United States of America v. VUTHA KAO a/k/a/ “Tommy” Vutha Kao

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3852
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UNITED STATES OF AMERICA
v.
VUTHA KAO a/k/a/ “Tommy” Vutha Kao,
Appellant
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No. 08-4076
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UNITED STATES OF AMERICA
v.
JEREMY WARREN, a/k/a Doug,
Jeremy Warren, Appellant
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Crim. Nos. 2-06-cr-00690-005 & 2-06-cr-00690-006)
District Judge: J. Curtis Joyner
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Submitted Under Third Circuit L.A.R. 34.1(a)
December 15, 2009
Before: SLOVITER, JORDAN and WEIS, Circuit Judges.
(Opinion Filed January 14, 2010)
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OPINION
WEIS, Circuit Judge.
A Pennsylvania State trooper stopped a sport utility vehicle occupied by
defendant Vutha Kao, the driver, and defendant Jeremy Warren, the passenger, for
exceeding the speed limit. As he approached the defendants’ automobile, the trooper
observed inside several large opaque bags, an obscured box, empty cans of energy drink,
and multiple cell phones. He obtained a driver’s license from a nervous Kao, who
claimed not to possess the SUV’s registration and insurance information because the SUV
had been rented by Warren’s girlfriend, and then secured Warren’s identification.
The trooper returned to his patrol car, discovered that Warren had given
him a fraudulent identification card, and went back to the SUV to issue Kao a warning.
After receiving the admonition, Kao was told that he “was free to go[,]” but, prior to
leaving, agreed to answer some additional questions. The questioning complete, the
trooper noticed the muzzle of a firearm protruding from a compartment underneath
Warren’s seat.
Both defendants were removed from the SUV and handcuffed. The trooper
subsequently obtained and executed a search warrant for the vehicle, recovering the
firearm, ammunition, and a box containing a large amount of pills.
Defendants were tried jointly, and a jury convicted them of conspiracy to
distribute approximately 60,000 MDMA (“ecstacy”) pills in violation of 21 U.S.C. § 846,

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possession of around 45,000 ecstacy pills with the intent to distribute them in
contravention of 21 U.S.C. § 841, possession of a firearm by a convicted felon in breach
of 18 U.S.C. § 922(g), and possession of a “short-barreled rifle” in furtherance of a drug
trafficking offense in violation of 18 U.S.C. § 924(c). The District Court sentenced each
defendant to, among other things, 360 months imprisonment and supervised release for
five years.
Defendants have appealed, and their cases have been consolidated. They
first contend that the District Court erred in denying their motions to suppress. According
to defendants, the legitimate purpose for the traffic stop ended when the trooper issued
Kao a warning, and the trooper’s subsequent inquiries and actions, which extended the
duration of the encounter, constituted an unlawful seizure under the Fourth Amendment.
We disagree. The inquiries were proper. See Arizona v. Johnson, 129 S.Ct.
781, 788 (2009) (“[a]n officer’s inquiries into matters unrelated to the justification for the
traffic stop . . . do not convert the encounter into something other than a lawful seizure, so
long as those inquiries do not measurably extend the duration of the stop”). In addition,
the trooper’s observations and discovery of Warren’s false identification justified
detaining defendants and their vehicle until the trooper observed the firearm. See United
States v. Givan, 320 F.3d 452, 458 (3d Cir. 2003) (after a lawful traffic stop, “an officer
who develops a reasonable, articulable suspicion of criminal activity may expand the
scope of an inquiry beyond the reason for the stop and detain the vehicle and its
occupants for further investigation”). The District Court did not err in denying the

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defendants’ motions to suppress.
Defendants next argue that the District Court should not have admitted
evidence from cooperating witnesses that they had, on a previous occasion, traveled to
North Carolina to collect money defendants owed them from a prior consignment of
ecstacy pills. The District Court indicated that the cooperating witnesses’ testimony was
evidence of a common scheme or plan. See Fed. R. Evid. 404(b) (evidence of prior
crimes admissible to show, among other things, “motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident”). It also was evidence that
defendants knew what they were carrying in the SUV on the day they were arrested. We
find no abuse of discretion in the District Court’s admission of that evidence. See Givan,
320 F.3d at 463.
Defendants lastly assert that they were minor participants in a large-scale
drug trafficking operation and should have been given less severe sentences. The
evidence, however, was that there were approximately 45,000 ecstacy pills in the van,
defendants knew that a large shipment was involved, and they were not simply one-time,
outside “mules.” In fact, both defendants were career criminals. The District Court
weighed all of the evidence and was in a position to evaluate the defendants’ complicity.
We find no clear error in the sentencing judge’s decision to deny minor participation
status to the defendants pursuant to U.S.S.G. § 3B1.2. See United States v. Carr, 25 F.3d
1194, 1207 (3d Cir. 1994) (where “defendant takes issue with [a] district court’s denial of
a reduction for being a minimal or minor participant which was based primarily on factual

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determinations, we review only for clear error”).
Accordingly, the judgments of the District Court will be affirmed.

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