United States v. Jose Liera-Morales , 759 F.3d 1105 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10548
Plaintiff-Appellee,
D.C. No.
v. 4:12-cr-00115-
JGZ-CRP-1
JOSE ANTONIO LIERA-MORALES,
AKA Jose Antonio Liera Morales,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding
Argued and Submitted
March 10, 2014—San Francisco, California
Filed July 21, 2014
Before: J. Clifford Wallace, M. Margaret McKeown,
and Ronald M. Gould, Circuit Judges.
Opinion by Judge McKeown
2 UNITED STATES V. LIERA-MORALES
SUMMARY*
Criminal Law
The panel affirmed convictions stemming from the
defendant’s participation in a scheme to kidnap for ransom
Franklin Aguilar-Avila, in a case in which the defendant was
part of a human-trafficking ring that contacted Aguila-Avila’s
mother, Sonia Avila, to demand payment for her son’s
release.
The panel held that the district court’s admission of a
government agent’s testimony recounting Avila’s description
of the telephone call in which she arranged for the safe return
of her son did not violate the Confrontation Clause of the
Sixth Amendment because the call was made primarily to
address an ongoing emergency and the challenged statements
were nontestimonial.
The panel held that even if the Rule of Completeness
applies, the district court did not abuse its discretion in
admitting a government agent’s testimony about portions of
the defendant’s post-arrest interview but precluding the
defendant from introducing exculpatory statements from that
interview.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. LIERA-MORALES 3
COUNSEL
Keith J. Hilzendeger (argued), Federal Public Defender’s
Office of Phoenix, Phoenix, Arizona, for Defendant-
Appellant.
Kyle J. Healey (argued), Assistant United States Attorney;
John S. Leonardo, United States Attorney; Robert L. Miskell,
Assistant United States Attorney, Appellate Chief, Tucson,
Arizona, for Plaintiff-Appellee.
OPINION
McKEOWN, Circuit Judge:
Jose Antonio Liera-Morales appeals from the judgment
following his jury convictions stemming from his
participation in a scheme to kidnap for ransom Franklin
Aguilar-Avila (“Aguilar”). Liera-Morales was part of a
human-trafficking ring that contacted Aguilar’s mother, Sonia
Avila, to demand payment for her son’s release. Under
stressful and emotional circumstances, Avila spoke with the
traffickers by telephone to arrange for the safe return of her
son and then recounted that conversation to a government
agent. That agent’s trial testimony about the telephone call
is the focus of this appeal. We hold that the district court’s
admission of the agent’s testimony recounting Avila’s
description of the call did not violate the Confrontation
Clause of the Sixth Amendment because the call was made
primarily to address an ongoing emergency and the
challenged statements were nontestimonial. We therefore
affirm Liera-Morales’s convictions.
4 UNITED STATES V. LIERA-MORALES
BACKGROUND
I. FACTUAL BACKGROUND
In 2011, Liera-Morales unlawfully entered the United
States with the assistance of a human-trafficking ring and
later began working for the trafficking ring to pay off his
remaining smuggling fee. As a part of his duties, Liera-
Morales participated in at least one smuggling operation. In
December 2011, he picked up three undocumented
immigrants in the Arizona desert and helped transport them
to a trailer house in Tucson, Arizona. One of those
individuals was Aguilar, an eighteen-year-old Honduran
citizen who decided to come to the United States hoping to
find work and be with his mother, Sonia Avila, in Houston,
Texas.
After securing Aguilar in the trailer house, Liera-Morales
and other members of the trafficking ring (collectively, the
“captors”) began blackmailing Avila. Avila testified that she
received threatening telephone calls from the captors
demanding ransom money for her son’s return.1 During one
of those telephone calls, on December 14, 2011, the captors
threatened to “eliminate” Aguilar. Fearing for her son’s life,
Avila panicked and then called 911. Her 911 call was
referred to Tucson Immigration and Customs Enforcement
(“ICE”) agents, who used geolocation coordinates to pinpoint
the origin of the telephone call. The Tucson ICE agents
instructed Houston ICE Agent Jose Goyco to meet with Avila
and to arrange a recorded telephone call between Avila and
the captors.
1
At trial, Liera-Morales denied that any of the captors, including
himself, made any ransom demands or threatened to kill Aguilar.
UNITED STATES V. LIERA-MORALES 5
Agent Goyco arrived at Avila’s residence around 1:00
a.m. on December 15. He asked Avila to call Aguilar’s
captors, to try speaking directly with Aguilar, and to tell the
captors that a man named “Tony” was going to meet them
later that afternoon to pay for Aguilar’s return. According to
Agent Goyco, Avila followed these instructions and was able
to speak with Aguilar during the telephone call. Seeking to
gather information about Aguilar’s location, Agent Goyco
attempted to record the conversation but was unable to obtain
an audible recording because Avila was shaking, crying, and
very nervous.
After the telephone call, Avila was still “shaking” and
“crying . . . like she was lost” because, as she testified, she
had just “received threats about” Aguilar, specifically “that
[her son] was going to be eliminated . . . his life would be
taken.” Agent Goyco testified that Avila told him that her
son “was going to get killed,” and that the captors warned that
“she needed to find a way to get the money and to make sure
that she was going to get the money on time and that they had
until 3:00 o’clock in the afternoon and they would speak to
the other person to see whether can arrange [sic].” Agent
Goyco relayed this information to the Tucson ICE agents.
After Agent Goyco left Avila’s house, she received
another call from the captors around 11:00 a.m. During that
second telephone call, she “was told to say [her] good-byes
to [her] son because [the captors] were going to do away with
him. He was going to be taken to the desert.” Avila also
spoke with Aguilar, who pleaded with her saying “Mommy,
Mommy, give [the captors] the money.” Immediately
afterward, Avila contacted the authorities to report the second
telephone call.
6 UNITED STATES V. LIERA-MORALES
Later that day, Tucson ICE agents conducted a sting
operation to rescue Aguilar. An undercover ICE agent,
playing the role of “Tony,” contacted the captors and agreed
to meet them at a taco shop to pay the ransom money for
Aguilar. Apparently suspicious of “Tony” and the planned
meeting, the captors did not show up at the taco shop,
prompting the undercover agent to call the captors to set up
another meeting location. Shortly thereafter, a team of agents
intercepted the captors’ vehicle, searched the driver (later
identified as Liera-Morales), and seized his cell phone, which
matched the telephone number of the ransom calls made to
Avila. Agents found Aguilar lying in the back seat of the
truck, and then arrested Liera-Morales.
The agents brought Liera-Morales to the ICE field office
in Tucson, where Agent Mason Nicholls interviewed him.
Liera-Morales explained that “he and another man went out
to the desert” south of Tucson, “picked [Aguilar] and two
other individuals up,” and “brought [them] to a residence . . .
in Tucson.” During the interview, Liera-Morales also said
that he told Avila she owed “$750 for bringing [Aguilar] out
of the . . . desert,” that Avila had previously made
arrangements to pay Aguilar’s ransom, and that, on December
15, “they were taking [Aguilar] to meet up with another
individual[] that his mom had arranged to make the
payment.”
II. PROCEDURAL HISTORY
A grand jury returned a five-count indictment against
Liera-Morales, charging him with one count each of hostage
taking, communicating a ransom demand in interstate
commerce, interfering with interstate commerce by threats or
UNITED STATES V. LIERA-MORALES 7
violence, transporting an alien for profit, and harboring an
alien for profit.
Before trial, the government filed two motions in limine.
The district court granted the government’s first motion,
which sought to introduce Agent Goyco’s testimony covering
what Avila told him about the first telephone call to the
captors. The district court ruled that Agent Goyco’s
anticipated testimony qualified as present sense impressions
or impromptu excited utterances and rejected Liera-Morales’s
Confrontation Clause challenge because, among other
reasons, the proffered testimony was nontestimonial.
The district court also granted the government’s second
motion with some qualifications, ruling that the government
could introduce several of Liera-Morales’s post-arrest
statements through Agent Nicholls’s testimony. The district
court found that the selected statements were not misleading
or taken out of context and rejected Liera-Morales’s
contention that Federal Rule of Evidence 106 (the “Rule of
Completeness”) permitted him to introduce exculpatory
portions of the interview.
Consistent with these rulings, at trial Agent Goyco
testified as to what Avila told him about her telephone call
with the captors, and Agent Nicholls related certain
statements made by Liera-Morales during the post-arrest
interview.
The jury found Liera-Morales guilty of hostage taking,
interference with commerce by threats or violence,
transportation of an alien for profit, and harboring an alien for
profit, and acquitted him of communicating a ransom demand
in interstate commerce. He was sentenced to concurrent
8 UNITED STATES V. LIERA-MORALES
prison terms for his convictions, the longest of which was 192
months.
DISCUSSION
I. CONFRONTATION CLAUSE
The central issue in this appeal is whether the admission
of statements made by Avila to Agent Goyco about the
telephone conversation with her son’s captors violated the
Confrontation Clause.2 Liera-Morales argues that “[t]he
unidentified trafficker’s statements to Mrs. Avila were . . .
testimonial” and complains that he had no opportunity to
cross-examine that unidentified interlocutor. On de novo
review, we conclude that admitting the statements did not run
afoul of the Confrontation Clause because they were
nontestimonial in light of the particular emergency
circumstances.3 See United States v. Orozco-Acosta,
607 F.3d 1156, 1160–62 (9th Cir. 2010).
The Confrontation Clause provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” U.S. Const.
amend. VI. “This means that testimonial statements are
inadmissible in criminal prosecutions unless the declarant is
2
Liera-Morales does not challenge the district court’s hearsay ruling that
Agent Goyco’s testimony qualified as both present sense impressions and
excited utterances. We therefore do not disturb that uncontested ruling on
appeal.
3
The parties dispute whether Liera-Morales was the captor who spoke
to Avila during the telephone call. We need not resolve this dispute
because, regardless of who spoke to Avila, the challenged statements were
nontestimonial.
UNITED STATES V. LIERA-MORALES 9
unavailable and the defendant had a prior opportunity to
cross-examine the declarant.” United States v. Rojas-
Pedroza, 716 F.3d 1253, 1267 (9th Cir. 2013) (emphasis
added) (citing Crawford v. Washington, 541 U.S. 36, 59
(2004)).
The Supreme Court in Crawford set forth examples of the
“core class” of testimonial statements, and post-Crawford
cases have since “clarified . . . the limits of the testimonial
statement category” by focusing largely on the “primary
purpose” of the interrogation or investigation. See United
States v. Solorio, 669 F.3d 943, 952–53 (9th Cir. 2012); see
also Davis v. Washington, 547 U.S. 813, 826 (2006). For
example, interrogations by law enforcement officers “solely
directed at establishing the facts of a past crime, in order to
identify (or provide evidence to convict) the perpetrator” fall
within the ambit of testimonial hearsay. Davis, 547 U.S. at
826. By contrast, “[s]tatements are nontestimonial when
made in the course of police interrogation under
circumstances objectively indicating that the primary purpose
of the interrogation is to enable police assistance to meet an
ongoing emergency.” Id. at 822.
In light of the ongoing hostage situation and the risk of
grave harm to Aguilar, the challenged statements fall squarely
in the emergency category of nontestimonial statements
contemplated by Davis and its progeny. Although not
“dispositive of the testimonial inquiry,” “the existence of an
‘ongoing emergency’ at the time of an encounter between an
individual and the police is among the most important
circumstances informing the ‘primary purpose’ of an
interrogation.” Michigan v. Bryant, 131 S. Ct. 1143, 1157,
1160 (2011) (internal quotation marks omitted); see, e.g.,
United States v. Arnold, 486 F.3d 177, 189–90 (6th Cir. 2007)
10 UNITED STATES V. LIERA-MORALES
(en banc) (holding that witness’s statements during 911 call
shortly after fleeing from gun-wielding assailant were made
during an ongoing emergency and thus were nontestimonial).
The formality of a statement is also “a relevant factor in
determining whether the statement is testimonial.” E.g.,
Rojas-Pedroza, 716 F.3d at 1268.
Viewed objectively, the circumstances here establish that
the challenged statements were nontestimonial. The reason
for the telephone call was “to enable police assistance to meet
an ongoing emergency,” Bryant, 131 S. Ct. at 1156 (internal
quotation marks omitted), and the challenged statements were
made “in spite of, not because of, the possibility of a later
criminal trial,” Arnold, 486 F.3d at 189. The captors made
numerous demands for payment and, according to Avila,
repeatedly threatened to “eliminate” Aguilar if those demands
were not met. During the telephone call with the captors,
Avila was very nervous, shaking, and crying in response to
continuous ransom demands and threats to her son’s life.
Agents thus faced an emergency hostage situation. Cf.
United States v. Mancinas-Flores, 588 F.3d 677, 687 (9th Cir.
2009) (amended opinion) (noting in Fourth Amendment
context that “[m]any courts, including this one, have
recognized that an ongoing hostage situation presents exigent
circumstances”).
The agents’ conduct confirms that the primary purpose of
the telephone call was to respond to these threats and to
ensure Aguilar’s safety. Agent Goyco instructed Avila to call
the captors to determine her son’s location and to coordinate
a meeting between the captors and undercover agent “Tony.”
Agent Goyco then gave Avila’s information to the Tucson
ICE agents coordinating the rescue mission. Even though
Agent Goyco later memorialized Avila’s statements in a
UNITED STATES V. LIERA-MORALES 11
written report, the primary purpose of the telephone call itself
was not to establish “the facts of a past crime” or to “provide
evidence to convict” Liera-Morales. Davis, 547 U.S. at
826–27 (“A 911 call, . . . and at least the initial interrogation
conducted in connection with a 911 call, is ordinarily not
designed to ‘establis[h] or prov[e]’ some past fact, but to
describe current circumstances requiring police assistance.”
(alterations in original)); see also Solorio, 669 F.3d at
953–54. Significantly, Liera-Morales acknowledged at oral
argument that the three purposes of the telephone call were to
gauge whether Aguilar was alive, to determine the nature and
extent of the hostage situation, and to save Aguilar’s life.
In addition, the statements of Avila and the captor during
the telephone call lacked any indicia of formality: they
occurred in an informal high-stress “environment that was not
tranquil, or even . . . safe” in light of Aguilar’s captivity.
Davis, 547 U.S. at 827. Given the objective circumstances,
the record belies Liera-Morales’s suggestion that these were
testimonial statements “made to a government officer with an
eye toward trial.” See Jensen v. Pliler, 439 F.3d 1086, 1089
(9th Cir. 2006) (amended opinion).
Nor did Agent Goyco’s attempt to record the telephone
call render the challenged statements testimonial. He
primarily sought to record the call to obtain information about
Aguilar’s location and to facilitate the plan to rescue Aguilar.
Far from an attempt to build a case for prosecution, Agent
Goyco’s actions were good police work directed at resolving
a life-threatening hostage situation. Although the recording,
if audible, might have been used in prosecuting Liera-
Morales, “this potential future use does not automatically
place [the statements] within the ambit of testimonial.” See,
e.g., United States v. Morales, 720 F.3d 1194, 1201 (9th Cir.
12 UNITED STATES V. LIERA-MORALES
2013) (alterations in original) (internal quotation marks
omitted).
Law enforcement officers, like Agent Goyco, “function as
both first responders and criminal investigators,” and “[t]heir
dual responsibilities may mean that they act with different
motives simultaneously or in quick succession.” See Byrant,
131 S. Ct. at 1161. The record confirms that Agent Goyco’s
principal motive in recording the telephone call was to ensure
Aguilar’s safety and assist his fellow agents in executing a
rescue mission. That Agent Goyco may have also recorded
the call in part to build a criminal case does not alter our
conclusion that the primary purpose of the call was to diffuse
the emergency hostage situation. Consequently, the
challenged statements from the telephone call were
nontestimonial, and their introduction at trial did not violate
Liera-Morales’s Confrontation Clause rights.
II. RULE OF COMPLETENESS
The district court admitted Agent Nicholls’s testimony
about portions of Liera-Morales’s post-arrest interview, but
precluded Liera-Morales from introducing exculpatory
statements from that interview. Liera-Morales argues that the
district court contravened the Rule of Completeness. Fed. R.
Evid. 106. We disagree.
Rule 106 provides that “[i]f a party introduces all or part
of a writing or recorded statement, an adverse party may
require the introduction, at that time, of any other part—or
any other writing or recorded statement—that in fairness
ought to be considered at the same time.” Fed. R. Evid. 106.
By its terms, Rule 106 “applies only to written and recorded
statements.” United States v. Ortega, 203 F.3d 675, 682 (9th
UNITED STATES V. LIERA-MORALES 13
Cir. 2000). Consistent with Rule 106’s text, we have recently
observed that “our cases have applied the rule only to written
and recorded statements.” United States v. Hayat, 710 F.3d
875, 896 (9th Cir. 2013) (internal quotation marks omitted).
Nevertheless, at least two of our sister circuits have
recognized that the principle underlying Rule 106 also applies
to oral testimony “by virtue of Fed. R. Evid. 611(a), which
obligates the court to make the interrogation and presentation
effective for the ascertainment of the truth.” United States v.
Mussaleen, 35 F.3d 692, 696 (2d Cir. 1994) (internal
quotation marks omitted); accord United States v. Li, 55 F.3d
325, 329 (7th Cir. 1995) (“[T]he rule of completeness applied
to the oral statement.”).
Even if the principle underlying Rule 106 extended to the
statements at issue here, see United States v. Collicott,
92 F.3d 973, 983 & n.12 (9th Cir. 1996), the district court did
not abuse its discretion in refusing to admit portions of the
interview, see United States v. Vallejos, 742 F.3d 902, 905
(9th Cir. 2014) (holding that “if the complete statement
[does] not serve to correct a misleading impression in the
edited statement that is created by taking something out of
context, the Rule of Completeness will not be applied to
admit the full statement” (alteration in original) (internal
quotation marks omitted)).4 The district court carefully and
thoroughly considered the government’s proffered statements
from the post-arrest interview and correctly determined that
those statements were neither misleading nor taken out of
context. See Collicott, 92 F.3d at 982–83. Contrary to Liera-
4
During oral argument, Liera-Morales candidly acknowledged that our
reasoning in Vallejos controls the outcome of this case, and all but
abandoned the Rule of Completeness claim raised in his briefing.
14 UNITED STATES V. LIERA-MORALES
Morales’s characterization, the district court’s determination
did not overlook considerations of fairness.
AFFIRMED.