NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 4 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50041
Plaintiff-Appellee, D.C. No. 8:16-cr-00077-JVS-1 v.
DAVE PHUONG DINH VO, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding
Submitted December 7, 2018** Pasadena, California
Before: RAWLINSON and BEA, Circuit Judges, and SETTLE,*** District Judge.
Defendant-Appellant Dave Vo appeals his conviction for bribery in a
program receiving federal funds under 18 U.S.C. § 666(a)(1)(B). We have
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Benjamin H. Settle, United States District Judge for the Western District of Washington, sitting by designation. jurisdiction under 28 U.S.C. § 1291. We review evidentiary issues for abuse of
discretion, United States v. Catabran, 836 F.2d 453, 456 (9th Cir. 1988), and
violations of the Confrontation Clause de novo, United States v. Jenkins, 884 F.2d
433, 435 (9th Cir. 1989). We affirm.
1. While the district court violated Vo’s rights under the Confrontation
Clause when it admitted statements made by a confidential informant, that error
was harmless.
Under Crawford v. Washington, the admission of testimonial hearsay
without “unavailability and a prior opportunity for cross-examination” violates the
Confrontation Clause, but the admission of “testimonial statements for purposes
other than establishing the truth of the matter asserted” does not. 541 U.S. 36, 68,
59 n.9 (2004); see United States v. Wahchumwah, 710 F.3d 862, 871 (9th Cir.
2013) (“Crawford applies only to testimonial hearsay.”) (emphasis in original).
The government argues that the informant’s statements were not provided for their
truth, but rather “as context for defendant’s admissions and to show their effect on
the listener.” The government also argues that an informant’s side of a recorded
conversation should be admitted categorically, without further inquiry.
“[I]nvoking the word ‘context’ does not permit an end-run around the
hearsay rules such that the government may smuggle into evidence all [the
informant’s] statements,” particularly when they “overwhelm the defendant’s.”
2 United States v. Collins, 575 F.3d 1069, 1073-74 (10th Cir. 2009). Here, several of
the informant’s incriminating statements went beyond the bounds of placing the
conversation in context:
1) “It’s like what you told me the other day if, you know, whatever it is, then you know, it’s 15,000 on the side.”
2) “Do you remember what you told me the other day? You said, ‘Okay, pay 15,000 on the side.’”
3) “So then about the money, the 15,000 you talked about for the other side, I’ve got it all prepared already ok.”
These statements were also testimonial, as they were made with the
“primary purpose” to “establish or prove past events potentially relevant to later
criminal prosecution.” Davis v. Washington, 547 U.S. 813, 822 (2006).
With that said, the admission of these statements was harmless. “The
government bears the burden of proving that the error was harmless beyond a
reasonable doubt.” United States v. Esparza, 791 F.3d 1067, 1074 (9th Cir. 2015).
As the government points out, Vo himself described the bribe as an “under the
table deal,” instructing the informant to “stay quiet” and “don’t mention what’s
going on.” More importantly, Vo was caught on tape receiving $15,000 in cash.
The government has therefore met its burden here.1
1 Alternately, the court’s error was harmless because these statements could have been admitted as adoptive admissions under Federal Rule of Evidence 801(d)(2)(B), as the prosecution mentioned during closing argument. “When an accusatory statement is made in the defendant’s presence and hearing, and he
3 2. Similarly, the exclusion of potential impeachment material was harmless.
Vo argues the admission of testimonial hearsay should have opened the door to
impeachment evidence under Federal Rule of Evidence 806. But no such evidence
was proffered at trial. Thus, Vo cannot show that he was prejudiced by the district
court’s ruling.
3. The district court did not abuse its discretion in excluding text messages
from the confidential informant. Vo sought to introduce the text messages under
Federal Rule of Evidence 803(3), which provides an exception to the rule against
hearsay for statements of “the declarant’s then-existing state of mind.” Fed. R.
Evid. 803(3). But Vo sought to introduce the text messages to show his state of
mind, not the state of mind of the declarant. Vo therefore lacks a legal basis for his
claim.
4. Vo’s counsel was not ineffective under Strickland v. Washington, 466
U.S. 668 (1984), in failing to subpoena the confidential informant at trial.
“Speculation about what [a witness] could have said is not enough to establish”
deficient performance under Strickland. Grisby v. Blodgett, 130 F.3d 365, 373 (9th
Cir. 1997). Vo offers only vague assertions as to why his attorney should have
called the informant to testify, claiming that he could have discussed her
understands and has an opportunity to deny it, the statement and his failure to deny are admissible against him.” United States v. Moore, 522 F.2d 1068, 1075 (9th Cir. 1975).
4 “disreputable background” and the “numerous pivotal conversations he had with
[her].” Without more specific allegations, Vo cannot prevail.
5. The district court did not err in denying Vo’s motion for judgment of
acquittal, as the “thing of value” exchanged was above $5,000, as 18 U.S.C. § 666
demands. Precedent in this circuit interprets § 666(a) to require the “bribe
[to] exceed $5,000,” not the “business” or “transaction” exchanged. United States
v. Cabrera,
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 4 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50041
Plaintiff-Appellee, D.C. No. 8:16-cr-00077-JVS-1 v.
DAVE PHUONG DINH VO, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding
Submitted December 7, 2018** Pasadena, California
Before: RAWLINSON and BEA, Circuit Judges, and SETTLE,*** District Judge.
Defendant-Appellant Dave Vo appeals his conviction for bribery in a
program receiving federal funds under 18 U.S.C. § 666(a)(1)(B). We have
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Benjamin H. Settle, United States District Judge for the Western District of Washington, sitting by designation. jurisdiction under 28 U.S.C. § 1291. We review evidentiary issues for abuse of
discretion, United States v. Catabran, 836 F.2d 453, 456 (9th Cir. 1988), and
violations of the Confrontation Clause de novo, United States v. Jenkins, 884 F.2d
433, 435 (9th Cir. 1989). We affirm.
1. While the district court violated Vo’s rights under the Confrontation
Clause when it admitted statements made by a confidential informant, that error
was harmless.
Under Crawford v. Washington, the admission of testimonial hearsay
without “unavailability and a prior opportunity for cross-examination” violates the
Confrontation Clause, but the admission of “testimonial statements for purposes
other than establishing the truth of the matter asserted” does not. 541 U.S. 36, 68,
59 n.9 (2004); see United States v. Wahchumwah, 710 F.3d 862, 871 (9th Cir.
2013) (“Crawford applies only to testimonial hearsay.”) (emphasis in original).
The government argues that the informant’s statements were not provided for their
truth, but rather “as context for defendant’s admissions and to show their effect on
the listener.” The government also argues that an informant’s side of a recorded
conversation should be admitted categorically, without further inquiry.
“[I]nvoking the word ‘context’ does not permit an end-run around the
hearsay rules such that the government may smuggle into evidence all [the
informant’s] statements,” particularly when they “overwhelm the defendant’s.”
2 United States v. Collins, 575 F.3d 1069, 1073-74 (10th Cir. 2009). Here, several of
the informant’s incriminating statements went beyond the bounds of placing the
conversation in context:
1) “It’s like what you told me the other day if, you know, whatever it is, then you know, it’s 15,000 on the side.”
2) “Do you remember what you told me the other day? You said, ‘Okay, pay 15,000 on the side.’”
3) “So then about the money, the 15,000 you talked about for the other side, I’ve got it all prepared already ok.”
These statements were also testimonial, as they were made with the
“primary purpose” to “establish or prove past events potentially relevant to later
criminal prosecution.” Davis v. Washington, 547 U.S. 813, 822 (2006).
With that said, the admission of these statements was harmless. “The
government bears the burden of proving that the error was harmless beyond a
reasonable doubt.” United States v. Esparza, 791 F.3d 1067, 1074 (9th Cir. 2015).
As the government points out, Vo himself described the bribe as an “under the
table deal,” instructing the informant to “stay quiet” and “don’t mention what’s
going on.” More importantly, Vo was caught on tape receiving $15,000 in cash.
The government has therefore met its burden here.1
1 Alternately, the court’s error was harmless because these statements could have been admitted as adoptive admissions under Federal Rule of Evidence 801(d)(2)(B), as the prosecution mentioned during closing argument. “When an accusatory statement is made in the defendant’s presence and hearing, and he
3 2. Similarly, the exclusion of potential impeachment material was harmless.
Vo argues the admission of testimonial hearsay should have opened the door to
impeachment evidence under Federal Rule of Evidence 806. But no such evidence
was proffered at trial. Thus, Vo cannot show that he was prejudiced by the district
court’s ruling.
3. The district court did not abuse its discretion in excluding text messages
from the confidential informant. Vo sought to introduce the text messages under
Federal Rule of Evidence 803(3), which provides an exception to the rule against
hearsay for statements of “the declarant’s then-existing state of mind.” Fed. R.
Evid. 803(3). But Vo sought to introduce the text messages to show his state of
mind, not the state of mind of the declarant. Vo therefore lacks a legal basis for his
claim.
4. Vo’s counsel was not ineffective under Strickland v. Washington, 466
U.S. 668 (1984), in failing to subpoena the confidential informant at trial.
“Speculation about what [a witness] could have said is not enough to establish”
deficient performance under Strickland. Grisby v. Blodgett, 130 F.3d 365, 373 (9th
Cir. 1997). Vo offers only vague assertions as to why his attorney should have
called the informant to testify, claiming that he could have discussed her
understands and has an opportunity to deny it, the statement and his failure to deny are admissible against him.” United States v. Moore, 522 F.2d 1068, 1075 (9th Cir. 1975).
4 “disreputable background” and the “numerous pivotal conversations he had with
[her].” Without more specific allegations, Vo cannot prevail.
5. The district court did not err in denying Vo’s motion for judgment of
acquittal, as the “thing of value” exchanged was above $5,000, as 18 U.S.C. § 666
demands. Precedent in this circuit interprets § 666(a) to require the “bribe
[to] exceed $5,000,” not the “business” or “transaction” exchanged. United States
v. Cabrera, 328 F.3d 506, 509 (9th Cir. 2003); see also United States v. Simas, 937
F.2d 459, 461 (9th Cir. 1991). And even if “the subject matter of the bribe must be
valued at $5,000 or more,” United States v. Robinson, 663 F.3d 265, 271 (7th Cir.
2011), Vo would still lose. At trial, he claimed that he had charged $15,000 to
modify a similar Conditional Use Permit (CUP) in the past, providing credible
evidence indicating that the value of the “business” or “transaction” was above the
statutory minimum as well.
AFFIRMED.
5 FILED United States v. Vo, Case No. 18-50041 APR 04 2019 Rawlinson, Circuit Judge, concurring in the result: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
I agree with the majority that the conviction in this case should be affirmed.
However, I do not agree that the district court committed error during the trial.
1. The admission of statements made by the confidential informant did
not violate the Confrontation Clause because the statements were offered for
purposes other than establishing the truth. Rather they were offered “to set the
context of the response that that person receives in the conversation” and “for the
effect those statements had on the other person.” The district court gave a limiting
instruction to that effect. See United States v. Johnson, 875 F.3d 1265, 1278 (9th
Cir. 2017) (“Crawford applies only to testimonial hearsay, and does not bar the use
of testimonial statements for purposes other than establishing the truth of the
matter asserted.”) (citation and internal quotation marks omitted) (emphasis in the
original).
2. Because the statements of the informant were non-hearsay, the district
court acted within its discretion in precluding impeachment of the informant. See
United States v. Becerra, 992 F.2d 960, 965 (9th Cir. 1993), as amended (“Federal
1 Rule of Evidence 806 permits attacks on the credibility of the declarant of a
hearsay statement . . .”).
I would affirm the district court judgment in its entirety. Therefore, I concur
only in the result.