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Latest in Hearsay Evidence from the 9th Circuit

US v. Hieng, No. 09-10401 (5-11-12)(Wallace with Bybee; concurrence by Berzon). This weekend, if you are pulling weeds from your garden, reflect taht you are engaged in a present sense impression. How? Well, according to the 9th, yanking up marijuana plants, and keeping a mental tally, is a present sense impression, because that is how we tick off things (cf one opinion, two lattes, three strikes?). But wait, I am getting ahead of the opinion. This case deals with marijuana cultivation of over a 1000 plants.

It also seemingly has a 1001 evidence issues. The defendant, when confronted, sputtered that he didn't know the plants were growing in the vineyard (grapes of wrath they weren't) because he was just a renter who spent nights on the property (it got dark out there). He also gave some other statements that could be used against him (small plants don't smell).

He turned down a deal, after a proffer meeting, and went to trial. Upon conviction, he got 10 years. On appeal, he raised some interesting evidentiary and confrontation issues. Back to the plants, and present sense impression. where he argued that the agent's testimony as to the number of plants (for the mandatory minimum) was hearsay. The testimony was that that the agents yanked or cut the plants, walking the rows, and kept a mental tally, which the agents reported to teh agent in charge, who tallied them up, and wrote it down. To come into evidence, the number of plants yanked and tallied had to meet the evidentiary exceptions. Like some sort of legal "inception," the first level was the present sense impression (lets see, one plant, two plants three plants etc) and then when given to the agent, it became his recorded present sense impression of their present sense impressions made while fresh in his mind. His report was a recorded recollection (5082). Berzon, in her concurrence, takes issue with this, fearing that the present sense impression was not so present, as one had to remember the count, and there was a period of time when "thought" entered into it (how many did I yank? and why does it matter?). She believes that the majority is stretching the exception, and points out that the parties nor teh court thought it applied. She would let it in under the reliability exception of FRE 807, excusing lack of pretrial notice because of the notice given in trial. Expect to see this case cited whenever agents have numbers at stake.

.Another interesting issue is the interplay between Crawford and evidence when it comes to interpreters. In the matter of a defense statement, must the interpreter be available for confrontation? After all, the defendant is there and it is his statement. The 9th, under the pre-Crawford Nazemian precedent, considers an interpreter a language conduit, and need not be subject to cross examination, unless the issue of factual inaccuracies come up, and then the interpreter is a declarent. . The majority carefully parses the issue, under a plain error review, and resolves that Nazemian remains binding, for now. Berzon concurs in the admission, under plain error review, and because the interpreter was in court and could have been called. However, Berzon cautions that an act of translation is an art, and much less rigorous than a lab report, such as in Bullcoming. She believes this should resolved en banc, with, it seems, the defendant having the right to confront the interpreter.

The issues keep on coming in this case. The next concerns the use of the defendants proffer statements to impeach him. The defendant did not object at trial, but argues now that the court sua sponte should have asked if he had waived his rights under Fed R Crim P 11(f) and FRE 410. The gov't did not have a written plea or proffer letter, but argued that in such a setting, the defendant would have waived as a condition. The 9th lets it in, because that is the practice of getting such waivers, and there was no objection, and the court should not have a duty to sua sponte inquiry.

Still, a written proffer is the better practice.