United States v. Torres-Alvarez

44 F. App'x 818

Opinions

MEMORANDUM

**

We have reviewed this case carefully and determined that the government’s case is insufficient as a matter of law to sustain the conviction of Dionicio Torres-Alvarez (“Torres”). The entirety of the evidence against Torres is this: First, drug dealer Uribe had paged Torres on a number of occasions contemporaneous with Uribe’s efforts to find a drug supplier for undercover agent Pagel. (Uribe, however, never mentioned the name of the supplier to Pagel and described his “source” as someone who had been in a recent car accident injuring his leg, which quite simply did not describe Torres.) Second, Torres was in the vicinity of the February 11, 1999 transaction — though he was not observed exchanging anything at either of the two encounters with Uribe (or anyone else).¹ Finally, after his arrest, Torres initially said he did not remember who Uribe was, but once Uribe’s name was put in the context of the lunch with his friend Sevilla, he did remember him. On these thin reeds, the government seeks to sustain a felony conviction and a lengthy prison sentence for a person with no prior criminal convictions.

The case against Torres is especially worrisome because there was evidence that the drugs belonged to someone other than Torres-evidence the jury was not permitted to hear. We therefore reverse and remand for entry of a judgment of acquittal on the grounds that the evidence was insufficient as a matter of law to support a guilty verdict on either conspiracy or possession. See United States v. Vasquez-Chan, 978 F.2d 546, 554 n. 4 (9th Cir.1992).

Even if we were to conclude that the evidence was sufficient, we would conclude that the district court erred when it precluded Torres from presenting certain evidence. This argument concerns the hearsay statements of Julio Sevilla which Torres attempted to introduce as part of his defense. On August 4, 1999, Detective Alejandro Munoz of the Santa Ana Police Department executed a warrant for Sevilla’s arrest on an unrelated murder charge at the Imperial County Sheriffs Department, in Imperial County, California. He transported Sevilla back to Santa Ana, California. While en route to Santa Ana, Sevilla told Detective Munoz that he was wanted by the DEA for selling heroin to a DEA agent. Sevilla said DEA agents had arrested his friend — Torres— for assisting in a narcotics transaction. Sevilla said that Torres had nothing to do with the sales and that Torres had never sold drugs to anyone. Sevilla added that the heroin was his and that he took full responsibility for the drug transaction.

During Torres’s first trial, his counsel called Sevilla to testify as a witness but Sevilla exercised his right under the Fifth Amendment and refused to answer any questions. Torres then sought to elicit hearsay testimony from Detective Munoz regarding the statements made by Sevilla after Sevilla’s arrest. The district court found Sevilla unavailable as a witness and determined that Sevilla’s statement regarding the heroin transaction was a statement against penal interest. However, the district court would not permit the testimony of Detective Munoz, finding there were insufficient corroborating circumstances clearly indicating that the statement was trustworthy. The jury deadlocked.

During the second trial, Torres again sought to call Detective Munoz to elicit Sevilla’s statements. The district court held that Sevilla was unavailable and reaffirmed its prior holding that there were insufficient corroborating circumstances clearly indicating that Sevilla’s statements to Detective Munoz were trustworthy.

The district court’s ruling was made pursuant to Rule 804(b)(3) of the Federal Rules of Evidence which provides an exception to the hearsay rule for:

A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability ... that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Torres argues that the district court’s ruling, excluding the Sevilla hearsay because it was not established as clearly trustworthy based on corroborating circumstances, was an abuse of discretion.

Whether the district court correctly construed the hearsay rule is a question of law reviewable de novo. United States v. Olafson, 213 F.3d 435, 441 (9th Cir. 2000). The district court’s decisions to admit evidence under exceptions to the hearsay rule are reviewed for an abuse of discretion. Id. Exclusion of evidence under the hearsay rule is also reviewed for an abuse of discretion. United States v. Ortega, 203 F.3d 675, 682 (9th Cir.2000). We hold that the district court abused its discretion in excluding some of Sevilla’s statements.

When a declaration against penal interest is offered to exculpate the defendant, three requirements must be satisfied:

(1) the declarant must be unavailable;

(2) the statement must tend to subject the declarant to criminal liability such that a reasonable person in the declar-ant’s position would not have made the statement unless he or she believed it to be true; and (3) there must be corroborating circumstances which [clearly] indicate the trustworthiness of the statement.

United States v. Nazemian, 948 F.2d 522, 530 (9th Cir.1991). The parties do not dispute Sevilla’s unavailability — he invoked his Fifth Amendment right not to testify. Whether Sevilla’s statements meet the second requirement is less clear. We have held that “a statement that includes both incriminating declarations and corollary declarations that, taken alone, are not in-culpatory of the declarant, must be separated and only that portion that is actually incriminating of the declarant admitted under the exception.” LaGrand v. Stewart, 133 F.3d 1253, 1268 (9th Cir.1998) (construing Arizona’s identical hearsay exception). However, we have also recognized that a statement may be both inculpatory and exculpatory at the same time and that the inculpatory and exculpatory portions may not be “practically separable.” See United States v. Paguio, 114 F.3d 928, 933-34 (9th Cir.1997). In Paguio, we reversed the district court’s exclusion of a father’s statement that the entire fraudulent scheme was his idea and that his son had nothing to do with it. Id. at 935. We reasoned that an inculpatory statement in the form of, “I did it alone, not with X,” is more likely to be true of X than, “I did it, but X is guiltier than I am,” because the former represents an attempt “to accept undiluted responsibility.” Id. at 934.

Here, some of Sevilla’s statements were inculpatory but some were not. His statements that Torres had nothing to do with the drug sale and that Torres had never sold drugs to anyone did not “tend to expose [Sevilla] to criminal liability,” and thus Rule 804(b)(3) does not apply. However, Sevilla’s statements that the heroin was his and that he took full responsibility for the drug transaction solidly inculpated Sevilla. Nazemian, 948 F.2d at 530. In addition, the statements “were not made in circumstances which have been found to cast doubt on reliability.” Id. Sevilla made the statements in custody, but the record does not reflect that he was trying to “curry favor” with the police or that his statements were an attempt to “shift blame from himself to others.” Id. It does not appear that Sevilla could have suppressed the statements at any subsequent criminal proceedings. Compare United States v. Hoyos, 573 F.2d 1111, 1115 (9th Cir.1978) (affirming exclusion of exculpatory statement where it was made to wife and could have been suppressed on grounds of marital privilege). Moreover, although the government contends that Sevilla’s statement is untrustworthy because he was already facing a long prison sentence for an unrelated murder charge, it does not supply us with any specific information about the strength of the case against Sevilla or even suggest that Sevilla knew at the time he spoke that he was in danger of serving time for that crime. In any event, a federal drug crime may well carry a sentence consecutive to the unrelated state murder charge. Cf. U.S.S.G. § 5G1.3 (Nov. 1, 2001). It is true that Sevilla and Torres were friends, but in Paguio we approved the admission of a statement exculpating the declarant’s son. On balance, we conclude that the statement exposed Sevilla to criminal liability “such that a reasonable person in [Sevil-la’s] position would not have made the statement unless he ... believed it to be true.” Nazemian, 948 F.2d at 530.

Finally, corroborating circumstances clearly indicate the trustworthiness of Sevilla’s statement. Factors relevant to this inquiry include:

(a) the time of the declaration and the party to whom it was made;

(b) the existence of corroborating evidence;

(c) the extent to which the declaration is really against the declarant’s penal interest; and

(d) the availability of the declarant as a witness.

United States v. Oropeza, 564 F.2d 316, 325 (9th Cir.1977). Sevilla made the statements six months after the drug transaction and about two months after the first of the conspirators was arrested. This weighs slightly against the trustworthiness of the statements, but the existence of corroborating evidence weighs more in favor of admission. Sevilla was present at the drug deal, and the evidence against him — his presence coupled with his confession — is nearly as strong as the evidence against Torres — his presence and the pattern of suspicious pages. Compare United States v. Guillette, 547 F.2d 743, 754 (2d Cir.1976) (affirming exclusion of statement against penal interest where no independent evidence tied the declarant to the crime). Moreover, as discussed above, the statements were clearly inculpatory of Sevilla. Finally, no one disputes that Sev-illa was unavailable. Apparently, this weighs against admission,² but, given the “solidly inculpatory” nature of the statements and Sevilla’s presence at the drug deal, we conclude that “corroborating circumstances clearly indicate the trustworthiness of the statement[s].” Fed. R. Ev. 804(b)(3). Accordingly, the district court abused its discretion in excluding Sevilla’s inculpatory statements — that the drugs were his and that he took “sole responsibility” for the transaction. Moreover, given the slim evidence against Torres, we cannot conclude that the error was harmless beyond a reasonable doubt.

Though it is our practice to slice and parse through the moments of a man’s trial, it is signally important — vitally so when a man’s liberty and reputation is at stake — to look at the whole narrative being told. The dissent’s position does not see any connection between the claim that the evidence produced against Torres was paper thin and the claim that Sevilla’s statements (whether all or some of them) were wrongfully excluded. This is a mistake because had Sevilla’s statements been introduced, it would have been unreasonable for any fact-finder to conclude from all the evidence that Torres was guilty beyond a reasonable doubt.

REVERSED.

WEINER, District Judge,

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

1 . Torres’s mere presence at the scene of the crime, all agree, is not enough to warrant a criminal conviction. United States v. Gaskins, 849 F.2d 454, 457 (9th Cir.1988) ("A defendant’s mere presence at the scene of the crime and knowledge that a crime has/is being committed is not sufficient to establish that an accused aided and abetted the commission of the crime, unless you find beyond a reasonable doubt that he was a participant, and not a knowing spectator.”).

2 . Even though Rule 804 requires that the de-clarant be unavailable to testify, Guillette suggests that unavailability weighs against admission of the hearsay statement. See 547 F.2d at 754 (noting concern that declarant could not be cross-examined or observed first-hand by the jury); see also United States v. Rhodes, 713 F.2d 463, 473 (9th Cir.1983) (suggesting that hearsay statement was unreliable because, inter alia, declarant became unavailable because he decided to invoke his Fifth Amendment right not to testify).