Van Tran v. Roden

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Rogeriee Thompson, Appellate Judge and William J. Kayatta , Jr., Appellate Judge. Published. [15-2133, 15-2134]

Case: 15-2133

Document: 00117111815

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Date Filed: 01/30/2017

Entry ID: 6065910

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.

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January 30, 2017

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TORRUELLA, Circuit Judge.

Date Filed: 01/30/2017

Entry ID: 6065910

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.

Massachusetts's
records

at

Confrontation
reasons.
who

knew

use

their
Clause

They
of

argue

photocopies

trials

that

the

of

United

violated

rights,

their

albeit

for

Commonwealth
Airlines

of

flight

Sixth

Amendment

slightly

different

Tran contends that he had a right to confront someone
about

United

Airlines's

procedures

for

passenger identities at the time of the flight.

verifying

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)).
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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").
guns.

All three had

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.

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Both Tran and Tham sought to

exclude the documents on the grounds that they were improperly
authenticated,
Confrontation

were
Clause

inadmissible
rights.

hearsay,

Their

and

motions

violated
were

their

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 firstdegree 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 twentyfive 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.
convictions,

stating

that

In 2011, the SJC affirmed the

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

Confrontation Clause had not been violated.
N.E.2d at 152, 154-57.

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rights

under

the

Siny Van Tran, 953

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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

principle to the facts of the prisoner's case."

applies

that

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'

decision."

on

the

correctness

of

[the

state

court's]

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.
inquiry

contained

Tran contends that the manifest and ticket
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 outof-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.

Entry ID: 6065910

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.
the

SJC

had

no

way

of

knowing

whether

Tham contends that
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.
rule

applies

in

the

Sixth

Amendment

Tham argues that this

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.
also

concluded

that

the

statements

Entry ID: 6065910

Id. at 154.

contained

The SJC

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

themselves out to be these men."
concluded

that,

circumstantial
rationally

based

evidence

have

on

untruthful,

Id. at 155.

Contarino's

introduced

concluded,

being

at

applying

a

held

The SJC also

testimony

trial,

who

"the

and

other

jury

could

preponderance

evidence standard, that the documents were authentic."

of

the

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 crossexamination,'
against him."

whose

'testimonial'

statements

are

introduced

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

original) (quoting Meléndez-Díaz, 557 U.S. at 324).
these

Supreme

passenger

Court

manifest

precedents,

and

ticket

the

SJC

inquiry

the

Relying on

concluded

were

in

created

that

the

"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

Confrontation Clause rights had not been violated.

Tham's

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,

unreasonable application of Supreme Court precedent.

was

not

an

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.
453 F.3d 21, 25 (1st Cir. 2006).

Healy v. Spencer,

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

unreasonable

Crawford

manner

and

or

Meléndez-Díaz

unreasonably

in

refused

an
to

objectively
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.

Washington, 547 U.S. 813, 823-25 (2006).

Davis

v.

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

manifest and ticket inquiry were not testimonial.

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that

the

Neither Tran

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nor Tham contend that the manifest or ticket inquiry fell within
Crawford's core class of testimonial documents.
focus their attacks on the documents' purpose.

Rather, they

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

testimonial.

documents

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to

the

Date Filed: 01/30/2017

police

does

not

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make

them

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

Contarino

Confrontation
could

not

Clause.
testify

Petitioners
directly

are

about

correct

the

that

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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