United States v. Peters

58 F. App'x 245

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 8, 2003
• Docket: No. 01-50331; D.C. No. CR-99-00083-DOC-24
• Status: Published

Opinion

MEMORANDUM

**

The district court did not abuse its discretion in concluding that Cervantes, in his wiretapped conversation with Fernandez, was recounting in part statements he had heard directly from Sally (single hearsay), and not simply repeating what he had learned indirectly from Aunt Flo (double hearsay). See United States v. Murillo, 255 F.3d 1169, 1174 (9th Cir.2001), cert. denied, 535 U.S. 948, 122 S.Ct. 1342, 152 L.Ed.2d 245 (2002). Having stated earlier that he intended to “talk to ... Sally,” Cervantes told Fernandez that “she just sends me her [greetings] from uh her and [her husband] and um, so it’s all to the good.... [S]he said that, uh, [alright], that she’ll see what she could do.” When all the statements are taken in context, the district court’s inference that the “she” in the relevant portion of the conversation refers to Sally and that the statements were made by her directly to Cervantes is not clearly erroneous. United States v. Rahm, 993 F.2d 1405, 1410 (9th Cir.1993).

The district court also did not err in concluding that these single hearsay statements were admissible under the co-conspirator exception to the hearsay rule. See Fed.R.Evid. 801(d)(2)(E). Rochin’s and Torvisco’s testimony implicating Peters in the drug distribution scheme, coupled with the hearsay statements themselves suggesting the same involvement by Peters and Cervantes, are sufficient to establish the existence of a conspiracy for the hearsay statements to be admitted under the co-conspirator exception. See Bourjaily v. United States, 483 U.S. 171, 181, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987); United States v. Silverman, 861 F.2d 571, 577-79 (9th Cir.1988).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of tbis circuit except as provided by Ninth Circuit Rule 36-3.