United States v. Esparza, No. 13-50033 (Nguyen with Schroeder and Zouhary (DJ, N.D. Ohio)) --- The Ninth Circuit reversed a conviction for importation of marijuana, holding that statements regarding the ownership of a car in which 50 kilograms of marijuana were hidden in secret compartments were testimonial, such that the available declarant was required to testify under Crawford v. Washington, 541 U.S. 36 (2004).  Admitting these statements was not harmless because the central dispute in the case was whether the defendant was the owner of the car.

The defendant moved to Tijuana, but his children and their mother lived in San Diego.  He drove a car through the San Ysidro port of entry that had 50 kilograms of marijuana hidden in it.  He said that the car belonged to his friend "Julio," but the registration said it belonged to one Diana Hernandez.  So the government seized the car, and then notified the registered owner that it was going to keep the car through asset forfeiture.  Hernandez then notified the DMV that she had sold the car to the defendant before he was arrested.  After he was indicted on drug-trafficking charges, he moved to exclude the DMV documents because they contained Hernandez's inadmissible hearsay statements that he owned the car.  The trial judge ruled that they were admissible hearsay and then considered any Confrontation Clause issue to be moot.

 
The government put Hernandez on its witness list, and she was in the courthouse and available to testify at trial.  But the government decided instead to present Hernandez's statement through the testimony of a DHS agent, as well as through cross-examining Hernandez's ex-boyfriend, who was involved in the transaction involving the car.  The only dispute at trial was whether the defendant owned the car, and that involved a question of which witnesses to believe.  The jury believed the government and convicted the defendant.
 

The Ninth Circuit held that the statements contained in the documents relating to the ownership of the car were testimonial.  At the time they were made, Hernandez knew that the government was going to prosecute the defendant (because she had received a forfeiture notice), and she had a "strong incentive to lie" in order to conceal her guilt.  Because the statements were testimonial, and she was available to testify, that was the only proper way of admitting these statements under Crawford.  Because the case boiled down to a credibility contest, the government's failure to have her testify about them was not harmless beyond a reasonable doubt.

 

Congratulations to Kent Young of Federal Defenders of San Diego, Inc.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/06/29/14-72181.pdf