U.S. v. Peralta

• Decision Date: 14 August 1991
• Docket Number: No. 90-50186,90-50186
• Parties: 34 Fed. R. Evid. Serv. 125 UNITED STATES of America, Plaintiff-Appellee, v. Rolando PERALTA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1003

941 F.2d 1003

34 Fed. R. Evid. Serv. 125

UNITED STATES of America, Plaintiff-Appellee, v. Rolando PERALTA, Defendant-Appellant.

No. 90-50186.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 3, 1991.

Decided Aug. 14, 1991.

As Amended on Denial of Rehearing

and Rehearing En Banc Oct. 31, 1991.

Edward I. Gritz, Joseph Walsh, Los Angeles, Cal., for defendant-appellant.

Carol L. Gillam, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Before GOODWIN, PREGERSON and ALARCON, Circuit Judges.

ALARCON, Circuit Judge:

Rolando Peralta appeals from the judgment of conviction entered following a trial by jury. Peralta was found guilty of conspiring to take a hostage and to commit extortion in violation of 18 U.S.C. § 371, hostage taking in violation of 18 U.S.C. § 1203, and extortion in violation of 18 U.S.C. § 1951. Peralta seeks reversal on the following grounds:

One. The district court erred in admitting hearsay statements under the co-conspirator exception because a judgment of acquittal of the conspiracy charge was entered in favor of the declarant.

Two. The district court erred in admitting expert testimony regarding the behavior of kidnap victims.

Three. The district court did not have jurisdiction over a charge alleging the taking hostage of a citizen of Nicaragua in Mexico.

We conclude that each of these contentions lacks merit and affirm the judgment.

I Pertinent Factual Background

Peralta was accused of having ordered the kidnapping of Maria Robleto, daughter of Peralta's former lover, Indiana Robleto. Also charged in the conspiracy count were Socorro Contreras and Rigoberto Herrera. The Government's theory at trial was that Maria Robleto was kidnapped in Mexico to induce Indiana Robleto to sign quit claim deeds on real property held jointly with Peralta, and to force her to return money he claimed was stolen from him.

At the suggestion of the Federal Bureau of Investigation, Indiana Robleto asked Contreras to act as an intermediary in the negotiations for Maria's release. At trial, the Government introduced evidence of the tape recorded ransom negotiations between Indiana Robleto and Contreras. At the completion of the Government's case, the district court granted Contreras' motion for a judgment of acquittal.

II Admissibility Of Declarations Of Third Person Acquitted Of Conspiracy

The district court admitted into evidence tape recordings containing Contreras' extrajudicial declarations under the co-conspirator exception to the hearsay rule set forth in Rule 801(d)(2)(E) of the Federal Rules of Evidence. Peralta contends that these recordings were not admissible under Rule 801(d)(2)(E) because the district court entered a judgment of acquittal of the conspiracy charge against Contreras at the end of the Government's case. Rule 801(d)(2)(E) provides that "a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy" is not hearsay. Fed.R.Evid. 801(d)(2)(E).

Before admitting a co-conspirator's statement over an objection that it does not qualify under Rule 801(d)(2)(E), a court must be satisfied ... that there was a conspiracy involving the declarant and the nonoffering party, and that the statement was made "during the course and in furtherance of the conspiracy." ... [T]he existence of a conspiracy and petitioner's involvement in it are preliminary questions of fact that, under Rule 104, must be resolved by the court.

Bourjaily v. United States, 483 U.S. 171, 175, 107 S.Ct. 2775, 2778, 97 L.Ed.2d 144 (1987). The Government must prove that the declarant was a member of the conspiracy by a preponderance of the evidence, before the trial court can admit a co-conspirator's statement. Id.

The inquiry made by a court concerned with these matters is not whether the proponent of the evidence wins or loses his case on the merits, but whether the evidentiary Rules have been satisfied. Thus, the evidentiary standard is unrelated to the burden of proof on the substantive issues, be it a criminal case, or a civil case.

Id. (citations omitted).

We review a district court's decision to admit evidence of a co-conspirator's declaration for abuse of discretion. United States v. Torres, 908 F.2d 1417, 1424 (9th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 366, 112 L.Ed.2d 329 (1990) (citing United States v. Sanchez-Lopez, 879 F.2d 541, 553 (9th Cir.1989)).

We review the district court's finding that: 1) there was a conspiracy and 2) the statement was made "during" and "in furtherance of" the conspiracy for clear error. See United States v. Zavala-Serra, 853 F.2d 1512, 1515 (9th Cir.1988). In other words, we cannot upset such findings unless the district court "could not reasonably have come to that conclusion." United States v. Echeverry, 759 F.2d 1451, 1457 (9th Cir.1985).

Torres, 908 F.2d at 1424.

This circuit has not previously determined whether the extrajudicial statements of a person, made in furtherance and during the course of a conspiracy, can be considered by a jury under the co-conspirator exception, where the declarant has been acquitted of conspiracy charges. Each circuit that has confronted this question has held that the acquittal of the declarant of conspiracy does not render the statement inadmissible under the co-conspirator exception. United States v. Carroll, 860 F.2d 500, 506 (1st Cir.1988); United States v. Kincade, 714 F.2d 1064, 1065 (11th Cir.1983); United States v. Gil, 604 F.2d 546, 549 (7th Cir.1979); United States v. Stanchich, 550 F.2d 1294, 1299 (2nd Cir.1977); United States v. Cravero, 545 F.2d 406, 419 (5th Cir.1976), cert. denied, 430 U.S. 983, 97 S.Ct. 1679, 52 L.Ed.2d 377 (1977); United States v. Bass, 472 F.2d 207, 213-14 (8th Cir.), cert. denied, 412 U.S. 928, 93 S.Ct. 2751, 37 L.Ed.2d 155 (1973).

In United States v. Stanchich, 550 F.2d 1294 (2d Cir.1977), the district court allowed the statements of co-conspirators to be admitted at trial after dismissing conspiracy charges against defendant and the co-conspirator at the end of the Government's case. Id. at 1298-1299. In affirming the district court, the Second Circuit reasoned as follows:

Appellant argues that the same considerations that led the judge to dismiss the conspiracy count required him to hold the declarations inadmissible on the substantive counts. The argument overlooks the difference in the standards governing the two determinations. In deciding whether the evidence is sufficient to warrant submission of a conspiracy count to a jury, the judge must determine ... "whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt." A judge may thus consistently find that the evidence (even including admissible hearsay declarations) did not meet the higher test required for submission of a conspiracy count to a jury, although the independent evidence did meet the lower [preponderance of the evidence] test required for admission of the declaration.

Id. at 1299 (citations omitted) (footnote omitted).

In United States v. Gil, 604 F.2d 546 (7th Cir.1979), in explaining its rejection of the rule proposed by Peralta, the Seventh Circuit stated that "the differences between what must be proved to invoke the hearsay exception and what must be proved in order to convict a person of the crime of conspiracy, as well as the difference of the burden of proof, mean that neither collateral estoppel nor res judicata automatically bar the use of statements by a person who has been acquitted of the crime of conspiracy." Id. at 549 (citing United States v. Cravero, 545 F.2d 406, 419 (5th Cir.1976), cert. denied, 430 U.S. 983, 97 S.Ct. 1679, 52 L.Ed.2d 377 (1977)). In reaching this conclusion, the court in Gil relied on agency law principles.

The co-conspirator exception to the hearsay rule ... is merely a rule of evidence founded, to some extent, on concepts of agency law. It may be applied in both civil and criminal cases ... Its rationale is the common sense appreciation that a person who has authorized another to speak or to act to some joint end will be held responsible for what is later said or done by his agent, whether in his presence or not.

Id. (quoting United States v. Trowery, 542 F.2d 623, 626 (3d Cir.1976), cert. denied, 429 U.S. 1104, 97 S.Ct. 1132, 51 L.Ed.2d 555 (1977)).

Peralta argues that a person who is determined not to be a member of a conspiracy in a criminal proceeding "can no longer be said to be an agent of another person." Thus, he urges this court not to follow those circuits that allow admission under Rule 801(d)(2)(E) of the statements of a person acquitted of conspiracy charges.

Peralta's argument confuses the burden of persuasion that is required for the admission of a co-conspirator's statement with the requirement that a person cannot be convicted of the crime of conspiracy unless his or her guilt is proved beyond a reasonable doubt. This distinction was recognized by the court in Gil:

The substantive criminal law of conspiracy, though it obviously overlaps in many areas, simply has no application to this evidentiary principle. Thus, once the existence of a joint venture for an illegal purpose, or for a legal purpose using illegal means, and a statement made in the course of and in furtherance of that venture have been demonstrated by a preponderance of the evidence, it makes no difference whether the declarant or any other "partner in crime" could actually be tried, convicted and punished for the crime of conspiracy.

604 F.2d at 549-50.

In United States v. Layton, 855 F.2d 1388 (9th Cir.1988), cert. denied, 489 U.S. 1046, 109 S.Ct. 1178, 103 L.Ed.2d 244 (1989), we held that statements made by a party to an agreement were admissible under Rule 801(d)(2)(E), notwithstanding the fact the venture could not be prosecuted as a criminal...