*1 IV Petitioners have not
Because established error, need not discuss the other Bau- we petition man factors. The for mandamus DENIED. America, UNITED STATES Plaintiff-Appellee, HIENG, Defendant-Appellant. ORM
No. 09-10401. of Appeals, United States Court Circuit. Ninth Argued Aug. and Submitted 2011. May Filed 2012. *4 years’ imprisonment,
to ten minimum sentence under U.S.C. 841(b)(1)(A)(vii). § Hieng moved for relief statutory from the minimum under the 3553(f), “safety § valve” of 18 U.S.C. but persuade failed the district court that he necessary had established the facts qualify for relief.
Hieng appeal. raises several issues in his First, he contends that the district court by allowing erred a law agent enforcement testify regarding statements through interpreter made during post-arrest interview. He argues also the district court in admitting erred testi- mony regarding marijuana the number of property found at the where he was *5 Edgar Eugene Page, Page Page& At- Hieng arrested. contends further that the Law, Sacramento, CA, torneys at for the district court at sentencing erred in find- defendant-appellant. ing that Hieng truthfully provided had not Benjamin Wagner, B. United States At- all possession the information in his torney; Montoya (argued), Laurel J. As- government, thereby in resulting the dеni- Fresno, Attorney, sistant United States safety al of Finally, valve relief. CA, plaintiff-appellee. for the argues that cumulative error resulted in an jurisdiction
unfair trial. We have under 28 § U.S.C. 1291. affirm We the conviction and sentence.
I. objections To the extent were WALLACE, Before: J. CLIFFORD preserved appeal, for we review the dis BERZON, MARSHA S. and JAY S. evidentiary rulings trict court’s for abuse
BYBEE, Judges. Circuit Stinson, v. United States of discretion. (9th Cir.2011). 1196, 647 F.3d 1210 We WALLACE; Opinion by Judge evidentiary rulings review to which no ob by Judge Concurrence BERZON. error. United jection plain was for made OPINION (9th v. Chung, 815, States 659 F.3d 833 Cir.2011). review, WALLACE, plain On error can we Judge: Senior Circuit provide not Hieng relief unless he Hieng appeals Orm from his conviction (1) demonstrates that there an “er (1) and sentence for conspiring to manu- (2) ror”; obvious, the error is “clear or 1,000 facture and distribute than more subject rather than to reasonable dis (2) plants marijuana of and manufac- (3) pute”; the error the appel “affected turing cultivating, and aiding and and rights, lant’s substantial which abetting 1,000 the cultivation of more than ordinary marijuana plants. Hieng casе means” it “affected the by was convicted jury a by proceed- and sentenced the district court outcome of the court district
1136 they fin- (4) eradicated. seriously af- the number When and “the error
ings”; row, fairness, they gave integrity public pulling plants ished feet[s] judicial proceedings.” a member of the team who load- reputation plants truck, — tally their gave ed them on a Marcus, -, U.S. States v. United None of the detectives Detective Jensen. 2159, 2164, 1012 176 L.Ed.2d 130 S.Ct. actual num- remembered the who testified States, (2010), Puckett v. United quoting eradicated, plants they had but ber 1423, 1429, 173 129 S.Ct. 556 U.S. accurate they they gave testified (2009); 266 see also United States L.Ed.2d and saw him number to Detective Jensen Olano, 725, 731-37, 113 S.Ct. v. 507 U.S. (1993). they reported. record the number We review 123 L.Ed.2d findings factual at sen the district court’s kept that he Detective Jensen testified v. error. States tencing for clear United tally accurate of the he counted (9th Real-Hernandez, 90 F.3d to him the reported and of the numbers Cir.1996). findings its We will disturb that he add- other detectives. He testified without foundation. Unit unless are manually, ed all the tallies verified his (9th Ajugwo, F.3d ed States addition, tally final in his and entered the Cir.1996). report. tally following The final this meth- 1,039 plants growing od was the vine- II. yard plants growing inside the 28, 2007, August On detectives 1,109 house, plants. for a total of County Department dis- Fresno Sheriffs Hieng’s The thrust of trial defense was large marijuana growing opera- covered a marijuana that he did not know that vineyard tion in a behind residence being grown at the site. He testified that Fresno, They discovered mari- California. *6 him someone named Prasit had offered juana plants growing among grape- the if sign a month he would the lease for $800 twenty in approximately vines fifteen to property stay the and at the house at vineyard. During in the the rows investi- that night. He testified he never entered marijua- gation, detectives also discovered vineyard and that he did not know plants growing na inside the residence. marijuana there was inside the house be- discovering marijuana plants After poor eyesight. cause of his vineyard, in the saw a car leave detectives area, property, government presented circle the and return to The the testimo- They stopped the residence. the car and ny Special Agent of Kunkel of the United plant-growing paraphernalia found on the Drug States Enforcement Administration driver, they Phin. investigated Lem As July who testified that on he inter- property, Hieng sitting detectives found Hieng using interpreter viewed named a chair a tree outside the under house. Rithy questions Lim. Kunkel in En- asked house, investigators discovered Inside glish, which Lim translated into Cambodi- items of identification for both Phin and Cambodian, Hieng responded an. and Hieng. Lim into responses English. translated the that, interview, during the Kunkel testified County Department
Fresno Sheriffs de- Hieng denied that he knew there was mar- simultaneously and tal- tectives eradicated ijuana He claimed that he the house. vineyard. lied the in the Detectives marijuana plants could not see the because that participated who the effort testified poor eyesight. reported of Kunkel his plants by going up eradicated the and row, why that when asked he could not smell pulling cutting marijua- each down keeping tally marijuana, Hieng responded na a mental of that small plants, and accuracy an odor. Kunkel then plants did not have of his translation of an he knew there was no odor. asked how interview.” that he had heard it from Hieng answered Hieng’s attorney objected neither people. why different When asked anoth- trial, presence Lim’s nor raised the marijuana agent er could smell the when possibility that Hieng would want to con- house, Hieng he was in the Kunkel said Hieng’s said, front Lim. attorney
responded cigarette that “it was like My only point of contention is that I’m smoke, They don’t smell the but smokers. only not so sure the accuracy issue is the Kunkel non-smokers do.” also testified of the language Cambodian in this issue. said he had known there was I’m trying get possible, What at is it’s house, marijuana at the he would have just in speaking English as lan- charged per more than month. $800 guage, somebody doesn’t write it government The not call did the inter- down verbatim and they shorthand Lim, Rithy testify. preter, On the first it---- I’m saying regardless of trial, day immediately prior to the selec- what was translated into English, it’s jury, prosecution tion of the moved to possible may the officer have written trial, exclude witnesses from the which the something else down in shorthand or joined. Lim serving defendants anas whatever.... interpreter during proceedings and he responded The district court that Hieng mentioned that he subpoe- had received a would be question entitled to the accuracy na government. from the Lim raised the transcription officer’s of the trans- that if concern he was to be called as a statement, lated accuracy and that of tran- would, perhaps, witness he have to be ex- scription always is an issue whenever a cluded from the courtroom. The govern- statement taken. explained only ment that it intended to call Lim if it impeach Hieng needed to with a III. statement,
prior inconsistent only then purpose establishing for the the accura- A. cy of the Hieng’s translation of statements. clarified that it intended *7 Hieng’s argument first is that the
to call the
Hieng’s
officer who took
state-
plain
district court
by
cоmmitted
error
testify regarding
ment
to
the statement
admitting Special Agent Kunkel’s testimo
itself and
problem
did not have a
with Lim ny regarding the statements Hieng made
remaining
the courtroom
tri-
during the
during
post-arrest
the
July
interview on
al.
2008 because the statements were inadmis
The district court responded that
the
sible under Federal Rule of Criminal Pro
11(f)
“only
...
potential
dispute
is if Mr.
cedure
and Federal Rule of Evidence
Lim or Mr. Hieng disagreed with
in-
the
410 as statements
during plea
made
dis
terpretation.
you
Then
would have the
government responds
cussions. The
that
right
interpreter
to call the
to
him
ask
the statements were admissible because
meaning
about the
in the Cambodian lan-
the circumstances of the interview indicate
guage
the English language
is,
versus
of what
that
it
a proffer meeting,
that
a
that,
was said.” The court concluded
private meeting
government
“the
with the
interpreter
obviously
percipient
is
not a
Hieng
questions
where
will answer
per
a
fact witness to
haps leading
plea agreement.
events. This
to a
In such
goes
job
rather
to
an intеrpreter
meeting, Hieng
his
as
a
agreed
would have
that
course,
object
failure to
Of
a defendant’s
impeach
used to
statements could be
his
at trial
to the admission of statements
differently.
if he testified
him
meeting does not
during
proffer
made
a
Kunkel’s testi-
object
not
to
Hieng did
that a valid waiver
necessarily mean
the
Hieng argues now that
mony at trial.
agreement exists. But from
district
plain
committed
error
district court
a defendant’s failure to
perspective,
court’s
he
inquire,
sponte,
sua
whether
failing to
reasonably
object
may
to such evidence
be
11(f) and
rights
his
under Rule
had waived
that
the defen-
interpreted
indicating
as
now consider whether
Rule 410. We
rights under
previously
dant
waived his
duty.
court had such a
district
11(f)
Federal Rule of Criminal Procedure
Hieng
that
made his
By arguing
Rule of Evidence 410.
and Federal
meeting, the
during
proffer
a
statements
is con-
Hieng argues
holding
that this
that
the interview
concedes
government
“[cjourts
the maxim that
should
trary to
a
discussion. How
likely
plea
constituted
every
presumption
‘indulge
reasonable
evеr,
may
right
a defendant
waive his
not
waiver,’
pre-
should ‘not
against
during plea
made
dis
to have statements
of funda-
acquiescence
sume
the loss
”
him.
against
cussions used
United States
Wingo, 407
rights.’
mental
Barker v.
U.S.
Mezzanatto,
210, 115 S.Ct.
513 U.S.
514, 525-26,
92 S.Ct.
The district court did not need to
quire,
sponte,
sua
whether
had
disagree
propo
We do not
right
waived his
not to have the state-
sition that
if the defendant
informs the
during proffer
ments he made
discussions
court that he did not waive his
district
may
It
a
against
used
him.
be that
dis-
exacting
court should be
rights, the district
trict court
error if it allows
plain
commits
requiring
government
to show thаt
that
to introduce evidence
responsibility
put
he did. But
obviously
inadmissible. But it is not
defendant,
fact in issue rests with the
always
whether statements made
obvious
Here,
prosecution
the court.
where
proffer
are
during
discussion
inadmissi-
Hieng’s
purpose
used
statements for a
Mezzanatto,
expect
After
we
ble.
unexpected, given
preva
would
not be
routinely
prosecutors
require,
will
as
waivers,
Mezzanatto
the district
lence of
*8
holding
proffer meeting,
condition for
a
reasonably
may
presumed
court
have
that
suspects agree
that
that their statements
object
that
Hieng’s failure to
meant
he
may
impeachment.
be used for
the
Where
agreed that his statements were admissi
proffer meeting
a
has held
plain
ble. The district court committed no
a defendant and the defendant testi-
failing
inquire,
sponte,
in
sua
error
trial,
at
fies
his own defense
district
Hieng
rights.
whether
had waived his
surprised
court would not be
a defendant
B.
object
government’s
does not
to the
use of
prior
during
argues
inconsistent statements made
the ad
Hieng also
Agent
proffer meeting.
Special
the
mission into evidence of
1139
Hieng
violated his
Kunkel’s
Sixth
has not identified
anything
right
record suggesting
Amendment
be confronted with
that Lim
anything
was
him.
other than
against
language
the witnesses
He contends
conduit. The rec-
ord
Lim
stripped
highly
court
him of the
indicates
was a
competent
that the district
Lim,
interpreter.
interpreter
interpreted
only
to confront
when it
He
not
right
at
concluded,
the interview in
prior
dispute,
but also during
selection of the
trial
in private
and
meetings
Lim
not a
jury,
percipient
or fact
between
and, therefore,
Hieng
attorney.
and his
There is no indi-
witness
did not need to
cation that Lim
trial,
any
had
motive to mis-
testify.
At
never asserted a
translate.
The district court
we, therefore,
properly
Lim
right to confront
treated Lim
language
as a mere
conduit
plain
review for
error.
Nazemian,
Hieng.
Under
Hieng did
In United States v. Nazemian
have
constitutional right to con-
that,
we
appropriate
held
under
circum
front Lim because the interpreted state-
stances, a person may testify regarding
dirеctly
ments are
attributable to Hieng.
by
statements made
the defendant through
Hieng argues that Nazemian has
interpreter
without raising either hear
been
by
overruled
v. Washing
Crawford
say or Confrontation Clause issues because
ton,
36,
541
1354,
U.S.
124 S.Ct.
are properly
statements
viewed as the
(2004),
L.Ed.2d 177
progeny.
and its
As a
own,
defendant’s
and the defendant cannot
three-judge panel,
we are bound
circuit
claim that
opportunity
he was denied the
precedent unless the United States Su
522,
to confront himself. 948 F.2d
525-26
preme Court or an en banc court of our
Cir.1991).
(9th
A defendant and an inter
circuit has “undercut
theory
or reason
preter are treated as identical for testimo
ing underlying
prior
precedent
circuit
purposes
nial
if the interpreter acted as a
way
such a
that the
clearly
cases are
language
“mere
conduit” or agent of the
Gammie,
irreconcilable.” Miller v.
defendant.
Id. at 528. The district court
(9th
Cir.2003) (en banc).
F.3d
We
must determine “whether the translated
now determine whether
and its
Crawford
fairly
statements
should be
considered
progеny directly overruled Nazemian or
(i.e.,
speaker”
statements of the
whether
whether the cases
clearly
are
irreconcil
interpreter
can be deemed a language
able.
conduit)
case-by-case
on a
basis.
Id. at
Crawford,
In
Supreme
Court held
determination,
In making
527.
“testimonial”
statements are
district court must consider all relevant
not admissible unless the declarant is un
factors,
party
“such as which
supplied the
available and the defendant had a prior
interpreter, whether
interpreter
had
opportunity for cross-examination.
distort,
any motive to mislead or
the inter
U.S. at
305,
129 S.Ct.
Mexico,
directly
original speaker,
to the
(2009),
New
Bullcoming v.
attributed
and
—
2705,
U.S. -,
engage
180 L.Ed.2d
in the Craw-
131 S.Ct.
the court would
then
Melendez-Diaz,
(2011).
the Court
respect
In
to that
analysis only
ford
analysis”
of
which
Where,
here,
that “certificates
held
as
original speaker.
a substance
weight
the
of
reported
defendant,
the Sixth
is the
speaker
cocaine con
contained
that the substance
application be-
simply has no
Amendment
statements.
S.Ct.
testimonial
stituted
complain
cannot
that he
a defendant
cause
analysts who
Accordingly, the
at 2532.
opportunity to confront
was denied the
purposes
witnesses for
signed them were
himself.
in
Similarly,
Amendment.
Id.
of the Sixth
that there is some tension
recognize
We
the
held that
Con
Bullcoming
Court
analysis and the
the Nazemian
betweеn
when
was not satisfied
frontation Clause
approach
recent
Court’s
Supreme
a forensic labo
prosecution
introduced
in-
Our threshold
Confrontation Clause.
containing a testimonial cer
ratory report
a
which asks whether
quiry in Nazemian
“through the in-court
tification
may
di-
statement
be attributed
translated
sign
the certifica
of a scientist who did
speaker and not be
rectly
original
to the
report
or observe the test
perform
tion
literally
interpreter
to the
who
attributed
2710.
131 S.Ct. at
ed
the certification.”
it,
of the law
principles
stems from
uttered
that, if
it clear
These cases make
Roberts,
Abandoning Ohio v.
of evidence.
introduced,
is
a testimonial statement
essentially
might be read as
di-
Crawford
opportunity for
requires
Amendment
Sixth
analysis from
vorcing Sixth Amendment
person
who made the
confrontation of
Crawford, 541
the law of evidence. See
They
ques
do not address the
statement.
(“Leaving the
at
Tennessee v.
471 U.S.
Detective Jensen did not base his
(1985).
S.Ct.
by writing it on a notepad piece down or a C. paper. day, of The next manually Jensen tallies, added the accuracy verified the of Hieng also contends that the dis addition, his and entered the total number by allowing trict court erred Detective plants of report. his testimony, Jensen’s which was based on hearsay reports, prove the total number Hieng correctly argues that Jensen’s marijuana plants by of eradicated testimony respect to the total number County Fresno Sheriffs detectives. hearsay. was on based The Fed- object testimony hearsay did not to this on eral Rules of Evidence define as co-defendant, grounds at trial. His Lem (1) “a statement that: the declarant does Phin, however, objection raised that on at testifying not make while at the current least four occasions. Even though Hieng (2) hearing; party trial or offers join objection, did not Phin’s we review for to prove evidence the truth of the matter abuse of plain discretion rather than error asserted in the statement.” Fed.R.Evid. sufficiently because the matter 801(c). tally by The total offered Jensen brought to the attention of the district at trial was a sum based on a number of Hardy, court. See United States v. statements made out of court a number (9th Cir.2002) (“Al F.3d 612 n. 1 declarants. The offered though Hardy’s object counsel did not prove this total to the truth of the matter agent’s testimony, objection by his asserted the declarants’ out-of-court preserved co-defendant’s counsel the issue statements. Because Jensen’s defendants”), citing for both entirely hearsay, United States was founded almost on it Brown, (9th 562 F.2d 1147 n. 1 should not have been admitted unless all of Cir.1977). underlying statements the tes- *11 intent to offer the state notice of the to the rule able exception an
timony fit within including the de particulars, ment and its 802, 805. hearsay. Fed.R.Evid. against address, so that the clarant’s name and trial, the separate occasions On three to meet it.” opportunity has a fair party objections to Phin’s cоurt sustained district 807(b). showing any Fed.R.Evid. Without that it testimony ground the on Jensen’s provided this re the therefore, hearsay and could on was based that the notice should be quired notice or However, its truth. offered for not be Bachsian, 4 excused, see United States his method for fully explained after Jensen (9th Cir.1993), will not we F.3d court over- the district counting plants, argument that the government’s accept and admit- hearsay objection ruled Phin’s the testi properly admitted district court that the relia- testimony, “finding ted the Therefore, we mony under Rule 807. by each was such that bility of the method hearsay must review whether the state being communicated officer’s count relied on fall within ments which Jensen down, goes to the that that then written hearsay exceptions. established admissibility.” weight, not the testimony involved three Jensen’s rul court’s definitive The district hearsay, of which must con levels of each objection hearsay does ing on Phin’s exception an in order for the testi form to any exceptions invoke established mony to be admissible. Fed.R.Evid. 805. hearsay. The Federal against the rule level, testimony At the most basic Jensen’s not include a “relia Rules of Evidence do he reports the out-of-court incorporated reliability bility” exception. While County Fresno Sher received from other hearsay exceptions, all the touchstone of Department iffs detectives. These re themselves—not the trial exceptions ports present are admissible under the the crite judge’s intuitive conclusions—are impression exception for statements sense hearsay evidence is suffi ria for whether “describing explaining an event or con ciently to overcome the rule reliable dition, immediately after the made while or hearsay. against it.” Fed.R.Evid. perceived declarant 808(1). government argues appeal on that Detective Jensen’s fits Here, eradication exception to within Rule the residual marijuana plants constitutes an event that Jen against hearsay. the rule Detective perceived by par the detectives who testimony might very satisfy well sen’s in it. These dеtectives described ticipated requirements of Rule How general 807.1 taking place the event while it was ever, government completely ignores reporting the number of had requirement. Rule 807’s notice Under the at the just counted to Detective Jensen rule, hearsay statement is admissible reports end of each row. Their Detec if, “only hearing, impress the trial or present before tive Jensen were sense proponent gives party adverse reason- ions.2 through generally provides proponent can obtain rea-
1. Rule 807 for the admis- that the efforts; sion of statements under the follow- sonable ing conditions: (4)admitting purposes it will best serve (1) justice. equivalent the interests of the statement has of these rules and circum- trustworthiness; 807(a). guarantees stantial Fed.R.Evid. (2) it is as evidence of a material offered fact; Judge disagrees applica- with our 2. Berzon (3) present impression exception tion of the sense probative point it is more on the reports who counted of the detectives it is offеred than other evidence which and, eradicating level of in was The second them while the mat- tally Jensen’s sheet is the note memory, Detective ter was fresh in his accurately *12 pad paper upon which Jensen recorded recorded that tally count on his sheet. reported by tallies his own tallies and the sheet, therefore, tally The contains Jen- detectives. The did his fellow sen’s recorded recollection of his own plant attempt tally to introduce Jensen’s not counts. to respect With the other detec- evidence, into but Jensen testified sheet counts, tives’ Detective Jensen testified report in his that the total he entered accurately that he recorded the numbers tallies he recorded on the the sum of the each detective him reported to immediate- tally tally This sheet falls comfort sheet. him ly they gave after their verbal reports, ably exception within the for recorded rec while the matter was fresh his mind. 803(5). A ollections. FecLR.Evid. record Therefore, tally the sheet аlso contains a (A) ed recollection is record that: is on “[a] record of Detective Jensen’s recollection of a once matter witness knew about but the other detectives’ utterances of their enough testify now cannot recall to well present sense impressions. tally The (B) accurately; fully and was made or would, therefore, sheet be admissible not- by adopted the witness when the matter withstanding hearsay its character. memory; was fresh in the witness’s (C) accurately reflects the witness’s knowl Finally, we have Detective Jen edge.” Id. report. sen’s formal Detective Jensen
Detective Jensen did not recall the num- based his on this hearsay docu determine, plants personally ber of he eradicated. ment. We must at least with However, plants count, he counted those as he respect plant to the total whether Concurrence, 803(1) marijuana plants. See Part “event” as used in Rule must be con- ruling expands excep- I. Her fear that this strained reasonable time limits. But that beyond justified. does not mean an tion its limits is not event must be instantane- ous. Contrary Judge to Berzon's characteriza- Here, reported the detectives the number of tion, reports the detectives’ were not "calcula- plants they saw at the end of each row. We tions derived their observations.” Con- from disagree Judge do not Berzon that the currence 5089. The detectives did not arrive probably eradication of each row took "some reported through at the numbers a mathemat- reports minutes.” But the detectives’ are suf- process. They simply plant ical counted each ficiently close in time to the actual observa- they Counting ordinary observed. is an significant tion that there is not a risk that aspect and fundamental of observation. It is memory faulty reports. loss caused The time way keep Counting a to track of the details. may each detective have waited between complex thought process is not the sort of viewing reporting their counts interposes step "an intermediate between give оpportunity did not them a substantial receipt present impression of the sense reflect or deliberate as to whether would and the utterance.” See Edward J. Imwinkel- provide an accurate count or an inflated one. reid, The Need to Resurrect the Present Sense Judge expresses Berzon a concern that the
Impression Hearsay Exception: Relapse A might testify detectives not have had to before (2009). Hearsay Policy, 52 How. L.J. jury present impression excep- if the sense Judge reports Berzon views the detectives' applies. tion But if statements are impressions aas "cumulation of sense over a testimonial, then the Confrontation Clause time, period through thought mediated a subject will ensure that the declarant process easily that could contain errors.” cross-examination. If the Confrontation Essentially, Judge Concurrence 5088. Ber- apply does Clause and evidence is suffi- plant sighting zon considers each bring to be exception cient statement within an rule, separate interpret "event.” We need not there is no reason to insist narrowly. Certainly, testimony. term so the term on in-court D. rec- a recorded report constitutes Jensen’s ollection. Hieng’s triggered a conviction statutory imprison minimum sentence of that, testified on Detective Jensen years. ten ment U.S.C. eradication, manually cal- he day after 841(b)(l)(A)(vii). § He contends that the record- plant counts culated sum court should have relieved him district the total tally sheet and entered ed on the statutory from the minimum under the total of the tallies The report. in his 3553(f). § safety valve 18 U.S.C. tally a matter that on the sheet is recorded safety apply court refused to district *13 because, at once knew Detective Jensen Hieng it did not find that valve because time, tally point in he had the sheet one “truthfully provided to the Govern had personally performed him and front of evidence[he had] ment all information and However, he could not recall addition. concerning the offense.” 18 U.S.C. at the time of the trial accurately that totаl 3553(f)(5). § the district We review tally sheet because he did not have the error. finding court’s factual for clear him. recorded his recollec- before Jensen finding Hieng that The district court’s report immediately total in his tion of the truthfully prove provided failed to that he sheet, tally it from the calculating after to the all the information and He testi- while it was fresh his mind. clearly he had not evidence erroneous. report that he recorded in his fied the total trial, testimony at it appears Based on his accurately knowledge regard- reflected his only Hieng provided information to the Therefore, tally ing the total in the sheet. that government regarding the offense was report Detective Jensen’s statement his somebody sign hired him named Prasit marijuana plants as to the total number of stay a contract and to at the house at qualifies as a recorded recollection night. He denied that he had knowl- plants to the total number of re- respect edge marijuana growing operation. of the sheet. See Fеd. tally corded on the However, Hieng’s conviction that indicates 803(5). R.Evid. jury testimony that did believe his marijuana knowledge he had no sum, In while the district court did not growing operation. Hieng actually If did rigorously apply the rules of evidence to marijuana growing opera- know about the hearsay underlying each level of Jensen’s tion, it logical would be to infer he had testimony, ultimately it reached the cor- more information or evidence about the testimony rect result. Detective Jensen’s operation previously provided. than he had regarding plant count was based total evidence, conflicting Given the the district aon recorded recollection of the numbers well that Hieng court could have found had sheet, tally tally listed on his sheet. The information or evidence that he withheld in turn was a recorded recollection of Jen- concerning marijuana growing op- had reports sen’s own activities and the verbal eration. Finally, of his fellow detectives. the re-
ports present of the other deteсtives were Hieng argues that the district court impressions. sense was ad- because, committed clear error in deliver- sentence, missible because each level of it ing its misstated some of the upon which it was based fell within an presented. evidence that had been For exception established to the rule. example, pronouncing the sentence from See Fed.R.Evid. Therefore, bench, 805. court mistakenly the district Hieng there was no reversible error. said that had been recruited knew, Chan, tion Vanthy pages report by someone he on 5080-81 that the into the gone he had never Hieng said the detectives who “eradicated” the mari- However, these were not backyard. juana plants as to the number of the district court based upon facts which qualifies present counted as a sense was not entitled finding its 803(1) impression under Rule of the Fed- Rather, relief. the district safety valve eral Rules of Evidence. As I explain in that “it is not believable that court found concurrence, Parts I and II of this apply- smelled, Hieng would not have seen Mr. ing present exception sense marijua- presence and known of the profoundly facts of this case distorts the (Sept. Tr. at Sentencing na.” 28:2-3 exception applies beyond it far 2009). rejected Hieng’s The court claim to supported by realm its underlying ratio- Court, safety valve relief because “[t]he nale. jury, like the does believe that there was Indeed, parties neither the nor the dis- very evidence to show Mr. substantial suggested trict court ever excep- that this totality of Hieng’s knowledge under the applied tion majority here—the has insert- staying the circumstances. He was *14 it ed into this case on its own initiative. marijuana grow site. And an indoor mari- government The argued that the admission juana grow as well.” Id. at 28:24-29:3. of the marijuana The evidence that the district court actual- officers’ count of the ly Hieng on to find that must have relied plants should be affirmed based on Feder- marijuana growing opera- known about the 807, al Rule of Evidence the residual ex- supports finding. tion that Its inference ception tо hearsay rules. I agree. that finding from had more easily The officers’ count falls within the previ- information or evidence than he had 807, scope applying of Rule that Rule ously government shared with the implicates problems none of the by created n Therefore, permissible. there was no applying present impression sense ex- clear error the district court’s factual ception. findings. addition, In explain III, as I in Part although agree I with opinion’s conclu-
E.
Nazemian,
sion that United States v.
Finally, Hieng contends that even if er-
(9th Cir.1991),
“clearly
F.2d 522
is not so
rors committed
the district court were
irreconcilable,”
Gammie,
Miller v.
individually,
harmless when considered
(9th Cir.2003) (en
banc),
F.3d
their cumulative effect
un-
resulted
v. Washington, 541 U.S.
Crawford
above,
explained
fair trial. As
Hieng has
(2004),
S.Ct.
the extent cumulative error is a valid doc- I.
trine, it is simply inapplicable here. opinion present The relies on the sense AFFIRMED. impression 803(1), exception, Fed.R.Evid. BERZON, Judge, concurring: Circuit support admissibility of Fresno County Department deputies’ I Sheriffs majority opinion concur in the with one exception: I agree regarding cannot with the asser- statements the number mari- of contrast, only field. As Rule evidence in the defendant’s
juana plants marijuana row-by-row, destroyed probative point on the which it they “is more the number of deputies tallied is offered than other evidence gave those numbers they picked had proponent through can obtain reasonable Jensen, their Detective who recorded efforts” admissible. Fed.R.Evid. According opinion, to the statements. 807(a)(3). Therefore, excep- if the residual of deputies’ descriptions calculations were were to the officеrs would ordi- apply, tion marijuana field and the destruction narily required testify, still be whether im- present therefore admissible as sense required or not were so under the however, ex- pressions. application, That Clause, for such Confrontation 803(1) beyond well its limits. tends Rule probative would be the most evidence of is, argue The did not before That their actions. evidence nor before us that the the district court only be would admissible under Rule 807 present impression applies. sense to the extent that it was not available via district court did not rule on the basis Thus, testimony. permits direct Rule 807 exception. We therefore have had no this exception a much narrower That it briefing on the issue. occurred to majority’s expansion rules than does the this previously no one associated with case Rule 803. present impression that the sense excep- analysis highlights problem This might enough to apply tion is reason make with the notion that recording Jensen was Moreover, application suspect. its while fact, present impression: sense In he imaginative, majority’s analysis bends recording *15 was not sense im- officers’ exception shape that out of in a manner they collecting pressions when were cases, that, seriously in other could under- marijuana Instead, plants. what Jensen mine the rules. to testified was the result of a mental begin by noting I that what while the marijuana process counting series of — majority’s of what a pres- view constitutes collected, and, plants they while were ulti- leads, impression ent sense on the facts of mately, determining many how there were case, relatively this to a narrow admission in large total. Because of the number of evidence, application its other cases marijuana plants, the detectives could not a much exception. could lead to broader plants just determine the total number of Here, deputies’ because the counts of the them, by looking at but interpose had to testimonial, marijuana plants they were period over some of time —some minutes required were under the Confrontation at least —a for determining mental method testify, thereby allowing jury Clause plants. the number of This sort of cumu- credibility. to assess the officers’ See impressions period lation of sense over a 68-69, Crawford, 541 124 U.S. S.Ct. time, through thought process mediated However, if 1354. the calculations were errors, easily that could contain is neither if example, nontestimonial —for the officers “present” impression,” nor a “sense and is reporting
were
their counts
order to
803(1).
encompassed by
therefore not
Rule
counting
coordinate
efforts rather than to
803(1) provides
exception
Rule
a narrow
evidence,
record
see United
States
Solo-
(9th Cir.2012)
rule for statements “de-
rio,
declaration.... Woods, through several v. went tions.” United States defendant] Cir.2002). (7th ample he had indicates that drafts F.3d upon his statements. time to reflect the extension of the Again, although by the Thus, provided any evidence exception present impression sense United States was unreliable.” letter may seem rela- circumstances of this case (9th Faust, Cir. F.2d v. harmless, because tively I do think is (internal 1988) quotаtions citations and actual testify to their the detectives did omitted). only could not tes- impressions, and sense (cid:127) inquiry on the foundational making “In they reported. We tify as to the number 803(1) (pres- admissibility under [FRE case, however, as if to consider this have (excited 803(2) impression), ent sense present if the testify, did not because 803(3) (state mind)], utterances), of exception apply, does impression sense factors: must evaluate three the court testify had to at all. I they might not have chance for re- contemporaneousness, possibly see how that scenario could do not flection, United and relevance.” underpinnings the basic comport with Ponticelli, 985, 991 622 F.2d States v. rule, scope or with the limited (9th Cir.1980), overruled on other 803(1). of Rule v. De by United States grounds (9th Cir.1984). F.2d 1255 Bright, 730 II. (cid:127) makes a statement de “The declarant that we should re- suggesting I am not very near the scribing the event at or Instead, rely I would on what verse. ... admit time of the observation We argue the catchall government does because the circum —that the statement hearsay exception applies. opinion given— under which it was stances substantively indicates that Rule 807 immediately after an observation-—di pretrial that the lack of appropriate, but substantially opportunity minish why fatal. I don’t see that is so. States v. notice is fabrication.” United (1st Cir. McElroy, 587 F.3d First, Hieng objected has not that he 2009). I notice. As far as received insufficient (cid:127) temporality requirement must “[T]he determine, can the current record does passage rigorous be because indicate whether there was sufficient no- time—or the lack thereof —is the effec- know, may have tice. For all we there proxy reliability for the tive been. of the declaration.” substance United substantively, More even there Green, 556 F.3d 155-56 States *17 was, notice, in there proper pretrial not (3d Cir.2009). There, the declarant’s fact, during a of notice the tri- good deal only problematic statement was testimony was introduced— al—before the time, lapse of a 50 minute because government pro- as to how the wanted to responding also he was to but because opinion explains, govern- ceed. As the by explain DEA to requests Jensen’s calcula- ment tried to introduce event. Id. times, court tions several but the district (cid:127) “A declarant who deliberates about hearsay objections. Eventually, sustained say provides to statements for what however, fully ex- methodology was particular possi- a reason creates the court admitted the plained, and the district not con- bility that the statements are There is no indication whatsoev- evidence. and, likely, are more temporaneous, an intent to invoke Rule of events er that notice of interpretations calculated
1149
difference,
III.
would have made
and
way
on the
sprung
the evidence was
no
view,
In my
holding
in Nazemian
“[Fjailure
give pretrial
defense.
notice
rests,
bottom,
pre-Crawford
at
on a
under
party
if
had an
will be excused the adverse
standing
unity
hearsay
of the
between
con
attack the trustworthiness
opportunity to
cepts and
analysis.
Confrontation Clause
v. Bach-
of the evidence.” United States
Moreover,
ultimate
its
conclusion—that a
Cir.1993).
(9th
sian,
796,
F.3d
translator’s out-of-court version of a testi
Moreover,
perspec-
examined from the
monial statement
subject
need not be
given
tive of Rule
and
that the detec-
cross-examination at
in great
trial —seems
(and that,
testify
opinion
tives did
as the
holdings
tension with the
of Melendez-
explains,
reported
once the totals
to Jen-
Massachusetts,
Diaz v.
557 U.S.
evidence,
hearsay
sen are in
other
excep-
(2009),
S.Ct.
L.Ed.2d 314
tally
report),
tions cover the
sheet and
—
Mexico,
U.S. -,
Bullcoming v. New
only
“hole” that has to be covered
Rule
(2011),
131 S.Ct.
quirement was waived because not raised by Hieng harm- lack of notice was
less.