U.S. v. Molina

• Decision Date: 08 March 2010
• Docket Number: No. 09-10066.,09-10066.
• Citation: 596 F.3d 1166
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jesus Antonio MOLINA, Defendant-Appellant.

596 F.3d 1166

UNITED STATES of America, Plaintiff-Appellee, v. Jesus Antonio MOLINA, Defendant-Appellant.

No. 09-10066.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 15, 2010.

Filed March 8, 2010.

S. Jonathan Young, Williamson & Young, P.C., Tucson, AZ, for the appellant.

Michael D. Logalbo, Assistant U.S. Attorney, Tucson, AZ, for the appellee.

Appeal from the United States District Court for the District of Arizona, Frank R. Zapata, District Judge, Presiding. D.C. No. 4:08-cr-00480-FRZ-JJM-1.

Before: J. CLIFFORD WALLACE, PROCTER HUG, JR. and RICHARD R. CLIFTON, Circuit Judges.

HUG, Circuit Judge:

Jesus Antonio Molina ("defendant") appeals the district court's admission of hearsay statements pursuant to a stipulation and the denial of his request for an adjustment for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a). On March 7, 2008, the defendant was arrested and charged with two counts of transporting illegal aliens for profit in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (B)(i). Two of the aliens transported by the defendant were caught and detained by the government as material witnesses in order to testify against the defendant.

On March 20, 2008, the government sent the defendant a plea agreement and a written stipulation. The plea agreement provided that the defendant agreed to plead guilty to transporting an illegal alien in violation of § 1324(a)(1)(A)(ii) and (B)(i). The stipulation focused on the two material witnesses being held by the government. A letter accompanying the plea agreement and stipulation stated that "[t]he purpose of the stipulation is to protect the government in the event your client accepts the plea offer and then changes their[sic] mind after the witness is released." The stipulation provided (1) that the two named witnesses were aliens who entered the United States illegally and were found in a car; (2) that the "government may elicit hearsay testimony from the arresting agents regarding any statements made by the above-referenced material witnesses contained in the disclosure, and such testimony shall be admitted as substantive evidence in any hearing or trial ...;" and (3) that "the parties jointly move for the release of the above-named material witnesses to the Department of Homeland Security for return to their country of origin."

On March 24, 2008, the defendant, his attorney, and the Assistant United States Attorney handling the case all signed the stipulation, and it was filed that day. The next day, the two alien material witnesses were released by the government. On April 11, 2008, the defendant signed the plea agreement.

On July 23, 2008, the district court sentenced the defendant to 24 months imprisonment. After this sentence was announced, the defendant told the district court that he could not "do that much" and asserted a defense of duress, stating for the first time that he was forced to transport the illegal aliens because his life had been threatened. The district court stated that the defendant could have a coercion defense and vacated the plea agreement, guilty plea and sentence, and set the case for trial.

Prior to trial, the defendant moved to suppress the hearsay statements of the material witnesses who had been released. On October 16, 2008, the district court denied the motion, holding that the hearsay statements were admissible pursuant to the signed stipulation. The district court stated that the defendant had obtained the advice of counsel prior to signing the stipulation and that voiding the stipulation would mean that any defendant could enter such an agreement, back out of it, and have an advantage at trial due to the lack of witnesses. The district court stated that it would not be fair to the government, which had gone to the lengths of having a stipulation drawn up to cover that eventuality.

On October 22, 2008, the defendant was convicted by a jury of two counts of transporting an illegal alien in violation of § 1324(a)(1)(A)(ii) and (B)(ii). At sentencing, the district court declined to apply an adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1(a), holding that the assertion of a duress defense undermined the defendant's claim of acceptance of responsibility. The district court then sentenced the defendant to 18 months imprisonment.

We review for abuse of discretion the district court's decision admitting the hearsay evidence of the material witnesses. United States v. Orellana-Blanco, 294 F.3d 1143, 1148 (9th Cir.2002). We review for clear error the district court's denial of a sentencing adjustment for acceptance of responsibility. United States v. Vance, 62 F.3d 1152, 1157 (9th Cir.1995). We affirm the district court's decision.

The defendant argues that the district court erred by admitting the hearsay evidence pursuant to the stipulation because the stipulation was conditioned on the plea agreement and the plea agreement was vacated. We disagree. The test regarding the validity of a stipulation is voluntariness. This court has held that "[s]tipulations freely and voluntarily entered into in criminal trials are as binding and enforceable as those entered into in civil actions." United States v. Technic Servs., Inc., 314 F.3d 1031, 1045 (9th Cir. 2002) (quoting United States v. Gwaltney, 790 F.2d 1378, 1386 (9th Cir.1986)). "[S]tipulations serve both judicial economy and the convenience of the parties, [and] courts will enforce them absent indications of involuntary or uninformed consent." CDN Inc. v. Kapes, 197 F.3d 1256, 1258 (9th Cir.1999). A "defendant who has stipulated to the admission of evidence cannot later complain about its...