Richards v. Richards

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

NATIONWIDE LIFE INSURANCE 
COMPANY,
Plaintiff-Counterdefendant,
v.
No. 06-56562
ANGELINA RICHARDS,
D.C. No.
Defendant-Counterclaimant-
Appellant,  CV 02-7583 CAS
(RNBx)
and
OPINION
KEITH RICHARDS, Guardian Ad
Litem for BRYCE RICHARDS and
KENDALL RICHARDS,
Defendant-Crossclaimant-Appellee.

Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding

Argued and Submitted
May 6, 2008—Pasadena, California

Filed August 28, 2008

Before: Kim McLane Wardlaw and Sandra S. Ikuta,
Circuit Judges, and Jeremy Fogel, District Judge*

Opinion by Judge Fogel

*The Honorable Jeremy Fogel, United States District Judge for the
Northern District of California, sitting by designation.

11867
11872 RICHARDS v. RICHARDS

COUNSEL

Richard L. Garrigues (argued) and Varoujan Nalbandian, Tor-
rance, California, for the appellant.

Richard E. Haskin (argued), Gibbs, Giden, Locher & Turner
LLP, Los Angeles, California, for the appellee.

OPINION

FOGEL, District Judge:

Nationwide Life Insurance Company (“Nationwide”)
brought this non-statutory interpleader action to resolve con-
flicting claims to the proceeds of a one million dollar insur-
ance policy written on the life of Bryan Richards (“Bryan”),
who was murdered on December 21, 2001. Bryan’s wife,
 RICHARDS v. RICHARDS 11873
Angelina Richards (“Angelina”), appeals the district court’s
judgment against her and in favor of Bryan’s brother, Keith
Richards (“Keith”), in his role as guardian ad litem for Bryce
and Kendall Richards (“Bryce” and “Kendall”), the two minor
children of Bryan and Angelina. Following a bench trial, the
district court made a factual determination that Angelina con-
spired in, aided, and abetted Bryan’s murder, and thus is dis-
qualified from receiving any proceeds of the life insurance
policy under California law. Angelina asserts error in the dis-
trict court’s treatment of her pretrial assertion of the Fifth
Amendment privilege against self-incrimination and in its
admission of the deposition testimony of witness Gerald Stre-
bendt. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.

I. BACKGROUND

Angelina and Bryan married in 1998. In 2001, Bryan
obtained a life insurance policy from Nationwide in the
amount of one million dollars, effective in September of that
year. The policy names Angelina as the primary beneficiary
and names Bryce and Kendall as alternate beneficiaries.
Bryan was murdered on December 21, 2001 by means of non-
ligature manual strangulation. A state court jury subsequently
convicted Rafiel Torre (“Torre”) of the murder; Torre’s
appeal of that conviction is pending.

Angelina sought an advance on the policy proceeds within
days after Bryan’s death, made a formal claim for the pro-
ceeds on January 30, 2002, and received a $50,000 advance
on March 5, 2002. On September 27, 2002, pursuant to Rule
22 of the Federal Rules of Civil Procedure, Nationwide filed
its complaint in interpleader in the district court. The com-
plaint names Angelina, Bryce and Kendall as defendants.
Keith subsequently was appointed guardian ad litem for Bryce
and Kendall.
11874 RICHARDS v. RICHARDS
Angelina filed a cross-claim against Keith and a counter-
claim against Nationwide, seeking a declaration that she is
entitled to the proceeds as the primary named beneficiary
under the policy. Keith filed a cross-claim against Angelina,
seeking a declaration that Bryce and Kendall are entitled to
the proceeds, and seeking return of the $50,000 that Nation-
wide advanced to Angelina. Keith asserted that Angelina con-
spired in Bryan’s murder, thus disqualifying herself from
receiving any proceeds of the policy, and that as a result the
policy benefits are payable to Bryce and Kendall as the alter-
nate named beneficiaries.1 Nationwide deposited the policy
proceeds into the district court’s registry and was granted
judgment in interpleader.

The district court conducted a bench trial and thereafter
issued Findings of Fact and Conclusions of Law (“FFCL”) in
which it determined that Angelina did conspire in, aid, and
abet Bryan’s murder, and thus is disqualified from receiving
any proceeds from the policy. The district court entered judg-
ment against Angelina and for Keith as guardian ad litem for
Bryce and Kendall. The FFCL contain a lengthy narrative
describing the events leading up to Bryan’s murder and the
evidence presented at trial, summarized as follows:

Angelina met Torre at a nightclub in July or August 2001.
Torre competed professionally in hand-to-hand mixed martial
arts and also was a martial arts instructor. Sometime thereaf-
ter, Angelina and Torre became lovers. Angelina testified at
trial that her relationship with Torre did not become romantic
until after Bryan’s death. Several other witnesses testified that
by the fall of 2001 Angelina’s marriage was strained, that
1
California Probate Code § 252 provides that: “[a] named beneficiary of
a bond, life insurance policy, or other contractual arrangement who feloni-
ously and intentionally kills the principal obligee or the person upon
whose life the policy is issued is not entitled to any benefit under the bond,
policy, or other contractual arrangement, and it becomes payable as
though the killer had predeceased the decedent.” Cal. Prob. Code § 252.
 RICHARDS v. RICHARDS 11875
Bryan spoke of divorcing her, and that Angelina and Torre
were seen together regularly, acting in a manner that sug-
gested they were having an affair. In September 2001 Ange-
lina loaned Torre $10,000, and in October 2001 she co-signed
Torre’s lease for commercial space to start a martial arts stu-
dio. The property manager testified that Bryan was not a party
to the negotiations or the lease, and that Angelina and Torre
never mentioned Bryan. Angelina testified that she and Bryan
had problems but were committed to staying married.

At approximately 11:00 p.m. on December 21, 2001, Ange-
lina called Keith’s wife, Lisa Richards (“Lisa”), and stated
that she did not know where Bryan was. Angelina called the
police the following morning, December 22, to report Bryan
missing. Angelina also called Keith and told him that Bryan
had planned to go to a warehouse to pick up Christmas gifts
stored there. Angelina asked Keith to check the warehouse.
Keith did so, but found no evidence that Bryan had been there
recently. Sometime on the afternoon of December 22, Bryan’s
brothers, Keith and Matthew Richards (“Matthew”), visited
Angelina at home. Angelina was drinking wine with a female
friend. Keith testified that he noticed Bryan’s insurance policy
binder on the kitchen table; that he asked Angelina if she had
found Bryan’s life insurance policy, and she said that she had
not; and that later that evening the policy binder was moved
to the top of the washing machine in the laundry room, where
it was partially hidden under a pile of clothes.

Keith testified that at some point he asked Angelina where
Bryan’s white utility truck was, and that Angelina said Torre
had it. Bryan had let Torre drive the truck in the past. At
Keith’s request, Angelina called Torre and asked him to bring
the truck to the house. When Torre arrived, Matthew looked
in the truck’s lock box for Bryan’s Glock handgun, which
normally was kept there, but the gun was gone. Keith testified
that while he and Matthew were outside near the truck, Ange-
lina and Torre spoke to each other in the doorway of the
house. Torre left with Bryan’s utility truck, after which Ange-
11876 RICHARDS v. RICHARDS
lina stated for the first time that Bryan had gone to the store
to buy firewood. According to Keith, Angelina asked him to
search for Bryan at nearby grocery stores. Keith and Matthew
left the house at about 9:00 p.m. to do so. Approximately
twenty minutes later, they discovered Bryan’s other pick-up
truck in the parking lot of a nearby Albertson’s market.
Bryan’s body was in the bed of the truck. He had been stran-
gled.

On the following morning, December 23, sheriff’s detec-
tives interviewed Angelina, other members of Bryan’s family,
and Torre. When asked about life insurance, Angelina stated
that Bryan had life insurance but that she did not know the
amount of the death benefit. Angelina told the detectives that
at one time Bryan had been involved with a man named
Thomas Esparza (“Esparza”) in a scheme involving the
receipt and sale of stolen medical equipment, and that both
Bryan and Esparza had been convicted of crimes arising out
of that scheme. Angelina stated that after his release from
prison earlier in the year, Esparza frequently had called the
Richards’ home, had attempted to extort money from Bryan,
and had argued with Bryan. Torre likewise told the detectives
about Bryan’s conflict with Esparza. Neither Angelina nor
Torre told the detectives about their relationship.

Sometime later that day, or within a few days, Angelina
spoke with the insurance agent who sold Bryan the policy,
Phil Beh (“Beh”), and inquired whether the death benefit was
$500,000 or $1,000,000. Beh testified that Angelina called
him, while Angelina testified that Beh called her. Beh further
testified that he and Angelina spoke several times in the days
after Bryan’s death, and that Angelina asked for an advance
on the policy’s benefits. Beh characterized the promptness of
Angelina’s inquiry as surprising, atypical and odd. Beh also
testified that Angelina was calm and unemotional during their
conversations. Angelina made a formal claim for the policy
proceeds on January 30, 2002, and received a $50,000
advance on March 5, 2002. Six days later, on March 11,
 RICHARDS v. RICHARDS 11877
Angelina purchased a vacation package to Cancun, Mexico
for herself and Torre. Witnesses testified that Torre constantly
was at Angelina’s home beginning approximately two weeks
after Bryan’s death.

Lisa testified that she and Matthew’s wife, Linda Richards
(“Linda”), invited Angelina out for the evening of February
16, 2002, Bryan’s birthday. According to Lisa, Angelina
stated on that occasion that Bryan was a drug dealer, that the
sheriff’s department had recovered the drug “ecstacy” in
Bryan’s pick-up truck, and that there was an ongoing investi-
gation into a possible link between Bryan’s drug activities and
his death. Sheriff’s detectives testified that no drugs were
found in Bryan’s truck and that they never suspected Bryan
of dealing drugs.

A. Deposition Testimony Of Gerald Strebendt

Gerald Strebendt (“Strebendt”), a close personal friend of
Torre, did not testify in person at the trial. The district court
admitted his prior deposition testimony over Angelina’s
objection. The court found that Strebendt resided in North
Bend, Oregon, and thus that his deposition testimony was
admissible under former Rule 32(a)(3)(B) of the Federal
Rules of Civil Procedure, now Rule 32(a)(4)(B).2 That provi-
sion states in relevant part that a party may use the deposition
of a witness at a hearing or trial if the court finds “that the
witness is more than 100 miles from the place of hearing or
trial.” Fed. R. Civ. P. 32(a)(4)(B) (formerly Fed. R. Civ. P.
32(a)(3)(B)). The court rejected as unsupported by the evi-
dence Angelina’s assertion that Strebendt in fact resided in
Los Angeles, California, and thus was not subject to the appli-
cable provision.
2
Rule 32 was amended effective December 1, 2007 as part of a general
restyling of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 32 &
note. The provision relied upon by the district court now appears at Rule
32(a)(4)(B) without substantive change.
11878 RICHARDS v. RICHARDS
Strebendt is a professional fighter and martial arts instruc-
tor, and a former U.S. Marine sniper and sniper instructor. He
was deposed on February 13 and 14, 2004, at which time he
testified that he met Angelina through Torre in early Septem-
ber 2001, and that later the same month he witnessed Ange-
lina and Torre get Bryan intoxicated so that the two of them
could spend the evening together without Bryan’s knowledge.
Angelina testified at trial that the idea to get Bryan intoxicated
was proposed by others, and that while she drove Torre to his
car after Bryan went home, she did not have a sexual encoun-
ter with Torre that night.

During his deposition, Strebendt testified that Angelina told
him that she and Torre were having an affair. Strebendt also
testified that he saw Angelina give Torre $10,000 in cash, and
that shortly afterward Torre said the following: “Angelina just
wishes she could be rid of Bryan, she wishes he was just gone
. . . and she’s even willing to pay somebody $10,000 to do it
. . . and she knows you [Strebendt] were a sniper in the
Marines and she wanted to know if you’re interested . . . .”
Strebendt stated that he told Torre that he would not kill
Bryan.

According to Strebendt, Torre called him several times in
late December and early and mid-January, stated that Bryan
had been killed, and emphasized his need to see Strebendt in
person. Strebendt testified that when he met with Torre in
early or mid-January 2002, Torre admitted to killing Bryan
but claimed that it was self-defense. Torre said that Bryan
accused him of having an affair with Angelina and pointed a
Glock handgun at him. Torre claimed that he knocked the gun
from Bryan’s hands and applied a choke hold known in Bra-
zilian Ju-Jitsu as “Mata Leon,” or “To Kill the Lion.” Accord-
ing to Strebendt, Torre stated that he just wanted to render
Bryan unconscious, but that he felt something crush in
Bryan’s neck, and that when he released the hold Bryan was
dead.3 Torre asked Strebendt to provide an alibi, which Stre-
3
The medical examiner testified that although Bryan’s hyoid bone
(located in the throat) was broken, the break did not cause his death. The
 RICHARDS v. RICHARDS 11879
bendt refused to do, although Strebendt did agree to keep
Bryan’s handgun. Strebendt stored the gun at his home in
Oregon.

Strebendt subsequently contacted sheriff’s detectives,
recounted the conversation with Bryan, and gave them the
gun. Strebendt agreed to make recorded telephone calls to Ange-
lina.4 On December 11, 2003, which was the first time Stre-
bendt had spoken with Angelina in approximately two years,
Strebendt told Angelina that “[t]he gun that Rafiel gave me
has been recovered,” to which Angelina responded that she
did not know what Strebendt was talking about and that he
had better talk to Torre. On December 12, 2003, during their
second conversation, Strebendt told Angelina that Torre had
admitted to killing Bryan in self-defense, had given Strebendt
Bryan’s gun, and had told Strebendt that Angelina would pay
$10,000 for someone to kill Bryan. Angelina responded:
“That’s ridiculous. I would never say that.” Angelina did not
call the sheriff’s department or any other authorities to report
the conversation. When questioned by sheriff’s deputies the
following day, Angelina admitted that she had spoken to Stre-
bendt the previous evening, but said the only matter discussed
was whether Torre was home. When asked how Strebendt
came to possess Bryan’s gun, Angelina said that she did not
know.

At trial, Angelina raised a hearsay objection to Strebendt’s
testimony regarding Torre’s statements. The district court
made a factual finding that Angelina and Torre were engaged
in a conspiracy to murder Bryan, and that Torre’s statements

examiner testified that Bryan died of non-ligature manual strangulation,
and opined that a choke hold must have been applied to Bryan’s neck for
several minutes. There were no signs of struggle or marks on Bryan’s
body consistent with defense wounds.
4
Strebendt also made recorded telephone calls to Torre, which are not
referenced in the district court’s FFCL.
11880 RICHARDS v. RICHARDS
as reported by Strebendt thus were admissible as non-hearsay
statements of a co-conspirator under Rule 801(d)(2)(E) of the
Federal Rules of Evidence.

On December 17, 2003, Torre was arrested and charged
with Bryan’s murder. Following a jury trial, Torre was con-
victed of murder in the first degree for killing Bryan with the
intent to profit from the policy proceeds.

B. Angelina’s Assertion Of The Fifth Amendment
Privilege

Angelina asserted the Fifth Amendment privilege against
self-incrimination at Torre’s criminal trial and declined to tes-
tify. She likewise invoked the privilege during her deposition
taken in the instant lawsuit, refusing to answer the following
seven questions:

a. “Did you ever express to Rafiel Torre a desire
to, quote, get rid of Brian [sic]?”

b. “[D]id you ever tell Rafiel to kill Brian [sic]?”

c. “Prior to Brian’s [sic] murder, did you ever tell
anybody that you and Rafiel were going to move
away together?”

d. “[D]id you have any involvement at all in Brian
[sic] Richards’ murder?”

e. “Did you ever proposition Rafiel to kill Brian
[sic] Richards?”

f. “Did you ever ask Gerald Strebendt to kill Brian
[sic] Richards?”

g. “Did you ever ask Rafiel Torre to provide you
with an alibi because you had killed Brian [sic]
Richards?”
 RICHARDS v. RICHARDS 11881
The district court precluded Angelina from testifying at trial
as to her involvement, or lack thereof, in Bryan’s murder
because she had refused to answer questions about this sub-
ject during her deposition. Angelina was permitted to testify
about all other subjects. The district court also exercised its
discretion to draw an adverse inference from Angelina’s
assertion of the Fifth Amendment privilege against self-
incrimination.

II. STANDARDS OF REVIEW

“A district court’s ruling precluding testimony is an eviden-
tiary ruling that is reviewed for abuse of discretion.” United
States v. Lynch, 437 F.3d 902, 913 (9th Cir. 2006) (citing
United States v. Ravel, 930 F.2d 721, 726 (9th Cir. 1991)).
We also review for abuse of discretion a district court’s deci-
sion to draw an adverse inference from a party’s invocation
in a civil case of the Fifth Amendment privilege against self-
incrimination. SEC v. Cherif, 933 F.2d 403, 417 (7th Cir.
1991) (applying abuse of discretion standard); see also SEC
v. Colello, 139 F.3d 674, 677 (9th Cir. 1998) (noting that a
district court has discretion whether to draw an adverse infer-
ence from the invocation in a civil case of the privilege
against self-incrimination).

We review for abuse of discretion a district court’s decision
to admit deposition testimony under Rule 32(a)(4)(B) of the
Federal Rules of Civil Procedure. See Garcia-Martinez v. City
& County of Denver, 392 F.3d 1187, 1191-92 (10th Cir.
2004). Finally, “[w]e review for an abuse of discretion the
district court’s decision to admit coconspirators’ statements,
and review for clear error the district court’s underlying fac-
tual determinations that a conspiracy existed and that the
statements were made in furtherance of that conspiracy.”
United States v. Shryock, 342 F.3d 948, 981 (9th Cir. 2003)
(citing United States v. Bowman, 215 F.3d 951, 960 (9th Cir.
2000)).
11882 RICHARDS v. RICHARDS
III. DISCUSSION

A. Preclusion Of Angelina’s Testimony

At trial, Angelina attempted to testify that she did not have
anything to do with Bryan’s murder, but the district court pre-
cluded any testimony on this subject on the ground that Ange-
lina had asserted the Fifth Amendment privilege against self-
incrimination when asked during her deposition about her
involvement in the murder.5 The district court found expressly
that Keith was prejudiced by Angelina’s refusal to answer
deposition questions about this subject.

[1] Trial courts generally will not permit a party to invoke
the privilege against self-incrimination with respect to deposi-
tion questions and then later testify about the same subject
matter at trial. See FTC v. Sharp, 782 F. Supp. 1445, 1452 (D.
Nev. 1991). The Federal Rules of Civil Procedure “contem-
plate . . . ‘full and equal discovery’ . . . so as to prevent sur-
prise, prejudice and perjury” during trial. Id. “[B]ecause the
privilege may be initially invoked and later waived at a time
when an adverse party can no longer secure the benefits of
discovery, the potential for exploitation is apparent.” SEC v.
Graystone Nash, Inc., 25 F.3d 187, 190 (3d Cir. 1994). The
rights of the other litigant must be taken into consideration
“when one party invokes the Fifth Amendment during discov-
ery, but on the eve of trial changes his mind and decides to
waive the privilege. At that stage, the adverse party — having
conducted discovery and prepared the case without the benefit
of knowing the content of the privileged matter — would be
placed at a disadvantage.” Id. at 191; see also Gutierrez-
Rodriguez v. Cartagena, 882 F.2d 553, 577 (1st Cir. 1989)
(“A defendant may not use the fifth amendment to shield her-
self from the opposition’s inquiries during discovery only to
impale her accusers with surprise testimony at trial.”). “The
5
The district court struck Angelina’s response when her attorney asked
whether she was involved in the planning of Bryan’s death.
 RICHARDS v. RICHARDS 11883
opportunity to combat the newly available testimony might no
longer exist, a new investigation could be required, and
orderly trial preparation could be disrupted.” Graystone Nash,
25 F.3d at 191. “ ‘Because the privilege is constitutionally
based,’ ” however, “the competing interests of the party
asserting the privilege, and the party against whom the privi-
lege is invoked must be carefully balanced,” and “ ‘the detri-
ment to the party asserting it should be no more than is
necessary to prevent unfair and unnecessary prejudice to the
other side.’ ” Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d
1258, 1265 (9th Cir. 2000) (quoting Graystone Nash, 25 F.3d
at 192) (addressing propriety of adverse inference as a conse-
quence of asserting Fifth Amendment privilege during pretrial
deposition).

Angelina argues, as she did at trial, that Keith was not prej-
udiced by her assertion of the privilege at her deposition. She
asserts that during the investigation of Bryan’s murder, she
answered all questions asked by the investigating officers,
including questions as to whether she was involved in Bryan’s
murder, and that she denied any involvement unequivocally.
She also contends that Keith knew of those denials, and that
her deposition testimony on the subject would not have pro-
vided any additional useful information. She further argues
that her statements to the officers investigating Bryan’s death
were sufficient to waive her Fifth Amendment privilege, and
that Keith could have filed a motion to compel her to answer
deposition questions regarding the issue of her involvement,
or lack of involvement, in Bryan’s death.

[2] Angelina’s arguments are not persuasive. Many of the
interviews with investigating officers occurred shortly after
Bryan’s death in December 2001, approximately four years
prior to the deposition. During those years, a number of sig-
nificant events occurred that might have altered Angelina’s
testimony and certainly would have been proper subjects for
inquiry during the deposition. Most significantly, Torre was
arrested and convicted of Bryan’s murder, and Strebendt’s
11884 RICHARDS v. RICHARDS
statements describing the conspiracy between Torre and
Angelina came to light. Angelina was not questioned about
these events in any proceeding, as she did not testify at
Torre’s criminal trial and declined to answer questions regard-
ing her alleged involvement in the murder during her deposi-
tion in the instant case. Under these circumstances, we
conclude that the district court’s finding of prejudice was war-
ranted.

[3] Moreover, Angelina’s statements to investigating offi-
cers in the days following Bryan’s death did not waive her
privilege against self-incrimination with respect to the later
criminal proceeding against Torre or with respect to the
instant civil proceeding. See United States v. Licavoli, 604
F.2d 613, 623 (9th Cir. 1979) (holding that voluntary testi-
mony before a grand jury did not waive the privilege at trial,
because “[i]t is settled that a waiver of the Fifth Amendment
privilege is limited to the particular proceeding in which the
waiver occurs”) ; see also McCarthy v. Arndstein, 262 U.S.
355, 357—59 (1923) (holding that when a witness’s previous
disclosure is not an actual admission of guilt or incriminating
facts, the witness subsequently may assert the privilege and
decline to testify as to matters that might incriminate him).

[4] Notably, the district court precluded Angelina from tes-
tifying only as to the subject as to which she asserted the Fifth
Amendment privilege, that is, her involvement (or lack
thereof) in Bryan’s murder. The court’s order was narrowly
tailored to impose upon Angelina only that detriment neces-
sary to prevent unfair prejudice to Keith. Accordingly, the
order did not constitute an abuse of discretion.

[5] Even if we were to find that the district court did err in
precluding a portion of Angelina’s testimony, any such error
was harmless. When reviewing the effect of an evidentiary
ruling in a civil case, we presume prejudice absent a showing
that it is more probable than not that the same verdict would
have been reached without the erroneous ruling. Obrey v.
 RICHARDS v. RICHARDS 11885
Johnson, 400 F.3d 691, 701 (9th Cir. 2005) (citing Haddad v.
Lockheed Cal. Corp., 720 F.2d 1454, 1459 (9th Cir. 1983)).
Here, the district court made an explicit adverse credibility
finding with respect to Angelina’s assertion that she did not
know the amount of the policy’s death benefit, and noted sev-
eral instances in which Angelina’s testimony conflicted with
other evidence. The court also cited to more than a dozen
facts in support of its determination that Angelina was
involved in Bryan’s murder. Based upon this record, we con-
clude that it is more probable than not that the district court
would have reached the same verdict even if Angelina had
testified.

B. Adverse Inference

[6] In addition to precluding Angelina from testifying with
respect to her involvement in Bryan’s murder, the district
court drew an adverse inference from Angelina’s assertion of
the Fifth Amendment as to this subject. When a party asserts
the privilege against self-incrimination in a civil case, the dis-
trict court has discretion to draw an adverse inference from
such assertion. See Glanzer, 232 F.3d at 1264 (citing Colello,
139 F.3d at 677). A decision not to draw the inference
“ ‘poses substantial problems for an adverse party who is
deprived of a source of information that might conceivably be
determinative in a search for the truth.’ ” Id. (quoting Gray-
stone Nash, 25 F.3d at 190). However, “under certain circum-
stances . . . an adverse inference from an assertion of one’s
privilege not to reveal information is too high a price to pay.”
Id. at 1265. “The tension between one party’s Fifth Amend-
ment rights and the other party’s right to a fair proceeding is
resolved by analyzing each instance where the adverse infer-
ence was drawn, or not drawn, on a case-by-case basis under
the microscope of the circumstances of that particular civil lit-
igation.” Id. (citing Graystone Nash, 25 F.3d at 192). The
inference may not be drawn “unless there is a substantial need
for the information and there is not another less burdensome
way of obtaining that information.” Id. (citing Serafino v.
11886 RICHARDS v. RICHARDS
Hasbro, Inc., 82 F.3d 515, 518-19 (1st Cir. 1996). The district
court must determine “whether the value of presenting [the]
evidence [is] substantially outweighed by the danger of unfair
prejudice” to the party asserting the privilege. Id. at 1266 (cit-
ing Fed. R. Evid. 403; Brink’s Inc. v. City of New York, 717
F.2d 700, 710 (2d Cir. 1983)). Moreover, the inference may
be drawn only when there is independent evidence of the fact
about which the party refuses to testify. Id. at 1264.

Angelina argues that there was no substantial need for her
deposition testimony as to her involvement in Bryan’s mur-
der; that in any event she offered trial testimony on this sub-
ject; that there is no independent evidence of her involvement
in the murder; and that the adverse inference constituted a
double penalty for her legitimate assertion of her privilege
against self-incrimination, because she already was precluded
from testifying as to her alleged involvement.

[7] The district court found explicitly that there was a sub-
stantial need for Angelina’s testimony with respect to the
deposition questions she refused to answer, because those
questions went to the central question in this case, which was
whether Angelina asked Torre to murder Bryan or had any
other involvement in his death. As discussed previously,
Angelina asserts that she told investigators that she had no
involvement in Bryan’s death, and that obviously she would
have said the same thing had she testified. Angelina argues
that under these circumstances Keith was not deprived of any
information necessary to litigate this case. Angelina’s argu-
ment ignores the fact that the deposition questions at issue
went beyond a simple, “did you conspire to kill your hus-
band?” For example, one question asked whether before the
murder Angelina told others that she and Torre were going to
move away together. Another asked whether Angelina ever
told Torre that she wanted to be rid of Bryan. The responses
to these questions are not apparent from the record, and in fact
there are conflicts in the evidence as to the status of Angeli-
 RICHARDS v. RICHARDS 11887
na’s relationships with Bryan and with Torre. Keith was enti-
tled to pursue these avenues of inquiry.

With respect to Angelina’s offer of trial testimony on these
subjects, the district court was within its discretion to preclude
such testimony on the ground of prejudice to Keith, as dis-
cussed above. Although Angelina had offered bare denials of
her involvement during the investigation of Bryan’s 2001
murder, by the time of her 2005 deposition a number of sig-
nificant new facts had come to light, including Torre’s crimi-
nal conviction for the murder and Strebendt’s statements
regarding Angelina’s involvement.

With respect to the requirement of independent evidence of
Angelina’s involvement in the murder, the district court’s
FFCL list numerous facts and pieces of evidence, in addition
to Strebendt’s testimony, in support of the court’s finding that
Angelina conspired in, aided, and abetted Bryan’s murder: (1)
that Bryan possessed a policy with a one million dollar death
benefit; (2) Angelina’s knowledge of the death benefit; (3)
Angelina’s affair with Torre; (4) that Angelina and Torre
leased a commercial building together without Bryan’s
knowledge or participation; (5) Angelina’s knowledge that
her marriage might end in divorce; (6) evidence that Torre
murdered Bryan; (7) that Angelina and Torre initially con-
cealed their affair from the detectives investigating Bryan’s
death; (8) Angelina’s misrepresentations to sheriff’s detec-
tives regarding her knowledge of the policy; (9) Angelina’s
query to Beh within days after Bryan’s murder as to the
amount of the death benefit; (10) that Angelina’s affair with
Torre continued after Bryan’s murder; (11) that Angelina pur-
chased the Cancun vacation package for herself and Torre six
days after receiving the $50,000 advance on the policy bene-
fits; (12) Angelina’s lies to sheriff’s detectives regarding her
December 2003 conversations with Strebendt; and (13) the
adverse inference drawn from Angelina’s invocation of the
Fifth Amendment right against self-incrimination. This direct
11888 RICHARDS v. RICHARDS
and circumstantial evidence satisfies the requirement of inde-
pendent evidence of Angelina’s involvement in the murder.

[8] Angelina argues that the district court failed to consider
evidence that she was not involved in the murder, citing to the
transcript of a telephone call Strebendt made to Torre at the
behest of investigating officials. In that call, Torre unequivo-
cally denied that Angelina wanted Bryan killed or knew about
Torre’s involvement. It is true that the district court did not
address this particular piece of evidence. However, it did
address at length other evidence and arguments made by
Angelina. For example, it addressed Angelina’s argument that
Bryan had purchased expensive gifts for her and paid for her
plastic surgery, and that this conduct was inconsistent with the
theory that he was contemplating divorce. It also noted Ange-
lina’s contention that Torre, as Angelina’s lover, obviously
would have been a prime suspect in Bryan’s murder, and that
to contend that she would have conspired with Torre under
those circumstances is to impute to her an improbable degree
of stupidity. The district court clearly considered the record as
a whole, and found that the totality of the evidence supported
a conclusion that Angelina was involved in Bryan’s murder.
Reaching such a conclusion on this record was not an abuse
of discretion.

[9] Angelina claims that she was subjected to a double pen-
alty for a legitimate exercise of her Fifth Amendment privi-
lege, first by being precluded from testifying at trial that she
did not have anything to do with Bryan’s murder, and then by
an adverse inference that she did participate in Bryan’s mur-
der because of her lack of testimony as to this point. While
Angelina’s “piling on” argument has some appeal, we con-
clude that given the state of the evidence the district court did
not abuse its discretion in imposing both sanctions. As is dis-
cussed above, the district court was well within its discretion
to exclude Angelina’s testimony as to her involvement, or
lack thereof, in Bryan’s murder. Faced with an absence of any
testimony from Angelina on the central issue in the case, the
 RICHARDS v. RICHARDS 11889
district court was entitled to draw the adverse inference. The
court observed appropriately that because the case was tried
to the court rather than a jury, there was no danger that the
adverse inference would be given undue weight.

[10] We caution that what Angelina characterizes as a
“double penalty” may be too extreme a sanction in some
cases, and that district courts should be hesitant to impose it
absent compelling circumstances. That said, we cannot say
that the district court in this case abused its discretion. The
district court’s decision was thoroughly and carefully rea-
soned. The adverse inference was only one of fourteen facts
listed by the district court in support of its conclusion that
Angelina conspired in, aided, and abetted Bryan’s murder.
More probably than not, the court would have reached the
same verdict even absent the inference.

C. Strebendt As An Unavailable Witness

The district court admitted Strebendt’s deposition testi-
mony on the ground that he resided in Oregon and thus was
unavailable for trial. Under Rule 32(a)(4)(B) of the Federal
Rules of Civil Procedure (formerly Rule 32(a)(3)(B)), a party
may use the deposition of a witness at a hearing or trial if the
court finds “that the witness is more than 100 miles from the
place of hearing or trial.” Fed. R. Civ. P. 32(a)(4)(B).

[11] Angelina asserted at trial, and argues again here, that
Strebendt in fact resided in Los Angeles and thus was not sub-
ject to Rule 32(a)(4)(B). Angelina’s argument at trial relied
upon a July 2006 posting on a martial arts website. The post-
ing provided background on Strebendt and indicated that his
“Home City” was “Los Angeles, CA.” The district court char-
acterized the website posting as an “unauthenticated and
ambiguous statement,” and concluded that it was insufficient
to demonstrate that Strebendt resided in California given the
evidence to the contrary. The court noted that Strebendt testi-
fied at his deposition that he lives in Oregon; that Keith had
11890 RICHARDS v. RICHARDS
filed a witness list identifying Strebendt’s residence as
Eugene, Oregon; and that Keith’s counsel had telephoned the
Oregon telephone number provided by Strebendt and spoken
with him at that number. Based upon this record, the district
court did not abuse its discretion in admitting Strebendt’s
deposition testimony under Rule 32(a)(4)(B).

Angelina argues that the district court also abused its dis-
cretion in admitting Strebendt’s testimony under Rule
804(b)(1) of the Federal Rules of Evidence. However,
because Strebendt’s testimony properly was admitted under
Rule 32(a)(4)(B), it need not also meet the requirements for
admissibility set forth in Rule 804(b)(1). Under Rule 802,
hearsay is admissible where allowed by the Federal Rules of
Evidence, or “by other rules prescribed by the Supreme Court
pursuant to statutory authority or by Act of Congress.” Fed.
R. Evid. 802. Rule 32(a)(4)(B) is one of these “other rules.”
See Fed. R. Evid. 802 advisory committee’s note (identifying
Rule 32 as one of the “other rules”); Fed. R. Civ. P. 32 advi-
sory committee’s note (explaining that new Rule 32(a) was
intended to “eliminate[ ] the possibility of certain technical
hearsay objections which are based, not on the contents of
deponent’s testimony, but on his absence from court”). Our
sister circuits have recognized that Rule 32(a) is an indepen-
dent exception to the hearsay rule. See Ueland v. United
States, 291 F.3d 993, 996 (7th Cir. 2002) (“Rule 32(a), as a
freestanding exception to the hearsay rule, is one of the ‘other
rules’ to which Fed. R. Evid. 802 refers. Evidence authorized
by Rule 32(a) cannot be excluded as hearsay, unless it would
be inadmissible even if delivered in court.”); Angelo v. Arm-
strong World Indus., Inc., 11 F.3d 957, 962-63 (10th Cir.
1993) (“Deposition testimony is normally inadmissible hear-
say, but Fed. R. Civ. P. 32(a) creates an exception to the hear-
say rules.”); S. Indiana Broadcasting, Ltd. v. FCC, 935 F.2d
1340, 1341—42 (D.C. Cir. 1991) (recognizing that Fed. R.
Civ. P. 32(a) creates an exception to the hearsay rule); United
States v. Vespe, 868 F.2d 1328, 1339 (3d Cir. 1989) (Rule
32(a)(3)(B) “constitutes an independent exception to the hear-
 RICHARDS v. RICHARDS 11891
say rule”); Carey v. Bahama Cruise Lines, 864 F.2d 201, 204
& n.2 (1st Cir. 1988) (explaining that Rule 32(a)(3)(B) “is
more permissive than Federal Rule of Evidence 804(a)(5)”).
Because the district court did not abuse its discretion in admit-
ting Strebendt’s deposition testimony under Rule 32(a)(4)(B),
Rule 804 is irrelevant to our analysis.

D. Strebendt’s Testimony Regarding Torre’s Statements

Angelina also raised a hearsay objection to the admission
of Strebendt’s testimony regarding Torre’s statements. The
district court made a factual finding that Angelina and Torre
were engaged in a conspiracy to murder Bryan, and that as a
result Torre’s statements as reported by Strebendt were
admissible as non-hearsay statements of a co-conspirator
under Rule 801(d)(2)(E) of the Federal Rules of Evidence.
That rule provides in relevant part that a statement is not hear-
say if it is “a statement by a coconspirator of a party during
the course and in furtherance of the conspiracy.” Fed. R. Evid.
801(d)(2)(E). The proponent of the statement must demon-
strate by a preponderance of the evidence the existence of,
and participation in, the conspiracy. United States v. Peralta,
941 F.2d 1003, 1005 (9th Cir. 1991) (citing Bourjaily v.
United States, 483 U.S. 171, 175 (1987)).

[12] Angelina argues that there was insufficient evidence in
the record to support a finding that she and Torre were
engaged in a conspiracy to murder Bryan, and that the district
court failed to consider evidence in her favor as to this point.
This argument is identical to that addressed above with
respect to the district court’s decision to draw an adverse
inference. It is apparent from the FFCL that the district court
considered the record as a whole and made a factual determi-
nation that Angelina did conspire with Torre to kill Bryan. As
discussed previously, the district court identified more than a
dozen specific facts upon which it relied in reaching this con-
clusion. The conclusion is not clearly erroneous. It is apparent
that, assuming a conspiracy between Angelina and Torre, the
11892 RICHARDS v. RICHARDS
subject statements were made in the course of and in further-
ance of the conspiracy. Accordingly, the district court did not
abuse its discretion in admitting the subject statements under
Rule 801(d)(2)(E).

IV. CONCLUSION

We conclude that the district court did not abuse its discre-
tion in precluding Angelina from testifying that she was not
involved in Bryan’s murder, or in drawing an adverse infer-
ence from her assertion of the Fifth Amendment privilege
against self-incrimination, and that any error in these rulings
was harmless. We also conclude that the district court prop-
erly admitted Strebendt’s deposition testimony.

AFFIRMED.