In United States v. Hieng, 09-10401 which was an appeal from: C.D. Cal. (Wanger, J.) and argued & submitted: 8/30/11 to the Court panel in San Francisco, it was upheld a jury conviction and sentence for conspiracy to manufacture and distribute more than 1,000 marijuana plants and for manufacturing and cultivating, and aiding and abetting the cultivation of more than 1,000 marijuana plants.

The panel held that the district court committed no plain error in failing to inquire, sua sponte, whether the defendant had waived his rights under Fed. R. Crim. P. 11(f) and Fed. R. Evid. 410 not to have statements he made during proffer discussions used against him. The panel wrote that the district court may have reasonably presumed that the defendant's failure to object meant that he agreed that his statements were admissible.

The panel rejected the defendant's Sixth Amendment Confrontation Clause challenge to the district court's conclusion, prior to the selection of the jury, that the interpreter who translated for the defendant during his post-arrest interview was not a percipient or fact witness and therefore did not need to testify. The panel held that under United States v.

Nazemian, 948 F.2d 522 (9th Cir. 1991), the district court properly treated the interpreter as a mere language conduit for the defendant, and that the defendant therefore did not have any constitutional right to confront the interpreter. The panel wrote that this court's approach to interpreted statements is not clearly inconsistent with the Supreme Court's Crawford line of cases and that Nazemian remains binding.

The panel held that in allowing a detective's testimony to prove, based on hearsay reports, the total number of marijuana plants eradicated by detectives, the panel improperly applied a "reliability" exception. The panel held, however, that each of the three level of hearsay levels at issue conformed to an established hearsay exception: reports from other detectives are admissible under the present sense impression exception, Fed. R. Evid. 803(1); a tally sheet is admissible under the exception for recorded collections, Fed. R. Evid. 803(5); and the defendant's formal report is also admissible as a recorded collection.

The panel held that in denying the defendant safety-valve relief from the statutory minimum sentence, the district court did not clearly err in finding that the defendant failed to prove that he truthfully provided to the government all the information and evidence he had.