U.S. v. Valdez-Soto

• Decision Date: 10 August 1994
• Docket Number: GOMEZ-TELL,91-10623,VALDEZ-SOT,D,Nos. 91-10622,s. 91-10622
• Citation: 31 F.3d 1467
• Parties: , 39 Fed. R. Evid. Serv. 1251 UNITED STATES of America, Plaintiff-Appellee, v. Gustavoefendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Fabioefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1467

31 F.3d 1467

63 USLW 2117, 39 Fed. R. Evid. Serv. 1251

UNITED STATES of America, Plaintiff-Appellee, v. Gustavo VALDEZ-SOTO, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Fabio GOMEZ-TELLO, Defendant-Appellant.

Nos. 91-10622, 91-10623.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 5, 1993.

Decided Aug. 10, 1994.

Michael H. Weiss, Berkeley, CA, for defendant-appellant Valdez-Soto.

Victoria C. Belco, Berkeley, CA, for defendant-appellant Gomez-Tello.

Mary E. Pougiales and Theresa J. Canepa, Asst. U.S. Attys., San Francisco, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before: KOZINSKI, O'SCANNLAIN, Circuit Judges, and ZILLY, District Judge. ^*

Opinion by Judge KOZINSKI; Dissent by Judge ZILLY.

KOZINSKI, Circuit Judge.

There may be no loyalty among thieves, but there sometimes is among drug dealers. When called by the government, such witnesses occasionally change their story. The principal issue raised in these consolidated appeals is whether and when their inculpatory out-of-court statements may be admitted in the teeth of a hearsay objection.

I

Some days nothing goes right. The seller, Roberto Cortez, showed up in a restaurant parking lot with nine kilograms of cocaine just as he'd promised, only to discover that his buyer, Dennis Pierce, was a government agent. Cortez was in deep trouble and soon confessed. In so doing, he implicated two men as his suppliers, Gustavo Valdez-Soto and Fabio Gomez-Tello (our defendants), both of whom had already been arrested at the home of Cortez's sister-in-law.

Pierce had been working with narcotics informant Joaquin Olivas for some time, setting up a buy of thirty kilograms of cocaine from Cortez. Many of Olivas's conversations with Cortez had been taped. This provided incriminating evidence against both Cortez and his yet-to-be-identified suppliers, much of which was later corroborated by other evidence at trial. Based on information provided by Cortez, agents had zeroed in on Valdez-Soto and Gomez-Tello when they showed up in San Francisco in the company of Cortez right around the time the sale was to occur.

Cortez pled guilty shortly before trial and agreed to testify for the government. But Cortez's testimony was not consistent with his post-arrest statements and the district court ordered those statements admitted over defendants' hearsay objections. Another problem at trial was that a witness put on by the government refused to testify; the district court denied a defense motion for a mistrial based on this incident. Defendants were eventually convicted of conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 846, and possession of more than five kilograms of cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1). ¹ Both challenge the admission of Cortez's prior inconsistent statements pursuant to Fed.R.Evid. 803(24), and the denial of the motion for a mistrial. Only Valdez appeals his sentence, claiming it is disproportionate because it turned out to be much heavier than Cortez's.

II

We review the district court's admission of evidence under Fed.R.Evid. 803(24) ² for abuse of discretion. United States v. Friedman, 593 F.2d 109, 118 (9th Cir.1979).

A. Right after his arrest, Cortez told FBI agents all about his cocaine source. He described his involvement in a narcotics trafficking conspiracy with Valdez-Soto and Gomez-Tello as the suppliers. He said that "Gustavo" (Valdez-Soto) brought the nine kilos of cocaine from Los Angeles and that "Fabio" (Gomez-Tello) lived with Valdez-Soto and came with him. Cortez said he'd distributed cocaine for Valdez-Soto in the past, and described their method of handling finances. He also described Valdez-Soto and Gomez-Tello's arrival in the San Francisco area and their activities after they got there.

Sometime before trial, Cortez changed his tune and testified much differently. The district court, over defense counsel's objection, admitted Cortez's post-arrest statements under Rule 803(24). On the stand, Cortez acknowledged making parts of these statements; other parts he couldn't recall. For example, he insisted that neither Valdez-Soto nor Gomez-Tello was his supplier, though he had trouble remembering his supplier's name. He remembered saying Valdez-Soto and Gomez-Tello were his suppliers and had brought the cocaine to San Francisco, but insisted he'd fabricated this and other parts of his statement. ³ He "[a]bsolutely" did not get the nine kilograms from the defendants. 7/15 RT at 99; see also id. at 105. Special Agent Fresques was then allowed to testify regarding the statements he took from Cortez after his arrest.

B. Defendants challenge the district court's admission of this evidence, claiming the court improperly and exclusively relied on corroborating evidence in finding the requisite circumstantial guarantees of trustworthiness. They point vigorously to Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), which dealt with a Confrontation Clause challenge to the admissibility of hearsay evidence under a state exception similar to Rule 803(24). The Court held that corroborating evidence could not be used in establishing the reliability of a nontestifying declarant's statements; the trial court had to limit itself to evidence surrounding the actual making of the statements. The Court reasoned that, to allow the use of corroborating evidence would be "at odds with the requirement that hearsay evidence admitted under the Confrontation Clause be so trustworthy that cross-examination of the declarant would be of marginal utility." Id. at 823, 110 S.Ct. at 3150.

Wright differs from our case in one crucial respect: The government there was seeking to introduce the out-of-court statement of a declarant who was not on the witness stand. By contrast, Cortez was on the stand, and defendants here were able to cross-examine him (and take advantage of all the other benefits of confrontation) to their hearts' content. We are aware of no Supreme Court case, or any other case, which holds that introduction of hearsay evidence can violate the Confrontation Clause where the putative declarant is in court, and the defendants are able to cross-examine him. United States v. Owens, 484 U.S. 554, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988), suggests strongly to the contrary. ⁴ Cf. United States v. Vargas, 933 F.2d 701, 705-06 (9th Cir.1991) (admission of prior statements violated Confrontation Clause where, although declarant testified, defendant was precluded from cross-examining him about the statements).

In the absence of concerns about the accused's right to confrontation, the trial judge has a fair degree of latitude in deciding whether to admit statements under Fed.R.Evid. 803(24). The rule requires only that the hearsay have "equivalent circumstantial guarantees of trustworthiness" to any of the rule's enumerated exceptions. In addition to factors such as "the declarant's perception, memory, narration, or sincerity concerning the matter asserted," United States v. Friedman, 593 F.2d 109, 119 (9th Cir.1979), we've recognized that corroborating evidence is a valid consideration in determining the trustworthiness of out-of-court statements for purposes of Rule 803(24). See, e.g., Larez v. City of Los Angeles, 946 F.2d 630, 643 n. 6 (9th Cir.1991) (declarants' out-of-court statements were "especially reliable" under Rule 803(24) because they corroborated one another). The district court thus did not err in considering corroborative evidence here. But see Huff v. White Motor Corp., 609 F.2d 286, 292 (7th Cir.1979) ("guarantees to be considered in applying [Rule 803(24) ] are those that existed when the statement was made").

C. Valdez-Soto and Gomez-Tello also claim the admission of these statements violated Rule 803(24)'s requirement that "the general purposes of these rules and the interests of justice will be best served by the admission of the statement." ⁵ Relying on Rule 803(24)'s legislative history, defendants claim this hearsay exception must be interpreted narrowly. We decline the defendants' invitation to go skipping down the yellowbrick road of legislative history. ⁶ Rule 803(24) exists to provide courts with flexibility in admitting statements traditionally regarded as hearsay but not falling within any of the conventional exceptions. And we review admission of evidence under this provision, like all other evidentiary rulings, for abuse of discretion.

Nor are we persuaded by defendants' related argument that prior inconsistent statements must be admitted, if at all, under those provisions of the hearsay rule dealing expressly with admission of such statements. Specifically, defendants assert that Rule 801(d)(1)(A) ⁷ provides the only test for admission of unsworn prior inconsistent statements as substantive evidence: if that test is not met, they contend, the evidence can never be admitted. But the existence of a catch-all hearsay exception is a clear indication that Congress did not want courts to admit hearsay only if it fits within one of the enumerated exceptions. And the reference to guarantees of trustworthiness equivalent to those in the enumerated exceptions strongly suggests that almost fitting within one of these exceptions cuts in favor of admission, not against. Rule 803(24) easily encompasses a case like ours where the evidence has the requisite indicia of trustworthiness but is not otherwise admissible. See United States v. Tafollo-Cardenas, 897 F.2d 976, 980 (9th Cir.1990) (after finding that Rule 801(d)(1)(A) did not apply to out-of-court statements, court noted the possible use of Rule 803(24) as a basis for their admission); United States v. Popenas, 780 F.2d 545, 547 (6th Cir.1985) (reversing district court for not allowing admissibility of out-of-court statements to be argued under Rule 803(24) ...