US v. Khoa Hoang

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:16-cr-00193-TSE-2. Copies to all parties and the district court/agency. [1000309095]. [17-4518]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 17-4518

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KHOA DANG HOANG,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. T. S. Ellis, III, Senior District Judge. (1:16-cr-00193-TSE-2)

Submitted: May 31, 2018

Decided: June 8, 2018

Before GREGORY, Chief Judge, and MOTZ and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Phoenix S. Ayotte, HARRIS CARMICHAEL AND ELLIS PLLC, Alexandria, Virginia,
for Appellant. Tracy Doherty-McCormick, Acting United States Attorney, James L.
Trump, Carina A. Cuellar, Assistant United States Attorneys, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Khoa Dang Hoang (Khoa) was convicted after a jury trial of stalking, in violation
of 18 U.S.C.A. §§ 2261A(1), 2261(b)(3) (West 2015), and conspiracy to commit stalking,
in violation of 18 U.S.C. §§ 371, 2261A(1) (2012), and was sentenced to concurrent
terms of 60 months’ imprisonment. On appeal, Khoa challenges the district court’s
denial of his motion to suppress his statements made during a post-arrest interview and its
admission of evidence at trial. We affirm.
“When considering a district court’s denial of a motion to suppress, we review the
court’s factual findings for clear error and all legal conclusions de novo.”
United States v. Stover, 808 F.3d 991, 994 (4th Cir. 2015). Because the Government
prevailed on Khoa’s suppression motion, we construe the evidence in the light most
favorable to it. Id.
The Supreme Court’s decision in Miranda v. Arizona, 384 U.S. 436 (1966),
“adopted prophylactic procedural rules that must be followed during custodial
interrogations” to protect a suspect’s rights against self-incrimination. United States v.
Parker, 262 F.3d 415, 419 (4th Cir. 2001). The parties do not dispute that Khoa was
subject to a custodial interrogation during the interview, and, as a result, his statements
had to be suppressed unless he was properly advised of his rights under Miranda, and
knowingly, intelligently, and voluntarily waived those rights. United States v. Holmes,
670 F.3d 586, 591 (4th Cir. 2012). Statements made after a valid waiver of Miranda
rights also are subject to suppression if the defendant made them involuntarily because of

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the conduct of the interviewing officer. United States v. Cristobal, 293 F.3d 134, 140,
142 (4th Cir. 2002).
There are “two distinct dimensions” to the inquiry into whether an individual
validly waived his Miranda rights. Id. at 139. First, the relinquishment “must have been
voluntary in the sense that it was the product of free and deliberate choice rather than
intimidation, coercion, or deception.” Id. (internal quotation marks omitted). Second, in
addition to being voluntary, “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. at 140 (internal quotation marks omitted). We assess whether a Miranda
waiver is voluntary, knowing, and intelligent by examining the totality of the
circumstances.

Id.

“Only if the totality of the circumstances surrounding the

interrogation reveal both an uncoerced choice and the requisite level of comprehension
may a court properly conclude that the Miranda rights have been waived.” Id. (internal
quotation marks omitted). In the district court, Khoa challenged his waiver of Miranda
rights as both involuntary and unknowing and unintelligent. On appeal, however, he
argues that the waiver was unknowing and unintelligent. * Relevant circumstances for
consideration are the defendant’s intelligence, education, age, familiarity with the

*

We deem abandoned by Khoa any challenge on appeal to the waiver of his
Miranda rights as involuntary. See Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d
562, 568 n.7 (4th Cir. 2015) (finding abandoned on appeal claims discussed only “in
passing” in the argument section of appellant’s opening brief, contrary to the requirement
of Fed. R. App. P. 28(a)(8)(A)).

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criminal justice system and the proximity of the waiver to the giving of Miranda
warnings. Correll v. Thompson, 63 F.3d 1279, 1288 (4th Cir. 1995).
We conclude after review of the record and the parties’ briefs that Khoa fails to
establish reversible error in the district court’s conclusion that his waiver was knowing
and intelligent.

Khoa’s appellate assertions claiming a lack of sophistication and

familiarity with the American court system and the presence of a cultural
misunderstanding are unexplained and made in conclusory fashion. Further, the record
evidence viewed in the light most favorable to the Government reflects that, even though
Khoa had never been arrested before the August 5 interview, the interviewing officer
explained Khoa’s rights under Miranda in a language he understood, Khoa understood
those rights, and he agreed to answer questions without an attorney present after this
review.
Khoa also claims that the interviewing officer’s questioning tactics and references
to matters of deportation, family, and a potential prison sentence during the interview
after he waived his Miranda rights rendered his statements involuntary. A statement
qualifies as involuntary under the Due Process Clause if the statement was “extracted by
any sort of threats or violence, or obtained by any direct or implied promises, however
slight, or by the exertion of any improper influence.” United States v. Braxton, 112 F.3d
777, 780 (4th Cir. 1997) (internal quotation marks and alterations omitted). Although
“[c]oercive police activity is a necessary finding for a confession . . . to be considered
involuntary,” United States v. Giddins, 858 F.3d 870, 881 (4th Cir. 2017), the “mere
existence of threats, violence, implied promises, improper influence, or other coercive
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police activity” does not “automatically” render a statement involuntary.

Braxton,

112 F.3d at 780. Instead, “[t]he proper inquiry is whether the defendant’s will has been
overborne or his capacity for self-determination critically impaired.”
quotation marks omitted).

Id. (internal

This query focuses on the totality of the circumstances

surrounding the interview, including the “characteristics of the defendant, the setting of
the interview, and the details of the [questioning].” Id. at 781 (internal quotation marks
omitted).
Khoa, we conclude, fails to establish reversible error in the district court’s
conclusion that suppression of his statements was not required as a result of the
interviewing officer’s questioning and references. Khoa complains that the officer’s
questions were overly suggestive but fails to explain how his will was overborne or his
capacity for self-determination impaired by such questions. We also reject as inapposite
Khoa’s reliance on United States v. Preston, 751 F.3d 1008 (4th Cir. 2014), in support of
this claim.

Khoa further proffers only the conclusory assertion that his will was

overborne by the officer’s references during the interview to matters of deportation,
family, and a potential prison sentence, and we therefore reject it.
Khoa also challenges several evidentiary rulings by the district court. We review a
district court’s evidentiary rulings for abuse of discretion. United States v. Hassan,
742 F.3d 104, 130 (4th Cir. 2014).

In reviewing an evidentiary ruling under this

standard, “we will only overturn a ruling that is arbitrary and irrational.” Id. (internal
quotation marks and alteration omitted).

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Khoa argues that the district court erred under Fed. R. Evid. 402 and 403 in
admitting into evidence pictures of his co-defendant holding a gun described by the
victim as similar to one she saw him possess. We conclude, however, that this evidence
easily satisfied the “relatively low” threshold, United States v. Zayyad, 741 F.3d 452, 459
(4th Cir. 2014), for relevant evidence, see 18 U.S.C.A. § 2261A; United States v. Wills,
346 F.3d 476, 493-94 (4th Cir. 2003). We also reject as without merit Khoa’s contention
that admission of this evidence violated Rule 403. He does not point to anything in the
record tending to support the existence of a genuine risk the jury’s emotions would be
excited to behavior that was irrational or that this risk was in any way disproportionate to
the probative value of the pictures. See Hassan, 742 F.3d at 132 (“[R]elevant evidence
should only be excluded under Rule 403 when there is a genuine risk that the emotions of
a jury will be excited to irrational behavior, and this risk is disproportionate to the
probative value of the offered evidence.” (internal quotation marks omitted)).
Khoa also argues that the district court erred in admitting into evidence messages
from his co-defendant to a third party about the victim. We disagree. The evidence was
properly admitted under Fed. R. Evid. 803(3) as evidence of the co-defendant’s
then-existing state of mind and was relevant to establishing the co-defendant’s motive for
committing the stalking offenses with Khoa. We reject as inapposite Khoa’s reliance on
United States v. Spring, 305 F.3d 276 (4th Cir. 2002), to support this claim and further
reject as without merit his conclusory contention that the messages were subject to
exclusion under Rule 403 as prejudicial.

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Finally, Khoa argues that the district court erred under Rule 403 in admitting into
evidence nude pictures his co-defendant had taken of the victim and posted on a social
media platform. We likewise reject this contention. Khoa points to nothing in the record
tending to support the existence of a genuine risk the jury’s emotions would be excited to
behavior that was irrational or that this risk was in any way disproportionate to the
probative value of this evidence.
Accordingly, we affirm the criminal judgment. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.

AFFIRMED

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