U.S. v. Rivera, 04-4149.

• Decision Date: 23 June 2005
• Docket Number: No. 04-4150.,No. 04-4149.,04-4149.,04-4150.
• Citation: 412 F.3d 562
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Denis RIVERA, a/k/a Conejo, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Noe David Ramirez-Guardado, a/k/a Tricky, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

412 F.3d 562

UNITED STATES of America, Plaintiff-Appellee, v. Denis RIVERA, a/k/a Conejo, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Noe David Ramirez-Guardado, a/k/a Tricky, Defendant-Appellant.

No. 04-4149.

No. 04-4150.

United States Court of Appeals, Fourth Circuit.

Argued February 4, 2005.

Decided June 23, 2005.

COPYRIGHT MATERIAL OMITTED

ARGUED:

John Cady Kiyonaga, Kiyonaga & Kiyonaga, Alexandria, Virginia; Jerome Patrick Aquino, Alexandria, Virginia, for Appellants. Ronald L. Walutes, Jr., Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for Appellee.

ON BRIEF:

Paul J. McNulty, United States Attorney, Michael E. Rich, Assistant United States Attorney, Alexandria, Virginia, for Appellee.

Before WILKINS, Chief Judge, and KING and DUNCAN, Circuit Judges.

Affirmed by published opinion. Judge Duncan wrote the opinion, in which Chief Judge Wilkins and Judge King joined.

OPINION

DUNCAN, Circuit Judge.

Defendants-Appellants, Denis Rivera and Noe David Ramirez-Guardado, appeal their convictions after jury trial for conspiracy to commit premeditated murder in violation of 18 U.S.C. § 1117 and premeditated murder in violation of 18 U.S.C. §§ 2 and 1111. Primarily, Rivera argues that the district court erred in admitting at trial the out-of-court statements of a murdered witness, and in refusing to allow him to examine the detectives who were investigating the witness's murder. Ramirez-Guardado argues that the district court erred in denying his motion to sever his trial from Rivera's. For the reasons that follow, we affirm both convictions.

I.

A.

Rivera, Ramirez-Guardado, and co-defendant Luis Cartenga¹ were arraigned on a two-count indictment charging conspiracy to commit premeditated murder and the premeditated murder of Joaquin Diaz. Evidence presented at trial established that Rivera and Ramirez-Guardado were members of the gang Mara Salvatrucha ("MS-13"). Rivera and Ramirez-Guardado, along with other MS-13 members, decided to kill Diaz because he was a member of a rival gang.²

To that end, Ramirez-Guardado ordered several MS-13 members, including Rivera, to drive Diaz to a local park. When the group arrived at the park, the MS-13 members stabbed Diaz as he begged for his life and attempted to defend himself. After the initial attack, Rivera noticed that Diaz was still moving and cut his throat with a steak knife.

B.

Prior to trial, the district court heard argument and ruled on several motions, the dispositions of which form the basis of this appeal. We set them forth below, beginning with the government's motion regarding the out-of-court statements.

During its trial preparation, the government interviewed Brenda Paz, a former girlfriend of Rivera. Paz was questioned in the presence of her court appointed guardian ad litem, Gregory Hunter. Paz recounted, among other things, Rivera's statement to her that he had killed Diaz and that cutting Diaz's throat was like "cutting up chicken in preparation to cook it." JA at 1503. Paz was subsequently placed in the Federal Witness Protection Program, but voluntarily left the program and was murdered shortly thereafter.

The government moved to have Paz's statements admitted at trial through Hunter pursuant to Federal Rule of Evidence 804(b)(6). That rule allows the admission of a statement "against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness." Fed.R.Evid. 804(b)(6). The district court conducted pre-trial evidentiary proceedings on the Rule 804(b)(6) issue outside of the presence of the jury. During those proceedings, the government argued that Rivera arranged to have Paz murdered because he learned through MS-13 members that she intended to testify against him at trial. The government presented evidence, including correspondence and transcripts of telephone calls that Rivera made from prison, indicating that he ordered MS-13 members to kill Paz and later bragged about the murder. In response, Rivera presented evidence that government agents had told him to maintain a "tough" gang persona with MS-13 because he might be asked to testify as a government informant. Rivera argued that his statements regarding Paz were made in furtherance of that role. At the conclusion of the hearing, the district court granted the government's motion to allow Guardian Ad Litem Hunter to testify at trial as to Paz's statements.

Rivera also sought during the evidentiary hearing to compel the testimony of Detectives Leonardo Bello, Rick Rodriguez, and John Thomas (collectively, the "Detectives"), who were investigating Paz's murder.³ Rivera wanted to ask the Detectives about possible leads concerning who killed Paz. The government objected on the grounds that the proposed examination could compromise ongoing criminal investigations involving MS-13. After reminding the government of its obligation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), to provide Rivera with any exculpatory information regarding its investigation of Paz's murder, the district court upheld the government's objection and prevented Rivera from compelling the production of the Detectives.

Finally, Ramirez-Guardado moved to sever his trial from Rivera's, arguing that the impending statement of Paz admitted against Rivera, as well as evidence that Rivera planned to stage a violent jailbreak, would taint Ramirez-Guardado's trial and cause undue prejudice. The district court denied the motion, and the defendants were tried together.

On November 20, 2003, the jury returned guilty verdicts as to Rivera and Ramirez-Guardado. They were each sentenced to life imprisonment and timely filed the instant appeal.

II.

We first review the district court's decision to allow the government to introduce Paz's out-of-court statements at trial as "statement[s] offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness." Fed.R.Evid. 804(b)(6). Rivera appeals that ruling, arguing that the district court erred by: (1) applying the wrong burden of proof to the government; (2) improperly imputing to him the wrongdoing of others; (3) improperly preventing him from compelling the testimony of the Detectives during the Rule 804(b)(6) evidentiary hearing; and (4) improperly rejecting evidence that he presented at the Rule 804(b)(6) hearing. We address these contentions in turn, noting that we review evidentiary decisions for an abuse of discretion, but legal conclusions concerning the Rules of Evidence or the Constitution de novo. United States v. Cherry, 217 F.3d 811, 814 (10th Cir.2000).

A.

Rivera first challenges the district court's conclusion that the government needed to establish that he "engaged or acquiesced in wrongdoing" that led to Paz's unavailability by only a preponderance of the evidence. Rivera contends that courts should instead hold the government to a clear and convincing standard of proof when applying the 804(b)(6) exception in criminal cases.

Since this issue was briefed by the parties, this court has addressed the proper burden of proof applicable to a Rule 804(b)(6) motion and joined the majority of circuits holding that the government need prove that the defendant engaged or acquiesced in wrongdoing that led to the witnesses unavailability by only a preponderance of the evidence. United States v. Gray, 405 F.3d 227, 241 (4th Cir.2005). Accordingly, the district court did not err in applying the preponderance standard in this case.

B.

Rivera contends that the district court improperly imputed the acts of others to him for purposes of Rule 804(b)(6). He maintains that the Paz murder could not have been committed by him, since he was incarcerated, and Rule 804(b)(6) only allows the court to admit hearsay if the defendant has personally committed the wrongful act which caused the declarant's unavailability. Rivera misreads the Rule.

Rule 804(b)(6) is written broadly, allowing hearsay statements to be admitted against "a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness." Fed. R.Evid. 804(b)(6) (emphasis added). Acquiescence consists of "the act or condition of acquiescing or giving tacit assent; agreement or consent by silence or without objection." Webster's Unabridged Dictionary 18 (Random House, 2nd ed.2001). In other words, the plain language of the Rule supports the district court's holding that a defendant need only tacitly assent to wrongdoing in order to trigger the Rule's applicability. Active participation or engagement, or, as Rivera would have it, the personal commission of the crime, is not required.

Rivera cites no authority supporting his interpretation of the Rule and we can find none. Indeed, the other circuits that have considered the issue hold that a defendant need only acquiesce in wrongdoing to trigger the application of Rule 804(b)(6). See United States v. Thompson, 286 F.3d 950, 963-64 (7th Cir.2002) (imputing co-conspirators actions to defendant for purposes of Rule 804(b)(6)); Cherry, 217 F.3d at 820 (same); Mastrangelo, 693 F.2d at 273-74 ("Bare knowledge of a plot to kill the victim and a failure to give warning to appropriate authorities is sufficient to constitute a waiver."); Olson v. Green, 668 F.2d 421, 429 (8th Cir.1982) (noting that someone acting on defendant's behalf to procure the unavailability of a witness can operate to waive defendant's hearsay objection). We join these circuits in holding that the plain language of Rule 804(b)(6) allows the admissibility of hearsay against a defendant by virtue of his having acquiesced in the acts taken to procure the declarant's unavailability. Therefore, the district court did not err in concluding that Rivera need only have acquiesced in Paz's death...