FILED

NOT FOR PUBLICATION

MAR 08 2019

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-10455

Plaintiff-Appellee, D.C. No. 2:16-cr-01308-DJH-2 v.

STEPHANIE RODRIGUEZ-VERDUGO, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona Diane J. Humetewa, District Judge, Presiding

Submitted March 6, 2019** Phoenix, Arizona

Before: CLIFTON, IKUTA, and FRIEDLAND, Circuit Judges.

Stephanie Rodriguez-Verdugo appeals her conviction relating to possession

with intent to distribute 500 grams or more of methamphetamine. We have

jurisdiction under 28 U.S.C. § 1291.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). The district court did not abuse its discretion by holding that Claudia

Rodriguez’s testimony regarding a series of out-of-court statements made by

Rodriguez-Verdugo’s unavailable co-defendant, Nidia Cadena-Verdugo, was not

admissible as statements against interest under Rule 804(b)(3) of the Federal Rules

of Evidence. The statements were not “supported by corroborating circumstances

that clearly indicate[d] [their] trustworthiness,” United States v. Gadson, 763 F.3d

1189, 1200 (9th Cir. 2014), but were exculpatory statements made by a family

member, which “are not considered to be highly reliable,” LaGrand v. Stewart, 133

F.3d 1253, 1268 (9th Cir. 1998). Moreover, the timing of the statements—Cadena-

Verdugo spoke to Claudia Rodriguez on the eve of trial—indicates that the

statements are less trustworthy. See United States v. Oropeza, 564 F.2d 316, 325

(9th Cir. 1977). Finally, because Cadena-Verdugo was a fugitive in Mexico at the

time that she made the statements to Claudia Rodriguez, the chances of Cadena-

Verdugo suffering adverse consequences as a result of her admissions were slim,

and therefore we discount the “extent to which the declaration is really against the

declarant’s penal interest.” Id. at 325; see also United States v. Fowlie, 24 F.3d

1059, 1068 (9th Cir. 1994).

The district court’s exclusion of Claudia Rodriguez’s testimony regarding

Cadena-Verdugo’s statements was not plain error that violated Rodriguez-

2 Verdugo’s Fifth and Sixth Amendment rights, because the statements did not bear

“persuasive assurances of trustworthiness” and were not “critical to the defense.”

Gadson, 763 F.3d at 1201 (citing Chia v. Camdra, 360 F.3d 997, 1003 (9th Cir.

2004)). Cadena-Verdugo’s out-of-court statements lacked persuasive assurances of

trustworthiness because no corroborating evidence supported them, Cadena-

Verdugo was not available for cross-examination, and the statements were not made

spontaneously but rather delivered on the eve of trial. Further, Claudia Rodriguez’s

testimony about Cadena-Verdugo’s statements was not critical to the defense

because Rodriguez-Verdugo was able to testify to her own alleged lack of

knowledge at trial and did so.1

AFFIRMED.

1 Because Rodriguez-Verdugo withdrew her appeal of the district court’s application of a two-level sentencing enhancement, we do not consider these arguments.

3