United States v. Oyorzaval-Vera , 184 F. App'x 398 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 7, 2006
Charles R. Fulbruge III
Clerk
No. 05-50552
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAIME OYORZAVAL-VERA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
No. 3:04-CR-1976-2
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Before SMITH, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Jaime Oyorzaval-Vera challenges his conviction by a jury of
conspiracy to possess with intent to distribute and possession with
intent to distribute 100 kilograms or more of marihuana. He was
sentenced to concurrent terms of 60 months of imprisonment and four
years of supervised release.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited circum-
stances set forth in 5TH CIR. R. 47.5.4.
Oyorzaval-Vera contends that the district court’s refusal to
admit, pursuant to FED. R. EVID. 804(b)(1) and (3), his unavailable
co-defendant’s plea hearing testimony was error that was not harm-
less. Oyorzaval-Vera asserts that the testimony was exculpatory;
the testimony was reliable because it was given under oath and un-
der penalty of perjury; and the testimony was corroborated by other
trial evidence. He contends that the government had a similar mo-
tive and opportunity to develop the testimony at the co-defendant’s
plea hearing.
We review an issue concerning “the admissibility of evidence
for abuse of discretion.” United States v. Vega, 221 F.3d 789,
803-04 (5th Cir. 2000). If an abuse of discretion is found, the
error is reviewed for harmlessness. United States v. Skipper, 74
F.3d 608, 612 (5th Cir. 1996).
The government’s motive to develop the co-defendant’s testi-
mony at the plea hearing was not similar to its motive at Oyorza-
val-Vera’s trial. See United States v. Atkins, 618 F.2d 366, 373
(5th Cir. 1980); see also United States v. Jackson, 335 F.3d 170,
176-79 (2d Cir. 2003). Accordingly, the testimony was not admis-
sible under FED. R. EVID. 804(b)(1). Even if the refusal to admit
the testimony under rule 804(b)(1) was error, the error was harm-
less in light of the evidence of Oyorzaval-Vera’s guilt. See
Skipper, 74 F.3d at 612.
Oyorzaval-Vera does not identify specific testimony and cir-
cumstances that corroborate his co-defendant’s plea hearing testi-
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mony and that clearly indicate its trustworthiness. Indeed, the
testimony provided by Border Patrol agents does not only fail to
corroborate Oyorzaval’s co-defendant’s plea hearing testimony, the
agents’ testimony directly contradicts the plea hearing testimony.
Accordingly, there are no corroborating circumstances that plainly
indicate the trustworthiness of the co-defendant’s testimony, and
the district court did not abuse its discretion by refusing to
admit it. See Vega, 221 F.3d at 803.
Oyorzaval-Vera contends that the refusal to admit his co-de-
fendant’s testimony deprived him of his constitutional right to
compulsory process. An accused’s right to compulsory process is
not “an unfettered right to offer testimony that is incompetent,
privileged or otherwise inadmissible under standard rules of evi-
dence.” United States v. Walker, 410 F.3d 754, 758 (5th Cir.) (in-
ternal quotations and citation omitted), cert. denied, 126 S. Ct.
633 (2005). The Sixth Amendment right of compulsory process must
yield to a witness’s Fifth Amendment privilege against self-incrim-
ination. United States v. Follin, 979 F.2d 369, 374 (5th Cir.
1992).
The plea hearing testimony was not admissible under FED. R.
EVID. 804(b)(1) or (3). Further, Oyorzaval-Vera exercised his right
to compulsory process, and his co-defendant invoked his right
against self-incrimination without interference from the government
or the district court. Oyorzaval-Vera’s compulsory process rights
were thus exhausted. See United States v. Griffin, 66 F.3d 68, 70
3
(5th Cir. 1995).
The judgment is AFFIRMED.
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