United States v. Pioquinto Santacruz

FILED

NOT FOR PUBLICATION MAY 08 2012

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. 10-10400

Plaintiff - Appellee, D.C. No. 1:08-cr-00124-OWW-

v.

MEMORANDUM *

PIOÏUINTO LARIOS SANTACRUZ,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of California Oliver W. Wanger, Senior District Judge, Presiding

Argued and Submitted August 30, 2011 San Francisco, California

Before: WALLACE, BERZON, and BYBEE, Circuit Judges.

The district court sentenced Pioquinto Larios Santacruz to 188 months'

imprisonment based on a jury verdict of guilty on counts of conspiracy to distribute

and/or possess with intent to distribute, distribution of, and possession with intent

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. to distribute methamphetamine and/or cocaine. We have jurisdiction under

U.S.C. y 1291, and we affirm.

Santacruz first contends that Agent Kuehnlein's testimony…

MEMORANDUM *

The district court sentenced Pioquinto Larios Santacruz to 188 months’ imprisonment based on a jury verdict of guilty on counts of conspiracy to distribute and/or possess with intent to distribute, distribution of, and possession with intent to distribute methamphetamine and/or cocaine. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

Santacruz first contends that Agent Kuehnlein’s testimony regarding Santa-cruz’s statements made through interpreter Deputy Davalos were inadmissible hearsay and a violation of the Confrontation Clause. In United States v. Nazemian, we held that before reaching Confrontation Clause and hearsay issues, we must determine whether an interpreter’s statements should be attributed to the interpreter or the defendant. 948 F.2d 522, 525-28 (9th Cir.1991). We identified four factors to consider in this analysis: (1) who supplied the interpreter, (2) whether the interpreter had a motive to mislead or distort, (8) the interpreter’s qualifications, and (4) whether the defendant’s subsequent actions were consistent with the translated statements. Id. at 527 .

In this case, although the government provided the translator, there was no…

concurring:

I concur with the caveat I explain in more detail in my separate opinion in United States v. Hieng, 679 F.3d 1131 (9th Cir.2012): Although I agree with the conclusion that United States v. Nazemian, 948 F.2d 522 (9th Cir.1991), is not so “clearly irreconcilable,” Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003) (en banc), with Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004), as to permit a three-judge panel to overrule Nazemian , I believe the continued vitality of Nazemian after Crawford is an issue that merits en banc review in an appropriate case.