Ricky Wahchumwah v. United States ( 2013 )


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  •                 FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA ,               No. 11-30101
    Plaintiff-Appellee,
    D.C. No.
    v.                      2:09-cr-02035-
    EFS-1
    RICKY S. WAHCHUMWAH , AKA
    Ricky Sam Wahchumwah,
    Defendant-Appellant.        ORDER AND
    AMENDED
    OPINION
    Appeal from the United States District Court
    for the Eastern District of Washington
    Edward F. Shea, District Judge, Presiding
    Argued and Submitted
    October 9, 2012—Seattle, Washington
    Filed November 27, 2012
    Amended March 4, 2013
    Before: Alex Kozinski, Chief Judge, A. Wallace
    Tashima and Milan D. Smith, Jr., Circuit Judges.
    Opinion by Judge Milan D. Smith, Jr.
    2             UNITED STATES V . WAHCHUMWAH
    SUMMARY*
    Criminal Law
    The panel affirmed in part and reversed in part a criminal
    judgment in a case in which a jury convicted the defendant of
    offenses relating to the sale of eagle parts.
    The panel held that an undercover agent’s warrantless use
    of a concealed audio-video device in a home into which he
    has been invited by a suspect does not violate the Fourth
    Amendment.
    The panel held that Count 2 charging the defendant with
    offering to sell Golden Eagle tails, in violation of the Bald
    and Golden Eagle Protection Act, and Count 3 charging the
    defendant with the subsequent sale of a Golden Eagle tail, in
    violation of the Lacey Act, are multiplicitous because the
    offer to sell is a lesser included offense. The panel held that
    Count 4 charging the defendant with offering to sell a pair of
    eagle plumes from a collection of plumes and Count 5
    charging him with the subsequent sale of a pair of plumes,
    both premised on a violation of the Bald and Golden Eagle
    Protection Act, are likewise multiplicitous.
    The panel rejected the defendant’s objection to the
    admission of certain photographs of eagles and other bird
    parts under Fed. R. Evid. 403.
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    UNITED STATES V . WAHCHUMWAH                     3
    The panel held that the district court did not err under the
    Confrontation Clause by permitting officers to testify to
    receiving complaints from unnamed tribal members that the
    defendant was selling eagle parts, when the complaints were
    offered not to prove that the defendant was selling eagle
    parts, but merely to explain why federal agents began
    investigating him.
    COUNSEL
    Robert M. Seines (argued), Liberty Lake, Washington, for
    Defendant-Appellant.
    Michael C. Ormsby, United States Attorney, and Timothy J.
    Ohms, Assistant United States Attorney (argued), United
    States Attorney’s Office for the Eastern District of
    Washington, Spokane, Washington; Katherine Wade Hazard,
    Environmental and Natural Resources Division, United States
    Department of Justice, Washington, D.C., for Plaintiff-
    Appellee.
    Hanni M. Fakhoury, Electronic Frontier Foundation, San
    Francisco, California, for Amicus Curiae.
    ORDER
    The opinion filed November 27, 2012, and published at
    
    2012 WL 5951624
    , is amended as follows:
    In the third paragraph on page *3, add the following
    footnote after the sentence ending with :
    4            UNITED STATES V . WAHCHUMWAH
    194 F.3d 1045
    ,
    1052 (9th Cir. 1999), and the court will not consider
    arguments raised only in amicus briefs. See Chaker v.
    Crogan, 
    428 F.3d 1215
    , 1220 (9th Cir. 2005). Because
    Wahchumwah has not argued that a Fourth Amendment
    violation under the trespass theory articulated in Jones
    occurred in this case, that issue is not properly before us, and
    we express no opinion concerning it.>
    With this amendment, the panel has unanimously voted
    to deny the petition for rehearing. Chief Judge Kozinski and
    Judge M. Smith have voted to deny the petition for rehearing
    en banc, and Judge Tashima so recommends.
    The full court has been advised of the petition for
    rehearing en banc and no judge of the court has requested a
    vote on it. Fed. R. App. P. 35(f).
    The petition for rehearing and the petition for rehearing
    en banc (Docket No. 50) are therefore DENIED. No further
    petitions for panel or en banc rehearing will be entertained in
    this case.
    UNITED STATES V . WAHCHUMWAH                           5
    OPINION
    M. SMITH, Circuit Judge:
    Defendant-Appellant Ricky Wahchumwah appeals his
    jury conviction for offenses relating to the sale of eagle parts.
    He contends that his Fourth Amendment rights were violated
    when an undercover agent used a concealed audio-video
    device to record an illegal transaction Wahchumwah
    conducted in his home. We reject this argument because the
    Fourth Amendment’s protection does not extend to
    information that a person voluntarily exposes to a government
    agent, including an undercover agent. See Hoffa v. United
    States, 
    385 U.S. 293
    , 302 (1966). We also reject
    Wahchumwah’s Confrontation Clause challenge, and his
    objection to the admission of certain photographs of eagles
    and other bird parts at his trial under Federal Rule of
    Evidence 403. However, we reverse Wahchumwah’s
    conviction on Counts 2 or 3 and Counts 4 or 5 because those
    counts are multiplicitous.1
    FACTUAL AND PROCEDURAL BACKGROUND
    United States Fish and Wildlife Service agents began an
    undercover investigation of Wahchumwah based on
    anonymous complaints that he was selling eagle parts. As
    part of this investigation, Special Agent Robert Romero
    began developing a rapport with Wahchumwah in April 2008,
    at a powwow in Missoula, Montana. Romero claimed to have
    an interest in eagle feathers, and showed Wahchumwah a
    1
    The claims of Victoria Jim, W ahchumwah’s co-defendant, are
    addressed in a memorandum disposition filed contemporaneously with this
    opinion.
    6           UNITED STATES V . WAHCHUMWAH
    Golden Eagle tail he had brought with him. Later that
    evening, Romero bought a set of eagle wings from
    Wahchumwah for $400.
    The following month, Romero sent Wahchumwah a text
    message asking if Wahchumwah had any immature Golden
    Eagle tail feathers. Wahchumwah responded in the
    affirmative, and sent Romero photos depicting three Golden
    Eagle tails.    The exchange culminated in Romero’s
    purchasing a Golden Eagle tail from Wahchumwah.
    On October 7, 2008, Romero sent Wahchumwah a text
    message stating that he would be visiting family who lived
    near Wahchumwah the following week and would like to stop
    by Wahchumwah’s home. Wahchumwah, agreed, and a week
    later Romero visited Wahchumwah in his residence wearing
    a concealed audio-video recording device. During the visit,
    Wahchumwah showed Romero a blue spiral notebook
    containing a number of eagle plumes. Romero examined the
    plumes and purchased a pair for $100. During the visit,
    Wahchumwah mentioned to Romero that Wahchumwah had
    previously bought eagle tails from a friend.
    On March 11, 2009, a team of Fish and Wildlife Service
    agents executed a search warrant on Wahchumwah’s home
    and its outbuildings. Wahchumwah was arrested.
    Count 1 of the Superseding Indictment charged
    Wahchumwah with conspiracy in violation of 18 U.S.C.
    § 371. Count 2 charged him with offering to sell Golden
    Eagle tails in violation of the Bald and Golden Eagle
    Protection Act, 16 U.S.C § 668(a). Count 3 charged
    Wahchumwah with the sale of a Golden Eagle tail in
    violation of the Lacey Act, 16 U.S.C. §§ 3372(a)(1) and
    UNITED STATES V . WAHCHUMWAH                    7
    3373(d)(1)(B). Both Counts 4 and 5 charged him with
    violating the Bald and Golden Eagle Protection Act,
    16 U.S.C. § 668(a)—Count 4 for offering to sell eagle plumes
    and Count 5 for the subsequent sale of the plumes.
    The jury ultimately convicted Wahchumwah on all
    counts, and the district court sentenced him to 30 days in
    prison, followed by two years of supervised release.
    Wahchumwah timely appealed his conviction. We have
    jurisdiction under 28 U.S.C. § 1291.
    STANDARDS OF REVIEW
    We review de novo the district court’s decision regarding
    Wahchumwah’s claim that the audio-video recording violated
    his Fourth Amendment rights. United States v. Nerber,
    
    222 F.3d 597
    , 599 (9th Cir. 2000). We similarly review
    Wahchumwah’s claims of multiplicity de novo. United
    States v. McKittrick, 
    142 F.3d 1170
    , 1176 (9th Cir. 1998).
    We review the district court’s denial of Wahchumwah’s
    motion in limine regarding the admission at his trial of eagle
    photographs and photographs of other migratory birds, for
    abuse of discretion. United States v. Merino-Balderrama,
    
    146 F.3d 758
    , 761 (9th Cir. 1998).
    Finally, we review Wahchumwah’s Confrontation Clause
    claim de novo, subject to harmless error analysis. United
    States v. Bridgeforth, 
    441 F.3d 864
    , 868 (9th Cir. 2006).
    8            UNITED STATES V . WAHCHUMWAH
    DISCUSSION
    1. The Fourth Amendment and audio-video recordings
    Wahchumwah contends that the warrantless audio-video
    recording of an illicit sales transaction inside his home by
    Special Agent Romero violated his Fourth Amendment rights.
    “Our Fourth Amendment analysis . . . ask[s] whether the
    individual . . . has exhibited an actual expectation of privacy
    . . . [and] whether the individual’s expectation of privacy is
    ‘one that society is prepared to recognize as reasonable.’”
    Bond v. United States, 
    529 U.S. 334
    , 338 (2000) (quoting
    Smith v. Maryland, 
    442 U.S. 735
    , 740 (1979)). However, that
    expectation of privacy does not extend to “[w]hat a person
    knowingly exposes to the public, even in his own home or
    office.” Katz v. United States, 
    389 U.S. 347
    , 351 (1967)
    (citations omitted).
    The Supreme Court has also determined that a defendant
    generally has no privacy interest in that which he voluntarily
    reveals to a government agent. Hoffa, 385 U.S. at 300–02.
    A government agent may also make an audio recording of a
    suspect’s statements, and those audio recordings, made with
    the consent of the government agent, do not require a warrant.
    United States v. White, 
    401 U.S. 745
    , 749–51 (1971)
    (plurality opinion); see also 18 U.S.C. § 2511(2)(c)
    (expressly authorizing audio recordings with one party’s
    consent).
    We are not the first circuit to address the Fourth
    Amendment implications of an undercover government agent
    using an audio-video device to collect evidence in a home. In
    United States v. Brathwaite, 
    458 F.3d 376
    , 380–81 (5th Cir.
    UNITED STATES V . WAHCHUMWAH                    9
    2006), the Fifth Circuit held that a confidential informant’s
    use of a hidden audio-video device to record meetings at the
    defendant’s residence was not a “search” within the meaning
    of the Fourth Amendment. See also United States v. Davis,
    
    326 F.3d 361
    , 366 (2d Cir. 2003) (same); United States v.
    Lee, 
    359 F.3d 194
    , 199, 203 (3d Cir. 2004) (use of an audio-
    video recording device in the defendant’s hotel room did not
    violate the Fourth Amendment, while consenting informant,
    who had rented the room for the defendant, was present).
    We are persuaded that it is not “constitutionally relevant”
    whether an informant utilizes an audio-video device, rather
    than merely an audio recording device, to record activities
    occurring inside a home, into which the informer has been
    invited. Brathwaite, 458 F.3d at 380. When Wahchumwah
    invited Agent Romero into his home, he forfeited his
    expectation of privacy as to those areas that were “knowingly
    expose[d] to” Agent Romero. Katz, 389 U.S. at 351; see also
    Davis, 326 F.3d at 366. Wahchumwah cannot reasonably
    argue that the recording violates his legitimate privacy
    interests when it reveals no more than what was already
    visible to the agent. “If the conduct and revelations of an
    agent operating without electronic equipment do not invade
    the defendant’s constitutionally justifiable expectations of
    privacy, neither does a simultaneous recording of the same
    conversations made by the agent or by others from
    transmissions received from the agent to whom the defendant
    is talking and whose trustworthiness the defendant
    necessarily risks.” White, 401 U.S. at 751.
    Wahchumwah relies on United States v. Nerber, 
    222 F.3d 597
     (9th Cir. 2000), where we noted that “we suspect an
    informant’s presence and consent is insufficient to justify the
    warrantless installation of a hidden video camera in a
    10           UNITED STATES V . WAHCHUMWAH
    suspect’s home.” 222 F.3d at 604 n.5. Wahchumwah’s
    reliance on Nerber is unavailing because the dicta in that case
    addressed the warrantless installation of a hidden video
    camera, where the hidden camera was attached to the
    suspect’s property and could continuously record activities in
    the suspect’s home without the presence of an agent to
    personally observe what the camera shows. Id. at 599. In
    contrast, Agent Romero did not install any video cameras in
    Wahchumwah’s home and only wore the audio-video device
    on his own clothing during his visit. Wahchumwah also
    claims that the buttonhole audio-video device worn by Agent
    Romero uses technology not generally available to the public,
    and is more intrusive than mere audio surveillance. On this
    point, Wahchumwah relies on Kyllo v. United States, in
    which the Supreme Court held unconstitutional the
    warrantless use of a thermal imaging device to gather
    information from a location outside the suspect’s home
    regarding the interior of that home. 
    533 U.S. 27
    , 29 (2001).
    This case is distinguishable from Kyllo because
    Wahchumwah invited Romero inside his home, voluntarily
    exposing its contents to Romero, whereas the suspect in Kyllo
    did not invite the government to survey the interior of his
    home and had no reason to suspect that such an inspection
    was even possible.
    Finally, we reject amicus Electronic Frontier
    Foundation’s contention that the audio-video recording here
    was similar to the prolonged visual surveillance in United
    States v. Jones, 
    132 S. Ct. 945
     (2012). The Jones Court
    rested its holding on the government’s physical trespass on
    Jones’s property, rather than the government’s prolonged
    UNITED STATES V . WAHCHUMWAH                            11
    surveillance.2 Id. at 949. Moreover, the GPS device in Jones
    enabled constant surveillance of a vehicle over a period of
    twenty-eight days, id. at 948, whereas the recording by Agent
    Romero lasted for only a few hours and for no longer than
    Romero remained an invited guest in Wahchumwah’s home.
    We hold that an undercover agent’s warrantless use of a
    concealed audio-video device in a home into which he has
    been invited by a suspect does not violate the Fourth
    Amendment. Accordingly, the district court did not err in
    denying Wahchumwah’s motion to suppress the evidence
    obtained by use of the concealed audio-video device.
    2. Multiplicitous counts
    Wahchumwah next asserts that Counts 2 and 3 and
    Counts 4 and 5 of his indictment are multiplicitous. An
    indictment is multiplicitous if it charges a single offense in
    multiple counts. United States v. Rude, 
    88 F.3d 1538
    , 1546
    (9th Cir. 1996).
    In order to assess whether the statutory provisions under
    which Wahchumwah was charged are really one offense, we
    2
    Although amicus Electronic Frontier Foundation argues that
    W ahchumwah can show a Fourth Amendment violation under the trespass
    theory articulated in Jones, W ahchumwah did not raise this argument in
    the briefs he filed with our court. Generally, arguments not raised in a
    party’s opening brief are deemed waived, Smith v. Marsh, 
    194 F.3d 1045
    ,
    1052 (9th Cir. 1999), and the court will not consider arguments raised only
    in amicus briefs. See Chaker v. Crogan, 
    428 F.3d 1215
    , 1220 (9th Cir.
    2005). Because W ahchumwah has not argued that a Fourth Amendment
    violation under the trespass theory articulated in Jones occurred in this
    case, that issue is not properly before us, and we express no opinion
    concerning it.
    12           UNITED STATES V . WAHCHUMWAH
    apply the test articulated in Blockburger v. United States,
    
    284 U.S. 299
     (1932). Under that test, “where the same act or
    transaction constitutes a violation of two distinct statutory
    provisions,” we ask “whether each provision requires proof
    of a fact which the other does not.” United States v. Overton,
    
    573 F.3d 679
    , 691 (9th Cir. 2009) (quoting Blockburger,
    284 U.S. at 304) (internal quotation marks omitted). “If two
    different criminal statutory provisions . . . punish the same
    offense or one is a lesser included offense of the other, then
    conviction under both is presumed to violate congressional
    intent.” United States v. Davenport, 
    519 F.3d 940
    , 943 (9th
    Cir. 2008) (citation omitted). “[T]he Court’s application of
    the test focuses on the statutory elements of the offense. If
    each requires proof of a fact that the other does not, the
    Blockburger test is satisfied, notwithstanding a substantial
    overlap in the proof offered to establish the crimes.”
    Albernaz v. United States, 
    450 U.S. 333
    , 338 (1981) (quoting
    Iannelli v. United States, 
    420 U.S. 770
    , 785 n.17 (1975)).
    A. Counts 2 and 3
    We begin by comparing the text of each statutory
    provision under which Wahchumwah was charged in Counts
    2 and 3. Davenport, 519 F.3d at 944. Count 2 charged
    Wahchumwah with offering to sell Golden Eagle tails in
    violation of the Bald and Golden Eagle Protection Act, which
    provides that an individual shall not knowingly sell or offer
    to sell any Golden Eagle. 16 U.S.C. § 668(a). Under Count
    2, the government must prove that Wahchumwah: (1)
    knowingly; (2) sold or offered to sell; (3) Golden Eagle tails;
    (4) without legal permission to do so.
    Count 3 of Wahchumwah’s indictment charged him with
    the subsequent sale of a Golden Eagle tail in violation of the
    UNITED STATES V . WAHCHUMWAH                         13
    Lacey Act, which provides that “[i]t is unlawful for any
    person to . . . sell . . . any fish or wildlife or plant taken . . . in
    violation of any law . . . of the United States.” 16 U.S.C.
    § 3372(a)(1). Section 3373(d)(1)(B) of the Lacey Act
    additionally provides that any person who:
    violates any provision of this chapter . . . by
    knowingly engaging in conduct that involves
    the sale or purchase of, the offer of sale or
    purchase of, or the intent to sell or purchase,
    fish or wildlife or plants with a market value
    in excess of $350, knowing that the fish or
    wildlife or plants were taken, possessed,
    transported, or sold in violation of, or in a
    manner unlawful under, any underlying law,
    treaty or regulation, shall be fined not more
    than $20,000, or imprisoned for not more than
    five years, or both. Each violation shall be a
    separate offense . . . [.]
    16 U.S.C. § 3373(d)(1)(B). Accordingly, under Count 3, the
    government must prove that Wahchumwah: (1) knowingly;
    (2) engaged in conduct that involved the sale or the offer to
    sell; (3) wildlife; (4) with a market value in excess of $350;
    (5) knowing that the wildlife was taken in an unlawful
    manner.
    Counts 2 and 3 prohibit the same offense. Both statutes
    require the knowing sale of a protected species. The Bald and
    Golden Eagle Protection Act’s requirement that an eagle be
    sold is subsumed under the Lacey Act’s requirement that fish,
    wildlife, or plants be sold.
    14           UNITED STATES V . WAHCHUMWAH
    It is true that Count 3 (the Lacey Act) requires proof of
    additional facts that Count 2 (the Bald and Golden Eagle
    Protection Act) does not. For example, the Lacey Act
    requires that the wildlife have a market value in excess of
    $350. See 16 U.S.C. § 3373(d)(1)(B). Blockburger demands,
    however, that Count 2 also require proof of at least one
    additional fact that Count 3 does not. See Blockburger,
    284 U.S. at 304. Here, Count 2 requires proof of the same
    facts as Count 3, and no additional facts. Wahchumwah’s
    conviction for the sale under Count 3 necessarily includes
    proof of the elements required for conviction of the offer to
    sell under Count 2. Thus, the offer to sell is a lesser included
    offense, and the counts are multiplicitous.
    Having concluded that Counts 2 and 3 fail the
    Blockburger test, we next consider whether “congressional
    intent nonetheless mandates that we uphold the multiplicitous
    conviction.” Davenport, 519 F.3d at 946. There is no
    indication within the text of either statute that Congress
    intended to authorize multiple punishments for a single sale.
    The Lacey Act merely provides that “[e]ach violation shall be
    a separate offense,” 16 U.S.C. § 3373(d)(2), meaning that
    distinct violations may be charged separately. Accordingly,
    the district court erred when it denied Wahchumwah’s motion
    to dismiss or merge Counts 2 and 3. One of Wahchumwah’s
    convictions on Counts 2 and 3 must be vacated. We leave the
    determination of which count should be vacated to the district
    court.
    B. Counts 4 and 5
    Wahchumwah additionally challenges Counts 4 and 5 of
    the indictment as multiplicitous.   Count 4 charged
    Wahchumwah with offering to sell a pair of eagle plumes
    UNITED STATES V . WAHCHUMWAH                   15
    from a collection of plumes, and Count 5 charged him with
    the subsequent sale of a pair of plumes. Both counts were
    premised on a violation of the Bald and Golden Eagle
    Protection Act, 16 U.S.C. § 668(a).
    The Bald and Golden Eagle Protection Act provides that
    one may not knowingly “take, possess, sell, purchase, barter,
    offer to sell, purchase or barter, transport, export or import”
    a Bald or Golden Eagle. 16 U.S.C. § 668(a). Under Count 4,
    the government had to prove that Wahchumwah: (1)
    knowingly; (2) offered to sell; (3) a Bald or Golden Eagle; (4)
    without legal permission to do so. Count 5 differed only in
    that the government had to prove that Wahchumwah sold a
    Bald or Golden Eagle.
    Here, Wahchumwah offered to sell a pair of plumes,
    charged under Count 4, which led to the sale that serves as
    the basis for Count 5. Generally speaking, a “sale” is nothing
    more than an offer followed by an acceptance. Because the
    elements of the statutory provision are the same for Counts 4
    and 5, and the offer to sell requires no separate proof of fact
    that the actual sale does not, the offer to sell is a lesser
    included offense of the completed sale. There is no evidence
    that Congress intended a single completed sale to serve as the
    basis for multiple charges under the Bald and Golden Eagle
    Protection Act. Thus, Wahchumwah cannot be convicted for
    both the sale and the offer to sell.
    The government asserts that the counts are not
    multiplicitous since Count 4 is premised on the offer of a pair
    of eagle plumes from a notebook containing about fifteen
    pairs of plumes, while Count 5 is premised on the sale of only
    one of those pairs of plumes. This argument fails to show
    how the counts are not multiplicitous, since the plumes
    16           UNITED STATES V . WAHCHUMWAH
    offered for sale differ from the actual plumes sold only in that
    it was unclear prior to the “closing” which pair or pairs of
    plumes Agent Romero was going to buy. Additionally, “[t]he
    Blockburger test focuses on the statutory elements of each
    offense, not on the actual evidence presented at trial.” United
    States v. Kimbrew, 
    406 F.3d 1149
    , 1151–52 (9th Cir. 2005)
    (citing Illinois v. Vitale, 
    447 U.S. 410
    , 416 (1980)).
    Accordingly, one of Wahchumwah’s convictions on
    Counts 4 and 5 must be vacated. We leave the determination
    of which count to vacate to the district court.
    3. Admission of photographs
    Wahchumwah contends that the district court erred in
    admitting into evidence redundant photographs of eagle
    feathers, as well as photos of feathers of birds other than
    eagles that Wahchumwah was legally allowed to possess.
    “The decision to admit potentially prejudicial evidence under
    Rule 403 is ‘committed to the sound discretion of the trial
    court.’” Boyd v. City & Cnty. of S.F., 
    576 F.3d 938
    , 948 (9th
    Cir. 2009) (quoting United States v. Blitz, 
    151 F.3d 1002
    ,
    1008 (9th Cir. 1998)). Federal Rule of Evidence 403 was
    properly applied “‘[a]s long as it appears from the record as
    a whole that the trial judge adequately weighed the probative
    value and prejudicial effect of proffered evidence before its
    admission.’” United States v. Verduzco, 
    373 F.3d 1022
    , 1029
    n.2 (9th Cir. 2004) (quoting United States v. Sangrey,
    
    586 F.2d 1312
    , 1315 (9th Cir. 1978)).
    The record reflects that the district court carefully
    considered the photographs at issue, and balanced their
    probative value against the likelihood of unfair prejudice.
    The transcript of the pretrial hearing reveals that the district
    UNITED STATES V . WAHCHUMWAH                   17
    court scrutinized each photograph, finding some needlessly
    redundant, and others not so. Additionally, the district court
    instructed the jury on the very limited purpose for which they
    could consider the “non-eagle migratory bird evidence,” and
    the jury was told which photos depicted an alternate view of
    the same bird. In light of these facts, we conclude that the
    district court did not abuse its discretion by admitting the
    photos.
    4. Confrontation Clause
    The district court permitted two law enforcement officers
    to testify at trial to receiving complaints from unnamed tribal
    members that Wahchumwah was selling eagle parts. The
    government also referenced the complaints in its closing
    statement. Wahchumwah claims his Sixth Amendment rights
    were violated because he was not given an opportunity to
    cross-examine the unidentified tribal members who made the
    complaints. He relies on Crawford v. Washington, which
    permits the admission of “[t]estimonial statements of
    witnesses absent from trial . . . only where the declarant is
    unavailable, and only where the defendant has had a prior
    opportunity to cross-examine.” 
    541 U.S. 36
    , 59 (2004).
    Wahchumwah’s reliance is misplaced. 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.” Id. at 59 n.9. The
    anonymous complaints were not offered to prove that
    Wahchumwah was selling eagle parts, but merely to explain
    why the federal agents began investigating him. See United
    States v. Whitman, 
    771 F.2d 1348
    , 1352 (9th Cir. 1985).
    18           UNITED STATES V . WAHCHUMWAH
    Additionally, the district court properly instructed the jury
    on two separate occasions that the statements were being
    considered “not for the[ir] truth. . . but only to establish why
    this witness did what he did.” Accordingly, the district court
    did not err in admitting the testimony.
    CONCLUSION
    For the foregoing reasons, Wahchumwah’s conviction as
    to Count 1 is affirmed. With respect to the remaining counts,
    we remand with instructions that the district court vacate
    Wahchumwah’s conviction under either Count 2 or Count 3,
    and either Count 4 or Count 5.
    AFFIRMED in part                and    REVERSED          AND
    REMANDED in part.
    

Document Info

Docket Number: 11-30101

Filed Date: 3/4/2013

Precedential Status: Precedential

Modified Date: 10/30/2014

Authorities (29)

United States v. Leon Davis, Also Known as Flash , 326 F.3d 361 ( 2003 )

United States v. Robert W. Lee, Sr. , 359 F.3d 194 ( 2004 )

Boyd v. City and County of San Francisco , 576 F.3d 938 ( 2009 )

United States v. Jorge Andres Verduzco , 373 F.3d 1022 ( 2004 )

United States v. Overton , 573 F.3d 679 ( 2009 )

United States v. Brathwaite , 458 F.3d 376 ( 2006 )

United States v. Alphonso Nerber Eduardo Alvarez Alberto ... , 222 F.3d 597 ( 2000 )

Darren David Chaker v. Alan Crogan San Diego Probation ... , 428 F.3d 1215 ( 2005 )

United States v. H. Daniel Whitman , 771 F.2d 1348 ( 1985 )

United States v. Davenport , 519 F.3d 940 ( 2008 )

UNITED STATES of America, Plaintiff-Appellee, v. Ernesto ... , 146 F.3d 758 ( 1998 )

katuria-e-smith-angela-rock-michael-pyle-for-themselves-and-all-others , 194 F.3d 1045 ( 1999 )

45-fed-r-evid-serv-245-97-cal-daily-op-serv-5143-96-daily-journal , 88 F.3d 1538 ( 1996 )

United States v. Dennis Sangrey , 586 F.2d 1312 ( 1978 )

United States v. Rodney Robert Kimbrew, A.K.A. Carlton ... , 406 F.3d 1149 ( 2005 )

United States v. Ozine Bridgeforth , 441 F.3d 864 ( 2006 )

United States v. Chad Kirch McKittrick , 142 F.3d 1170 ( 1998 )

united-states-v-lori-blitz-aka-jackie-cross-united-states-of-america-v , 151 F.3d 1002 ( 1998 )

Hoffa v. United States , 87 S. Ct. 408 ( 1966 )

Bond v. United States , 120 S. Ct. 1462 ( 2000 )

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