United States v. Gustavo Valdez-Soto, United States of America v. Fabio Gomez-Tello

Opinion by Judge KOZINSKI; Dissent by Judge ZILLY.

There may be no loyalty among thieves, but there sometimes is among drug dealers. When called by the government, such witnesses occasionally change their story. The principal issue raised in these consolidated appeals is whether and when their inculpato-ry out-of-court statements may be admitted in the teeth of a hearsay objection.

I

Some days nothing goes right. The seller, Roberto Cortez, showed up in a restaurant parking lot with nine kilograms of cocaine just as he’d promised, only to discover that his buyer, Dennis Pierce, was a government agent. Cortez was in deep trouble and soon confessed. In so doing, he implicated two men as his suppliers, Gustavo Valdez-Soto and Fabio Gomez-Tello (our defendants), both of whom had already been arrested at the home of Cortez’s sister-in-law.

Pierce had been working with narcotics informant Joaquin Olivas for some time, setting up a buy of thirty kilograms of cocaine from Cortez. Many of Olivas’s conversations with Cortez had been taped. This provided incriminating evidence against both Cortez and his yet-to-be-identified suppliers, much of which was later corroborated by other…

dissenting:

The majority has chosen to ignore the clear intent of Congress with respect to the Federal Rules of Evidence concerning hearsay. The trial court erred in admitting the post-arrest statements of Cortez pursuant to Rule 803(24). This error was not harmless. Therefore, I would reverse. Because I believe the majority opinion to be in error as to Part II, I respectfully dissent from that Part. I concur in Parts III, IV and V of the majority’s opinion.

The reasoning of the Supreme Court in Idaho v. Wright, 497 U.S. 805 , 110 S.Ct. 3139 , 111 L.Ed.2d 638 (1990), and that Court’s reliance on Huff v. White Motor Corp., 609 F.2d 286, 292 (7th Cir.1979), indicates that, even in the absence of a Confrontation Clause issue, hearsay should not be admitted on the basis of corroboration. See Wright, 497 U.S. at 820 , 110 S.Ct. at 3149 (“The circumstantial guarantees of trustworthiness on which the various specific exceptions to the hearsay rule are based are those that existed at the time the statement was made and do not include those that may be added by using hindsight.” quoting Huff, 609 F.2d at 292 ).

The Wright analysis is applicable in this case and precludes the use of the…

31 F.3d 1467 63 USLW 2117 , 39 Fed. R. Evid. Serv. 1251 UNITED STATES of America, Plaintiff-Appellee, v. Gustavo VALDEZ-SOTO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Fabio GOMEZ-TELLO, Defendant-Appellant. Nos. 91-10622, 91-10623. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 5, 1993. Decided Aug. 10, 1994. Michael H. Weiss, Berkeley, CA, for defendant-appellant Valdez-Soto. Victoria C. Belco, Berkeley, CA, for defendant-appellant Gomez-Tello. Mary E. Pougiales and Theresa J. Canepa, Asst. U.S. Attys., San Francisco, CA, for plaintiff-appellee. Appeal from the United States District Court for the Northern District of California. Before: KOZINSKI, O'SCANNLAIN, Circuit Judges, and ZILLY, District Judge. * Opinion by Judge KOZINSKI; Dissent by Judge ZILLY. KOZINSKI, Circuit Judge. 1 There may be no loyalty among thieves, but there sometimes is among drug dealers. When called by the government, such witnesses occasionally change their story. The principal issue raised in these consolidated appeals is whether and when their inculpatory out-of-court statements may be admitted in the teeth of a hearsay objection. 2 * Some days…