Sunday, July 27, 2014

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

Steven Kalar, Federal Public Defender ND Cal. Website at

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