Opinion
20-10417 20-10420
11-04-2022
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DEREK WAYNE HAHN, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MINH-HUNG NGUYEN, AKA Bobby Nguyen, Defendant-Appellant.
NOT FOR PUBLICATION
Argued and Submitted October 11, 2022 Honolulu, Hawaii
Appeal from the United States District Court for the District of Hawaii D.C. Nos. 1:17-cr-00582-JMS-WRP-3, 1:17-cr-00582-JMS-WRP-4 J. Michael Seabright, Chief District Judge, Presiding
Before: SCHROEDER, RAWLINSON, and BRESS, Circuit Judges.
MEMORANDUM [*]
Derek Hahn and Minh-Hung Nguyen ("Appellants") appeal their convictions and sentences for one count of conspiracy in violation of 18 U.S.C. § 371 and three counts of obstruction of an official proceeding in violation of 18 U.S.C. § 1512(c)(2). Their convictions arose from charges of conspiracy involving the Honolulu Police Department.
Both Appellants challenge the sufficiency of the evidence supporting their conspiracy convictions. The record, however, contains sufficient evidence. Niall Silva, a technician in the same unit as Hahn and Nguyen, provided testimony of Appellants' involvement. He testified that Hahn directed Silva to conceal Nguyen's participation when Silva wrote the report on the recovery of the surveillance video. Appellants unsuccessfully argued Silva's lack of credibility to the jury, but the jury apparently found him credible. Moreover, the district court at sentencing commented favorably on Silva's credibility, and Silva's testimony was corroborated by other evidence, including Silva's timecard, extensive phone records, the falsified form, and the testimony of other officers. There is no basis for this court to find the witness lacked credibility or to disturb the jury's conclusions. There was also sufficient evidence to convict Hahn on the three counts of obstruction of an official proceeding under a Pinkerton theory because a rational juror could find that Hahn was a member of the conspiracy, Hahn could have reasonably foreseen Louis Kealoha and Nguyen testifying falsely as a natural result of the conspiracy, and that the conspiracy was still ongoing at the time of the false testimony.
The district court did not err in failing to instruct the jury, sua sponte, on a model instruction used by other circuits regarding "duration of the conspiracy." The district court gave the jury our circuit's model instruction, and it required the jury to find membership in the conspiracy at the time of the alleged crime. The instruction informed the jury of the essential elements it needed to find beyond a reasonable doubt in order to support the conviction. There was no plain error.
Nor was there any constructive amendment or fatal variance to the indictment that could have constituted plain error. These can occur when different facts are proved at trial from those alleged in the indictment, or when the crime charged in the indictment is "substantially altered at trial." See United States v. Adamson, 291 F.3d 606, 615 (9th Cir. 2002) (citation omitted). Here, the jury unanimously found the defendants guilty of a conspiracy with fewer than all of the objects alleged in the indictment. The facts the government presented at trial did not change or differ from the facts alleged in the indictment. See United States v. Antonakeas, 255 F.3d 714, 722-23 (9th Cir. 2001) (no fatal variance where the evidence and theories presented at trial included those alleged in the indictment). The defendants thus had fair notice of the case to be presented to the jury. Id. at 722. There is no basis for reversal.
Appellants claim prosecutorial misconduct in the government's suggestion, during closing, that the defendants' failure to provide any reasons for their lies supported finding a conspiracy. We have long recognized that comments on weaknesses in a defendant's case do not shift the burden of proof. See United States v. Vaandering, 50 F.3d 696, 701-02 (9th Cir. 1995). The prosecutor in this case told the jury that the government had the burden of proof, and the district court's instruction made the same point, while also reminding the jury that counsel's arguments were not evidence. There was no prosecutorial misconduct.
Appellants raise several issues with respect to sentencing. They challenged the district court's taking into account conduct with which defendants were charged but not convicted. We have, however, repeatedly ruled that the district court may take into account such conduct and make its own determination at sentencing. See United States v. Lynch, 437 F.3d 902, 916 (9th Cir. 2006) (holding that the district court did not err at sentencing in making its own finding on whether the government had proved a crime, where the jury had not convicted the defendant of that crime); see also United States v. Mercado, 474 F.3d 654, 657-68 (9th Cir. 2007) (finding no Sixth Amendment violation when a district court judge at sentencing considered underlying, acquitted charges).
Nguyen claims there was double counting at sentencing when the district court applied a two-level enhancement for obstruction of justice under U.S.S.G. § 3C1.1. Yet, the conduct underlying the enhancement was not the same as the obstruction of justice crime of conviction and constituted "a significant further obstruction" within the meaning of Application Note 7. See id.; United States v. Fries, 781 F.3d 1137, 1153-54 (9th Cir. 2015) (determining the enhancement was justified where the defendant was convicted of an obstruction of justice offense and the enhancement accounted for obstructive conduct that was not encompassed by the crime of conviction). For the same reason, the district court did not doublecount that conduct toward the U.S.S.G. § 2J1.2(b)(2) sentencing enhancement. There was no abuse of discretion.
Hahn challenges the two-level enhancement for the destruction or alteration of an "essential or especially probative record . . . or tangible object" in connection with the recording over of the hard drive and the tampering with the mailbox. See U.S.S.G. § 2J1.2(b)(3)(B). The district court recognized that it was not clear which conspirator had damaged that significant evidence, but concluded Hahn was sufficiently involved to be held culpable. The enhancement was also supportable as reflective of the "extensive planning" exemplified by the scheme to charge Gerard Puana with crimes he did not commit. See U.S.S.G. § 2J1.2(b)(3)(C). There was no abuse of discretion.
AFFIRMED.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.