                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-24-2005

USA v. Lin
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2054




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                                                                   NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT

                                        No. 03-2054

                             UNITED STATES OF AMERICA

                                             v.

                                     CHANG PING LIN
                                      a/k/a Lin Fung,

                                      Chang Ping Lin,
                                              Appellant

                         Appeal from the United States District Court
                                for the District of New Jersey
                                   (Civ. No. 02-cr-00293)
                            District Judge: Jerome B. Simandle

                             Submitted Under Third Circuit LAR
                                    November 12, 2004

            Before: McKee, Chertoff,* Circuit Judges, Buckwalter,** District Judge

                                (Opinion filed: May 24, 2005)

                                          OPINION

McKee, Circuit Judge



       *
        Judge Chertoff heard oral argument in this case but resigned prior to the time the
opinion was filed. The opinion is filed by a quorum of the panel. 28 U.S.C. § 46(d).


       **
        Honorable Ronald L. Buckwalter, Senior United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.

                                              1
       Chang Pin Lin appeals the judgement of conviction and sentence imposed

following his conviction for kidnaping, extortion, and related charges. For the reasons

that follow, we will affirm the judgment of conviction, but remand for resentencing

pursuant to the Supreme Court’s recent decision in United States v. Booker, 543 U.S. ___

, 125 S. Ct. 738 (2005).

                                             I.1

       In his brief, Lin challenges the district court’s suppression rulings, and the court’s

decision to admit evidence of uncharged “bad acts” under Fed. R. Evid. 404(b).

                    A. The Warrantless Search of Lin’s Apartment.

       Lin argues that the warrantless search of his living quarters was unconstitutional

and that evidence seized from there should therefore have been suppressed. The Fourth

Amendment generally prohibits warrantless searches. However, a search pursuant to a

valid consent is “reasonable” under the Fourth Amendment and therefore a warrant is not

required. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). Generally, landlords can

not consent to the warrantless search of their tenants’ quarters. Chapman v. United

States, 365 U.S. 610, 616-617 (1961). However, where a landlord and tenant share

common authority and control over a leased premises, the landlord has the authority to

consent to a search. United States v. Matlock, 415 U.S. 164, 171 (1974).




       1
        Inasmuch as we are writing primarily for the parties who are familiar with this
case, we need not discuss the factual or procedural background of this appeal.

                                              2
       Here, the district court concluded that Lin’s landlord had both actual and apparent

authority to consent to the search of Lin’s living area.2 In doing so, the court analyzed

Lin’s expectation of privacy in the context of his relationship with the landlord. and the

circumstances of the living space. (App. 13).3 We agree that the record supports the

district court’s conclusion that Lin and his landlord maintained a “family style” living

arrangement, and that Lin had shared access to Lin’s living quarters. App. 14-16.

Accordingly the district court did not err in concluding that the landlord had actual

authority to consent to the search.4

                            B. Motion to Suppress Statements

       Lin also argues that the district court erred in not suppressing custodial statements

he made to the Atlantic City Police. He argues that “the record fails to establish a

knowing and intelligent waiver of Miranda rights, given [his] inability to speak English . .

. .” Appellant’s Br. at 22.5 According to Lin, the court erred because it only analyzed


       2
           As used herein, “landlord” refers to Diep and Nguyen, jointly and severally.
       3
        Since the pages of the portion of the appendix attached to Appellant’s Brief are
not numbered sequentially with the “stand alone” appendix, we will cite the former as
“App.” and the latter as “Sup. App.”
       4
         We also agree that the record supports a finding that the landlord’s facility with
English was sufficient to allow him to consent to the search. The district court also
found that the landlord had apparent authority to consent and that Special Agent Kane
had a reasonable belief that the landlord possessed sufficient authority to consent. App.
20-21. Although the record readily supports that conclusion, we need not discuss it given
our conclusion that the government established actual authority.
       5
           See Miranda v. Arizona, 384 U.S. 486 (1966).

                                              3
whether he was coerced into giving a statement, and did not examine whether he

sufficiently understood the warnings to tender a knowing waiver under Miranda.

       The government has the burden of proving by a preponderance of the evidence that

a defendant was advised of his/her rights and voluntarily and knowingly waived them.

Lego v. Twomey, 404 U.S. 477 (1972). Here, the evidence established that Detective

Bennett had used the “Language Line” at least ten times before taking Lin’s statement.

Bennett logically concluded that Lin spoke Mandarin because Lin had communicated

with his victim - Feng - who spoke Mandarin. After assuring himself that Lin understood

the interpreter, Bennett read the Miranda warnings one by one from an interrogation form.

Lin indicated that he understood each of the rights at the conclusion of each translated

warning. Lin’s responses were appropriate to the questions Bennett asked, and nothing

about the interaction suggested that Lin was having trouble understanding. As the district

court concluded, “all indications to any objective observer were that the defendant

understood what Detective Bennett indicated to him, including specifically his Miranda

warnings.” App. 26. We agree.

       That conclusion is reinforced by the fact that Lin did terminate the questioning

shortly after Detective Bennett began. Although Lin argues this shows he did not initially

understand his rights, we think it shows that he did understand them and voluntarily

decided to exercise them shortly after the interrogation began. Although Lin did not raise

the issue of voluntariness in the district court, the court found that Lin’s waiver and his



                                              4
decision to speak was voluntary. Sup. App. 1054. Since he did not raise the issue in the

district court, we review it only for plain error. United States v. Sriyuth, 98 F.3d 739, 748-

49 (3d. Cir. 1996). See Fed. R. Crim. P. 52(b) (“[a] plain error that affects substantial

rights may be considered even though it was not brought to the court’s attention.”).

       In the district court, Lin claimed that “during the custodial interrogation, . . . he

was not properly advised of his constitutional rights.” Sup. App. 976. In ruling from the

bench, the district court noted that “[t]he defendant’s affidavit never implies that he didn’t

understand the detective who was conducting the interrogation through the interpreter.

The defendant also has not taken the position in his affidavit that his waiver of rights

occurred involuntarily.” App. 24. As noted above, the district nevertheless addressed the

voluntariness of Lin’s waiver.

       In United States v. Syme, 276 F.3d 131, 143 FN4 (2002), we stated:

              Under the plain error standard, a reviewing court may reverse
              the district court “only if [it] finds that (1) an error was
              committed; (2) the error was plain, that is, ‘clear’ and
              ‘obvious;’ and (3) the error ‘affected’ [the defendant’s]
              substantial rights. . . The burden is on the defendant to
              demonstrate that “plain error” occurred.


For reasons we have already discussed, we do not believe that the district court committed

any error in rejecting Lin’s claims under Miranda, let alone “plain error.”

       Lin also claims that the district court committed plain error by accepting a

stipulation that the Language Line interpretation was admissible non-hearsay. He asserts

                                               5
that it was inadmissible hearsay because there was no basis for the stipulation to the

accuracy and reliability of the translation. However, he has not satisfied his burden of

establishing plain error, and can not do so by now launching an attack on the interpreter’s

resumé. See Appellant’s Br. at 30-31.

       The district court found that the Language Line interpreter was competent and not

motivated by any bias or influence that would impact the accuracy of the translation. That

finding is consistent with the record and Detective Bennett’s observations of Lin’s

apparent understanding of the translation as explained above. We therefore affirm the

district court’s finding that the Language Line interpreter was competent and qualified

and that he had no motive to inaccurately translate defendant’s statements. See App. 40.


                                 C. Evidence of Conduct.

       The government also moved in limine to admit various pieces of evidence as either

outside the scope of the prohibition of Fed. R. Evid. 404(b) or admissible under that rule.

Specifically, the government moved to admit testimony regarding the February 2001 loan

from Lin to Feng, a series of IOUs found in Lin’s wallet, and evidence of a stabbing

incident unrelated to the instant charges.

       On appeal, Lin only challenges the district court’s decision to admit the three IOUs

documenting loans unrelated to the charged extortionate conduct. The district court ruled

the evidence admissible under Rule 404(b). The court concluded that it demonstrated that

Lin was actually in the business of loaning money, and that its probative value

                                             6
outweighed any prejudicial impact under Rule 403 because the transactions were not

identified as evidence of extortion. Lin claims this was an abuse of discretion that was

amplified by the district court’s failure to give a limiting instruction as promised.

       This claim is also reviewed for abuse of discretion. United States v. Lopez, 340 F.

3d 169, 171-72 (3d. Cir. 2003). Fed. R. Evid. 404(b) states in relevant part:

              Evidence of other crimes, . . . or acts is not admissible to
              prove the character of a person in order to show action in
              conformity therewith. It may, however, be admissible for
              other purposes, such as proof of motive, . . . intent, . . . plan,
              [or] knowledge . . . .


Evidence that is properly admitted under Rule 404(b) must therefore be relevant to a

proper purpose, and its probative value must outweigh the prejudice that is inherent in

this kind of evidence. United States v. Mastrangelo, 172 F.3d 288, 294 (3d. Cir. 1999).

       Although there are obvious dangers inherent in “bad acts” evidence admitted under

Rule 404(b),6 we do not believe the district court abused its discretion in admitting that

evidence here. The government was attempting to prove that Lin did not lend money to

Feng, his victim, out of a sense of personal friendship, but that Lin had a practice of

lending money. The district court concluded that the IOUs were probative of the

relationship between Feng and Lin, and that they buttressed Feng’s testimony. App. 36.



       6
        See United States v. Morley, 199 F.3d 129, 139 (3rd Cir. 1999) (noting “the
adversarial tendency of the proponents of such evidence to be less than candid about their
motives for offering evidence that suggests that a defendant's character is suspect ”)

                                               7
In addition, since the IOUs did not suggest that Lin was violent, the court reasoned that

they were not unduly prejudicial given the significance of their probative value.

       Lin quite correctly emphasizes the district court’s failure to give a limiting

instruction as promised when ruling the evidence admissible. Such an instruction should

be given when requested. However, although the court stated that it would give the

instruction, the defendant never requested that a limiting instruction be included in the

court’s charge. Before the charge was given, defense counsel told the court, “I read [the

charge] last night and I’m satisfied with the Charge, Judge.” Sup. App. 734. At the

conclusion of the charge, defense counsel told the judge that he had no objection to the

charge as given. Sup. App. 887. Accordingly, we must analyze the court’s omission for

plain error.

       At trial, Detective Bennett merely confirmed that he recognized the IOUs, and the

prosecutor then read the translation of each one. That translation included only the names

of the people who owed Lin money, the dates of the transactions, and the amounts

involved. Moreover, in his closing, the prosecutor did not refer to the IOUs or allude to

them in a way that would suggest an inference about Lin’s character. We therefore hold

that the court neither abused its discretion, nor committed plain error, in admitting that

evidence under Rule 404(b) without a limiting instruction.

                                             II.

       After Lin was sentenced, the Supreme Court decided United States v. Booker.

                                              8
Briefly stated, “[t]he Court held that 18 U.S.C. § 3553(b)(1), the provision of the

Sentencing Reform Act that makes the Guidelines mandatory, was [unconstitutional] and

that it must be severed and excised [from the Guidelines].” United States v. Ordaz, 398

F.3d 236, 239 (3d. Cir. 2005).

       Following that decision, Lin asked to be resentenced pursuant to Booker even

though he had not previously challenged the legality of the Sentencing Guidelines. Since

the district court viewed the Guidelines as mandatory when it decided upon an

appropriate sentencing range, we will follow the practice we have adopted in the wake of

Booker and remand for resentencing in accordance with that decision.


                                            III.

       For the reasons set forth above, the judgment of conviction and sentence will be

affirmed in part and reversed in part, the sentence will be vacated, and the matter will be

remanded for resentencing in accordance with this Opinion.




                                             9
