855 F2d 863 United States v. Garcia-Villanueva

855 F.2d 863

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
Rita GARCIA-VILLANUEVA, Defendant-Appellant.

No. 87-5261.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 8, 1988.
Decided Aug. 10, 1988.

Before TANG, FLETCHER and PREGERSON, Circuit Judges.

1

MEMORANDUM*

2

Rita Garcia-Villanueva appeals her jury convictions for harboring illegal aliens and conspiracy to harbor illegal aliens in violation of 8 U.S.C. Sec. 1324(a)(1)(B) (Supp. IV 1986) and 18 U.S.C. Sec. 371 (1982) respectively. The question presented is whether the district court erred in ruling that certain out-of-court statements by Garcia, consisting of orders, directives and warnings, constituted hearsay, admissible only under an exception to the hearsay rule. We conclude the proffered statements were non-hearsay and admissible under Fed.R.Evid. 801(c) as circumstantial evidence of state of mind. Because we find the error affected substantial rights of the appellant and cannot be deemed harmless, we reverse.

I.

3

Mrs. Garcia and seven others, including her two sons, were charged with conspiring to transport and harbor illegal aliens. All but the defendant pleaded guilty prior to trial. Mrs. Garcia was charged with using or allowing the use of her residence as a "drop-house"1 in connection with the smuggling activities of the others. She did not testify, in part because the district court ruled prior to trial that her prior drug-related felony conviction would be admissible for impeachment. Instead, Mrs. Garcia proffered testimony from three residents of the drop-house: one of her sons, a daughter and a daughter-in-law. The witnesses would have testified, in substance, to the following statements spoken by Mrs. Garcia to her sons:

4

(1) her sons should not engage in smuggling,

5

(2) it was dangerous,

6

(3) they would get everyone in trouble, and

7

(4) she did not want to hear about it.

8

The statements were proffered as non-hearsay evidence under Rule 801(c). Fed.R.Evid. 801(c). The district court ruled that the statements were hearsay because offered for the truth of the matter asserted, but that they were nonetheless admissible under the state-of-mind exception, Fed.R.Evid. 803(3). It ruled further that as hearsay evidence admissible under an exception, Mrs. Garcia's credibility could still be attacked by the introduction of her prior felony conviction under Rules 806 and 609. Fed.R.Evid. 806, 609. Mrs. Garcia elected not to proffer the testimony.

II.

9

Generally, a district court's evidentiary rulings are reviewed for an abuse of discretion. United States v. Emmert, 829 F.2d 805, 808 (9th Cir.1987). A district court's construction of the Federal Rules of Evidence, however, is reviewed de novo. Emmert, 829 F.2d at 810; United States v. McClintock, 748 F.2d 1278, 1287 (9th Cir.1984), cert. denied, 474 U.S. 822 (1985). As the threshold evidentiary inquiry in this case is a legal and not a factual inquiry, namely, whether or not the statements constituted hearsay, a de novo standard controls.

III.

A. Hearsay vs. Non-hearsay

10

Mrs. Garcia contends the statements are non-hearsay because they are not offered for the truth of the matter asserted. She argues her statements, viewed as "non-factual orders, directives, or warnings," serve the relevant non-hearsay purpose of proving her state of mind. We agree.

11

Rule 801 defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c). Certain statements are excluded from the operation of the hearsay rule however, and are considered non-hearsay, when they are offered for reasons not entailing their truth and thus do not involve the credibility of the declarant. One such category of non-hearsay utterances involves verbal conduct offered to show state of mind or effect on state of mind where that effect is relevant. See generally, 4 J. Weinstein & M. Berger, Weinstein's Evidence p 801(c) , at 801-77 (1987); McCormick on Evidence Sec. 249 (2d ed. 1972). Such statements are at issue in this case.

12

The theory that out-of-court statements may be admissible not for their truth, but instead as circumstantial evidence of the declarant's state of mind, has been accepted in this circuit and others. See United States v. Brown, 562 F.2d 1144, 1148 (9th Cir.1977) (defendant's request that witness "[not] hurt him" was non-hearsay; admissible to show defendant's state of mind); see also United States v. Harris, 733 F.2d 994, 1004 (2d Cir.1984) (statements of defendant to parole officer and attorney admissible as circumstantial evidence of defendant's state of mind--his knowledge of an informants cooperation); United States v. Webster, 750 F.2d 307, 330 (5th Cir.1984), cert. denied, 471 U.S. 1106 (1985) (defendant's statement to witness that an airplane, shown to be stolen at trial, was stored on his property, admissible as circumstantial non-hearsay evidence of state of mind because offered to support inference that "a man with guilty knowledge is not likely to advertise his possession of stolen property"); United States v. Gibson, 675 F.2d 825, 833-34 (6th Cir.), cert. denied, 459 U.S. 972 (1982) (where defendant offered utterance solely for the fact that it was made by a union official and heard by the defendant, witness's account of union official's statement was non-hearsay admissible as "testimony about a circumstantial utterance, which could have been received properly on the issue of [defendant's] belief or state of mind in consequence of the utterance"); United States v. Leake, 642 F.2d 715, 720 (4th Cir.1981) (in prosecution involving misappropriation of federal funds, error to exclude defendant's proffered evidence recounting statement made to him where statement served as circumstantial evidence of defendant's state of mind and would have been evidence negating his specific intent to aid and abet illegal payment). Although "the line between admissible hearsay and non-hearsay is often difficult to trace," United States v. Muscato, 534 F.Supp. 969, 974 (E.D.N.Y.1982) (per Weinstein, C.J.), we find the statements offered by Mrs. Garcia fall within the ambit of the cases noted above.

13

The parties agree the central issue at trial was the defendant's intent. They further agree that the statements were offered to show "that defendant was opposed to the smuggling activities going on in her house, that she did not want her sons using her house for that purpose, and that she did not want to know about the smuggling activities." Garcia's written offer of proof, however, only rendered her proffered statements "in substance" and the parties are not entirely consistent in their accounts of the language used. We are disadvantaged by not having the actual testimony and being forced to rely solely on the offer of proof. We are required, however, to accept it at face value for present purposes. See Harris, 733 F.2d at 1004. If the testimony is as represented, i.e., that Mrs. Garcia spoke to her sons in such terms as "do not engage in smuggling"; "it is dangerous"; "you will get everyone in trouble"; and "do not tell me about it", we conclude that the district court erred in ruling that the proffered statements would be hearsay. The statements, because they are offered to rebut an inference of criminal intent which might otherwise have been drawn from Garcia's actions or presence in the house, were relevant verbal conduct independently admissible as circumstantial evidence of Mrs. Garcia's state of mind.

14

First, the statements offered by Mrs. Garcia do not assert facts. Rather, the statements "do not engage in smuggling" and "do not tell me about it" are properly viewed in the first instance as orders, instructions or directives, which by their nature are neither inherently true nor false. See, e.g., United States v. Shepherd, 739 F.2d 510, 514 (10th Cir.1984). This finding, however, only begins our evidentiary inquiry. Second, and more importantly, the statements are not hearsay because they are offered for a relevant non-hearsay purpose: to show circumstantially Mrs. Garcia's state of mind, namely, her intent not to be involved in the alleged smuggling activities of her sons. The first statement, "do not engage in smuggling," is an order or instruction from Mrs. Garcia to her sons that is analytically distinct, for example, from the statement "I do not want you to engage in smuggling" or "I do not believe you should engage in smuggling." The latter statements might be considered hearsay under Rule 801(c) because their evidentiary significance turns on the truth of the matter asserted, namely, Mrs. Garcia's belief. See Harris, 733 F.2d at 1004.2 The verbal instruction "do not engage in smuggling," however, is more analogous to the physical acts of picking up the phone and calling the police, or barring the entrance to the house. Both the verbal order and physical acts are "statements" that contain no truth and assert no facts; rather they are offered as circumstantial evidence of a state of mind opposed to and against involvement in the smuggling activity.

15

Similarly, the statements "it is dangerous" and "you will get everyone in trouble," are warnings or directives that are offered not to show the truth of the matters asserted, to-wit, that smuggling is in fact dangerous or risky or that particular troubles will result from that activity. Rather, they are offered as circumstantial evidence of Mrs. Garcia's intent as to whether she encouraged or discouraged the smuggling activities that allegedly went on in her house.

16

Our conclusion regarding the somewhat technical question of whether Mrs. Garcia's proffered statements are beyond the scope of the hearsay rule is supported also by a consideration of the hearsay dangers posed. In this case the dangers present are not substantial. First, the statements are highly probative, material and strongly corroborative of the rest of the defense case.3 Second, where the statements are offered for the limited circumstantial and non-assertive use described above, the credibility and reliability of the declarant, Mrs. Garcia, is not at issue. Rather, the only credibility question presented is whether or not the statements were made at all and if so, under what circumstances. For this the witnesses who testify that they heard the statements may be cross-examined.

17

Thus, we conclude the statements are non-hearsay because they are offered not for their truth but as circumstantial evidence of Mrs. Garcia's state of mind. Moreover, given the highly relevant, material and probative nature of the statements coupled with the absence of significant hearsay dangers, we conclude the statements should have been admitted as non-hearsay under Rule 801(c).

B. Harmless Error

18

We must now consider whether the district court's error in ruling the proffered statements hearsay was harmless. Although the lower court's determination did not absolutely exclude the statements, its ruling did clearly burden the presentation of the proffered evidence by subjecting Mrs. Garcia to possible impeachment under Fed.R.Evid. 806. We conclude that this error, though burdensome to the defense, is not an error of constitutional dimension. Mrs. Garcia's right to confront any witnesses against her under the Confrontation Clause of the Sixth Amendment was not implicated. See Ohio v. Roberts, 448 U.S. 56, 62-63 (1980). Nor did the court's evidentiary ruling otherwise deprive Mrs. Garcia of a fair trial under the Due Process Clause of the Fourteenth Amendment. See Crane v. Kentucky, 476 U.S. 683, 106 S.Ct. 2142, 2145 (1986) (blanket exclusion of testimony at trial concerning voluntariness of confession deprived defendant of his fundamental Constitutional right to a fair opportunity to present a defense); see also, United States v. Valle-Valdez, 554 F.2d 911, 915-916 (9th Cir.1977). Accordingly, we apply the nonconstitutional harmless error standard of review.

19

Nonconstitutional errors are measured against the "more probable than not" standard. In order to decide whether the erroneous hearsay ruling requires reversal, we must consider "whether the prejudice resulting from the error was more probably than not harmless." United States v. Barrett, 703 F.2d 1076, 1081-82 (9th Cir.1983); United States v. Castillo, 615 F.2d 878, 883-84 (9th Cir.1980). An error is considered harmless and shall be disregarded if it does not affect substantial rights. Barrett, 703 F.2d at 1081; Fed.R.Crim.P. 52(a). We conclude that under this standard, the prejudice resulting from the ruling's impairment of the defense more probably than not affected the verdict.

20

The significance of the proffered testimony to Mrs. Garcia's case is clear. The defendant's knowledge of and/or opposition to the alleged smuggling activities was highly relevant to the jury's determination of guilt or innocence. The district court itself openly acknowledged that the testimony was "pivotal" and provided "the main force of [Garcia's] defense." Looking to the evidence presented by the prosecution, we note that the case was largely circumstantial and less than overwhelming in its showing of guilt. Where the ruling was highly prejudicial to the defense, in a relatively weak prosecution case, we are reluctant to deem the error harmless even under the lesser "more probable than not" standard. Mrs. Garcia was entitled to the unburdened admission of the proffered testimony under Rule 801(c).

21

The judgment of the district court is REVERSED and the case REMANDED for proceedings not inconsistent with this opinion.

22

PREGERSON, Circuit Judge, dissenting.

23

It seems to me that all the statements in issue are hearsay, admissible under the state of mind exception. Fed.R.Evid. 801(c), 803(3). Each of the statements was offered to prove the truth of the matter asserted, namely, the defendant's beliefs regarding alien smuggling. Fed.R.Evid. 801(c). Since they are admissible under the state of mind exception, Fed.R.Evid. 806 applies and impeachment would have been permissible. For this reason, I would affirm the district court's decision.

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

"Drop-house" is a term defined in the proceedings below as a location where aliens smuggled into the United States illegally would be temporarily held after their initial entry and prior to traveling to their final destination

2

These statements may, however, be admissible under Fed.R.Evid. 803(3), the hearsay exception covering statements of a declarant's then existing state of mind. See, e.g., Emmert, 829 F.2d at 810. We do not decide this issue today

3

Apart from the proffered statements, Mrs. Garcia's defense consisted of evidence that (1) she was not the sole owner of the house but co-owned it with her son; (2) that her son was in charge of the smuggling activities; (3) that she was out of the country during the height of the smuggling activities; (4) that she was never seen by any of the agents and never had any contact with the aliens; (5) that she reacted innocently when arrested; and (6) impeachment of the government's chief witness