                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                                 UNITED STATES COURT OF APPEALS
                                                                                 JUN 19 1998
                                      TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                      Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                           No. 97-3110
                                                       (D.C. No. 94-CR-10128-2)
 PIYARATH S. KAYARATH,                                    (District of Kansas)

           Defendant-Appellant.




                                  ORDER AND JUDGMENT*


Before SEYMOUR, Chief Judge, MURPHY, Circuit Judge, and McWILLIAMS,
Senior Circuit Judge.


       Five young Asian-American males robbed the owners of the Mandarin Chinese

Restaurant and Lounge in Wichita, Kansas, and in the course of the robbery shot and

killed one of its co-owners, Barbara Sun. One of the five later indicted for participation

in the robbery-murder was Piyarath S. Kayarath, identified in the indictment by that name,

and also referred to therein as “a/k/a ‘B’.” Kayarath will be hereinafter referred to by us

as “Mr. B.” In this appeal, we are only concerned, as such, with Mr. B. and none of the



       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3
other four participants in the robbery-murder.

       Based on the robbery-murder, Mr. B was charged in a second superseding

indictment as follows: in count 1 he was charged with knowingly and willfully

obstructing and affecting interstate commerce on November 8, 1994, by robbing

employees of the Mandarin Chinese Restaurant and Lounge (“Mandarin Restaurant”) in

Wichita, Kansas, against their will by force and violence, in violation of 18 U.S.C. § 1951

(Hobbs Act) and 18 U.S.C. § 2; and in count 2 he was charged with carrying and using a

firearm in that robbery and during the course thereof causing the death of a person, by

murder, through the use of a firearm, in violation of 18 U.S.C. §§ 924(c)(1) and 924(j)(1)

and 18 U.S.C. § 2.

       Mr. B was found guilty by a jury on both counts, and, after his motion for a new

trial was denied, he was sentenced to imprisonment for 240 months on count 1 and life

imprisonment without release on count 2. Mr. B appeals his convictions.

       On appeal, counsel raises basically two issues: (1) the district court erred in

denying Mr. B’s pre-trial motion to suppress his “confession,” which, according to

counsel, was the “fruit of the poisonous tree,” i.e., the confession resulted from an “illegal

arrest”; and (2) the district court committed plain error in its answer to a written question

given the court by the jury during the course of its deliberations. Finding no reversible

error, we affirm. Some background is in order.

       Mr. B and the other four robbers were all living in the Wichita, Kansas area. At


                                             -2-
trial, the government called as witnesses several “girlfriends” of the robbers who testified

that they overheard Mr. B and the other four plan the robbery in question. One of the five

robbers drove the get-away car, and did not himself enter the Mandarin Restaurant. The

other four did enter the restaurant, two of the four carrying guns. It was the government’s

theory of the case that Mr. B and one of the others forced Mark Sun to open the cash

register and then tied and bound him along with a waiter. Mark Sun, the waiter, and the

two Sun daughters were then forced to lie down on the floor.1 In this connection, Mark

Sun, the co-owner of the Mandarin Restaurant with his wife, Barbara Sun, testified that

he was forced to open the cash register and then tied and bound and forced to lie down on

the floor. Also, the government called as its witness one of the four robbers who testified

that he and Mr. B tied and bound Mark Sun. The driver of the get-away car also testified

against Mr. B as a government witness.

       It was the government’s further theory of the case that the other two of the four

robbers who entered the restaurant dragged Barbara Sun upstairs to the second floor and

that one of the two shot and killed Barbara Sun when she could not open a safe. The gun

used in the killing belonged to Mr. B. The four then fled the Mandarin Restaurant in a

stolen get-away car, taking with them a relatively small amount of currency and some

costume jewelry. The four entered a second get-away car driven by the fifth robber a


       1
        Mark and Barbara Sun were born in South Korea and knew each other in that
country. Each later emigrated to the United States and were married in Wichita, where
they, together, owned and operated the Mandarin Restaurant.

                                            -3-
short distance from the Mandarin Restaurant and the five successfully fled the scene.

       Nearly three weeks later, Mr. B was arrested by authorities on November 29, 1994,

in a house trailer located in Wichita. The authorities had a search warrant to search the

trailer for drug activity therein. The authorities found “white powder” on a tray in the

trailer, as well as a loaded shotgun. As indicated, Mr. B was in the trailer, along with

others, and all were arrested and taken to police headquarters. After being advised of his

Miranda rights, Mr. B admitted to participating in the robbery by tying up people and

looking for currency and jewelry, though he denied that he shot and killed Barbara Sun.

After the government rested its case, Mr. B called no witnesses and rested his case.

       As indicated, prior to trial, counsel for Mr. B filed a motion to suppress the use at

trial of Mr. B’s confession made to an FBI agent, Dan Jablonski, who headed the Violent

Crime Task Force in Wichita, which was investigating the robbery-murder. It was

counsel’s general position that Mr. B’s arrest was without probable cause and thus illegal,

and that the confession being the result of the illegal arrest was therefore inadmissable.

Additional facts and circumstances surrounding his arrest become pertinent.

       The Task Force, based on information acquired from various persons, was aware

of Mr. B and his possible involvement in the Mandarin Restaurant robbery. The Task

Force was also aware of another individual, a Mr. Ph, whom they suspected might be

involved in some other robberies, if not involved in the robbery of the Mandarin

Restaurant. To further its investigation, the Task Force on November 29, 1994,


                                            -4-
established a surveillance of a “trailer” located at 3200 S.E. Boulevard in Wichita, the

Task Force having information that the trailer was a hangout for Asian gang members,

including Mr. Ph. During that surveillance, they saw two Laotian males leave the trailer

and drive off in a red Chevy Blazer. Believing one of the individuals in the vehicle was

Mr. Ph (it subsequently developed that they were mistaken in that belief), the agents

followed and then stopped the Blazer. A consensual search of the vehicle disclosed

quantities of cocaine which the occupants said they had obtained from Mr. Ph in the

trailer and which they intended to distribute to others.2 Based on that information,

members of the Task Force obtained a warrant to conduct a search of the trailer.

       This search warrant was executed about 3:00 p.m. on November 29, 1994, by

Jablonski and other members of the Task Force. Mr. Ph answered the knock-at-the-door.

After entering the trailer, the agents found cocaine in a tray and a loaded shotgun. Mr. B

was in the trailer and he, and others in the trailer, were arrested, along with Mr. Ph, and

all taken to police headquarters. After being given a Miranda warning, Mr. B was

questioned about drug activities at the trailer, as well as the robbery of the Mandarin

Restaurant and several other similar robberies. In this latter connection, Mr. B. later

admitted, under questioning, his participation in the Mandarin Restaurant robbery,



       2
        The two arrested in the red Chevy Blazer were Souphaphone Lang and
Douangmala Lang. They were later charged with drug violations, and their convictions
on the drug charges were affirmed on appeal. We reversed their convictions on the
charges of carrying a firearm. See United States v. Lang, 81 F.3d 955 (10th Cir. 1996).

                                             -5-
although denying that he shot Barbara Sun.

       After hearing, the district court denied the motion to suppress. In so doing, the

district court observed that Agent Jablonski, based on statements made to him by an

informant, had already suspected that Mr. B was involved in the robbery of the Mandarin

Restaurant, but that since there was “nothing more” known about the informant, his

statement to the Task Force had “limited value in deciding whether probable cause

existed [although] [i]t is, however, a factor to consider.” Rather, in denying the motion to

suppress the district court spoke as follows:

                      Kayarath was found crammed into a small bedroom
              with 7 other people immediately after the agents discovered
              cocaine residue in the kitchen and a loaded .12 gauge shotgun
              under the couch. The Task Force knew from the Lang
              brothers’ statements that a drug deal had occurred within the
              trailer earlier that day, and the agents had observed no one
              come in or go out of the trailer since that time.

       We agree with the district court that the Task Force had probable cause to believe

that cocaine was being distributed by persons in the trailer. The Task Force thereafter

obtained a search warrant based on the fact that the two Laotian males in the red Chevy

Blazer had cocaine in their possession shortly after leaving the trailer, where they said

they had obtained the cocaine. Such, in our view, constitutes probable cause to believe

that the occupants of the trailer were involved in drug distribution out of the trailer.

Further, in our view, any possible error in arresting Mr. B is, under the circumstances,

harmless error. See Chapman v. California, 386 U.S. 18 (1967); and United States v.


                                             -6-
Espinosa, 771 F.2d 1382, 1415 (10th Cir.), cert. denied, 474 U.S. 1023 (1985). Evidence

later adduced at trial was overwhelming that Mr. B did participate in the robbery. We

refer especially to the testimony of Mark Sun and two of Mr. B’s accomplices. Indeed,

though Mr. B did not testify, counsel’s defense, as he stated in closing argument to the

jury, was that though Mr. B was guilty of robbery, he was not guilty of murder. And, as

noted, the search of the trailer was pursuant to a search warrant.

       Counsel also argues on appeal that the district court committed plain error in

responding to a question from the jury during the course of its deliberation. In both

counts 1 and 2, Mr. B was charged as a principal and as an aider and abettor under 18

U.S.C. § 2. In this latter connection, the district court, without objection, instructed the

jury as follows:

                                  INSTRUCTION NO. 32

                      Counts 1 and 2 of the indictment also charge the
              defendant with a violation of Section 2, Title 18 of the United
              States Code, which provides that: “Whoever commits an
              offense against the United States, or aids, abets, counsels,
              commands, induces or procures its commission, is punishable
              as a principal.”
                      If you find that the United States has proved beyond a
              reasonable doubt that defendant personally committed each
              element of the crimes charged in Counts 1 and 2, you need not
              consider whether he violated 18 U.S.C. Section 2. On the
              other hand, if you find that defendant personally did not
              commit each element of either or both of the crimes, you must
              consider 18 U.S.C. Section 2. This is because a person may
              violate the law even though he or she does not personally do
              each and every act constituting the crime if that person “aided
              and abetted” someone else in the commission of the crime.

                                             -7-
                      Before the defendant may be found guilty as an aider
               and abettor to the crime or crimes charged, the United States
               must prove, beyond a reasonable doubt, that someone
               committed each of the essential elements of the crime or
               crimes charged. In addition, the United States must prove
               beyond a reasonable doubt that the defendant:
                      1.     Knew that the crime or crimes charged
                             were to be committed or were being
                             committed; and
                      2.     Knowingly did some act for purpose of
                             aiding, commanding, or encouraging the
                             commission of the crime or crimes; and
                      3.     Acted with the intention of causing the
                             crime or crimes charged to be committed.
                      In other words, the United States must prove beyond a
               reasonable doubt that the defendant knowingly and willfully
               associated himself with the crime or crimes in some way as a
               participant--someone who wanted them to be committed--not
               as a mere spectator.
                      Merely being present at the scene of a crime or merely
               knowing that a crime is being committed or is about to be
               committed is not sufficient conduct for the jury to find that a
               defendant aided and abetted the commission of that crime.

       After several hours of deliberation, the jury sent the following communication to

the district court:

                      We request clarification of Instruction 32. The second
               paragraph reference 18 U.S.C. section 2, seems to conflict
               with items 1, 2 and 3 below, in that 1 below . . . seems to
               indicate that the defendant had to know that a murder either
               was going to be or was being committed.
                      Does the reference to crime or crimes mean the
               murder only or does it refer to “robbery and/or murder.”

       After discussion, the district court, with consent of the parties, answered that

question as follows: “in answer to your question, the reference to crime or crimes refers to


                                             -8-
the robbery and/or murder.”

       As indicated, there was no objection to instruction No. 32 nor was there any

objection to the district court’s response to the jury’s question. Counsel necessarily must

now argue that the court’s answer constituted plain error. We do not agree.

       We reject any suggestion that in order for Mr. B to be convicted as an aider and

abettor to his accomplice’s killing of Barbara Sun, Mr. B had to somehow know, in

advance, that his accomplice was going to shoot and kill Barbara Sun. We are here

concerned with a murder occurring during the course of a robbery.3 In our view the jury

was not misled by the district court’s answer to the jury’s question. And, again, in any

event, the evidence shows quite clearly that Mr. B, who apparently at trial conceded, in

effect, that he was involved in the robbery of the Mandarin Restaurant, aided and abetted




       In this general connection, the Supreme Court in Schad v. Arizona, 501 U.S. 624,
       3

640-41 (1991) spoke as follows:

              At common law, murder was defined as the unlawful killing
              of another human being with “malice aforethought.” The
              intent to kill and the intent to commit a felony were
              alternative aspects of the single concept of “malice
              aforethought.” See 3 J. Stephen, History of the Criminal Law
              of England 21-22 (1883). Although American jurisdictions
              have modified the common law by legislation classifying
              murder by degrees, the resulting statutes have in most cases
              retained premeditated murder and some form of felony
              murder (invariably including murder committed in
              perpetrating or attempting to perpetrate a robbery) as
              alternative means of satisfying the mental state that first-
              degree murder presupposes.

                                            -9-
his accomplice who shot and killed Barbara Sun. After all, it was Mr. B’s gun used in the

shooting of Barbara Sun, occurring at the time when Mr. B was ransacking the first floor

of the Mandarin Restaurant. That, to us, is aiding and abetting.4

       This is a tragic case. Mr. B, then age 21 years, has now been sentenced to 240

month’s imprisonment on count 1 and a life sentence without parole on count 2. From the

present record it appears that the driver of the get-away car and the robber who helped

Mr. B tie and bind Mark Sun pled guilty to both robbery and murder. What has happened

to the two who dragged Barbara Sun by the hair to the second floor and killed her, we do

not know. There is, however, the suggestion in the present record that the government

was seeking the death penalty against them. And, of course, the crimes they committed

were violent and unprovoked, and decimated the Sun family.5

       Judgment affirmed.

       4
        Additionally, counsel suggests, mildly, that the evidence is insufficient to show
that the robbery obstructed or otherwise affected interstate commerce. In this regard,
Mark Sun testified that he bought products from outside the state and sold them at the
Mandarin Restaurant and that many of his customers used credit cards for payment which
resulted in out-of-state collections. Further, he stated that the robbery and murder
ultimately caused him to close the restaurant and cease buying from out-of-state. Counsel
recognizes that we have repeatedly held that the “affect” on interstate commerce need
only be de minimis to trigger the Hobbs Act. See, e.g., United States v. Romero, 122 F.3d
1334, 1339-40 (10th Cir. 1997), cert. denied, 118 S.Ct. 1310 (1998); United States v.
Bolton, 68 F.3d 396, 399 (10th Cir. 1995), cert. denied, 516 U.S. 1137 (1996); and United
States v. Ziegler, 19 F.3d 486, 489-90 (10th Cir.), cert. denied, 513 U.S. 1003 (1994).
The present case meets that low de minimis standard.
       5
        After oral argument of this case, counsel for the appellee filed a motion to correct
a statement made by him at argument. That motion is granted. In connection therewith,
counsel for the appellee also moved to supplement the record. That motion is denied.

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Entered for the Court

Robert H. McWilliams
Senior Circuit Judge




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