United States v. Orm Hieng

Opinion by Judge WALLACE; Concurrence by Judge BERZON.

OPINION

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…

concurring:

I concur in the majority opinion with one exception: I cannot agree with the assertion on pages 5080-81 that the report by the detectives who “eradicated” the marijuana plants as to the number of plants they counted qualifies as a present sense impression under Rule 803(1) of the Federal Rules of Evidence. As I explain in Parts I and II of this concurrence, applying the present sense exception to the facts of this case profoundly distorts the exception and applies it far beyond the realm supported by its underlying rationale.

Indeed, neither the parties nor the district court ever suggested that this exception applied here — the majority has inserted it into this case on its own initiative. The government argued that the admission of the officers’ count of the marijuana plants should be affirmed based on Federal Rule of Evidence 807, the residual exception to the hearsay rules. I agree. The officers’ count easily falls within the scope of Rule 807, and applying that Rule implicates none of the problems created by applying the present sense impression exception.

In addition, as I explain in Part III, although I agree with the opinion’s conclusion that United States…

Edgar Eugene Page, Page & Page Attorneys at Law, Sacramento, CA, for the defendant-appellant.

Benjamin B. Wagner, United States Attorney; Laurel J. Montoya (argued), Assistant United States Attorney, Fresno, CA, for the plaintiff-appellee.

Before: J. CLIFFORD WALLACE, MARSHA S. BERZON, and JAY S. BYBEE, Circuit Judges.

Opinion by Judge WALLACE; Concurrence by Judge BERZON.

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…