United States v. Ismael Torres ( 2018 )

FILED
NOT FOR PUBLICATION
JUL 19 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50237
Plaintiff-Appellant, D.C. No. 2:17-cr-00067-R-4
v.
MEMORANDUM*
ISMAEL TORRES,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted July 12, 2018
Pasadena, California
Before: IKUTA and N.R. SMITH, Circuit Judges, and McNAMEE,** District
Judge.
1. The district court erred in granting Torres’s motion in limine, which
excluded text messages between Torres and an alleged co-conspirator; recordings
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Stephen M. McNamee, Senior United States District
Judge for the District of Arizona, sitting by designation.
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
A. 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.
1
The district court did not provide its reasons for granting Torres’s motion
in limine. Thus, we are unable to determine whether the district court “identified
the correct legal rule to apply to the relief requested.” United States v. Espinoza,
880 F.3d 506, 511 (9th Cir. 2018) (citation omitted).
2
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.
2
“[W]hen the court excludes evidence under Rule 403 but does not engage
in explicit balancing, we review such a determination de novo.” United States v.
Moran, 493 F.3d 1002, 1012 (9th Cir. 2007).
3
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
is admissible into evidence against the third co-conspirator if at least a prima facie
case of the alleged conspiracy is made.”); see also United States v. Umagat, 998
F.2d 770, 772 (9th Cir. 1993) (“One may join a conspiracy already formed and in
existence, and be bound by all that has gone before in the conspiracy, even if
unknown to him.” (citation omitted)). However, “statements of co-conspirators
made prior to [Torres’s] involvement are not admissible to show his participation.”
United States v. Segura-Gallegos, 41 F.3d 1266, 1272 (9th Cir. 1994). Therefore,
to the extent that the Government is seeking to introduce the evidence to establish
the scope of the conspiracy, the statements are admissible.3 This evidence is not
unfairly prejudicial and is highly relevant with regard to the existence, scope, and
nature of the conspiracy. See Decinces, 808 F.3d at 791.
3
To the extent the Government is seeking to show Torres’s participation in
the conspiracy, more foundation must be made.
4
C. Because sufficient preliminary evidence supports a conclusion that a
conspiracy existed, statements of Torres and his alleged co-conspirator to the
undercover agent are admissible and do not violate the Confrontation Clause. See
Crawford v. Washington, 541 U.S. 36, 51-52 (2004). The statement that Torres
was his co-conspirator’s “right-hand man,” was not testimonial but rather a
statement in furtherance of the conspiracy. United States v. Allen, 425 F.3d 1231,
1235 (9th Cir. 2005) (“[C]o-conspirator statements are not testimonial and
therefore beyond the compass of Crawford’s holding.”); see also Davis v.
Washington, 547 U.S. 813, 825 (2006) (explaining that “statements made
unwittingly to a Government informant” “were clearly nontestimonial”). This
statement is also “highly probative” to determine that Torres was a member of the
conspiracy and engaged in acts to further the conspiracy, and yet the statement’s
admission is not unfairly prejudicial. See Decinces, 808 F.3d at 791.
2. Because the district court did not explain its reasoning with regard to why it
was excluding expert testimony or excluding Torres’s prior drug-trafficking
conviction, we therefore vacate the district court’s decisions and remand for further
proceedings.
3. The Government’s request for reassignment upon remand is denied. “In the
absence of proof of personal bias, we remand to a new judge only under ‘unusual
5
circumstances.’” United States v. Sears, Roebuck & Co., 785 F.2d 777, 780 (9th
Cir. 1986) (quoting United States v. Arnett, 628 F.2d 1162, 1165 (9th Cir. 1979)).
Here, the Government has not shown that the assigned district court judge has
shown bias or would “have substantial difficulty in putting out of his . . . mind
previously-expressed views or findings determined to be erroneous.” Id. (quoting
Arnett, 628 F.2d at 1165). This case does not present the unusual circumstances
that would otherwise justify reassignment. Id. The government has not shown that
reassignment is required to preserve the appearance of justice. Id.
REVERSED IN PART; VACATED IN PART; REMANDED.
6