Hoover were permitted to testify about part of Homniyon's confession: They related that Homniyon had confessed that he went to Los Angeles airport to meet a man wearing a green jacket, and that he intended to pay the man $1,000 in exchange for a package containing "white powder." (Homniyon later said he was unsure whether the substance was heroin or cocaine). Homniyon also had told the officers that Lugpong directed him to pick up this package and that Lugpong accompanied him to the airport. These last details, which implicated Lugpong in the crime, were carefully suppressed from the agents' testimony.

Lugpong argues, however, that the court's pre-trial reading of the indictment provided the jury with the context necessary to realize Lugpong's place in the narrative of the airport journey. Though the agents' testimony concerning Homniyon's confession omitted reference to Lugpong's role in the affair, Lugpong claims the jury merely had to refer back to the earlier reading of the indictment to fill in the blanks. We disagree.

We conclude the earlier reading of the indictment was of no significance. An indictment does not constitute evidence, and the jury was warned of that on two occasions. The indictment merely provides the jury with a framework for considering evidence. By the time the redacted confession was introduced against Homniyon, there was no mention of Lugpong, and the jury could draw inferences from the indictment only by treating the indictment as evidence, which it was specifically instructed not to do.

Moreover, following the agents' testimony concerning the confession, Lugpong himself testified that he had accompanied Homniyon on the airport trip and had arranged the transaction. Like the defendant in Richardson, Lugpong undid the effect of the redacted confession by explaining to the jury his role in the events. As Lugpong points out, Homniyon's redacted confession contained the additional detail that the scheme involved heroin, not a Buddha, but the jury was still free to believe Lugpong's version of the story. Under these circumstances, there was no Bruton error.

II

Whether Yongyoot Lugpong's Statements and Consent were

Coerced

Yongyoot Lugpong asserts he was brutally beaten by several police officers during his arrest and subsequent detention for questioning. He claims the officers smashed his head against the pavement and against the wall of the interrogation room, and that they choked him. He also alleges one officer stepped on his testicles to make him talk. Therefore, he argues, the contemporaneous statements he made, and his consent to the search of his home, were the products of coercion.

We review de novo whether a confession was voluntary. Medeiros v. Shimoda, 889 F.2d 819, 823 (9th Cir. 1989), cert. denied --- U.S. ----, 110 S. Ct. 3219 (1990). We review the voluntariness of consent to a search under the clearly erroneous standard. United States v. Castillo, 844 F.2d 1379, 1087 (9th Cir. 1988).

The district court held a hearing on whether the police beat Lugpong and decided he had invented the entire story. The court found Lugpong could not even recall the officers who were supposedly responsible for the beating. The officers all testified that Lugpong had resisted arrest and that they had used only enough force to restrain him. They admitted Lugpong had suffered an abrasion on his head, but denied they choked him, stepped on his testicles, or otherwise abused him. The court held the officers' testimony was more credible than Lugpong's and denied the motion to suppress.

Lugpong's chief argument on appeal is that we should infer from the abrasion on his head that the acts of which he complains occurred. We agree with the district court's assessment of Lugpong's story. Our review of the record convinces us that Lugpong has failed to demonstrate his post-arrest statements and his consent to the search were involuntary.¹ 

III

The Sufficiency of the Evidence

The Lugpongs argue there was insufficient evidence to convict them. We will uphold a conviction if " 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Orozco-Santillan, 903 F.2d 1262, 1264 (9th Cir. 1990) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original).

The evidence against Yongyoot Lugpong was overwhelming. The government established Lugpong had: (1) undertaken elaborate plans (including a strange restaurant rendezvous, coded phone calls, and evasive car maneuvers) to arrange with Captain Sangchai an exchange of money for a mysterious package; (2) traveled to the airport with Homniyon and received a package from Sangchai in exchange for $1,000; and (3) fled from the scene of the arrest, leaving behind a package containing heroin. Lugpong replied that he had expected to receive a jade Buddha figure and not heroin. The jury was entitled to disbelieve this story. Indeed, Lugpong's defense arguably was incriminating in itself. We hold a rational tier of fact could find guilt based on these facts.

The case against Sangnan Lugpong, although convincing, was not as strong, because she was not directly involved with the receipt of the package. To connect Sangnan Lugpong to the conspiracy the government had to show she "knew of the existence of the conspiracy and acted with the intent to further its goals." United States v. Esparza, 876 F.2d 1390, 1392 (9th Cir. 1989).

The government demonstrated that Sangnan Lugpong had accompanied her son Yongyoot to the restaurant rendezvous, and had appeared to confer with him about how to handle Captain Sangchai and Agent Sugimoto, who were then posing as couriers.

Sangnan's connection to the conspiracy was further illustrated by three transcripts of taped phone conversations she had with Captain Sangchai. During those conversations she: (1) referred to Sangchai as "Boy"; (2) asked him "where is it?"; (3) told him someone she knew who had dealt with him had been arrested (it was later shown that this individual had been arrested on a narcotics violation); (4) told him she was afraid their talk was being overheard (5) expressed the concern that there were "problems" in Thailand; (6) asked why he had brought Sugimoto to the restaurant; (7) said she didn't know what the decision would be; (8) assured him he would get his money; (9) asked him to leave "the stuff" behind before returning to Bangkok; and (10) expressed the worry that "lots [of people] were taken [i.e., convicted or caught] by using the phone," and that "several persons were arrested in Texas." During one of these conversations, Sangchai stated "the dessert is ready." Sangchai later testified that he understood the word "dessert" to mean heroin.

In addition, the government showed that no one had been arrested in Texas for Buddha importation, leaving the strong inference that the Texas arrests Sangnan Lugpong mentioned involved drug smuggling, not Buddha bartering. We hold a rational trier of fact could have convicted Sangnan Lugpong on these facts.

IV

The Conspiracy Instruction on "Connection"

All three defendants contend the court misinstructed the jury on the amount of evidence needed to show they were connected with the conspiracy. None of the defendants objected at trial, so our review is for plain error. United States v. Hernandez-Escarsega, 886 F.2d 1560, 1573 (9th Cir. 1989), cert denied --- U.S. ----, 110 S. Ct. 3237 (1990).

The district court accurately instructed the jury that, to convict defendants of conspiracy, it had to find four elements beyond a reasonable doubt. With regard to one of these elements, the court stated the jury had to find beyond a reasonable doubt that defendants had joined the conspiracy before its termination "and did so knowing of the unlawful plan [and] intending to help carry it out." The court also instructed that "a person who has no knowledge of a conspiracy but happens to act in a way that furthers some object or purpose of the conspiracy, does not thereby become a conspirator."

The district court erred, however, when it attempted to explain to the jury that a defendant need only have played a minor or "slight" role in the conspiracy, instructing the jury that it could find a connection based on slight evidence. This instruction was incorrect. See United States v. Esparza, 876 F.2d 1390, 1392 (9th Cir. 1989).

We believe, however, that the several accurate statements of the law regarding membership in a conspiracy that preceded the erroneous instruction on "connection" adequately apprised the jury of the correct standard. The jury was told it had to find beyond a reasonable doubt that defendants joined the conspiracy knowing of the unlawful plan and intending to carry it out. Therefore, we hold it is not highly probable that the error affected the result of the trial.

V

The Limitation on Cross-Examination

Sangnan Lugpong claims the district court erred in restricting cross-examination in two instances. Our review is for an abuse of discretion. See United States v. Changa, 901 F.2d 741, 743 (9th Cir. 1990).

A. The Restriction of the Inquiry into the Word "Dessert"

Captain Sangchai testified on direct that, during a phone conversation with Sangnan Lugpong, he used the word "dessert," which he said he understood to mean "heroin." This testimony tended to show that Sangnan knew she was not dealing in jade Buddhas. On appeal, she contends the court cut off an attempt to question Sangchai about the other possible meanings of the word "dessert." The record confirms that no such line of questioning was ever pursued. Sangchai simply was asked whether he had put the word "dessert" in quotation marks in the English transcript of their conversation. The court halted that inquiry because Sangchai had not prepared the transcript and would not have been responsible for putting quotation marks around words contained in it. After that, the defense attorney began a new line of questioning. There is no evidence supporting Sangnan's claim that the court refused to allow cross-examination on anything having to do with the word "dessert," or that the court intimidated counsel into dropping the subject altogether. We hold there was no restriction and thus no abuse of discretion.

B. The Restriction of the Inquiry into Muen's Biases

Sangnan asserts the district court refused to allow Sangchai to be cross-examined on the subject of Muen. The record reveals the contrary. Yongyoot Lugpong's attorney established that: (1) Muen had provided the information that led to the investigation; (2) Muen was not in trouble with the police; and (3) Muen had not received a reward for his cooperation. The record further indicates that the court interrupted the cross-examination only when it was convinced the questions called for information Captain Sangchai did not possess. We hold the district court did not abuse its discretion.

VI

The Denial of the Entrapment Instruction

Defendants argue the district court erred in denying them an entrapment instruction. "In order to establish entrapment a defendant must show: (1) that he was induced to commit the crime by a government agent; and (2) that he was not otherwise predisposed to commit the crime." United States v. Busby, 780 F.2d 804, 806 (9th Cir. 1986).

According to the Supreme Court, a defendant "is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment." Mathews v. United States, 485 U.S. 58, 62 (1988). In the present case, the district court found there was insufficient evidence for an entrapment instruction and that it would confuse the jury.

As the parties recognize, there is a split in the Ninth Circuit concerning the appropriate standard of review. See United States v. Sotelo-Murillo, 887 F.2d 176, 179 (9th Cir. 1989); United States v. Hoyt, 879 F.2d 505, 509 (9th Cir. 1989). For purposes of this appeal, we apply the de novo standard.

Muen allegedly told Yongyoot Lugpong that he could use his position in the Thai military to arrange for the transportation of the package to the United States. Additionally, after the restaurant incident made him skittish, Lugpong says he was induced to pick up the package only after receiving encouraging phone calls from Muen and Captain Sangchai. These allegations do not indicate "repeated government inducement or persuasion." United States v. Smith, 802 F.2d 1119, 1125 (9th Cir. 1986).

Lugpong's claim that he was not otherwise predisposed to commit the crime is equally unpersuasive. The record indicates only that Lugpong wished to avoid arrest. The fear of being caught, however, does not amount to reluctance to commit the crime. See United States v. Brandon, 633 F.2d 773, 778 (9th Cir. 1980) (" [F]ear of apprehension by undercover agents using electronic surveillance does not constitute lack of predisposition to become involved in criminal activity"). See also United States v. Toy, 273 F.2d 625, 626 (2nd Cir. 1960) ("The little hesitancy which appellant may have displayed in his dealings with [the undercover agent] would seem to have resulted from fear of arrest rather than from an initial innocence").

By contrast, Yongyoot's enthusiasm was demonstrated by his testimony that he specifically arranged to accept a Buddha, and that he went to the restaurant to pick it up. The general theme that emerged at trial was that Yongyoot had wished to import a certain package, regardless of whether he expected it to contain a Buddha. In his effort to promote the Buddha defense, Yongyoot undercut the entrapment defense. In sum, we hold there was insufficient evidence from which a reasonable jury could find entrapment.

Sangnan Lugpong asserts that, to the extent her son was induced, her participation in the crime was induced as well. Any inducement that came from her son and not directly from a government agent is irrelevant, however, because the entrapment defense may not be asserted derivatively. Busby, 780 F.2d at 806.

She also says her continued involvement in the Buddha scheme was due to the phone calls she received from Captain Sangchai, and that the anxiety she conveyed during these calls demonstrated her reluctance.

Sangchai's announcement that the "dessert" was ready, that he wished the transaction would take place, and that he would soon have to fly back to Thailand, did not amount to repeated inducement and persuasion. Furthermore, Sangnan's anxiety during these conversations merely expressed her desire not to be caught. Sangnan's request that Sangchai leave the shipment behind before departing, on the other hand, demonstrated her desire to further the conspiracy. Based on these facts, we hold there was insufficient evidence to warrant an instruction on entrapment.

Thadpong Homniyon joins in the Lugpongs' entrapment claims to the extent they are relevant to his case. Homniyon cites no facts peculiar to his situation, however. Accordingly, his claim fails as well.

VII

The Denial of the Buddha Defense Instruction

Defendants argue the district court erred in refusing to instruct the jury on their theory of the case: that they should be acquitted if the evidence showed they conspired to possess an antique Buddha and not a controlled substance.

We note preliminarily that defendants' purported request for this instruction was far from precise; the record seems to indicate they requested only a "multiple conspiracies" instruction, the denial of which we discuss next. Nonetheless, we address defendants' claim as though it was properly raised before the district court.

The Supreme Court has stated that "a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor." Mathews, 485 U.S. at 63.

As noted earlier, there is a conflict in the circuit over the appropriate standard of review here. We therefore apply the de novo standard for purposes of this appeal.

It is undisputed that there was some testimony at trial to the effect that defendants expected a jade Buddha and not heroin. Thus, there may have been sufficient evidence from which a reasonable jury could find for the defendants on their defense.

Assuming there was sufficient evidence to warrant the instruction, however, the district court clearly instructed that the jury had to find beyond a reasonable doubt that defendants conspired to possess a controlled substance, and it is relatively intuitive that a Buddha figure is not a controlled substance. Also, the prosecutor informed the jury that:

The defendants must possess a controlled substance. Second, they must know that it is a drug. If they think it's a Buddha they are not guilty. Third, they have to intend to distribute the drug.

The defense reinforced this point:

The government told you ... [that] if you believe that it was a Buddha, you should vote not guilty. That is correct.... All you have to determine was that is it reasonable for my client to believe it was a Buddha. It does not have anything to do with what you believe.

Defendants noted at oral argument that these admonitions came from counsel, not the court, and that they were not coupled with an instruction on the reasonable doubt standard. While there may be cases where there is no substitute for a court-read instruction, this is not one. We believe the jury was aware of its duty to acquit defendants if it found they had expected a Buddha and not heroin. The entire trial focused on the Buddha/heroin dichotomy, so it is unlikely the jury overlooked this detail. Moreover, the court's instructions on reasonable doubt read at other points in the trial adequately apprised the jury of the burden of proof. We therefore hold that any error here was of no consequence.

VIII

The Denial of the "Multiple Conspiracies" Instruction

Defendants appeal the denial of their proposed "multiple conspiracies" instruction. This instruction was inapplicable to defendants' case and was properly denied. See United States v. Anguiano, 873 F.2d 1314, 1317-18 (9th Cir.), cert. denied, --- U.S. ----, 110 S. Ct. 416 (1989).

IX

The Instructions on Knowing Possession of a Controlled

Substance

A. The Failure to Define "Controlled Substance"

Thadpong Homniyon claims the district court failed to define the term "controlled substance," and that therefore the jury may have believed a Buddha figure could qualify as a controlled substance.

Defendants point to no portion of the record where it is suggested that Buddhas are a controlled substance, and it is unlikely the jury mistakenly convicted them of Buddha importation. As said earlier, the prosecutor and one of the defense attorneys explained in their closing arguments that defendants could not be convicted if they thought they were receiving a Buddha instead of heroin. Under the circumstances, the court did not err in failing to define the term "controlled substance."

Defendants contend the court failed to instruct the jury that it had to find defendants knowingly possessed a controlled substance. The court did give an erroneous instruction at one point, omitting the knowledge requirement altogether.

The government claims defendants never proposed the correct instruction, and did not object to the one given. Defendants claim the contrary. Ironically, they both cite to the same page in the record ("R.T. 546"). This page reveals unmistakably that defendants did object.

As we observed earlier, the prosecutor stated that defendants had to "know that it is a drug. If they think it's a Buddha they are not guilty." The jury was fairly clear on this subject. The whole trial revolved around whether defendants thought the package contained a Buddha or heroin. In addition, the district court correctly instructed the jury on the knowledge requirement at an earlier juncture. The court explained that the jury had to find "the defendant knowingly possessed a controlled substance," and that "heroin is a controlled substance." We therefore hold the court's isolated error was harmless.

X

The Court's Instruction on "Reasonable Doubt"

The Lugpongs claim the district court gave an inadequate instruction on the meaning of "reasonable doubt." In United States v. Rhodes, 713 F.2d 463, 472 (9th Cir.), cert. denied, 464 U.S. 1012 (1983), we addressed the precise language of which defendants complain, and held the use of such language did not require reversal. We hold the instruction given "fairly and accurately" conveyed the meaning of reasonable doubt. See id.

XI

Whether the Prosecutor's Closing Remarks Constituted

"Vouching"

Defendants assert the prosecutor impermissibly "vouched" for the credibility of its witnesses during closing argument, see United States v. Wallace, 848 F.2d 1464, 1473 (9th Cir. 1988), citing the following speech:

Who has a motive to lie in this case? Yongyoot Lugpong and his brother Vidhya Lugpong have every incentive to lie. Mrs. Lugpong and Yongyoot are charged with two serious offenses. The agents on the other hand have no incentive to lie. It is their job to go out and undertake an investigation but they have no incentive to convict an innocent man or innocent woman.

These remarks do not constitute "vouching." The prosecutor did not "personally assure" the jury of the witness's veracity, or imply that it was his personal opinion that they were truthful. The prosecutor did not hint that he was speaking from experience. All he did was ask the jury to draw the inference that government agents are unlikely to lie as a general matter given the nature of their employment, as compared to defendants, who have an incentive to distort the truth to avoid prison terms. We hold his speech was purely theoretical, and therefore was not vouching.

XII

The Denial of the Motion to Disclose Muen's Identity

Defendants claim the district court erred in refusing to order disclosure of the identity of a government informant, a man who by the time of trial was known to be Muen. Defendants also contend the district court erred in refusing to hold an in camera hearing to review the matter.² 

We review for an abuse of discretion the court's refusal to disclose the identity of an informant. United States v. Sai Keung Wong, 886 F.2d 252, 255 (9th Cir. 1989). The same standard applies to our review of the court's failure to hold an in camera hearing on disclosure. United States v. Fixen, 780 F.2d 1434, 1440 (9th Cir. 1986).

In the present case, the district court denied defendants' motion with the following statement: "there really is a failure to establish any basis for giving that information as far as the court can see. Speculation."

Defendants advance several reasons why Muen's identity would have been relevant and helpful to their case, relying heavily on certain facts established at trial. However, the facts established at trial are irrelevant; to determine whether the district court abused its discretion in denying the motion for disclosure, we must examine what defendants argued before the district court. Defendants' motion contained the following statement:

From the evidence provided by the government, it appears someone, who's identity is unknown to counsel, provided information to the Royal Thai Police/Drug Enforcement Administration. The information dealt with YONGYOOT LUGPONG. It appears this informant has percipient knowledge of YONGYOOT LUGPONG'S role in the alleged conspiracy.

We agree with the district court that this statement amounts to little more than speculation. Thus, the court did not err in denying the motion. See Sai Keung Wong, 886 F.2d at 256 ("The mere suspicion that information will prove helpful is insufficient to require disclosure").

Moreover, it is relatively clear that defendants knew Muen's identity at least by the time of trial, if not before. Yongyoot himself testified that Muen was his Buddha agent in Thailand. We hold the district court's denial of the disclosure motion, even if erroneous, was immaterial.

XIII

Whether it Was Error to Read "Bong's" Deposition to the Jury

Defendants claim the court erred in reading "Bong's" deposition to the jury because: (1) the government knew it contained lies; and (2) the government's ulterior motive for having the deposition read was that it contained an admission by Bong that he had been convicted of a heroin offense, a fact from which the government improperly wished the jury to infer that Yongyoot Lugpong, a former associate of Bong's, had been involved with heroin as well.

The defense filed a pre-trial motion requesting permission to depose Bong, who had recently returned to Thailand. Defendants argued that Bong would testify in support of the Buddha defense, and that the deposition was essential to the case. The government responded that Bong's testimony on the Buddha issue likely would be contrived. The court granted the motion, however, and the parties flew to Thailand and deposed Bong.

Bong corroborated the defendants' Buddha story in his deposition. However, he also admitted to a prior heroin offense and confirmed that Yongyoot Lugpong possessed a paging device (a device often used by drug dealers). At trial, Yongyoot testified that he did not possess a paging device. The government then moved to have Bong's deposition read to the jury, ostensibly to impeach Yongyoot on the subject of the pager. The defense objected on the ground that the government had earlier stated that the deposition likely would be fabricated, and that therefore it would violate Napue v. Illinois, 360 U.S. 264 (1959), for the government to introduce evidence it believed to be false. The objection was overruled and the jury heard Bong's full deposition, including the part about his prior conviction.

Defendants' argument here is meritless. The government's position at the pre-trial motion hearing that Bong's deposition likely would be contrived, does not establish that the deposition as taken did contain untruths and that the government knew so when it moved to have the deposition read to the jury. Second, and more importantly, the only aspect of the deposition that the government originally thought would be false was Bong's testimony in support of the Buddha defense. Bong's testimony in that regard actually supported defendants' defense, so they are hardly in a position to claim they were harmed by its admission. Thus, even if the prosecutor believed at trial that Bong's Buddha story was false, its introduction did not materially prejudice defendants' case.

What defendants are upset about is that the jury was informed of Bong's prior heroin conviction. The fact that Bong had been a heroin dealer suggested that his friend Yongyoot Lugpong might have ties to that trade as well, and was not merely a Buddha enthusiast. Defendants argue the government introduced the Bong deposition under the guise of impeachment evidence, when its primary purpose was to impugn Yongyoot's character by showing his association with Bong. See United States v. Gomez-Gallardo, 915 F.2d 553, 555 (9th Cir. 1990) (government may not use impeachment to place before jury evidence that is not otherwise admissible).

We do not believe the government's primary purpose in introducing Bong's deposition was to impugn Yongyoot's character generally. The deposition directly countered Yongyoot's denial that he owned a paging device, and as such was an important means of impeachment. The deposition also indicated that the arrested person Sangnan referred to in the taped telephone conversation (by inference Bong) had been arrested on a narcotics charge, not for Buddha dealing, thus undercutting defendants' Buddha defense. The record does not support defendants' assertion that the prosecutor made improper use of the deposition.³ 

AFFIRMED.