United States of America v. Son V. Tran

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SON V. TRAN,
Defendant-Appellant.
No. 16-30226
D.C. No.
2:15-cr-00120-JCC-1
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Argued and Submitted December 7, 2017
Seattle, Washington
Before: HAWKINS, McKEOWN, and CHRISTEN, Circuit Judges.
Defendant Son Tran (“Tran”) appeals his conviction on multiple counts of drug
distribution and conspiracy, following a nine-day jury trial. He contends the court
erred by permitting Detective Brandon James (“James”) to testify as both an expert
and percipient witness without properly instructing the jury how to evaluate such
FILED
DEC 14 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.

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“dual role” testimony. See United States v. Vera, 770 F.3d 1232, 1246 (9th Cir.
2014).
At trial, there was no objection to James’s testimony on this basis and no
request for a curative instruction; the alleged error is thus reviewed for plain error, and
Tran bears the burden of establishing that any error affected his substantial rights.
United States v. Olano, 507 U.S. 725, 734 (1993). Even assuming James’s testimony
impermissibly mixed lay and expert opinions, and that the court erred by not giving
the jury a specific instruction on the dual role testimony, Tran cannot establish that the
alleged error was prejudicial. There was a plethora of other evidence supporting the
convictions, including videos, wiretap recordings, surveillance photos, as well as
testimony by both an informant and a co-defendant that largely duplicated the
detective’s testimony. See United States v. Torralba-Mendia, 784 F.3d 652, 661-62
(9th Cir. 2015). The error did not have a reasonable probability of affecting the
outcome of the trial. Id. at 661.
AFFIRMED.
2

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