                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-10-2002

Lam v. Kelchner
Precedential or Non-Precedential: Precedential

Docket No. 00-3803




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PRECEDENTIAL

       Filed September 10, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 00-3803 / 00-4122

CHOI CHUN LAM

       Appellant (00-4122)

v.

DONALD KELCHNER, Superintendent;
THE DISTRICT ATTORNEY OF THE COUNTY OF
LANCASTER; THE ATTORNEY GENERAL OF THE STATE
OF PENNSYLVANIA,

       Appellants (00-3803)

Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 98-cv-03109)
District Judge: Honorable Louis H. Pollak

Argued February 25, 2002

Before: ROTH and FUENTES, Circuit Judges
GIBSON,* Circuit Judge

(Opinion filed: September 10, 2002)
_________________________________________________________________

* Honorable John R. Gibson, Senior Circuit Court Judge for the Eighth
Circuit, sitting by designation.


       Leonard Sosnov, Esquire (Argued)
       210 East Willow Grove Avenue
       Philadelphia, PA 19118

        Counsel for Appellee/Cross-
       Appellant

       Donald R. Totaro
       District Attorney
       Susan E. Moyer (Argued)
       Assistant District Attorney
       Office of the District Attorney
       Lancaster County Courthouse
       50 North Duke Street
       P.O. Box 83480
       Lancaster, PA 17608-3480

        Counsel for Appellants/Cross-
       Appellees

OPINION OF THE COURT
ROTH, Circuit Judge:

In this habeas appeal, we must decide if the
Pennsylvania Superior Court was objectively unreasonable
in ruling that petitioner Choi Chun Lam’s responses to
undercover government agents were voluntary and, thus,
satisfied the requirements of due process. Lam gave
incriminating responses after the agents threatened her
with physical violence. These responses include her
statements to the agents and a telephone call from her
workplace to an alleged co-conspirator shortly thereafter.
The record contains undisputed testimony that Lam was
afraid of the agents’ threats. The District Court found,
therefore, that Lam’s responses were involuntary, and it
granted habeas relief based both on her responses and on
the fruits of those responses. Applying the narrow scope of
review available under 28 U.S.C. S 2254 (1996), we will
affirm the District Court’s decision to grant habeas relief
based on Lam’s responses, but we will reverse its decision
to grant relief based on their fruits. We will also affirm the
District Court’s rejection of Lam’s claims in her cross-

                                  2


appeal that her Confrontation Clause and due process
rights were violated by statements made by the prosecution
and its witnesses during her murder trial.

I. FACTS AND PROCEDURAL HISTORY

Choi Chun Lam was convicted in state court of
conspiring to murder Rong Rong Xu. Xu was married to
Lam’s ex-husband, Wing Cheng. The prosecution argued
that Lam and an associate, Zu Long Xie, had hired Cho Yee
Yeung, a member of the Chinese Fuk Ching gang, to kill
Xu.

A. Undercover investigation.

Yeung was arrested by federal authorities in 1993 on
charges unrelated to Xu’s murder. He agreed to cooperate
with the government as part of a plea bargain. Yeung then
told the federal authorities that he and another man had
been hired by Lam to kill Xu and that they had shot Xu on
May 3, 1992, in the Peking Restaurant in Quarryville,
Pennsylvania. Yeung claimed that Bick Yung Cheng, a
friend of Lam’s, and Xie, who worked for Bick Yung Cheng’s
family, had introduced him to Lam.

Both the Pennsylvania State Police and the Federal
Bureau of Investigation investigated Xu’s murder. In an
attempt to corroborate Yeung, Special Agent Lee of the FBI
and Trooper Pak Yuen of the Pennsylvania State Police
posed as members of the Fuk Ching gang. On the evening
of April 7, 1994, the undercover officers visited Lam while
she was working at the China King Restaurant in
Gilbertsville, Pennsylvania. While Lee and Yeun were
speaking with Lam, only one or two customers were present
in the restaurant. The officers taped their 45-minute
conversation with Lam.1

During the taped conversation, the officers told Lam that
their brother, Yeung, helped her "do something" before, and
that they were there to collect his money. They said that
the remaining balance was $15,000. Lam professed that
_________________________________________________________________

1. Our description of the taped conversation is based on the transcript,
translated fom Chinese, that the prosecution read into evidence at trial.

                                3


she did not know what they were talking about. The officers
then told her that their brother said, "if you’re not going to
pay the rest of the money, both should be died together."
Continuing, they stated that their brother would"expose
the case." When Lam refused to pay, they asked her who
the money should be collected from. They told Lam that the
next time they would not be so polite . . . if "this money still
has not been collected, you will be sorry."

Ultimately, when they asked why everyone in Chinatown
said she had murdered Xu, Lam replied:

       I don’t know. Maybe I have hatred with her very deep,
       deepest hatred with her is me . . . Everybody is looking
       at us. See what is happening. The FBI will come here
       every one month or two months. Many people said that
       I did this right now. The policeman said that my
       husband and I are conspired to do this matter. That
       make me don’t know what to do. If I really do that, if
       I really do that, then maybe.

After making this statement, Lam continued to profess
her lack of personal knowledge about the murder, saying
that she really didn’t "understand this matter" and that she
didn’t "do this matter" or "know [it] from the first
beginning." When the discussion concluded without Lam’s
agreement to pay, one agent wrote down his beeper number
and told her to call him if she changed her mind.

Telephone records reflected a call from the restaurant to
Xie later that evening. The next day, Xie called Agent Lee on
the beeper number that Lee had given Lam. Xie said that
Lam agreed to pay the money if Yeung would not expose
the case and Lee and Yeun would not go to the restaurant
in the future. Bick Yung Cheng finally met the agents at an
exit on the New Jersey turnpike and made a final payment
to them.2
_________________________________________________________________

2. Because the state court failed to make specific factual findings in its
determination that Lam’s statements were voluntary, we have considered
only the uncontested portion of the record in evaluating Lam’s
constitutional claim: "the evidence of the prosecution’s witnesses and so
much of the evidence for the defense as, fairly read in the context of the
record as a whole, remains uncontradicted." Columbe v. Connecticut, 367
                                4


B. State court suppression hearing and jury trial.

On April 27, 1994, the Pennsylvania State Police charged
Lam, Bick Yung Cheng, and Zu Long Xie with criminal
homicide in the death of Rong Rong Xu. All three
defendants were tried jointly before a jury in March 1995.

Before trial, Lam moved to suppress the statements she
gave to the undercover officers during the conversation at
her restaurant. The court held a suppression hearing and
considered testimony about the surrounding circumstances
from Agent Lee, Trooper Yuen, and Lam. Lam testified that
she believed that the officers were members of the Fuk
Ching gang. Agent Lee also testified that he believed Lam
thought they were associated with Fuk Ching. Finally, Lam
gave undisputed testimony that the Fuk Ching had a
reputation for kidnapping, extortion, and burglary and that
she was "very scared" when she spoke with them.3

Lam’s suppression motion was denied, and the court
entered "a finding that [Lam’s] will was not overborne by
fear or threats during the April 7, 1994, contact by Special
Agent Lee or Trooper [Yuen] under the totality of the
circumstances test." At the trial, the prosecution read into
evidence the entire transcript of the conversation between
Lam and the undercover agents. Agent Lee then testified
about the phone call he received the next day from Xie on
_________________________________________________________________

U.S. 568, 603-04 (1961) (on direct review, it was appropriate for
Supreme Court to consider such evidence to fill in factual lacunae in
state decision); James S. Liebman & Randy Hertz, 2 Federal Habeas
Corpus Practice and Procedure S 30.3, p. 1315 (1998) (habeas cases apply
same standard for review of incomplete factual findings by state courts)
(hereinafter Liebman & Hertz). The Commonwealth appears to agree, as
its brief states that all facts are to be derived from testimony of Lee,
Yuen, Lam, and the transcript of their conversation.

3. At oral argument before us, the Commonwealth claimed that Lam
admitted to a lack of fear on cross examination. Upon review of the
transcript, we have found only a statement by Lam that she was "not
scared" that the officers would report her to the police but that she was
"afraid that . . . [the] Fuk Ching gang will come again to my restaurant
and hurt me . . . ." Rather than establishing a lack of fear, this
statement confirms Lam’s fear of physical violence from the undercover
officers.

                                5


the beeper number that Lee had given to Lam. The trial
court issued a post-trial opinion reiterating its conclusion
that Lam’s statements were voluntary and properly
admitted into evidence.

Also at the trial, Trooper Stanalonis of the Pennsylvania
State Police and Special Agent Troutmann of the FBI
explained the methods they used to question Yeung and
how they then concluded that he was telling the truth.
Trooper Stanalonis testified that he believed Yeung was
telling a "correct story corroborating my investigation." In
addition, the prosecution read into evidence Yeung’s plea
agreement. This testimony is the basis for Lam’s contention
that the prosecution improperly vouched for Yeung’s
credibility.

On March 22, 1995, a jury found Lam and her co-
defendant, Xie, guilty. The jury was unable, however, to
reach a verdict as to Bick Yung Cheng. On March 24, Lam
was sentenced to life imprisonment.

C. State appeals.

Lam brought a direct appeal in the Superior Court of
Pennsylvania. The Superior Court affirmed Lam’s conviction
and rejected her allegations of constitutional error.

The Superior Court agreed that Lam’s statements were
voluntary. It did, however, acknowledge the government’s
threats of violence: "Although the Fuk Ching was known for
violence, the agents’ statements that they would not be as
‘polite’ next time, and that if she did not pay‘we will hold
up together and die together,’ were insufficient to overcome
Appellant’s will and self-determination. Appellant never
wavered from her repeated contention that she did not
know what the agents were referring to, nor did Appellant
contact the police after the agents left."

In addition, the Superior Court rejected Lam’s claim that
her Confrontation Clause rights were violated by admission
of testimony regarding Xie’s offer of payment. Because Xie
did not himself testify, Lam had no opportunity to cross-
examine Xie. The Superior Court found that this was not a
Confrontation Clause violation, however, as Xie’s statement
contained sufficient indicia of reliability. Namely, it found

                                6


that Xie’s statement was spontaneous, against his penal
interests, and would not be proven unreliable on cross
examination.

The Superior Court also addressed the merits of Lam’s
vouching arguments in the context of her claim that trial
counsel was ineffective.4 It rejected Lam’s arguments that
the prosecution’s statements and testimony offered by
Trooper Stanalonis and Special Agent Troutmann violated
her fair trial rights. The court did, however, note that a
small part of Trooper Stanalonis’s testimony expressed
"belief in Yeung’s veracity at the time of the investigatory
interview." The court ultimately dismissed this claim on the
ground that it did not create unfair prejudice depriving Lam
of a fair trial. Judge Cavanaugh dissented from this ruling
and argued that the introduction of Yeung’s plea
agreement, as well as the vouching testimony offered by
Agent Troutmann and Officer Stanalonis, required a new
trial.

Lam then petitioned the Pennsylvania Supreme Court for
an allowance of appeal. She raised four federal issues in
her petition: (1) the vouching by the prosecution was
improper, (2) her counsel was ineffective for failing to object
to the prosecution’s vouching, (3) the admission of a
statement by a non-testifying co-defendant was hearsay
and violated the confrontation clause, and (4) Lam’s
statements to the police and the fruit of those statements
should have been suppressed under the due process clause
because they were involuntary. The Supreme Court denied
Lam’s request for an appeal on June 17, 1997.

D. Federal habeas proceedings.

Lam filed her habeas petition on June 16, 1998. The
Magistrate Judge’s initial report and recommendation
denied all of her claims. On June 22, 1999, the District
Court adopted the report to deny three of Lam’s arguments,
_________________________________________________________________

4. The Magistrate Judge found that Lam’s vouching claim was addressed
at length by the Pennsylvania Superior Court and was presented to the
Pennsylvania Supreme Court in Lam’s petition for allowance of appeal.
Thus, it was not procedurally defaulted despite Lam’s failure to object to
vouching before the state trial court. Liebman & Hertz S 26.2e, p. 1075.

                                 7


but it remanded the case for reconsideration of Lam’s claim
that her responses were involuntary.

On remand, the Magistrate Judge recommended that
habeas relief be granted. His report concluded that Lam’s
responses were involuntary and that she should receive a
new trial at which both her responses and the fruits of
these responses were excluded. On October 20, 2000, the
District Court issued a final order adopting the second
recommendation. On December 18, 2000, the District
Court ordered that Lam be released from prison and placed
under house arrest.

II. JURISDICTION

The District Court had jurisdiction of Lam’s habeas claim
brought under 28 U.S.C. S 2254. We have appellate
jurisdiction over the government’s appeal of a final order
under 28 U.S.C. SS 1291 and 2253. As to Lam’s cross-
appeal, a motions panel of this Court granted a certificate
of appealability with respect to the three claims that the
District Court had denied and we have jurisdiction
pursuant to 28 U.S.C. SS 1291 and 2253(c)(2).

III. DISCUSSION

A. Habeas standards.
In 1996, Congress enacted the Anti-terrorism and
Effective Death Penalty Act of 1996 (AEDPA), codified at 28
U.S.C. S 2254, in which it imposed new constraints on the
federal courts’ ability to grant habeas relief from state court
judgments. Under AEDPA, when a federal court reviews a
state court’s ruling on federal law, or its application of
federal law to a particular set of facts, the state court’s
decision must stand unless it is "contrary to, or an
unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States." 28 U.S.C. S 2254(d)(1). When a federal court
reviews a state court’s findings of fact, its decision must
stand unless "it was based on an unreasonable
determination of the facts in light of the evidence presented
in a State court proceeding." 28 U.S.C. S 2254 (d)(2).

                                8


The Supreme Court has provided authoritative guidance
on how federal courts are to review legal and mixed
determinations under S 2254 (d)(1). See Williams v. Taylor,
529 U.S. 362, 413 (2000). A state-court decision is
"contrary to" the Supreme Court’s clearly established
precedent "if the state court applies a rule that contradicts
the governing law set forth in [Supreme Court] cases." Id. at
405. A decision is also contrary if it "confronts a set of facts
that are materially indistinguishable from a decision of this
Court and nevertheless arrives at a result different from our
precedent." Id. at 406.

The "unreasonable application" standard addresses a
different part of the court’s analysis. It allows habeas relief
when the state court "correctly identifies the governing legal
rule but applies it unreasonably to the facts of a particular
prisoner’s case." Id. at 407-08. This standard will be met if
the "state court’s application of clearly established federal
law was objectively unreasonable." Id. at 409. It is not,
however, met by a merely "incorrect application of federal
law." Id. at 410.

B. Due process claims.

1. Whether Lam’s statements were voluntary.

We will first address whether Lam’s responses to the
undercover officers should have been suppressed because
they were involuntary. As we noted at the outset, these
responses include Lam’s taped statement and the telephone
call from her workplace to alleged co-conspirator Xie that
same evening, which call was presumably made by Lam
and resulted in Xie learning Lee’s beeper number.

The Due Process clauses of the Fifth and Fourteenth
Amendment bar the use of incriminating statements that
are involuntary.5 See generally LaFave et al. 2 Criminal
_________________________________________________________________

5. Lam asserts a violation under the due process clause of the Fifth
Amendment, arguing that her responses to the agents were made in
violation of her Fifth Amendment right against self incrimination because
they were the product of threats. We will not belabor the potential
difference between the Fifth and Fourteenth Amendment’s Due Process
clauses, however, as the voluntariness inquiry is the same under each
amendment: "any confession which was inadmissible because obtained
in violation of the due process clause of the Fourteenth Amendment
would likewise be subject to suppression under the Fifth Amendment
due process clause." Wayne R. LaFave et al. 2 Criminal Procedure
S 6.3(a), p.468 (2d ed. West 1999).

                                9


Procedure S 6.2(b), p. 444 (2d ed. West 1999). The
voluntariness standard is intended to ensure the reliability
of incriminating statements and to deter improper police
conduct, id. at pp. 444-45. The ultimate issue of
voluntariness is a legal question requiring an independent
federal determination, Miller v. Fenton, 474 U.S. 104, 110
(1985). Thus, under the AEDPA habeas standard, we are
required to determine whether the state court’s legal
determination of voluntariness was contrary to or an
unreasonable application of Supreme Court precedent.

The Supreme Court has made clear that a statement is
involuntary when the suspect’s "will was overborne in such
a way as to render his confession the product of coercion."
Arizona v. Fulminante, 499 U.S. 279, 288 (1991). In
determining whether a statement is voluntary, Supreme
Court precedent requires consideration of "the totality of all
the surrounding circumstances--both the characteristics of
the accused and the details of the interrogation." Dickerson
v. United States, 530 U.S. 428, 434 (2000) (quoting
Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)).
These surrounding circumstances include "not only the
crucial element of police coercion, Colorado v. Connelly, 479
U.S. 157, 167 (1986)," but may also include "the length of
the interrogation, its location, its continuity, the
defendant’s maturity, education, physical condition, and
mental health." Withrow v. Williams, 507 U.S. 680, 693
(1992) (some internal citations omitted).

The state appellate court relied on the totality of
circumstances test when it examined whether Lam’s will
was overborne. Thus, its ruling was not contrary to
Supreme Court precedent establishing the proper test for
voluntariness. We do hold, however, that the state court
was objectively unreasonable, under Arizona v. Fulminante,
499 U.S. 279 (1991), in concluding that Lam’s statements
were voluntary under the totality of circumstances
surrounding the credible threats of violence by the
undercover officers.

Fulminante required the Supreme Court to decide
whether a government informant’s credible threat of
exposure to physical violence supported a conclusion,
under the totality of circumstances, that the suspect’s

                                10
subsequent responses were coerced. Fulminante , 499 U.S.
at 287-88.6 The suspect in Fulminante was approached by
a government informant while he was serving a prison
sentence. The informant made an indirect threat of violence
by saying that he would not protect Fulminante from other
prisoners unless he confessed to his involvement in a crime
different from the one resulting in his prison sentence. Id.
at 288. The record contained evidence that Fulminante’s
personal characteristics were insufficient to render him
impervious to that threat,7 although he had stipulated that
he never "indicate[d] that he was in fear of other inmates
nor did he ever seek Mr. Sarivola’s ‘protection’." Id. at 304.
Despite that stipulation, the Supreme Court held that
Fulminante’s confession was involuntary based on the
government’s indirect threat and evidence that Fulminante
was susceptible to the government’s threat.

The circumstances confronting Fulminante pale in
comparison to those confronting Lam. Undercover officers
threatened Lam with gang violence unless she paid a
$15,000 balance due on a murder-for-hire contract. 8 Thus,
_________________________________________________________________

6. See also Payne v. Arkansas, 356 U.S. 560, 564-65 (1958) (confession
was coerced where interrogating police officer promised protection from
"angry mob" if suspect confessed); United States v. McCullah, 87 F.3d
1136, 1139 (10th Cir. 1996) (where government agent told a "drug-
dependant" defendant that "he could be killed unless he told the
informant ‘what really happened,’ " the court found a "classic Fulminante
situation" rendering the confession involuntary).

7. The Court noted record evidence that Fulminante had low average
intelligence, dropped out of school in fourth grade, was short in stature
and had a slight build, and had felt threatened by the prison population
and requested protective custody during prior incarcerations. Id. at 286
n.2.

8. The Magistrate Judge, in finding coercion, noted that it was within the
realm of the possible to interpret the agents’ threats as referring only to
a threat of prosecution. This appears contrary to the Pennsylvania
appellate court’s understanding of the threats, however. The court noted
that the Fuk Ching gang was "known for violence," and relied on the
officers’ statements that they would not be as polite next time they came
to collect the money, and that if Lam did not pay"we will hold up
together and die together." We see no reason to disregard the
Pennsylvania court’s understanding that the officers threatened not just
exposure of, but also violence to Lam.

                                11


their threat to Lam was more direct than the threat leading
to an involuntary confession in Fulminante. Nor does the
record support the conclusion that Lam was impervious to
the government’s overreaching. Unlike Fulminante, Lam
never stipulated to her lack of expressed fear. Rather, she
gave undisputed testimony that she was scared that the
undercover officers would physically harm her and that she
believed that they were members of the Fuk Ching gang.
Lam also testified that Fuk Ching had a reputation for
kidnapping, extortion, and burglary.

In addition, the record contains no evidence that Lam’s
personal characteristics would render her impervious to
such a direct threat of physical violence. She is, however, a
middle-aged woman who left China to go to Hong Kong for
eight years; she then came to this country in 1988. She
grew up in China -- a culture very different from the one in
which she now found herself. After Lam left China, she
raised three children without much support from her
husband who had remarried Xu. She had no prior criminal
record. At the meeting with Lee and Yeun, she believed that
she was being threatened by a violent gang imported from
the alien culture of China. We have no idea whether she
understood that she could ask the American police to
protect her from that gang. Indeed, Agent Troutmann
testified at trial that Fuk Ching victims usually won’t tell
the FBI anything.

While these characteristics of Lam are not of the same
type as the personal vulnerabilities the Fulminante case
presents, we find this distinction unimportant in light of
the fact that Lam presented uncontradicted testimony that
she was actually afraid of the agents’ threats of violence.
Thus, the totality of circumstances presents a situation far
more coercive to Lam than the one found unconstitutional
in Fulminante. Lam’s fear of the threats undermines the
reliability of the incriminating responses she made.

The state courts failed to consider Fulminante in their
analysis. The state trial court made no express findings of
fact and concluded, with little explanation, that Lam’s will
was not overborne under the circumstances. The
Pennsylvania Superior Court’s discussion was brief and
conclusory. We quote it in full:

                                12


        Appellant’s third issue concerns her own recorded
       conversation with Agent Lee which she contends
       should have been suppressed as having been obtained
       involuntarily in violation of the Due Process Clause of
       the Fifth Amendment of the United States Constitution.
       Appellant alleges that her statement was made under
       duress and coercion because the agents posed as
       members of a violent Asian gang. Appellant also seeks
       to suppress, based upon the fruit of the poisoned tree
       doctrine, evidence of the resulting phone calls to her
       co-defendants which emanated from her business, 9 the
       call from Xie to Agent Lee’s beeper the next day, and
       any further contacts between Xie and the agents.

        In reviewing a ruling of a suppression court, we must
       ascertain whether the record supports the court’s
       factual findings. Commonwealth v. Hughes, 639 A.2d
       763, 769 (Pa. 1994). In doing so, we may only consider
       the evidence of the Commonwealth and so much of the
       evidence for the defense as remains uncontradicted. Id.
       If the record supports the court’s findings, we may only
       reverse if the court drew an erroneous legal conclusion
       from the facts. Id.

        In order for a defendant’s statements to be
       admissible, they must be freely and voluntarily given
       and must not be extracted by any sort of threats or
       violence. Commonwealth v. Nester, 661 A.2d 3, 5 (Pa.
       Super. 1995), allocatur granted 673 A.2d 333 (1996)
       [reversed 709 A.2d 879 (Pa. 1998) on grounds that the
       Superior Court had not acknowledged the totality of
       the circumstances]. The defendant’s will must not have
       been overborne nor her capacity for self-determination
       critically impaired. Commonwealth v. Clark, 533 A.2d
_________________________________________________________________

9. Insofar as the Superior Court classifies the April 7 telephone call to
Xie as a "fruit" of Lam’s involuntary statement rather than as a reaction
by Lam to the Fuk Ching threats, we believe that this classification is
objectively unreasonable because the discovery of that telephone call was
not made through evidence derived from the involuntary statement, see,
e.g., Wong Sun v. United States, 371U.S. 471, 487-88 (1963). If this call
was in fact made by Lam (and we presume it was), it, as well as Lam’s
statements in the restaurant, was a reaction by Lam made as a direct
result of the undercover officers’ threats of physical violence.

                                13


       1376, 1379 (Pa. 1987) (citing Commonwealth v. Smith,
       368 A.2d 272 (Pa. 1977)).

        The suppression court held that Appellant’s
       statements were made voluntarily. We agree. Although
       the Fuk Ching was known for violence, the agents’
       statements that they would not be as "polite" next
       time, and that if she did not pay "we will hold up
       together and die together," were insufficient to
       overcome Appellant’s will and self-determination.
       Appellant never wavered from her repeated contention
       that she did not know what the agents were referring
       to, nor did appellant contact the police after the agents
       left.

(citations to Pennsylvania cases restated per Local Appellate
Rule 28.3).

Thus, we see that the Superior Court did not consider
Lam’s admitted fear when it concluded that Lam spoke
voluntarily. Instead, the Superior Court concluded that it
could disregard the government’s threat based on the facts
that Lam "never wavered from her repeated contention that
she did not know what the agents were referring to, nor did
[she] contact the police after the agents left." As explained
below, however, these factors cannot reasonably be
considered determinative of a free will in light of the threats
and of Lam’s fear.

As an initial matter, we are troubled by the state court’s
reliance on Lam’s assertions that she did not know what
the agents were referring to. A refusal to acknowledge the
facts that the threat is intended to verify is not an
indication that the person being threatened is not
intimidated. In Brown v. Mississippi, 297 U.S. 278, 281
(1936), for example, Brown "still protested his innocence"
after being hung twice, and still declined to confess when
he was whipped immediately thereafter. Brown’s
protestation of innocence hardly shows that his eventual
confession (given after another round of whipping the very
next day) was voluntary. Similarly, Lam’s professed
ignorance of the reason for the undercover agents’ visit
does not establish that Lam spoke freely to the undercover
officers.

                                14


Furthermore, the fact that Lam failed to call the police
after the undercover officers left cannot reasonably support
a finding of voluntariness. The failure to call the police does
nothing to mitigate the officers’ threats and Lam’s
testimony that she was afraid while she was being
questioned by them. Her failure to take a particular action
after they left cannot reasonably support a conclusion that
Lam remained unaffected by the prospect of the physical
violence with which they had threatened her. Indeed, Fuk
Ching victims apparently do not seek aid from American
law enforcement authorities. As Agent Troutmann testified,
Fuk Ching victims don’t talk to the FBI.

Under the totality of facts assumed by the state court,
the only reasonable conclusion is that Lam’s will was
overborne by the officers’ threats of violence. Because,
therefore, her responses were made under duress, they
cannot be used by the Commonwealth as evidence against
her. The incriminating responses include Lam’s reply when
the undercover officers asked her why everyone else
thought she had murdered Xu. Lam responded:

       I don’t know. Maybe I have hatred with her very deep,
       deepest hatred with her is me . . . Everybody is looking
       at us. See what is happening. The FBI will come here
       every one month or two months. Many people said that
       I did this right now.

This response was the only evidence of motive on Lam’s
part. As a result it must be considered incriminating. See,
e.g., Miranda v. Arizona, 384 U.S. 436, 477 (1966) ("[i]f a
statement made were in fact truly exculpatory it would, of
course, never be used by the prosecution").

The April 7 telephone call from the restaurant to Xie after
the undercover officers had left, was also incriminating.
This call was presumably made by Lam. When Xie called
Lee the next day, he used Lee’s beeper number which Lee
had given to Lam the night before. Thus, the April 7 call
was the means to link Lam to Xie’s statement that Lam had
agreed to pay the money. The Commonwealth acknowledges
in its opening brief that it was very important to its case to
establish that Lam had passed on the beeper number to
Xie. Given that the April 7 call was made that same evening

                                  15


after Lam was threatened by the officers, the call must be
considered to have been made in reaction to those threats.
Evidence of the call, either directly or by reference as the
source of Xie’s knowledge of Lee’s beeper number, should
have been suppressed.

In sum, in light of the threats and of the fear they
caused, Lam’s statements during the interview and the fact
that someone (presumably Lam) telephoned Xie
immediately afterwards must have been induced by these
threats and, therefore, must have been involuntary. The
state court’s contrary determination was objectively
unreasonable in light of the Supreme Court’s holding in
Fulminante.

2. Fruit of the poisonous tree.

The state appellate court did not address Lam’s fruit of
the poisonous tree argument after it rejected her initial
challenge based on voluntariness.10 Because we find that
Lam’s responses were involuntary, we will address her
further claim that the evidence derived from those
involuntary responses, i.e., the fruit of that poisonous tree,
should also be suppressed.11 The fruit at issue is Xie’s April
8 phone call to Agent Lee in which Xie stated that Lam
would pay the money if Yeung did not expose the case and
Lee and Yeun did not return to the restaurant. Under the
standard of review provided by AEDPA, however, we do not
find ground for habeas relief based on Xie’s statement.

Our primary concern with the fruit of the poisonous tree
argument is that the Supreme Court has never held that
_________________________________________________________________

10. Although Lam may not have objected to admission of these fruits in
her suppression hearing, she did raise the argument before the court of
appeals. The appellate opinion never suggests that the court was
unwilling to consider the issue on the merits, and Lam raised this issue
in her petition to the Pennsylvania Supreme Court. Thus, because it is
not clear that the state appellate court considered the issue procedurally
barred, see Liebman & Hertz S 26.2e, p. 1075-82, we will address the
merits of this argument.

11. As we note in footnote 9, we consider the telephone call presumably
made by Lam to Xie on the evening of April 7 to be a direct result of the
threats made to Lam and not "fruits," i.e. , not evidence obtained from
information gleaned from the coerced statement.

                                  16


"fruits" of involuntary statements are inadmissible. LaFave
et al., 3 Criminal Procedure S 9.5(a), p. 383 (2d ed. 1999).
Historically, a coerced confession was considered to be
unreliable but concrete evidence discovered with the aid of
that confession was reliable and thus admissible. Id. Over
the years, however, a sense of "fair play and decency" has
led courts to exclude not only the coerced confession but
the real evidence discovered by virtue of the coerced
confession. See, e.g., People v. Ditson, 369 P.2d 714 (Cal.
1962). Although a leading treatise argues that application
of the fruit of the poisonous tree doctrine to involuntary
confessions is "unquestionably correct," LaFave at 383, it is
not clear that a decision to admit such evidence would
violate the federal habeas standard -- that decision would
not be contrary to, or an unreasonable application of,
"clearly established law as determined by the Supreme
Court." 28 U.S.C. S 2254(d)(1) (emphasis added).

The Supreme Court’s explanation of S 2254(d)(1)’s
requirements makes the problem clear. The state court’s
decision must violate "the holdings, as opposed to the dicta,
of this Court’s decisions as of the time of the relevant state-
court decision." Williams v. Taylor, 529 U.S. 362, 412
(2000). In other words, "whatever would constitute an old
rule under our Teague jurisprudence will constitute ‘clearly
established Federal law’," keeping in mind thatS 2254(d)(1)
also "restricts the source of clearly established law to [the
Supreme] Court’s jurisprudence." Id. The state court’s
admission of Xie’s statement in this case did not contradict
or unreasonably apply Supreme Court precedent on
admitting fruits of an involuntary statement because the
Supreme Court has not recognized a right to suppress
evidence discovered as a result of an involuntary statement.
Although the magistrate judge cited circuit court precedent
in support of that right,12 this is insufficient to meet the
AEDPA’s requirement of a right established by Supreme
Court jurisprudence.

Thus, it is not clear that the violation alleged by Lam
requires application of the exclusionary rule as to the
fruits, at least under Supreme Court precedent. In light of
_________________________________________________________________

12. See, e.g., U.S. v. Downing, 665 F.2d 404 (1st Cir. 1981).

                                17


the cases above, as well as the fact that the Supreme Court
has yet to base a suppression ruling on the fruits of an
involuntary confession, we cannot say that suppression of
Xie’s statement was "dictated by [Supreme Court] precedent
existing at the time [Lam’s] conviction became final."
Teague v. Lane, 489 U.S. 288, 301 (1989). The
Pennsylvania courts would not have felt compelled by this
precedent to conclude that the Constitution required
suppression of the fruit. Gray v. J.D. Netherland, 518 U.S.
152, 166 (1996) (quoting Saffle v. Parks, 494 U.S. 484
(1990)).

The state court’s rulings allowing Xie’s statement into
evidence, therefore, cannot be considered an objectively
unreasonable application of Supreme Court precedent.
Lam’s habeas claim as to this evidence fails, and this part
of the District Court’s ruling will be reversed.

3. Harmless error.

Because the state court found that Lam’s statements
were voluntary, it never reached the question whether
admission of Lam’s and Xie’s statements amounted to
harmless error. In this habeas appeal, however, the
Commonwealth offers harmless error as another ground for
denying habeas relief despite the state court’s
constitutional error.13 As explained below, however, we do
not agree that the harmless error doctrine presents grounds
to excuse the state court’s unreasonable application of
Fulminante and admission of Lam’s responses.

The first flaw in the Commonwealth’s harmless error
argument is that it was never raised before the District
Court and was therefore waived. Liebman & Hertz at
S 32.2.a, p. 1315. (harmless error defense may be waived if
the state fails to raise it in a timely and unequivocal
fashion). The Commonwealth admits waiver and asks us to
reach the matter sua sponte. Even if we did so, however, we
would not reach a different result. In habeas cases, an
error cannot be deemed harmless if it had a "substantial or
injurious effect or influence in determining the jury’s
_________________________________________________________________

13. We have no need to address this argument with regard to the
constitutionally admissible statements made by Xie.

                                  18


verdict." Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)
(internal quotations omitted);14 Liebman & Hertz, S 32.1, p.
1327. Here, Lam alleges that error allowed the jury to
consider a statement in which Lam expressed her hatred
for Xu. Her expressed hatred established a motive for
killing Xu -- an essential element of her conviction for
murder. Error also allowed the admission of circumstantial
evidence that someone (presumably Lam) telephoned Xie
from Lam’s workplace, following the conversation with Lee
and Yeun, and furnished Xie with Lee’s beeper number. As
the government argues in its brief on appeal, it was very
important to the government’s case to establish that Lam
passed on that beeper number to Xie.

From our description of the above evidence, it is clear
that both responses supplied vital evidence for the
Commonwealth’s case against Lam and that these
necessary elements of the Commonwealth’s case were not
met with evidence from any other source. Thus we will not
excuse the admission of these responses as harmless error
that failed to exert substantial influence on the jury’s
verdict.

C. Confrontation Clause claims.

On cross-appeal, Lam requests suppression of
government testimony regarding Xie’s statement that Lam
had agreed to pay the money if Yeung would not expose the
case and if Lee and Yeun would not come back to the
restaurant. She contends that admission of Xie’s out-of-
court statement violated her rights under the Confrontation
Clause of the Sixth Amendment because she did not have
_________________________________________________________________

14. We note that a number of circuits have questioned whether the
holding in Brecht survived the passage of AEDPA. See Noble v. Kelly, 246
F.3d 93, 101 n.5 (2d Cir. 2001) (gathering cases). This circuit has never
addressed whether AEDPA requires habeas courts to ignore Brecht and
instead determine whether a state court’s finding of harmless error was
"contrary to" or involved an "unreasonable application of " Chapman v.
California, 386 U.S. 18, 24 (1967), which requires only that error be
harmless beyond a reasonable doubt. We need not resolve this question,
however, as the state’s ruling cannot survive even the more generous
standard articulated in Brecht. See, e.g., Anderson v. Cowan, 227 F.3d
893, 898 n.3 (7th Cir. 2000).

                                19


a chance to cross examine Xie. She relies on Supreme
Court cases in which admission of unreliable hearsay
evidence -- comprised of the confession of a co-defendant
-- amounted to a violation of the Confrontation Clause. See
Bruton v. United States, 391 U.S. 123 (1968); Lee v. Illinois,
476 U.S. 530, 544 n.5 (1986). We do not agree, however,
that these cases require habeas relief excluding Xie’s
statement.

The state appellate court rejected Lam’s Confrontation
Clause argument on the ground that Xie’s statement
contained sufficient elements of reliability. It correctly noted
that the admission of hearsay does not automatically
equate to a violation of a defendant’s rights under the
Confrontation Clause. See Commonwealth v. Cull , 656 A.2d
476, 480 (Pa. 1995), which in turn relied upon the Supreme
Court’s plurality decision in Dutton v. Evans , 400 U.S. 74
(1970); accord Ohio v. Roberts, 448 U.S. 56, 66 (1980)
(admission of hearsay does not violate the Confrontation
Clause so long as there is "a showing of particularized
guarantees of trustworthiness.").15 Rather, the concern
under the Confrontation Clause is "a practical concern for
the accuracy of the truth-determining process," and
whether the statement exhibits sufficient indicia of
reliability. Dutton, 400 U.S. at 88-89.

Having identified the correct legal principle, the state
appellate court found Xie’s statement reliable because it
contained some of the same indicia of reliability present in
Dutton: the statement was spontaneous, it was a statement
against Xie’s penal interest, and cross-examination would
not render it unreliable.

As a result, we do not find that the admission of his
statement was an unreasonable application of Supreme
Court precedent, and we reject Lam’s request for habeas
relief under the Confrontation Clause.
_________________________________________________________________
15. Thus, we have no need to determine whether these statements fall
under the federal hearsay exception for co-conspirators’ statements
under United States v. Inadi, 475 U.S. 387 (1986). In Inadi, the Supreme
Court declined an invitation to revisit its resolution in Dutton, and held
that co-conspirator statements are admissible without a showing that a
co-conspirator is unavailable to testify. Id. at 400.

                                20


D. Fair trial and ineffective assistance of counsel
claims.

Lam also argues on cross appeal that she was denied her
due process right to a fair trial because the prosecution
vouched for the credibility of certain government witnesses.
On appeal, she focuses on two allegations of vouching.
First, she argues that the testimony of investigating officers
vouched for Yeung’s credibility. Second, she argues that the
prosecutor vouched for Yeung’s credibility by relying on
statements promising truthfulness in his plea agreement.16
Lam adds to this argument a claim that her trial counsel
was ineffective because he failed to object to vouching at
trial.

Vouching is a type of prosecutorial misconduct. It
constitutes an assurance by the prosecuting attorney of the
credibility of a government witness through personal
knowledge or by other information outside of the testimony
before the jury. United States v. Walker, 155 F.3d 180, 184
(3d Cir. 1998) (citing United States v. Lawn, 355 U.S. 339,
359 n.15 (1958)). In order to find vouching, two criteria
must be met: (1) the prosecution must assure the jury that
the testimony of a Government witness is credible, and (2)
this assurance must be based on either the prosecutor’s
personal knowledge or other information that is not before
the jury. Walker, 155 F.3d at 187.

On habeas review, however, prosecutorial misconduct
such as vouching does not rise to the level of a federal due
process violation unless it affects fundamental fairness of
the trial. Liebman & Hertz S 9.1, p. 371. Thus, habeas relief
is not available simply because the prosecutor’s remarks
were undesirable or even universally condemned. The
relevant question for a habeas court is whether those
remarks "so infected the trial with unfairness as to make
the resulting conviction a denial of due process." Darden v.
Wainwright, 477 U.S. 168, 180-81 (1986) (quoting Donnelly
_________________________________________________________________

16. Lam also asserts that Troutmann improperly"vouched" for the
prosecution’s version of the events by giving improper opinion testimony.
Lam’s arguments do not, however, explain why such testimony would
violate clearly established Supreme Court precedent prohibiting
vouching.

                                21
v. DeChristophoro, 416 U.S. 637, 643 (1974)); accord
Jackson v. Johnson, 194 F.3d 641, 653 (5th Cir. 1999).

1. The investigating officers’ testimony.

Lam first challenges testimony that focused on Agent
Troutmann’s and Trooper Stanalonis’s investigative
techniques and how they ascertained whether Yeung was
telling the truth. To be sure, their testimony has the effect
of assuring the jury that Yeung is a credible witness. It is
not clear, however, that all of the reasons for these
assurances were not before the jury or that they were based
only on the personal knowledge of the government officers.
Rather, the officers told the jury about the techniques that
led them to credit Yeung’s statements during their
investigation. The First Circuit has described this
distinction as follows: An agent "could properly have
testified as to the actions he took to corroborate .. .
testimony," but he could not testify that certain statements
were "lies," or that interrogation techniques had established
the veracity of other statements. United States v. Rosario-
Diaz, 202 F.3d 54, 65 (1st Cir. 2000). The state court
applied a similar legal framework, and we find that it was
reasonable in concluding that statements made by Agent
Troutmann are not vouching.

A statement by Trooper Stanalonis, however, presents a
clearer instance of vouching. On cross-examination,
Stanalonis testified as to his personal belief that Yeung was
telling him a "correct story corroborating my investigation."
Stanalonis made this statement when he was asked
whether he knew if Yeung’s story was true during their first
meeting, at a point when they were going over photos of
suspects and Yeung identified Lam. Stanalonis also stated
that Yeung’s responses "heightened my thoughts on how
truthful he was being with me." His statements have the
impermissible effect of putting the prestige of Trooper
Stanalonis’s professional knowledge behind Yeung’s
testimony, a conclusion with which the Pennsylvania
Superior Court agreed, noting that "it might have been
more prudent to excise the reference to truthfulness."

Despite its concern about Trooper Stanalonis’s testimony,
however, the Pennsylvania Superior Court dismissed this

                                22


issue on the ground that Stanalonis’s vouching did not
create unfair prejudice depriving Lam of a fair trial. It
reasoned that Stanalonis’s testimony was not even harmful
because his "testimony concerning Yeung’s truthfulness
was substantially similar to that of Agent Troutmann’s," it
was "a single, unsolicited remark made in passing," and his
vouching was not related to a contested issue in the case,
as it merely involved Yeung’s identification of Lam.
Likewise, the Supreme Court has previously denied habeas
relief where it found an ambiguous, isolated comment by a
prosecutor insufficient to render an entire trial unfair.
Donnelly v. DeChristophoro, 416 U.S. 637, 645 (1974).
Under this precedent, we see no reason to find the
Pennsylvania Superior Court’s determination objectively
unreasonable.17

2. The prosecutor’s statements about Yeung’s plea
       agreement.

Lam also challenges the prosecutor’s reading into
evidence of Yeung’s plea agreement and the prosecutor’s
remarks about the consequences facing Yeung if he did not
tell the truth. We will not disturb the state court’s
determination that neither of these statements constitute
impermissible vouching.

As an initial matter, Lam does not point out a portion of
the plea agreement that has the improper effect of assuring
the jury that Yeung’s testimony is credible. Rather, the
portion of the plea agreement cited by Lam leaves open the
possibility that Yeung’s statements are false: Yeung and his
family will receive protection "if it is further found that . . .
[his] truthful cooperation . . . reveals" activities of
individuals who may use violence against his family.

The prosecutor’s statements also withstand habeas
review. The prosecutor told the jury that Yeung would "risk
his life" by not telling the truth in his plea agreement. This
statement should not be considered improper, as we have
approved a prosecutor’s use of less subtle statements
_________________________________________________________________

17. Because we find only one instance of impermissible vouching, we
have no need to consider Lam’s argument that multiple instances of
vouching resulted in cumulative error that rendered her trial unfair.

                                23


addressing the consequences of a witness’s failure to testify
truthfully. See, e.g., United States v. Oxman, 740 F.2d 1298
(3d Cir. 1984), reversed on other grounds sub nom. United
States v. Pflaumer, 473 U.S. 922 (1985)). Thus, we see no
basis for habeas relief based on the state appellate court’s
approval of those statements.

3. Ineffective assistance.

Finally, Lam claims that her trial counsel was ineffective
because he failed to object to impermissible vouching at
trial. We reject this claim.

An ineffective assistance claim brought under the Sixth
Amendment requires two showings: first, that counsel’s
performance was constitutionally deficient, and second,
that the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Lam
has failed to show any prejudice from trial counsel’s
performance, as the state appellate court considered Lam’s
vouching arguments despite trial counsel’s failure to object.
Thus, the District Court’s rejection of this argument should
be affirmed.
IV. CONCLUSION

Lam has established that she is entitled to habeas relief
on her due process claim involving the voluntariness of her
April 7 statement and the April 7 telephone call to Xie. It
was objectively unreasonable, in light of the Supreme
Court’s holding in Arizona v. Fulminante, 499 U.S. 279
(1991), for the Pennsylvania Superior Court to find those
responses voluntary.

We will, therefore, affirm that part of the District Court’s
October 20 ruling granting habeas relief based on Lam’s
responses to the undercover officers. We will reverse that
part of its ruling granting habeas relief based on Xie’s
statements. We will also affirm the District Court’s earlier
order denying habeas relief based on Lam’s Confrontation
Clause and due process claims related to vouching.

                                24


A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                25
