                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 4 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-50041

                Plaintiff-Appellee,             D.C. No.
                                                8:16-cr-00077-JVS-1
 v.

DAVE PHUONG DINH VO,                            MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Central District of California
                    James V. Selna, District Judge, Presiding

                          Submitted December 7, 2018**
                              Pasadena, California

Before: RAWLINSON and BEA, Circuit Judges, and SETTLE,*** District Judge.

      Defendant-Appellant Dave Vo appeals his conviction for bribery in a

program receiving federal funds under 18 U.S.C. § 666(a)(1)(B). We have



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Benjamin H. Settle, United States District Judge for
the Western District of Washington, sitting by designation.
jurisdiction under 28 U.S.C. § 1291. We review evidentiary issues for abuse of

discretion, United States v. Catabran, 836 F.2d 453, 456 (9th Cir. 1988), and

violations of the Confrontation Clause de novo, United States v. Jenkins, 884 F.2d

433, 435 (9th Cir. 1989). We affirm.

      1. While the district court violated Vo’s rights under the Confrontation

Clause when it admitted statements made by a confidential informant, that error

was harmless.

      Under Crawford v. Washington, the admission of testimonial hearsay

without “unavailability and a prior opportunity for cross-examination” violates the

Confrontation Clause, but the admission of “testimonial statements for purposes

other than establishing the truth of the matter asserted” does not. 541 U.S. 36, 68,

59 n.9 (2004); see United States v. Wahchumwah, 710 F.3d 862, 871 (9th Cir.

2013) (“Crawford applies only to testimonial hearsay.”) (emphasis in original).

The government argues that the informant’s statements were not provided for their

truth, but rather “as context for defendant’s admissions and to show their effect on

the listener.” The government also argues that an informant’s side of a recorded

conversation should be admitted categorically, without further inquiry.

      “[I]nvoking the word ‘context’ does not permit an end-run around the

hearsay rules such that the government may smuggle into evidence all [the

informant’s] statements,” particularly when they “overwhelm the defendant’s.”


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United States v. Collins, 575 F.3d 1069, 1073-74 (10th Cir. 2009). Here, several of

the informant’s incriminating statements went beyond the bounds of placing the

conversation in context:

      1) “It’s like what you told me the other day if, you know, whatever it is,
         then you know, it’s 15,000 on the side.”

      2) “Do you remember what you told me the other day? You said, ‘Okay,
         pay 15,000 on the side.’”

      3) “So then about the money, the 15,000 you talked about for the other side,
         I’ve got it all prepared already ok.”

      These statements were also testimonial, as they were made with the

“primary purpose” to “establish or prove past events potentially relevant to later

criminal prosecution.” Davis v. Washington, 547 U.S. 813, 822 (2006).

      With that said, the admission of these statements was harmless. “The

government bears the burden of proving that the error was harmless beyond a

reasonable doubt.” United States v. Esparza, 791 F.3d 1067, 1074 (9th Cir. 2015).

As the government points out, Vo himself described the bribe as an “under the

table deal,” instructing the informant to “stay quiet” and “don’t mention what’s

going on.” More importantly, Vo was caught on tape receiving $15,000 in cash.

The government has therefore met its burden here.1


1
 Alternately, the court’s error was harmless because these statements could have
been admitted as adoptive admissions under Federal Rule of Evidence
801(d)(2)(B), as the prosecution mentioned during closing argument. “When an
accusatory statement is made in the defendant’s presence and hearing, and he

                                          3
         2. Similarly, the exclusion of potential impeachment material was harmless.

Vo argues the admission of testimonial hearsay should have opened the door to

impeachment evidence under Federal Rule of Evidence 806. But no such evidence

was proffered at trial. Thus, Vo cannot show that he was prejudiced by the district

court’s ruling.

         3. The district court did not abuse its discretion in excluding text messages

from the confidential informant. Vo sought to introduce the text messages under

Federal Rule of Evidence 803(3), which provides an exception to the rule against

hearsay for statements of “the declarant’s then-existing state of mind.” Fed. R.

Evid. 803(3). But Vo sought to introduce the text messages to show his state of

mind, not the state of mind of the declarant. Vo therefore lacks a legal basis for his

claim.

         4. Vo’s counsel was not ineffective under Strickland v. Washington, 466

U.S. 668 (1984), in failing to subpoena the confidential informant at trial.

“Speculation about what [a witness] could have said is not enough to establish”

deficient performance under Strickland. Grisby v. Blodgett, 130 F.3d 365, 373 (9th

Cir. 1997). Vo offers only vague assertions as to why his attorney should have

called the informant to testify, claiming that he could have discussed her


understands and has an opportunity to deny it, the statement and his failure to deny
are admissible against him.” United States v. Moore, 522 F.2d 1068, 1075 (9th Cir.
1975).

                                            4
“disreputable background” and the “numerous pivotal conversations he had with

[her].” Without more specific allegations, Vo cannot prevail.

      5. The district court did not err in denying Vo’s motion for judgment of

acquittal, as the “thing of value” exchanged was above $5,000, as 18 U.S.C. § 666

demands. Precedent in this circuit interprets § 666(a) to require the “bribe

[to] exceed $5,000,” not the “business” or “transaction” exchanged. United States

v. Cabrera, 328 F.3d 506, 509 (9th Cir. 2003); see also United States v. Simas, 937

F.2d 459, 461 (9th Cir. 1991). And even if “the subject matter of the bribe must be

valued at $5,000 or more,” United States v. Robinson, 663 F.3d 265, 271 (7th Cir.

2011), Vo would still lose. At trial, he claimed that he had charged $15,000 to

modify a similar Conditional Use Permit (CUP) in the past, providing credible

evidence indicating that the value of the “business” or “transaction” was above the

statutory minimum as well.

      AFFIRMED.




                                          5
                                                                            FILED
United States v. Vo, Case No. 18-50041                                       APR 04 2019
Rawlinson, Circuit Judge, concurring in the result:                      MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS

       I agree with the majority that the conviction in this case should be affirmed.

However, I do not agree that the district court committed error during the trial.



       1.    The admission of statements made by the confidential informant did

not violate the Confrontation Clause because the statements were offered for

purposes other than establishing the truth. Rather they were offered “to set the

context of the response that that person receives in the conversation” and “for the

effect those statements had on the other person.” The district court gave a limiting

instruction to that effect. See United States v. Johnson, 875 F.3d 1265, 1278 (9th

Cir. 2017) (“Crawford applies only to testimonial hearsay, and does not bar the use

of testimonial statements for purposes other than establishing the truth of the

matter asserted.”) (citation and internal quotation marks omitted) (emphasis in the

original).



       2.    Because the statements of the informant were non-hearsay, the district

court acted within its discretion in precluding impeachment of the informant. See

United States v. Becerra, 992 F.2d 960, 965 (9th Cir. 1993), as amended (“Federal



                                           1
Rule of Evidence 806 permits attacks on the credibility of the declarant of a

hearsay statement . . .”).



       I would affirm the district court judgment in its entirety. Therefore, I concur

only in the result.




                                           2
