United States v. Orm Hieng
679 F.3d 1131
| 9th Cir. | 2012Background
- Hieng was convicted by jury of conspiracy to manufacture and distribute over 1,000 marijuana plants and of manufacturing, cultivating, and aiding to cultivate over 1,000 plants; he received the statutory minimum ten years under 21 U.S.C. § 841(b)(1)(A)(vii) and sought safety-valve relief under 18 U.S.C. § 3553(f) but was denied.
- Detectives discovered a large marijuana operation in a Fresno vineyard and in the residence behind the house; a driver with plant-growing paraphernalia (Lem Phin) was stopped, and Hieng was found nearby with identifying documents; a tally of plants counted in the vineyard totaled 1,039 plus 70 indoors, totaling 1,109 plants.
- Special Agent Kunkel testified about Hieng’s post-arrest statements during an interview conducted with an interpreter; Lim the interpreter did not testify, and the government indicated Lim would be called only to challenge translation accuracy.
- The district court allowed the jury to hear Kunkel’s testimony about the statements despite Rule 11(f) and Rule 410 concerns; Nazemian and Crawford-related issues were raised regarding interpreter-conduit analysis and confrontation rights.
- The district court’s handling of Jensen’s plant-count testimony and Rule 807 residual exception was challenged, with the court ultimately admitting the testimony on a theory that it fit under established hearsay rules; the safety valve finding rested on whether Hieng truthfully provided all information.
- The majority affirms the conviction and sentence; Berzon concurs with a narrowing of the present-sense-impression ruling and would instead rely on Rule 807 with potential en banc reconsideration of Nazemian.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of post-arrest statements under 11(f)/410. | Government argues statements were proffer and admissible. | Hieng did not waive rights; possible plain error. | No plain error; waiver presumed by Mezzanatto not found necessary to inquire sua sponte. |
| Confrontation rights regarding interpreter Lim. | Lim was necessary to impeach translation; Nazemian governs. | Lim as language conduit; Crawford does not apply directly. | Nazemian remains binding; no Crawford-based confrontation violation found. |
| Admissibility of Jensen's total plant count (hearsay). | Counts based on others' out-of-court statements; admissible as present sense impression or Rule 807. | Present-sense impression misapplied; Rule 807 notice lacking. | Hearsay admissible under Rule 803/805 as recorded recollection; District court did not err. |
| Safety valve (18 U.S.C. § 3553(f)) relief. | Court should apply safety valve if facts show truthful cooperation. | Hieng lacked truthful cooperation. | District court’s factual finding not clearly erroneous; safety valve relief denied. |
| Cumulative error doctrine. | Multiple errors undermine fairness. | No multiple prejudicial errors; potential ineffective assistance claims unproven. | No reversible cumulative error; conviction affirmed. |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause limits on testimonial statements)
- Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) (Laboratory certificates as testimonial statements requiring confrontation)
- Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011) (Testimonial certification requires confrontation; not satisfied by surrogate testimony)
- United States v. Nazemian, 948 F.2d 522 (1991) (Interpreter as language conduit; threshold inquiry for declarant status; confrontation concerns depend on attribution)
- Mezzanatto, 513 U.S. 196 (1995) (Waiver of rights to use statements made during plea discussions in future proceedings)
- United States v. Marcus, _, 130 S. Ct. 2159 (2010) (Plain-error framework for reviewing evidentiary errors)