Castaneda

MEMORANDUM *

I. HEARSAY

Reliance on accomplice hearsay violates a defendant’s constitutional right to due process only if the hearsay is unaccompanied by minimal indicia of reliability. 1 Whether there are such minimal indicia turns primarily on the presence or absence of corroboration. 2 *In this case, there is evidence that tends to corroborate Warren’s statement. Castaneda’s fingerprints were found on some laboratory equipment inside the garage. Castaneda was also able to describe the inside of the garage, and he gave conflicting and confusing testimony as to why this was so. Warren’s statement, moreover, was not made in the context of plea negotiations. It was freely and voluntarily given the day of the bust-at least three months before the threatening letters from Kline began arriving. Though not overwhelming, these indicia of reliability are sufficient.

II. ANDRUS “ERROR”

Castaneda makes a persuasive argument that in some Ninth Circuit cases, including United States v. Andrus, 3 this court has mistakenly stated that both the minor and minimal role adjustments “are to be used infrequently,” 4 when in fact the sentencing guideline commentary pairs the “infrequently used”…