Lance Milliman v. Betty Jean Lindemoen

1The Honorable Lawrence L. Piersol, Chief Judge, United States District Court
for the District of South Dakota, adopting the report and recommendation of the
Honorable John E. Simko, United States Magistrate Judge for the District of South
Dakota.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-3375
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United States of America, *
*
Appellee, * Appeal from the United
* States District Court for
v. * the District of South Dakota.
*
Sitha Savatdy, *
*
Appellant. *
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Submitted: April 17, 2006
Filed: July 10, 2006
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Before WOLLMAN, BEAM, and BENTON, Circuit Judges.
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BEAM, Circuit Judge.
In February 2004, Sitha Savatdy, a foreign national whose primary language is
Laotian, and three others, were charged in a one-count indictment with conspiracy to
distribute methamphetamine. Three were tried together. The fourth, Juan Valadez,
was in custody in another district at the time of trial. After the district court 1 denied
Savatdy's motion to suppress, and admitted statements made by Savatdy while he was

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in police custody, a jury found Savatdy guilty of conspiracy to distribute 500 grams
or more of methamphetamine. During the trial, Savatdy moved for judgment of
acquittal and the court took his motion under advisement specifically as to the
evidence supporting the amount of drugs attributable to Savatdy. One year later, the
district court denied that motion.
Savatdy appeals from the jury's verdict, the district court's order denying his
motion for judgment of acquittal, and its denial of his motion to suppress statements.
Savatdy presents two issues on appeal: (1) whether there was sufficient evidence to
support the conspiracy conviction, and (2) whether the district court erred in refusing
to suppress post-Miranda statements made by Savatdy. We affirm.
I. BACKGROUND
We state the facts in the light most favorable to the jury verdict. United States
v. Selwyn, 398 F.3d 1064, 1065 (8th Cir. 2005). Savatdy was charged by indictment
for participating in a drug conspiracy with Juan Valadez, Det Khaoone and
Chitprasong Amphavannasouk from February 2003 to July 8, 2003. Another man,
Sirich Hochingnavong ("Ed") was a fifth alleged conspirator, and the only one to
testify at trial. Ed had already been convicted and sentenced to serve 168 months'
imprisonment for conspiracy to possess with intent to distribute methamphetamine.
The indictment in this case was the product of a lengthy investigation into
methamphetamine distribution in and around Sioux Falls. Although there was
testimony concerning government surveillance of and controlled buys from the others
indicted, as well as information from other government sources on his co-defendants,
there was no evidence of this sort on Savatdy. There was evidence connecting Ed to
two of Savatdy's co-defendants, and Savatdy's primary, if not only, connection to his
co-defendants was through Ed.

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The evidence against Savatdy included (1) testimony that Ed lived with Savatdy
for approximately eight months in 2001, (2) Ed's testimony that he bought
methamphetamine from Savatdy on one occasion between January 2003 and July
2003, (3) Ed's testimony that he sold methamphetamine to Savatdy, (4) proof that Ed
and Savatdy had over 150 phone conversations during the time period at issue, (5)
Savatdy admitting to making three trips from Sioux Falls to Sioux City to obtain
methamphetamine from co-defendant Valadez, obtaining one ounce on each of the
first two trips and 1/4 pound on the third, and (6) Savatdy taking Ed with him on one
of the trips to Sioux City. The evidence further established that Ed sold
methamphetamine to Savatdy's co-defendants.
After his arrest, and once at the Sioux Falls Police Department, Savatdy was led
into an interview room in handcuffs, which were removed when he sat down. Savatdy
was clearly in custody, but the parties dispute whether Savatdy waived his Miranda
rights prior to interrogation. The subsequent interrogation was videotaped. Agent
Hummel began the interview by asking routine questions such as Savatdy's name, date
of birth, telephone number and home address. Savatdy responded to each question in
English but hesitated before reciting his address–he had recently moved. Agent
Hummel then advised Savatdy of his Miranda rights, pausing after the recitation of
each right to ask Savatdy if he understood what Agent Hummel was stating, and
repeating those portions Savatdy questioned. For example, after Agent Hummel
stated that Savatdy had the right to counsel, that he had the right to have counsel
present during the interview, and that if he could not afford a lawyer, the government
would appoint a lawyer for him, Savatdy indicated he did not understand. Agent
Hummel proceeded to explain that if Savatdy could not afford a lawyer, the
government would provide one for him.
Though Savatdy did not sign or initial any document indicating that he
understood his rights or waived his rights, Savatdy ultimately indicated that he
understood each of the rights recited by Agent Hummel. Following the Miranda

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recitation, Agent Hummel began questioning Savatdy about his involvement in the
alleged conspiracy.
II. DISCUSSION
A. Conspiracy
Our standard of review concerning whether the evidence is sufficient to support
a conviction is strict. United States v. Alexander, 408 F.3d 1003, 1008 (8th Cir.
2005). "When reviewing the sufficiency of the evidence to support a conspiracy
conviction, we will affirm if the record, viewed most favorably to the government,
contains substantial evidence supporting the jury's verdict, which means evidence
sufficient to prove the elements of the crime beyond a reasonable doubt." United
States v. Lopez, 443 F.3d 1026, 1030 (8th Cir. 2006).
To establish that Savatdy conspired to distribute methamphetamine, the
government must prove: (1) that there was a conspiracy–an agreement to distribute
methamphetamine; (2) that Savatdy knew of the conspiracy; and (3) that Savatdy
intentionally joined the conspiracy. Alexander, 408 F.3d at 1008. "[A] defendant
may be convicted for even a minor role in a conspiracy, so long as the government
proves beyond a reasonable doubt that he or she was a member of the conspiracy."
Lopez, 443 F.3d at 1030. A conspiracy may be inferred from circumstantial evidence;
it need not be proved by direct evidence. Id.
According to the district court, "[t]his case tests the elasticity of criminal
conspiracy law." During deliberations, the jury asked the district court "[i]f we have
decided on the conspiracy [charge] for all & agree on two individuals @ 500 grams
–are then, all three (3) defendants automatically guilty of the same 500 grams due to
conspiracy connection." (Second alteration in original.) The court then gave the
following supplemental instruction:

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If you found that all three Defendants were a part of the same
conspiracy, then each of the three Defendants would be responsible for
500 grams or more of methamphetamine. If the one Defendant was
found to be part of only a separate conspiracy with [Ed], and not part of
a conspiracy with the other two defendants, then you must find that one
Defendant not guilty.
The jury subsequently returned verdicts finding all three defendants guilty of
the conspiracy to distribute 500 grams or more of methamphetamine. The district
court noted that given its supplemental instruction, the jury could not have found that
the only conspiracy Savatdy was involved in was a separate one with Ed. The district
court did acknowledge, however, that the jury must have accepted Ed's testimony as
truthful in order to support its verdict of conspiracy between the defendants and Ed
because there was limited evidence otherwise to support only a conspiracy among the
three defendants on trial.
We conclude that the evidence, viewed most favorably to the government,
supports Savatdy's conviction and that he contributed to the conspiracy's success. The
gravamen of the government's case against Savatdy, linking Savatdy to Khaoone and
Amphavannasouk, relies upon Ed's testimony, which the jury deemed credible.
Importantly, even if there were contradicting testimony concerning this connection,
"we are obliged to defer to the jury's determination of the credibility of the witnesses."
Lopez, 493 F.3d at 1031. Likewise, the jury could infer from the statements Savatdy
made to Agent Hummel during interrogation that Savatdy did travel to Sioux City
three times to buy drugs for distribution, and participated in the alleged conspiracy.
Accordingly, we affirm Savatdy's conviction.
B. Admission of Statements
Concerning the district court's denial of Savatdy's motion to suppress evidence,
this court reviews the district court's fact finding for clear error and its legal

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conclusions de novo. U.S. v. Annis, 446 F.3d 852, 855 (8th Cir. 2006). We will
affirm the district court unless it is unsupported by substantial evidence, based on an
erroneous interpretation of applicable law, or, based on the entire record, it is clear a
mistake was made. Id.
The district court reviewed the videotape, as did we, and noted that Savatdy
expressed his understanding of each separate right before Agent Hummel moved to
the next. The court carefully examined the interrogation in light of Miranda
jurisprudence and determined that Savatdy "knowingly, voluntarily and intelligently
waived his Miranda rights, and his statements during the interview were voluntary."
The district court's determination was supported by the record and was neither an
erroneous interpretation of applicable law nor clearly mistaken.
III. CONCLUSION
We affirm.
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