FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50553
Plaintiff-Appellee,
D.C. No.
v. 3:12-cr-04081-JAH-1
ALFONSO TORRES,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Argued and Submitted
March 5, 2015—Pasadena, California
Filed July 22, 2015
Before: Michael R. Murphy,* Ronald M. Gould,
and Richard C. Tallman, Circuit Judges.
Opinion by Judge Tallman
*
The Honorable Michael R. Murphy, Senior Circuit Judge for the U.S.
Court of Appeals for the Tenth Circuit, sitting by designation.
2 UNITED STATES V. TORRES
SUMMARY**
Criminal Law
The panel affirmed a conviction for knowingly
transporting cocaine across the United States-Mexico border
concealed in a specially constructed compartment of the
defendant’s pickup truck.
The panel held that while some questions may constitute
non-hearsay, where the declarant intends the question to
communicate an implied assertion and the proponent offers
it for this intended message, the question falls within the
definition of hearsay. The panel held that the district court
therefore properly excluded as hearsay the defendant’s
testimony about requests made by his friend, whom the
defendant claimed was manipulating him into unknowingly
carrying drugs across the border by asking him for favors
running errands into San Diego.
The panel held that even if the district court erred in
sustaining the hearsay objection, the exclusion did not
amount to constitutional error, and that exclusion of the
testimony about the friend’s requests would also have been
harmless under the non-constitutional error standard.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. TORRES 3
COUNSEL
Devin Burstein (argued), Warren & Burstein, San Diego,
California, for Defendant-Appellant.
Kyle W. Hoffman (argued), Assistant United States Attorney;
Laura E. Duffy, United States Attorney; Bruce R. Castetter,
Assistant United States Attorney, Chief Appellate Section,
Criminal Division, San Diego, California, for Plaintiff-
Appellee.
OPINION
TALLMAN, Circuit Judge:
Alfonso Torres appeals his conviction for knowingly
transporting seventy-three kilograms of cocaine across the
United States-Mexico border concealed in a specially
constructed compartment of his pickup truck. See 21 U.S.C.
§§ 952, 960. At his first trial, which ended in a hung jury, the
district court permitted Torres to testify that his friend in
Tijuana, Fernando Griese, borrowed his truck on several
occasions. During this time, Torres alleged the modifications
and concealment could have been made to his truck without
his knowledge. On retrial, Torres attempted to testify about
other requests made to him by Griese, who Torres claimed
was manipulating him into unknowingly carrying drugs
across the border by asking him for favors running errands in
San Diego. The district court, however, precluded this line of
questioning as hearsay and irrelevant.
4 UNITED STATES V. TORRES
We have jurisdiction under 28 U.S.C. § 1291. We hold
that the district court properly excluded Torres’s “favors”
testimony as hearsay because—although some questions and
inquiries may constitute non-hearsay—where the declarant
intends the question to communicate an implied assertion and
the proponent offers it for this intended message, the question
falls within the hearsay definition. But even if the exclusion
was error, we find “it is more probable than not that the error
did not materially affect the verdict.” United States v.
Seschillie, 310 F.3d 1208, 1214 (9th Cir. 2002). Thus, we
affirm.
I
A
On August 14, 2012, Alfonso Torres drove his Dodge
Ram pickup truck through the Otay Mesa, California, Port of
Entry from Mexico into the United States using the Secure
Electronic Network for Travelers Rapid Inspection
(“SENTRI”) lane. A SENTRI card holder is allowed to use
special entry lanes reserved for pre-screened, trusted
travelers. Manning the SENTRI lane that day, Customs and
Border Protection (“CBP”) Officer Rodolfo Sanchez
inspected Torres’s documents and returned them; Torres
paused, gripped the steering wheel, and then hit the gas. The
manner in which Torres paused and stared at him seemed
abnormal to Officer Sanchez; and as Torres drove away,
Officer Sanchez noticed a space discrepancy between the
pickup’s bed and the chassis underneath the tailgate door.
This prompted Officer Sanchez to enter a “forced secondary
referral lookout” on Torres’s truck in the CBP computer to
alert inspectors the next time he crossed.
UNITED STATES V. TORRES 5
Two days later, on August 16, 2012, Torres once again
drove through the Otay Mesa Port of Entry. Based on the
computer alert, he was referred to secondary inspection for
closer examination, including an x-ray of his truck. The x-ray
produced a “no scan” as a result of Torres stopping only
briefly during the scan. CBP officers then instructed Torres
to park in the secondary lot for a manual search. Moments
later, CBP Officer Benjamin Joseph approached Torres and
asked him to turn off the ignition. Officer Joseph testified
that as Torres handed over his keys, his hands were shaking.
In secondary, a drug dog alerted to Torres’s truck and,
after further inspection, officers found a hole and strings
leading to packages underneath the truck bed. Because the
hole was not big enough to extract the packages, the officers
first attempted to pull out the drugs using a crow bar. When
this failed, they lifted the truck bed from the chassis and
removed an access panel. Still unable to remove all the
parcels, CBP officers then instructed a mechanic to cut
another access panel. It took CBP officers about two hours
to access the compartment. Ultimately, seventy-three
kilograms of cocaine were recovered from the well-hidden
compartment in Torres’s truck.1 Installation of the
compartment had increased the space between the bottom of
the truck bed and the chassis of the truck, which Officer
Sanchez had noticed two days earlier. The government’s auto
expert testified that accessing the cocaine bricks in the hidden
compartment required either heavy machinery, such as a car
lift, or three to four people to lift the truck bed off the chassis.
1
One officer testified that eighty-eight kilograms of cocaine were found
in the truck, but both the Government and Torres agreed it was seventy-
three kilograms in their closing arguments.
6 UNITED STATES V. TORRES
During Torres’s post-arrest interview, he insisted that he
had no knowledge of the drugs. Torres stated that he had
taken his truck to a mechanic in Tijuana a few months prior
to his arrest where modifications could have been made
without his knowledge.
B
Torres’s first trial began on April 9, 2013, but ended in a
hung jury. At the first trial, Torres testified that he had left
his truck with the mechanic in Tijuana for a month. The
mechanic had botched the paint job and then offered to buy
the truck from Torres. Torres also testified that he had loaned
the truck to his friend, Fernando Griese (“Fernando”), on four
different occasions.2 Torres said that Fernando returned the
truck each time meticulously cleaned “inside and out.”
Fernando last borrowed Torres’s truck about a week and a
half prior to Torres’s arrest. On the day Fernando returned
the truck, he asked Torres if he could take Fernando’s friend
to the D.M.V. near San Ysidro, California, about eight miles
from the Otay Mesa Port of Entry. Torres declined. The next
day Fernando called making the same request, and Torres
declined a second time. Later, Fernando asked Torres to
drive his friend to a tire shop in San Diego to pick up some
tires. Torres never acted on this request either.
Although at the first trial the Government objected to
Torres’s testimony as hearsay, at sidebar, Torres argued that
he was “not seeking to introduce this for the truth of the
matter, but rather for the effect on the listener.” The district
2
The transcript of the second trial misspells the last name as Gress,
however, both parties’ briefs refer to Fernando as Griese.
UNITED STATES V. TORRES 7
court overruled the Government’s hearsay objection.3 After
3
The testimony before and after the Government’s initial objection at
the first trial was:
Q. When Fernando returned the truck to you that day,
a week or a week and a half before your arrest, did he
ask you anything?
A. Yes.
Q. What did Fernando want?
[Government]: Objection. Hearsay.
The Court: Sustained. Sustained.
[Defense Counsel]: Your Honor, may I speak?
The Court: Sidebar.
(Sidebar reported; not transcribed herein.)
The Court: One second. The objection is
overruled. You may proceed.
[Defense Counsel]: I’ll just ask my question again.
Q. What did Fernando want when he returned a week
and a half before your arrest?
A. He asked me if I could do a favor for him. He
asked that if I could pick up a friend, a friend of his.
He wanted me to take him to the D.M.V. because the
person did not know where [the] D.M.V. was. And he
asked me if there was like a D.M.V. near San Ysidro,
or in San Diego, and I said that, yes, I did know. So he
asked me if I could do him a favor, if I could take a
friend of his. He told me something like he wanted to
8 UNITED STATES V. TORRES
further objections, and once it became apparent that Torres
declined the favor and never drove to the D.M.V., the district
court instructed defense counsel at a second sidebar that “the
extent of the examination should be, to the extent it may be
permissible, that Fernando asked to take someone to the
D.M.V., gave me some instruction, but it didn’t happen. That
should be it.”4 The trial ended in a hung jury after a day and
change his license, like change the category, because he
wanted to drive another kind of car.
4
The testimony leading up to the second side bar at the first trial was:
Q. Did Fernando want you to pick up his friend –
Where did Fernando want you to pick up his friend?
[Government]: Objection. Hearsay.
The Court: Sustained. Sustained.
Q. In your mind, where would you be picking up his
friend?
The Court: Sustained, counsel.
[Government]: Objection.
The Court: Move on to the reason for the effect on
the listener.
Q. Where was the D.M.V. that you were planning to go
to?
A. It’s close to Brown Field. . . [¶]
...
Q. So when Fernando asked you to take his friend to
the D.M.V., did he also ask you for anything else?
UNITED STATES V. TORRES 9
half of deliberations.
C
The second trial began June 4, 2013, and lasted two days.
It resulted in a guilty verdict. Prior to the commencement of
the second trial, Torres moved to permit the challenged
“favors” testimony, but the district court excluded Fernando’s
requests as hearsay and irrelevant. Because the district court
was under the impression that Torres had acted on Fernando’s
directives, it initially thought the testimony would be
admissible under the hearsay exception for the effect on the
listener. The district court explained the second time around
that after listening to the proffered testimony at the first trial,
“the court had the Hobson’s choice of directing the jury to
disregard that entire batch of testimony from the defendant
[Government]: Objection. Leading and calls for
hearsay.
The Court: Sustained.
...
Q. In your mind, after you took this person to the
D.M.V., did you think you would go anywhere else?
A. Yes. He told me –
[Government]: Objection. Hearsay.
The witness: – that I was going –
The Court: Sustained. Sidebar, counsel.
(Sidebar reported; not transcribed herein.)
10 UNITED STATES V. TORRES
because [Torres] didn’t tie it up [] to acting on that
instruction,” or admitting it.
However, since Torres never drove to the D.M.V. or the
tire shop, the district court found Torres had actually offered
his testimony regarding the inquiries “for the assumption of
the truth, for the assumption they are true to build a third-
party defense . . . .” It concluded, “if [the inquiries] are not
presented for the truth of the matter, or if they don’t prove or
disprove any facts as the defendant suggests, they are not
relevant.” In other words, “[a]s the statement is not offered
to prove any facts or its truth, it’s not relevant.” However,
Torres was permitted to testify that Fernando had borrowed
his truck on four occasions leading up to his arrest.
The other major difference between the first and second
trial was the testimony of a defense expert witness—Efren
Lapuz, a former special agent with the Drug Enforcement
Administration. Although the Government did not present
drug trafficking organization (“DTO”) “structure” or “modus
operandi” evidence in its case-in-chief, Lapuz testified for the
defense about the value of seventy-three kilograms of cocaine
and where DTOs generally purchased the drug. The district
court ruled that Torres had opened the door to DTO “modus
operandi” evidence, and the Government then impeached
Lapuz on cross-examination about prior testimony from an
unrelated trial where he had averred that DTOs rarely utilized
“blind mules”5 because drug traffickers preferred
straightforward transactions—“I pay you, you take the risk.”
The Government also elicited helpful testimony from Lapuz
that because border crossings were a point of risk, DTOs
5
A “blind mule” is a person who transports drugs for a DTO without his
knowledge or consent.
UNITED STATES V. TORRES 11
generally attempted to minimize the number of such
crossings with a single load concealed in the vehicle.
On defense re-direct Lapuz testified that drug cartels
generally did not care if the courier was unknowing. He
testified that cartels like to use a blind mule because it
diffuses the risk of compromising the entire organization if he
is arrested; it is an inexpensive mode of transporting drugs;
and, so long as they can control the transaction on the other
side, the cartel has gained something without losing anything.
On re-cross examination, the Government questioned Lapuz
about whether he had ever heard of a blind mule with a well-
hidden compartment transporting drugs, as opposed to
magnetic compartments on the undercarriage that are easily
removable. Lapuz stated he had not personally seen them,
but had heard about it in the media.
On June 6, 2013, after deliberating for approximately two
and a half hours, the jury found Torres guilty of one count of
importation of cocaine under 21 U.S.C. §§ 952 and 960. The
district court sentenced Torres to 132 months’ imprisonment.
This appeal followed.
II
We review the interpretation of the rules of evidence de
novo, but a district court’s decision to exclude evidence for
abuse of discretion. See United States v. Mitchell, 502 F.3d
931, 964 (9th Cir. 2007); United States v. Castillo, 181 F.3d
1129, 1134 (9th Cir. 1999). In assessing whether a district
court abused its discretion, we first “determine de novo
whether the trial court identified the correct legal rule to
apply to the relief requested.” United States v. Hinkson,
585 F.3d 1247, 1262 (9th Cir. 2009) (en banc). If so, we then
12 UNITED STATES V. TORRES
consider “whether the trial court’s application of the correct
legal standard was (1) illogical, (2) implausible, or
(3) without support in inferences that may be drawn from the
facts in the record.” Id. (internal quotation marks and citation
omitted). “We review de novo whether an evidentiary error
rises to the level of a constitutional violation.” United States
v. Pineda-Doval, 614 F.3d 1019, 1032 (9th Cir. 2010)
(citation omitted).
A
As a general rule, a party is prohibited from introducing
a statement made by an out-of-court declarant when it is
offered at trial to prove the truth of the matter asserted. Fed.
R. Evid. 801(c), 802. For the purposes of hearsay, a
“statement” is defined as “a person’s oral assertion, written
assertion, or nonverbal conduct, if the person intended it as an
assertion.” Fed. R. Evid. 801(a). The Advisory Committee
Note clarifies that the effect of the “statement” definition is
to “exclude from the operation of the hearsay rule all
evidence of conduct, verbal or nonverbal, not intended as an
assertion. The key to the definition [of a statement] is that
nothing is an assertion unless intended to be one.” Fed. R.
Evid. 801 advisory committee’s note to Subdivision (a) 1972
Proposed Rules (emphasis added).
Torres alleges that the district court erred in precluding
his testimony about Fernando’s inquiries because this
evidence does not constitute hearsay. We hold that while
some questions may constitute non-hearsay, where the
declarant intends the question to communicate an implied
assertion and the proponent offers it for this intended
message, the question falls within the definition of hearsay.
UNITED STATES V. TORRES 13
Some of our sister circuits have held that questions or
requests are admissible as non-hearsay because questions are
not intended to assert anything. See, e.g., United States v.
Lewis, 902 F.2d 1176, 1179 (5th Cir. 1990).6 In Lewis, for
example, after a defendant’s drug-related arrest, his pager or
“beeper” went off. Id. The police officer who confiscated
the pager called the number and impersonated the defendant.
Id. The unidentified person asked: “Did you get the stuff?”
and “Where is Dog?” Id. At trial, the district court allowed
the officer to testify to the questions asked by the unidentified
caller over the defendant’s hearsay objections. Id. The Fifth
Circuit determined that “[t]he questions asked by the
unknown caller, like most questions and inquiries, are not
hearsay because they do not, and were not intended to, assert
anything.” Id. (citations omitted). Thus, Lewis held that the
implied assertion contained in the caller’s question (i.e.,
defendant was expecting to receive “stuff”) was not hearsay
6
See also United States v. Rodriguez-Lopez, 565 F.3d 312, 314–15 (6th
Cir. 2009) (“[A] question is typically not hearsay because it does not
assert the truth or falsity of a fact.” (citation omitted)); United States v.
Thomas, 451 F.3d 543, 547–48 (8th Cir. 2006) (“Questions and
commands generally are not intended as assertions, and therefore cannot
constitute hearsay.”); Lexington Ins. Co. v. W. Pa. Hosp., 423 F.3d 318,
330 (3d Cir. 2005) (“Courts have held that questions and inquiries are
generally not hearsay because the declarant does not have the requisite
assertive intent, even if the question conveys an implicit message or
provides information about the declarant’s assumptions or beliefs.”
(citations and quotation marks omitted)); United States v. Oguns, 921 F.2d
442, 449 (2d Cir. 1990) (“Because a question cannot be used to show the
truth of the matter asserted, the dangers necessitating the hearsay rule are
not present.”); United States v. Long, 905 F.2d 1572, 1579–80 (D.C. Cir.
1990) (“While [Defendant’s] criticism of a rigid dichotomy between
express and implied assertions is not without merit, it misses the point that
the crucial distinction under rule 801 is between intentional and
unintentional messages, regardless of whether they are express or
implied.”).
14 UNITED STATES V. TORRES
because the definition of “statement” in Rule 801(a)
“remov[ed] implied assertions from the coverage of the
hearsay rule.” Id. (citation omitted).
Notwithstanding the Fifth Circuit’s broad holding in
Lewis, we think the issue is more nuanced and context
specific. It is widely recognized that the grammatical form of
a verbal utterance does not govern whether it fits within the
definition of hearsay. See 4 Christopher B. Mueller & Laird
C. Kirkpatrick, Federal Evidence, § 8.6, at 57 (4th ed. 2013)
(“For purposes of the hearsay doctrine [] the term ‘assertion’
or ‘statement’ includes questions and imperatives that express
or communicate facts or information about acts, events, or
conditions in the world. Indeed, such formulations of human
expression are as much within the hearsay doctrine as simple
declarative sentences.”); 4 Clifford S. Fishman & Anne T.
McKenna, Jones on Evidence, § 24:13, 168 (7th ed. Supp.
2012) (“An utterance that is in the form of a question can in
substance contain an assertion of fact.” (quotation marks and
citation omitted)).
Other circuits have not foreclosed the possibility that
questions can be classified as hearsay. See, e.g., United
States v. Summers, 414 F.3d 1287, 1299–1300 (10th Cir.
2005). In Summers, police arrested defendant Marvin
Thomas along with three co-defendants on bank robbery and
aiding and abetting charges. Id. at 1293. While being led to
a police car, one of the co-defendants inquired of the arresting
officer: “How did you guys find us so fast?” Id. The co-
defendant pled guilty, while Thomas proceeded to trial. Id.
At trial, the district court allowed the police officer to testify
about the co-defendant’s inquiry under the present-sense
impression exception to the hearsay rule. Id. at 1298; Fed. R.
Evid. 803(1).
UNITED STATES V. TORRES 15
On appeal, Summers reasoned that, unlike the “innocuous
and ambiguous question” in United States v. Jackson, 88 F.3d
845 (10th Cir. 1996)—where a police officer spoke with an
unidentified person paging the defendant’s confiscated
beeper, who asked “Is this Kenny?”—in Thomas’s case the
declarant’s intent was apparent. Summers, 414 F.3d at
1299–1300. “It begs credulity to assume that in positing the
question [the co-defendant] was exclusively interested in
modern methods of law enforcement, including surveillance,
communication, and coordination. Rather, fairly construed
the statement intimated both guilt and wonderment at the
ability of the police to apprehend the perpetrators of the crime
so quickly.” Id. at 1300. Thus, the Tenth Circuit held that
“Thomas ha[d] met his burden of demonstrating that by
positing the question, ‘How did you guys find us so fast?,’
[the co-defendant] intended to make an assertion.” Id.
While we have not previously addressed whether
questions constitute hearsay, we think “the term ‘matter
asserted’ as employed in Rule 801(c) and at common law
includes both matters directly expressed and matters the
declarant necessarily implicitly intended to assert.” 30B
Kenneth W. Graham, Jr. & Michael H. Graham, Federal
Practice & Procedure § 7001 (2014) (emphasis added).
Because there may be instances where a party attempts to
admit hearsay by cloaking statements under the guise of a
question, the focus of the inquiry should be on what the
declarant intended to say, whether implied or directly
asserted. See Fed. R. Evid. 801 advisory committee’s note to
Subdivision (a) 1972 Proposed Rules; cf. Long, 905 F.2d at
1580 (“[T]he crucial distinction under rule 801 is between
intentional and unintentional messages, regardless of whether
they are express or implied.”).
16 UNITED STATES V. TORRES
We hold the district court’s application here of Rule 801
is not without support or “illogical.” See Hinkson, 585 F.3d
at 1262. Fernando asked: Can you take my friend to the
D.M.V.? Torres said no. Fernando asked a second time: Can
you take my friend to the D.M.V.? Torres said no. Fernando
asked a third time: Can you take my friend to a tire shop?
Torres said no. Fernando’s intent in asking for Torres’s truck
on three separate occasions in the span of a week and a half
is apparent: Fernando wanted control of Torres’s truck on the
U.S.-side of the border. In other words, Fernando intended
the implied assertion rather than the express one, and Torres
offered the questions for this intended implied message to
show it was Fernando who was calling the shots and who
unknowingly set him up on the drug importation scheme.
Thus, Torres offered the statements for the truth of the
defense asserted. We hold the district court did not abuse its
discretion in finding that Torres offered Fernando’s inquiries
for the truth of the matter asserted to prove his third-party
culpability defense. Thus, the objections were properly
sustained on hearsay grounds.
B
But even assuming that the district court erred, as Torres
alleges, a defendant must still prove that the error or defect
was prejudicial. See Fed. R. Crim. P. 52(a); see also United
States v. Olano, 507 U.S. 725, 734 (1993) (holding that where
the defendant has made a timely objection to an error, Rule
52(a) applies).7 Under Federal Rule of Criminal Procedure
7
Torres also challenges the district court’s finding that his testimony
relating to Fernando’s inquiries was irrelevant. Fed. R. Evid. 401.
Because we find the district court’s exclusion under the hearsay rule to be
dispositive, we need not reach the issue of relevancy.
UNITED STATES V. TORRES 17
52(a), we engage in a “harmless error” inquiry to determine
whether the error was prejudicial. Olano, 507 U.S. at 734.
Torres, however, argues that the district court’s exclusion of
Fernando’s inquiries were not only prejudicial, but
constitutional in nature because the trial court prevented him
from presenting a complete defense. A constitutional error
under Rule 52(a) heightens the government’s burden of proof:
reversal is warranted unless the error was “harmless beyond
a reasonable doubt.” Compare Neder v. United States,
527 U.S. 1, 7 (1999) (citation and internal quotations marks
omitted), and United States v. Caruto, 532 F.3d 822, 831 (9th
Cir. 2008) (analyzing a constitutional error), with United
States v. Gonzalez-Flores, 418 F.3d 1093, 1099 (9th Cir.
2005) (holding that we reverse a non-constitutional error
unless there is a “fair assurance” of harmlessness, i.e., “it is
more probable than not that the error did not materially affect
the verdict”), and United States v. Edwards, 235 F.3d 1173,
1178 (9th Cir. 2000) (analyzing a non-constitutional error).
“[T]he Constitution guarantees criminal defendants ‘a
meaningful opportunity to present a complete defense.’”
Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (quoting
Crane v. Kentucky, 476 U.S. 683, 690 (1986)). This right
includes, “at a minimum . . . the right to put before a jury
evidence that might influence the determination of guilt.”
Pennsylvania v. Ritchie, 480 U.S. 39, 56 (1987). “When
evidence is excluded on the basis of an improper application
of the hearsay rules, due process concerns are still greater
because the exclusion is unsupported by any legitimate state
justification.” United States v. Lopez-Alvarez, 970 F.2d 583,
588 (9th Cir. 1992) (emphasis in original) (citing Crane,
476 U.S. at 691–92).
18 UNITED STATES V. TORRES
But “not every [evidentiary] error amounts to a
constitutional violation.” United States v. Boulware, 384 F.3d
794, 808 (9th Cir. 2004) (quoting Lopez-Alvarez, 970 F.2d at
588) (internal quotation marks omitted). As Boulware and
Lopez-Alvarez make clear, a defendant must demonstrate the
erroneous exclusion was important to his defense in order to
rise to the level of a constitutional violation. Id. For
example, in Lopez-Alvarez we held that—although the district
court misapplied the hearsay rule by cutting short defense
counsel’s line of questioning furthering a defense theory—the
exclusion did not amount to constitutional error because the
“testimony sought to be adduced would not have added
substantially to the knowledge the jury gained during the
course of the trial.” 970 F.2d at 588.
Torres’s reliance on United States v. Stever to support his
argument that the evidentiary exclusion amounted to
constitutional error is misplaced. 603 F.3d 747 (9th Cir.
2010). In Stever, the defendant was indicted for one count of
conspiracy to, and one count of the underlying crime of,
manufacture of marijuana. Id. at 750. In his defense, Stever
sought to prove that the marijuana found on an isolated corner
of his mother’s 400-acre property was the work of a Mexican
DTO that had recently infiltrated rural Oregon. Id. The
district court barred the Government from arguing that Stever
conspired with a DTO to manufacture marijuana since it had
denied pre-trial discovery regarding Mexican DTOs, but also
ruled sua sponte that it would not permit Stever to put on
third-party culpability evidence regarding Mexican DTOs or
“who else might have been involved.” Id. at 751. The
district court precluded Stever from presenting any defense at
all. Id. at 752. Defense counsel argued that Stever had no
involvement but, given the district court’s ruling, proffered
no affirmative defense, telling the jury only that the
UNITED STATES V. TORRES 19
prosecution had the burden of proof. Id.; see also Pineda-
Doval, 614 F.3d at 1032–33 (finding that the exclusion of the
evidence “effectively denied the defendant the only argument
that he had”).
Here, the district court did not preclude Torres from
proffering an affirmative defense. During closing arguments,
Torres’s counsel argued that Fernando or the mechanic
probably planted the drugs in Torres’s truck. Indeed, Torres
testified that Fernando had previously borrowed his truck on
four occasions, that Fernando knew where Torres lived, knew
where Torres parked his truck, and had the opportunity to
make a spare key. Torres also testified about the Tijuana
mechanic who kept Torres’s pickup for a month and had
offered to purchase the truck from Torres after the botched
paint job. In other words, additional information about
Fernando’s requests to take a friend to the D.M.V. or pick up
tires from a San Diego tire shop “would not have added
substantially to the knowledge the jury gained during the
course of the trial.” Lopez-Alvarez, 970 F.2d at 588. Thus,
even assuming the district court erred in sustaining the
hearsay objection, we find the exclusion did not amount to
constitutional error.
C
Finally, the exclusion of Torres’s testimony about
Fernando’s requests would also have been harmless under the
non-constitutional error standard. A non-constitutional error
requires reversal unless there is a “fair assurance” of
harmlessness, or stated another way, unless “it is more
probable than not that the error did not materially affect the
verdict.” Seschillie, 310 F.3d at 1214 (quoting United States
v. Morales, 108 F.3d 1031, 1040 (9th Cir. 1997) (en banc))
20 UNITED STATES V. TORRES
(internal quotation marks omitted). “Review for harmless
error requires not only an evaluation of the remaining
incriminating evidence in the record, but also the most
perceptive reflections as to the probabilities of the effect of
error on a reasonable trier of fact.” United States v. Bishop,
264 F.3d 919, 927 (9th Cir. 2001) (citation and internal
quotation marks omitted); United States v. Oaxaca, 233 F.3d
1154, 1158 (9th Cir. 2000) (noting “the harmlessness of an
error is distinct from evaluating whether there is substantial
evidence to support a verdict”).
Torres argues that even under the non-constitutional
harmless error standard, we should find the error prejudicial
simply by comparing what happened in the first trial with
Fernando’s inquiries (hung jury after a day and a half of
deliberations) and what occurred without it in the second trial
(guilty verdict in two hours and thirty minutes).8 But the
record shows another major difference between the first and
second trial—the testimony of defense expert witness and
former DEA special agent, Efren Lapuz.
8
Torres argues that the improperly excluded evidence “would have
bolstered [the] defense” where the “government’s case was hardly
overwhelming.” United States v. Crosby, 75 F.3d 1343, 1349 (9th Cir.
1996). While it may be true that the inquiries would have added to
Torres’s defense theory, the Government’s case here was stronger than in
Crosby, especially considering the DTO “modus operandi” evidence
introduced at the second trial. See id. at 1349–50 (concluding that the
victim’s testimony that defendant punched her was undercut by the fact
that she was inebriated the night of the assault, continuously changed her
story, and the government proffered inconclusive blood tests).
Furthermore, in Crosby, the district court completely precluded a third-
party culpability defense when it prevented defendant from introducing
evidence of the victim’s husband’s prior domestic violence. Id.
UNITED STATES V. TORRES 21
While the Government did not present DTO “structure”
or “modus operandi” evidence in its case-in-chief, the court
ruled that Torres opened the door to such evidence in calling
Lapuz to testify about the value of seventy-three kilograms of
cocaine and how DTOs purchase and import the drugs into
the United States. Consequently, the Government was able
to cross-examine Lapuz who had testified about the
uncommon use of “blind mules” because drug traffickers
preferred straightforward transactions—“I pay you, you take
the risk.”
While Lapuz also testified about the advantages of using
a blind mule in importing cocaine, the strategic decision to
call an expert witness and then inadvertently open the door to
DTO “modus operandi” evidence undercut Torres’s defense
that he was an unknowing courier in two ways: (1) the
defense expert’s testimony highlighted the rarity of using
blind mules in the DTO’s importation business; and (2) it
allowed the Government to ask the expert witness about a
recent case where a DTO had easily attached drugs under the
vehicle of an unknowing courier using magnets. The
Government effectively contrasted the easily removable
magnets with Torres’s well-hidden compartment, where the
truck bed had to be raised in order to hold the storage box and
to extract the drugs. None of this “modus operandi” evidence
was before the first jury.
Considering “the probabilities of the effect of error on a
reasonable trier of fact” in the context of the remaining
incriminating evidence, Bishop, 264 F.3d at 927, we find “it
is more probable than not that the error did not materially
affect the verdict,” Seschillie, 310 F.3d at 1214. It was
undisputed at both trials that CBP officers eventually
extracted seventy-three kilograms of cocaine from a truck
22 UNITED STATES V. TORRES
registered and driven by Torres. Even though it was disputed
at trial whether the modifications would have been visible
from the rear of the truck to anyone standing behind it, the
government proffered sufficient circumstantial evidence of
knowledge. To prove knowledge, the Government introduced
testimony that Torres’s hands were shaking as he handed over
the keys during secondary inspection. Two days prior to his
arrest, another officer also testified about Torres’s
“abnormal” behavior. Less weighty but relevant, the
Government also introduced evidence that Torres stopped
briefly during the x-ray, creating a “no scan,” and then inched
toward the exit until an officer told him to park his pickup in
secondary.
Unique to the second trial, the Government chipped away
at Torres’s third-party culpability defense because—as Lapuz
testified—it was unlikely that a DTO would expose a load of
seventy-three kilograms of cocaine to multiple border
crossings as this was a point of risk DTOs sought to
minimize. Here, because Torres testified that Fernando last
borrowed his truck about a week and a half prior to his arrest
and Torres crossed the border on three occasions prior to his
arrest, but after Fernando returned the truck, Lapuz’s
testimony about DTOs using blind mules made Torres’s
third-party culpability defense less credible. The exclusion
of Fernando’s inquiries, while arguably relevant, became less
probative at the second trial with the introduction of the DTO
“modus operandi” evidence. Furthermore, the district court
could and did properly exclude Fernando’s out-of-court
statements on hearsay grounds. But even if the district court
erred in doing so, any error in excluding Torres’s testimony
UNITED STATES V. TORRES 23
about Fernando’s statements was not constitutional and was
harmless.
AFFIRMED.