United States v. Orm Hieng

679 F.3d 1131, 93 A.L.R. Fed. 2d 621, 88 Fed. R. Serv. 488, 2012 WL 1655934, 2012 U.S. App. LEXIS 9596
CourtCourt of Appeals for the Ninth Circuit
DecidedMay 11, 2012
Docket09-10401
StatusPublished
Cited by87 cases

This text of 679 F.3d 1131 (United States v. Orm Hieng) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Orm Hieng, 679 F.3d 1131, 93 A.L.R. Fed. 2d 621, 88 Fed. R. Serv. 488, 2012 WL 1655934, 2012 U.S. App. LEXIS 9596 (9th Cir. 2012).

Opinions

Opinion by Judge WALLACE; Concurrence by Judge BERZON.

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 sentenced 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 government, 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 discretion. United States v. Stinson, 647 F.3d 1196, 1210 (9th Cir.2011). We review evidentiary rulings to which no objection was made for plain error. United States v. Chung, 659 F.3d 815, 833 (9th Cir.2011). On plain error review, we cannot 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 substantial rights, which in the ordinary case means” it “affected the outcome of the district court proceed[1136]*1136ings”; and (4) “the error seriously affeet[s] the fairness, integrity or public reputation of judicial proceedings.”

United States v. Marcus, — U.S. -, 130 S.Ct. 2159, 2164, 176 L.Ed.2d 1012 (2010), quoting Puckett v. United States, 556 U.S. 129, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009); see also United States v. Olano, 507 U.S. 725, 731-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (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 Sheriffs Department discovered a large marijuana growing operation in a vineyard behind a residence in Fresno, California. They discovered marijuana plants growing among the grapevines 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 investigated the property, detectives found Hieng sitting in a chair under a tree outside the house. Inside the house, investigators discovered items of identification for both Phin and Hieng.

Fresno County Sheriffs Department detectives simultaneously 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 Administration who testified that on July 2, 2008, he interviewed Hieng using an interpreter named Rithy Lim. Kunkel asked questions 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 [1137]*1137plants 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 selection 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.

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Bluebook (online)
679 F.3d 1131, 93 A.L.R. Fed. 2d 621, 88 Fed. R. Serv. 488, 2012 WL 1655934, 2012 U.S. App. LEXIS 9596, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-orm-hieng-ca9-2012.