United States v. Torres, 071918 FED9, 17-50237

Docket Nº:17-50237
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellant, v. ISMAEL TORRES, Defendant-Appellee.
Judge Panel:Before: IKUTA and N.R. SMITH, Circuit Judges, and McNAMEE, District Judge.
Case Date:July 19, 2018
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff-Appellant,

v.

ISMAEL TORRES, Defendant-Appellee.

No. 17-50237

United States Court of Appeals, Ninth Circuit

July 19, 2018

NOT FOR PUBLICATION

Argued and Submitted July 12, 2018 Pasadena, California

Appeal from the United States District Court for the Central District of California Manuel L. Real, District Judge, Presiding D.C. No. 2:17-cr-00067-R-4

Before: IKUTA and N.R. SMITH, Circuit Judges, and McNAMEE, [**] District Judge.

MEMORANDUM [*]

1. The district court erred in granting Torres's motion in limine, which excluded text messages between Torres and an alleged co-conspirator; recordings of meetings between an undercover agent and co-conspirators; and a recording of a meeting between Torres, an alleged co-conspirator, and an undercover agent.1

  1. Sufficient circumstantial evidence exists to connect Torres to the referenced cell phone number. See United States v. Black, 767 F.2d 1334, 1342 (9th Cir. 1985) (requiring the government to "make a prima facie showing of authenticity"). First, the cell phone number was used in booking the flight to Hawaii for Torres. Second, the cell phone was located in both Los Angeles and Hawaii on January 24, 2017 (the date of Torres's flight). Third, the text messages establish that a known conspirator and the person using the cell phone agreed to make flight reservations from Los Angeles to Hawaii on January 23, for flights on January 24. Fourth, a text message was sent from the referenced cell phone number with a hotel reservation in Hawaii for January 24-25. Finally, Torres personally arrived in Hawaii with a known conspirator on January 24. This evidence establishes a prima facie case that Torres was the user of the referenced cell phone number.

The text messages also qualify as statements of a party opponent. See Fed. R. Evid. 801(d)(2)(A), 801(d)(2)(E). There is credible proof that a conspiracy existed. See Bourjaily v. United States, 483 U.S. 171, 175-76 (1987) (holding for a statement to qualify under Rule 801(d)(2)(E), "[t]here must be evidence that there was a conspiracy involving the declarant and the nonoffering party, and that the statement was made 'during the course and in furtherance of the conspiracy'" (quoting Fed.R.Evid. 801(d)(2)(E)). Here, the text messages, the booking of the flight, and the physical appearance in Hawaii with a known conspirator present is sufficient evidence that a jury could reasonably find a conspiracy existed under the preponderance of the evidence standard. Huddleston v. United States, 485 U.S. 681, 690 (1988).

Applying a de novo review, 2 under Rule 403, the messages are "highly probative" that Torres was a member of the conspiracy and engaged in acts to further the conspiracy. See United States v. Decinces, 808 F.3d 785, 791 (9th Cir. 2015). Even though this evidence may harm Torres's case, it is not unfairly prejudicial. Id.

B. Because sufficient preliminary evidence supports a conclusion that a conspiracy existed, co-conspirator statements are admissible. Bourjaily, 483 U.S. at 175. It is not relevant that Torres was not present or may not have been a part of the conspiracy when the conversations were made. See Sendejas v. United States, 428 F.2d 1040, 1045 (9th Cir. 1970) ("It is well settled that a conversation between two co-conspirators which takes place out of the presence of a third co-conspirator...

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