                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                 UNITED STATES COURT OF APPEALS                           DEC 19 2003

                                 TENTH CIRCUIT                        PATRICK FISHER
                                                                               Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 03-6028
 v.                                                 (D.C. No. 02-CR-36-F)
                                                       (W. Dist. Okla.)
 TONY DUONG,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before TACHA, Chief Judge, SEYMOUR, Circuit Judge, and BRORBY, Senior
Circuit Judge.



      Mr. Tony Duong appeals his convictions for distributing pseudoephedrine

(PSE) and money laundering. He contends there was insufficient evidence to

sustain his convictions, and that the district court erred by denying his motion to

disclose the identity of a confidential informant and by admitting into evidence

his tax returns and financial records. We affirm.

      *
       This order and judgment is not binding precedent, except under the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.
      The government was required to prove that Mr. Duong “possesse[d] or

distribute[d] a listed chemical knowing, or having reasonable cause to believe,

that the listed chemical [would] be used to manufacture a controlled substance.”

21 U.S.C. § 841(c)(2) (emphasis added). We review the sufficiency of the

evidence de novo. United States v. Nguyen, 155 F.3d 1219, 1223 (10th Cir.

1998). After analyzing the evidence and inferences therefrom in a light most

favorable to the government, we must decide whether a reasonable jury could find

beyond a reasonable doubt that Mr. Duong was guilty. Id.

      After thoroughly reviewing the record and Mr. Duong’s arguments, we

conclude the government presented ample, albeit circumstantial, evidence from

which the jury could conclude that Mr. Duong at least had reasonable cause to

believe the PSE he possessed and distributed would be used to manufacture

methamphetamine, an illegal use about which he had been specifically warned by

the DEA when he received his license to sell it. Seven owners of convenience

stores and one pastor testified that receipts for sales of PSE to their addresses

were false or fabricated. Police found approximately 15,000 empty PSE bottles

and one case label at a dump site. The lot numbers on the bottles and label

matched the lot numbers on a sales receipt made out to Mr. Duong’s company.

The government presented evidence that Mr. Duong deposited unusually large

sums of money after he was licensed to sell PSE, a particularly relevant fact


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because his only other sales were cigarettes and candy. Moreover, an Internal

Revenue Service agent testified that roughly $500,000 of bank deposits from Mr.

Duong’s company did not appear in Mr. Duong’s 1999 tax returns. The jury was

entitled to rely on all this evidence and reject Mr. Duong’s argument that Mr.

Tam Do was the wrongdoer and Mr. Duong was merely a “patsy.” Aplee. Supp.

App. at 411. As the district court noted, the “astronomical” volume of PSE that

moved through Mr. Duong’s company, even by his own reckoning of the amount,

lends credence to the jury’s finding that Mr. Duong had to know the PSE would

be used illegally. Id. at 471.

      Mr. Duong was also charged with laundering money throughout the month

of May 2000. The jury acquitted him of the counts from dates prior to May 11,

but convicted him of the counts corresponding to deposits after that date.

Contrary to Mr. Duong’s argument, this result does not demand reversal. A

reasonable jury could doubt that Mr. Duong knew the money going through his

account in early May came from illegally sold PSE and still be convinced beyond

a reasonable doubt that Mr. Duong knew by the time he deposited money later in

the month that it had come from illegal drug transactions. We conclude a

reasonable jury could find Mr. Duong guilty beyond a reasonable doubt of money

laundering.

      We review the district court’s denial of Mr. Duong’s motion to disclose the


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identity of a confidential informant for an abuse of discretion. United States v.

Gordon, 173 F.3d 761, 767 (10th Cir. 1999); United States v. Sinclair, 109 F.3d

1527, 1538 (10th Cir. 1997). Mr. Duong bore the burden of showing the court the

informant’s testimony was relevant or essential to the fair determination of his

case. Gordon, 173 F.3d at 767. In his motion, Mr. Duong vaguely asserted the

confidential informant had exculpatory information. See Aplt. App. at 33-34.

The district court considered the motion, conducted a hearing on the issue, and

then took the matter under advisement in order to allow Mr. Duong time to file a

supplemental submission of the specific materials he said he was relying on to

support his motion. Id. at 58. Mr. Duong did not file the supplemental materials,

and the court then found that Mr. Duong had failed to demonstrate the testimony

of the confidential informant was relevant or essential to his case, concluding the

value of the confidential informant’s testimony was speculative. Id. at 59. The

district court clearly acted within its discretion in denying Mr. Duong’s motion

when he failed to present sufficient detail explaining why the confidential

informant’s testimony was necessary to his defense. See Gordon, 173 F.3d at 768

(refusing to require disclosure of informant’s identity on the basis of

“speculation”).

      Moreover, Mr. Duong knew from DEA reports disclosed to him that the

informant was an employee of Mr. Duong’s company, and it appears from the


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record that Mr. Duong probably knew the informant was his employee, Mr. Do.

Thus, at trial, defense counsel’s strategy was to convince the jury that Mr. Do was

the guilty party rather than Mr. Duong, pointing to Mr. Do’s guilty plea in

Louisiana. See Smith v. United States, 273 F.2d 462, 465-66 (10th Cir. 1959) (no

abuse of discretion to deny disclosure of confidential informant where evidence

showed defendant knew who informant was). 1

      Mr. Duong also contends the district court erred by admitting his tax

returns into evidence, claiming they were inadmissible to prove his character

under Federal Rule of Evidence 404(b). Because Mr. Duong did not object to the

admission of the evidence at trial, we review only for plain error. United States v.

Jones, 44 F.3d 860, 875 (10th Cir. 1995). No such error occurred here. The

government did not offer the tax returns to show Mr. Duong’s character. Instead,

it properly offered the evidence of Mr. Duong’s underreporting of his taxes to

show his knowledge that the money he was receiving came from unlawful

activity. See United States v. Briscoe, 896 F.2d 1476, 1500 (7th Cir. 1990)

(evidence of failure to file tax returns admissible under Rule 404(b) to show

knowledge and intent concerning defendant’s illicit narcotics trafficking

activities); F ED . R. E VID . 404(b) (other wrongful acts are admissible to show



      1
        We deny as moot the government’s motion to further supplement the
record on this point.

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knowledge).

      Finally, Mr. Duong posits that the district court should not have admitted

the financial documents created by his tax preparer, Ms. Jenny Shaw. This

argument also fails. The court admitted the documents not as character evidence,

but to impeach Ms. Shaw on cross-examination after she testified that she had

prepared tax returns containing information substantially different from the

information in the documents. Aplt. App. at 228-29. Moreover, Ms. Shaw

testified that Mr. Duong was an honest person, and the exhibits were admitted to

challenge that assertion. Id. at 223.

      In sum, we hold the evidence against Mr. Duong was sufficient to sustain

his conviction and the district court did not err either by refusing to disclose the

confidential informant’s identity, or by admitting into evidence Mr. Duong’s tax

returns and financial documents. For the foregoing reasons, we AFFIRM.

                                        ENTERED FOR THE COURT


                                        Stephanie K. Seymour
                                        Circuit Judge




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