United States v. Bao Truong

MEMORANDUM **

Bao Truong (“Truong”) appeals his jury conviction of three counts of mail theft by a postal employee in violation of 18 U.S.C. § 1709 . The prosecution arose out of an investigation of the theft of three gift cards mailed by a woman in Kentucky to her son in San Diego, California, but which never reached their destination. The cards were traced to Truong as a result of their having been addressed to an address on Truong’s mail delivery route, and then cashed by Truong’s wife. The sufficiency of the evidence establishing theft is not disputed.

Truong’s principal argument on appeal is that the district court erred by admitting a statement of the investigating agent concerning a credit card industry practice. At trial, Agent Figueroa’s testimony described how he traced the cards cashed by Truong’s wife to the cards

*651 U.S. V. TRUONG Cite as 463 Fed.Appx. 649 (9th Cir. 2011) 651 mailed in Kentucky, and further, how he tested Truong by planting items, appearing to be mail containing something of value, in the mail handled by Truong. Agent Figueroa further explained that Truong failed to deliver one of the test items, but instead took the test piece home, where he was…

concurring in part, dissenting in part:

I concur with the majority’s conclusion regarding the reasonable doubt jury instruction. I respectfully dissent as to the majority’s conclusion that the confrontation clause error was harmless beyond a reasonable doubt.

In order to convict Truong of Count 1 of the indictment, the government had to establish that the gift cards purchased by Mrs. Mackey at Kroger in Kentucky were the same gift cards cashed in San Diego at GameStop by Truong’s wife. The government offered Exhibit 1, a purchase receipt from Kroger in Kentucky, showing Mrs. Mackey’s purchase of three gift cards, with numbers ending in the last four digits of 6930, 0034, and 5804. The government also offered Exhibit 3, a purchase receipt from GameStop in San Diego, showing three gift cards were redeemed by Truong’s wife, with numbers different from those used in Kentucky, ending in the last four digits of 3937, 5803, and 4034.

The government offered Exhibit 8B, showing two columns (reproduced below), listing “proxy number” and “card number.” Nothing in the exhibits explains the relationship between the completely different numbers, or what the words “proxy number” or “card…

FILED

NOT FOR PUBLICATION DEC 22 2011

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 10-50607

Plaintiff - Appellee, D.C. No. 3:10-cr-02969-JM-

v.

MEMORANDUM *

BAO Ï. TRUONG,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Jeffrey T. Miller, Senior District Judge, Presiding

Argued and Submitted November 7, 2011 Pasadena, California

Before: SCHROEDER and LEAVY, Circuit Judges, and GILLMOR, Senior District Judge.**

Bao Truong ('Truong') appeals his jury conviction of three counts of mail

theft by a postal employee in violation of 18 U.S.C. y 1709. The prosecution arose

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Helen W. Gillmor, Senior United States District Judge for the District of Hawaii, sitting by designation. out of an investigation of the theft of three gift cards mailed by a woman in

Kentucµy to her son in San Diego, California, but…