U.S. v. Huber

• Citation: 772 F.2d 585
• Decision Date: 27 September 1985
• Docket Number: No. 84-3115,84-3115
• Parties: 19 Fed. R. Evid. Serv. 284 UNITED STATES of America, Plaintiff-Appellee, v. David R. HUBER, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 585

772 F.2d 585

19 Fed. R. Evid. Serv. 284

UNITED STATES of America, Plaintiff-Appellee, v. David R. HUBER, Defendant-Appellant.

No. 84-3115.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 7, 1985.

Decided Sept. 27, 1985.

Ronald D. Howen, Asst. U.S. Atty., Boise, Idaho, for plaintiff-appellee.

Sam Hoagland, Pocatello, Idaho, for defendant-appellant.

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

Before PREGERSON and WIGGINS, Circuit Judges, and HILL, ^* District Judge.

PREGERSON, Circuit Judge:

David Huber appeals his conviction for one count of conspiracy and one count of aiding and abetting the transportation and sale of stolen rifles. His principal contention is that admission of an out-of-court statement by his alleged coconspirator violated the hearsay rule and the sixth amendment's confrontation clause. He also challenges numerous other rulings by the district court and asserts that the government produced insufficient evidence to establish his guilt beyond a reasonable doubt. We reverse his conviction.

FACTS

Huber was the resident manager of National Self Storage in Murray, Utah, a facility In late February 1984, the FBI in Pocatello, Idaho received information about a possible theft of Sako rifles from a storage facility in or near Salt Lake City. The FBI traced this lead to Llewelyn James's rifle collection at National Self Storage. On March 6, Richard James, alerted by the FBI, found that his father's locker had already been broken into and that the 23 remaining Sako rifles had been stolen.

that rents storage lockers to the public. Llewelyn James, a gun collector, kept some Sako rifles at National Self Storage. He died in October 1983, and his son Richard James began an inventory of his father's effects. Richard James attempted to enter his father's lockers at National Self Storage, but found that his father's keys would not work in one of the padlocks, which was then removed by Huber's stepson using a set of bolt cutters. After entering the locker, Richard James discovered that four Sako rifles on his father's inventory were missing. He then made a list of the serial numbers of the remaining rifles.

On March 7, FBI undercover agent John Munis met in Pocatello with an individual named Thomas Liday who offered to sell him some stolen rifles. At Huber's trial, FBI agent Munis testified that Liday said that he had stolen these rifles in Salt Lake City with the cooperation of an individual who owned or managed a locker facility. Liday was arrested after he showed Munis a Sako rifle with a serial number that matched a rifle stolen from James's locker at National Self Storage. A search of Liday's house uncovered all but one of the 23 stolen rifles.

The FBI also found a light green Ford sedan with Utah license plates parked outside Liday's house. The FBI traced this car to Gail Holmes, a Utah resident. At Huber's trial, Holmes testified that she had arranged to sell the car to Huber and had let him use it pending her efforts to remove a mechanic's lien upon it. She further testified that Huber had told her on March 8 that he was expecting to receive $2300 from Idaho in the near future.

A grand jury indicted Huber for conspiring with Liday and for aiding and abetting him in the theft, transportation, and sale of stolen property in violation of 18 U.S.C. Secs. 2, 371, 2314, and 2315. Liday was indicted, tried, and convicted in separate proceedings.

During Huber's trial, the government discovered that a Sako rifle previously found in a search of Huber's house had belonged to Llewelyn James. This rifle was not one of the 23 that was discovered stolen on March 6, but was one of the four that Richard James found missing and unaccounted for in his initial inventory of the rifle collection at National Self Storage shortly after his father's death.

Huber testified in his own defense. He stated that he had known Liday since childhood, but claimed to have lost contact with him until February of 1984, when the two met socially in Pocatello. Huber testified that at this meeting, he agreed to sell Gail Holmes's car to Liday, believing that Holmes had already transferred title of the car to him. Liday and Huber met again at National Self Storage on March 3 where they closed the sale. Huber denied knowing what Liday did with the car afterward. As to his possession of one of Llewellyn James's missing Sako rifles, Huber testified that he had purchased it through an advertisement in a local magazine. He could not, however, produce the ad or find the individual from whom he had allegedly made the purchase. Finally, Huber denied any memory of his alleged statement to Gail Holmes that he was expecting $2300 from Idaho, but speculated that this could have referred to the expected proceeds from the intended sale of two motorcycles.

DISCUSSION

A. Admission of Liday's Statement

Huber contends that the district court erred in allowing FBI agent Munis to testify as to the out-of-court statement by alleged coconspirator Thomas Liday that he had stolen the rifles in Salt Lake City with the cooperation of an individual who owned or managed a locker facility. At trial, Huber objected to Munis's testimony on grounds of hearsay. The district court, however, relying upon Fed.R.Evid. 801(d)(2)(E), held that the testimony was not hearsay. On appeal, Huber contends that admission of this testimony violated the sixth amendment's confrontation clause as well as the hearsay rule. Huber also challenges instructions the district court gave the jury concerning this evidence.

1. Confrontation Clause

Simply because a coconspirator statement is excluded from the definition of hearsay by Fed.R.Evid. 801(d)(2)(E) does not dispose of the question whether its admission into evidence violates the confrontation clause. United States v. Ordonez, 737 F.2d 793, 803 (9th Cir.1984); United States v. Adams, 446 F.2d 681, 683 (9th Cir.), cert. denied, 404 U.S. 943, 92 S.Ct. 294, 30 L.Ed.2d 257 (1971).

The government argues that Huber waived this issue because, although he objected on hearsay grounds, he failed to make a confrontation clause objection at trial. However, under the plain error doctrine, the lack of a timely and specific objection before the district court does not preclude our review of Huber's confrontation clause claims. Ordonez, 737 F.2d at 799; United States v. Traylor, 656 F.2d 1326, 1333 (9th Cir.1981). But cf. United States v. Vincent, 758 F.2d 379, 381 n. 1 (9th Cir.1985) (declining to reach confrontation clause issues where defendant failed to object at trial).

In Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the Supreme Court established a two-pronged test to determine whether admission of an out-of-court coconspirator statement violates the confrontation clause. The first prong looks to the necessity of admitting the statement by examining whether the declarant, i.e., the person who uttered the coconspirator statement the government wishes to introduce, is unavailable to testify. Id. at 65, 100 S.Ct. at 2538. The second prong looks to the reliability of the statement. Id. In this case, the government concedes that Liday was available to testify and that its decision not to call him as a witness was purely tactical. We therefore need only consider the first (or "necessity") prong of the Roberts test because the second prong only "operates once a witness is shown to be unavailable." Id.

The Roberts court noted, in discussing the necessity prong of its confrontation clause test, that "[i]n the usual case ... the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant." Id. As an exception to this general rule, Roberts cited Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), where "the Court found the utility of trial confrontation so remote that it did not require the prosecution to produce a seemingly available witness." Roberts, 448 U.S. at 65 n. 7, 100 S.Ct. at 2538 n. 7. The value of trial confrontation under this standard depends upon whether out-of-court coconspirator statements are "crucial to the prosecution" or "devastating to the defendant," United States v. McClintock, 748 F.2d 1278, 1292 (9th Cir.1984); United States v. Perez, 658 F.2d 654, 661 (9th Cir.1981) (dictum), or, stated somewhat differently, whether they are "of peripheral significance" in the case. Dutton, 400 U.S. at 87, 91 S.Ct. at 219.

The government argues that admitting Liday's coconspirator statement was not "crucial to the prosecution" or "devastating to the defendant" because of the other evidence introduced at trial of Huber's guilt. We disagree. Liday's statement was clearly an important and integral part of the government's case. It was of far greater significance than the coconspirator statement admitted in Dutton, where the prosecution's other evidence consisted of the live testimony of nineteen witnesses including one of the defendant's alleged accomplices. Id. Moreover, all of the other evidence against Huber was circumstantial. Liday's coconspirator statement was the only evidence that directly linked Huber to the theft of the rifles. Thus, Liday's coconspirator statement was "crucial to the prosecution," "devastating to the defendant," and was not "of peripheral significance" in the case.

For substantially the same reasons, we reject the government's contention that admission of Liday's statement was "harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). We find particularly unpersuasive the government's argument that reversal is unwarranted because Huber has failed to demonstrate that Liday's live testimony would contradict his alleged out-of-court statement. Trial confrontation might cause a witness to recant his accusatory statement. It also allows the jury to observe the demeanor...