Argued and Submitted March 5, 2015, Pasadena,
Appeal from the United States District Court for the Southern District of California. D.C. No. 3:12-cr-04081-JAH-1. John A. Houston, District Judge, Presiding.
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.
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.
Before: Michael R. Murphy,[*]
Ronald M. Gould, and Richard C. Tallman, Circuit Judges.
Richard C. 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.
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.
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.
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. 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. ...