United States v. Raymond Duenas, Jr. , 691 F.3d 1070 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 09-10492
v.  D.C. No.
1:07-cr-00039-
RAYMOND IGNACIO DUENAS, Jr., DDP-1
Defendant-Appellant.

UNITED STATES OF AMERICA,  No. 09-10496
Plaintiff-Appellee, D.C. No.
v.  1:07-cr-00039-
LOURDES CASTRO DUENAS, DDP-2
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Guam
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted
June 14, 2011—Honolulu, Hawaii
Filed August 16, 2012
Before: Arthur L. Alarcón, Kim McLane Wardlaw, and
N. Randy Smith, Circuit Judges.
Opinion by Judge Wardlaw
9335
UNITED STATES v. DUENAS 9339
COUNSEL
Mark Eibert, Half Moon Bay, California, for defendant-
appellant Raymond Ignacio Duenas, Jr.
Gretchen Fusilier, Carlsbad, California, for defendant-
appellant Lourdes Castro Duenas.
Alicia Limtiaco, United States Attorney; Karon Virginia
Johnson, Assistant United States Attorney; Hagatna, Guam,
for plaintiff-appellee United States of America.
OPINION
WARDLAW, Circuit Judge:
These consolidated appeals arise from the chaotic two-day
execution of a search warrant by the Guam Police Depart-
9340 UNITED STATES v. DUENAS
ment’s (“GPD”) SWAT team, in coordination with federal
DEA and ATF agents. The search resulted in one of the larg-
est “busts” of stolen items in Guam’s history. The “woefully
inadequate” management of the search of Raymond (“Ray”)
and Lourdes (“Lou”) Duenas’s compound and the staging of
the inventory of seized drugs and goods on the compound’s
front yard attracted members of the media and victims who
came to claim their property while the two-day execution of
the warrant was ongoing.
Ray and Lou were arrested and separately gave statements
to police officers. The district court denied their motions to
suppress evidence of the drugs and stolen goods seized in the
raid and their statements. A jury convicted each of the Due-
nases on multiple counts. Both appeal their convictions, con-
tending that the suppression motions should have been
granted, that former testimony of by-then-deceased Officer
Frankie Smith should not have been admitted at trial, and that
there was insufficient evidence to support their convictions.
Although the conduct of the search was highly questionable,
given the participation of the public and the media, the district
court did not err by deciding not to exclude the stolen items,
drugs, and other paraphernalia found in the compound. How-
ever, the district court abused its discretion by admitting the
former testimony of Officer Smith under Rule 804(b)(1) of
the Federal Rules of Evidence, because it incorrectly con-
cluded that defense counsel had a similar motive to cross-
examine Officer Smith when it questioned him at the suppres-
sion hearing as it would have had at the trial. Because Ray’s
statement was admitted through Smith’s former testimony,
Ray’s conviction must be reversed. However, we affirm Lou’s
conviction, as it was supported by sufficient evidence.
I. Factual Background
Ray and Lou lived on an isolated jungle property in
Dededo, Guam, with Ray’s mother, Ray’s daughter, and
another man. Ray’s mother owned the property. A main house
UNITED STATES v. DUENAS 9341
and a shipping container faced the dirt road leading up to the
property. Behind the house and container, toward the rear of
the property, was a make-shift four-room shack in which Ray
and Lou lived.1
At approximately 5:40 a.m. on April 19, 2007, GPD offi-
cers, along with DEA and ATF agents, executed a search war-
rant at the Duenases’ residence for evidence of narcotics
trafficking. Ray and Lou were asleep in the room dubbed
“Lou room/Ray’s room” when the officers entered the resi-
dence. The search scene was “almost chaotic,” according to
Guam Chief of Police Paul Suba. The district court character-
ized GPD’s management of the scene as “woefully inade-
quate.” Although up to forty officers were present, no single
officer was clearly in charge of managing the scene. The testi-
mony at trial demonstrated that members of the media and
other civilians were allowed on the Duenas property during
the search to film and photograph the scene. Journalist Eric
Palacios testified that he arrived shortly after 9:00 a.m., fol-
lowing an anonymous phone call indicating that something
was happening on Ysengsong Road, where the Duenases
lived. Trina San Augustin, another journalist, testified that she
too went to the Duenas property after receiving an anonymous
call.
The media were instructed to remain in the front yard and
were not permitted past the shipping container. Officers
allowed the media to film and photograph stolen property as
it was taken from the residence and surrounding structures
and placed in a staging area in the front yard. GPD Officer
Scott Wade escorted some members of the media down a jun-
gle path to the rear of the property to view and photograph a
marijuana patch. Officer Kim Santos said that she escorted
Palacios further into the property “to where the SWAT offi-
cers were situated.” Officer Allan Guzman testified that, in a
1
Law enforcement agents termed the four rooms in this shack the
“kitchen,” “Lou room/Ray’s room,” “storage,” and “drug room.”
9342 UNITED STATES v. DUENAS
highly unusual departure from protocol, Chief Suba took
some journalists on a tour of the scene so they could film the
items being staged, with the hope that theft victims could
thereby identify their stolen property. Officer Wade also testi-
fied that he held a press conference at the edge of the front
yard.
The presence of members of the general public contributed
to the chaos at the search scene. Numerous denizens of Guam
came to the Duenas residence during the search to identify
items that had allegedly been stolen from them. Some of these
people touched the items in the staging area, and several
claimed property, which was released to them at the scene.
For example, one police officer was permitted to retrieve a
plasma television, and a local judge was permitted to retrieve
a gavel—which she later returned after realizing it was not
hers.
The search warrant authorized the police to seize items
including drugs, drug paraphernalia, weapons, and “illegally
obtained proceeds derived from violations of federal or state
statutes concerning felony possession, distribution and/or
manufacturing of controlled substances.” Officers seized
approximately 82 grams of methamphetamine, including 74
grams found in a safe at the foot of the bed in “Lou
room/Ray’s room.” Officers also seized guns, drug parapher-
nalia, three ledgers, and several thousand pieces of stolen
property. The ledgers, one of which Officer Frank Santos tes-
tified at trial “represented a typical drug ledger,” identify dol-
lar amounts in the hundreds and thousands, along with dates,
notes such as “credit,” and descriptions of items such as
“bracelet” or “beer.” In “Lou Room/Ray’s Room,” the offi-
cers found not only the ledger and the drug-filled safe, but
also guns and more drugs. GPD officers photographed that
evidence in situ and then removed it from the property. Offi-
cers moved the other seized property to the staging area in the
front yard. The search lasted two days because of the several
thousands of items the officers needed to catalog.
UNITED STATES v. DUENAS 9343
Meanwhile, Ray and Lou were arrested shortly after the
search commenced and were taken to the Tamuning precinct.
Thereafter, Ray and Lou each gave written and oral state-
ments regarding the drugs and the stolen property. In his
statement, Ray wrote that he had purchased numerous items,
including firearms, plasma televisions, power tools, and jew-
elry, with either cash or methamphetamine. Ray added that he
“received the drug ‘ice’ through a friend who needed help to
find buyers.” Officer Smith took Ray’s statement, and later
testified at a suppression hearing that Ray told him that he had
been selling methamphetamine in exchange for stolen goods.2
Ray, Officer Smith, and Special Agent Michelle Jong of the
DEA gave contradictory testimony about how Ray came to
give his statements to Officer Smith. After he was initially
apprehended by the SWAT team, Ray complained of injury.
He was eventually taken to the hospital by Officer Smith.
Smith and Ray had once been friends and had worked
together as cable installers, but had parted ways in 1997 when
Smith entered the police academy. According to Smith, Ray
called him over at the hospital and said, “Frank, the stuff at
the house . . . .” Smith testified that he interrupted Ray, telling
him “Ray, this is not the time, let’s get you treated first, talk
about this at the precinct.” Ray was examined at the hospital
and returned to the Tamuning precinct that afternoon.
Once Ray returned to the precinct, Special Agents Jong and
Than Churchin attempted to interview him, after advising him
of his Miranda rights. Jong stated that Ray said that he
wanted to talk with an attorney before making a statement.
Jong testified that she then ended the interview and told Ray
2
Because neither Ray nor Lou testified at trial, the prosecution used
redacted versions of these statements to avoid a Confrontation Clause vio-
lation. See Bruton v. United States, 391 U.S. 123 (1968). The district court
instructed the jury that it could not consider Lou’s statement against Ray,
or Ray’s statement against Lou, when weighing each of the defendants’
guilt or innocence.
9344 UNITED STATES v. DUENAS
she would look into getting him a Federal Public Defender.
She also told Ray that if he wanted to speak with her, he
would need to reinitiate contact. As she left the room, she
encountered Officer Smith. Jong informed Smith that Ray had
invoked his right to counsel. Smith then went into the confer-
ence room. When Jong saw Smith and Ray talking, she
entered to ask whether Ray wanted her present. When he
shook his head “no,” she left, and had no more contact with
Ray.
At the suppression hearing, Smith offered a different story3
: he testified that Jong did not tell him that Ray had asked for
an attorney, but instead “informed me that he didn’t want to
talk to her, but wanted to talk to one of us.” “I told her,”
Smith added, “I said I know why . . . I know him, and I told
her that I would go and talk to him.” Smith went into the con-
ference room and said: “How are you doing, Ray?” Ray
responded that he did not want to talk to the federal agents,
because they scared him, but that he would talk to Smith.
Smith then re-advised Ray of his Miranda rights. Ray signed
a form waiving those rights and indicating that he was willing
to make a statement. Ray then gave oral and written state-
ments admitting to selling methamphetamine out of his home
in exchange for stolen items; he also named his source.4
3
Defense counsel cross-examined Smith during the suppression hearing.
The circumstances and nature of Ray’s cross-examination are critical to
determining whether the district court erred by admitting Officer Smith’s
suppression-hearing testimony at trial under Federal Rule of Evidence
804(b)(1), and are described in detail in Section VI, infra.
4
Ray did not testify at the suppression hearing, but offered a declaration,
in which he stated that after he returned to the precinct he was yelled at
by Officers Smith and Piolo, who threatened him and told him that unless
he cooperated he would never see his mother, wife, or children again. Ray
claimed that Smith came into the conference room, showed him Lou’s
written confession and, without advising him of his rights, told him to
“sign a waiver and write down everything they wanted to know and every-
thing will stop . . . .” Smith denied that he threatened Ray, and said he
would not threaten a friend. In denying the suppression motion, the district
court did not address Ray’s declaration.
UNITED STATES v. DUENAS 9345
Lou’s statement acknowledged that police had found many
items, including “bush cutters, generator, cars, laptops,” and
that both she and Ray were “aware of what’s going on, that
the item are stolen, we exchange dope & cash to merchan-
dise.” GPD Officer Albert Piolo testified at trial that he and
Officer Smith took Lou’s oral statement, and that she admit-
ted to trafficking in methamphetamine for about a year and
selling methamphetamine in exchange for, among other
things, jewelry and a washing machine. Lou told the officers
that she distributed about one gram of methamphetamine at a
time. Special Agent Jong, who interviewed Lou separately,
testified at trial that Lou said that she occasionally used
methamphetamine, and kept about a gram at the house.
II. Procedural Background
A Superseding Indictment charged Ray with: (1) conspir-
acy to distribute more than 50 grams of methamphetamine in
violation of 21 U.S.C. §§ 841(a)(1) and 846; (2) possessing
more than 50 grams of methamphetamine with intent to dis-
tribute in violation of 21 U.S.C. § 841(a)(1); (3) using and
carrying a firearm during a drug trafficking crime in violation
of 18 U.S.C. § 924(c)(1)(A)(i); (4) being a felon in possession
of firearms in violation of 18 U.S.C. § 922(g)(1); and (5) pos-
sessing stolen guns in violation of 18 U.S.C. § 922(j). Lou
was charged with: (1) conspiracy to distribute more than 50
grams of methamphetamine in violation of 21 U.S.C.
§§ 841(a)(1) and 846; and (2) possessing more than 50 grams
of methamphetamine with intent to distribute in violation of
21 U.S.C. § 841(a)(1).
Following a lengthy suppression hearing, the district court
denied the Duenases’ joint motion to suppress the physical
evidence seized from their property. The district court rea-
soned that while the presence of members of the media on the
property during the search violated the Duenases’ Fourth
Amendment rights, the physical evidence was not subject to
the exclusionary rule because there was no evidence that any
9346 UNITED STATES v. DUENAS
member of the media was permitted to roam the property
freely “or in any way assisted in the search or touched any of
the property.”
Ray also moved to suppress his statements, arguing that
they were obtained in violation of Miranda because he had
been questioned before his rights were read to him, and that,
in any event, his statements were involuntary because his will
“had been . . . overborne” by the police on the day of the
search, as he had been injured, tired, frightened, and emo-
tional when questioned. The district court denied Ray’s
motion, finding that despite his initial refusal to talk, Ray sub-
sequently waived his right to counsel before speaking with
Officer Smith, and gave his statements voluntarily.
After the suppression hearing and before trial, Officer
Smith was killed by a drunk driver. Over Ray’s hearsay
objection, the district court concluded that Smith’s testimony
was “former testimony” under Federal Rule of Evidence
804(b)(1), and allowed Special Agent Sedberry to read por-
tions of Smith’s suppression hearing testimony to the jury.
At the end of the case-in-chief, Ray and Lou moved for a
judgment of acquittal pursuant to Federal Rule of Criminal
Procedure 29. Lou argued that there was no evidence of con-
spiracy, and that there was no proof that she had “possessed”
any drugs. Ray argued, inter alia, that there was no evidence
that he resided at the house. The district court denied both
motions.
On March 17, 2009, a jury convicted Ray of conspiracy and
possession with intent to distribute, use of a firearm during a
drug crime, and possession of stolen firearms. The jury con-
victed Lou of both conspiracy and possession with intent to
distribute.
Ray and Lou timely renewed their Rule 29 motions. On
December 2, 2009, the district court denied their motions, and
UNITED STATES v. DUENAS 9347
sentenced Ray to 25 and Lou to 20 years of imprisonment, the
statutory mandatory minimums for both.
III. Jurisdiction and Standards of Review
We have jurisdiction under 28 U.S.C. § 1291. We review
de novo the denial of a motion to suppress, United States v.
Crawford, 372 F.3d 1048, 1053 (9th Cir. 2004) (en banc), and
review for clear error factual findings underlying the denial of
such a motion, United States v. Bynum, 362 F.3d 574, 578
(9th Cir. 2004). We also review de novo whether the exclu-
sionary rule applies to a given case. Crawford, 372 F.3d at
1053 (citing United States v. Hammett, 236 F.3d 1054, 1057-
58 (9th Cir. 2001)). “ ‘The District Court’s construction or
interpretation of . . . the Federal Rules of Evidence, including
whether particular evidence falls within the scope of a given
rule, is subject to de novo review.’ ” United States v. Garrido,
596 F.3d 613, 616 (9th Cir. 2010) (quoting United States v.
Durham, 464 F.3d 976, 981 (9th Cir. 2006)). “Once it has
been determined that challenged evidence falls within the
scope of a given rule, the District Court’s decision to admit
the evidence is reviewed for abuse of discretion.” Id. (internal
quotation marks omitted). Where, as here, a defendant pre-
serves her claim of insufficient evidence by making a motion
under Federal Rule of Criminal Procedure 29 at the close of
the evidence, we review de novo the sufficiency of the evi-
dence supporting the conviction. United States v. Tucker, 641
F.3d 1110, 1118 (9th Cir. 2011) (citing United States v. Ruiz,
462 F.3d 1082, 1087-88 (9th Cir. 2006)).
IV. Suppression of the Physical Evidence
The district court did not err by denying the Duenases’
motions to suppress the physical evidence seized from their
property. The district court found that the media were present
on the front yard of the Duenas compound, but that their pres-
ence did not violate the Fourth Amendment because the front
yard was not curtilage, and there was no basis to find a rea-
9348 UNITED STATES v. DUENAS
sonable expectation of privacy in the front yard. The district
court also found, however, that the GPD violated the Fourth
Amendment by escorting certain members of the media
beyond the front yard. Nonetheless, the district court declined
to exclude the physical evidence resulting from the execution
of the warrant because the police conducted the search within
the parameters of the warrant, and there was no suggestion
that any member of the media discovered or developed any
evidence seized from the property.
A. Fourth Amendment Violation
[1] The Fourth Amendment protects the “right of the peo-
ple to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” U.S. Const.
amend. IV. The Duenases contend that the presence of the
media rendered the search of their compound unreasonable.
Whether the police violated the Duenases’ Fourth Amend-
ment rights is difficult to determine based on the factual
record developed below, as it is unclear whether any members
of the media entered the Duenases’ home or its curtilage.
[2] The leading case that addresses the presence of the
media during the execution of a search warrant is Wilson v.
Layne, 526 U.S. 603 (1999). In Wilson, U.S. Marshals and
county police permitted a reporter and a photographer from
the Washington Post to “ride-along” as they entered a home
pursuant to an arrest warrant. Id. at 607. The photographer
took “numerous pictures” in the home during the execution of
the warrant. Id. The homeowners sued the Marshals under
Bivens5 and the county police under 42 U.S.C. § 1983. Id. at
608. The Court first noted “the ‘overriding respect for the
sanctity of the home that has been embedded in our traditions
5
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388, 395 (1971) (holding that “damages may be obtained for injuries
consequent upon a violation of the Fourth Amendment by federal offi-
cials”).
UNITED STATES v. DUENAS 9349
since the origins of the Republic,’ ” id. at 610 (quoting Payton
v. New York, 445 U.S. 573, 601 (1980)), adding that “the
Fourth Amendment does require that police actions in execu-
tion of a warrant be related to the objectives of the authorized
intrusion,” id. at 611 (citing Arizona v. Hicks, 480 U.S. 321,
325 (1987)). In Wilson, the warrant made no mention of
media presence or assistance, id. at 606, and “the presence of
reporters inside the home was not related to the objectives of
the authorized intrusion,” id. at 611. The Supreme Court thus
held that “it is a violation of the Fourth Amendment for police
to bring members of the media or other third parties into a
home during the execution of a warrant when the presence of
the third parties in the home was not in aid of the execution
of the warrant.” Id. at 614.
The government challenges the Duenases’ standing to raise
a Fourth Amendment claim, arguing that the media never
entered any area in which Ray and Lou had a “legitimate
expectation of privacy.” See Rakas v. Illinois, 439 U.S. 128,
143 (1978)). In Katz v. United States, 389 U.S. 347 (1967),
the Supreme Court, reasoning that “the Fourth Amendment
protects people, not places,” concluded that the government
violated Katz’s Fourth Amendment rights by attaching an
eavesdropping device to a public phone booth in which he
was engaged in conversation. Id. at 351. Justice Harlan, con-
curring, construed the majority opinion as holding that a
Fourth Amendment violation occurs where the government
intrudes upon an individual’s “reasonable expectation of pri-
vacy.” Id. at 360-61. Some of our past opinions have mis-
takenly imported Justice Harlan’s “reasonable expectation of
privacy” test into areas expressly protected by the Fourth
Amendment—the home and the area traditionally treated as
the home, the curtilage to the home. See, e.g., United States
v. Pineda-Moreno, 591 F.3d 1212, 1215 (9th Cir. 2010),
vacated, 132 S. Ct. 1533 (2012); United States v. Magana,
512 F.2d 1169, 1170-71 (9th Cir. 1975).
[3] In fact, as the Supreme Court recently clarified in
United States v. Jones, 132 S. Ct. 945 (2012), the Katz “ex-
9350 UNITED STATES v. DUENAS
pectation of privacy” test extends the traditional reach of the
Fourth Amendment to areas outside one’s home, such as
phone booths, hotel rooms, homes at which one is an over-
night guest, and workplace offices. See, e.g., Katz, 389 U.S.
at 351 (phone booths); Minnesota v. Olson, 495 U.S. 91, 98-
99 (1990) (hotel rooms and overnight guests); O’Connor v.
Ortega, 480 U.S. 709, 718 (1987) (offices). In Jones, the
Court reaffirmed that the home and its curtilage are sacro-
sanct, and that nothing in Katz requires courts to apply the
reasonable expectation of privacy standard in addition to find-
ing that the subject of the search was “persons, houses,
papers, [or] effects.” 132 S. Ct. at 951. Reasoning that “Katz
did not narrow the Fourth Amendment’s scope,” id., but
instead extended the Fourth Amendment’s protection to non-
traditional areas, id. at 952, the Court noted that the Katz test
was “added to, not substituted for, the common-law trespas-
sory test.” Id. (emphasis in original). Whether Ray and Lou
have standing thus turns on the same determination as the
Fourth Amendment claim itself: whether the media entered
the Duenases’ home or its curtilage, or any place in which
they had a reasonable expectation of privacy.
[4] The curtilage of one’s home warrants the same Fourth
Amendment protection as the home itself. Oliver v. United
States, 466 U.S. 170, 180 (1984). “[T]he extent of the curti-
lage is determined by factors that bear upon whether an indi-
vidual reasonably may expect that the area in question should
be treated as the home itself.” United States v. Dunn, 480 U.S.
294, 300 (1987) (citing Oliver, 466 U.S. at 180). We consider
four factors in determining whether an area is curtilage: “the
proximity of the area claimed to be curtilage to the home,
whether the area is included within an enclosure surrounding
the home, the nature of the uses to which the area is put, and
the steps taken by the resident to protect the area from obser-
vation by people passing by.” Id. at 301. While combining
these factors does not produce “a finely tuned formula that,
when mechanically applied, yields a ‘correct’ answer to all
extent-of-curtilage questions,” the factors are useful in deter-
UNITED STATES v. DUENAS 9351
mining “the centrally relevant consideration—whether the
area in question is so intimately tied to the home itself that it
should be placed under the home’s ‘umbrella’ of Fourth
Amendment protection.” Id.
[5] The district court found that most of the journalists
were confined to the front yard, which it determined was not
curtilage. It correctly concluded that only the first of the four
Dunn factors suggested that the front yard was curtilage. The
front yard was not enclosed; there was no evidence as to how
the yard was used; nor was there any evidence that the Due-
nases tried to protect the yard from observation. We therefore
agree with the district court that the front yard was not curti-
lage, and the presence of the media there did not violate the
Fourth Amendment.
However, some journalists were escorted beyond the front
yard. Officer Scott Wade escorted journalists to the rear of the
residence to photograph a marijuana patch. The media
described the marijuana patch as “at the end of a nearly 150-
foot jungle trail, amid a forest of ferns and shrubbery.” Chief
of Police Suba took some journalists on a tour of the com-
pound to film the seized stolen property, hoping victims might
come forward to claim their property, but it is unclear from
the record whether Suba led the journalists inside any of the
structures on the property or onto the curtilage.
[6] The district court declined to make an explicit factual
determination as to whether the media entered the curtilage,
but, in finding a Fourth Amendment violation, it focused on
the fact that the police escorted journalists to the jungled area
at the back of the property to photograph a marijuana patch.
The parties do not point to evidence in the record regarding
whether that area meets any of the Dunn criteria. While the
Dunn factors are not strictly applicable to the Duenases’ pri-
vate jungle compound, there is some evidence suggesting that
the backyard was curtilage: it was adjacent to the four struc-
tures, was in a heavily jungled area, and was not visible from
9352 UNITED STATES v. DUENAS
either the main road or the dirt road. See, e.g., United States
v. Romero-Bustamente, 337 F.3d 1104, 1108 (9th Cir. 2003)
(holding that backyard falls within the curtilage); United
States v. Struckman, 603 F.3d 731, 739 (9th Cir. 2010)
(same). However, there is scant evidence as to the uses to
which the backyard was put, the proximity of the marijuana
patch to the Duenases’ shack, and whether it was within an
enclosure surrounding the home. On this record, it is not clear
whether the media entered the Duenases’ curtilage when it
walked through the rear of the property to view the marijuana
patch.6
[7] Although the district court decided that the media’s
presence beyond the front yard was a Fourth Amendment vio-
lation, the record does not necessarily support this finding.
However, this lack of clarity is at least partially attributable
to the GPD’s “woefully inadequate” management of the
search scene. Given the district court’s ruling that the evi-
dence was nevertheless non-excludable, and the government’s
responsibility for this murky record, we assume, without
deciding, that a Fourth Amendment violation occurred, and
turn our attention to whether the district court properly held
that the evidence should not be excluded.
6
As the district court noted, the police also may have violated the Due-
nases’ constitutional rights by removing the seized evidence from the
house and structures and placing it in the staging area in the front yard for
the media to photograph. The district court did not expressly rule on this
issue, although it did note that it was “concerned” by the behavior of the
police. While we have not previously considered whether Wilson extends
to this activity, we need not reach the question here, because contraband
does not lie within the express protection of the Fourth Amendment and
the Duenases had no legitimate expectation of privacy in property that did
not belong to them. See Rakas, 439 U.S. at 143 n.12. We are concerned,
as was the district court, that the GPD removed all property from the com-
pound, and that some of that property was likely the Duenases’ “papers
and effects,” given the GPD’s haphazard management of the search.
UNITED STATES v. DUENAS 9353
B. Exclusionary Rule
[8] Assuming that a Fourth Amendment violation
occurred, we, like the district court, reject the Duenases’ con-
tention that suppression is the appropriate remedy. Because
Wilson was a Bivens action, the Supreme Court was not
required to address the application of the exclusionary rule.
526 U.S. at 608. The Court expressly declined to decide
“whether the exclusionary rule would apply to any evidence
discovered or developed by the media representatives.” Id. at
614 n.2. We, similarly, have not previously decided whether
the exclusionary rule applies to evidence obtained by police
who have violated the Fourth Amendment by allowing the
media to intrude into the location of the search.
[9] A Fourth Amendment violation does not automatically
trigger the exclusionary rule. Rather, the rule applies only
where the benefit of deterrence outweighs the rule’s “ ‘sub-
stantial social costs.’ ” Davis v. United States, 131 S. Ct.
2419, 2427 (2011) (quoting United States v. Leon, 468 U.S.
897, 907 (1984)). Application of the exclusionary rule is a
fact-intensive inquiry. See United States v. $186,416.00 in
U.S. Currency, 590 F.3d 942, 950 (9th Cir. 2010) (citation
omitted). “To apply the exclusionary rule to [a] unique set of
facts . . . we must consider the rule’s dual purposes: to deter
similar police misconduct in the future and to preserve the
integrity of the courts.” Id. (citing Dunaway v. New York, 442
U.S. 200, 217-18 (1979)).
[10] The Eleventh Circuit has weighed the benefits and
costs of applying the exclusionary rule in an analogous con-
text. See United States v. Hendrixson, 234 F.3d 494, 496-97
(11th Cir. 2000). In Hendrixson, police were accompanied by
a television reporter while searching a defendant’s residence
for methamphetamine. Id. at 496. The reporter “arrived after
the search was in progress and did not move, touch or handle
anything in the residence.” Id. Although the Eleventh Circuit
found that the media’s presence violated the Fourth Amend-
9354 UNITED STATES v. DUENAS
ment, it declined to suppress the evidence found during the
search. Id. The court emphasized that the purpose of the war-
rant clause of the Fourth Amendment is to prevent the police
from conducting “general searches” that go beyond the scope
of the warrant. Id. at 497 (citing Maryland v. Garrison, 480
U.S. 79, 84 (1987)). In Hendrixson, the police did not exceed
the parameters of the warrant, because the “media presence
did not expand the scope of the search,” the search was “actu-
ally carried out by the police themselves,” and there was “no
allegation that the reporter aided the search; he did not touch,
move, or handle anything in the residence.” Id. at 497. The
court suggested that the deterrence goals of the exclusionary
rule in such circumstances could be better served through 42
U.S.C. § 1983 or Bivens actions. Id. at 497 n.4.
[11] We agree with the Eleventh Circuit that where the
media were present, but did not discover or develop any of the
evidence later used at trial, the evidence need not be excluded.
Here, the media did not expand the scope of the search
beyond the warrant’s dictates; nor did the media assist the
police, or touch, move, handle or taint the admitted evidence
in any way. Because the GPD complied with the terms of the
warrant and the media did not disturb any evidence later admit-
ted,7 the more appropriate remedy here, as the Eleventh Cir-
cuit concluded in Hendrixson, is a Bivens or a 42 U.S.C.
§ 1983 action.
V. Sufficiency of the Evidence Supporting
Lou’s Conviction
[12] Lou contends that the evidence at trial was insuffi-
7
We note that the stolen property seized by the GPD and staged in the
front lawn was not introduced at trial by the government. The govern-
ment’s exhibit list was limited to the guns, drugs, drug paraphernalia, drug
records, valuables, and related photographs and diagrams seized from the
shack. In a sense, then, the prosecution self-executed the exclusionary rule
with respect to the most questionable evidence.
UNITED STATES v. DUENAS 9355
cient to show that she conspired to distribute (Count One) or
possessed with intent to distribute (Count Two) more than 50
grams of methamphetamine. Evidence is sufficient to sustain
a conviction if, when it is construed in the light most favor-
able to the prosecution, “any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt.” United States v. Nevils, 598 F.3d 1158, 1161 (9th Cir.
2010) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307,
319 (1979)) (emphasis in original). We conclude that the dis-
trict court correctly denied Lou’s Rule 29 motion.
A. The Possession Count
To establish that Lou was guilty on Count One, the govern-
ment was required to prove that Lou: (1) knowingly possessed
over 50 grams of methamphetamine; and (2) intended to
deliver it to another person. See United States v. Diaz-
Cardenas, 351 F.3d 404, 407 (9th Cir. 2003). Lou concedes
that the evidence, including her written statement, was suffi-
cient to show that she possessed and intended to distribute
some methamphetamine, but she argues that the evidence was
insufficient to support a finding as to quantity. We disagree.
Viewed in the light most favorable to the prosecution, a ratio-
nal trier of fact could have found beyond a reasonable doubt
that Lou constructively possessed and intended to distribute at
least the 74 grams of methamphetamine found in the safe in
her bedroom.
Possession of a controlled substance may be either actual
or constructive. See United States v. Disla, 805 F.2d 1340,
1350 (9th Cir. 1986). An individual constructively possesses
drugs when he or she exercises “dominion and control” over
them. Id. Constructive possession may be established by
direct or circumstantial evidence that the defendant had the
power to dispose of the drug, the ability to produce the drug,
or that the defendant had the “ ‘exclusive control or dominion
over property on which contraband narcotics are found.’ ” Id.
(quoting Arellanes v. United States, 302 F.2d 603, 606 (9th
9356 UNITED STATES v. DUENAS
Cir. 1962)). It may also be demonstrated “by a defendant’s
participation in a joint venture, by which he shares authority
with others to exercise dominion and control over the drug.”
United States v. Ramos-Rascon, 8 F.3d 704, 711 (9th Cir.
1993).
[13] “Mere proximity to contraband, presence on property
where it is found, and association with a person or persons
having control of it are all insufficient to establish construc-
tive possession.” United States v. Rodriguez, 761 F.2d 1339,
1341 (9th Cir. 1985). For instance, the mere fact that a defen-
dant is a joint occupant of a residence at which contraband is
found is insufficient to establish constructive possession by
any particular occupant. See, e.g., Delgado v. United States,
327 F.2d 641, 642 (9th Cir. 1964) (marijuana found in night-
stand in defendant couple’s shared bedroom did not, standing
alone, establish that either individual had possession). In cases
of shared occupancy, the government must introduce “some
evidence tying the defendant to the particular contraband.”
United States v. Barajas-Montiel, 185 F.3d 947, 955 (9th Cir.
1999).
[14] Here, ample evidence tied Lou to the 74 grams of
methamphetamine in the safe in her bedroom. Lou admitted
to Officer Piolo and Special Agent Jong that she used
methamphetamine and trafficked in it in exchange for stolen
goods. She was at the residence during the search, and the
room officers designated as “Lou room/Ray’s room,” where
the safe was found at the foot of the bed, was actually Lou’s
and Ray’s bedroom, in which both were found sleeping on the
morning of the search. Many of Lou’s personal effects were
found in that room, including wedding pictures of Ray and
Lou and their W-2 forms. From this evidence, the jury could
reasonably infer that Lou exercised dominion and control over
the bedroom and its contents.
Lou’s argument that she did not have access to the safe and
was unaware of its contents is belied by the evidence. Officer
UNITED STATES v. DUENAS 9357
Santos and Special Agent Jong testified that the safe was
unlocked.8 In addition to the 74 grams in the safe, smaller
pouches of methamphetamine and drug paraphernalia were
scattered about the bedroom. Police found three drug ledgers
in the room, reflecting trafficking involving thousands of dol-
lars. Because Lou admitted that she trafficked in methamphet-
amine, and her shared bedroom was littered with obvious
evidence of a drug dealing operation, a rational trier of fact
could conclude that Lou was aware of and exercised domin-
ion and control over the drugs in the room. See United States
v. Hernandez, 876 F.2d 774, 778 (9th Cir. 1989) (fact that
defendant resided at co-defendant’s apartment during the
week and kept clothes there “raises an inference of construc-
tive possession” of drugs kept in apartment); United States v.
Castillo, 866 F.2d 1071, 1088 (9th Cir. 1988) (“[E]vidence
that cocaine was found in plain view, coupled with the evi-
dence of [defendant’s] physical control of the bedroom, was
sufficient to demonstrate knowledge and his dominion and
control of all the narcotics found in the bedroom.”).
The conclusion that Lou possessed and intended to distrib-
ute over 50 grams of methamphetamine is bolstered by Lou’s
admission to Officer Piolo that she trafficked in methamphet-
amine because it was the only way she could make a living.
That Lou depended on methamphetamine deals as her sole
source of income is strong evidence that she trafficked in
quantities over 50 grams.
8
Lou argues that evidence was presented at trial suggesting that the safe
was locked, and thus unavailable to her. However, the only evidence to
that effect was Lou’s own statement, made to Special Agent Sedberry, that
she did not have access to or knowledge of the contents of the safe.
“[W]hen ‘faced with a record of historical facts that supports conflicting
inferences’ a reviewing court ‘must presume . . . that the trier of fact
resolved any such conflicts in favor of the prosecution, and must defer to
that resolution.’ ” Nevils, 598 F.3d at 1164 (quoting Jackson, 443 U.S. at
326). Viewed in the light most favorable to the prosecution, the evidence
supports an inference that the safe was closed but unlocked.
9358 UNITED STATES v. DUENAS
[15] Therefore, the district court did not err in concluding
that a rational trier of fact could find that Lou had dominion
and control over the bedroom and thus “possessed” its con-
tents, including the 74 grams of methamphetamine in the safe.
B. The Conspiracy Count
[16] “To establish a drug conspiracy, the government must
prove (1) an agreement to accomplish an illegal objective; and
(2) the intent to commit the underlying offense.” United
States v. Reed, 575 F.3d 900, 923 (9th Cir. 2009) (quoting
United States v. Iriarte–Ortega, 113 F.3d 1022, 1024 (9th Cir.
1997), amended by 127 F.3d 1200 (9th Cir. 1997)). Lou
argues that there was insufficient evidence of her agreement
to possess or distribute methamphetamine. She asserts that the
government never proved that she possessed more than one
gram of methamphetamine at a time, and thus never proved
that she agreed to sell more than 50 grams.
[17] Agreement to commit a crime exists where all the par-
ties work together “with a single design for the accomplish-
ment of a common purpose.” Marino v. United States, 91 F.2d
691, 694 (9th Cir. 1937) (quoting Fowler v. United States,
273 F. 15, 19 (9th Cir. 1921)). The government need not
prove an express or formal agreement; instead, “agreement
may be inferred from conduct.” United States v. Mincoff, 574
F.3d 1186, 1192 (9th Cir. 2009) (quoting United States v.
Hegwood, 977 F.2d 492, 497 (9th Cir. 1992) (citation omit-
ted)). Agreement may also be proved by circumstantial evi-
dence. See United States v. Chong, 419 F.3d 1076, 1079 (9th
Cir. 2005) (citing United States v. Pemberton, 853 F.2d 730,
733 (9th Cir. 1988)).
[18] Here, the evidence was such that a rational juror could
find that Lou worked with at least one other individual “with
a single design for the accomplishment of a common pur-
pose.” Marino, 91 F.2d at 694. Lou’s written statement pro-
vides the most direct evidence of an agreement. After naming
UNITED STATES v. DUENAS 9359
her supplier, Lou wrote, “My husband and I we both aware
of what’s going on, that the item are stolen, we exchange
dope (ice) & cash to merchandise.” Lou’s admission that “we”
exchange methamphetamine for merchandise more than sup-
ports a finding that Lou and Ray were working in concert to
distribute the drugs.
At trial, Officer Piolo testified that Lou admitted to distrib-
uting methamphetamine in exchange for stolen goods, and
that she told him that she did so because it was her only way
of making a living. Piolo and Special Agent Jong testified that
Lou gave them the name of her supplier and the name of an
individual who brought stolen items to the property. Piolo tes-
tified that Lou told him that her mother-in-law “may have
been suspicious of their activity, but [was] not involved in it,
they just tried and hide it from her.” (emphasis added). Lou’s
use of the words “their” and “they” is evidence that she was
acting in concert with, and thus agreed with, at least one other
individual.
Moreover, 74 grams of methamphetamine were found in an
unlocked safe at the foot of the bed that Lou shared with Ray.
A rational juror could conclude that neither Ray nor Lou
would have left such a large quantity of drugs in an unlocked
safe in a room they both used were they not working together
to distribute the drugs.
[19] Therefore, the district court did not err in concluding
that a rational trier of fact could find beyond a reasonable
doubt that Lou and Ray agreed to distribute over 50 grams of
methamphetamine.
VI. Officer Smith’s Former Testimony
However, we are compelled to conclude that the district
court should not have admitted Officer Smith’s suppression
hearing testimony following his unfortunate demise. The dis-
trict court admitted the testimony as “former testimony” under
9360 UNITED STATES v. DUENAS
Federal Rule of Evidence 804(b)(1), reasoning that Ray “had
a meaningful opportunity to cross-examine Officer Smith”
about the “context and details” of Officer Smith’s testimony
at the suppression hearing, but made “a tactical decision” not
to do so. We disagree, because the district court failed to com-
pare Ray’s “fundamental objectives” at each hearing to find
a similar motive under Rule 804(b)(1).9
[20] “Former testimony” is not hearsay if a declarant is
unavailable. “Former testimony” is testimony that:
(A) was given as a witness at a trial, hearing, or law-
ful deposition, whether given during the current pro-
ceeding or a different one; and
(B) is now offered against a party who had—or, in
a civil case, whose predecessor in interest had—an
opportunity and similar motive to develop it by
direct, cross-, or redirect examination.
Fed. R. Evid. 804(b)(1). Smith was “unavailable” because he
was deceased, and his former testimony was given during the
pre-trial suppression hearing. See Fed. R. Evid. 804(a)(4).
Thus, the critical question is whether Ray had the “opportu-
nity and similar motive” to develop Officer Smith’s testimony
by direct, cross-, or redirect examination at the suppression
hearing as he would have had at trial. See United States v.
Salerno, 505 U.S. 317, 321 (1992) (holding that former testi-
mony may not be introduced under Rule 804(b)(1) without a
showing of “similar motive”).10 Because Ray’s motive at the
9
Ray moved to suppress the written and oral statements he gave to Offi-
cer Smith on the alternative ground that they were obtained in violation
of the Fifth Amendment. We do not reach this argument given our conclu-
sion that the statements were inadmissible under Rule 804(b)(1).
10
Ray does not argue that the admission of Smith’s testimony violated
his Sixth Amendment right to confrontation. Where the requirements of
Rule 804(b)(1) are met, we generally conclude that the Confrontation
UNITED STATES v. DUENAS 9361
suppression hearing was solely to demonstrate that his state-
ments were involuntary and obtained in violation of Miranda,
and thus inadmissible, his motive for cross-examining Officer
Smith at trial, to challenge the substance of the statements as
opposed to the circumstances in which they were given, was
substantially dissimilar.
In Salerno, the only Supreme Court decision to address the
“similar motive” requirement, the Court clarified that “similar
motive” is a necessary element of Rule 804(b)(1). Id. at 321.
However, it did not explain how courts should determine
whether a party’s motives are “similar.” Id. at 325. Justice
Blackmun, concurring, provided some guidance by noting
that “similar motive” does not mean “identical motive,” and
that the “similar motive” analysis is “inherently a factual
inquiry” based on “the similarity of the underlying issues and
on the context of the . . . questioning.” Id. at 326 (emphasis
in original).
We have twice addressed whether, under Rule 804(b)(1),
suppression hearing testimony is admissible at a later pro-
ceeding. See United States v. Geiger, 263 F.3d 1034 (9th Cir.
2001); United States v. Poland, 659 F.2d 884 (9th Cir. 1981)
(per curiam). The government argues that these cases dictate
the outcome of our “similar motive” analysis. We find Poland
and Geiger to be factually inapposite, however, and conclude
that neither decision controls our “inherently . . . factual
inquiry.” Salerno, 505 U.S. at 326 (emphasis omitted).
In Poland, an eye-witness identified the defendant in a line-
up. 659 F.2d at 896. A suppression hearing, at which the
Clause is not violated. See United States v. Yida, 498 F.3d 945, 950 (9th
Cir. 2007) (“Rule 804(b)(1) implements the command of the Sixth
Amendment’s Confrontation Clause.”); see also United States v. Salim,
855 F.2d 944, 955 (2d Cir. 1988) (“[S]tatements that are admitted pursuant
to [the Rule 804(b)(1)] exception commonly have been found to satisfy
the confrontation clause”).
9362 UNITED STATES v. DUENAS
defense cross-examined the witness, was held to determine
whether the line-up was impermissibly suggestive. Id. at 895-
96. Denying the motion to suppress, the district court con-
cluded that the lineup was “fair and not unjust.” Id. at 895.
The witness died before trial, and the district court granted the
prosecution’s motion to admit a transcript of the suppression
hearing testimony at trial. Id. at 895-896. On appeal, the
defendant argued that he would have been motivated at trial
to test the witness’s reliability by cross-examining him about
his eyesight, whether he was intoxicated, and the distance
from which he observed the defendant, inquiries that he was
not motivated to make at the suppression hearing. Id. at 896.
We rejected this argument and concluded that the “similar
motive” requirement was satisfied, noting that pretrial identi-
fications are admissible if they are reliable, even if the identi-
fication procedure is unduly suggestive. Id. Thus the
defendant’s motive in cross-examining the witness at both the
suppression hearing and trial was the same: to cast doubt on
the witness’s reliability with questions about his eyesight,
intoxication, and the like. Id.
In Geiger, the question was not whether suppression hear-
ing testimony was admissible at trial, but rather whether an
officer’s testimony at a state suppression hearing was admissi-
ble at a subsequent federal suppression hearing. 263 F.3d at
1038. The defendant in Geiger admitted in a taped confession
taken by Officer Churchill that he had placed a bomb in the
victim’s truck. Id. at 1036. Before Geiger was indicted in fed-
eral court, the state of Alaska charged him with first degree
murder. Id. at 1038. Geiger successfully sought suppression
of the recorded confession in state court, because the arresting
officers, including Officer Churchill, had failed to comply
with Alaska’s custodial interrogation requirements. Id. Officer
Churchill, who testified at the state suppression hearing, died
before the federal suppression hearing. The magistrate judge
admitted his testimony at the federal hearing under Rule
804(b)(1). Id. Geiger contended that the court erred in admit-
ting the former testimony, because the state hearing focused
UNITED STATES v. DUENAS 9363
on Alaska’s custodial interrogation requirements, while the
federal suppression hearing concerned the sufficiency of his
Miranda warning, the voluntariness of his statement, and his
request for counsel. Id. We rejected Geiger’s argument, rea-
soning that the similarity of his state and federal motions to
suppress belied his claim of dissimilar motives: “Both
motions to suppress presented virtually the same issues:
whether Geiger’s taped confession was coerced and involun-
tary; whether Geiger had been properly Mirandized; whether
the arrest was pretextual; and whether Geiger had been
unlawfully detained.” Id. Geiger also introduced the exact
same detailed affidavit in both hearings. Id. at 1038-39. More-
over, Churchill’s testimony at the state hearing addressed
issues pertinent to the federal hearing, such as his role in the
interrogation, whether Geiger asked for an attorney or refused
to speak, whether he coerced Geiger into confessing, and
whether he threatened Geiger’s family. Id. at 1039. Because
the legal and factual issues in both hearings were “substan-
tially similar,” we concluded that Geiger had a “similar
motive” at both hearings. Id.
We have also addressed the “similar motive” prong in other
contexts. In United States v. McFall, 558 F.3d 951 (9th Cir.
2009), we examined whether exculpatory grand jury testi-
mony is admissible at trial against the prosecution, an issue on
which the courts of appeals are split. Id. at 962. The First and
Second Circuits examine whether the government “t[ook] the
same side on the same issue” and whether it had the same
degree of interest to prevail at each proceeding. Id. (citing
United States v. DiNapoli, 8 F.3d 909 (2d Cir. 1993) (en
banc); United States v. Omar, 104 F.3d 519, 522-24 (1st Cir.
1997)). In McFall, we rejected this “fine-grained” method and
followed the D.C. and Sixth Circuits in comparing motives at
a “high level of generality.” Id. (citing United States v. Miller,
904 F.2d 65, 68 (D.C. Cir. 1990)). We noted that the govern-
ment need not have the same “intensity” of motivation at each
proceeding, because the plain language of Rule 804(b)(1)
requires similar, but not identical, motivation. Id. at 963.
9364 UNITED STATES v. DUENAS
McFall was charged with conspiracy to commit extortion.
Id. at 955. McFall’s co-conspirator, Sawyer, at that point
uncharged, appeared before a grand jury and offered a first-
person account of key events that contradicted the testimony
of the government’s primary witness and corroborated
McFall’s version of the events. Id. at 961. Sawyer died before
trial, and McFall sought to introduce a transcript of the excul-
patory grand jury testimony under Rule 804(b)(1). Id. The
district court did not admit the transcript, concluding that the
government’s motive at trial was “completely different” than
its motive before the grand jury because Sawyer was not a
suspect at the time of his testimony and because the grand
jury was a fact-finding investigation, not an adversarial pro-
ceeding. Id. at 962. We held that the district court “erred in
concluding that the government’s respective motives were
‘completely different,’ and the exclusion of Sawyer’s grand
jury testimony as hear-say amounted to an abuse of discre-
tion.” Id. at 963. Although we noted that the government’s
incentive to develop incriminating testimony before the grand
jury was “likely not as intense as it would have been at trial,”
we nevertheless held that the government’s “fundamental
objective” was the same at each proceeding. Id. That “funda-
mental objective” was “to draw out testimony that would sup-
port its theory that McFall conspired with Sawyer to commit
extortion—the same motive it possessed at trial.” Id.
Finally, we recently had occasion to address the issue of
“similar motive” in the context of an SEC investigation of a
CFO involved in a stock option back-dating scandal. See Sec.
& Exch. Comm’n v. Jasper, 678 F.3d 1116 (9th Cir. 2012).
The SEC alleged that Jasper engaged in an illegal scheme to
back-date stock options granted to employees and directors.
Id. at 1119. The company’s former treasurer, Ruehle, made
exculpatory statements in sworn testimony taken in connec-
tion with the SEC’s fact-gathering investigation. Id. at 1128.
Because Ruehle was unavailable at the time of trial, Jasper
attempted to introduce his testimony under Rule 804(b)(1). Id.
The district court found the testimony inadmissible, conclud-
UNITED STATES v. DUENAS 9365
ing that the SEC had a different motive at the accusatory stage
of the proceedings than it did during the investigatory stage.
Id. We affirmed, because the district court did not abuse its
discretion based on the inherently different motives involved
in an early investigation, at which “open-ended questions are
typically asked without expectation the witness will be needed
at trial,” and a cross-examination of an adverse witness. Id. at
1128-29.
As the foregoing cases demonstrate, we have not developed
a bright-line test for determining similarity of motive. Nor
should we. As Justice Blackmun instructed, the “similar
motive” analysis is “inherently a factual inquiry” based on
“the similarity of the underlying issues and on the context of
the . . . questioning.” Salerno, 505 U.S. at 326 (emphasis
omitted). Here we are faced with a unique set of facts that
does not fit squarely within the ambit of any of our aforemen-
tioned precedent.
The transcript of Ray’s suppression hearing demonstrates
that his counsel did not have a similar motive in questioning
Officer Smith at the suppression hearing as at trial. Ray’s
“fundamental objective,” McFall, 558 F.3d at 963, in ques-
tioning Officer Smith at the suppression hearing was to elicit
testimony to prove that his statements to Smith were involun-
tary and obtained in violation of Miranda. This was Ray’s
sole purpose in examining Smith, a point Ray’s counsel made
emphatically when the prosecution veered into the substance
of the statement and sought details about Ray’s meetings with
his drug source. Ray’s counsel objected to this inquiry as
“having no relevance or bearing on” the only question at issue
—whether Ray voluntarily spoke with Smith. After the dis-
trict court overruled Ray’s objection, Ray’s counsel offered to
enter the written statement into evidence for purposes of the
suppression hearing, rather than to permit the prosecutor to go
into detail about the substance of the statement. The prosecu-
tor acquiesced to the defense’s limitation on its inquiry and
9366 UNITED STATES v. DUENAS
simply asked Officer Smith to identify Ray’s statement before
introducing it into evidence.
During the cross-examination of Officer Smith at the sup-
pression hearing, Ray’s counsel inquired only about the cir-
cumstances under which Ray was arrested and made the
statement. Counsel asked about the duration of Smith’s inter-
view with Ray, whether Ray was under the influence of any
drugs or medication at the time of the statement, whether he
had consumed alcohol the night before giving the statement,
whether Smith offered leniency if Ray cooperated in finding
an alleged associate, and whether Smith threatened Ray. The
record of the suppression hearing plainly shows that Ray’s
motive at that proceeding was to question Officer Smith about
circumstances bearing on the voluntariness of the statement,
and not to delve into the contents of the statement.
[21] Ray’s written motion to suppress confirms that his
motive was confined to demonstrating involuntariness and a
Miranda violation. See Geiger, 263 F.3d at 1038 (comparing
defendant’s state and federal motions to dismiss to determine
similarity of motive). The motion argues only that Ray was
improperly Mirandized and that his statement was involun-
tary. The motion makes no reference to the substance of
Ray’s statement.
[22] Ray’s fundamental objective at the suppression hear-
ing was not the same as his motive would have been had
Smith testified at trial. The issue at trial was whether the evi-
dence proved Ray’s guilt beyond a reasonable doubt, not the
circumstances of his confession. By the time of trial, neither
voluntariness nor the alleged Miranda violation was even at
issue. Rather, Ray’s objective at trial would have been to vig-
orously challenge Officer Smith on the details of the oral and
written statements, to cast doubt on his credibility and on the
reliability and completeness of his version of Ray’s statement.
For instance, Ray’s written statement says that “[f]irearms
found on property were traded with meth.” The statement
UNITED STATES v. DUENAS 9367
does not indicate which particular firearms were acquired via
methamphetamine trafficking. Similarly, although the state-
ment makes clear that Ray traded methamphetamine for
stolen items, it never refers to a specific quantity of drugs.
Ray’s counsel also would have had a motive to question
Officer Smith about the substance of Ray’s oral statements to
Smith. In Smith’s suppression hearing testimony, Smith
“summarize[d]” Ray’s oral statements. He testified that Ray
admitted to trading methamphetamine for jewelry, tools, and
recreational vehicles, and named his source of methamphet-
amine. Smith also testified to a purported admission that Ray
knew the items he was receiving were stolen. Had Smith testi-
fied at trial, Ray’s counsel certainly would have been moti-
vated to develop more than a “summary” of Ray’s oral
statement. Counsel would have had a strong motive to cast
doubt on Officer Smith’s summary, by determining the spe-
cific questions that Smith asked Ray, testing the accuracy of
Smith’s recollection, and seeking to learn Ray’s full responses
to those questions. Smith’s account of Ray’s oral statement
makes no reference to the quantity of methamphetamine being
sold or exchanged, nor to the value of the stolen items
received in exchange; a thorough cross-examination of Smith
regarding his interview with Ray might have drawn out such
facts. Ray’s counsel also would have been motivated on
cross-examination to reveal inconsistencies between Ray’s
written statement and Smith’s version of Ray’s oral statement.
These motives stand in stark contrast to Ray’s motive at the
suppression hearing, which was limited to developing testi-
mony concerning voluntariness and whether Ray was prop-
erly Mirandized.
We therefore conclude that the district court’s “similar
motive” determination must be reversed. The district court
failed to properly compare Ray’s “fundamental objective” at
the suppression hearing to his motive at trial, and instead
focused on Ray’s opportunity to cross-examine Officer Smith.
The district court noted that the government had a motive to
9368 UNITED STATES v. DUENAS
explore the details of Ray’s statements and, from that, appar-
ently inferred that Ray also had a motive to delve into the sub-
stance of the statements. But the government’s only purpose
in questioning Officer Smith about the details of the statement
was to demonstrate voluntariness, under the theory that “[t]he
detail that a person goes into is an indicia of how open, how
comfortable they feel with the person that they’re talking to.”
Thus, only the amount of detail—and not the accuracy of
those details—was relevant to the suppression motion, and
even after the district court permitted the government to
explore the details of the statement, Ray continued to lack any
motive to probe Officer Smith about the accuracy of the state-
ment or about Smith’s recollection.
[23] The extent of the district court’s comparison of Ray’s
motives is contained in its conclusory statement that “[a]
purely tactical decision not to develop particular testimony
despite the same issue and level of interest at each proceeding
does not constitute a lack of opportunity or a dissimilar
motive for purposes of Rule 804(b)(1).” This is of course cir-
cular, in that it predicates its conclusion that Ray’s counsel’s
decision was tactical on the unfounded assumption that the
same issue and level of interest existed at each proceeding.
Because it failed to directly compare Ray’s “fundamental
objectives” at trial and at the suppression hearing, the district
court abused its discretion by admitting Smith’s testimony.
See McFall, 558 F.3d at 963 (district court’s decision to admit
or exclude evidence under Rule 804(b)(1) is reviewed for
abuse of discretion).
Our conclusion that the district court should not have
admitted Officer Smith’s testimony does not end our inquiry.
We must also determine whether the error was harmless. Gen-
erally, a nonconstitutional error at trial does not result in
reversal if the government shows that the error was more
probably than not harmless.11 See United States v. Vgeri, 51
11
Because the admission of Smith’s testimony arguably violated Ray’s
Confrontation Clause rights, it may be appropriate to apply the “harmless
UNITED STATES v. DUENAS 9369
F.3d 876, 882 (9th Cir. 1995). To meet that standard, “the
government must ‘show a fair assurance that the verdict was
not substantially swayed by the error.’ ” United States v.
Chase, 340 F.3d 978, 993 (9th Cir. 2003) (en banc) (quoting
United States v. Bauer, 132 F.3d 504, 510 (9th Cir. 1997)).
[24] The parties did not address the prejudicial effect of
the district court’s admission of Smith’s testimony, but we
have no difficulty concluding that the error was not harmless.
As the government concedes, it would not have been able to
introduce Ray’s written statement at trial without Smith’s tes-
timony, because Smith was the only officer present when Ray
executed the written statement. Aside from Ray’s written and
oral statements, both of which were admitted through Smith,
there was no evidence directly tying him to the drugs, fire-
arms, and stolen property in the compound. Nor did Lou’s
statement link Ray to the drugs, firearms, and stolen items, as
it was redacted to comply with Bruton, and the district court
instructed the jury that it could not consider Lou’s statement
against Ray when weighing his guilt or innocence.
Ray was one of five people living on the property; his con-
fession was the critical piece of evidence linking him to the
contraband found on the compound. In the absence of Ray’s
confession that he trafficked in methamphetamine, it would
have been plausible that the drugs were Lou’s alone. See
United States v. Barajas-Montiel, 185 F.3d 947, 956 (9th Cir.
1999) (in cases of shared occupancy, government must intro-
beyond a reasonable doubt” standard of Chapman v. California, 386 U.S.
18, 24 (1967). See, e.g., United States v. Gillam, 167 F.3d 1273, 1277 (9th
Cir. 1999) (“Once we find a [Confrontation Clause] error, the prosecution
has the burden of showing that the error was harmless beyond a reasonable
doubt.”). We need not determine which standard applies here. Because we
conclude that the admission of Smith’s statement was not harmless under
the less stringent nonconstitutional standard, it follows that the govern-
ment failed to show that the error was harmless beyond a reasonable
doubt.
9370 UNITED STATES v. DUENAS
duce “some evidence tying the defendant to the particular
contraband”). Although there was circumstantial evidence
connecting Ray to the drugs and guns, such as the W-2 forms,
wedding photos, and other personal documents found in the
bedroom, Ray’s confession was by far the most compelling
and vital evidence. The government admitted as much at the
hearing on the motion to introduce Smith’s testimony, when
it stated, “of course it’s crucial to our case because it is a con-
fession.”
[25] The prosecutor’s closing argument amply illustrates
just why its case against Ray would have unraveled without
the confessions. After briefly explaining the nature of the
charges against Ray and Lou, the prosecutor told the jury:
“Go to the evidence in this case. The crux of the case against
Raymond Duenas is the confession. In fact, two confessions.”
(emphasis added). The prosecutor described the circum-
stances surrounding Ray’s confession in some detail, and then
argued to the jury, “Now you’ve got these confessions, both
orally and in writing. Should you rely on them[?]. Absolutely.
Because they are corroborated by what was found in their
premises.” The government viewed the totality of the other
evidence, which did not directly link Ray to the drugs, as evi-
dence that corroborated Ray’s confessions, not as evidence
sufficient to sustain Ray’s conviction. The government reiter-
ated this point once more toward the end of its argument, after
recapping the circumstantial evidence: “In short, everything
corroborates their confession.” Because the government chose
to make the confessions the centerpiece of its case, we are
compelled to conclude that the erroneous admission of Officer
Smith’s testimony was not harmless. While it may have been
possible for a jury to convict Ray on the basis of the circum-
stantial evidence alone, the government has failed to “ ‘show
a fair assurance that the verdict was not substantially swayed
by the error.’ ” Chase, 340 F.3d at 993 (quoting Bauer, 132
F.3d at 510). We therefore hold that the error was not harm-
less.
UNITED STATES v. DUENAS 9371
VII.
[26] The district court properly denied Ray’s and Lou’s
motion to suppress the physical evidence seized at the house.
Although the presence of the media during the search may
have violated the Fourth Amendment, the district court prop-
erly declined to exclude the evidence. The exclusionary rule
does not apply where the presence of the media does not
expand the scope of or interfere with the execution of the
search. The evidence sufficiently demonstrated that the mate-
rials found in “Lou room/Ray’s room” were under Lou’s
dominion and control, and thus there was sufficient evidence
to support Lou’s convictions. The district court therefore did
not err in denying Lou’s Rule 29 motion for a judgment of
acquittal. However, because Ray did not have a “similar
motive” to cross-examine Officer Frankie Smith at the sup-
pression hearing as at the trial, the district court erred in
admitting Officer Smith’s suppression-hearing testimony into
evidence. Ray’s conviction must therefore be reversed. We do
not address his arguments concerning the voluntariness of his
statements or the sufficiency of the evidence. We vacate
Ray’s sentence and reverse Ray’s conviction, and affirm
Lou’s conviction.
No. 09-10492: VACATED and REVERSED.
No. 09-10496: AFFIRMED.