United States v. Jose Nevarez

MEMORANDUM

Jose Moreno Nevarez (“Moreno”) appeals his convictions and concurrent sentences for the importations of cocaine and methamphetamine. We have jurisdiction under 28 U.S.C. § 1291 . We reverse and remand for further proceedings.

1. The district court erred by admitting statements made by Moreno’s daughter, Cynthia, in a recorded jail call, Under Federal Rule of Evidence 801(d)(2)(B), a statement is not hearsay if it is offered against an opposing party and it “is one the party manifested that it adopted or believed to be. true. Fed; R. Evid. 801(d)(2)(B). Before admitting a third party’s statement as an adoptive'admission, however, a district court “must first find that sufficient foundational facts have been introduced for the jury reasonably to conclude that the defendant did actually hear, understand and . accede to the statement.” United States v. Monks, 774 F.2d 945, 950 (9th Cir.1985). Here, there was no district court finding to that effect. At trial, the district court simply stated, “It will be admitted over objection.” During the pretrial hearing, the- district court did not address Moreno’s hearsay argument at all. Thus, the district court committed legal…