                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-4518


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

KHOA DANG HOANG,

                    Defendant - Appellant.



Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. T. S. Ellis, III, Senior District Judge. (1:16-cr-00193-TSE-2)


Submitted: May 31, 2018                                           Decided: June 8, 2018


Before GREGORY, Chief Judge, and MOTZ and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Phoenix S. Ayotte, HARRIS CARMICHAEL AND ELLIS PLLC, Alexandria, Virginia,
for Appellant. Tracy Doherty-McCormick, Acting United States Attorney, James L.
Trump, Carina A. Cuellar, Assistant United States Attorneys, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Khoa Dang Hoang (Khoa) was convicted after a jury trial of stalking, in violation

of 18 U.S.C.A. §§ 2261A(1), 2261(b)(3) (West 2015), and conspiracy to commit stalking,

in violation of 18 U.S.C. §§ 371, 2261A(1) (2012), and was sentenced to concurrent

terms of 60 months’ imprisonment. On appeal, Khoa challenges the district court’s

denial of his motion to suppress his statements made during a post-arrest interview and its

admission of evidence at trial. We affirm.

       “When considering a district court’s denial of a motion to suppress, we review the

court’s factual findings for clear error and all legal conclusions de novo.”

United States v. Stover, 808 F.3d 991, 994 (4th Cir. 2015). Because the Government

prevailed on Khoa’s suppression motion, we construe the evidence in the light most

favorable to it. Id.

       The Supreme Court’s decision in Miranda v. Arizona, 384 U.S. 436 (1966),

“adopted prophylactic procedural rules that must be followed during custodial

interrogations” to protect a suspect’s rights against self-incrimination. United States v.

Parker, 262 F.3d 415, 419 (4th Cir. 2001). The parties do not dispute that Khoa was

subject to a custodial interrogation during the interview, and, as a result, his statements

had to be suppressed unless he was properly advised of his rights under Miranda, and

knowingly, intelligently, and voluntarily waived those rights. United States v. Holmes,

670 F.3d 586, 591 (4th Cir. 2012). Statements made after a valid waiver of Miranda

rights also are subject to suppression if the defendant made them involuntarily because of



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the conduct of the interviewing officer. United States v. Cristobal, 293 F.3d 134, 140,

142 (4th Cir. 2002).

      There are “two distinct dimensions” to the inquiry into whether an individual

validly waived his Miranda rights. Id. at 139. First, the relinquishment “must have been

voluntary in the sense that it was the product of free and deliberate choice rather than

intimidation, coercion, or deception.” Id. (internal quotation marks omitted). Second, in

addition to being voluntary, “the waiver must have been made with a full awareness of

both the nature of the right being abandoned and the consequences of the decision to

abandon it.” Id. at 140 (internal quotation marks omitted). We assess whether a Miranda

waiver is voluntary, knowing, and intelligent by examining the totality of the

circumstances.    Id.   “Only if the totality of the circumstances surrounding the

interrogation reveal both an uncoerced choice and the requisite level of comprehension

may a court properly conclude that the Miranda rights have been waived.” Id. (internal

quotation marks omitted). In the district court, Khoa challenged his waiver of Miranda

rights as both involuntary and unknowing and unintelligent. On appeal, however, he

argues that the waiver was unknowing and unintelligent. * Relevant circumstances for

consideration are the defendant’s intelligence, education, age, familiarity with the



      *
         We deem abandoned by Khoa any challenge on appeal to the waiver of his
Miranda rights as involuntary. See Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d
562, 568 n.7 (4th Cir. 2015) (finding abandoned on appeal claims discussed only “in
passing” in the argument section of appellant’s opening brief, contrary to the requirement
of Fed. R. App. P. 28(a)(8)(A)).


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criminal justice system and the proximity of the waiver to the giving of Miranda

warnings. Correll v. Thompson, 63 F.3d 1279, 1288 (4th Cir. 1995).

       We conclude after review of the record and the parties’ briefs that Khoa fails to

establish reversible error in the district court’s conclusion that his waiver was knowing

and intelligent.   Khoa’s appellate assertions claiming a lack of sophistication and

familiarity with the American court system and the presence of a cultural

misunderstanding are unexplained and made in conclusory fashion. Further, the record

evidence viewed in the light most favorable to the Government reflects that, even though

Khoa had never been arrested before the August 5 interview, the interviewing officer

explained Khoa’s rights under Miranda in a language he understood, Khoa understood

those rights, and he agreed to answer questions without an attorney present after this

review.

       Khoa also claims that the interviewing officer’s questioning tactics and references

to matters of deportation, family, and a potential prison sentence during the interview

after he waived his Miranda rights rendered his statements involuntary. A statement

qualifies as involuntary under the Due Process Clause if the statement was “extracted by

any sort of threats or violence, or obtained by any direct or implied promises, however

slight, or by the exertion of any improper influence.” United States v. Braxton, 112 F.3d

777, 780 (4th Cir. 1997) (internal quotation marks and alterations omitted). Although

“[c]oercive police activity is a necessary finding for a confession . . . to be considered

involuntary,” United States v. Giddins, 858 F.3d 870, 881 (4th Cir. 2017), the “mere

existence of threats, violence, implied promises, improper influence, or other coercive

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police activity” does not “automatically” render a statement involuntary.        Braxton,

112 F.3d at 780. Instead, “[t]he proper inquiry is whether the defendant’s will has been

overborne or his capacity for self-determination critically impaired.”       Id. (internal

quotation marks omitted).      This query focuses on the totality of the circumstances

surrounding the interview, including the “characteristics of the defendant, the setting of

the interview, and the details of the [questioning].” Id. at 781 (internal quotation marks

omitted).

       Khoa, we conclude, fails to establish reversible error in the district court’s

conclusion that suppression of his statements was not required as a result of the

interviewing officer’s questioning and references. Khoa complains that the officer’s

questions were overly suggestive but fails to explain how his will was overborne or his

capacity for self-determination impaired by such questions. We also reject as inapposite

Khoa’s reliance on United States v. Preston, 751 F.3d 1008 (4th Cir. 2014), in support of

this claim.   Khoa further proffers only the conclusory assertion that his will was

overborne by the officer’s references during the interview to matters of deportation,

family, and a potential prison sentence, and we therefore reject it.

       Khoa also challenges several evidentiary rulings by the district court. We review a

district court’s evidentiary rulings for abuse of discretion. United States v. Hassan,

742 F.3d 104, 130 (4th Cir. 2014).         In reviewing an evidentiary ruling under this

standard, “we will only overturn a ruling that is arbitrary and irrational.” Id. (internal

quotation marks and alteration omitted).



                                              5
       Khoa argues that the district court erred under Fed. R. Evid. 402 and 403 in

admitting into evidence pictures of his co-defendant holding a gun described by the

victim as similar to one she saw him possess. We conclude, however, that this evidence

easily satisfied the “relatively low” threshold, United States v. Zayyad, 741 F.3d 452, 459

(4th Cir. 2014), for relevant evidence, see 18 U.S.C.A. § 2261A; United States v. Wills,

346 F.3d 476, 493-94 (4th Cir. 2003). We also reject as without merit Khoa’s contention

that admission of this evidence violated Rule 403. He does not point to anything in the

record tending to support the existence of a genuine risk the jury’s emotions would be

excited to behavior that was irrational or that this risk was in any way disproportionate to

the probative value of the pictures. See Hassan, 742 F.3d at 132 (“[R]elevant evidence

should only be excluded under Rule 403 when there is a genuine risk that the emotions of

a jury will be excited to irrational behavior, and this risk is disproportionate to the

probative value of the offered evidence.” (internal quotation marks omitted)).

       Khoa also argues that the district court erred in admitting into evidence messages

from his co-defendant to a third party about the victim. We disagree. The evidence was

properly admitted under Fed. R. Evid. 803(3) as evidence of the co-defendant’s

then-existing state of mind and was relevant to establishing the co-defendant’s motive for

committing the stalking offenses with Khoa. We reject as inapposite Khoa’s reliance on

United States v. Spring, 305 F.3d 276 (4th Cir. 2002), to support this claim and further

reject as without merit his conclusory contention that the messages were subject to

exclusion under Rule 403 as prejudicial.



                                             6
       Finally, Khoa argues that the district court erred under Rule 403 in admitting into

evidence nude pictures his co-defendant had taken of the victim and posted on a social

media platform. We likewise reject this contention. Khoa points to nothing in the record

tending to support the existence of a genuine risk the jury’s emotions would be excited to

behavior that was irrational or that this risk was in any way disproportionate to the

probative value of this evidence.

       Accordingly, we affirm the criminal judgment. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before

this court and argument would not aid the decisional process.



                                                                             AFFIRMED




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