*1 1156 (9th Hamilton, 1066, doubts, v. F.3d 1071 Cir. willingness to exert 391 of her
of these 2004) (“ to decide the case with- truly only plain efforts review for error or best ‘We predispositions reference to out whether an error is harmless when assess ” at presented solely on the based (quoting error is not structural.’ trial.”). Sanchez-Cervantes, States v. 282 United (9th Cir.2002))). 664, F.3d 670 affir- contrast, juror our case past experi- that her matively concluded Additionally, although majority cor- ability to be a fair would affect her ence way” rectly principal observes that “[t]he not come at the juror. statement did Her judges normally impartial trial assure an dire; it came at the of voir beginning through system challenges “is examination after conclusion her dire,” Allsup, during exercised voir 566 the need for a emphasized trial court had F.2d at our case law nowhere defines “A impartiality. “direct assurance” system way challenges only as the a colorable claim of court confronted with jury. impartial Dyer, to achieve an See juror investigation undertake an must bias (describing only at voir 151 F.3d dire circumstances.” of the relevant facts and important mechanism” for ensur- “[o]ne as (9th Calderon, 151 F.3d Dyer v. ing impartiality). judges duty Trial have a Cir.1998) (en banc). Moreover, court “[a] juror if prospective to excuse a bias is juror if prospective excuse a actual must Allsup, 566 during discovered voir dire. during voir dire.” bias is discovered Unit- juror seating F.2d at 71. Because a biased 68, 71 Allsup, v. 566 F.2d ed States error, required. is a structural reversal is Cir.1977). of a statement that In the face juror’s past experience would affect her reasons, respectfully For I these dissent. ability juror, a fair the district court to be not have allowed her sit on the should
jury.2 requiring error
Juror bias is structural n. 2. Dyer, 151 F.3d We reversal. jurors long recognized that biased so have America, process trial that their UNITED STATES infect the criminal automatic jury requires Plaintiff-Appellee, on a re- produced by that any versal of verdict v. Hendrix, jury. United States TRAN, Quang Hao Defendant- (9th Cir.1977). If even one Appellant. juror unduly prejudiced is biased or influenced, improperly the criminal defen- No. 07-30270. right dant is Amendment denied Sixth Appeals, United States Court of impartial panel. to an Id. Ninth Circuit. out, majority points As the de- rightly challenge juror fense counsel did not Argued Aug. and Submitted 2008. objection for cause or raise other 24, 2009. Filed June However, empanelment. ju- her because error, plain ror bias is a structural error
analysis is not United States appropriate. majority affected a crime similar to the one cannot cite one case where a juror impartial prospective court found who bring tried. concluded, did, ultimately that she as Doe *3 plea agreement as substantive
redacted under Federal Rule of Evidence evidence 801(d)(1)(A). argues Tran further supporting there was insufficient Although we find that the his convictions. evidentiary not err in its district court did rulings, we reverse Tran’s convictions be- insufficient evidence to cause there was support them.
I. BACKGROUND *4 Marijuana Importation A. The
Distribution Scheme Department
In of Home- June Security, Immigration and Customs land Ressler, Dorgan, C. Res- Allen M. John (ICE) investigating Enforcement was a PLLC, Seattle, WA, for the Tesh sler & and distribution or- importation defendant-appellant. ganization. agents Undercover federal ar- Chrisham, Roe, ranged facility to rent a warehouse to an L. Susan M. Catherine suspected importing of mari- organization Seattle, Attorneys, Assistant United States juana, maintaining while surveillance of WA, plaintiff-appellee the United facility. Agents observed a trailer States of America. being truck driven into warehouse. Then a man drove a series of different cars out of the warehouse. The trailer into and was then removed. monitoring ap- the warehouse for
After weeks, agents ob- proximately two approved a search warrant with tained PREGERSON, Before: HARRY Inside the ware- delayed notification. CANBY, T. C. JR. and JOHN WILLIAM house, cargo an insulated agents found NOONAN, Judges. Circuit been re- container. Some insulation had from the walls of the container moved PREGERSON; by Judge Opinion space a for contraband. make by Judge NOONAN. Dissent trailer was a new On June PREGERSON, Judge: Circuit Agents into the warehouse. fol- brought Defendant-Appellant Quang Hao the same man who had been ob- lowed (“Tran”) appeals his convictions for he drove cars into and served earlier as more than 100 kilo- of the and over to the conspiracy possess then out warehouse Agents stopped mall. each car after it marijuana with intent to distrib- grams of They mari- from the mall. found departed 841(a)(1), § ute in violation of U.S.C. total, juana every agents car. (b)(1)(B), § and two counts of approximately kilograms, seized of with intent to dis- possession marijuana. of pounds, over 700 violation U.S.C. tribute (b)(1)(D), § 841(a)(1), case, § and 18 U.S.C. Tran, a the defendant this was erred argues Mustang, that the district court in a silver one of the passenger by agents. The silver stopped a cars by admitting portion a co-defendant’s him, code, Tam being Ngu- Nguyen by was driven called identified Mustang car yen (“Nguyen”). registered arranged was to meet him at the Mc- McDonald’s, but Nguyen, not to Tran or third mall. Donald’s At the Nothing found in the party. backseat Tran sitting eating Nguyen while car, agents approxi- but discovered spoke away with Britton. Britton drove kilograms, or mately twenty-seven slightly later, Half an Nguyen’s car. hour Britton marijuana in sixty pounds, garbage over brought Nguyen. the car back to Nguyen Nguyen the trunk. Tran and bags inside testified that this was the first time he arrested. promptly were picked aup load of prose- did not remember what he told the B. Tran’s Trial cuting attorney agent, and an Agent ICE charged Tran was with Ingersoll, during an interview week be- kilograms possess more than 100 of mari- fore he testified at trial regarding Tran’s juana with intent to distribute and two drug operation. involvement in the He possession marijuana in- counts saying also did not remember in the inter- tent to distribute. the driver of up view that Tran set the drug transaction. Mustang, pleaded guilty pos- the silver He testified he did not know whether *5 marijuana session of with intent to distrib- Tran a people had connection with the in Tran pleaded proceed- ute. not marijua- Canada who were supplying the to trial. ed na. government Nguyen
The called to testi- government The Agent Ingersoll called fy against Nguyen Tran. stated that he impeach Nguyen. to The district court year had known Tran for about and that Agent Ingersoll’s testimony allowed not Tran him for had lived with about a month truth, only impeach for its but Nguyen’s to prior According Ngu- to their arrests. to credibility. Agent Ingersoll that stated he yen, Tran was with him in the car when present was in a pre-trial interview with Nguyen picked up marijuana, the but Nguyen, during which Nguyen very told a marijuana was not involved in the distribu- story different than what he had recounted Nguyen tion scheme. stated that Tran at According Agent Ingersoll, trial. to was with him at the time of their arrests Nguyen stated that he had worked for Nguyen day because was that tired and Tran, expected paid and that he to by be asked Tran go hang “to out” with him. transporting Tran for the Ac- cording Agent Ingersoll, Nguyen had attorney
The prosecuting questioned Ngu- further stated that the woman that Nguyen regarding how he learned of the yen spoke phone to on the awas contact of drug transaction. According Tran’s, and that Tran standing was next to he was home alone when he received Nguyen during phone the conversation. phone call from a Vietnamese-speaking Finally, according Agent Ingersoll, marijuana woman regarding pick up. the Nguyen said that Tran was with him dur- Nguyen stated that Tran staying marijuana time, ing exchange the it him at because was the but was not dur- Nguyen picked the first time that had ing phone up call. Nguyen testified that marijuana, and Tran gave teaching the woman him him a code and told him what to that someone him do. would call when it was to pick up marijuana. time jury The district court instructed the man, Nguyen’s pre-trial testified that a unsworn later iden- state- Britton, tified Agent Ingersoll as the same man seen driv- ments to were admitted warehouse, ing only cars into and out of in judging Nguyen’s to assist the that Tran to work Pham stated used for explained The court credibility. him, be moving drug money could not from California Ingersoll’s Agent Pham, other than any purpose Washington. According considered credibility. Nguyen’s in a he had been involved three- operation moving month from sought to admit a The then using to the United States trailer Canada plea agree- portion Nguyen’s redacted in that opera- trucks. Pham testified that of Evidence under Federal Rule ment tion, bring individuals would their cars to a 801(d)(1)(A).1 The Statement of Facts location, leaving keys their on designated part: in relevant plea agreement reads of their cars. An unidentified the visors together with Hao Phy Quy Nguyen, “Tam (never Pham) would individual seen Tran, picked up approximately Quang place marijuana in the cars. for redistribution pounds admissibility objected to the night.” Pham also testified that 2003 he twice arguing that plea agreement, received from Tran. A friend of was not plea agreement statement mari- bring Pham’s Canada would in-court testi- inconsistent with States, juana into the United then Tran mony, plea and that the introduction of the up bring it it to Pham in pick would right of con- agreement would violate Washington state. court admitted the frontation. The district presented also Chad objection. evidence over Tran’s previously Shaw as a witness. Shaw had 404(b)2 Federal Rule of Evidence Under conspiring been convicted for to distribute admitted, , court also over the district MDMA, ecstasy. also known as that Tran had objection, *6 Pham, Shaw testified that he worked for in been involved previously delivering marijuana from Seattle solely was admitted deals. That evidence in 2004. stated that he Minnesota Shaw showing of Tran’s knowl- purpose for the Pham, through met Tran and that on sev- witnesses, Tham Two edge. present Tran was when eral occasions Shaw, regarding testified Pham Chad being delivered. previous dealings in expressly The district court limited the testimony, Pham At the time of his admissibility presented by of the evidence charge a related pleaded guilty to Pham and Shaw to the issue of Tran’s jurisdiction. Pham admitted a different knowledge.3 Tran in the testifying against that he was testimony Agent In to the of him addition cooperation that his would aid hopes Shaw, Pham, Ingersoll, Nguyen, sentencing. 801(d)(1) provides prove the acts is not admissible to character 1. Federal Rule of Evidence part prior by person a in order to show action in con- that a statement a of in relevant however, may, hearsay formity therewith. It be ad- if declarant testi- "[t]he witness is not subject purposes, proof hearing missible for other such as of at the trial or and is fies intent, statement, motive, opportunity, preparation, plan, concerning the cross-examination (A) knowledge, identity, or absence of mistake or inconsistent with the and the statement is ” accident, added). given (emphasis testimony, under .... declarant's and was perjury subject penalty of at a oath to the trial, jury: "You hearing, proceeding, or in a 3. The district court instructed or other engaged deposition....” have heard evidence of other crimes by may the defendant. You consider 404(b) only provides as it bears on the defendant’s Rule of Evidence 2. Federal crimes, "[ejvidence knowledge purpose.” wrongs, no other of other 1162
government’s Nguyen’s plea case chief involved the agreement constituted a testimony agents. prior ICE of several addi- inconsistent statement under Rule 801(d)(1)(A). impeaching Nguyen’s testimony, tion to We review a district court’s Ingersoll evidentiary testified about his role in Agent rulings for abuse of discretion. Curtin, 935, renting space the warehouse to members United States 489 F.3d (9th Cir.2007) (en banc); drug operation. He did not mention United States v. testimony. Hernandez-Herrera, during Agent Cagen Tran 273 F.3d (9th Cir.2001) (“We regarding plan also to rent testified review the admission space, the warehouse and also did not of an exception evidence under to the hear discretion.”). testimony. Agent say Tran in his mention rule for abuse of “Evi Abeyall dentiary rulings testified he was when will be reversed for abuse were arrested only and that of if discretion such nonconstitutional marijuana in there was the trunk of the likely error more than not affected the agent car. A final testified regarding Corona, verdict.” United States v. weight marijuana total of Cir.1994). found as a result operation, of the ICE and the amount of 801(d)(1)(A) provides Rule that a trial by found in the car driven Ngu- witness’s out-of-court statement is not yen. At the government’s close hearsay if the statement is “inconsistent case, judgment a acquit- moved for with the testimony, declarant’s and was tal under Federal Rule of Criminal Proce- given subject under oath penalty to the dure arguing that the had trial, perjury at hearing, a pro- or other prima not made facie case on all the ceeding, or in a deposition.” We have charged elements of the offenses. The stated that “trial judges must retain a high motion was denied. degree flexibility in deciding the exact found Tran on all three point prior at which a statement is suffi- counts. Tran was a five-year sentenced to ciently inconsistent awith witness’s trial term imprisonment. On appeal, he ar- permit its use in evidence.” (1) gues that: the district court erred United States v. Morgan, 555 F.2d admitting statement plea (9th Cir.1977). *7 agreement prior as a inconsistent state- The district court ruled that the ment under Federal Rule of Evidence Nguyen’s statement in plea agreement was 801(d)(1)(A); (2) by the district court erred inconsistent with Nguyen’s in-court testi concluding Nguyen’s that plea agreement mony. We conclude that the court so “given
was
under oath” and therefore ad-
ruling did not abuse its
Ngu
discretion.
missible as substantive evidence of Tran’s
yen’s
testimony
in-court
vague
was
(3)
guilt; and
there was insufficient evi-
evasive. He
that
picked up
testified
he
the
dence from
which the
could find Tran
marijuana because he was “young and stu
guilty
charges.
of the
We
each
discuss
of
pid and did some stupid things”
that
arguments
in turn.
he was in
night
the car on that
“pick up
whatever
Nguyen
the car.”
con
II. DISCUSSION
ceded that Tran was with him on that
Nguyen’s
Agreement
A.
Plea
Was
night, but stated that Tran was not in
Admissible as a Prior
Inconsis-
drug
volved
the
Nguyen
deal.
also
tent Statement.
that
testified
he did not remember
the
Tran first
that
contends
the dis
names of
people
the
told him
who
about
trict court erred when it
concluded that
the
transportation
scheme.
against
Ngu-
Tran.
meeting
as substantive
could remember
although he
And
Agent
attorney
agreement
states that
prosecuting
yen’s
plea
redacted
the
with
testimony,
week before
Ingersoll
Nguyen
entering
“understands that before
had told
what he
not remember
he did
plea
guilty,
placed
of
he will be
under
this
Tran’s involvement.
them about
presented
No evidence was
that
oath.”
departed from the custom-
the trial court
plea agreement
Nguyen’s
of
portion
under oath
ary practice
placing Nguyen
was incon-
into evidence
that was admitted
Nguyen signed
plea agreement.
before
reluctant and eva-
with
sistent
transcript
Nguyen’s plea hearing
A
of the
testimony. Under an abuse
in-court
sive
standard,
Nguyen
it was not error
that
was in fact under oath
of discretion
shows
to admit this statement.
the district court
in court.
pleaded
when he
While
court’s
Accordingly, we affirm the district
oath, Nguyen
agreed
also
that he
under
plea agreement’s
ruling admitting
carefully
plea
reviewed the written
had
statement.
that all the terms of his
agreement, and
agreement
with the
were con-
Did Not Plain-
B. The District Court
tained therein.
by Concluding Nguyen’s
ly Err
Moreover, the district court’s admission
Agreement was
Un-
Plea
“Given
Nguyen’s plea agreement including
der Oath.”
noting Tran’s
single
statement
plea
argues
Tran next
“seriously
Nguyen
with
does not
affect[]
substan
was not admissible as
agreement
fairness, integrity,
public reputation
against him because it was
tive evidence
United States v.
judicial proceedings.”
Because Tran did
“given
not
under oath.”
Garcia-Guizar,
511,
F.3d
Cir.
Nguyen’s plea
object
not
to the use
1998).
plenty
There was
of other evidence
as substantive evi
agreement statement
including Nguyen’s
testimo
record—
trial,
at the time of
we review for
dence
ny
night
that Tran was with him on the
States,
plain error. See Jones United
arrested,
they were
and the
119 S.Ct.
527 U.S.
Nguyen and
agent
the ICE
who arrested
(1999).
plain
error
L.Ed.2d 370
Under
showing
together
Tran was
Tran —
standard,
is not warranted unless
relief
night
deal.
(1)
(2)
error;
plain;
there is:
an
(3) that affected the defendant’s sub
Evidence
C. There Was Insufficient
Id. rights.
defendant] a reasonable doubt.” Unit- beyond describing crime distribution Esquivel-Ortega, 484 F.3d ed v. States operation generally, but not mention- Cir.2007). (9th It is “the re- 1224 by Tran in ing conspiracy. role fairly the trier of fact to sponsibility of (cid:127) single A plea sentence testimony, weigh in the to resolve conflicts agreement stating Quy that “Tam Phu evidence, and to draw reasonable infer- together Quang with Hao basic facts to ultimate facts.” ences from Tran, picked up approximately 70 307, 319, Virginia, 443 U.S. Jackson pounds marijuana for re-distribution (1979). 2781, L.Ed.2d 560 S.Ct. night.” (cid:127) The testimony Agent Ingersoll ad- Conspiracy Conviction solely mitted for impeachment, re- argues government Tran that the failed that, counting during pretrial inter- prove participated to that he the con- view with the FBI and prosecuting spiracy possess for distribu- attorney, Nguyen implicated had Tran successfully prosecute tion. To Tran on the drug conspiracy. conspiracy charge, re- (cid:127) The of two wit- (1) quired prove: years that within five nesses, Shaw, Pham describing and 27, 2006, leading up including to and June prior Tran, drug dealings their an agreement there was between two or purpose admitted for the limited people pos- more to commit the crime of showing knowledge. Tran’s sessing marijuana with the intent to dis- (2) it; tribute that Tran became a pieces Once these of evidence are confined conspiracy, knowing member of the of at purposes they to the for which were admit- objects intending least one of its to ted, government’s proof against help it. accomplish (1) only amounts to: Tran’s as Nguyen’s passenger during “[0]nly a slight connection is (2) deal; knowledge marijua- Tran’s necessary support a conviction of know tactics, na distribution based on the testi- ing participation” conspiracy. United mony of Pham and Shaw that admit- Sanchez-Mata, States v. 925 F.2d “ ted for the purpose showing limited (9th Cir.1991). ‘[S]light connection’ 404(b). knowledge Tran’s under Rule not this context does mean that government’s proving burden of a connec presented against The evidence slight.” tion is United States v. Herrera- and the reasonable inferences drawn from Gonzalez, Cir. that evidence do not support slight even a 2001). connection between Tran conspira- and the cy. The evidence at trial showed the so-
Viewing light the evidence in the phisticated drug ring distribution government, most favorable to the the evi named several individuals connected it. dence was insufficient show that Tran name, however, was not mentioned slight had even a connection to the con during testimony. spiracy. principal presented Tran’s name was to the was: only mentioned in connection with his ar- *9 rest. Tran did not own the silver Mustang (cid:127) The in-court in trunk, carrying marijuana in the nor was which that stated Tran was he the driver. No evidence was intro- present in during drug the car the duced at trial from which it could in- transaction but denied that Tran be was involved in the conspiracy. proved beyond ferred —much less a rea-
1165
spiracy
possess
to
with intent to
participated
distribute
sonable doubt—that
manner.
possession
and
with intent
conspiracy
the
distribute
Id. at
We reversed
as a
passenger
presence
at 1170.
both convictions. Id.
marijuana
while the
Mustang
the silver
respect
conspir-
With
to Sanchez-Mata’s
his knowledge
transported,
was
conviction,
acy
that
we observed
there was
marijuana
marijuana
was
distribution
slight
insufficient
of even a
of law
evidence
con-
a matter
to establish
insufficient as
guilt
conspiracy charge. “It is
nection between the defendant and the
on the
with criminals
acquainted
conspiracy.
Although
not a
to be
crime
Id. at 1167-68.
the
present
they
when
are
physically
be
government had offered evidence from
Herrera-Gonzalez,
committing crimes.”
concluded
which the
could have
that
cases
263
at 1095. “Our
have estab
F.3d
marijuana
that
Sanchez-Mata knew
was
at the location of a
lished that
“knowledge
present, we held
activities, while
conspiracy’s
the activities drugs
enough
are
is not
to prove
knowing
they
are
taking place,
are
drug conspiracy.”
involvement in a
Id. at
taking
proof
without
intentional
place,
(citing
Penagos,
States v.
United
conspiracy,
sup
cannot
participation
(9th Cir.1987),
F.2d 346
United States v.
a
conviction.” Id. at 1097.
port
conspiracy
(9th Cir.1980),
Lopez,
1167
it
by his action to make
succeed.”
statement,
seek
sup-
which
basis of
619,
at the
Id. at
69 S.Ct.
presence
Tran’s
more than
no
ports
byon
carried
conduct
conspiratorial
site of
Id. at 1168-69.
conviction for
Accordingly
others.
not offered suffi-
government
has
with the
possess
jury
a rational
from which
cient evidence
is vacated.
to distribute
intent
guilty
possession
have found Tran
could
theory. The
aiding
abetting
and
on an
Intent
to Dis-
with the
2. Possession
and the reasonable inferences
evidence
tribute Convictions
support only finding
it
drawn from
Tran on the
successfully prosecute
To
in
passenger
as a
with
possession
charges
aware that
the car
Mustang and
silver
distribute,
government intent
marijuana. No evidence was of-
contained
(1)
knowingly
required
prove:
could find
fered from which rational
(the
27, 2006
marijuana on June
possessed
“consciously
Ngu-
in
share[d]”
that Tran
(2)
arrest);
pos-
and
that he
of his
date
mari-
yen’s
possessing
criminal act of
it, or
it
the intent to distribute
sessed with
it.
juana with the intent to distribute
San-
abetted
that he aided and
Therefore,
chez-Mata,
slight connection drug ring smug- well-organized A and distrib- marijuana from Canada gling *13 gang operat- it in the U.S. uting where warehouse out of a suburban ing drug. get batches of up showed cars from of the cars loaded Tran was in one driver, 22 the warehouse. time, stupid. if not to be naive appears let him unlikely gang that the would It’s having without pounds of the have 70 plenty Tran had him under control. drug smuggling from Cana- experience given why he reason was plausible da. No in a car to which the sitting should be part unless he was are offloaded drugs ac- gave vague conspiracy. Nguyen why he he knew Tran count of how there, impeached. A Nguyen was that, beyond infer juror could rational doubt, conspira- Tran was the reasonable car. drugs cy’s shepherd man to chimes with This reasonable conclusion that he and Tran to- Nguyen’s evidence up the gether picked majority’s from the reversal I dissent Tran’s conviction. INC., Plaintiff-Appellant,
ZANGO, LAB, INC., KASPERSKY Defendant-Appellee.
No. 07-35800. Appeals, States Court United Ninth Circuit. Feb. Argued and Submitted 25, 2009. Filed June