U.S. v. Hoyos

• Decision Date: 24 April 1978
• Docket Number: No. 77-3236,77-3236
• Citation: 573 F.2d 1111
• Parties: 3 Fed. R. Evid. Serv. 776 UNITED STATES of America, Appellee, v. Luis Alvaro HOYOS, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1111

573 F.2d 1111

3 Fed. R. Evid. Serv. 776

UNITED STATES of America, Appellee, v. Luis Alvaro HOYOS, Appellant.

No. 77-3236.

United States Court of Appeals,

Ninth Circuit.

April 24, 1978.

William J. Redondo (argued), Tucson, Ariz., for appellant.

John G. Hawkins, Asst. U. S. Atty. (argued), Tucson, Ariz., for appellee.

Appeal from the United States District Court for the District of Arizona.

Before ELY and GOODWIN, Circuit Judges, and ENRIGHT, ^* District Judge.

ELY, Circuit Judge:

Hoyos appeals from his convictions of possession with intent to distribute methaqualone tablets, conspiracy to possess with intent to distribute methaqualone tablets, and distribution of methaqualone tablets, violations of 21 U.S.C. §§ 841(a)(1) and 846. We affirm.

FACTS

Hoyos' convictions resulted from sales of methaqualone tablets to Drug Enforcement Administration (DEA) undercover agent Bachelier. According to the testimony of one Jimenez, another DEA undercover employee, Jimenez was contacted by a man named Cesar Castro several times and solicited to find customers to whom Castro might sell methaqualone pills. Jimenez, in turn, introduced Castro to a prospective buyer named "Tony," who, in truth, was agent Bachelier of the DEA. After preliminary negotiations, Castro, Jimenez, and Bachelier met together to arrange the details of the proposed sale to "Tony." Later, Castro and Hoyos picked up Jimenez on their way to meet "Tony" and consummate the sale. Upon meeting with "Tony," Castro and Hoyos left Jimenez with agent Bachelier, saying they would return shortly with the pills. Castro later returned in a different car with the pills and was arrested as the sale was made. Hoyos was observed driving by the location of the sale at the time of Castro's arrest, driving the same car he and Castro had used earlier when they picked up Jimenez. After a short chase, Hoyos was also arrested.

Hoyos was jointly charged with Castro in a three-count indictment for the offenses of which he was ultimately convicted. Prior to trial, Hoyos moved to sever his case from that of co-defendant Castro, supporting his motion with an affidavit signed by Castro stating that Castro was in possession of information which would tend to exculpate Hoyos. The Government did not oppose the motion, and severance was granted by the trial court. Castro pleaded guilty to the charges on July 15, 1977, and a sentencing date of August 12, 1977 was fixed. On July 18, 1977, Castro was subpoenaed by Hoyos to testify at the latter's trial, then scheduled for July 20, 1977. On July 19, 1977, Hoyos moved for a continuance of his trial date until after Castro had been sentenced because Castro had advised him that he would not testify until he had been sentenced. The Government stipulated to the continuance, and Hoyos' trial was reset for August 12, 1977 at 9:00 a. m., following Castro's scheduled sentencing at 8:15 a. m. that same morning. Castro failed to appear, either for his sentencing or to testify at Hoyos' trial. Hoyos again moved for a continuance to procure Castro's presence. The motion was denied, and the trial proceeded.

As part of the defense case, counsel for Hoyos called Castro's wife as a witness and attempted to elicit testimony from her as to a conversation in which she had engaged with her husband after his arrest. Hoyos' later offer of proof made clear that the testimony of Castro's wife was intended to supply the alleged exculpatory material that Castro might have provided. The Government's objection to the testimony, on In this appeal, Hoyos contends that the trial court erred in refusing his request for a continuance, in excluding the testimony of Castro's wife, and in refusing to submit his proposed instruction relating to informers.

the ground that it constituted hearsay, was sustained. The defense requested at the end of trial that a so-called informer instruction be submitted to the jury. The trial court refused to give the informer instruction, finding that there was no informer involved in the case. As hitherto stated, Hoyos was found guilty by the jury on all three counts charged. He was sentenced to concurrent one-year terms of imprisonment on each count and a three-year special parole term.

ISSUES

I

In respect to his first contention, Hoyos argues that the trial court should have granted his request for a ten-day continuance so that Castro's presence could be procured.

The decision to grant or deny a requested continuance is within the trial court's discretion and will not be disturbed on appeal absent clear abuse of that discretion. United States v. Hernandez-Berceda, 572 F.2d 680 (9th Cir., 1978); United States v. Thompson, 559 F.2d 552 (9th Cir. 1977); United States v. Lustig, 555 F.2d 737 (9th Cir. 1977); United States v. Brandenfels, 522 F.2d 1259 (9th Cir. 1975). "When a continuance is sought to obtain witnesses, the accused must show who they are, what their testimony will be, that the testimony will be competent and relevant, that the witnesses can probably be obtained if the continuance is granted, and due diligence has been used to obtain their attendance on the day set for trial." Leino v. United States, 338 F.2d 154, 156 (10th Cir. 1964); Dearinger v. United States, 468 F.2d 1032 (9th Cir. 1972); United States v. Harris, 436 F.2d 775 (9th Cir. 1970); McConney v. United States, 421 F.2d 248 (9th Cir. 1969), cert. denied, 400 U.S. 821, 91 S.Ct. 39, 27 L.Ed.2d 49 (1970); Powell v. United States, 420 F.2d 799 (9th Cir. 1969).

The motion of Hoyos was defective in two significant respects. First, he did not establish with any precision what Castro's testimony would be or whether, in fact, Castro had unconditionally agreed to testify in Hoyos' defense. See United States v. Gay, 567 F.2d 916 (9th Cir. 1978) (conditional offer to testify for co-defendant as basis for severance). Second, and of more importance, Hoyos could not demonstrate that he could produce Castro as a defense witness if the continuance had been granted. Castro had already failed to appear for his own sentencing that same morning of Hoyos' trial. In view of the fact that Castro was a fugitive at the time of Hoyos' trial, we conclude that the trial court justifiably entertained grave doubt whether Castro could be produced as a witness. In similar circumstances, we have repeatedly upheld, as a proper exercise of discretion, the refusal of trial courts to grant continuances in order to procure absent witnesses. See United States v. Thompson, supra; Dearinger v. United States, supra; McConney v. United States, supra; Powell v. United States, supra. See also Leino v. United States, supra.

The trial court here did not abuse its discretion in denying the request for a continuance.

II

Hoyos claims that the trial court erroneously excluded the testimony of Castro's wife concerning the alleged conversation she had with Castro after Castro's arrest. Hoyos does not deny the hearsay nature of the offered testimony; he argues that the testimony fell within either or both of the hearsay exceptions set forth in Fed.R.Evid. 804(b)(3) and (b)(5). We examine the applicability of each exception.

Fed.R.Evid. 804(b)(3), containing the declaration against penal interest exception which Hoyos urges, provides in pertinent part (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(3) Statement against interest. 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 him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed 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.

(Emphasis supplied).

The determination of admissibility under Rule 804(b)(3) is committed to the sound discretion of the trial court. United States v. Satterfield,572 F.2d 687 (9th Cir., 1978); United States v. Oropeza, 564 F.2d 316, 325 (9th Cir. 1977). The test for admissibility is two-pronged: (1) whether the statement so far tended to subject the declarant to criminal liability that a reasonable person in the declarant's position would not have made the statement unless he believed it to be true, and (2) whether the corroborating circumstances clearly indicate the trustworthiness of the statement. Id.

We are satisfied that the trial court here properly exercised its discretion in excluding the offered testimony. First, an examination of the offer of testimony reveals it to be comprised largely of matter that is exculpatory of Hoyos but not significantly inculpatory of the declarant Castro. While the reach of Rule 804(b)(3) is not limited to direct confessions of criminal responsibility, United States v. Benveniste, 564 F.2d 335, 341 (9th Cir. 1977), the declarant's statements must, in a real and tangible way, subject him to criminal liability. Consequently, hearsay statements consisting principally of material exculpating a co-defendant are suspect, absent the concurrent presence of solidly inculpatory statements against the penal interest of the declarant. See United States v. Oropeza, ...