FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10401
Plaintiff-Appellee, D.C. No.
v. 1:07-cr-00243-
ORM HIENG, OWW-2
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, Senior District Judge, Presiding
Argued and Submitted
August 30, 2011—San Francisco, California
Filed May 11, 2012
Before: J. Clifford Wallace, Marsha S. Berzon, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Wallace;
Concurrence by Judge Berzon
5063
5066 UNITED STATES v. HIENG
COUNSEL
Edgar Eugene Page, Page & Page Attorneys at Law, Sacra-
mento, California, for the defendant-appellant.
UNITED STATES v. HIENG 5067
Benjamin B. Wagner, United States Attorney; Laurel J. Mon-
toya (argued), Assistant United States Attorney, Fresno, Cali-
fornia, for the plaintiff-appellee.
OPINION
WALLACE, Senior Circuit Judge:
Orm Hieng appeals from his conviction and sentence (1)
for conspiring to manufacture and distribute more than 1,000
plants of marijuana and (2) for manufacturing and cultivating,
and aiding and abetting the cultivation of more than 1,000
marijuana plants. Hieng was convicted by a jury and sen-
tenced by the district court to ten years’ imprisonment, the
minimum sentence under 21 U.S.C. § 841(b)(1)(A)(vii).
Hieng moved for relief from the statutory minimum under the
“safety valve” of 18 U.S.C. § 3553(f), but failed to persuade
the district court that he had established the facts necessary to
qualify for relief.
Hieng raises several issues in his appeal. First, he contends
that the district court erred by allowing a law enforcement
agent to testify regarding statements Hieng made through an
interpreter during a post-arrest interview. He also argues that
the district court erred in admitting testimony regarding the
number of marijuana plants found at the property where he
was arrested. Hieng contends further that the district court
erred at sentencing in finding that Hieng had not truthfully
provided all the information in his possession to the govern-
ment, thereby resulting in the denial of safety valve relief.
Finally, Hieng argues that cumulative error resulted in an
unfair trial. We have jurisdiction under 28 U.S.C. § 1291. We
affirm the conviction and sentence.
I.
To the extent objections were preserved for appeal, we
review the district court’s evidentiary rulings for abuse of dis-
5068 UNITED STATES v. HIENG
cretion. United States v. Stinson, 647 F.3d 1196, 1210 (9th
Cir. 2011). We review evidentiary rulings to which no objec-
tion was made for plain error. United States v. Chung, 659
F.3d 815, 833 (9th Cir. 2011). On plain error review, we can-
not provide Hieng relief unless he
demonstrates that (1) there is an “error”; (2) the error
is “clear or obvious, rather than subject to reasonable
dispute”; (3) the error “affected the appellant’s sub-
stantial rights, which in the ordinary case means” it
“affected the outcome of the district court proceed-
ings”; and (4) “the error seriously affect[s] the fair-
ness, integrity or public reputation of judicial
proceedings.”
United States v. Marcus, 130 S. Ct. 2159, 2164 (2010), quot-
ing Puckett v. United States, 129 S. Ct. 1423, 1429 (2009);
see also United States v. Olano, 507 U.S. 725, 731-37 (1993).
We review the district court’s factual findings at sentencing
for clear error. United States v. Real-Hernandez, 90 F.3d 356,
360 (9th Cir. 1996). We will not disturb its findings unless
they are without foundation. United States v. Ajugwo, 82 F.3d
925, 929 (9th Cir. 1996).
II.
On August 28, 2007, detectives of the Fresno County Sher-
iff’s Department discovered a large marijuana growing opera-
tion in a vineyard behind a residence in Fresno, California.
They discovered marijuana plants growing among the grape-
vines in approximately fifteen to twenty rows in the vineyard.
During the investigation, detectives also discovered marijuana
plants growing inside the residence.
After discovering the marijuana plants in the vineyard,
detectives saw a car leave the property, circle the area, and
return to the residence. They stopped the car and found plant-
growing paraphernalia on the driver, Lem Phin. As they
UNITED STATES v. HIENG 5069
investigated the property, detectives found Hieng sitting in a
chair under a tree outside the house. Inside the house, investi-
gators discovered items of identification for both Phin and
Hieng.
Fresno County Sheriff’s Department detectives simulta-
neously eradicated and tallied the plants in the vineyard.
Detectives who participated in the effort testified that they
eradicated the plants by going up and down each row, pulling
or cutting marijuana plants, and keeping a mental tally of the
number eradicated. When they finished pulling plants in a
row, they gave the plants to a member of the team who loaded
them on a truck, and gave their tally to Detective Jensen.
None of the detectives who testified remembered the actual
number of plants that they had eradicated, but they testified
that they gave the accurate number to Detective Jensen and
saw him record the number they reported.
Detective Jensen testified that he kept an accurate tally of
the plants he counted and of the numbers reported to him by
the other detectives. He testified that he added all the tallies
manually, verified his addition, and entered the final tally in
his report. The final tally following this method was 1,039
plants growing in the vineyard and 70 plants growing inside
the house, for a total of 1,109 plants.
The thrust of Hieng’s trial defense was that he did not
know that marijuana was being grown at the site. He testified
that someone named Prasit had offered him $800 a month if
he would sign the lease for the property and stay at the house
at night. He testified that he never entered the vineyard and
that he did not know there was marijuana inside the house
because of his poor eyesight.
The government presented the testimony of Special Agent
Kunkel of the United States Drug Enforcement Administra-
tion who testified that on July 2, 2008, he interviewed Hieng
using an interpreter named Rithy Lim. Kunkel asked ques-
5070 UNITED STATES v. HIENG
tions in English, which Lim translated into Cambodian. Hieng
responded in Cambodian, and Lim translated the responses
into English. Kunkel testified that, during the interview,
Hieng denied that he knew there was marijuana in the house.
He claimed that he could not see the marijuana plants because
of his poor eyesight. Kunkel reported that when asked why he
could not smell the marijuana, Hieng responded that small
plants did not have an odor. Kunkel then asked how he knew
there was no odor. Hieng answered that he had heard it from
different people. When asked why another agent could smell
the marijuana when he was in the house, Kunkel said Hieng
responded that “it was like cigarette smokers. They don’t
smell the smoke, but non-smokers do.” Kunkel also testified
that Hieng said if he had known there was marijuana at the
house, he would have charged more than $800 per month.
The government did not call the interpreter, Rithy Lim, to
testify. On the first day of trial, immediately prior to the selec-
tion of the jury, the prosecution moved to exclude witnesses
from the trial, which the defendants joined. Lim was serving
as an interpreter during the proceedings and he mentioned that
he had received a subpoena from the government. Lim raised
the concern that if he was to be called as a witness he would,
perhaps, have to be excluded from the courtroom. The gov-
ernment explained that it only intended to call Lim if it
needed to impeach Hieng with a prior inconsistent statement,
and then only for the purpose of establishing the accuracy of
the translation of Hieng’s statements. The government clari-
fied that it intended to call the officer who took Hieng’s state-
ment to testify regarding the statement itself and did not have
a problem with Lim remaining in the courtroom during the
trial.
The district court responded that the “only potential . . . for
dispute is if Mr. Lim or Mr. Hieng disagreed with the inter-
pretation. Then you would have the right to call the interpreter
to ask him about the meaning in the Cambodian language ver-
sus the English language of what was said.” The court con-
UNITED STATES v. HIENG 5071
cluded that, “the interpreter is obviously not a percipient or a
fact witness to any of the events. This rather goes to his job
as an interpreter and the accuracy of his translation of an
interview.”
Hieng’s attorney neither objected to Lim’s presence at trial,
nor raised the possibility that Hieng would want to confront
Lim. Hieng’s attorney said,
My only point of contention is that I’m not so sure
the only issue is the accuracy of the Cambodian lan-
guage in this issue. What I’m trying to get at is it’s
possible, just as in speaking the English language,
that somebody doesn’t write it down verbatim and
they shorthand it. . . . I’m saying that regardless of
what was translated into English, it’s possible the
officer may have written something else down in
shorthand or whatever . . . .
The district court responded that Hieng would be entitled to
question the accuracy of the officer’s transcription of the
translated statement, and that accuracy of transcription is
always an issue whenever a statement is taken.
III.
A.
Hieng’s first argument is that the district court committed
plain error by admitting Special Agent Kunkel’s testimony
regarding the statements Hieng made during the post-arrest
interview on July 2, 2008 because the statements were inad-
missible under Federal Rule of Criminal Procedure 11(f) and
Federal Rule of Evidence 410 as statements made during plea
discussions. The government responds that the statements
were admissible because the circumstances of the interview
indicate that it was a proffer meeting, that is, a private meet-
ing with the government where Hieng will answer questions
5072 UNITED STATES v. HIENG
perhaps leading to a plea agreement. In such a meeting, Hieng
would have agreed that his statements could be used to
impeach him if he testified differently.
Hieng did not object to Kunkel’s testimony at trial. Hieng
argues now that the district court committed plain error by
failing to inquire, sua sponte, whether he had waived his
rights under Rule 11(f) and Rule 410. We now consider
whether the district court had such a duty.
[1] By arguing that Hieng made his statements during a
proffer meeting, the government concedes that the interview
likely constituted a plea discussion. However, a defendant
may waive his right not to have statements made during plea
discussions used against him. United States v. Mezzanatto,
513 U.S. 196, 210 (1995). The government never presented
the district court with a waiver agreement. It argues, however,
that Hieng’s failure to object to Kunkel’s testimony creates a
reasonable presumption that such an agreement exists.
The district court did not need to inquire, sua sponte,
whether Hieng had waived his right not to have the statements
he made during proffer discussions used against him. It may
be that a district court commits plain error if it allows the gov-
ernment to introduce evidence that is obviously inadmissible.
But it is not always obvious whether statements made during
a proffer discussion are inadmissible. After Mezzanatto, we
expect that prosecutors will routinely require, as a condition
for holding a proffer meeting, that suspects agree that their
statements may be used for impeachment. Where the govern-
ment has held a proffer meeting with a defendant and the
defendant testifies in his own defense at trial, a district court
would not be surprised if a defendant does not object to the
government’s use of prior inconsistent statements made dur-
ing the proffer meeting.
[2] Of course, a defendant’s failure to object at trial to the
admission of statements made during a proffer meeting does
UNITED STATES v. HIENG 5073
not necessarily mean that a valid waiver agreement exists. But
from the district court’s perspective, a defendant’s failure to
object to such evidence may be reasonably interpreted as indi-
cating that the defendant previously waived his rights under
Federal Rule of Criminal Procedure 11(f) and Federal Rule of
Evidence 410.
Hieng argues that this holding is contrary to the maxim that
“[c]ourts should ‘indulge every reasonable presumption
against waiver,’ and they should ‘not presume acquiescence
in the loss of fundamental rights.’ ” Barker v. Wingo, 407
U.S. 514, 525-26 (1972) (citations omitted). But even if we
assume that the statutory right to speak freely in proffer dis-
cussions without fear that statements will be used at trial is
fundamental, our holding does not release the government
from its burden of proof if the existence of a waiver is actu-
ally contested.
[3] We do not disagree with the proposition that if the
defendant informs the district court that he did not waive his
rights, the district court should be exacting in requiring the
government to show that he did. But the responsibility to put
that fact in issue rests with the defendant, not the court. Here,
where the prosecution used Hieng’s statements for a purpose
that would not be unexpected, given the prevalence of Mez-
zanatto waivers, the district court may have reasonably pre-
sumed that Hieng’s failure to object meant that he agreed that
his statements were admissible. The district court committed
no plain error in failing to inquire, sua sponte, whether Hieng
had waived his rights.
B.
Hieng also argues that the admission into evidence of Spe-
cial Agent Kunkel’s testimony violated his Sixth Amendment
right to be confronted with the witnesses against him. He con-
tends that the district court stripped him of the right to con-
front interpreter Lim, when it concluded, prior to the selection
5074 UNITED STATES v. HIENG
of the jury, that Lim was not a percipient or fact witness and,
therefore, did not need to testify. At trial, Hieng never
asserted a right to confront Lim and we, therefore, review for
plain error.
[4] In United States v. Nazemian we held that, under
appropriate circumstances, a person may testify regarding
statements made by the defendant through an interpreter with-
out raising either hearsay or Confrontation Clause issues
because the statements are properly viewed as the defendant’s
own, and the defendant cannot claim that he was denied the
opportunity to confront himself. 948 F.2d 522, 525-26 (9th
Cir. 1991). A defendant and an interpreter are treated as iden-
tical for testimonial purposes if the interpreter acted as a
“mere language conduit” or agent of the defendant. Id. at 528.
The district court must determine “whether the translated
statements fairly should be considered the statements of the
speaker” (i.e., whether the interpreter can be deemed a lan-
guage conduit) on a case-by-case basis. Id. at 527. In making
the determination, the district court must consider all relevant
factors, “such as which party supplied the interpreter, whether
the interpreter had any motive to mislead or distort, the inter-
preter’s qualifications and language skill, and whether actions
taken subsequent to the conversation were consistent with the
statements as translated.” Id. Where the defendant does not
object at trial, the reviewing court will hold there is plain error
only if the evidence in the record indicates that the district
court plainly should not have treated the interpreter as a lan-
guage conduit. Id.
[5] Hieng has not identified anything in the record suggest-
ing that Lim was anything other than a language conduit. The
record indicates Lim was a highly competent interpreter. He
interpreted not only at the interview in dispute, but also dur-
ing trial and in private meetings between Hieng and his attor-
ney. There is no indication that Lim had any motive to
mistranslate. The district court properly treated Lim as a mere
language conduit for Hieng. Under Nazemian, Hieng did not
UNITED STATES v. HIENG 5075
have any constitutional right to confront Lim because the
interpreted statements are directly attributable to Hieng.
Hieng argues that Nazemian has been overruled by Craw-
ford v. Washington, 541 U.S. 36 (2004), and its progeny. As
a three-judge panel, we are bound by circuit precedent unless
the United States Supreme Court or an en banc court of our
circuit has “undercut the theory or reasoning underlying the
prior circuit precedent in such a way that the cases are clearly
irreconcilable.” Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.
2003) (en banc). We now determine whether Crawford and its
progeny directly overruled Nazemian or whether the cases are
clearly irreconcilable.
In Crawford, the Supreme Court held that “testimonial”
hearsay statements are not admissible unless the declarant is
unavailable and the defendant had a prior opportunity for
cross-examination. 541 U.S. at 68. Crawford overruled Ohio
v. Roberts, 448 U.S. 56 (1980), which had held that hearsay
statements are admissible if the court determined that they
were sufficiently reliable. See Crawford, 541 U.S. at 61-62.
The Supreme Court further developed the principle pro-
claimed in Crawford in Melendez-Diaz v. Massachusetts, 129
S. Ct. 2527 (2009), and Bullcoming v. New Mexico, 131 S. Ct.
2705 (2011). In Melendez-Diaz, the Court held that “certifi-
cates of analysis” which reported the weight of a substance
and that the substance contained cocaine constituted testimo-
nial statements. 129 S. Ct. at 2532. Accordingly, the analysts
who signed them were witnesses for purposes of the Sixth
Amendment. Id. Similarly, in Bullcoming the Court held that
the Confrontation Clause was not satisfied when the prosecu-
tion introduced a forensic laboratory report containing a testi-
monial certification “through the in-court testimony of a
scientist who did not sign the certification or perform or
observe the test reported in the certification.” 131 S. Ct. at
2710.
5076 UNITED STATES v. HIENG
[6] These cases make it clear that, if a testimonial state-
ment is introduced, the Sixth Amendment requires opportu-
nity for confrontation of the person who made the statement.
They do not address the question whether, when a speaker
makes a statement through an interpreter, the Sixth Amend-
ment requires the court to attribute the statement to the inter-
preter. None of these cases, therefore, are in direct conflict
with our holding in Nazemian.
The cases are also not clearly irreconcilable because we can
apply Nazemian without running afoul of Crawford. We held
in Nazemian that whether the interpreter must be considered
a declarant, rather than a language conduit, is a threshold
inquiry, and that confrontation concerns do not even arise if
the statement may be fairly attributed directly to the speaker.
948 F.2d at 525-26. If a court were to hold that the statement
must be attributed to the interpreter, it would, under Craw-
ford, ask whether the statement, as applied to the interpreter,
was testimonial. If so, the statement could not be admitted
without opportunity for confrontation of the interpreter. But if
the court determines that a statement may be fairly attributed
directly to the original speaker, then the court would engage
in the Crawford analysis only with respect to that original
speaker. Where, as here, that speaker is the defendant, the
Sixth Amendment simply has no application because a defen-
dant cannot complain that he was denied the opportunity to
confront himself.
We recognize that there is some tension between the
Nazemian analysis and the Supreme Court’s recent approach
to the Confrontation Clause. Our threshold inquiry in
Nazemian which asks whether a translated statement may be
attributed directly to the original speaker and not be attributed
to the interpreter who literally uttered it, stems from principles
of the law of evidence. Abandoning Ohio v. Roberts, Craw-
ford might be read as essentially divorcing Sixth Amendment
analysis from the law of evidence. See Crawford, 541 U.S. at
51 (“Leaving the regulation of out-of-court statements to the
UNITED STATES v. HIENG 5077
law of evidence would render the Confrontation Clause pow-
erless to prevent even the most flagrant inquisitorial prac-
tices”).
On the other hand, Crawford and cases that follow it con-
tinue to use the vocabulary of the law of evidence in their
Sixth Amendment analyses. For example, the Court often uses
the term “hearsay” when referring to the type of out-of-court
statements that may require confrontation. See, e.g., Craw-
ford, 541 U.S. at 53 (“In sum, even if the Sixth Amendment
is not solely concerned with testimonial hearsay, that is its
primary object . . . .”); id. at 68 (“Where nontestimonial hear-
say is at issue, it is wholly consistent with the Framers’ design
to afford the States flexibility in their development of hearsay
law . . . .”); Davis v. Washington, 547 U.S. 813, 823 (2006)
(“We must decide . . . whether the Confrontation Clause
applies only to testimonial hearsay; and, if so, whether the
recording of a 911 call qualifies”). Further, even testimonial
statements may be admitted without confrontation if they are
offered “for purposes other than establishing the truth of the
matter asserted” and, therefore, constitute nonhearsay. Craw-
ford, 541 U.S. at 59 n.9, citing Tennessee v. Street, 471 U.S.
409, 414 (1985).
[7] We conclude that the Court’s recent Confrontation
Clause cases provide no clear guide with respect to the inter-
play, if any, between the Confrontation Clause and the law of
evidence. Even if there is some tension, our approach to inter-
preted statements is not clearly inconsistent with the Craw-
ford line of cases. Without a further pronouncement from the
Court, we conclude that Nazemian remains binding in this cir-
cuit.
C.
Hieng also contends that the district court erred by allowing
Detective Jensen’s testimony, which was based on hearsay
reports, to prove the total number of marijuana plants eradi-
5078 UNITED STATES v. HIENG
cated by the Fresno County Sheriff’s detectives. Hieng did not
object to this testimony on hearsay grounds at trial. His co-
defendant, Lem Phin, however, raised that objection on at
least four occasions. Even though Hieng did not join Phin’s
objection, we review for abuse of discretion rather than plain
error because the matter was sufficiently brought to the atten-
tion of the district court. See United States v. Hardy, 289 F.3d
608, 612 n.1 (9th Cir. 2002) (“Although Hardy’s counsel did
not object to the agent’s testimony, the objection by his co-
defendant’s counsel preserved the issue for both defendants”),
citing United States v. Brown, 562 F.2d 1144, 1147 n.1 (9th
Cir. 1977).
We conclude that the district court failed to apply the
proper hearsay analysis. However, we need not reverse if the
record indicates that Detective Jensen’s testimony was admis-
sible under established hearsay exceptions. “We may affirm
the district court’s evidentiary ruling on any grounds sup-
ported by the record.” United States v. Ibarra-Pino, 657 F.3d
1000, 1005 (9th Cir. 2011).
Detective Jensen did not base his testimony as to the total
plant count on his own personal knowledge. According to
Jensen, he and other detectives eradicated marijuana plants
growing in the vineyard row by row. Jensen testified that each
detective kept track of the number of plants he personally
eradicated as they went down each row and then reported
their tallies to him at the end of each row. Other detectives
who participated in the eradication corroborated Jensen’s tes-
timony. Jensen recorded each detective’s tally by writing it
down on a notepad or a piece of paper. The next day, Jensen
manually added the tallies, verified the accuracy of his addi-
tion, and entered the total number of plants in his report.
[8] Hieng correctly argues that Jensen’s testimony with
respect to the total number of plants was based on hearsay.
The Federal Rules of Evidence define hearsay as “a statement
that: (1) the declarant does not make while testifying at the
UNITED STATES v. HIENG 5079
current trial or hearing; and (2) a party offers in evidence to
prove the truth of the matter asserted in the statement.” Fed.
R. Evid. 801(c). The total tally offered by Jensen at trial was
a sum based on a number of statements made out of court by
a number of declarants. The government offered this total to
prove the truth of the matter asserted in the declarants’ out-of-
court statements. Because Jensen’s testimony was founded
almost entirely on hearsay, it should not have been admitted
unless all of the hearsay statements underlying the testimony
fit within an exception to the rule against hearsay. Fed. R.
Evid. 802, 805.
On three separate occasions at trial, the district court sus-
tained Phin’s objections to Jensen’s testimony on the ground
that it was based on hearsay and therefore, could not be
offered for its truth. However, after Jensen fully explained his
method for counting the plants, the district court overruled
Phin’s hearsay objection and admitted the testimony, “finding
that the reliability of the method was such that by each offi-
cer’s count being communicated and then written down, that
that goes to the weight, not the admissibility.”
The district court’s definitive ruling on Phin’s hearsay
objection does not invoke any of the established exceptions to
the rule against hearsay. The Federal Rules of Evidence do
not include a “reliability” exception. While reliability is the
touchstone of all the hearsay exceptions, the exceptions
themselves—not the trial judge’s intuitive conclusions—are
the criteria for whether hearsay evidence is sufficiently reli-
able to overcome the rule against hearsay.
The government argues on appeal that Detective Jensen’s
testimony fits within Rule 807, the residual exception to the
rule against hearsay. Detective Jensen’s testimony might very
well satisfy the general requirements of Rule 807.1 However,
1
Rule 807 generally provides for the admission of hearsay statements
under the following conditions:
5080 UNITED STATES v. HIENG
the government completely ignores Rule 807’s notice require-
ment. Under the rule, a hearsay statement is admissible “only
if, before the trial or hearing, the proponent gives an adverse
party reasonable notice of the intent to offer the statement and
its particulars, including the declarant’s name and address, so
that the party has a fair opportunity to meet it.” Fed. R. Evid.
807(b). Without any showing that the government provided
this required notice or that the notice should be excused, see
United States v. Bachsian, 4 F.3d 796, 799 (9th Cir. 1993), we
will not accept the government’s argument that the district
court properly admitted the testimony under Rule 807. There-
fore, we must review whether the hearsay statements which
Jensen relied on fall within established hearsay exceptions.
Jensen’s testimony involved three levels of hearsay, each of
which must conform to an exception in order for the testi-
mony to be admissible. Fed. R. Evid. 805. At the most basic
level, Jensen’s testimony incorporated the out-of-court reports
he received from other Fresno County Sheriff’s Department
detectives. These reports are admissible under the present
sense impression exception for statements “describing or
explaining an event or condition, made while or immediately
after the declarant perceived it.” Fed. R. Evid. 803(1).
Here, the eradication of the marijuana plants constitutes an
event that was perceived by the detectives who participated in
(1) the statement has equivalent circumstantial guarantees of
trustworthiness;
(2) it is offered as evidence of a material fact;
(3) it is more probative on the point for which it is offered than
any other evidence that the proponent can obtain through reason-
able efforts; and
(4) admitting it will best serve the purposes of these rules and the
interests of justice.
Fed. R. Evid. 807(a).
UNITED STATES v. HIENG 5081
it. These detectives described the event while it was taking
place by reporting the number of plants they had just counted
to Detective Jensen at the end of each row. Their reports to
Detective Jensen were present sense impressions.2
2
Judge Berzon disagrees with our application of the present sense
impression exception to the reports of the detectives who counted the mar-
ijuana plants. See Concurrence, Part I. Her fear that this ruling expands the
exception beyond its limits is not justified.
Contrary to Judge Berzon’s characterization, the detectives’ reports
were not “calculations derived from their observations.” Concurrence
5089. The detectives did not arrive at the reported numbers through a
mathematical process. They simply counted each plant that they observed.
Counting is an ordinary and fundamental aspect of observation. It is a way
to keep track of the details. Counting is not the sort of complex thought
process that interposes “an intermediate step between the receipt of the
present sense impression and the utterance.” See Edward J. Imwinkelreid,
The Need to Resurrect the Present Sense Impression Hearsay Exception:
A Relapse in Hearsay Policy, 52 How. L.J. 319, 345 (2009).
Judge Berzon views the detectives’ reports as a “cumulation of sense
impressions over a period of time, mediated through a thought process that
could easily contain errors.” Concurrence 5088. Essentially, Judge Berzon
considers each plant sighting to be a separate “event.” We need not inter-
pret that term so narrowly. Certainly, the term “event” as used in Rule
803(1) must be constrained by reasonable time limits. But that does not
mean an event must be instantaneous.
Here, the detectives reported the number of plants they saw at the end
of each row. We do not disagree with Judge Berzon that the eradication
of each row probably took “some minutes.” But the detectives’ reports are
sufficiently close in time to the actual observation that there is not a signif-
icant risk that memory loss caused faulty reports. The time each detective
may have waited between viewing the plants and reporting their counts
did not give them a substantial opportunity to reflect or deliberate as to
whether they would provide an accurate count or an inflated one.
Judge Berzon expresses a concern that the detectives might not have
had to testify before the jury if the present sense impression exception
applies. But if hearsay statements are testimonial, then the Confrontation
Clause will ensure that the declarant is subject to cross-examination. If the
Confrontation Clause does not apply and evidence is sufficient to bring a
statement within an exception to the hearsay rule, there is no reason to
insist on in-court testimony.
5082 UNITED STATES v. HIENG
The second level of hearsay in Detective Jensen’s tally
sheet is the note pad or paper upon which Jensen recorded his
own tallies and the tallies reported by his fellow detectives.
The government did not attempt to introduce Jensen’s tally
sheet into evidence, but Jensen testified that the total he
entered in his report was the sum of the tallies he recorded on
the tally sheet. This tally sheet falls comfortably within the
exception for recorded recollections. Fed. R. Evid. 803(5). A
recorded recollection is “[a] record that: (A) is on a matter the
witness once knew about but now cannot recall well enough
to testify fully and accurately; (B) was made or adopted by
the witness when the matter was fresh in the witness’s mem-
ory; and (C) accurately reflects the witness’s knowledge.” Id.
Detective Jensen did not recall the number of plants he per-
sonally eradicated. However, he counted those plants as he
was eradicating them and, while the matter was fresh in his
memory, accurately recorded that count on his tally sheet. The
tally sheet, therefore, contains Jensen’s recorded recollection
of his own plant counts. With respect to the other detectives’
counts, Detective Jensen testified that he accurately recorded
the numbers each detective reported to him immediately after
they gave him their verbal reports, while the matter was fresh
in his mind. Therefore, the tally sheet also contains a record
of Detective Jensen’s recollection of the other detectives’
utterances of their present sense impressions. The tally sheet
would, therefore, be admissible notwithstanding its hearsay
character.
Finally, we have Detective Jensen’s formal report. Detec-
tive Jensen based his testimony on this hearsay document. We
must determine, at least with respect to the total plant count,
whether Jensen’s report constitutes a recorded recollection.
Detective Jensen testified that, on the day after the eradica-
tion, he manually calculated the sum of the plant counts
recorded on the tally sheet and entered the total in his report.
The total of the tallies recorded on the tally sheet is a matter
UNITED STATES v. HIENG 5083
that Detective Jensen once knew because, at one point in time,
he had the tally sheet in front of him and personally per-
formed the addition. However, he could not recall that total
accurately at the time of the trial because he did not have the
tally sheet before him. Jensen recorded his recollection of the
total in his report immediately after calculating it from the
tally sheet, while it was fresh in his mind. He testified that the
total he recorded in his report accurately reflected his knowl-
edge regarding the total in the tally sheet. Therefore, Detec-
tive Jensen’s statement in his report as to the total number of
marijuana plants qualifies as a recorded recollection with
respect to the total number of plants recorded on the tally
sheet. See Fed. R. Evid. 803(5).
[9] In sum, while the district court did not rigorously apply
the rules of evidence to each level of hearsay underlying Jen-
sen’s testimony, it ultimately reached the correct result.
Detective Jensen’s testimony regarding the total plant count
was based on a recorded recollection of the numbers listed on
his tally sheet. The tally sheet, in turn was a recorded recol-
lection of Jensen’s own activities and the verbal reports of his
fellow detectives. Finally, the reports of the other detectives
were present sense impressions. The testimony was admissi-
ble because each level of hearsay upon which it was based fell
within an established exception to the hearsay rule. See Fed.
R. Evid. 802, 805. Therefore, there was no reversible error.
D.
Hieng’s conviction triggered a statutory minimum sentence
of imprisonment for ten years. 21 U.S.C. § 841(b)(1)(A)(vii).
He contends that the district court should have relieved him
from the statutory minimum under the safety valve of 18
U.S.C. § 3553(f). The district court refused to apply the safety
valve because it did not find that Hieng had “truthfully pro-
vided to the Government all information and evidence [he
had] concerning the offense.” 18 U.S.C. § 3553(f)(5). We
review the district court’s factual finding for clear error.
5084 UNITED STATES v. HIENG
[10] The district court’s finding that Hieng failed to prove
that he truthfully provided to the government all the informa-
tion and evidence he had is not clearly erroneous. Based on
his testimony at trial, it appears the only information Hieng
provided to the government regarding the offense was that
somebody named Prasit hired him to sign a contract and to
stay at the house at night. He denied that he had any knowl-
edge of the marijuana growing operation. However, Hieng’s
conviction indicates that the jury did not believe his testimony
that he had no knowledge of the marijuana growing operation.
If Hieng actually did know about the marijuana growing oper-
ation, it would be logical to infer that he had more informa-
tion or evidence about the operation than he had previously
provided. Given the conflicting evidence, the district court
could well have found that Hieng had withheld information or
evidence that he had concerning the marijuana growing opera-
tion.
[11] Hieng argues that the district court committed clear
error because, in delivering its sentence, it misstated some of
the evidence that had been presented. For example, in pro-
nouncing the sentence from the bench, the district court mis-
takenly said that Hieng had been recruited by Vanthy Chan,
someone he knew, and that Hieng said he had never gone into
the backyard. However, these were not the facts upon which
the district court based its finding that Hieng was not entitled
to safety valve relief. Rather, the district court found that “it
is not believable that Mr. Hieng would not have smelled, seen
and known of the presence of the marijuana.” Sentencing Tr.
at 28:2-3 (Sept. 21, 2009). The court rejected Hieng’s claim
to safety valve relief because “[t]he Court, like the jury, does
believe that there was very substantial evidence to show Mr.
Hieng’s knowledge under the totality of the circumstances.
He was staying at a marijuana grow site. And an indoor mari-
juana grow as well.” Id. at 28:24-29:3. The evidence that the
district court actually relied on to find that Hieng must have
known about the marijuana growing operation supports that
finding. Its inference from that finding that Hieng had more
UNITED STATES v. HIENG 5085
information or evidence than he had previously shared with
the government was permissible. Therefore, there was no
clear error in the district court’s factual findings.
E.
Finally, Hieng contends that even if errors committed by
the district court were harmless when considered individually,
their cumulative effect resulted in an unfair trial. As explained
above, Hieng has not shown that the district court committed
multiple errors, harmless or not. Furthermore, the record is
not sufficiently developed to allow us to rule on Hieng’s half-
hearted argument that his trial counsel failed to provide effec-
tive assistance. To the extent cumulative error is a valid doc-
trine, it is simply inapplicable here.
AFFIRMED.
BERZON, Circuit Judge, concurring:
I concur in the majority opinion with one exception: I can-
not agree with the assertion on pages 5080-81 that the report
by the detectives who “eradicated” the marijuana plants as to
the number of plants they counted qualifies as a present sense
impression under Rule 803(1) of the Federal Rules of Evi-
dence. As I explain in Parts I and II of this concurrence,
applying the present sense exception to the facts of this case
profoundly distorts the exception and applies it far beyond the
realm supported by its underlying rationale.
Indeed, neither the parties nor the district court ever sug-
gested that this exception applied here—the majority has
inserted it into this case on its own initiative. The government
argued that the admission of the officers’ count of the mari-
juana plants should be affirmed based on Federal Rule of Evi-
dence 807, the residual exception to the hearsay rules. I agree.
5086 UNITED STATES v. HIENG
The officers’ count easily falls within the scope of Rule 807,
and applying that Rule implicates none of the problems cre-
ated by applying the present sense impression exception.
In addition, as I explain in Part III, although I agree with
the opinion’s conclusion that United States v. Nazemian, 948
F.2d 522 (9th Cir. 1991), is not so “clearly irreconcilable,”
Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en
banc), with Crawford v. Washington, 541 U.S. 36 (2004), as
to permit a three-judge panel to overrule Nazemian, I believe
the continued vitality of Nazemian after Crawford is an issue
that merits en banc review in an appropriate case.
I.
The opinion relies on the present sense impression excep-
tion, Fed. R. Evid. 803(1), to support the admissibility of
Fresno County Sheriff’s Department deputies’ statements
regarding the number of marijuana plants in the defendant’s
field. As they destroyed the marijuana row-by-row, the depu-
ties tallied the number of plants they had picked and gave
those numbers to Detective Jensen, who recorded their state-
ments. According to the opinion, the deputies’ calculations
were descriptions of the destruction of the marijuana field and
therefore admissible as present sense impressions. That appli-
cation, however, extends Rule 803(1) well beyond its limits.
The government did not argue before the district court nor
before us that the present sense impression applies. The dis-
trict court did not rule on the basis of this exception. We
therefore have had no briefing on the issue. That it occurred
to no one previously associated with this case that the present
sense impression exception might apply is reason enough to
make its application suspect. Moreover, while imaginative,
the majority’s analysis bends that exception out of shape in a
manner that, in other cases, could seriously undermine the
hearsay rules.
UNITED STATES v. HIENG 5087
I begin by noting that what while the majority’s view of
what constitutes a present sense impression leads, on the facts
of this case, to a relatively narrow admission of evidence, its
application to other cases could lead to a much broader excep-
tion. Here, because the deputies’ counts of the marijuana
plants were testimonial, they were required under the Con-
frontation Clause to testify, thereby allowing the jury to assess
the officers’ credibility. See Crawford, 541 U.S. at 68-69.
However, if the calculations were nontestimonial—for exam-
ple, if the officers were reporting their counts in order to coor-
dinate counting efforts rather than to record evidence, see
United States v. Solorio, 669 F.3d 943 (9th Cir. 2012)—there
would be no requirement that they testify, so evidence of their
calculations could be admitted without any opportunity for the
jury to assess their credibility. Under Rule 807, in contrast,
only evidence that “is more probative on the point for which
it is offered than any other evidence that the proponent can
obtain through reasonable efforts” is admissible. Fed. R. Evid.
807(a)(3). Therefore, if the residual exception were to apply,
the officers would ordinarily still be required to testify,
whether or not they were so required under the Confrontation
Clause, for such testimony would be the most probative evi-
dence of their actions. That is, hearsay evidence would be
admissible under Rule 807 only to the extent that it was not
available via direct testimony. Thus, Rule 807 permits a much
narrower exception to the hearsay rules than does the majori-
ty’s expansion of Rule 803.
This analysis highlights the problem with the notion that
Jensen was recording a present sense impression: In fact, he
was not recording the officers’ sense impressions when they
were collecting the marijuana plants. Instead, what Jensen tes-
tified to was the result of a mental process—counting a series
of marijuana plants while they were collected, and, ultimately,
determining how many there were in total. Because of the
large number of marijuana plants, the detectives could not
determine the total number of plants just by looking at them,
but had to interpose over some period of time—some minutes
5088 UNITED STATES v. HIENG
at least—a mental method for determining the number of
plants. This sort of cumulation of sense impressions over a
period of time, mediated through a thought process that could
easily contain errors, is neither “present” nor a “sense impres-
sion,” and is therefore not encompassed by Rule 803(1).
Rule 803(1) provides a narrow exception to the hearsay
rule for statements “describing or explaining an event or con-
dition, made while or immediately after the declarant per-
ceived it.” The exception is grounded in the premise that
“substantial contemporaneity of event and statement negate
the likelihood of deliberate or conscious misrepresentation,”
but “[s]pontaneity is the key factor.” Fed. R. Evid. 803(1)
advisory committee’s note. To qualify as a present sense
impression, a statement must occur simultaneously with the
event, although “a slight lapse is allowable” if “precise con-
temporaneity is not possible.” Id.
The reason present sense impressions are considered inher-
ently reliable is because statements contemporaneously
describing an event are unlikely to reflect memory loss or pro-
vide an opportunity to lie. See Douglas D. McFarland, Present
Sense Impressions Cannot Live in the Past, 28 Fla. St. U. L.
Rev. 907, 914 (2001). The fundamental pivot of the exception
is the “nature of the thought process producing the statement
rather than the substantive content of the statement.” Edward
J. Imwinkelreid, The Need to Resurrect the Present Sense
Impression Hearsay Exception: A Relapse in Hearsay Policy,
52 How. L.J. 319, 345 (2009). Closeness in time between the
statement and the event is therefore critical in eliminating the
unreliability that is introduced when declarants have the
opportunity to reflect on and interpret the event. See id. Con-
temporaneous expression limits declarants’ ability to lie or
misremember; “[w]hen the thought process is complex,
involving an intermediate step between the receipt of the pres-
ent sense impression and the utterance,” the statement no lon-
ger qualifies. Id.
UNITED STATES v. HIENG 5089
It is true, of course, that mental processes interpret what the
eyes see or the ears hear, so that not all opportunity for error
through those processes is eliminated through contemporane-
ity. Some people are colorblind and others can only hear lim-
ited tone ranges, so they will misreport what they
contemporaneously perceive. But the present sense exception
seeks to minimize the opportunities for mistake or prevarica-
tion that occur when mental processes beyond those necessary
to connect a sense impression to a verbal description. The
exception’s “language, rationale, and history do strongly sug-
gest that . . . there should be no delay beyond an acceptable
hiatus between perception and the cerebellum’s construction
of an uncalculated verbal description.” Jon R. Waltz, The
Present Sense Impression Exception to the Rule Against
Hearsay: Origins and Attributes, 66 Iowa L. Rev. 869, 880
(1981) (emphasis added).
Here, the deputies’ statements as to the number of plants
they had collected were calculations derived from their obser-
vations, but were not reports of the observations themselves.
Such purposeful analysis of sense impressions after the fact is
not covered by the present sense impression exception.
Because they did not simply report each plant as they saw it
but rather, at the end of their collecting and counting process,
reported to Jensen the results of their calculation, the officers
both had time to reflect and therefore not to tell the truth, and,
more importantly, the opportunity to make mistakes in the
calculation.
Our Circuit’s caselaw, as well as that of other circuits, sup-
ports a narrow interpretation of the present sense impression
exception consistent with this analysis:
• “[T]o qualify under either [FRE 803(1) or 803(2)], an out-
of-court statement must be nearly contemporaneous with
the incident described and made with little chance for
reflection.” Bemis v. Edwards, 45 F.3d 1369, 1373 (9th
Cir. 1995).
5090 UNITED STATES v. HIENG
• “The theory behind [the present sense impression, excited
utterance, and state of mind] exceptions is that the greater
the circumstances for misrepresentation, the less reliable is
the declaration. . . . [T]he fact that [the defendant] went
through several drafts indicates that he had ample time to
reflect upon his statements. Thus, any evidence provided
by the letter was unreliable.” United States v. Faust, 850
F.2d 575, 586 (9th Cir. 1988) (internal citations and quota-
tions omitted).
• “In making the foundational inquiry on admissibility under
[FRE 803(1) (present sense impression), 803(2) (excited
utterances), or 803(3) (state of mind)], the court must eval-
uate three factors: contemporaneousness, chance for
reflection, and relevance.” United States v. Ponticelli, 622
F.2d 985, 991 (9th Cir. 1980), overruled on other grounds
by United States v. De Bright, 730 F.2d 1255 (9th Cir.
1984).
• “The declarant makes a statement describing the event at
or very near the time of the observation . . . We admit the
statement because the circumstances under which it was
given—immediately after an observation—diminish sub-
stantially the opportunity for fabrication.” United States v.
McElroy, 587 F.3d 73, 86 (1st Cir. 2009).
• “[T]he temporality requirement must be rigorous because
the passage of time—or the lack thereof—is the effective
proxy for the reliability of the substance of the declara-
tion.” United States v. Green, 556 F.3d 151, 155-56 (3d
Cir. 2009). There, the declarant’s statement was problem-
atic not only because of a 50 minute lapse in time, but also
because he was responding to requests by the DEA to
explain the event. Id.
• “A declarant who deliberates about what to say or pro-
vides statements for a particular reason creates the possi-
bility that the statements are not contemporaneous, and,
UNITED STATES v. HIENG 5091
more likely, are calculated interpretations of events rather
than near simultaneous perceptions.” United States v.
Woods, 301 F.3d 556, 562 (7th Cir. 2002).
Again, although the extension of the present sense impres-
sion exception to the circumstances of this case may seem rel-
atively harmless, I do think that is because the detectives did
testify to their actual sense impressions, and only could not
testify as to the number they reported. We have to consider
this case, however, as if they did not testify, because if the
present sense impression exception does apply, they might not
have had to testify at all. I do not see how that scenario could
possibly comport with the basic underpinnings of the hearsay
rule, or with the limited scope of Rule 803(1).
II.
I am not suggesting that we should reverse. Instead, I
would rely on what the government does argue—that the
catchall hearsay exception applies. The opinion indicates that
Rule 807 is substantively appropriate, but that the lack of pre-
trial notice is fatal. I don’t see why that is so.
First, Hieng has not objected that he received insufficient
notice. As far as I can determine, the current record does not
indicate whether there was sufficient notice. For all we know,
there may have been.
More substantively, even if there was not proper pretrial
notice, there was, in fact, a good deal of notice during the trial
—before the testimony was introduced—as to how the gov-
ernment wanted to proceed. As the opinion explains, the gov-
ernment tried to introduce Jensen’s calculations several times,
but the district court sustained hearsay objections. Eventually,
however, the methodology was fully explained, and the dis-
trict court admitted the evidence. There is no indication what-
soever that notice of an intent to invoke Rule 807 would have
made any difference, and the evidence was in no way sprung
5092 UNITED STATES v. HIENG
on the defense. “[F]ailure to give pretrial notice will be
excused if the adverse party had an opportunity to attack the
trustworthiness of the evidence.” United States v. Bachsian, 4
F.3d 796, 799 (9th Cir. 1993).
Moreover, examined from the perspective of Rule 807, and
given that the detectives did testify (and that, as the opinion
explains, once the totals reported to Jensen are in evidence,
other hearsay exceptions cover the tally sheet and report). the
only “hole” that has to be covered by Rule 807 is quite nar-
row. The district court was careful to ensure that the officers’
information was trustworthy, that other evidence toward the
same end was not available, and that admission of the evi-
dence served the purposes of the evidence rules. See Fed. R.
Evid. 807(a). The court insisted that each officer testify first
as to his methodology in extracting, counting, and reporting
the number of marijuana plants. Proceeding in this way
ensured that the jury had the chance to assess the credibility
of each of the officers who collected the plants. Further, Rule
807 is context-specific, and so, unlike the majority’s expan-
sion of the present sense impression exception, does not
threaten in future cases to leave the hearsay rule in the dust.
In sum, my concern is that we not bend seriously out of
shape a hearsay exception grounded in precepts not here
applicable. Although the role of the present sense impression
exception here is narrow, if applicable, it could allow a trial
to proceed without the testimony of the detectives who actu-
ally saw and collected the marijuana plants, opening up a
huge hole in the hearsay rule. I would hold instead that, on
this record, the catchall hearsay exception applies and that
either the notice requirement was waived because not raised
by Hieng or any lack of notice was harmless.
III.
In my view, the holding in Nazemian rests, at bottom, on
a pre-Crawford understanding of the unity between hearsay
UNITED STATES v. HIENG 5093
concepts and Confrontation Clause analysis. Moreover, its
ultimate conclusion—that a translator’s out-of-court version
of a testimonial statement need not be subject to cross-
examination at trial—seems in great tension with the holdings
of Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), and
Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011), that labo-
ratory reports may not be admitted without testimony by the
individuals who conducted the laboratory tests. Translation
from one language to another is much less of a science than
conducting laboratory tests, and so much more subject to error
and dispute. Without the ability to confront the person who
conducted the translation, a party cannot test the accuracy of
the translation in the manner in which the Confrontation
Clause contemplates. I therefore believe that this issue should
be considered en banc at some juncture.
Here, however, the issue was not raised at trial, so our
review is for plain error, and the translator was in fact in the
court room and could have been called, introducing an addi-
tional consideration—whether it matters that the government
did not call a translator who was readily available to the
defense. Quite possibly it does, but plain error review under
these circumstances would contort and complicate our consid-
eration of a novel constitutional issue. I would therefore await
a case in which the question was properly raised at trial and
would then hear that case en banc.