Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg.
Michael F. Urbanski,
District Judge. (5:11cr00005MFU1)
Argued:
Decided:
January 6, 2015
Tran
trafficking
appeals
in
her
jury
contraband
conviction
cigarettes
and
on
139
money
counts
of
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.
I.
Tran
arrived
in
the
United
States
as
an
immigrant
from
convenience
store,
the
front
doors
were
often
chained
shut
Dust and
2008,
Tobacco,
federal
and
investigation
cigarettes.
agents
Firearms
in
As
(ATF)
response
part
cigarette
wholesaler,
cigarettes
to
of
suppliers
with
to
its
of
Alcohol,
an
undercover
trafficking
in
contraband
Tobacco,
the
Bureau
commenced
operation,
Valley
in
the
ATF
set
which
Winchester,
up
fake
distributed
Virginia
area.
Tran
at
her
store
quantities of cigarettes.
and
offered
to
sell
her
large
By purchasing
the
approximately
undercover
following
140,000
agents,
cartons
paying
separate transactions.
eighteen
of
nearly
months,
untaxed
$3.5
Tran
purchased
cigarettes
million
in
from
forty-five
May
of
2009
she
told
an
agent
that
one
of
her
special
Tran would become upset when the undercover agent did not
sixteen
bank
She
also
spread
instructed
her
an
income
across
undercover
agent
at
on
least
J.A. 354.
how
to
avoid
filing
Before
J.A. 96-109.
The officers
answered
that
not
her
questions,
explained
Tran
did
have
also
repeatedly
assured
Tran
that
she
would
not
to
The
be
demonstrated
some
understanding
of
her
rights.
For
J.A. 104.
one
point,
. . . .
didnt
she
remarked,
J.A. 103.
talk,
the
So
have
right
J.A. 100.
to
silence
agent
explained,
[I]t
just
means
that
you
If I ask you a
question and you dont want to answer the question, you dont
have to. Okay? Youre nodding your head up and down. Okay.
J.A. at 101.
Eventually
the
agents
decided
that
Tran
in
fact
did
indictment
contraband
charging
cigarettes
in
her
with
conspiracy
violation
of
18
to
traffic
U.S.C.
in
371;
money
laundering
in
5
violation
of
18
U.S.C.
1956(a)(1)(B)(i),
and
1956(a)(1)(B)(ii);
her
trial,
obtained
Tran
during
filed
her
motion
to
interrogation,
suppress
contending
the
that
of
her
limited
English
proficiency
and
lack
J.A. 64-65.
of
The
the
close
without
the
aid
of
of
her
an
trialduring
which
interpreterthe
jury
acquittal
based
on
her
Tran
testified
returned
guilty
entrapment
defense,
which
the
II.
Tran first argues that the district court erred in denying
her motion to suppress because her waiver of her Miranda rights
was
not
courts
knowing
denial
of
and
a
intelligent.
motion
to
In
reviewing
suppress,
we
district
examine
factual
States
v.
McGee,
736
F.3d
263,
269
(4th
Cir.
2013).
the Government.
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
statement.
United States v. Dire, 680 F.3d 446, 469-70 (4th Cir. 2012)
(quoting Miranda, 384 U.S. at 479).
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
States
v.
intimidation,
Cristobal,
293
coercion,
or
F.3d
139-40
134,
deception.
(4th
United
Cir.
2002)
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
establish,
to
by
abandon
a
it.
preponderance
of
his
Id.
of
Miranda
The
the
government
evidence,
the
knowing
and
waiver
voluntary.
was
that
defendants
Cir. 2005).
rights
must
In
considering
Trans
motion
to
suppress,
the
district
J.A. 230.
and
education,
age
and
familiarity
with
the
of
the
Miranda
warnings.
Dire,
680
F.3d
at
474
waiver
was
knowing
and
intelligent.
At
several
that
Trans
professional
experience
in
the
banking
with
the
agents
throughout
her
interrogation
indicate that she understood her rights when they were (quite
8
We therefore affirm
III.
Tran next argues that the district court erred in denying
her motion for judgment of acquittal.
Id.
banc)).
reasonable
finder
Substantial
of
fact
evidence
could
is
accept
evidence
as
that
adequate
and
affirmative
of
entrapment
recognizes
that,
The
defense
has
two
parts:
(1)
government
485
U.S.
58,
63
(1988).
If
Mathews v. United
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
the government may ask the jury to consider actions that took
place both before and after the defendant was contacted by the
government.
10
have
held
that
where
the
issue
of
entrapment
is
of
no
result,
[we]
entrapment.
Jones,
may
this
overturn
976
F.2d
at
180.
determination
only
As
if
a
no
doubt,
viewing
the
district
court
evidence
in
the
light
most
Id.
concluded
that
the
government
had
appeal,
Tran
focuses
on
the
governments
failure
to
did
burden.
not
need
to
do
so
to
meet
its
Trans
ready
just
two
weeks
after
Trans
11
encounter
with
the
agents,
Tran
cigarettes
expressed
at
interest
discounted
price
in
and
purchasing
unstamped
made
that
clear
the
cigarettes
from
undercover
agents
in
approximately
nevertheless
argues
that
her
conversations
with
When
Trans desire not to break the law, the agents advised Tran on
numerous occasions that her conduct was illegal and that we
dont
want
to
get
caught.
J.A.
518.
Moreover,
Trans
untaxed
cigarettes
is
immaterial
to
whether
she
was
was
predisposed
to
conduct
which
is
criminal,
. . . .).
engage
in
large-scale
purchases
of
unstamped
therefore
conclude
Id. at 179-80.
that
the
government
produced
IV.
For the foregoing reasons the district courts denial of
Trans
motion
to
suppress
and
denial
of
Trans
motion
for
acquittal are
AFFIRMED.
13