                                                                           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                           NOT FOR PUBLICATION                              DEC 22 2011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-1

  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 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 mailed in Kentucµy, 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 tooµ the test piece home,

where he was arrested, and where agents discovered in his vehicle not only the test

piece, but another piece of mail that did not belong to Truong.

      To show that the cards purchased in Kentucµy were the same as those

cashed, Agent Figueroa explained that he obtained a document, which was

admitted into evidence as Exhibit 8, showing that the 'proxy number' on the

purchaser's receipt corresponded to the card having a slightly different 'card

number' on the receipt where the card was cashed. Agent Figueroa obtained the


                                          2
document from the credit card company to illustrate that the two sets of numbers

represented the same card.

       Although not in response to any specific question, Agent Figueroa added

that it is standard credit card industry practice to scramble the last four digits of a

gift card in order to deter fraud. Truong's objection to that statement was

overruled by the district court. This was error because Agent Figueroa had no

first-hand µnowledge of the credit card industry practice. The document, however,

was admitted into evidence without objection. Truong now also contends that

Agent Figueroa was not qualified to maµe such a statement as an expert, but

Truong failed to object to Agent Figueroa's expert qualifications. See United

States v. Gomez-Norena, 908 F.2d 497, 500 (9th Cir. 1990) (we review for plain

error where the appellant failed to raise the evidentiary objection below).

       Although Agent Figueroa's testimony concerning the credit card industry

practice was erroneously admitted, it added nothing material to the prosecution's

case and was not relied on by the prosecution for any purpose during opening or

closing argument; it was not further alluded to at trial. The error, therefore, was

harmless. See United States v. Tuyet Thi-Bach Nguyen, 565 F.3d 668, 673-74 (9th

Cir. 2009) (applying harmless error review to determine whether a claimed

confrontation clause error was harmless beyond a reasonable doubt); United States


                                            3
v. McClintocµ, 748 F.2d 1278, 1291 & n.9 (9th Cir. 1984) (holding improperly

admitted expert testimony harmless because there was substantial admissible

evidence).

      Truong additionally challenges the reasonable doubt instruction, which was

the Ninth Circuit model jury instruction. Considering all of the instructions given

in this case as a whole, the instructions correctly conveyed the concept of

reasonable doubt to the jury. See Victor v. Nebrasµa, 511 U.S. 1, 5-6 (1994)

(reasoning that the test is whether the jury instructions, taµen as a whole, 'correctly

convey the concept of reasonable doubt to the jury' (citation omitted)). We have

reached the same result by relying on the same well-established principle in United

States v. Anyanwu, No. 10-10321, 2011 WL 3915613, at *1 (9th Cir. Sept. 7,

2011), United States v. Ferguson, 425 F. App'x 649, 651 (9th Cir. Apr. 5, 2011),

and United States v. Cano-Medina, No. 10-50406, 2011 WL 4842509, at *1 (9th

Cir. Oct 13, 2011). We decline to exercise our supervisory powers to discourage

use of this instruction in the future. See United States v. Rubio-Villareal, 967 F.2d

294, 297 (9th Cir. 1992) (en banc) (explaining that exercise of this court's

supervisory powers to prohibit or limit the use of an otherwise constitutional

instruction is only proper when the instruction is defective, confusing, intrusive, or

useless).


                                           4
AFFIRMED.




            5
                                                                               FILED
United States v. Truong, No. 10-50607                                          DEC 22 2011

                                                                          MOLLY C. DWYER, CLERK
LEAVY, Circuit Judge, concurring in part, dissenting in part:              U.S . CO U RT OF AP PE A LS




      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. Macµey at Kroger in Kentucµy

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 Kentucµy,

showing Mrs. Macµey'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 Kentucµy,

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 number' signify.
             Proxy Number                                Card Number
 9027253715804                                4416991058625803
 7971739506930                                4416692039273937
 7981745480034                                4416692039274034

      The government's µey witness was Special Agent Figueroa of the Office of

Inspector General of the U.S. Postal Service. He led both the investigation and the

arrest of Truong. On direct examination, he testified about the card numbers as

follows:

      Figueroa: Metabanµ provided a set of information regarding the
      numbers that were in Mrs. Macµey's receipt.

      Government: And from that information did you determine that you
      needed to serve another subpoenaá

      Figueroa: Yes.

      Government: Oµay. How did you determine thatá

      Figueroa: Well, it was part of the information provided by Metabanµ,
      but also what happens is that in that particular industry - -

      Defense: Objection, your Honor; calls for speculation.

      The Court: The objection is overruled.

      Figueroa: In that particular industry, for security reasons, when a
      prepaid card is activated - -

      Defense: Objection, your Honor; hearsay, confrontation, lacµ of
      foundation personal µnowledge.

                                          2
      The Court: The objection is overruled on each ground. You may
      continue, sir.

      Figueroa: When a prepaid card is purchase [sic] and activated, for
      security reasons that number is scrambled or - - to defect fraud - - to
      deter fraud.

(ER 54-55).

      On cross examination, when asµed about Exhibit 1 (the Kroger receipt) and

Exhibit 3 (the GameStop receipt), Figueroa testified as follows:

      Defense: So the only information that you µnow about the relationship
      between these two sets of numbers is from what someone told you - -

      Figueroa: Correct, via a subpoena.

      Defense: And you yourself have no firsthand µnowledge of that
      relationshipá

      Figueroa: No.

(ER 132).

      The majority agrees that the district court erred in allowing Figueroa's

testimony regarding the 'scrambling' of numbers. Figueroa admitted that he had

no firsthand µnowledge of the relationship between the two sets of numbers, and

that he relied upon information that someone told him.

      Admission of an unavailable witness's hearsay statement violates the

Confrontation Clause of the Sixth Amendment when it is testimonial and there has



                                           3
been no opportunity to cross-examine. See Crawford v. Washington, 541 U.S. 36,

68 (2004). Here, Figueroa's testimony about what someone else told him about the

proxy numbers is hearsay admitted in violation of the Confrontation Clause.

      Confrontation Clause violations are subject to constitutional harmless error

review. United States v. Bowman, 215 F.3d 951, 961 (9th Cir. 2000) ('Evidence

erroneously admitted in violation of the Confrontation Clause must be shown

harmless beyond a reasonable doubt, with courts considering the importance of the

evidence, whether the evidence was cumulative, the presence of corroborating

evidence, and the overall strength of the prosecution's case.'). The majority

concludes that admission of Figueroa's testimony was harmless because 'it added

nothing material to the prosecution's case.' The government contends the

admission was harmless because Exhibit 8B, labeling one set of numbers as

'proxy' numbers, informs the jury that those numbers are a 'substitute' for the gift

card numbers, and a gift card has two different numbers.

      In my view, the error is not harmless beyond a reasonable doubt. The fact

that the numbers recording the purchase in Kentucµy are wholly different from the

numbers recording the redemption in San Diego is powerful evidence that the cards

are not the same - until the jury is unconstitutionally told that when a prepaid gift

card is purchased and activated, that gift card number is scrambled for security


                                           4
reasons to deter fraud. In other words, without Figueroa's hearsay explanation, no

correlation exists between the three 'proxy' numbers and the three 'card

numbers.' Figueroa's hearsay testimony is the only evidence establishing this

connection.

      This connection between the two different numbers was integral to

Figueroa's investigation, and central to the prosecution's case as to Count 1.

Without other non-hearsay evidence connecting the purchase and redemption

numbers, the evidence establishing Truong's guilt as to Count 1 is nonexistent,

except for the circumstantial evidence that three gift cards were purchased in

Kentucµy, in the common denominations of ü100, ü100, and ü50, were mailed but

not received, and, within a weeµ's time, three gift cards of the same denominations

were used by Truong's wife. This circumstantial evidence becomes persuasive

only in conjunction with Figueroa's hearsay testimony that the purchase and

redemption numbers were connected, as told to Figueroa by a non-testifying party.

      The other evidence of Truong's guilt on the remaining two counts was

inconclusive, consisting only of two letters in Truong's mailbag in his car. The

error as to Count 1 created the obvious risµ that the jury would infer Truong's

intent to steal the two letters in his mailbag. In the absence of a conviction on

Count 1, the jury could have found that the two letters in Truong's mailbag would


                                           5
have been taµen bacµ to the Post Office for correct delivery. In sum, the

Confrontation Clause error in this case was not harmless beyond a reasonable

doubt.

         I would vacate the judgment and remand.




                                          6
