NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 27 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 23-566 D.C. No. Plaintiff - Appellee, 3:19-cr-08091-MTL-1 v. MEMORANDUM* BRIAN RIGGS,
Defendant - Appellant.
Appeal from the United States District Court for the District of Arizona Michael T. Liburdi, District Judge, Presiding
Argued and Submitted July 11, 2024 San Francisco, California
Before: HIGGINSON, MENDOZA, and DESAI, Circuit Judges.**
Brian Riggs was charged for the killing of his roommate and boyfriend,
Gary Martinez. Following a seven-day trial, the jury returned a guilty verdict for
second-degree murder, in violation of 18 U.S.C. §§ 1153 and 1111. Riggs appeals
his conviction, arguing that the district court erred by admitting Martinez’s out-of-
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Stephen A. Higginson, United States Circuit Judge for the Court of Appeals for the Fifth Circuit, sitting by designation. court statements; failing to provide a lesser-included-offense jury instruction;
violating Rule 11’s prohibition on judicial interference; and erroneously admitting
expert testimony. We have jurisdiction under 28 U.S.C. § 1291. Reviewing
constitutional challenges de novo, United States v. Singh, 995 F.3d 1069, 1080 (9th
Cir. 2021), and evidentiary challenges for abuse of discretion, United States v.
Johnson, 875 F.3d 1265, 1278 (9th Cir. 2017), we vacate Riggs’s conviction and
remand for a new trial.
1. The Confrontation Clause bars admission of testimonial out-of-court
statements by a non-testifying declarant. See Crawford v. Washington, 541 U.S.
36, 53–55 (2004). A statement is “testimonial when the circumstances objectively
indicate that there is no [] ongoing emergency, and that the primary purpose of the
interrogation is to establish or prove past events potentially relevant to later
criminal prosecution.” Davis v. Washington, 547 U.S. 813, 822 (2006). A
conversation “which begins as an interrogation to determine the need for
emergency assistance” can “evolve into testimonial statements,” once the ongoing
emergency ends. Id. at 828 (cleaned up).
Here, the district court admitted officer testimony and body-cam footage of
two prior instances where Martinez told officers that Riggs allegedly assaulted
him. The objective circumstances indicate that the primary purpose of the officers’
interrogation of Martinez was “to establish or prove past events potentially
2 relevant” to a prosecution against Riggs. Id. at 822. Both encounters involved
officers calmly questioning Martinez about “past events” as opposed to “events
that were actually happening.” Id. at 827. At no point during these interrogations
did Martinez indicate that Riggs was a continued threat to anyone, and Martinez
was alone with the officers and safe from harm during the questioning. And even
if there was an ongoing emergency when the officers initially arrived on the scene,
by the time Martinez identified Riggs as the assailant, it was clear that “what
appeared to be a public threat [was] actually a private dispute” with no ongoing
emergency. Michigan v. Bryant, 562 U.S. 344, 365 (2011). Therefore, the district
court was required “[t]hrough in limine procedure” to “redact or exclude the
portions of [Martinez’s] statement[s] that have become testimonial, as [courts] do,
for example, with unduly prejudicial portions of otherwise admissible evidence.”
Davis, 547 U.S. at 829. The district court failed to do so, instead categorically
admitting the entire conversations under the belief that there was an ongoing
emergency. Accordingly, the district court erred by admitting Martinez’s
testimonial statements.1
The government failed to demonstrate that this error was harmless beyond a
reasonable doubt. See United States v. Nguyen, 565 F.3d 668, 675 (9th Cir. 2009).
1 On remand, the district court should carefully parse through the testimony to determine, on first instance, which of the statements, if any, may not violate the Confrontation Clause under the guidance we outlined above.
3 The district court described this case as “circumstantial” with “a lot of missing
pieces,” highlighting the lack of a “theory of how the defendant allegedly
murdered the victim,” and the missing murder weapon. In contrast, the erroneous
admission included a play-by-play breakdown of prior assaults on the victim
supplemented by video evidence and two officers’ testimonies. These
admissions—highlighting in detail Riggs’s prior assaults—were presented to the
jury at the end of a seven-day trial. Although the district court provided a limiting
instruction, the jurors may have walked into the deliberation room focused on
Riggs’s prior bad acts instead of the evidence tying Riggs to the crime alleged. Cf.
Nguyen, 565 F.3d at 675. Therefore, we vacate Riggs’s conviction and remand for
retrial.
2. The district court abused its discretion by admitting Martinez’s
statements under the excited utterance, medical diagnosis, and residual catch-all
hearsay exceptions.2 We address each one in turn.3 First, an “out-of-court
2 Similar to the Confrontation Clause analysis, we have difficulty assessing the district court’s broad conclusions regarding the hearsay exceptions. We therefore do not categorically conclude that none of the hearsay exceptions could apply to any statements. On remand, the district court should proceed through the body-camera footage on a statement-specific basis, to determine which hearsay exception is tethered to individual statements or categories of statements. 3 The government forfeited any argument that Martinez’s statements are admissible under the present sense impression exception, Fed. R. Evid. 803(1), by not raising the issue in its answering brief. See United States v. Dreyer, 804 F.3d 1266, 1277 (9th Cir. 2015).
4 statement must be nearly contemporaneous with the incident described and made
with little chance for reflection,” to be admissible under the excited utterance
exception. Bemis v. Edwards, 45 F.3d 1369, 1372 (9th Cir. 1995); Fed. R. Evid.
803(2). On both encounters, it took officers and paramedics roughly ten to twenty
minutes to arrive on the scene, giving Martinez “ample time to reflect upon his
statements” before speaking to the police and paramedics; therefore, the excited
utterance exception did not apply. United States v.
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 27 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 23-566 D.C. No. Plaintiff - Appellee, 3:19-cr-08091-MTL-1 v. MEMORANDUM* BRIAN RIGGS,
Defendant - Appellant.
Appeal from the United States District Court for the District of Arizona Michael T. Liburdi, District Judge, Presiding
Argued and Submitted July 11, 2024 San Francisco, California
Before: HIGGINSON, MENDOZA, and DESAI, Circuit Judges.**
Brian Riggs was charged for the killing of his roommate and boyfriend,
Gary Martinez. Following a seven-day trial, the jury returned a guilty verdict for
second-degree murder, in violation of 18 U.S.C. §§ 1153 and 1111. Riggs appeals
his conviction, arguing that the district court erred by admitting Martinez’s out-of-
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Stephen A. Higginson, United States Circuit Judge for the Court of Appeals for the Fifth Circuit, sitting by designation. court statements; failing to provide a lesser-included-offense jury instruction;
violating Rule 11’s prohibition on judicial interference; and erroneously admitting
expert testimony. We have jurisdiction under 28 U.S.C. § 1291. Reviewing
constitutional challenges de novo, United States v. Singh, 995 F.3d 1069, 1080 (9th
Cir. 2021), and evidentiary challenges for abuse of discretion, United States v.
Johnson, 875 F.3d 1265, 1278 (9th Cir. 2017), we vacate Riggs’s conviction and
remand for a new trial.
1. The Confrontation Clause bars admission of testimonial out-of-court
statements by a non-testifying declarant. See Crawford v. Washington, 541 U.S.
36, 53–55 (2004). A statement is “testimonial when the circumstances objectively
indicate that there is no [] ongoing emergency, and that the primary purpose of the
interrogation is to establish or prove past events potentially relevant to later
criminal prosecution.” Davis v. Washington, 547 U.S. 813, 822 (2006). A
conversation “which begins as an interrogation to determine the need for
emergency assistance” can “evolve into testimonial statements,” once the ongoing
emergency ends. Id. at 828 (cleaned up).
Here, the district court admitted officer testimony and body-cam footage of
two prior instances where Martinez told officers that Riggs allegedly assaulted
him. The objective circumstances indicate that the primary purpose of the officers’
interrogation of Martinez was “to establish or prove past events potentially
2 relevant” to a prosecution against Riggs. Id. at 822. Both encounters involved
officers calmly questioning Martinez about “past events” as opposed to “events
that were actually happening.” Id. at 827. At no point during these interrogations
did Martinez indicate that Riggs was a continued threat to anyone, and Martinez
was alone with the officers and safe from harm during the questioning. And even
if there was an ongoing emergency when the officers initially arrived on the scene,
by the time Martinez identified Riggs as the assailant, it was clear that “what
appeared to be a public threat [was] actually a private dispute” with no ongoing
emergency. Michigan v. Bryant, 562 U.S. 344, 365 (2011). Therefore, the district
court was required “[t]hrough in limine procedure” to “redact or exclude the
portions of [Martinez’s] statement[s] that have become testimonial, as [courts] do,
for example, with unduly prejudicial portions of otherwise admissible evidence.”
Davis, 547 U.S. at 829. The district court failed to do so, instead categorically
admitting the entire conversations under the belief that there was an ongoing
emergency. Accordingly, the district court erred by admitting Martinez’s
testimonial statements.1
The government failed to demonstrate that this error was harmless beyond a
reasonable doubt. See United States v. Nguyen, 565 F.3d 668, 675 (9th Cir. 2009).
1 On remand, the district court should carefully parse through the testimony to determine, on first instance, which of the statements, if any, may not violate the Confrontation Clause under the guidance we outlined above.
3 The district court described this case as “circumstantial” with “a lot of missing
pieces,” highlighting the lack of a “theory of how the defendant allegedly
murdered the victim,” and the missing murder weapon. In contrast, the erroneous
admission included a play-by-play breakdown of prior assaults on the victim
supplemented by video evidence and two officers’ testimonies. These
admissions—highlighting in detail Riggs’s prior assaults—were presented to the
jury at the end of a seven-day trial. Although the district court provided a limiting
instruction, the jurors may have walked into the deliberation room focused on
Riggs’s prior bad acts instead of the evidence tying Riggs to the crime alleged. Cf.
Nguyen, 565 F.3d at 675. Therefore, we vacate Riggs’s conviction and remand for
retrial.
2. The district court abused its discretion by admitting Martinez’s
statements under the excited utterance, medical diagnosis, and residual catch-all
hearsay exceptions.2 We address each one in turn.3 First, an “out-of-court
2 Similar to the Confrontation Clause analysis, we have difficulty assessing the district court’s broad conclusions regarding the hearsay exceptions. We therefore do not categorically conclude that none of the hearsay exceptions could apply to any statements. On remand, the district court should proceed through the body-camera footage on a statement-specific basis, to determine which hearsay exception is tethered to individual statements or categories of statements. 3 The government forfeited any argument that Martinez’s statements are admissible under the present sense impression exception, Fed. R. Evid. 803(1), by not raising the issue in its answering brief. See United States v. Dreyer, 804 F.3d 1266, 1277 (9th Cir. 2015).
4 statement must be nearly contemporaneous with the incident described and made
with little chance for reflection,” to be admissible under the excited utterance
exception. Bemis v. Edwards, 45 F.3d 1369, 1372 (9th Cir. 1995); Fed. R. Evid.
803(2). On both encounters, it took officers and paramedics roughly ten to twenty
minutes to arrive on the scene, giving Martinez “ample time to reflect upon his
statements” before speaking to the police and paramedics; therefore, the excited
utterance exception did not apply. United States v. Faust, 850 F.2d 575, 586 (9th
Cir. 1988). Second, Martinez’s statements to the police were not made for the
purpose of medical treatment; therefore, we do not have any “assurance that the
statements are particularly likely to be truthful.” United States v. Kootswatewa,
893 F.3d 1127, 1133 (9th Cir. 2018); Fed. R. Evid. 803(3). With respect to
statements Martinez made to the paramedics, any statements identifying Riggs as
his assailant were inadmissible. While a domestic violence victim’s statements
identifying an abuser may be pertinent to medical treatment in some
circumstances, here there is no evidence that Riggs’s identity was relevant to the
paramedics’ treatment of Martinez’s various scrapes, bruises, and physical
ailments. See United States v. JDT, 762 F.3d 984, 1004–05 (9th Cir. 2014).
Lastly, the district court concluded that the body-cam footage gave Martinez’s
statements a “sufficient guarantee[] of trustworthiness” to be admissible under the
catch-all exception. Fed. R. Evid. 807. But a recording of a statement is not
5 among the “rare[] and [] exceptional circumstances” necessary to invoke this
exception, and Martinez’s statements did not otherwise have the “circumstantial
guarantees of trustworthiness equivalent to those present in the traditional
exceptions to the hearsay rule.” Fong v. American Airlines, 626 F.2d 759, 763 (9th
Cir. 1980). Therefore, the district court erred by relying on the residual catch-all
exception. Id.
3. Riggs contends that the district court violated Federal Rule of Civil
Procedure 11(c)(1) (“Rule 11”) by improperly participating in plea discussions.
Because Riggs did not raise this issue below, we review it for plain error. United
States v. Bruce, 976 F.2d 552, 554 (9th Cir. 1992), abrogated on other grounds by
United States v. Davila, 569 U.S. 597, 610–12 (2013). We have “emphasize[d]
that Rule 11(c)(1) is intended to eliminate all judicial pressure from plea
discussions.” United States v. Kyle, 734 F.3d 956, 963 (9th Cir. 2013). Here, the
district court repeatedly inquired about any potential plea deals, including asking
the parties on the eve of trial if there was “any chance” they would file a notice of
intent to change of plea. While these statements came close to crossing the “line
into giving an express or implied judicial imprimatur,” United States v. King, 985
F.3d 702, 712 (9th Cir. 2021), the record does not show that they “shap[ed] plea
bargains or persuad[ed] [Riggs] to accept [any] particular terms.” Kyle, 734 F.3d
at 963 (quoting United States v. Frank, 36 F.3d 898, 902 (9th Cir. 1994)).
6 Therefore, we find that the district court did not violate Rule 11.
4. Riggs also contends that the district court erred by refusing to give a
lesser included offense instruction of “voluntary manslaughter.” The government
does not dispute that voluntary manslaughter is a lesser included offense of
murder. See United States v. Anderson, 201 F.3d 1145, 1148 (9th Cir. 2000).
Therefore, the only question before us is whether the district court abused its
discretion in finding that a jury could not rationally find Riggs guilty of voluntary
manslaughter. United States v. Arnt, 474 F.3d 1159, 1163 (9th Cir. 2007). To
support a theory of voluntary manslaughter, there must be evidence of adequate
“provocation,” such “as would arouse a reasonable and ordinary person to kill
someone.” United States v. Wagner, 834 F.2d 1474, 1487 (9th Cir. 1987) (cleaned
up). We have found that “a physical altercation between two people can constitute
sufficient provocation to reduce second-degree murder to voluntary manslaughter,”
but there must be evidence of an altercation, and evidence that the altercation
provoked the defendant to kill. United States v. Roston, 986 F.2d 1287, 1291 (9th
Cir. 1993). No evidence was introduced at trial that Martinez did or said anything
to provoke Riggs to violence. Therefore, the district court did not err in finding
there was no evidence to support a voluntary manslaughter theory.
5. Lastly, Riggs contends that the district court violated the
Confrontation Clause by permitting an expert to testify using DNA profiles
7 produced by other, non-testifying analysts. The Supreme Court recently addressed
this issue in Smith v. Arizona, 144 S. Ct. 1785, 1788 (2024). Should this issue
arise again, we instruct the district court to apply Smith on first instance.
VACATED AND REMANDED.