United States of America v. Tu Anh Nguyen

United States Court of Appeals
For the Eighth Circuit
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No. 21-2993
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Tu Anh Nguyen
lllllllllllllllllllllDefendant - Appellant
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No. 21-2994
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Hieu Minh Le
lllllllllllllllllllllDefendant - Appellant
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No. 21-2995
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United States of America
lllllllllllllllllllllPlaintiff - Appellee

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v.
Sanh Binh Tran
lllllllllllllllllllllDefendant - Appellant
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Appeals from United States District Court
for the Southern District of Iowa - Western
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Submitted: April 13, 2022
Filed: February 8, 2023
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Before COLLOTON, MELLOY, and GRUENDER, Circuit Judges.
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MELLOY, Circuit Judge.
A jury convicted Defendants Tu Anh Nguyen, Hieu Minh Le, and Sanh Binh
Tran of conspiring to distribute 100 kilograms or more of marijuana. 21 U.S.C.
§§ 841(a)(1) & (b)(1), 846. The jury also convicted Tran and Nguyen of possessing
100 kilograms or more of marijuana with intent to distribute, 21 U.S.C. § 841(a)(1)
& (b)(1), and possessing a firearm in furtherance of a drug trafficking crime, 18
U.S.C. § 924(c)(1)(A)(i). All three defendants appeal the denial of a motion to
suppress and challenge the sufficiency of the evidence. They concede officers
properly stopped their vehicle for commercial inspection but argue the officers
subsequently exceeded the permissible scope of the inspection. In addition, Le
appeals his sentence. Because officers developed probable cause before their actions
exceeded the permissible scope of a commercial inspection, and because the other
arguments lack merit, we affirm the judgments of the district court.1
1The Honorable John A. Jarvey, then Chief Judge for the United States District
Court for the Southern District of Iowa, now retired.
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I.
The present convictions were supported in part by evidence discovered during
three separate traffic stops: a November 2018 stop in Mississippi, a December 2018
stop in Iowa, and a March 2019 stop in Nebraska. The Iowa stop revealed the bulk
of the evidence in these cases, including evidence supporting Tran and Nguyen’s drug
possession and firearm convictions. The Iowa stop also serves as the subject of the
suppression arguments. The other two stops provided additional evidence of the
conspiracy, including the defendants’ roles in, and the scope of, the conspiracy.
In Mississippi, Le was driving an SUV with Nguyen as a passenger when an
officer stopped them for speeding. No defendant challenges this stop or a resulting
search. The search revealed $108,000 in currency in two sealed boxes and third box
containing a large quantity of THC cartridges. Neither Le nor Nguyen claimed
ownership of the currency.
In Nebraska, Le was driving a pickup, again with Nguyen as a passenger, when
an officer stopped them for following another vehicle too closely. The pickup was
towing a trailer with Washington plates. Again, no defendant challenges this stop or
a resulting search. The search revealed a THC cartridge, $15,000 bundled with
rubber bands in Le’s suitcase, and 20–30 empty boxes.
In Iowa, Tran was driving a pickup with Nguyen as a passenger. The pickup
had a tinted windshield and windows and was pulling an enclosed trailer with
Washington plates, a California commercial vehicle sticker, but no USDOT number.
An experienced Iowa Highway Patrol Trooper trained and assigned to perform
commercial vehicle inspections noticed these features and stopped the vehicle for
commercial inspection.
Upon approaching Tran, the officer quickly confirmed that the vehicle was a
commercial vehicle subject to inspection. Tran stated that he was working for hire
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on behalf of a company named “Extra Elbow Grease,” and the officer concluded Tran
was operating commercially. Further, the vehicle clearly exceeded an applicable
10,001 pound gross-vehicle-weight threshold. See 49 C.F.R. § 350.105(1). The
officer commenced a “Level II” inspection. See id. (incorporating by reference the
inspection standards of the Commercial Vehicle Safety Alliance).2 Such an
2“The inspection criteria are developed by [Federal Motor Carrier Safety
Administration of the United States Department of Transportation] in conjunction
with the Commercial Vehicle Safety Alliance (CVSA), which is an association of
States, Canadian Provinces, and Mexico whose members agree to adopt these
standards for inspecting [commercial motor vehicles] in their jurisdiction.” 49 C.F.R.
§ 350.105. The CVSA describes a Level II inspection:
An examination that includes each of the items specified under the
North American Standard Level II Walk-Around Driver/Vehicle
Inspection Procedure. As a minimum, Level II Inspections must include
examination of: driver’s license; Medical Examiner’s Certificate and
Skill Performance Evaluation (SPE) Certificate (if applicable); alcohol
and drugs; driver’s record of duty status as required; hours of service;
seat belt; vehicle inspection report(s) (if applicable); brake systems;
cargo securement; coupling devices; driveline/driveshaft; exhaust
systems; frames; fuel systems; lighting devices (headlamps, tail lamps,
stop lamps, turn signals and lamps/flags on projecting loads); steering
mechanisms; suspensions; tires; van and open-top trailer bodies; wheels,
rims and hubs; windshield wipers; buses, motorcoaches, passenger vans
or other passenger-carrying vehicles – emergency exits, electrical cables
and systems in engine and battery compartments, seating, and HM/DG
requirements, as applicable. HM/DG required inspection items will only
be inspected by certified HM/DG and cargo tank inspectors, as
applicable. It is contemplated that the walk-around driver/vehicle
inspection will include only those items that can be inspected without
physically getting under the vehicle.
Commercial Vehicle Safety Alliance, All Inspection Levels, Level II Walk–Around
Driver/Vehicle Inspection (available at https://www.cvsa.org/inspections/all-
inspection-levels/).
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inspection extends generally to all paperwork and safety equipment, including load
securement, that can be observed without physically going beneath the vehicle.
The officer quickly determined that very little about the situation seemed
normal. Tran (as the driver) and the truck and trailer combination (as the vehicle)
were out of compliance with regulations that made them subject to being placed
temporarily out of service. First, Tran did not have a log book. This alone placed
Tran out of service as a driver. Tran was able to provide bills of lading. The bills of
lading, however, were irregular in that they did not contain full information of a type
normally included with bills of lading such as details as to what was to be picked up
and delivered (rather than vague listings) and precise locations and instructions as to
where items were to be picked up and delivered. And the information that was
provided on the bills of lading did not match Tran’s description of his destination.
Further, Tran’s explanation of his destination did not make sense to the officer as a
matter of commercial operations. Finally, the officer was unable to confirm federal
licensing for the firm Tran identified or for the vehicle.
On the vehicle exterior, the officer noticed that the trailer’s break-away braking
connection was incorrectly attached rendering it non-functional. This violation made
the vehicle subject to being placed out of service pending correction. The officer also
confirmed the window tinting exceeded permissible limits for commercial vehicle
windows.
While outside the trailer, the officer noticed the smell of bleach. Tran
confirmed that he too smelled bleach but denied hauling bleach or other hazardous
substances. The officer then asked to see safety equipment. Tran opened the
enclosed trailer to show the officer a fire extinguisher and safety cones. The officer
also checked load securement and discovered a disheveled load without reasonable
securement. At this time the officer’s suspicion grew again because items were not
being treated in a manner consistent with the insured value as would be expected of
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a commercial shipper. For example the bill of lading listed vases with substantial
insurance values, but the officer observed a vase in an unsecured and open box along
with boxes that were tipped over and strewn about.
Other observations during the commercial vehicle inspection increased the
officer’s suspicion that criminal activity was afoot. The officer noticed three two-way
radios in the cab of the truck. He viewed this as suspicious because such radios are
usually sold in pairs and are often used by a trailing or lead vehicle when illegal
contraband is being transported. In addition, the officer viewed the entire scene as
a misplaced attempt to appear in compliance with commercial trucking regulations
whereas Tran seemed largely unaware of requirements. In light of the smell of bleach
and the other irregularities, the officer called for assistance from a drug detection dog.
A K9 officer quickly responded and conducted an open air sweep of the vehicle
exterior during the first officer’s continued commercial inspection and within the
normal time required to conduct a Level II commercial inspection. On a first pass,
the dog did not indicate the detection of drugs. On a second pass, the dog alerted to
the presence of drugs without focus on a particular spot. The K9 officer conducted
a third pass and the dog indicated specifically towards the trailer door. Given the
earlier suspicion and the canine indications, officers conducted a warrantless search
of the contents of the trailer and truck. They found almost five hundred pounds of
marijuana in sealed boxes in the trailer. Officers also discovered an unloaded
handgun and ammunition in the truck. Officers eventually discovered that the truck
and trailer belonged to Le, Le was the registered licensee for Extra Elbow Grease, and
all three defendants were listed on the insurance for the vehicle. Nguyen stated that
Le directed their activities and communicated with them during their travel.
Eventually all three defendants moved to suppress evidence discovered during
the Iowa stop arguing the officers exceeded the permissible scope of a Level II
commercial inspection. The defendants did not challenge the initial stop or
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commencement of the inspection. Rather, they challenged the subsequent execution
of the inspection, dog sniff, and warrantless search of closed boxes in the trailer. The
district court denied the motion, finding the officers credible and finding the officers
developed probable cause through the facts discovered within the proper commercial
inspection and the contemporaneous open-air dog sniff.
A jury convicted Tran and Nguyen of the drug and firearm possession counts
and all three defendants of a drug conspiracy count. The district court sentenced Tran
and Nguyen each to 60 months’ imprisonment on the conspiracy and drug possession
counts, to run concurrently, and 60 months’ imprisonment on the firearm count, to be
served consecutively. The district court sentenced Le to 120 months’ imprisonment
on the conspiracy count based in part on a guidelines enhancement for his leadership
role.
II.
“We review the denial of a suppression motion alleging an unreasonable search
de novo [and] the district court’s underlying findings of historical fact for clear error.”
United States v. Crutchfield, 979 F.3d 614, 616 (8th Cir. 2020). The Supreme Court
has held that a warrantless search in the context of a closely regulated industry may
be constitutional if, in part, the rules governing the search offer an adequate substitute
for the protections of the Fourth Amendment’s warrant requirement. See New York
v. Burger, 482 U.S. 691, 702–03 (1987). Interstate commercial trucking qualifies as
a closely regulated industry for which a variety of regulatory inspections may be
performed without a warrant. See, e.g., United States v. Knight, 306 F.3d 534, 535
(8th Cir. 2002). The rules for such inspections limit officer discretion and satisfy the
warrant substitute protections identified in Burger. Id. (“We agree with the district
court’s conclusion that the North American Standard Inspection Program, see 49
C.F.R. § 350.105, which was in force in Iowa, and pursuant to which the inspection
here was commenced, provides notice to truck drivers of the possibility of a roadside
inspection and limits officer discretion.”).
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To the extent the defendants argue the first officer exceeded the permissible
scope of a regulatory inspection, the defendants present a factual challenge. The
district court did not clearly err in finding the inspection proper. The trooper
conducting the inspection had extensive training and experience and testified at the
suppression hearing. Both he and a training inspector described the purpose and
parameters of such a search. The district court properly concluded that asking a
driver for log books, bills of lading, and safety equipment; inquiring as to ownership,
registration, and insurance; inspecting a vehicle’s exterior; and looking in a trailer for
safety equipment or to inspect cargo securement are all proper aspects of a Level II
inspection.
An open air dog sniff that does not prolong the initial purpose of a stop is
permissible. See Rodriguez v. United States, 575 U.S. 348, 355 (2015). Here, the
dog sniff occurred while the inspection was taking place and well-within the
minimum time generally required to conduct a Level II search. To the extent the
defendants challenge the execution of the dog search, they again present a factual
challenge. The evidence showed certification and extensive training for the dog and
handler more than sufficient to establish reliability. The district court did not commit
clear error in finding the facts as a whole, including reliance on the dog, provided
probable cause.
The defendants focus on the number of passes required for the dog’s final
indication. But this narrow focus does little to detract from the reliability of the
indication or the finding of probable cause as a whole. See Florida v. Harris, 568
U.S. 237, 246–47 (2013) (“evidence of a dog’s satisfactory performance in a
certification or training program can itself provide sufficient reason to trust his
alert”). Although defendants may challenge the dog’s reliability on any basis, “[t]he
question—similar to every inquiry into probable cause—is whether all the facts
surrounding a dog’s alert, viewed through the lens of common sense, would make a
reasonably prudent person think that a search would reveal contraband or evidence
of a crime.” Id. at 248. Armed with the suspicion developed in the course of the
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regulatory inspection and with the dog’s indication of drugs, officers did not conduct
an unreasonable search when they entered the trailer and look in sealed boxes.
Regarding the sufficiency of the evidence, most arguments fall away given our
affirmance on the suppression issue. To the extent the defendants characterize the
evidence as insufficient to support a conspiracy conviction, we find no error. Le’s
role as owner, the defendants’ statements as to Le’s communications during travel,
and the repeated stops in multiple states with evidence of drugs or drug proceeds
more than suffice to show the defendants were aware of the conspiracy and its
purpose and knowingly joined in the conspiracy. See United States v. Shavers, 955
F.3d 685, 691 (8th Cir. 2020) (“Because conspiracies are often secretive, their
existence may be proven through circumstantial evidence alone, and evidence of an
agreement to join the conspiracy may be inferred from the facts.” (citations omitted)).
As to the firearm count, officers discovered the gun in the back seat of the truck
where Tran and Nguyen could access it. A jury may rely on the possession of a
firearm along with distribution quantities of drugs to support an inference that the
firearm is there to protect drugs and proceeds and is thus possessed “in furtherance”
of a drug trafficking offense. See, e.g., United States v. Vang, 3 F.4th 1064, 1067
(8th Cir. 2021).
Finally, to as to Le’s sentencing challenge, the district court did not clearly err
in finding him to be a leader and applying an enhancement pursuant to U.S.S.G.
§ 3B1.1. The resulting within-range sentence is presumptively reasonable on appeal,
and Le presents no persuasive arguments to suggest this is the “rare case” where such
a presumption is rebutted. United States v. Jones, 49 F.4th 1144, 1146 (8th Cir.
2022).
III.
We affirm the judgments of the district court.
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