U.S. v. Lopez-Alvarez

• Decision Date: 08 July 1992
• Docket Number: LOPEZ-ALVARE,No. 88-5421,D,88-5421
• Parties: 36 Fed. R. Evid. Serv. 51 UNITED STATES of America, Plaintiff-Appellee, v. Raulefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 583

970 F.2d 583

36 Fed. R. Evid. Serv. 51

UNITED STATES of America, Plaintiff-Appellee, v. Raul LOPEZ-ALVAREZ, Defendant-Appellant.

No. 88-5421.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 9, 1991.

Decided July 8, 1992.

Elsa Leyva, Torrance, Cal., for the defendant-appellant.

John J. Carlton, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before: REINHARDT and FERNANDEZ, Circuit Judges, and SMITH, ^* District Judge.

REINHARDT, Circuit Judge:

Raul Lopez-Alvarez, a former Mexican state police officer, and two co-defendants ¹ were convicted after a two-month jury trial of charges stemming from the kidnappings and murders of DEA Special Agent Enrique Camarena-Salazar and DEA informant Alfredo Zavala. The principal evidence against Lopez-Alvarez consisted of videotaped admissions he made to Abel Reynoso, an undercover DEA agent, and Jose Reyes Garcia-Alvarez, a DEA informant. The defense argued that these statements were lies that Lopez-Alvarez had made up in order to convince the agents, who were posing as criminals, that he had ties to the drug underworld. His appeal raises the question, among many others, of the degree to which the government may rely on a defendant's admissions in seeking to prove its case. We affirm four of Lopez-Alvarez's six convictions.

Facts

On February 7, 1985, DEA Special Agent Camarena and Zavala, a pilot and DEA informant, disappeared from Guadalajara, Mexico. One month later, their bodies were found near Zamora, Michoacan, Mexico. They had been tortured and murdered. In connection with the murders, Mexican authorities arrested and imprisoned several Mexican police officers, including the defendant. He was later released.

In 1987, Lopez-Alvarez accompanied DEA informant Garcia on several trips to Los Angeles, where he met Reynoso, who, unknown to the defendant, was actually an undercover DEA agent. During their conversations, Lopez-Alvarez described to Reynoso his involvement in the Camarena abduction. These conversations were videotaped and/or audiotaped.

Lopez-Alvarez was arrested on October 27, 1987. At trial, Garcia, who had been in prison with the defendant, testified that Lopez-Alvarez had on several occasions spoken about his involvement in the Camarena affair. The prosecution introduced evidence that the abductions and murders were orchestrated by Rafael Caro-Quintero, an alleged Mexican drug kingpin. Reynoso testified that Lopez-Alvarez had described to him his involvement with, and loyalty to, Caro-Quintero as well as his role in Camarena's abduction. Videotapes of Lopez-Alvarez's conversations with Reynoso were also admitted as evidence. The defendant's statements related to three different incidents. Some statements provided details of the seizure of Camarena and his transportation to a house owned by Caro-Quintero. Other statements describe Camarena's ordeal during the time he was being held. Finally, Lopez-Alvarez described an incident at the Guadalajara airport in which he claimed to have provided assistance to Caro-Quintero in a confrontation with DEA agents and Mexican federal police officers. Lopez-Alvarez's defense was that he had, at Garcia's urging, deliberately lied to Reynoso: that he pretended he had been involved in the Camarena affair in order to convince the agent that he was "a high level drug trafficker associated with ... Caro-Quintero."

Lopez-Alvarez was convicted on all charges brought against him: one count of violent crimes in aid of racketeering for the kidnapping and murder of Camarena (18 U.S.C. §§ 1952B, 2) (Count One), another count of the same crime for the kidnapping and murder of Zavala (Count Two), of conspiracy to kidnap a federal agent (18 U.S.C. § 1201(c)) (Count Three), of kidnapping a federal agent (18 U.S.C. § 1201(a)(5)) (Count Four), of felony murder of a federal agent (18 U.S.C. §§ 1111, 1114) (Count Five), and of being an accessory after the fact (18 U.S.C. § 3) (Count Seven). ² He received four consecutive 60-year sentences plus one concurrent sentence of life and one of ten years.

After the defendant's motion for a new trial was denied, he filed this appeal. He contends that his conviction should be reversed for the following reasons: (1) the trial court improperly limited his cross-examination of Garcia, (2) his convictions are supported by insufficient evidence, (3) the prosecutor impermissibly referred to Lopez-Alvarez's failure to testify, (4) the trial court lacked subject matter jurisdiction, (5) the felony-murder indictment was insufficient, (6) the trial court erroneously rejected his proposed jury instructions, (7) the prosecutor made improper prejudicial remarks to the jury, (8) the prosecution failed to disclose exculpatory evidence. We find all but one of these contentions to be without merit. As to the sufficiency of the evidence contention, we find it meritorious only with regard to Counts 2 and 7.

Discussion

1. Limitation of Lopez-Alvarez's Cross-examination of Garcia

In the course of the case-in-chief against Lopez-Alvarez, the prosecution introduced testimony by Garcia that the defendant had on several occasions during their joint incarceration spoken of his involvement in the Camarena affair. Defense counsel sought to cross-examine Garcia regarding the fact that other persons in jail had also made statements in their presence about the Camarena affair. The trial court sustained the prosecution's hearsay objections to this line of questioning. Lopez-Alvarez argues that the court misapplied the hearsay doctrine, thereby violating his rights under both federal law and the Sixth Amendment.

We agree that the court misapplied the hearsay rule. "Out of court statements constitute hearsay only when offered in evidence to prove the truth of the matter asserted." Anderson v. United States, 417 U.S. 211, 219, 94 S.Ct. 2253, 2260, 41 L.Ed.2d 20 (1974). The purpose of defense counsel's intended cross-examination was not to develop an alternate version of the Camarena affair, but merely to demonstrate that details of the crimes had been discussed in Lopez-Alvarez's presence. Lopez-Alvarez did not seek to introduce Garcia's testimony regarding these out of court statements in order to argue that those statements were true, just that he could have learned the specific details he related to DEA agents without having been a participant in the crimes. Therefore, the trial court should not have excluded the testimony on the basis of hearsay.

The trial court's error did not, however, violate the defendant's constitutional rights. First, defense counsel's inability to pursue the desired line of cross-examination did not deny Lopez-Alvarez his right to confront Garcia in the traditional sense because, even without the disputed questions, the cross-examination revealed sufficient information with which the jury could appraise Garcia's reliability. See United States v. Bonanno, 852 F.2d 434, 439 (9th Cir.1988) ("Generally, once cross-examination reveals sufficient information with which to appraise a witness's possible bias and motives, confrontation demands are satisfied."). The testimony defense counsel sought to elicit did not undermine Garcia's credibility in any substantial way, and certainly not in a manner different than that accomplished by evidence which was introduced. ³ The jury's perception of Garcia's credibility would not have been significantly altered by the introduction of the additional testimony. Accordingly, Lopez-Alvarez's traditional right to confrontation was not violated.

Second, and more pertinent, because the excluded testimony actually served the purpose of furthering the theory of the defense and not of impeaching the prosecution's witness, the defendant's arguments are better directed at demonstrating a denial of his constitutional guarantee of "a meaningful opportunity to present a complete defense." California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2532, 81 L.Ed.2d 413 (1984). ⁴ Even when evidence is excluded on the basis of a valid application of the hearsay rules, such exclusion may violate due process if the evidence is sufficiently reliable and crucial to the defense. See Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973). When evidence is excluded on the basis of an improper application of the hearsay rules, due process concerns are still greater because the exclusion is unsupported by any legitimate state justification. See Crane v. Kentucky, 476 U.S. 683, 691-92, 106 S.Ct. 2142, 2147, 90 L.Ed.2d 636 (1986) (requiring introduction of evidence regarding the voluntariness of a confession because "[i]n the absence of any valid state justification, exclusion of this kind of exculpatory evidence deprives a defendant of the basic right to have the prosecutor's case encounter and 'survive the crucible of meaningful adversarial testing.' " (quoting United States v. Cronic, 466 U.S. 648, 656, 104 S.Ct. 2039, 2045, 80 L.Ed.2d 657 (1984)).

Nevertheless, not every hearsay error amounts to a constitutional violation. At a minimum, a defendant must demonstrate that the excluded evidence was important to his defense. Here, the line of questioning foreclosed by the trial court's erroneous ruling fails this test, but only because the testimony sought to be adduced would not have added substantially to the knowledge the jury gained during the course of the trial. Under cross-examination, Garcia acknowledged that "prisoners try to impress each other with things that they have done." He also testified that he heard his cellmates discuss the Camarena affair. The jurors were thus aware that Lopez-Alvarez's cellmates talked about the Camarena matter. The disallowed questions constituted inquiries as to specific details of their conversations. Because it was already established that Lopez-Alvarez's cellmates could have been...