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U.S. v. Nguyen, No. 07-30197 (5-15-09). Crawford and confrontation are issues in this appeal involving conspiracy to transport stolen property, transportation of the property, and conspiracy for money laundering. The offenses arose from a scheme to misbrand ultrasound probes and to defraud the supplier. The government had a FBI agent testify about statements made by a witness and possible co-conspirator during interrogation. This was a Crawford violation, and was still hearsay even if the statements were elicited by counsel of the co-defendant. The 9th (Gould and Beezer) found this to be prejudicial. The 9th also found error in the conviction for misbranding because the jury instructions lacked the element of materiality. However, the error was harmless. Dissenting, Callahan would find that the confrontation violation was harmless and that the money laundering conviction was not plain error.

U.S. v. Raygosa-Esparza, No. 07-50573 (5-15-09). The defendant was convicted on two counts of smuggling drugs into prison. He got a 210 month sentence, but had it vacated because of an Apprendi error. On resentencing, the court imposed consecutive sentences of 60 months each. The 9th (Thompson joined by Pregerson and Fogel) affirmed because the statute 18 U.S.C. 1791 required the sentences to run consecutively and the sentence was not vindictive. The sentences, moreover, were not unreasonable. The court could consider other drugs smuggled in besides the charged marijuana so long as the statutory maximum was not exceeded.

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