U.S.A v. Torrez-Ortega

• Citation: 184 F.3d 1128
• Decision Date: 01 July 1999
• Docket Number: D,97-8095,97-8096,TORREZ-ORTEG,Nos. 97-8094,s. 97-8094
• Parties: (10th Cir. 1999) UNITED STATES OF AMERICA, Petitioner - Appellee, v. ANJELefendant - Appellant. UNITED STATES OF AMERICA, Petitioner - Appellee, v. LEONARD LEE URAM, Defendant - Appellant. UNITED STATES OF AMERICA, Petitioner - Appellee, v. ANTHONY M. FLORES, also known as Joseph Hernandez, also known as Christino, also known as Bellota, Defendant - Appellant. ,
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1128

184 F.3d 1128 (10th Cir. 1999)

UNITED STATES OF AMERICA, Petitioner - Appellee, v. ANJEL TORREZ-ORTEGA, Defendant - Appellant.

UNITED STATES OF AMERICA, Petitioner - Appellee, v. LEONARD LEE URAM, Defendant - Appellant.

UNITED STATES OF AMERICA, Petitioner - Appellee, v. ANTHONY M. FLORES, also known as Joseph Hernandez, also known as Christino, also known as Bellota, Defendant - Appellant.

Nos. 97-8094, 97-8095, 97-8096,

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

July 1, 1999

Appeal from the United States District Court for the District of Wyoming (D.C. No. 96-CR-102) [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Michael H. Reese, Wiederspahn, Liepas & Reese P.C., Cheyenne, Wyoming, for Defendant - Appellant Torrez-Ortega.

Donald E. Miller, Graves, Miller & Kingston, P.C., Cheyenne, Wyoming, for Defendant - Appellant Uram.

Ronald G. Pretty, Cheyenne, Wyoming, for Defendant - Appellant Flores.

David A. Kubichek, Assistant U.S. Attorney (David D. Freudenthal, U.S. Attorney and Patrick J. Crank, Assistant U.S. Attorney with him on the briefs), Casper, Wyoming, for Plaintiff - Appellee.

Before EBEL, HENRY and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

This direct appeal of appellants' convictions for conspiracy to violate federal drug laws presents several issues, one of which is precedential in this circuit. We must decide whether a witness who asserts an illegitimate claim of privilege, and essentially refuses to answer questions at trial, is available and subject to cross-examination within the meaning of the Confrontation Clause and Rule 801(d)(1) of the Federal Rules of Evidence. Such a witness, we conclude, is not sufficiently available for cross-examination to satisfy the requirements of the Confrontation Clause and Rule 801(d)(1).

I

Appellants Anthony Flores, Anjel Torrez-Ortega, and Leonard Lee Uram were tried and convicted of conspiracy to possess with intent to distribute and distribution of cocaine and marijuana in violation of 21 U.S.C. 841(a)(1), 841(b)(1)(A), and 846. The government claims that Armondo Valdez-Arieta ("Valdez") was also a part of the conspiracy whose members, from 1994 until their arrest in August 1996, obtained drugs from Mexico, Arizona, and New Mexico for resale in Wyoming. Valdez testified before a grand jury about the drug distribution scheme. At trial, however, in spite of a grant of immunity, he asserted an invalid Fifth Amendment privilege claim and refused to testify.

At the government's request, the judge declared Valdez a hostile witness, and ruled his grand jury testimony admissible as a prior inconsistent statement under Fed. R. Evid. 801(d)(1)(A). The prosecutor, ostensibly examining Valdez, would read excerpts from the grand jury testimony and ask Valdez if he had made the statements attributed to him. Valdez would then refuse to answer, asserting a claim against self-incrimination. This pattern continued until large segments of Valdez's grand jury testimony had been read into evidence. With a few minor exceptions, Valdez refused to answer questions posed by the defense on cross-examination.

II

Appellants contend that admission of Valdez's grand jury testimony is improper under Fed. R. Evid. 801(d)(1)¹ and the Confrontation Clause of the Sixth Amendment to the Constitution, which provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. We review a trial court's evidentiary decisions for abuse of discretion. See United States v. Knox, 124 F.3d 1360, 1363 (10th Cir. 1997). However, we subject to de novo review a trial court's legal conclusions about the Federal Rules of Evidence and the Confrontation Clause. See Reeder v. American Economy Ins. Co., 88 F.3d 892, 894 (10th Cir. 1996); Matthews v. Price, 83 F.3d 328, 332 (10th Cir. 1996).

Rule 801(d)(1)(A) provides that a "statement is not hearsay if . . . [t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing or other proceeding." Fed. R. Evid. 801(d)(1)(A). In addition, "the Confrontation Clause is not violated by admitting a declarant's out-of-court statements, as long as the declarant is testifying as a witness and subject to . . . cross-examination." California v. Green, 399 U.S. 149, 158 (1970). Admission of Valdez's grand jury testimony therefore violates the Confrontation Clause and is improper under Rule 801(d)(1)(A) because Valdez was not subject to cross-examination.² Finding that Valdez was not subject to cross-examination, we need not reach appellants' contention that his illegal assertions of privilege are not inconsistent with his grand jury testimony for purposes of Rule 801(d)(1)(A).

"Ordinarily a witness is regarded as 'subject to cross-examination' when he is placed on the stand, under oath, and responds willingly to questions." United States v. Owens, 484 U.S. 554, 561 (1988). However, "limitations on the scope of examination by the trial court or assertions of privilege by the witness may undermine the process to such a degree that meaningful cross-examination within the intent of the Rule no longer exists." Id. at 562 (emphasis added). Here, Valdez took the stand and the oath, but he assuredly did not respond willingly to questions--precisely because of his obstinate and repeated assertion of the privilege against self-incrimination.

The government counters that when a sworn witness has been "immunized" his assertions of privilege are invalid, and he is thereby "made legally available for both direct and cross-examination." No. 97-8096, Appellee's Br. at 26-27. We disagree. Settled Supreme Court authority instructs that the validity of a witness's assertion of privilege does not determine whether such witness is subject to cross-examination. See Douglas v. Alabama, 380 U.S. 415, 420 (1965). In Douglas, the prosecution placed on the stand a witness who refused to answer any questions concerning the alleged crime on the basis of a claim of privilege rejected by the trial court. "Under the guise" of refreshing the witness's recollection, the prosecution read in the presence of the jury an extrajudicial confession allegedly made by the witness. Id. at 416. When the prosecution periodically paused to ask the witness whether he made the statements in question, every such inquiry was met by the reassertion of the invalidly-claimed privilege. See id. at 416-417. Valdez's grand jury testimony found its way to the jury in precisely the same manner. Douglas concludes that given the witness's assertion of privilege and refusal to testify, "petitioner's inability to cross-examine . . . as to the alleged confession plainly denied him the right of cross-examination secured by the Confrontation Clause." Id. at 419; see also United States v. Murphy, 696 F.2d 282, 286 (4th Cir. 1982) (witness "refused to testify at all, thus rendering Rule 801(d)(1) inapplicable"). We see no reason for a different result in this case.

Valdez could hardly have been less forthcoming on the stand. He refused to acknowledge that the grand jury testimony read by the prosecution was his, see 11 R. at 41-42, and he made clear to both sides that he would invoke his privilege against self-incrimination and persist in refusing to answer all questions, see id. at 18, 104. The only answers that the government cites as departing from this pattern are too elliptical and confusing to demonstrate that the defendants were ever presented with an opportunity for effective cross-examination. More significantly, Valdez's limited responses were elicited well after he had established that he would not answer questions on the stand. See United States v. Fiore, 443 F.2d 112, 115 (2d Cir. 1971) (witness "was not subject to cross-examination by the defendant . . . because he had made it evident that he would refuse to give testimony of any sort"); see also United States v. Garner, 574 F.2d 1141, 1146 (4th Cir. 1978) (declining to hold that cross-examination was "adequate to meet the requirements of the Confrontation Clause" when witness stated that his grand jury testimony implicating defendants in a drug trafficking scheme was inaccurate, and disclaimed knowledge of the subject matter of that testimony). Owens, we believe, indicates that assertions of privilege can undermine the values protected by the Confrontation Clause and Rule 801(d)(1)(A) to such an extent as to necessitate an in camera determination of whether or not a witness will refuse to testify and submit to cross-examination. If that determination is left until after the potentially offending and prejudicial out-of-court statements have been placed before the jury and imputed by the prosecutor to the witness, the constitutional damage will have been done, as happened in this case.

The government reads Owens very differently. Under its interpretation, Owens adopts the position taken by Justice Harlan in his concurring opinion in Green. The government characterizes that position as follows: once the prosecution swears a witness who is legally--although not "practically"--available for cross-examination, the Confrontation Clause is satisfied. Even assuming this is a fair characterization of Justice Harlan's views, it is not a position endorsed by Owens.

Although the Court in Owens "agree[d] with . . . Justice Harlan," it did so solely for the proposition that the out-of-court testimony of a witness claiming memory loss can be admitted without violating the Confrontation Clause. See Owens, 484 U.S. at 558-59 (quoting Kennedy v. Stincer, 482 U.S. 730, 739 (1987)). In fact, since Owens, the Supreme Court has made it clear that Justice Harlan's position on the Confrontation Clause was, and remains, a decidedly minority view. "Such a...