dissenting:
I agree with much of the majority’s analysis. In the end, however, I must conclude that the impermissibly admitted hearsay in this case was “devastating” to the defense and was unsupported by any indicia of reliability. I would therefore affirm the district court’s judgment, and I respectfully dissent.
The majority opinion correctly notes that the district court’s grant of habeas relief in this case is appropriate only if (a) the state court erroneously admitted hearsay, and (b) the admission of this hearsay violated Gochicoa’s rights under the Confrontation Clause. Maj. Op. at 446. I agree with the majority’s conclusion that hearsay was improperly admitted in this case. Id. The only question, therefore, is whether this improper admission of hearsay violated the rights guaranteed by the Confrontation Clause.
The majority opinion is further correct in concluding that the most important factors in determining whether the Confrontation Clause has been violated is whether the improperly admitted evidence was “crucial” or “devastating” and whether it was supported by any independent “indicia of reliability.” Maj. Op. at 446. Applying these factors, the majority nevertheless concludes that, although the impermissible hearsay was supported by no independent indicia of reliability, its admission did not violate Gochicoa’s constitutional rights, because the evidence was neither crucial to the prosecution nor devastating to Gochicoa’s defense. With this ultimate conclusion, I disagree.
The majority holds that “although the informant’s tip certainly bolstered the state’s ease, it was not ‘crucial or devastating’ given [Michael] Carrasco’s testimony.” Maj. Op. at 447. Carrasco’s testimony was indeed damaging to Gochicoa: Carrasco testified that he had watched Gochicoa walk through the alleyway and observed Gochicoa reach into his pocket and make a gesture as though he was throwing something to the ground. In addition, Carrasco testified that Gochicoa became nervous when he saw the police officers. The police found a balloon containing heroin after being directed to the location by Carrasco, and found no other objects within the immediate area.
Although this evidence may well support a verdict of guilt,8 it does not compel such a verdict. The balloon containing heroin was found in a public area—an area in which drug trafficking may have been common. Carrasco testified that he observed Gochicoa from a distance of 100 to 150 feet, and although he observed Gochicoa gesture as though discarding something, he saw nothing leave his hand. Thus, Carresco was unable to directly link Gochicoa to the drugs. Although nervousness and an unexplained gesture provide some nexus between Gochicoa *449and the drags, the evidence that Gochicoa was in the area to buy heroin provides a crucial link between the defendant and the drags. Therefore, the hearsay testimony from an unidentified informant surely made a unanimous verdict substantially easier to reach, and was devastating to the defense.
The importance of the improperly admitted hearsay is underscored by the prosecution’s repeated reliance upon it. In the opening statement, throughout the trial, and in closing argument, the prosecutor relied upon information from the confidential informant to link Gochicoa to the drags. In the closing argument, the prosecutor told the jury:
What do we know by direct evidence? We know that Pedro Gochicoa was out at the project on August 15th, 1991, at about five or 5:15 P.M. We know his brother Jorge was waiting for him to come back from where he was at.
We know that when he saw [Officer Prieto] that Pedro Gochicoa got nervous. We heard that from two different witnesses, Officer Prieto and Michael Carrasco.
We know that Deputy Gomez had information from a confidential informant that Manuel Salcido was in this area in his home selling heroin and that Gochicoa was buying it at this particular time.
I am unable to conclude that the jury was not substantially influenced by this impermissibly admitted evidence. Therefore, the evidence provided by the informant was devastating to Gochicoa’s case.9
In addition to determining whether inadmissible evidence is “crucial or devastating,” we must also evaluate the reliability of the hearsay. As the majority opinion recognizes, “the Supreme Court holds that the reliability of hearsay evidence is generally determinative of whether an out-of-court statement may be properly admitted at trial under the Confrontation Clause.” Maj. Op. at 446. When hearsay evidence is improperly admitted, has no indicia of reliability, and makes a conviction substantially easier to obtain, the Confrontation Clause has been violated. The majority concedes that the hearsay statements of the informant have no indicia of reliability: the “identity, perception, and biases of the informant are unknown, as is the basis for his or her knowledge of the facts reported to police.” Yet, the majority holds that Gochicoa’s Sixth Amendment rights have not been violated. Apparently, the United States Supreme Court has no influence with the majority members of this panel.
In sum, because the impermissibly admitted hearsay was “devastating” to Gochicoa’s defense, and was not supported by any independent indicia of reliability. I would therefore affirm the district court’s grant of habeas corpus but would permit the state to retry Gochicoa.10
. I can agree that the properly admitted evidence in this case was sufficient to allow a rational jury to convict Gochicoa, but that is not a question before this court today. A Confrontation Clause violation may occur when inadmissible evidence was devastating to the defense, even if the properly admitted evidence, viewed in isolation, is sufficient to sustain the verdict.
. The majority opinion cites Mills v. State, 847 S.W.2d at 455, to support the conclusion that the informant’s information was not critical in this case. In Mills, the Texas court rejected a criminal defendant’s contention that the evidence was insufficient to show that he knowingly possessed cocaine.
Because Mills involved a challenge to the sufficiency of evidence supporting a conviction, it is of little relevance to our issue today. Resolving a sufficiency of the evidence issue requires the court to resolve only whether a minimally sufficient evidence exists to support a conviction. In contrast, in reviewing a Confrontation Clause challenge, we determine if the jury was improperly influenced by the impermissible evidence.
Moreover, Mills is distinguishable from the case before us today. In Mills, police officers entered the defendant's residence pursuant to a search warrant. The officers observed the defendant throw something into an open closet. In contrast to the testimony in this case, the officer saw the object leave the defendant's hand, and was able to identify its approximate size. More importantly, the defendant was in his private residence when this event occurred, in sharp contrast to the instant case, where the contraband was found in a public area.
. Although Gochicoa has not prevailed today, on remand the district court will undoubtedly carefully consider whether Gochicoa received adequate representation at his initial trial.