United States v. Le

UNITED STATES OF AMERICA v. THINH HUNG LE

CRIMINAL ACTION No. 09-50

CIVIL ACTION No. 18-0087

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

July 8, 2020

MEMORANDUM

Juan R. Sánchez, C.J.

Defendant Thinh Hung Le filed a pro se motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. He asserts an array of claims including ineffective assistance of counsel, the wiretap evidence presented at his trial was obtained in violation of the Fourth Amendment, prejudice from preindictment delay, and the Government presented false evidence at trial. Upon review of his ineffective assistance of counsel claims, Le has not established his counsel was constitutionally deficient or prejudice therefrom. Le's remaining claims are procedurally barred. As a result, Le's motion will be denied without an evidentiary hearing.

BACKGROUND

In March 2006, the U.S. Department of Homeland Security (DHS) began investigating a drug trafficking ring between Canada and the United States. DHS agents eventually learned Veronique Nguyen, a Vietnamese immigrant, sold drugs in the U.S. as part of the operation. They suspected Canadian suppliers were providing her with drugs. After obtaining a warrant, federal agents wiretapped Nguyen's phone and discovered one of these suppliers was a man named "Thinh."

In July 2006, agents intercepted a call between Nguyen and Thinh detailing a plan for Thinh to send 26,000 ecstasy tablets from Canada to Nguyen in the U.S. During the delivery, Philadelphia police officers stopped a car driven by one of Thinh's couriers, searched the car, and seized the ecstasy. Police also determined 183 grams of methamphetamine was mixed within the ecstasy tablets. After seizing the drugs, the police arrested Nguyen along with her boyfriend and nephew.

Afterwards, Nguyen agreed to cooperate with the Government. In October 2006, she agreed to purchase 10,000 ecstasy tablets from Thinh in Philadelphia. When Thinh's courier arrived to deliver the ecstasy, police officers and Government agents arrested the courier and seized the ecstasy. DHS then contacted Canadian law enforcement for assistance in identifying Thinh. Canadian authorities set up a controlled buy, identified Thinh, and provided DHS with Thinh's photograph. Shortly thereafter, DHS identified Thinh as Defendant Thinh Hung Le.

Canadian Officers subsequently arrested Le and U.S. agents took him into custody after a lengthy extradition process. Le was indicted on one count of conspiracy to import methamphetamine, MDMA (ecstasy), and marijuana, in violation of 21 U.S.C. § 963; one count of conspiracy to distribute the same, in violation of 21 U.S.C. § 846; one count of importation of methamphetamine and MDMA, in violation of 21 U.S.C. § 952(a); one count of using a telephone to facilitate drug trafficking, in violation of 21 U.S.C. § 843(b); one count of importation of methamphetamine, in violation of 21 U.S.C. § 952(a); and one count of distribution of MDMA, in violation of 21 U.S.C. § 841(a)(1). On May 14, 2014, following a three-day trial, a jury convicted Le on all counts.

On October 20, 2014, Le appeared before the Court for sentencing. At the sentencing hearing, the Court determined the base offense level was 36. The Court granted Le a two-level downward adjustment because the Sentencing Commission had recently recommended a reducedtwo-level adjustment for any drug offence conviction.¹ Despite Le's opposition, the Court also applied a four-level increase to his offense level pursuant to U.S.S.G. § 3B1.1(a) because the Court found he was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive. The Court also added two levels for the importation of methamphetamine pursuant to U.S.S.G. § 2D1.1(b)(5). The Court calculated Le's final offense level to be 40, resulting in a recommended Guidelines range of 292-365 months. The Court ultimately sentenced Le below the recommended Guidelines range to 252 months' imprisonment, followed by five years of supervised release.

A Vietnamese interpreter was present to assist Le at the sentencing hearing, just as one had been present throughout the duration of Le's trial. See Sentencing Hr'g Tr. 52, Oct. 20, 2014. Despite the interpreter's presence at the hearing, Le first addressed the Court in English. Id. Le's counsel then asked the Court if Le could speak in Vietnamese through the interpreter. Id. The Court granted this request, yet Le continued to address the Court in English.² Id.

Le thereafter appealed. On September 6, 2016, the Third Circuit affirmed Le's sentence of 252 months' imprisonment, holding, among other things, the Court did not err in applying the "role enhancement" to Le's sentence, and in imposing a below-guidelines-range sentence. See United States v. Le, 661 F. App'x 162 (3d Cir. 2016).

On January 8, 2018, Le filed a pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. On February 16, 2018, Le filed a second motion using the standard petition form which clarified the issues he raised in his January 2018 motion. On February 23, 2018, the Government filed a response. On April 27, 2018, Le filed a third motion replying to the Government's response and asserting additional claims.³

DISCUSSION

Pursuant to 28 U.S.C. § 2255, a prisoner in federal custody may move to have his sentence vacated, set aside, or corrected if it was imposed in violation of the Constitution or laws of the United States, or is otherwise subject to collateral attack. Relief may be granted only if an error of law or fact occurred and if the error constitutes a "fundamental defect which inherently results in a complete miscarriage of justice." United States v. Eakman, 378 F.3d 294, 298 (3d Cir. 2004) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). Le brings this § 2255 motion pro se, and his pleadings are thus construed liberally. See United States v. Otero, 502 F.3d 331, 334 (3d Cir. 2007). Even so, Le must plead "facts in support of his claim which would entitle him to relief." Haines v. Kerner, 404 U.S. 519, 521 (1972). In evaluating a § 2255 motion, the Court "must acceptthe truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record." United States v. Tolliver, 800 F.3d 138, 141 (3d Cir. 2015).

Le's first claims are based on his counsel's alleged ineffectiveness. Specifically, Le argues his counsel was ineffective because he (1) was in poor physical health during trial, (2) failed to investigate a language barrier with his interpreter at trial; (3) "failed to challenge discovery violations, specific tape notes, and witness false testimony"; (4) failed to properly investigate and argue a speedy trial violation on direct appeal; (5) failed to make a claim pursuant to Alleyne v. United States, 133 S. Ct. 2151 (2013) and failed to challenge the Government's constructive amendment to the Indictment; (6) failed to properly argue for a role participation reduction to his sentence; and (7) failed to present him with a plea deal. The Court will address each claim in turn, although none are meritorious.

A defendant who claims violation of his Sixth Amendment right to effective assistance of counsel must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). The defendant must show (1) "counsel's performance was deficient," and (2) "the deficient performance prejudiced the defense." Id. at 687. To be deficient, counsel's performance must fall below "an objective standard of reasonableness" when measured against "prevailing professional norms." Id. at 688. There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. To demonstrate prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Such an error "does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment," even if it is unreasonable. Id. at 691. In evaluating prejudice, the court considers "a verdict or conclusion only weakly supported by the record . . . more likely to have been affected by errorsthan one with overwhelming record support." Id. at 696. The failure to satisfy either prong defeats an ineffectiveness claim. See id. at 700. A court may thus address the prejudice prong before evaluating whether or not the attorney's performance was deficient. See id.; see also id. at 670 ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed.").

As for Le's first claim, the record does not support a finding of deficient performance due to his counsel's alleged poor physical health at trial. Le's trial occurred between May 12 and May 14, 2014. According to Le, his counsel admitted he was physically ill during trial when he filed a motion to continue Le's sentencing hearing. In the motion, counsel stated he was "physically and mentally drained and was sick most of July." Mot. to Continue Sentencing Hr'g ¶ 5, Aug. 25, 2014, ECF No. 84 (emphasis added). There is no evidence that counsel suffered from poor physical or mental health of any kind during Le's trial in May.

On the contrary, the record shows counsel was actively engaged in the proceedings, delivered lengthy opening and closing statements, and cross-examined the Government's witnesses. These actions serve as strong evidence against Le's claim that his counsel was ineffective based on weakened physical or mental health. See United States v. Donahue, 792 F. App'x 165, 166-67 (3d Cir. 2019) (rejecting claim that counsel was deficient based on a medical condition at trial where counsel "was actively engaged in the proceedings at all times" (quoting United States v. Donahue, No. 11-33, 2018...