U.S. v. Rascon, No. 92-2223

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore McKAY; McKAY
Citation8 F.3d 1537
Parties38 Fed. R. Evid. Serv. 364 UNITED STATES of America, Plaintiff-Appellee, v. Hector RASCON, Defendant-Appellant.
Docket NumberNo. 92-2223
Decision Date09 November 1993

Page 1537

8 F.3d 1537
38 Fed. R. Evid. Serv. 364
UNITED STATES of America, Plaintiff-Appellee,
v.
Hector RASCON, Defendant-Appellant.
No. 92-2223.
United States Court of Appeals,
Tenth Circuit.
Nov. 9, 1993.

Page 1538

Adam G. Kurtz, Albuquerque, NM, for defendant-appellant.

Louis E. Valencia, Asst. U.S. Atty. (Larry Gomez, U.S. Atty., D. N.M.), Albuquerque, NM, for plaintiff-appellee.

Before McKAY, Chief Judge, GOODWIN, * and SEYMOUR, Circuit Judges.

McKAY, Chief Judge.

Mr. Rascon appeals his conviction for two counts of conspiracy to possess with intent to distribute less than fifty kilograms of marijuana. He alleges that the district court abused its discretion by failing to make certain coconspirator hearsay findings on the record pursuant to Federal Rule of Evidence 801(d)(2)(E) and the Confrontation Clause of the Sixth Amendment. The defendant further contends that there was insufficient evidence in the record to establish by a preponderance of the evidence that defendant was a member of the conspiracy and that the hearsay statements offered against him were made in furtherance thereof.

As a preliminary matter, the government argues that the defendant has not preserved his right to appeal because defense counsel failed to object specifically to each hearsay statement at trial pursuant to Federal Rule of Evidence 103(a)(1). However, prior to trial, defense counsel cited Federal Rule of Evidence 801 and requested a preliminary hearing as to the admissibility of each of the coconspirator statements that the government intended to offer. The district judge acknowledged that three separate findings had to be made before the coconspirator hearsay statements could be used against the defendant: that a conspiracy existed, that the declarants and defendant were each members of that conspiracy, and that the statements were made in furtherance of the conspiracy. (Appellant's App. at 9-10.) The district judge denied defense counsel's request, however, explaining that he preferred to admit the evidence and make the requisite findings at an appropriate time during the trial rather than hold a preliminary hearing. The district judge explicitly placed the responsibility on the government to notify him at the point in the trial when the government felt that it had met the Rule 801(d)(2)(E) standard, and stated that he would make admissibility determinations at that time and instruct the jury accordingly. (Appellant's App. at 10.)

Given the understanding between the court and the parties as to how the trial was to unfold procedurally, we do not believe that the defendant had a responsibility to object to each hearsay statement in order to preserve the issue for appeal. Even were it not for the unique facts of this case, our opinion

Page 1539

in United States v. Perez, 989 F.2d 1574, 1580 (10th Cir.1993), makes clear that the burden rests on the government to ensure that the trial court makes all of the required findings under Rule 801(d)(2)(E). "Consequently, a defendant who makes a hearsay objection has done all he need do to preserve for appeal the failure of the district court to make the required coconspirator findings." Perez, 989 F.2d at 1580. Thus, defendant's initial objection and request for a preliminary hearing was sufficient in this case to preserve his right to appeal. 1 The district court's discussion of Rule 801 and the fact that the court ultimately made two of the three required findings confirms our belief that the district court was on notice of the defendant's objections and ensures us that the policies behind Federal Rule of Evidence 103(a)(1) were satisfied in this case. See United States v. Barbee, 968 F.2d 1026, 1030-1031 (10th Cir.1992); Notes of Advisory Committee on 1972 Proposed Rules, subdivision (a) (stating that the reason for the rule requiring a proper objection is to call the judge's attention to the error, alert the judge to the proper course of action, and enable opposing counsel to take proper corrective measures).

Turning to the merits of the defendant's appeal, the district court made only two findings on the record: 1) that a conspiracy existed, and 2) that the defendant, Manuel Rascon, Aleisa Bustillos, and Emiglio Bustillos were all members of that conspiracy. (Appellant's App. at 109.) Thus, it appears that the district court failed to make two findings that it should have made: 1) that each of the coconspirator hearsay statements were made in furtherance of the conspiracy, and 2) that one of the declarants, Jose Ramon Leal-Rodriguez, was a member of the conspiracy. The court's failure to make these required findings on the record was an abuse of discretion. See Perez, 989 F.2d at 1581.

At the time of the defendant's trial, a failure of a district court to make all three Rule 801(d)(2)(E) findings on the record was per se reversible error entitling the defendant to a new trial. See United States v. Perez, 959 F.2d 164, 167-68 (10th Cir.1992) (applying United States v. Radeker, 664 F.2d...

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28 practice notes
  • United States v. DeLeon, No. CR 15-4268 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • April 23, 2019
    ...may be sufficient even when it is not ‘substantial.’ " United States v. Lopez-Gutierrez, 83 F.3d at 1242 (quoting United States v. Rascon, 8 F.3d 1537, 1541 (10th Cir. 1993) ). The Tenth Circuit has noted: "We have defined ‘independent evidence’ as ‘evidence other than the proffered [cocons......
  • US v. Hercules, Inc., No. 89-C-954 B.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Utah
    • May 24, 1996
    ...serious due process problems. Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964); United States v. Rascon, 8 F.3d 1537, 1540 (10th Cir.1993); Lustgarden v. Gunter, 966 F.2d 552 (10th Cir.1992). The same might be true on a civil case with the intended punitive cons......
  • United States v. Deleon, No. CR 15-4268 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • May 13, 2019
    ...may be sufficient even when it is not ‘substantial.’ " United States v. Lopez-Gutierrez, 83 F.3d at 1242 (quoting United States v. Rascon, 8 F.3d 1537, 1541 (10th Cir. 1993) ). The United States Court of Appeals for the Tenth Circuit has noted: "We have defined ‘independent evidence’ as ‘ev......
  • United States v. Baca, No. CR 16-1613 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • May 30, 2019
    ...may be sufficient even when it is not ‘substantial.’ " United States v. Lopez-Gutierrez, 83 F.3d at 1242 (quoting United States v. Rascon, 8 F. 3d 1537, 1541 (10th Cir. 1993) ). The Tenth Circuit has noted: "We have defined ‘independent evidence’ as ‘evidence other than the proffered [cocon......
  • Request a trial to view additional results
28 cases
  • United States v. DeLeon, No. CR 15-4268 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • April 23, 2019
    ...may be sufficient even when it is not ‘substantial.’ " United States v. Lopez-Gutierrez, 83 F.3d at 1242 (quoting United States v. Rascon, 8 F.3d 1537, 1541 (10th Cir. 1993) ). The Tenth Circuit has noted: "We have defined ‘independent evidence’ as ‘evidence other than the proffered [cocons......
  • US v. Hercules, Inc., No. 89-C-954 B.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Utah
    • May 24, 1996
    ...serious due process problems. Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964); United States v. Rascon, 8 F.3d 1537, 1540 (10th Cir.1993); Lustgarden v. Gunter, 966 F.2d 552 (10th Cir.1992). The same might be true on a civil case with the intended punitive cons......
  • United States v. Deleon, No. CR 15-4268 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • May 13, 2019
    ...may be sufficient even when it is not ‘substantial.’ " United States v. Lopez-Gutierrez, 83 F.3d at 1242 (quoting United States v. Rascon, 8 F.3d 1537, 1541 (10th Cir. 1993) ). The United States Court of Appeals for the Tenth Circuit has noted: "We have defined ‘independent evidence’ as ‘ev......
  • United States v. Baca, No. CR 16-1613 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • May 30, 2019
    ...may be sufficient even when it is not ‘substantial.’ " United States v. Lopez-Gutierrez, 83 F.3d at 1242 (quoting United States v. Rascon, 8 F. 3d 1537, 1541 (10th Cir. 1993) ). The Tenth Circuit has noted: "We have defined ‘independent evidence’ as ‘evidence other than the proffered [cocon......
  • Request a trial to view additional results

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