Filed: Feb. 27, 2015
Latest Update: Mar. 02, 2020
Summary: United States v. Mackey, 117 F.3d 24, 29 (1st Cir.district court.such fact in this case.the credibility of the witness who relates the statement is not a, proper factor for the court to consider in assessing corroborating, circumstances.only evidence tying Ocasio-Ruiz to the carjacking and murder.
United States Court of Appeals
For the First Circuit
No. 13-1748
UNITED STATES OF AMERICA,
Appellee,
v.
KYVANI OCASIO-RUIZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose A. Fuste, U.S. District Judge]
Before
Lynch, Chief Judge,
Souter,* Associate Justice,
and Stahl, Circuit Judge.
Anita Hill Adames for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, with whom
Rosa Emilia Rodríguez-Vélez, United States Attorney, and Francisco
A. Besosa-Martínez, Assistant United States Attorney, were on
brief, for appellee.
February 27, 2015
*
Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
SOUTER, Associate Justice. Kyvani Ocasio-Ruiz was convicted
of a number of crimes arising out of a carjacking and murder in
Puerto Rico. The government's evidence at trial rested on the
testimony of a cooperating witness, who testified that he, Ocasio-
Ruiz, and four other co-conspirators (including Luis Maldonado-
Castro) carjacked Joseph A. Seymour. His evidence was that, after
interrogating Seymour on suspicion of snitching to a rival drug
gang, the group drove to a secluded place, with Ocasio-Ruiz and
Maldonado-Castro sitting on opposite sides of Seymour in the back
seat of a truck. The witness (who was in the back of the truck)
heard one gunshot shortly after he heard Ocasio-Ruiz ask Maldonado-
Castro for his pistol.
At trial, Ocasio-Ruiz sought to introduce the testimony of
Maldonado-Castro's mother. Maldonado-Castro had been killed before
trial, but his mother was prepared to testify that, shortly before
his death, he came to her in her house and confessed that he alone
had killed Seymour. Specifically, the mother proffered that her
son said that "he was by himself all the time."
The district court refused to admit the mother's testimony,
concluding that it was not hearsay admissible under Fed. R. Evid.
804(b)(3), which permits the admission of hearsay declarations
against interest of an unavailable witness only when sufficient
corroboration exists for the hearsay itself. The district court
found "absolutely no corroborating circumstances."
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We reverse. The district court's finding was erroneous, as
this court has recognized that statements against interest made to
a close relation bear at least some corroborating indicia of
truthfulness. And because the error is not harmless, we vacate the
convictions as to all counts and remand the case to the district
court.
I.
Ocasio-Ruiz was indicted and brought to trial on four counts:
(1) he and his co-defendants knowingly and intentionally conspired,
with intent to cause death and serious bodily harm, to take an
automobile from Seymour by force, violence, or intimidation,
resulting in Seymour's death; (2) he and his co-defendants aided
and abetted each other, intending to cause death and serious bodily
harm, knowingly and wilfully to take an automobile from Seymour by
force, violence, or intimidation, resulting in Seymour's death; (3)
he and his co-defendants aided and abetted each other in knowingly
using, brandishing, and discharging a firearm during a carjacking;
and (4) he and his co-defendants aided and abetted each other in
wilfully, intentionally, deliberately, and maliciously, and with
premeditation causing Seymour's death by use of a firearm during
the perpetration of the robbery.
Shortly after the government concluded its case-in-chief
(resting on the cooperating witness's testimony), Ocasio-Ruiz
called Maldonado-Castro's mother to testify. Following an
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objection, the mother proffered her testimony, as recounted
earlier.
After considering the parties' legal memoranda, the district
court excluded the mother's testimony as inadmissible hearsay. The
district court cited Rule 804(b)(3), and found two conditions of
admissibility satisfied: that the declarant (Maldonado-Castro) was
unavailable and that the confession was against the declarant's
interest. As to the third condition, however, it found "that there
[are] absolutely no corroborating circumstances that clearly
indicate the trustworthiness of [the confession]." It added,
"[t]here [are] simply no corroborating circumstances."
Accordingly, it excluded the mother's testimony.1
The jury found Ocasio-Ruiz guilty on all four counts. The
district court sentenced him to life in prison on counts one, two,
and four, and ten years in prison on count three, all to run
consecutively.
1
Ocasio-Ruiz also proffered the testimony of a minister to
corroborate Maldonado-Castro's confession. The minister met
Maldonado-Castro approximately two weeks prior to the confession,
and based on their interaction that night (which included the
cleric's declaration to Maldonado-Castro that the angel of death
hovered over him), the minister believed that Maldonado-Castro had
accepted God. Ocasio-Ruiz viewed this testimony as establishing
Maldonado-Castro's guilty state of mind, which Ocasio-Ruiz viewed
as some corroboration of Maldonado-Castro's confessing a few weeks
later to his mother. The district court found no corroboration in
the cleric's testimony and found it otherwise irrelevant. We do
not find this conclusion to be an abuse of discretion, although on
the face of the record, this is not the only evaluation reasonably
possible.
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II.
Ocasio-Ruiz's principal contention is that the district court
committed reversible error in its analysis of the admissibility of
the testimony of Maldonado-Castro's mother.
A.
Our enquiry into the claim of error goes to the hearsay
exception for statements against interest provided by Federal Rule
of Evidence 804(b)(3). Under this Rule, a statement is not
excluded by the ordinary rule against hearsay if the declarant is
unavailable as a witness and if the following conditions are met:
(A) a reasonable person in the declarant's position would
have made [the statement] only if the person believed it
to be true because, when made, it was so contrary to the
declarant's proprietary or pecuniary interest or had so
great a tendency to invalidate the declarant's claim
against someone else or to expose the declarant to civil
or criminal liability; and
(B) [the statement] is supported by corroborating
circumstances that clearly indicate its trustworthiness,
if it is offered in a criminal case as one that tends to
expose the declarant to criminal liability.
Fed. R. Evid. 804(b)(3).
"Rule 804(b)(3) is founded on the commonsense notion that
reasonable people, even reasonable people who are not especially
honest, tend not to make self-inculpatory statements unless they
believe them to be true." Williamson v. United States, 512 U.S.
594, 599 (1994). To guard against the possibility of fabrication,
however, a clear degree of corroboration is required. See
generally United States v. Barrett,
539 F.2d 244, 249-53 (1st Cir.
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1976) (tracing the history and purpose of the corroboration
requirement). Such corroboration "is not independent evidence
supporting the truth of the matters asserted by the hearsay
statements, but evidence that clearly indicates that the statements
are worthy of belief, based upon the circumstances in which the
statements were made." United States v. Barone, 114 F.3d 1284,
1300 (1st Cir. 1997). This requisite indication "is not
unrealistically severe but does go beyond minimal corroboration."
United States v. Mackey,
117 F.3d 24, 29 (1st Cir. 1997) (citation
and internal quotation marks omitted).
The district court's finding that there were "absolutely no
corroborating circumstances" is incorrect as a matter of law, as
shown by cases in which this court has repeatedly recognized that
a close family relationship between a declarant and recipient of a
statement against interest is an indication of truthfulness. In
Barone, we applied this principle to a statement made to the
declarant's sister in a non-custodial setting. See 114 F.3d at
1301. Much more recently, we applied it to a statement made to the
declarant's cousin. United States v. Monserrate-Valentín,
729 F.3d
31, 53 (1st Cir. 2013). Indeed, in Monserrate-Valentín, the
familial context was considered not only competent evidence of
truthfulness but sufficient of itself to corroborate the statement.
Id. And we have even extended the principle of relationship as
competent corroborative evidence to a non-familial acquaintance,
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the declarant's fellow inmate, in United States v. Pelletier, 666
F.3d 1, 8 (1st Cir. 2011). While these cases do not hold that
making a statement against interest to a close relation is a
sufficient corroborating fact as a matter of law under Rule
804(b)(3), our affirmation of district court cases holding it
competent evidence (and, in one instance, accepting it as
sufficient in fact) reflects our acknowledgment that a familial tie
has corroborative value. It follows that the circumstances of the
statement in this case, where the declarant was speaking to his
mother, and doing so in her house in the absence of any stimulus
from any police activity, provide some corroboration. Because the
district court did not consider our relevant case law and its
application to these facts, it erred as a matter of law in finding
"absolutely no corroborating circumstances."
We are mindful, of course, that, under the law of this
circuit, a district court's judgment about corroboration will not
be set aside lightly. See Barrett, 539 F.2d at 253 ("Trial judges
will have to make an assessment case by case and in attempting to
understand the standard may be aided by the legislative comments
quoted above. In cases that are open to reasonable differences,
this court is unlikely to substitute its judgment for that of the
district court."); Barone, 114 F.3d at 1301 ("In the final
analysis, the Rule 804(b)(3) corroboration inquiry is concerned
only with the admissibility of hearsay evidence based upon its
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trustworthiness, a determination committed to the sound discretion
of the district court."); Mackey, 117 F.3d at 29 ("[T]he district
court has a substantial degree of discretion in making this
important finding on trustworthiness." (internal quotation marks
omitted)); Pelletier, 666 F.3d at 9 ("[W]e respect the district
court's determination absent clear abuse."). But the district
court did not exercise its discretion here. Its judgment was not
that the probative force of some corroboration existed but was too
minimal to meet the standard required by Rule 804(b)(3). Rather,
it found no corroborating circumstances and thus proceeded to
exclude the mother's testimony without any evaluation. Thus, there
is no district court judgment call to which we could defer here,
only a factual finding that was erroneous as a matter of law, with
the consequence that the district court made no analysis of the
corroborative underpinnings of the proffered testimony under this
court's law.
B.
Having found error, our next enquiry is whether it warrants
reversal, that is, whether the error is harmless. We will not
reverse if it is highly probable that the error did not contribute
to the verdict, United States v. Delgado-Marrero, 744 F.3d 167, 179
(1st Cir. 2014), which Judge Boudin has explained to mean that a
conviction will be upheld if it is highly probable that the result
would have been the same, United States v. Vigneau,
187 F.3d 82, 86
-8-
(1st Cir. 1999); see also United States v. Sepúlveda, 15 F.3d 1161,
1182 (1st Cir. 1993) (discussing factors relevant to determining
harmlessness). Because the issue was preserved, the burden of
persuasion rests on the government,
Delgado-Marrero, 744 F.3d at
179, which has pressed no argument of harmlessness before this
court.
In this case, the harmlessness enquiry comprises two
successive questions. First, was the error harmless because it is
highly probable that, even with the application of governing case
law, the mother's testimony would have been excluded? Second, was
the error harmless because, even if the mother's testimony had been
admitted, it is highly probable that Ocasio-Ruiz would have been
convicted on all four counts? We answer no to both questions.
As to the first, we cannot infer a high probability that the
mother's testimony would have been excluded; there is sufficient
evidence from which the district court could have concluded, in the
exercise of its discretion, that the hearsay was sufficiently
corroborated. To begin with, as we said, our cases acknowledge
that making a statement against interest to a close relation is a
competent corroborating fact. And familial context is not the only
such fact in this case. The nature of the statement (a confession
to murder could subject the declarant to severe penalty), the
detail of the proffer (which included several admissions that
Maldonado-Castro acted alone), the location in which it was made (a
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non-custodial, family setting) provide further corroborating
elements. Again, this is not to say that the hearsay in the
mother's testimony must be deemed corroborated, and thus be
admitted, in this case. We cannot say that, on fully weighing the
facts on remand (not necessarily limited to those just mentioned),
the district court will not have grounds to conclude, in the
exercise of its discretion, that the mother's testimony lacks
sufficient corroboration.2 Such is the nature of discretionary
judgments. For present purposes (including the preserved nature of
the claim and the government's waiver of a harmlessness argument),
however, it need only be established that the district court could
have exercised its discretion to admit the mother's testimony.
Because that is so, we could not find the error harmless without
more.
As to the second question, we cannot find it to be highly
probable that the mother's testimony would not have altered the
jury's verdict. As noted earlier, the mother's proffer was that
her son confessed to committing the murder alone, that "he was by
himself all the time." She pressed him on this point, and he
2
While the district court appeared skeptical of the mother's
credibility because she waited many years before coming forward,
"the credibility of the witness who relates the statement is not a
proper factor for the court to consider in assessing corroborating
circumstances. To base admission or exclusion of a hearsay
statement on the witness's credibility would usurp the jury's role
of determining the credibility of testifying witnesses." Fed. R.
Evid. 804, advisory committee's note (2010 amendments); see also
Barone, 114 F.3d at 1300-01.
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repeated that he acted alone. This flatly contradicts the
testimony of the government's cooperating witness, who gave the
only evidence tying Ocasio-Ruiz to the carjacking and murder.
Accordingly, if the mother's testimony had been admitted, the jury
would have been forced to make a credibility determination. And if
the jury had found Maldonado-Castro's mother and the hearsay
admission more credible than the cooperating witness, then Ocasio-
Ruiz could well have been acquitted on all counts as having been
uninvolved in the murder or carjacking or not involved to the
requisite degree of clarity. We may wonder about such a
possibility, but we have no evidentiary basis to exclude it as a
matter of fact, and cannot exclude it as a matter of law.
Given these circumstances, we cannot reach a conclusion to the
degree of a high probability that the erroneous evidentiary ruling
did not contribute to the verdict. We vacate Ocasio-Ruiz's
convictions accordingly.
III.
We make one final observation. Although, after vacating all
the convictions, we need not consider any other errors Ocasio-Ruiz
raises on appeal, we address one because it may recur on remand.
Ocasio-Ruiz argues that he was improperly sentenced to life in
prison on count one, which was essentially conspiracy to commit
carjacking. Although the carjacking statute itself carries a
statutory maximum sentence of life in prison if death results, 18
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U.S.C. § 2119, the federal conspiracy statute carries only a five
year maximum, id. § 371. Accordingly, Ocasio-Ruiz argues that he
should have received no more than a five-year sentence on count
one.
We agree with Ocasio-Ruiz. Although count one in the
indictment cites the substantive carjacking statute, and this
statute provides for a life sentence if, as here, death results,
id. § 2119, the narrative portions of the indictment make it clear
that count one charged only conspiracy, not a substantive crime.
And, as Ocasio-Ruiz correctly observes, the general conspiracy
statute under which he was charged carries a five year maximum
sentence.
Id. § 371. By contrast, Congress has created some
specific conspiracy crimes with parallel sentencing, that is, with
the statutory maximum sentence for a conspiracy crime following
that of the underlying substantive offense. See, e.g., 21 U.S.C.
§ 846 (drug conspiracy); 18 U.S.C. § 1117 (conspiracy to commit
homicide). Because, however, Ocasio-Ruiz was charged under the
general federal conspiracy statute, which does not itself provide
for parallel sentencing, he should not have been sentenced to more
than five years in prison on count one.
IV.
The judgment of the district court is reversed and vacated,
and the case is remanded.
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