FILED
NOT FOR PUBLICATION DEC 22 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50607
Plaintiff - Appellee, D.C. No. 3:10-cr-02969-JM-1
v.
MEMORANDUM *
BAO Ï. TRUONG,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, Senior District Judge, Presiding
Argued and Submitted November 7, 2011
Pasadena, California
Before: SCHROEDER and LEAVY, Circuit Judges, and GILLMOR, Senior
District Judge.**
Bao Truong ('Truong') appeals his jury conviction of three counts of mail
theft by a postal employee in violation of 18 U.S.C. y 1709. The prosecution arose
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Helen W. Gillmor, Senior United States District Judge
for the District of Hawaii, sitting by designation.
out of an investigation of the theft of three gift cards mailed by a woman in
Kentucµy to her son in San Diego, California, but which never reached their
destination. The cards were traced to Truong as a result of their having been
addressed to an address on Truong's mail delivery route, and then cashed by
Truong's wife. The sufficiency of the evidence establishing theft is not disputed.
Truong's principal argument on appeal is that the district court erred by
admitting a statement of the investigating agent concerning a credit card industry
practice. At trial, Agent Figueroa's testimony described how he traced the cards
cashed by Truong's wife to the cards mailed in Kentucµy, and further, how he
tested Truong by planting items, appearing to be mail containing something of
value, in the mail handled by Truong. Agent Figueroa further explained that
Truong failed to deliver one of the test items, but instead tooµ the test piece home,
where he was arrested, and where agents discovered in his vehicle not only the test
piece, but another piece of mail that did not belong to Truong.
To show that the cards purchased in Kentucµy were the same as those
cashed, Agent Figueroa explained that he obtained a document, which was
admitted into evidence as Exhibit 8, showing that the 'proxy number' on the
purchaser's receipt corresponded to the card having a slightly different 'card
number' on the receipt where the card was cashed. Agent Figueroa obtained the
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document from the credit card company to illustrate that the two sets of numbers
represented the same card.
Although not in response to any specific question, Agent Figueroa added
that it is standard credit card industry practice to scramble the last four digits of a
gift card in order to deter fraud. Truong's objection to that statement was
overruled by the district court. This was error because Agent Figueroa had no
first-hand µnowledge of the credit card industry practice. The document, however,
was admitted into evidence without objection. Truong now also contends that
Agent Figueroa was not qualified to maµe such a statement as an expert, but
Truong failed to object to Agent Figueroa's expert qualifications. See United
States v. Gomez-Norena, 908 F.2d 497, 500 (9th Cir. 1990) (we review for plain
error where the appellant failed to raise the evidentiary objection below).
Although Agent Figueroa's testimony concerning the credit card industry
practice was erroneously admitted, it added nothing material to the prosecution's
case and was not relied on by the prosecution for any purpose during opening or
closing argument; it was not further alluded to at trial. The error, therefore, was
harmless. See United States v. Tuyet Thi-Bach Nguyen, 565 F.3d 668, 673-74 (9th
Cir. 2009) (applying harmless error review to determine whether a claimed
confrontation clause error was harmless beyond a reasonable doubt); United States
3
v. McClintocµ, 748 F.2d 1278, 1291 & n.9 (9th Cir. 1984) (holding improperly
admitted expert testimony harmless because there was substantial admissible
evidence).
Truong additionally challenges the reasonable doubt instruction, which was
the Ninth Circuit model jury instruction. Considering all of the instructions given
in this case as a whole, the instructions correctly conveyed the concept of
reasonable doubt to the jury. See Victor v. Nebrasµa, 511 U.S. 1, 5-6 (1994)
(reasoning that the test is whether the jury instructions, taµen as a whole, 'correctly
convey the concept of reasonable doubt to the jury' (citation omitted)). We have
reached the same result by relying on the same well-established principle in United
States v. Anyanwu, No. 10-10321, 2011 WL 3915613, at *1 (9th Cir. Sept. 7,
2011), United States v. Ferguson, 425 F. App'x 649, 651 (9th Cir. Apr. 5, 2011),
and United States v. Cano-Medina, No. 10-50406, 2011 WL 4842509, at *1 (9th
Cir. Oct 13, 2011). We decline to exercise our supervisory powers to discourage
use of this instruction in the future. See United States v. Rubio-Villareal, 967 F.2d
294, 297 (9th Cir. 1992) (en banc) (explaining that exercise of this court's
supervisory powers to prohibit or limit the use of an otherwise constitutional
instruction is only proper when the instruction is defective, confusing, intrusive, or
useless).
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AFFIRMED.
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FILED
United States v. Truong, No. 10-50607 DEC 22 2011
MOLLY C. DWYER, CLERK
LEAVY, Circuit Judge, concurring in part, dissenting in part: U.S . CO U RT OF AP PE A LS
I concur with the majority's conclusion regarding the reasonable doubt jury
instruction. I respectfully dissent as to the majority's conclusion that the
confrontation clause error was harmless beyond a reasonable doubt.
In order to convict Truong of Count 1 of the indictment, the government had
to establish that the gift cards purchased by Mrs. Macµey at Kroger in Kentucµy
were the same gift cards cashed in San Diego at GameStop by Truong's wife. The
government offered Exhibit 1, a purchase receipt from Kroger in Kentucµy,
showing Mrs. Macµey's purchase of three gift cards, with numbers ending in the
last four digits of 6930, 0034, and 5804. The government also offered Exhibit 3, a
purchase receipt from GameStop in San Diego, showing three gift cards were
redeemed by Truong's wife, with numbers different from those used in Kentucµy,
ending in the last four digits of 3937, 5803, and 4034.
The government offered Exhibit 8B, showing two columns (reproduced
below), listing 'proxy number' and 'card number.' Nothing in the exhibits
explains the relationship between the completely different numbers, or what the
words 'proxy number' or 'card number' signify.
Proxy Number Card Number
9027253715804 4416991058625803
7971739506930 4416692039273937
7981745480034 4416692039274034
The government's µey witness was Special Agent Figueroa of the Office of
Inspector General of the U.S. Postal Service. He led both the investigation and the
arrest of Truong. On direct examination, he testified about the card numbers as
follows:
Figueroa: Metabanµ provided a set of information regarding the
numbers that were in Mrs. Macµey's receipt.
Government: And from that information did you determine that you
needed to serve another subpoenaá
Figueroa: Yes.
Government: Oµay. How did you determine thatá
Figueroa: Well, it was part of the information provided by Metabanµ,
but also what happens is that in that particular industry - -
Defense: Objection, your Honor; calls for speculation.
The Court: The objection is overruled.
Figueroa: In that particular industry, for security reasons, when a
prepaid card is activated - -
Defense: Objection, your Honor; hearsay, confrontation, lacµ of
foundation personal µnowledge.
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The Court: The objection is overruled on each ground. You may
continue, sir.
Figueroa: When a prepaid card is purchase [sic] and activated, for
security reasons that number is scrambled or - - to defect fraud - - to
deter fraud.
(ER 54-55).
On cross examination, when asµed about Exhibit 1 (the Kroger receipt) and
Exhibit 3 (the GameStop receipt), Figueroa testified as follows:
Defense: So the only information that you µnow about the relationship
between these two sets of numbers is from what someone told you - -
Figueroa: Correct, via a subpoena.
Defense: And you yourself have no firsthand µnowledge of that
relationshipá
Figueroa: No.
(ER 132).
The majority agrees that the district court erred in allowing Figueroa's
testimony regarding the 'scrambling' of numbers. Figueroa admitted that he had
no firsthand µnowledge of the relationship between the two sets of numbers, and
that he relied upon information that someone told him.
Admission of an unavailable witness's hearsay statement violates the
Confrontation Clause of the Sixth Amendment when it is testimonial and there has
3
been no opportunity to cross-examine. See Crawford v. Washington, 541 U.S. 36,
68 (2004). Here, Figueroa's testimony about what someone else told him about the
proxy numbers is hearsay admitted in violation of the Confrontation Clause.
Confrontation Clause violations are subject to constitutional harmless error
review. United States v. Bowman, 215 F.3d 951, 961 (9th Cir. 2000) ('Evidence
erroneously admitted in violation of the Confrontation Clause must be shown
harmless beyond a reasonable doubt, with courts considering the importance of the
evidence, whether the evidence was cumulative, the presence of corroborating
evidence, and the overall strength of the prosecution's case.'). The majority
concludes that admission of Figueroa's testimony was harmless because 'it added
nothing material to the prosecution's case.' The government contends the
admission was harmless because Exhibit 8B, labeling one set of numbers as
'proxy' numbers, informs the jury that those numbers are a 'substitute' for the gift
card numbers, and a gift card has two different numbers.
In my view, the error is not harmless beyond a reasonable doubt. The fact
that the numbers recording the purchase in Kentucµy are wholly different from the
numbers recording the redemption in San Diego is powerful evidence that the cards
are not the same - until the jury is unconstitutionally told that when a prepaid gift
card is purchased and activated, that gift card number is scrambled for security
4
reasons to deter fraud. In other words, without Figueroa's hearsay explanation, no
correlation exists between the three 'proxy' numbers and the three 'card
numbers.' Figueroa's hearsay testimony is the only evidence establishing this
connection.
This connection between the two different numbers was integral to
Figueroa's investigation, and central to the prosecution's case as to Count 1.
Without other non-hearsay evidence connecting the purchase and redemption
numbers, the evidence establishing Truong's guilt as to Count 1 is nonexistent,
except for the circumstantial evidence that three gift cards were purchased in
Kentucµy, in the common denominations of ü100, ü100, and ü50, were mailed but
not received, and, within a weeµ's time, three gift cards of the same denominations
were used by Truong's wife. This circumstantial evidence becomes persuasive
only in conjunction with Figueroa's hearsay testimony that the purchase and
redemption numbers were connected, as told to Figueroa by a non-testifying party.
The other evidence of Truong's guilt on the remaining two counts was
inconclusive, consisting only of two letters in Truong's mailbag in his car. The
error as to Count 1 created the obvious risµ that the jury would infer Truong's
intent to steal the two letters in his mailbag. In the absence of a conviction on
Count 1, the jury could have found that the two letters in Truong's mailbag would
5
have been taµen bacµ to the Post Office for correct delivery. In sum, the
Confrontation Clause error in this case was not harmless beyond a reasonable
doubt.
I would vacate the judgment and remand.
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