United States v. Alfonso Torres
2015 U.S. App. LEXIS 12632
| 9th Cir. | 2015Background
- Torres, a SENTRI lane traveler, was stopped entering the U.S.; CBP later discovered a specially built compartment in his pickup containing 73 kg of cocaine.
- At the first trial (hung jury), Torres testified that a Tijuana friend, Fernando Griese, repeatedly borrowed the truck and asked Torres to run errands in San Diego; the court allowed some of that testimony.
- At retrial the district court excluded testimony about Fernando’s specific requests (asking Torres to take a friend to the DMV or a tire shop) as hearsay and irrelevant; Torres was convicted and sentenced to 132 months.
- Torres argued on appeal that questions/requests by Fernando were not hearsay because questions generally lack assertive intent and were offered to show effect on the listener (Torres) and third-party culpability.
- The Ninth Circuit held that where a question is intended to communicate an implied assertion and is offered for that intended message, it is hearsay; the district court did not abuse its discretion in excluding the evidence.
- Even assuming error, the court found any exclusion harmless (not constitutional error and did not materially affect the verdict) given strong circumstantial evidence of knowledge and additional government “modus operandi” evidence elicited after defense expert testimony.
Issues
| Issue | Torres' Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Fernando’s questions/requests to Torres are hearsay | Questions are non-hearsay because they lack intent to assert; admissible to show effect on listener | Fernando intended the implied assertion (wanted control of truck); offered for truth of that implied assertion -> hearsay | Questions that carry an intended implied assertion and are offered for that assertion are hearsay; exclusion proper |
| Whether exclusion violated Torres’s right to present a complete defense (constitutional error) | Exclusion prevented Torres from presenting third-party culpability evidence and undermined his defense | Trial still allowed evidence of mechanic and Fernando borrowing truck; defense argued third-party culpability at closing | Not constitutional error: excluded testimony would not have added substantially to jury’s knowledge; right to present defense not denied |
| Harmless-error under non-constitutional standard | Exclusion materially affected jury (first trial hung jury; second trial guilty) | Government points to additional incriminating evidence and defense expert opening door to DTO modus operandi evidence | Harmless: more probable than not error did not materially affect verdict given substantial circumstantial proof and DOJ evidence |
| Whether district court abused discretion in applying Rule 801 and evidentiary standards | District court misapplied hearsay rule by treating questions as intended assertions | District court reasonably inferred Fernando’s intent and Torres offered questions for their truth | No abuse of discretion; application of Rule 801 supported by record |
Key Cases Cited
- United States v. Seschillie, 310 F.3d 1208 (9th Cir. 2002) (standard for harmless-error review in criminal cases)
- United States v. Hinkson, 585 F.3d 1247 (9th Cir. 2009) (framework for reviewing district court evidentiary rulings)
- United States v. Olano, 507 U.S. 725 (1993) (Rule 52(a) and harmless-error principles)
- Neder v. United States, 527 U.S. 1 (1999) (constitutional error harmless-beyond-a-reasonable-doubt standard)
- United States v. Lewis, 902 F.2d 1176 (5th Cir. 1990) (questions generally not hearsay because not intended as assertions)
- United States v. Summers, 414 F.3d 1287 (10th Cir. 2005) (questions can be hearsay when intent to assert is apparent)
- United States v. Lopez-Alvarez, 970 F.2d 583 (9th Cir. 1992) (exclusion of hearsay that does not add substantially to the jury’s knowledge is not constitutional error)
- United States v. Bishop, 264 F.3d 919 (9th Cir. 2001) (harmless-error analysis requires assessing probable effect on a reasonable trier of fact)
- United States v. Pineda-Doval, 614 F.3d 1019 (9th Cir. 2010) (review of whether evidentiary error rises to constitutional violation)
- United States v. Stever, 603 F.3d 747 (9th Cir. 2010) (contrast where exclusion effectively barred defendant’s only defense)