Case o' the Week: Ninth Not Confrontation-al, Over Hearsay Evidence - Liera-Morales, Testimonial, and Non-Testimonial Evidence

  A mother, sobbing, begs hostage-takers not to kill her son as they demand ransom money and threaten execution.

  A tough factual context for the defense, for a Confrontation Clause challenge to her statements.  United States v. Liera-Morales, 2014 WL 3563356 (9th Cir. July 21, 2014), decision available here.

Hon. Judge Margaret McKeown

Players: Decision by Judge McKeown, joined by Judges Wallace and Gould. Hard-fought appeal by D. Az. AFPD Keith Hilzendeger.  

Facts: Liera-Morales helped smuggle 18-year old Aguilar in to the US and secured him in a trailer home. Id. Liera-Morales and others blackmailed Aguilar’s mother, threatening her on the phone and demanding ransom money. Id. Aguilar’s mother (Avila) called 911, and an agent went to her house to try to arrange a recorded call with her son’s captors. Id. The agent was unable to record the next call, because Avila was “shaking, crying, and very nervous.” Id. She reported that the captors threatened to kill her son if they weren’t paid that afternoon. Id. at *2. After the agent left, Avila received another call where she was told to say good-bye to her son: she also reported this call. Id. at *2. Agents posed as the payment intermediaries, arrested Liera-Morales and recovered Aguilar. Id. When interrogated, Liera-Morales admitted he told Avila she owed money for bringing her son out of the desert. Id. at *2. Liera-Morales was charged with hostage taking, communicating a ransom demand, interstate threats, transporting, and harboring an alien for profit. Id. The government moved to admit the mother Avila’s statements to the agent, as present sense impressions or impromptu excited utterances. Id. The court granted that in limine motion: Liera-Morales was convicted. Id. at *3.

Issue(s): “The central issue in this appeal is whether the admission of statements made by Avila to [the agent] about the telephone conversations with her son’s captors violated the Confrontation Clause. Liera-Morales argues that the unidentified trafficker’s statements to Ms. Avbila were testimonial and complains that he had no opportunity to cross-examine that unidentified interlocutor.” Id. at *3 (footnote and quotations omitted).

Held: “We hold that the . . . admission of the agent’s testimony recounting Avila’s description of the call did not violate the Confrontation Clause of the Sixth Amendment because the call was made primarily to address an ongoing emergency and the challenged statements were nontestimonial.” Id. at *1.

Of Note: Was the agent’s purpose, when setting up the recorded call, to respond to a hostage situation, or to build a future case? Why try to record the call, if the agent’s primary purpose was to find and save the 18-year old son? That question makes a difference, when trying to gauge whether this evidence was “testimonial.” The Ninth doesn’t find this (attempted) recording dispositive of the agent’s intent, opining the agent “primarily sought to record the call to obtain information about Aguilar’s location and to facilitate the plan to rescue Aguilar.” Id. at *5. Citing a 2013 case, Judge McKeown explains that while the recording might have been used for a prosecution, that potential future use “does not automatically place the statements within the ambit of the testimonial.” Id. at *5 (citation and quotations omitted). 

How to Use: Judge McKeown goes to considerable lengths to explain why this “emergency” situation meant that Avila’s statements were nontestimonial and did not run afoul of Crawford. Id. at *3 – *5. There had been explicit death threats and this was an “ongoing emergency.” Id. at *4. The agent’s actions around the call supported the government’s arguments that his primary purpose was to respond to these threats. Id. at *4. The statements lacked any degree of formality and occurred in an informal, high-stress environment. Id. at *5. Judge McKeown describes an extraordinary situation supporting the “nontestimonial” finding:: demand equally extraordinary facts when the government tries to cram future hearsay into this narrow Crawford exception.

                                               

For Further Reading: What’s the deal with federal defenders and clemency work? Defenders are eager to tackle clemency petitions for their former clients (and others), DOJ very much wants our help for this righteous initiative -- what’s the problem?

   For an interesting piece on this unexpectedly complicated issue, see the Al Jazeera article here.

Image of the Honorable Judge Margaret McKeown from http://www.wired.com/2011/08/warrantless-wiretapping-argument/

Steven Kalar, Federal Public Defender ND Cal. Website at www.ndcalfpd.org

Case o' The Week: Loyal to Doyle - Ramirez-Estrada and Post-Miranda Silence

Silence is golden.

Hon. Judge Richard Clifton

Not commenting on that silence -- even better.

United States v. Ramirez-Estrada, 2014 WL 1646931 (9th Cir. Apr. 25, 2014), decision available here.

Players: Decision by Judge Clifton, joined by Judge Schroeder and visiting D.J. Tunheim. Nice win for Caitlin Howard, Ass’t Def., Federal Defenders of San Diego, Inc.

Facts: Ramirez-Estrada, an undocumented alien, had been deported several times. Id. at *1. While incarcerated in ’05, he sustained a serious jaw injury – a district judge had order treatment, but it never happened and Ramirez-Estrada was deported. Id. In 2011, he tried to enter the U.S. through San Ysidro, allegedly saying he had been born in Vegas but lost his papers. Id. Ramirez-Estrada, however, testified he only attempted to enter the US to get his painful jaw injury treated as had been ordered by a judge, and testified that he had told that to border agents. Id. at *2. To impeach the defendant, the government offered the testimony of the agent who had booked him. Id. That agent said that (after Ramirez-Estrada invoked Miranda) he reported no health problems like “heart condition, diabetes, or anything like that.” Id. at *2-*3. The jury convicted Ramirez-Estrada of attempted illegal entry and making a false claim to U.S. citizenship. Id. at *3.

Issue(s): “This case concerns the scope of a criminal defendant's constitutional rights under Doyle v. Ohio, 426 U.S. 610 (1976), which prevents impeachment impeachment of a defendant with his post-Miranda silence.” Id. at *1.

Held: “Nothing Ramirez–Estrada said in those [post-Miranda] statements served to impeach his testimony. Rather, it is what he failed to say that was relevant to undermine his credibility. We thus conclude that the use of Ramirez–Estrada's post-invocation silence to impeach him violated his rights under Doyle. Because this error was not harmless beyond a reasonable doubt, we reverse.” Id. at *1. “Although neither the Supreme Court nor this court has previously faced the particular situation presented here, we conclude that Doyle bars admission of Ramirez–Estrada's statements to Officer Nicasio. It is clear and undisputed that Ramirez–Estrada invoked his Miranda rights by asking for a lawyer. The difficult question is the second one: whether his statements in response to Officer Nicasio's routine booking questions were directly inconsistent with his trial testimony. We conclude that they were not and that it was, instead, his silence that was used against him.” Id. at *4.

Of Note: This is a careful, nuanced decision that relies heavily on the precise words used during the booking process. Id. at *5. How can Judge Clifton quote this exchange verbatim? “A recording of the interview, from which we can draw precise quotations, is part of the record.” Id. at *5 & n.3. 

  Would this constitutional violation have been discovered, if the record was merely a swearing match between the agents and the defendant? 

  Unlikely.  

  Ramirez-Estrada illustrates the travesty of federal agents refusing to tape interviews – the only reason not to record is to hide violations like the Doyle problem in this case.

How to Use: Can you have a Doyle violation (an improper use of silence) without a Miranda violation? Yep. “[A] Doyle violation occurs where the prosecution uses defendant’s post-invocation silence to impeach him, regardless of whether the police complied with Miranda.” Id. at *4. Judge Clifton offers a helpful discussion of the subtle nuances of Doyle caselaw, and of the Ninth’s lead decision in Caruto. Read Ramirez-Estrada for a good explanation of how omissions, impeachment, and silence interaction in the Doyle analysis.

                                               

For Further Reading: D.O.J.’s new clemency initiative offers hope to thousands of inmates imprisoned under federal drug laws. See press release here.  For a good general description of this program, see the Washington Post article here. 

  More details, and a discussion of the most obvious candidates for clemency, can be found here .

Image of the Hon. Richard Clifton from https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh_Y_MsZ-DGCp7UcVJMLfSZ6BDACikIaO8ujDrwh8Xywt8PhJ58ow6i_4h3rpArMexjZoLOgZMvq9QRmM0OYOdhHLZltGQCiBknp0xvdEqrSX-yt0A1VN0AucXX6Sns0OuI5yyDQw/s1600/IMG_9546.JPG

Steven Kalar, Federal Public Defender N.D. Cal . Website at www.ndcalfpd.org