F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
SEP 3 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-2160
OLGA A. GOMEZ,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. CR-97-263-LH)
Maria M. Laverde, Las Cruces, New Mexico, for Defendant-Appellant.
James R. W. Braun, Assistant United States Attorney (John J. Kelly, United States
Attorney with him on the brief), Las Cruces, New Mexico, for Plaintiff-Appellee.
Before KELLY, MCKAY and HENRY, Circuit Judges.
HENRY, Circuit Judge.
Ms. Olga A. Gomez appeals her criminal convictions for possession with intent to
distribute 50 kilograms or more of marijuana, in violation of 21 U.S.C. § 841, and
conspiracy to possess with intent to distribute 50 kilograms or more of marijuana, in
violation of 21 U.S.C. § 846. She argues that the trial court (1) erred in failing to grant
her motion to dismiss based on the United States' destruction of the marijuana evidence
and (2) violated the Confrontation Clause by admitting her absent codefendants'
confessions. She also raises a claim based on United States v. Singleton, 144 F.3d 1343
(10th Cir. 1998), ordered reheard en banc and opinion vacated, July 10, 1998, id. at
1361-62 (order). We exercise jurisdiction under 28 U.S.C. § 1291 and remand for a new
trial.
I. Background
On April 4, 1997, Border Patrol Agent Martin observed two sets of headlights
approaching from the east on Highway 9, west of Hachita, New Mexico and near the
Mexican border. Agent Martin became suspicious of the cars and stopped the first one, a
sedan, which contained Ms. Gomez, Maria Teresa Rubio, and Jose de Jesus Yanez
Torres. He briefly questioned them regarding their destination. In response to a question,
Ms. Gomez stated they were not traveling with anyone else.
During that time, the second vehicle, a white truck, passed them. Agent Martin
released the sedan, then pursued and stopped the truck. He noticed an unconnected
propane tank in the truck. The truck's driver, Felipe Bravo-Aguilar, agreed to follow
Agent Martin to the border patrol station, where a drug-sniffing dog indicated the
presence of narcotics in the tank. Several agents then planned a controlled delivery of the
truck, whereby Mr. Bravo-Aguilar agreed to continue to deliver the drugs as before while
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the agents followed behind in an unmarked car.
As the agents followed Mr. Bravo-Aguilar, they again noticed the sedan, which
engaged in a series of unusual driving maneuvers, repeatedly passing them and then
making U-turns to fall in behind them again. The agents pulled the sedan over a second
time. Ms. Gomez, Ms. Rubio, and Mr. Yanez Torres (then claiming to be Hector Rubio,
Maria's brother) contradicted the earlier story they had told about their destination.
During a subsequent pat-down of Mr. Yanez Torres, Agent Cordova found a
cellular phone in Mr. Yanez Torres' coat pocket. Agent Cordova pressed redial on the
phone, and had a conversation about the load of marijuana with the person who answered.
Agent Cordova told Mr. Yanez Torres this conversation linked him to the drugs. So
confronted, Mr. Yanez Torres admitted he was involved with the drugs, but claimed his
“sister,” Ms. Rubio, was not. He provided a written statement. After seeing Mr. Yanez
Torres' statement, Ms. Rubio also provided a written statement. Mr. Yanez Torres
showed the agents how to access the drugs in the tank. The tank was found to contain
approximately 130.5 pounds of marijuana worth, according to later testimony at trial,
$104,400. See Rec. vol. IV, at 99-100.
The government charged Mr. Bravo-Aguilar (the truck driver) first, on April 16,
1997, with one count of possession with intent to distribute 50 kg or more of marijuana.
The United States Customs Service gave the United States Attorney notice the same day
that it would destroy the drug evidence 60 days from the date of notification, pursuant to
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21 U.S.C. § 881(f)(2). Mr. Bravo-Aguilar also received notice of the destruction. See
Rec. vol. I, doc. 43, at 2. Accordingly, the government destroyed the bulk of the drugs on
June 3, 1997 (but retained nearly one kilogram of samples). On the day following the
marijuana destruction, June 4, Ms. Gomez was charged along with codefendants Mr.
Bravo-Aguilar, Ms. Rubio, and Mr. Yanez Torres by superseding indictment with one
count of possession with intent to distribute 50 kilograms or more of marijuana and one
count of conspiracy to do the same. Ms. Gomez was arrested on September 25 and
arraigned on October 20. She did not receive notice of the drugs' destruction until
October 29.
Ms. Gomez was tried separately in December, 1997. Mr. Bravo-Aguilar testified
against her pursuant to a plea agreement with the government. The government also
introduced written statements of confession from the other two codefendants, Mr. Yanez
Torres and Ms. Rubio, who were unavailable to testify as they remained fugitives at the
time of trial. A jury convicted Ms. Gomez on both counts. At the May 1998 sentencing
hearing, the trial court sentenced Ms. Gomez to 41 months on each count, to run
concurrently, followed by three years supervised release on each count, to run
concurrently.
II. Discussion
A. Right to a Fair Trial
Ms. Gomez argues that the government violated her right to a fair trial by its
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destruction of the marijuana upon which her conviction was based. She locates her claim
on two distinct grounds: (1) Fed. R. Crim. P. 16 and the district court's standing
discovery order, and (2) her Fifth Amendment right to due process and the standards
articulated in Brady v. Maryland, 373 U.S. 83 (1963). We find her arguments on the fair
trial issues to be without merit.
1. Fed. R. Crim. P. 16/Standing Discovery Order Violation
Ms. Gomez argues that the government's destruction of the drug evidence violated
Fed. R. Crim. Pro. 16(a)(1)(C) and the court's standing discovery order. See Order, Rec.
vol I, doc. 33, at 3. The court's discovery order explicitly tracks the language of Rule
16(a)(1)(C); accordingly we treat the two together. Both allow discovery of tangible
objects “which are within the possession, custody or control of the government, and
which are material to the preparation of the defendant's defense or are intended for use by
the government as evidence in chief at the trial, or were obtained from or belong to the
defendant.” Fed. R. Crim. P. 16(a)(1)(C); Order at 2.
The bulk of the drug evidence was destroyed on June 3, 1994. However, Ms.
Gomez was not indicted until June 4, 1994, and the district court did not issue its
discovery order until October 20, 1994. Thus, by the time the requirements of Fed. R.
Crim. P. 16 and the court's order became applicable to Ms. Gomez, the government was
no longer in “possession, custody, or control of” the bulk of the drug evidence.
Accordingly, its failure to produce the evidence was not a violation of either the Rule or
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the Order. The issue Ms. Gomez raises is not a discovery violation, but rather, is whether
the government's destruction of the evidence without prior notice to her violated her due
process rights, as discussed below.
2. Due process/Brady claim
We turn to Ms. Gomez's argument that the government's destruction of the
marijuana evidence without prior notice to her violates her due process rights. She
characterizes her claim both as a failure to disclose material, exculpatory evidence under
the standards articulated in Brady v. Maryland, and as a bad faith failure to preserve
evidence that could have been potentially useful to her defense.
First, we do not believe her claim is properly characterized as a Brady claim. As
we have previously stated, “[t]he Supreme Court's jurisprudence divides cases involving
nondisclosure of evidence into two distinct universes. Brady and its progeny address
exculpatory evidence still in the government's possession. [Arizona v. Youngblood, 488
U.S. 51, 58 (1988))] and [California v. Trombetta, 467 U.S. 479 (1984)] govern cases in
which the government no longer possesses the disputed evidence.” Fero v. Kerby, 39
F.3d 1462, 1472 (10th Cir. 1994) (quoting United States v. Femia, 9 F.3d 990, 993 (1st
Cir. 1993)). Here, the government admits that the evidence was no longer in its
possession. Therefore, Ms. Gomez's claim is more properly treated under the
Youngblood/Trombetta line of cases.
In order to establish a due process violation under Trombetta, Ms. Gomez must
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show that the marijuana evidence had exculpatory significance that would have been
"apparent before" its destruction, and that it was “of such a nature that the defendant
would be unable to obtain comparable evidence by other reasonably available means.”
See Trombetta, 467 U.S. at 488. She has failed to show that its exculpatory significance
would have been apparent. Instead, as the district court properly determined, Ms. Gomez
has established only that the evidence was “potentially useful” to her defense. See Rec.
vol. II, at 17. In order to establish a due process violation with respect to “potentially
useful” evidence, Ms. Gomez must show that the government acted in bad faith in
destroying it. See United States v. Bohl, 25 F.3d 904, 910 (10th Cir. 1994) (citing
Youngblood, 488 U.S. at 58). Here, the district court concluded that the government did
not act in bad faith. We review that conclusion for clear error. See United States v.
Parker, 72 F.3d 1444, 1450 (10th Cir. 1995).
Ms. Gomez argues that because the government knew on April 4, 1997 that it
would seek a later indictment against her, its failure to provide her notice before
destroying the drugs shows its bad faith. As support for her argument that the
government knew it would seek a later indictment, she refers to a United States Attorney's
duty report from the date of her initial detention. She characterizes that report as showing
that she had been affiliated with the load and had been released with the intention of
indicting at a later date. The district court accepted this characterization as accurate, see
Rec. vol. II, at 8-9, but declined to find that it established bad faith. See id. at 17.
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We do not find the existence of such a report sufficient to show the district court's
conclusion was clearly erroneous. As the government pointed out, it destroyed the
marijuana pursuant to its ordinary statutory procedures, before Ms. Gomez had even been
indicted. See 21 U.S.C. § 881(f)(2), 19 C.F.R. § 162.45a (Treasury Reg.); 28 C.F.R. §
50.21 (Department of Justice Reg.). That is, the first indicted co-defendant, Mr. Bravo-
Aguilar, was indicted on April 4, 1997. That same day, the Drug Enforcement
Administration (DEA) gave the United States Attorney notice that, pursuant to 21 U.S.C.
§ 881(f)(2), it would destroy the drug evidence 60 days from the date of notification (as
required by 28 C.F.R. § 50.21). Accordingly, on June 3, 1997, the DEA destroyed the
bulk of the drugs. Ms. Gomez was not indicted by superseding indictment until the next
day, June 4, 1997, after the marijuana had already been destroyed and it was no longer
possible to give her prior notice. Although the government points out that it retained
nearly one kilogram of samples, as required by 28 C.F.R. § 50.21(e)(4), this does not
address Ms. Gomez's primary concern, which was with the total weight of the marijuana
as it related to her sentencing.
Surprisingly, we have found no statutory or regulatory requirement – nor have the
parties provided us any – that defendants or potential defendants, against whom the soon-
to-be-destroyed evidence is to be used, be given notice of the destruction. Ms. Gomez
points to 21 U.S.C. § 883, which instructs the DEA to give notice to the possessor of
seized contraband and an opportunity for a hearing prior to reporting the criminal
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violation to a United States Attorney. That scenario, however, is not raised in this case.
The established procedure seems not to require notice, and in most cases,
“destruction of evidence in accordance with an established procedure precludes a finding
of bad faith absent other compelling evidence.” United States v. Deaner, 1 F.3d 192, 202
(3d Cir. 1993). There is no such evidence here – the United States Attorney's duty report
does not rise to that level. The government should consider modifying its drug
destruction procedures to avoid such issues of timing in the future. Nevertheless, in the
absence of more compelling evidence, we find no bad faith, and thus no due process
violation.
B. Confrontation Clause Violation
Ms. Gomez also argues that the district court violated her Sixth Amendment
Confrontation Clause rights by admitting the confessions of her absent codefendants, Mr.
Yanez Torres and Ms. Rubio. Both codefendants had made their statements while being
detained at the New Mexico State Police Office, where they had been transported after
their initial detention. During his interview with the state police officer, Mr. Yanez
Torres had agreed to the officer's request that he make a written statement. He stated:
I got to Columbus – I got to Columbus today, Friday, and the load was at the
house. Then we unloaded the tank, the driver and I, and we started to load the
marijuana into the tank. Then we covered it up. From there, the truck came
through Hachita. The driver was going to take it to the McDonald's in Lordsburg.
There, Senora Olga [Ms. Gomez] was going to get on and drive the truck. We
were waiting for the truck and it didn't arrive, when we saw it on the road to Silver
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City, and we followed it to Silver City, and there we were stopped.
Rec. vol. IV, at 234-35. After reviewing Mr. Yanez Torres' statement, Ms. Rubio also
agreed to make a written statement. She stated (also misstating Mr. Yanez Torres'
identity):
Hector [Mr. Yanez Torres] was sent with the truck to a house unknown to me to
put the load in the tank. Afterward, they told me to bring them to Lordsburg and
that we [Mr. Yanez Torres, Ms. Gomez, and Ms. Rubio] were going to wait for the
truck there. Since the truck didn't get there, we came towards Silver City and
halfway we came back, and when we came back we saw the truck on the road, and
we turned around to follow it, and there was when we were stopped by the police.
Id. at 238-39. Neither Mr. Yanez Torres nor Ms. Rubio testified in person at Ms.
Gomez’s trial as they remained fugitives.
The Confrontation Clause of the Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him.” U.S. Const. amend. VI. “The central concern of the Confrontation Clause
is to ensure the reliability of the evidence against a criminal defendant by subjecting it to
rigorous testing in the context of an adversary proceeding before the trier of fact.” Lilly
v. Virginia, 119 S. Ct. 1887, 1894 (1999) (plurality) (quoting Maryland v. Craig, 497 U.S.
836, 845 (1990)). In cases such as this, where the declarants remain unavailable at trial
and the government seeks to offer their out-of-court statements against the accused,
“courts must decide whether the Clause permits the government to deny the accused his
usual right to force the declarant to submit to cross-examination.” Id. at 1893.
The Clause may permit the government to deny the accused the right to cross-
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examination if the court deems the proffered out-of-court statements to be “so trustworthy
that adversarial testing can be expected to add little to [the statements'] reliability.” White
v. Illinois, 502 U.S. 346, 357 (1992). That is, the right to confrontation is not absolute,
and “does not necessarily prohibit the admission of hearsay statements against a criminal
defendant.” Idaho v. Wright, 497 U.S. 805, 813 (1990). Hearsay statements are deemed
sufficiently reliable to allow their admission without the benefit of cross-examination
when the statements (1) “fall[] within a firmly rooted hearsay exception,” or (2) contain
“adequate indicia of reliability.” Ohio v. Roberts, 448 U.S. 56, 66 (1980).
Thus, we consider whether these statements are admissible under either of the
Roberts exceptions. First, we consider whether they fall within a firmly rooted hearsay
exception. We hold they do not based on Supreme Court precedent in Lee v. Illinois, 476
U.S. 530 (1986), Williamson v. United States, 512 U.S. 594 (1994), and Lilly v. Virginia,
119 S. Ct. 1887 (1999), as well as Tenth Circuit precedent, particularly Earnest v. Dorsey,
87 F.3d 1123 (10th Cir. 1996). Second, we consider whether the statements are
nevertheless admissible because they exhibit sufficient indicia of reliability. We conclude
they do not, and hold their admission violated Ms. Gomez's Confrontation Clause rights.
Third, applying the constitutional harmless error test, we conclude the error was not
harmless beyond a reasonable doubt.
1. Firmly rooted hearsay exception
First, we consider the government’s contention that the statements at issue fall
11
within a firmly rooted hearsay exception as statements against penal interest, admissible
under Fed. R. Evid. 804(b)(3). The Supreme Court has previously observed that this
hearsay exception “defines too large a class for meaningful Confrontation Clause
analysis.” Lee, 476 U.S. at 544 n.5. But the government contends that the Supreme
Court addressed these concerns in Williamson, 512 U.S. 594, by defining the class of
statements against penal interest very narrowly to include only those parts of statements
that are truly self-inculpatory. It argues the Williamson Court implied that as long as a
statement fits within this narrower rule, it satisfies Confrontation Clause analysis.
Following the most recent guidance of the Supreme Court, however, we decline to
adopt that conclusion with respect to these statements. In Lilly, 119 S. Ct. 1887, an
opinion issued during the pendancy of this appeal, the Supreme Court explicitly
considered the use of statements against penal interest offered by the prosecution in the
absence of the declarant to incriminate a criminal codefendant. Five members of the
Court held that such statements do not categorically satisfy Confrontation Clause
concerns. See id. at 1899, 1903.
Justice Scalia, concurring separately, took the most resolute stance against the use
of such statements, calling it “a paradigmatic Confrontation Clause violation.” Id. at
1903. The four-member plurality took a more nuanced approach. It divided the category
of statements against penal interest into three subcategories: (1) those used as voluntary
admissions against the declarant; (2) those used as exculpatory evidence offered by a
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defendant who claims that the declarant committed, or was involved in, the offense; and
(3) those used as evidence offered by the prosecution to establish the guilt of an alleged
accomplice of the declarant. Id. at 1895-97. The plurality recognized that statements in
this last category — like those at issue here — do not fall into a firmly rooted hearsay
exception. Id. at 1899.
In so doing, the plurality observed that the Court had “over the years 'spoken with
one voice in declaring presumptively unreliable accomplices' confessions that incriminate
defendants.'” Id. at 1897 (quoting Lee, 476 U.S. at 541). It reaffirmed the Court's prior
recognition that:
th[e] truthfinding function of the Confrontation Clause is uniquely threatened
when an accomplice's confession is sought to be introduced against a criminal
defendant without the benefit of cross-examination . . . . Due to his strong
motivation to implicate the defendant and to exonerate himself, a codefendant's
statements about what the defendant said or did are less credible than ordinary
hearsay evidence.
Id. at 1898.
Three concurring justices refused such a broad holding, reserving the possibility
that “a genuinely self-inculpatory statement that also inculpates a codefendant” might
nevertheless satisfy a firmly rooted hearsay exception. Id. at 1904. But, they also
appeared to distinguish between “genuinely self-inculpatory statement[s]” and statements
given as “part of a custodial confession of the sort that this Court has viewed with
‘special suspicion’ given a codefendant’s ‘strong motivation to implicate the defendant
and to exonerate himself.’” Id. at 1904. The statements at issue here – given while the
13
codefendants were detained at the police station – fall into this latter category. Hence,
declining to venture forth where the Supreme Court itself has thus far refused to tread, we
hold these statements do not fall within a firmly rooted hearsay exception.
We note the government's argument that Ms. Rubio's statement should not even be
subject to Lee scrutiny because it does not mention Ms. Gomez by name. We reject that
argument. Ms. Rubio’s entire statement is phrased in terms of “we,” which, in
conjunction with the other evidence presented at trial, would have been clearly
understood to include Ms. Gomez. Thus, we proceed to consider whether the contested
statements nevertheless meet the second Roberts exception.
2. Sufficient Indicia of Reliability
Under the second Roberts exception, we consider whether the statements exhibit
“adequate indicia of reliability” to justify their admission. See Roberts, 448 U.S. at 66.
In evaluating the reliability of the hearsay statements, we presume that the factual
findings of the district court are correct; but whether the hearsay statements are reliable is
a mixed question of law and fact reviewed de novo. See Crespin v. New Mexico, 144
F.3d 641, 647 (10th Cir. 1998). This standard of review is consistent with the recent Lilly
decision. There, the concurring justices disputed whether the Supreme Court of Virginia
had passed on the question of indicia of reliability in the first place. By contrast here,
there is no dispute that the lower court, in reliance on our prior precedent, ruled that the
statements had “sufficient indicia of truthfulness.” Rec. vol. IV, at 228. While the lower
14
court here did not make a detailed explanation of its reliability ruling, it had requested
briefing on the issue and had all of the parties’ arguments before it. As we are in an equal
position with the lower court to evaluate the merits of those legal arguments, we conduct
a de novo review.
We begin with the repeated observation that this type of statement has consistently
been deemed “presumptively unreliable.” See Lilly, 119 S. Ct. at 1897 (citing Lee, 476
U.S. at 541). While the Supreme Court has clearly stated that “the presumption of
unreliability that attaches to codefendants’ confessions . . . may be rebutted,” Lee, 476
U.S. at 543, the more recent Lilly plurality cautions us that “[i]t is highly unlikely that the
presumptive unreliability that attaches to accomplices’ confessions that shift or spread
blame can be effectively rebutted when the statements are given under conditions that
implicate the core concerns of the old ex parte affidavit practice – that is, when the
government is involved in the statements’ production, and when the statements describe
past events and have not been subjected to adversarial testing.” Lilly, 119 S. Ct. at 1900.
Given the heavy weight of this presumption, we proceed to consider whether the
circumstances surrounding these statements exhibit sufficient indicia of reliability to
overcome the statements' “presumptive unreliability.” We conclude they do not.
In making such determinations, courts inquire as to what indicia of reliability were
present at the time the statements were made. See, e.g., id.; United States v. Gomez, 810
F.2d 947, 954 (10th Cir. 1987). Here, the government points to various factors it suggests
15
support a finding of reliability, based on our prior cases. These include: (1) the
statements were sufficiently detailed that they would have been difficult to fabricate; (2)
there is no evidence the statements were coerced; (3) both Mr. Yanez Torres and Ms.
Rubio were in a position to have had personal knowledge of the disputed events; (4) the
statements were made soon after the events occurred, so it is unlikely their recollection
would have been faulty; and (5) there was no evidence presented as to a reason for
retaliation against Ms. Gomez.
As a preliminary matter, we disagree with some of their assertions. For example,
we do not believe these brief one paragraph statements are of such detail that they would
have been difficult to fabricate. Nevertheless, we do agree that, speaking generally, these
factors have in the past supported a finding of reliability.
But, it is equally important to note that here, we lack several important indicia of
reliability. First, we have previously held that the absence of an offer of leniency and a
codefendant's low degree of agitation are important indicators of reliability. See Earnest,
87 F.3d at 1132-34 (upholding reliability determination, considering factors including
“that [defendant] was offered no leniency in exchange for his statement” and “that
[defendant] was not unduly agitated when he made the statement”). In the instant case,
the record shows the detaining officer told both codefendants their cooperation would be
beneficial. See Rec. vol. IV, at 246. Further, he described both codefendants as having
“appeared nervous” and having been “a little bit more” agitated than normal. See Rec.
16
vol. IV, at 223. Thus, both of these indicia militate against a finding of reliability.
Further, Ms. Rubio did not give her statement until after having reviewed that of Mr.
Yanez Torres. Not only does this “weigh[] against a finding that her statement is
reliable,” as the government admitted in its brief, see Aple. Br. at 30, this most seriously
compounds our doubts as to its reliability. Finally, Mr. Yanez Torres had been falsely
passing himself off at the time of his detention as Hector Rubio, Ms. Rubio's “brother.”
His true identity was not discovered until after Ms. Gomez's trial. This deception –
maintained throughout the police interview during which he gave the statement –
similarly reinforces our doubts about his statement's reliability.
Significantly, in none of our cases has the presence of certain indicia of reliability
supported a finding of reliability when there were such simultaneously strong indicators
of unreliability – the lack of these other important indicia. Even in those cases in which
the affirmative factors played an important role in establishing reliability, such as Earnest,
we relied most heavily on the fact that the statements were strongly against the declarant's
penal interest. See Earnest, 87 F.3d at 1133-34. Of course, the government urges us to
consider this factor here also. It is doubtful that we would accept this argument – the
statements spread blame equally at best. However, even were we to partially accept their
argument, after the Supreme Court's decision in Lilly, it is no longer clear whether
considering the degree to which a statement is against penal interest is even permissible:
this factor “merely restates the fact that portions of his statements were technically against
17
penal interest.” Id. “[S]uch statements [against penal interest] are suspect insofar as they
inculpate other persons. ‘[T]hat a person is making a broadly self-inculpatory confession
does not make more credible the confession’s non-self-inculpatory parts.’” Id. (quoting
Williamson, 512 U.S. at 599).
Accordingly, the government has failed to overcome the initial presumption of
unreliability attached to these codefendants' confessions that shift or spread blame.
Therefore, we hold that admission of both statements violated Ms. Gomez's Confrontation
Clause rights.
3. Harmless Error
Nevertheless, Confrontation Clause violations are subject to the constitutional
harmless error standard. See United States v. Joe, 8 F.3d 1488, 1497 (10th Cir. 1993).
Accordingly, we will uphold Ms. Gomez's conviction only if we conclude the error was
“'harmless beyond a reasonable doubt.'” Id. (quoting Chapman v. California, 386 U.S. 18,
24 (1967)).
Based on a careful review of the record, we do not find the error harmless beyond
a reasonable doubt. Apart from the codefendants’ statements, the only independent
corroborating evidence establishing that Ms. Gomez was cognizant of the drug transport –
essential to both drug charges – was the testimony of Mr. Bravo-Aguilar, a witness
testifying pursuant to a plea agreement. Mr. Bravo-Aguilar also provided the only other
corroboration that Ms. Gomez was present when Mr. Yanez Torres and Mr. Bravo-
18
Aguilar loaded the drugs into the propane tank.
This is particularly troubling when we note, for example, that there were
inconsistencies between Mr. Bravo-Aguilar’s testimony at trial and Mr. Yanez Torres’
statement as to whether Ms. Gomez was present when the drugs were loaded. While Mr.
Yanez Torres’ statement read: “we unloaded the tank, the driver and I, and we started to
load the marijuana into the tank,” Mr. Bravo-Aguilar testified that Ms. Gomez helped
them load the truck. See Rec. vol. IV, at 203. The government then had the opportunity
to ask Mr. Bravo-Aguilar about the truth of Mr. Yanez-Torres' statement: “if [Mr. Yanez
Torres] made a statement that said just the two of you loaded the truck, was he lying?” to
which Mr. Bravo-Aguilar responded, “Yes.” Id. Ms. Gomez did not have an equal
opportunity to demand the same of the absent Mr. Yanez Torres. This is exactly the sort
of concern that the right to cross-examination protects. The lack of some similar
reassurance here is exactly why we remain so troubled in this case.
Certainly, there was independent testimony that Ms. Gomez was driving at the
time the car made suspicious driving maneuvers consistent with a scout/load car scenario,
and that Ms. Gomez had previously received some funds from “Hector Rubio.”
However, Ms. Gomez consistently maintained her innocence of the scheme, asserting that
Ms. Rubio had suggested that she make the turns and concocted a story to convince her to
take Mr. Yanez Torres along. Without the codefendants’ testimony, the story is reduced
to a credibility contest between Mr. Bravo-Aguilar and Ms. Gomez.
19
Admittedly, Ms. Gomez might have nevertheless lost this credibility battle,
particularly when her testimony appears to have had other inconsistencies. Yet, when the
government's evidence also suffered from inconsistencies, Ms. Gomez's knowledge of the
drug transport was essential to the charges, and there lacked other independent
corroborating evidence, we cannot say that admission of the improper hearsay evidence
was harmless error. Accordingly, we must remand for a new trial.
C. Singleton claim
Ms. Gomez also argues on appeal that the prosecutor violated 18 U.S.C. §
201(c)(2) by entering into a plea agreement with a cooperating defendant. Ms. Gomez
did not argue this below, and in any event, an en banc decision of this court resolved the
issue against her position in United States v. Singleton, 165 F.3d 1297 (10th Cir. 1999)
(en banc). Her claim therefore fails.
III. Conclusion
For the foregoing reasons, we VACATE the decision of the district court and
REMAND for a new trial.
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