United States v. Kielan Franklin ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-30136
Plaintiff-Appellee,
D.C. No.
v. 6:19-cr-00006-SEH-1
KIELAN BRETT FRANKLIN,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted May 4, 2021
Seattle, Washington
Filed November 23, 2021
Before: Danny J. Boggs,* Marsha S. Berzon, and
Mary H. Murguia, Circuit Judges.
Opinion by Judge Boggs;
Concurrence by Judge Berzon
2 UNITED STATES V. FRANKLIN
SUMMARY *
Criminal
The panel affirmed a criminal judgment in a case in
which Kielan Frankin pleaded guilty to aiding and abetting
the possession of a firearm in furtherance of a crime of
violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i)–(ii)
and 2, and robbery affecting interstate commerce (Hobbs
Act robbery) in violation of 18 U.S.C. § 1951(a).
The panel wrote that, as Franklin conceded, binding
precedent forecloses his contention that Hobbs Act robbery
is not categorically a crime of violence under 18 U.S.C.
§ 924(c)(3)(A).
Franklin contended that the district court violated his
due-process rights at sentencing by relying on his
codefendants’ unsworn hearsay statements, which accused
him of trying to influence their testimony, in imposing an
obstruction-of-justice enhancement. As this court had not
clearly enunciated the standard for reviewing a district
court’s determination of whether coconspirator hearsay is
unreliable, the panel took the opportunity to clarify it. After
examining the development of the minimal-indicia-of-
reliability doctrine over the last half-century, the panel
concluded that there are two distinct questions that this court
answers in examining a hearsay statement at sentencing:
(1) whether the statement is “procedurally reliable” and
(2) whether the statement is “substantively reliable.” If the
court answers either question in the affirmative, then the
*
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. FRANKLIN 3
statement may be considered at sentencing. The panel wrote
that a determination of procedural reliability—that the
hearsay in question does not put the burden on the defendant
to prove a negative and that the defendant has adequate
opportunity to confront corroborative evidence of the
hearsay—is an essentially legal question reviewed de novo.
A determination of substantive reliability—whether hearsay
statements admitted at sentencing are from reliable sources
or are consistent enough with one another to indicate their
probable truth—is an essentially factual question reviewed
for clear error. The panel wrote that this is a disjunctive test:
so long as each hearsay statement offered by the government
at sentencing is either procedurally reliable or substantively
reliable, due process is not offended.
The panel applied that framework to this case.
Reviewing procedural reliability de novo, the panel
concluded that the government provided enough specifics so
that Franklin was not put to the burden of proving that the
enhancement did not apply, and that there were adequate
procedural opportunities for Franklin to challenge the
extrinsic, nonhearsay evidence corroborating codefendant
Gerald Hiler’s hearsay statements. Perceiving no error in the
district court’s conclusion that this evidence sufficiently
corroborated Hiler’s statements, the panel concluded that the
admission of those statements at sentencing did not deprive
Franklin of due process. As to substantive reliability, the
panel considered the government’s argument that Hiler’s
and codefendant Morgan Pitsch’s hearsay statements
corroborate each other enough to be admissible at
sentencing. The panel concluded that the district court did
not clearly err in implicitly finding the two coconspirators’
statements to corroborate each other enough to be
substantively reliable, and that their admission at sentencing
thus did not violate due process.
4 UNITED STATES V. FRANKLIN
Judge Berzon concurred in the judgment, agreeing that
the district court did not err in relying on hearsay statements
from Hiler and Pitsch as the basis for an obstruction-of-
justice enhancement. She disagreed that this court has
developed a disjunctive test under which a hearsay statement
may form the basis of a defendant’s sentence if it is either
“procedurally reliable” or “substantively reliable.” She
reads this court’s cases as requiring, at a minimum,
substantive reliability.
COUNSEL
Dwight J. Schulte (argued), Schulte Law Firm P.C.,
Missoula, Montana, for Defendant-Appellant.
Timothy J. Racicot (argued) and Julie R. Patten, Assistant
United States Attorneys; Leif M. Johnson, Acting United
States Attorney; United States Attorney’s Office, Billings,
Montana; for Plaintiff-Appellee.
OPINION
BOGGS, Circuit Judge:
Kielan Franklin pleaded guilty to one count of aiding and
abetting the possession of a firearm in furtherance of a crime
of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i)–(ii)
and 2, and one count of robbery affecting interstate
commerce (also called “Hobbs Act robbery”), in violation of
18 U.S.C. § 1951(a). Appealing his conviction on the
firearm charge, he argues that Hobbs Act robbery is not
categorically a crime of violence under 18 U.S.C.
UNITED STATES V. FRANKLIN 5
§ 924(c)(3)(A). He also appeals his sentence, contending
that the district court relied on hearsay evidence so lacking
in indicia of reliability that the court violated his due-process
rights. Exercising jurisdiction under 18 U.S.C. § 3742(a)(1)
and 28 U.S.C. § 1291, we affirm.
I. Background
A. Events Leading Up to the Robbery
Kielan Franklin and Arielle Cowser were an unmarried
couple who had one child together. They both used heroin.
While living in Helena, Montana, they developed a
relationship with B.G. and S.G. (the “victims”), a married
couple who also used heroin.
In March 2019, Mr. Franklin gave the victims $1,200 to
go to Spokane, Washington, and buy an “ounce,” meaning
twenty-four grams, of heroin. 1 But the price of heroin had
increased, and the money would buy only twenty grams.
During the trip, Mr. Franklin and Ms. Cowser frequently
texted and called the victims using Ms. Cowser’s phone to
get status updates, but—losing patience—the victims
eventually stopped responding. It took longer than
Mr. Franklin had expected for the victims to return from
Spokane, partially because of heavy snow and partially
because B.G. had a habit of doing tasks slowly. The victims
also testified that they had sampled some of the heroin before
their return. When the victims finally returned, B.G.,
believing he was eight grams shy of an ounce, tried to “cut”
the heroin—that is, add sugar to it—to make twenty-eight
1
We note that, although a customary American ounce converts to
about 28.35 grams in the metric system, an “ounce” apparently means
only 24 grams in the heroin trade.
6 UNITED STATES V. FRANKLIN
grams. B.G. had little experience in cutting heroin and did a
poor job of it.
Already upset by the victims’ lack of communication,
Mr. Franklin went to the victims’ house; Ms. Cowser went
with him. Mr. Franklin became even more upset after he
found that the quality of the heroin was much worse than he
had expected—heavily diluted and poorly blended with the
sugar. Mr. Franklin told the victims that they owed him
double his money back. After leaving, Mr. Franklin
continued to text the victims, his messages becoming
increasingly threatening.
B. The Robbery 2
On the morning of March 8, 2019, Mr. Franklin,
Ms. Cowser, and Gerald Hiler and Morgan Pitsch (the two
other codefendants in this case) were at the house of Corissa
Soltis. At some point, Mr. Franklin and Ms. Cowser had
texted Mr. Hiler “about going out and making a collection
on these people.” Mr. Franklin, still upset about the missing
heroin and money, asked Mr. Pitsch to “go over to a house
with him” to get either the drugs or the money. The four left
Ms. Soltis’s house in Mr. Franklin’s Jeep.
While they drove, Mr. Franklin told the other three his
plan to rob the victims. Ms. Cowser’s job was to enter the
victims’ house first and leave the door unlocked for the other
three. Mr. Hiler was armed with a silver handgun, and he
was to act as the “muscle,” the most aggressive of the three.
2
We recount the facts as presented by the government. Ms. Cowser
presented a different version of these events at trial in her case. We
resolve Ms. Cowser’s appeal in a memorandum filed simultaneously
with this opinion. United States v. Cowser, No. 20-30131 (9th Cir.
Nov 23, 2021).
UNITED STATES V. FRANKLIN 7
Mr. Pitsch was armed with both an aluminum baseball bat
and a black pistol that Mr. Franklin had given him.
The group dropped Ms. Cowser off outside the victims’
house. Ms. Cowser lied to the victims, saying that she and
Mr. Franklin had been fighting and that he had left her “in
the middle of nowhere” on the frigid, snowy night. Over
B.G.’s protest, S.G. let Ms. Cowser inside. A few minutes
later, on their security cameras, the victims noticed someone
outside. Ms. Cowser approached the front door, and B.G.
told her: “Don’t open the door.” Before the victims could
stop her, Ms. Cowser had let in Mr. Franklin, Mr. Hiler, and
Mr. Pitsch.
Ms. Cowser told the three men that the drugs were
upstairs and advised them to make sure that the victims did
not have their phones. Even so, S.G. discreetly called 911
with a cell phone that she hid under a blanket. During the
robbery, she made statements such as “I’m really, really
scared” to alert the operator about what was happening.
Eventually, Mr. Hiler found the phone and hung up the call.
The four defendants decided to make a quick getaway with
a small amount of the victims’ property—S.G.’s wedding
rings, her phone, a purse, about $100, and about a gram of
heroin.
C. Proceedings Below
Mr. Franklin and Ms. Cowser were each charged with
one count of conspiracy to commit Hobbs Act robbery, in
violation of 18 U.S.C. § 1951(a); one count of Hobbs Act
robbery, in violation of 18 U.S.C. §§ 1951(a), 2; and one
count of possession of a firearm in furtherance of a crime of
violence, in violation of 18 U.S.C. §§ 924(c)(1)(A), 2.
Mr. Hiler and Mr. Pitsch were also charged in connection
with the robbery. The grand jury also alleged that the firearm
8 UNITED STATES V. FRANKLIN
in the third count had been brandished. If proved at trial, that
fact would subject each defendant to a mandatory minimum
sentence of seven years consecutive to any other sentence
imposed. 18 U.S.C. § 924(c)(1)(A)(ii).
Mr. Franklin moved to dismiss the firearm count against
him. He argued that neither the conspiracy charge nor the
substantive robbery charge, either on its own or under an
aiding-and-abetting theory or Pinkerton-liability theory, 3
was a crime of violence under § 924(c). The district court
denied the motion.
Mr. Franklin and Ms. Cowser both initially intended to
try their cases to a jury, while Mr. Hiler and Mr. Pitsch
entered into plea agreements. Shortly after the district court
accepted those guilty pleas, Mr. Franklin also entered into a
plea agreement, admitting guilt to the substantive robbery
count and the firearm-possession count.
But during his change-of-plea hearing, when asked to
admit to the factual basis the government had proposed,
Mr. Franklin balked. He instead maintained, under oath, that
he had only wanted to talk to the victims to get his money
back from them. Mr. Franklin asserted that he had first sent
Ms. Cowser into the house to try to talk with the victims.
Then, after telling Mr. Hiler and Mr. Pitsch to stay in the car,
Mr. Franklin went to the house himself. Mr. Franklin
claimed that he did not know that the other two codefendants
had been armed and that they had disobeyed him by running
into the house about a minute later, waving their guns.
Mr. Franklin also claimed not to have known that anyone
had stolen anything until after the four had all returned to
Mr. Franklin’s Jeep. In light of these contentions, the court
3
See generally Pinkerton v. United States, 328 U.S. 640 (1946).
UNITED STATES V. FRANKLIN 9
rejected the plea agreement, and Mr. Franklin pleaded not
guilty.
In November 2019, shortly after the abortive plea
hearing, Mr. Hiler met with FBI Special Agent Jason Bowen
for an in-person interview. At that interview, he told Special
Agent Bowen that Mr. Franklin had sent him a note (which
the jail staff would provide to Special Agent Bowen). The
note said, in part:
Now that I know you have plead [sic] out I
want to respectfully request your help. . . .
All I need from you is to state the truth[.]
1. I never asked you guys to rob anyone
2. I didn’t know there were guns on anyone
3. I said to stay in the car so I could talk to
homeboy
4. Curly had his own peice [sic] and I had
nothing to do with it. He got it before the
alleged incident.
The note’s author was also aware that “Curly” (a nickname
for Mr. Pitsch, according to Mr. Hiler) had been
“squawking”—talking to the government about the robbery
in this case.
Mr. Hiler later told Special Agent Bowen that he had
been assaulted by two other inmates after telling the
government about the note. The attackers told Mr. Hiler that
Mr. Franklin had told them to “slap [him] around.” Mr. Hiler
sustained “[v]ery minor injuries” to the inside of his mouth
as a result.
10 UNITED STATES V. FRANKLIN
Mr. Hiler also said that he had written a response note to
Mr. Franklin. In that response, which he had written “to get
[Mr. Franklin] off of his back,” Mr. Hiler wrote that the
government had been threatening to rescind his plea
agreement. At some point, Mr. Hiler gave a copy of his
response note to Special Agent Bowen. The record is not
clear as to when or even whether Mr. Hiler sent the response
note to Mr. Franklin, when Mr. Hiler gave Special Agent
Bowen a copy of the response note, or whether the copy that
Special Agent Bowen received was the original or a
duplicate.
During an in-person interview, Mr. Pitsch told Special
Agent Bowen that Mr. Franklin had also contacted him.
Mr. Franklin had warned him that “he would be on paper,
and that he should be careful.” Interpreting Mr. Franklin’s
statement as a threat that he would be branded as a snitch,
Mr. Pitsch asked for a transfer to a different detention
facility.
Based on these reports from Mr. Hiler and Mr. Pitsch,
the government obtained a superseding indictment charging
Mr. Franklin with two counts of witness tampering, in
violation of 18 U.S.C. § 1512(b)(1). Mr. Franklin signed a
second plea agreement, accepting guilt for the substantive
robbery count and the firearm count in exchange for
dismissal of the Hobbs Act conspiracy and the witness-
tampering counts. In that agreement, he reserved his right to
appeal the district court’s denial of his motion to dismiss the
firearm count; otherwise, he waived all other appellate rights
except for a collateral attack based on ineffective assistance
of counsel.
At a second change-of-plea hearing, contrary to his
statements at the first hearing, Mr. Franklin admitted that he
had intended to “relieve” the victims of their money, drugs,
UNITED STATES V. FRANKLIN 11
or property when he went to their house and that he knew
that both Mr. Hiler and Mr. Pitsch had guns. The district
court accepted his guilty plea. 4
At Mr. Franklin’s sentencing hearing, the government
presented hearsay statements by Mr. Hiler and Mr. Pitsch,
given secondhand through Special Agent Bowen’s
testimony, about Mr. Franklin’s attempts to influence those
two men’s testimony. The district court relied on those
statements to find that an obstruction-of-justice
enhancement applied, overruling Mr. Franklin’s objection to
the presentence report (PSR).
The court computed Mr. Franklin’s offense level for the
robbery count to be twenty-two, yielding an advisory
Guidelines range of forty-six to fifty-seven months of
imprisonment for that count (as his criminal history category
was II). The firearms count carried a mandatory seven-year
(eighty-four-month) consecutive sentence. The court then
sentenced Mr. Franklin to fifty-five months of imprisonment
on the robbery count; combined with the mandatory
consecutive sentence, his total prison sentence was
139 months. Upon the government’s motion, the district
court dismissed the remaining counts against Mr. Franklin.
Mr. Franklin’s timely appeal followed.
II. Hobbs Act Robbery as a Crime of Violence
Mr. Franklin contends that Hobbs Act robbery, as
defined in 18 U.S.C. § 1951(b)(1), is not categorically a
4
Ms. Cowser tried her case before a jury, which convicted her of
conspiracy and the substantive Hobbs Act robbery count but acquitted
her of the firearm count. The court sentenced her to twelve months and
one day of imprisonment followed by three years of supervised release.
12 UNITED STATES V. FRANKLIN
crime of violence and, therefore, that the district court erred
in denying his motion to dismiss. Our binding precedent says
otherwise.
Possession of a firearm “in furtherance of” a “crime of
violence” carries additional penalties beyond the sentence
imposed for the underlying crime. 18 U.S.C. § 924(c)(1)(A).
In this case, because the firearm was brandished, the
additional penalty is “a term of imprisonment of not less than
7 years.” Id. § 924(c)(1)(A)(ii). The statute defines “crime of
violence” to mean a felony that either “has as an element the
use, attempted use, or threatened use of physical force
against the person or property of another,” id. § 924(c)(3)(A)
(the so-called elements clause), or “that by its nature,
involves a substantial risk that physical force against the
person or property of another may be used in the course of
committing the offense,” id. § 924(c)(3)(B) (the so-called
residual clause).
We have held that robbery under § 1951(b)(1) is
“indisputably” a crime of violence because it contained an
“element of ‘actual or threatened force, or violence.’” United
States v. Mendez, 992 F.2d 1488, 1491 (9th Cir. 1993)
(quoting 18 U.S.C. § 1951(b)(1)). We reasoned that
conspiracy to commit Hobbs Act robbery was also a crime
of violence under the residual clause. Ibid. After the
Supreme Court struck down the residual clause in United
States v. Davis, 139 S. Ct. 2319, 2324 (2019), we took up
again the question of whether conspiracy to commit Hobbs
Act robbery was a crime of violence. United States v.
Dominguez, 954 F.3d 1251 (9th Cir. 2020). After
reexamining whether the substantive crime of Hobbs Act
robbery is a crime of violence, we reaffirmed Mendez’s
holding. Id. at 1260–61. We also held that attempted Hobbs
Act robbery was a crime of violence under the elements
UNITED STATES V. FRANKLIN 13
clause, leaving for another day whether conspiracy to
commit Hobbs Act robbery likewise satisfied the elements
clause. Id. at 1261–62.
Mr. Franklin concedes that Mendez and Dominguez are
binding on us; he says he presents the issue solely to preserve
it for potential review on certiorari. Thus, we hold that the
district court did not err.
III. Due-Process Violation Through Hearsay Evidence at
Sentencing
Mr. Franklin contends that the district court violated his
due-process rights at sentencing by relying on his
codefendants’ unsworn hearsay statements, which accused
him of trying to influence their testimony, in imposing the
obstruction-of-justice enhancement. Finding the appropriate
standard of review unclear from our precedents, we take this
opportunity to clarify it. Under the correct standard,
Mr. Franklin’s challenge fails.
A. Appeal Waiver
Mr. Franklin begins by arguing that his appeal waiver
does not bar our review of this issue. But the government
does not address waiver at all, instead arguing the merits of
his claim. We likewise proceed to the merits, the government
having forfeited any claim of waiver it might have had.
United States v. Garcia-Lopez, 309 F.3d 1121, 1123 (9th Cir.
2002); United States v. Lewis, 798 F.2d 1250 (9th Cir. 1986).
B. Legal Background
Hearsay is generally admissible in sentencing hearings,
as neither the Confrontation Clause nor the Federal Rules of
Evidence apply to such hearings. United States v. Petty,
14 UNITED STATES V. FRANKLIN
982 F.2d 1365, 1367–69 (9th Cir.), as amended by 992 F.2d
1015 (9th Cir. 1993); Fed. R. Evid. 1101(d)(3).
Nevertheless, “[d]ue process requires that some minimal
indicia of reliability accompany a hearsay statement”
introduced at sentencing. Petty, 982 F.2d at 1369. In
particular, “relying on accomplice hearsay without adequate
indicia of reliability violate[s]” due process. United States v.
Corral, 172 F.3d 714, 716 (9th Cir. 1999). The defendant
typically has the burden to show that disputed hearsay is
false or unreliable. United States v. Kimball, 975 F.2d 563,
567 (9th Cir. 1992). 5
But a statement by a coconspirator that inculpates the
defendant “is inherently unreliable.” United States v.
Huckins, 53 F.3d 276, 279 (9th Cir. 1995) (quoting Lee v.
Illinois, 476 U.S. 530, 546 (1986)); see also United States v.
Vera, 893 F.3d 689, 693–94 (9th Cir. 2018) (discussing
“widespread” reluctance among the courts of appeals to rely
on admissions of coconspirators). We presume such
statements unreliable because the coconspirator “may very
well have been hoping to curry favor with law enforcement
officials by implicating his accomplice.” Huckins, 53 F.3d at
279; see also Petty, 982 F.2d at 1369–70 (approving of
applying a rebuttable presumption of unreliability to a
coconspirator’s proffer to the government). Although the
“fact that a statement is self-inculpatory does make it more
reliable,” any increased reliability is limited to the self-
inculpatory aspects of the statement, not “collateral”
statements about others’ guilt. Huckins, 53 F.3d at 279
The defendant must also show that the statements “demonstrably
5
made the basis for the sentence,” United States v. Vanderwerfhorst,
576 F.3d 929, 935–36 (9th Cir. 2009) (quoting United States v. Ibarra,
737 F.2d 825, 827 (9th Cir. 1984)). The government concedes that
showing in this case.
UNITED STATES V. FRANKLIN 15
(quoting Williamson v. United States, 512 U.S. 594, 600
(1994)).
Whether the government rebuts that presumption turns
on whether the coconspirator’s statements have independent
corroboration. See United States v. Berry, 258 F.3d 971, 976
(9th Cir. 2001) (“One factor evidencing the reliability of
hearsay statements by co-defendants is external
consistency.”). That corroboration may come from trial
testimony, United States v. Egge, 223 F.3d 1128, 1132–35
(9th Cir. 2000), the defendant’s own testimony, United
States v. Littlesun, 444 F.3d 1196, 1198–99, 1201 (9th Cir.
2006), or even from other codefendants’ hearsay accounts,
Berry, 258 F.3d at 976–77.
C. Standard of Review
Reviewing our cases, we find that we have not yet clearly
enunciated the standard by which we review a district court’s
determination of whether coconspirator hearsay is
unreliable. The government cites United States v. Ayers,
924 F.2d 1468, 1481 (9th Cir. 1991), for the proposition that
we review for abuse of discretion. Indeed, we have said
“[c]onsideration of evidence outside the record of conviction
for sentencing purposes is reviewed for an abuse of
discretion,” and “[r]eliance on materially false or unreliable
information is an abuse of discretion.” Ibid.We have also said, in a general way, that “[a] district
court abuses its discretion when it makes an error of law,
when it rests its decision on clearly erroneous findings of
fact, or when we are left with ‘a definite and firm conviction
that the district court committed a clear error of judgment.’”
United States v. 4.85 Acres of Land, More or Less, 546 F.3d
613, 617 (9th Cir. 2008) (quoting United States v. Hinkson,
526 F.3d 1262, 1277 (9th Cir. 2008), vacated, 547 F.3d 99316 UNITED STATES V. FRANKLIN
(9th Cir. 2008) (en banc) (mem.)). We have explicated that
definition further, in the context of granting a new trial, in
our en banc opinion in Hinkson:
[I]f the district court’s application of fact to
law “requires an inquiry that is essentially
factual,” we review it as if it were a factual
finding; if the district court’s application of
fact to law requires reference to “the values
that animate legal principles,” we review it as
if it were a legal finding.
United States v. Hinkson, 585 F.3d 1247, 1259 (9th Cir.
2009) (en banc) (quoting United States v. McConney,
728 F.2d 1195, 1202 (9th Cir. 1984) (en banc), abrogated in
part by Pierce v. Underwood, 487 U.S. 552, 557–63 (1988)).
That is to say, we review an essentially factual finding for
clear error and an essentially legal finding de novo. Id.at 1259–60.
An essentially factual finding is one “requir[ing] an
inquiry . . . that is founded ‘on the application of the fact-
finding tribunal’s experience with the mainsprings of human
conduct.’” Id. at 1259 (quoting McConney, 728 F.2d
at 1202). Examples in Hinkson of essentially factual findings
include determinations of “motive, intent, and negligence.”
Id. at 1260.
By way of contrast, “questions such as whether
defendants’ conduct constituted a conspiracy in violation of
the Sherman Act,” “questions that implicate constitutional
rights,” and “the meaning of due diligence or the conceptual
basis for granting new trials” are questions that “require[] us
to consider legal concepts in the mix of fact and law and to
exercise judgment about the values that animate legal
principles.” Id. at 1259–60 (quoting McConney, 728 F.2d
UNITED STATES V. FRANKLIN 17
at 1202). These are essentially legal questions on which the
district court receives no deference. Id. at 1260.
To decide whether we have a factual or legal question
before us in Mr. Franklin’s case, we consider the history and
application of the minimal-indicia-of-reliability doctrine in
our case law.
1. Origin and Early Development
The origin of the rule that evidence against a defendant
in a sentencing hearing must bear sufficient indicia of
reliability is Townsend v. Burke, 334 U.S. 736 (1948). There,
a pro se criminal defendant had been “sentenced on the basis
of assumptions concerning his criminal record which were
materially untrue.” Id. at 741. One of the charges relied upon
by the sentencing court had been dismissed, and the
defendant had been acquitted of two others. Id. at 740.
Although the sentence had been “within the limits set by
statute” and “its severity would not be grounds for relief,” it
was “the careless or designed pronouncement of sentence on
a foundation so extensively and materially false, which the
prisoner had no opportunity to correct by the services which
counsel would provide, that render[ed] the proceedings
lacking in due process.” Id. at 741.
We applied and extended Townsend in United States v.
Weston, 448 F.2d 626 (9th Cir. 1971), holding that the
district court’s reliance on not just materially false but also
unreliable information violated due process. (See infra
pp. 22–24 for more discussion of Weston.)
In United States v. Ibarra, 737 F.2d 825 (9th Cir. 1984),
we attempted to clarify the meaning of “false or unreliable”
by defining it to mean lacking in “some minimal indicium of
reliability beyond mere allegation.” Id. at 827 (quoting
18 UNITED STATES V. FRANKLIN
United States v. Baylin, 696 F.2d 1030, 1040 (3d Cir. 1982)
(construing Weston, 448 F.2d at 633–34)).
Ibarra also stated that “[w]e review a sentence for abuse
of discretion if [the] defendant can show that the district
court relied on information that should not have been
considered during the sentencing phase.” 737 F.2d at 826–
27 (citations omitted). That statement expressed the
prevailing standard of review before the introduction of the
Sentencing Guidelines, which came about shortly after we
decided Ibarra. See, e.g., United States v. Wilson, 900 F.2d
1350, 1354 (9th Cir. 1990) (“Prior to the Guidelines’
promulgation, . . . district courts employed a gestalt
approach to sentencing where a single factual determination
rarely had a sufficiently significant impact on the overall
sentence to warrant an appeal.”); United States v. Sanchez-
Murillo, 608 F.2d 1314, 1319 (9th Cir. 1979) (noting that the
“only exception to this rule is where the defendant can
establish that information presented to the court prior to
sentencing should not have been considered,” which would
supply the basis for a claim of an abuse of discretion); United
States v. Kearney, 560 F.2d 1358, 1369 (9th Cir. 1977) (“A
federal trial judge has wide discretion in imposing sentence,
and where . . . the sentence pronounced is within statutorily-
prescribed limits, it is generally not subject to review.”).
2. Effect of the Sentencing Guidelines and Booker
With the advent of the Guidelines, which were binding
until United States v. Booker, 543 U.S. 220 (2005), made
them advisory, district courts no longer exercised traditional
sentencing discretion, adjusting the weights of sentencing
factors “to reflect the differences in the relative certainty of
information on which the sentences [we]re based.” Wilson,
900 F.2d at 1352 (quoting United States v. Davis, 715 F.
Supp. 1473, 1477 (C.D. Cal. 1989), aff’d in part and vacated
UNITED STATES V. FRANKLIN 19
in part, 960 F.2d 820 (9th Cir. 1992)). Instead, they had to
“‘[d]etermine the base offense level and apply any
appropriate specific offense characteristics’ and
‘adjustments as appropriate related to victim, role, and
obstruction of justice.’” Ibid. (alteration in original) (quoting
U.S.S.G. § 1B1.1(b)–(c), (e)–(f)). We interpreted
“appropriate” to include the due-process requirement that
the court “apply only those factors for which sufficiently
reliable information exists.” Ibid. But we held that
“[d]etermining that information is not materially false does
not require any type of heightened scrutiny. It is enough that
the sentencing judge is convinced that the disputed fact, as
alleged, is true.” Id. at 1353 (quoting United States v.
McDowell, 888 F.2d 285, 291 (3d Cir. 1989)). And proof by
a preponderance of the evidence was sufficient, we held:
[A] defendant’s due process right to ensure
the reliability of information used at
sentencing includes the requirement that facts
underlying sentencing factors be proved
according to a specified standard of
proof. . . .
We hold . . . that district courts are
constitutionally required to make factual
determinations underlying application of the
Guidelines by at least a preponderance of the
evidence. As so interpreted, the Guidelines
do not violate due process.
Id. at 1354. That was perhaps our clearest statement tying
reliability of sentencing evidence to the sentencing court’s
factfinding function.
20 UNITED STATES V. FRANKLIN
But we still did not describe our review of reliability
determinations as clear-error review. Rather, in FTC v.
American National Cellular, 868 F.2d 315, 322 (9th Cir.
1989), we looked to a pre-Guidelines case, United States v.
Larios, 640 F.2d 938, 942 (9th Cir. 1981), in which we had
stated the prevailing view that “[j]udges are given very broad
discretion to consider information from a wide variety of
sources when sentencing because it is important for the
sentencing judge to be able to fashion sentences properly . . .
[for] individual defendants.” Without any analysis, we
repeated that “[a] district court’s consideration of
information outside the record of conviction for sentencing
purposes is reviewed for an abuse of discretion.” Am. Nat’l
Cellular, 868 F.2d at 322. We then said that “[w]e will find
an abuse of discretion if the defendant shows that the district
court relied on materially false or unreliable information,”
ibid. (citing United States v. Messer, 785 F.2d 832, 834 (9th
Cir. 1986)), but we gave no separate instructions for how to
determine if a defendant made such a showing (and neither
did Messer). We have since repeated this “abuse of
discretion” language but never explicitly defined what it
means in this context. See, e.g., Ayers, 924 F.2d at 1481
(citing Am. Nat’l Cellular, 868 F.2d at 322); Petty, 982 F.2d
at 1369 (citing Ayers, 924 F.2d at 1481); United States v.
Hanna, 49 F.3d 572, 577 (9th Cir. 1995) (citing Petty,
982 F.2d at 1369).
After Booker made the Guidelines advisory rather than
binding, much of district courts’ traditional sentencing
discretion was restored. But Booker did not much affect our
review of reliability determinations. District courts still must
correctly compute the Guidelines range as a part of the
sentencing process. United States v. Carty, 520 F.3d 984,
991–93 (9th Cir. 2008) (en banc). For that computation, the
government must still prove by at least a preponderance any
UNITED STATES V. FRANKLIN 21
facts underlying a base offense level or sentence
enhancement. United States v. Pike, 473 F.3d 1053, 1057
(9th Cir. 2007).
We now review all sentences for an abuse of discretion,
whether they are inside or outside the correctly computed
Guidelines range. Carty, 520 F.3d at 993. That means
“ensur[ing] that the district court committed no significant
procedural error, such as . . . selecting a sentence based on
clearly erroneous facts,” Gall v. United States, 552 U.S. 38,
51 (2007), and then considering the substantive
reasonableness of a procedurally sound sentence, duly
deferring to a district court’s finding that the 18 U.S.C.
§ 3553(a) factors justify any variance from the Guidelines
range, Carty, 520 F.3d at 993. In short, the case law we built
before Booker surrounding Guidelines determinations is still
good law, now interwoven with additional structure for
incorporating Booker’s remedial component.
3. Historical Application of the Minimal-Indicia-of-
Reliability Doctrine
A survey of our application of the minimal-indicia-of-
reliability doctrine over time demonstrates two overarching
concerns that sometimes come into tension. The sentencing
court should have as much information as possible so that it
can effectively discharge its duty—to sentence each person
as an individual. But there must also be sufficient procedural
protections to allow a defendant the opportunity to question
and refute evidence against him at sentencing. Our survey
also reveals two separate inquiries that we have developed
to accommodate these two concerns. The first was primarily
an examination of the process afforded a defendant during
sentencing. Later, we relaxed the bar on hearsay evidence at
sentencing to allow statements that appeared substantively
reliable, even if the defendant did not receive the same
22 UNITED STATES V. FRANKLIN
procedural protections in challenging them that we had
formerly required.
a. At First, We Were Concerned Primarily with Procedure
i. United States v. Weston, 448 F.2d 626 (9th Cir. 1971).
In one of our first cases discussing due-process rights at
sentencing, the defendant, convicted of trafficking heroin,
had been sentenced to the statutory maximum of twenty
years of imprisonment. Id. at 630. The district court based its
sentence on assertions by federal narcotics agents in the PSR
that she had been “the chief supplier [of heroin] to the
Western Washington area.” Id. at 628. The district court,
opining that the probation officers who had compiled the
report were “extremely objective,” and noting that the
defendant had not provided any “contrary factual
information, rather than simply a vehement denial,”
accepted the PSR as true. Id. at 629. It advised the defendant
that she could bring a motion later if she obtained any
information to refute the report, to which her counsel
responded, “I can’t conceive of what type of investigation I
can do to come back and say that she isn’t” the “biggest
dealer in the Western states.” Ibid. Nevertheless, the district
court imposed the maximum sentence.
We vacated that sentence on appeal. Upon reviewing the
sealed record, we observed that the PSR’s allegations came
from a narcotics agent’s “unsworn memorandum” that
merely “quote[d] a named informant, described only as
‘previously identified as a reliable cooperating individual,’
who indicate[d]” only that the defendant was about to
make—not that she had made—a trip to Mexico to obtain
heroin. Id. at 630. We found that the report “contain[ed]
nothing to show, rather than to assert, that the information
was reliable, or otherwise to verify the very serious charge
UNITED STATES V. FRANKLIN 23
made against Weston.” Ibid. That was “tantamount,” we
said,
to saying that once a defendant has been
convicted of offense A, narcotics agents can
say to the probation officer, and the probation
officer can say to the judge, “We think that
she is guilty of much more serious offense B,
although all we have to go on is an informer’s
report,” and the judge can then say to the
defendant, “You say it isn’t so; prove that to
me!” In addition to the difficulty of “proving
a negative,” we think it a great miscarriage of
justice to expect Weston or her attorney to
assume the burden and expense of proving to
the court that she is not the large scale dealer
that the anonymous informant says that she
is.
Id. at 634. Thus, we held, “a sentence cannot be predicated
on information of so little value as that here involved. A
rational penal system must have some concern for the
probable accuracy of the informational inputs in the
sentencing process.” Ibid. We remanded for a new
sentencing hearing, directing the district court not to
consider the information from the PSR “unless it is amplified
by information such as to be persuasive of the validity of the
charge there made.” Ibid.Weston stands for the proposition that if the sentencing
process effectively puts the burden of proof on the defendant
to refute a damaging hearsay allegation, particularly when
the factual basis for believing such a charge is practically
nonexistent, that process is legally flawed. See id. at 633.The
district court treated as controlling the inherent credibility of
24 UNITED STATES V. FRANKLIN
the probation officers preparing the PSR and the agents
interviewed for the report’s factual bases, regardless of the
credibility of those officers’ and agents’ sources. The
government could effectively assert anything in the PSR and
require the defendant to refute it. Such a system is repugnant
to due process. See id. at 634.
ii. United States v. Petty, 982 F.2d 1365 (9th Cir. 1993).
This was a post-Guidelines case in which the kingpin of a
cocaine-trafficking scheme, Mr. Kessack, gave a statement
during plea negotiations with the government. Id. at 1366.
Negotiations broke down, and Mr. Kessack and his
coconspirators were convicted at trial. Id. at 1367. After
Mr. Kessack was sentenced, he refused to testify at the other
defendants’ sentencing hearing, despite an order compelling
his testimony. Ibid. So the district court, upon the
government’s motion, unsealed and reviewed Mr. Kessack’s
statement. Ibid. Mr. Kessack then made a second, sworn
statement that “cast doubt on the accuracy and reliability of
his first [s]tatement.” Ibid. But the district court, after
determining that his first statement “was corroborated by
other evidence,” found that the conspiracy “involved more
than 50 kilograms of cocaine” based on information in the
first statement. It sentenced the other defendants based on
that amount. Ibid.We affirmed, approving the district court’s procedure of
treating the hearsay statement as “presumptively unreliable”
and finding that presumption rebutted upon consideration of
other, corroborating evidence. Id. at 1369. Indeed, we
expressly endorsed the use of “extrinsic corroborating
evidence to establish the reliability of hearsay . . . at
sentencing,” including in-court witness testimony and
admissions by members of the conspiracy. Ibid.UNITED STATES V. FRANKLIN 25
Notably, the external corroborating evidence considered
by the district court in Petty was evidence that the defendants
could have attempted to impeach via cross-examination in
the normal course of the hearing. Had that evidence been
false, the defendants had the usual tools of criminal
procedure to challenge and refute it. And, had the defendants
successfully refuted such evidence, there would have been
no external corroboration supporting the hearsay statement,
and it would have been inadmissible. Thus, the district
court’s procedure did not offend due process because, unlike
in Weston, the burden was not on the defendants to disprove
the government’s allegations, and the government had
proffered sufficient evidence tending to corroborate the
coconspirator’s hearsay statement.
iii. United States v. Huckins, 53 F.3d 276 (9th Cir. 1995).
In Huckins, we found insufficient indicia of reliability to
support hearsay statements by the defendant’s accomplice
that the defendant had been armed with a gun during two
bank robberies. Id. at 278–79. The accomplice’s statements
“were not made under oath, nor at trial where he could be
cross-examined” but rather “in the context of plea
negotiations with the government, in which [he] may very
well have been hoping to curry favor with law enforcement
officials.” Id. at 279. Moreover, the part of the accomplice’s
statements attesting that the defendant had been armed was
collateral to the part inculpating the accomplice. Ibid. We
therefore removed those statements from consideration,
leaving a single bank teller’s statement that the defendant put
his hands in his pocket during a third robbery, which we
found was not enough to “prove by a preponderance of the
evidence that Huckins was armed” at any of the robberies.
Ibid.26 UNITED STATES V. FRANKLIN
As in Weston, in Huckins we were concerned with the
procedural problem inherent in relying on the accomplice’s
statements—unsworn, impossible for the defendant to cross-
examine. We did have a substantive concern that the
accomplice’s statement was likely not reliable. But despite
this substantive dimension, our reliability review in Huckins
was still essentially procedural. It was not for clear error—
indeed, a reasonable factfinder could have credited the
accomplice’s statements, especially combined with the bank
teller’s observation. See Anderson v. City of Bessemer City,
470 U.S. 564, 574 (1985) (“Where there are two permissible
views of the evidence, the factfinder’s choice between them
cannot be clearly erroneous.”). And we made a separate
finding of factual error: Considering the only piece of
sufficiently reliable evidence supporting the proposition that
Mr. Huckins had been armed at any of the robberies (that is,
the bank teller’s statement), we found that evidence unable
to support that proposition by a preponderance of the
evidence. Huckins, 53 F.3d at 279. So Huckins suggests that
we did not treat the reliability determination as an issue of
fact but rather as an essentially legal, procedural issue.
It is also noteworthy that we rejected the government’s
argument on appeal that the bank teller’s statement about
one robbery was partially corroborative of the
coconspirator’s statement about the other two robberies. See
Brief for the United States at 19, Huckins, 53 F.3d 276 (No.
94-30052), 1994 WL 16059689, at *19. Instead, we agreed
with the government’s statement in the district court that the
bank teller’s “perception that Mr. Huckins had a gun did not
constitute evidence that he in fact had one.” Defendant-
Appellant’s Opening Brief at 9, Huckins, 53 F.3d 276 (No.
94-30052), 1994 WL 16059688, at *9; Huckins, 53 F.3d
at 279. That foreshadowed the way in which our substantive
UNITED STATES V. FRANKLIN 27
review of the reliability of a hearsay statement would come
to the forefront of the doctrine.
iv. United States v. Garcia-Sanchez, 189 F.3d 1143 (9th
Cir. 1999). Although we noted in Garcia-Sanchez that “[w]e
show great deference to trial court factual determinations,
reviewing [them] only for clear error,” id. at 1148, we
nevertheless vacated the district court’s sentence on the
grounds that the evidence did not have sufficient indicia of
reliability. Indeed, Garcia-Sanchez reads much like a replay
of Weston. We held that the district court erred by relying
solely on “conclusory testimony” from a case agent at the
sentencing hearing, who stated:
[a]s a result of interviewing Lawrence
Bertolino, who is the principal middle person
here in Spokane for Cipriano, [i.e.] Zavala[,]
and Rutilio Garcia[-Sanchez]’s distribution
of cocaine and heroin, we determined that
cocaine was being sold anywhere from two to
three ounces a week from the Bertolino
residence. In addition to one to two ounces of
heroin.
Id. at 1149 (alterations in original). In particular, the agent
“had no first-hand knowledge of the conspiracy’s sales,”
“did not explain how he arrived at his estimates,” “did not
reveal the hearsay upon which he relied,” “did not produce
the contemporaneous . . . reports of his interviews,” “was not
cross-examined,” and “was not tested or challenged” on his
opinion. Ibid.The procedural defect in Garcia-Sanchez was the same
as in Weston. Although the case agent had identified the
source interviewed for the report, the report was nevertheless
conclusory, not breaking down the steps of the agent’s
28 UNITED STATES V. FRANKLIN
analysis to show how he arrived at his conclusions. The
defendant could do little but deny what Mr. Bertolino had
purportedly said. Putting the burden of proof on the
defendant violated his due-process rights, just as in Weston,
and we reached the same conclusion (albeit without citing
Weston).
Thus, up to the turn of the millennium, our cases on the
minimal-indicia-of-reliability doctrine generally treated it as
a procedural issue, even if we also implicitly considered the
substantive reliability of the hearsay statements at issue. The
main concern was whether the district court unfairly put the
burden on the defendant to produce evidence to disprove
government allegations. Although in some cases we allowed
corroboration by external evidence, the defendants in such
cases had an opportunity to challenge that external evidence
through cross-examination. The “indicia of reliability”
flowed from the procedural mechanisms allowing the
defendant to challenge government allegations.
b. Later, We Began Considering Substantive Indicia of
Reliability
Starting in the late 1990s, we expanded our
understanding of “minimal indicia of reliability” to include
whether the hearsay statement itself was likely substantively
reliable. If so, its admission at sentencing satisfied due
process, even if the defendant did not have the opportunity
to challenge the source or other evidence corroborating the
source in open court.
i. United States v. Chee, 110 F.3d 1489 (9th Cir. 1997).
Chee gives an early example of our substantive-reliability
review. There, the defendant pleaded guilty to assaulting his
girlfriend on an Indian reservation. Id. at 1491–92. An FBI
agent interviewed the girlfriend at a hospital, where she said
UNITED STATES V. FRANKLIN 29
that the defendant had “forced her to get into [a] car by
throwing her into the car, closing the door behind her, and
quickly driving away while using the power door locks.” Id.
at 1491. She said that, after beating her and threatening to
kill her with a gun in his car trunk, he took her to a motel
room and raped her. Ibid. When the defendant left the room,
the girlfriend “called her mother, who called the police, and
the front desk.” Ibid. A state police officer also took a
statement from the girlfriend at the motel and the hospital,
and he noted that she had “many bruises, abrasions, and bite
marks on her head, back, arms and legs.” Id. at 1491–92. The
district court relied on those and other hearsay statements by
the girlfriend in sentencing the defendant, including
applying a three-level enhancement for threatening to use a
deadly weapon and a two-level enhancement for restraining
his victim. Id. at 1492.
We held that the district court permissibly relied on the
statements. The district court had found that the statements
were “credible and trustworthy” at least partially “because
they were made ‘immediately upon contact with her mother,
with the contact by the police, and to hospital staff.’” Ibid.We also noted that the girlfriend’s statements were
“corroborat[ed] by other statements, including [the
defendant]’s statement.” Id. at 1493. Moreover, her
statements were consistent with the state police officer’s
description of her injuries. Thus, in Chee, we began to
primarily consider the intrinsic reliability of the hearsay
statement itself, albeit still in combination with external
corroborating evidence that the defendant could challenge at
the sentencing hearing.
ii. United States v. Berry, 258 F.3d 971 (9th Cir. 2001).
This case established that even presumptively unreliable
statements can permissibly corroborate one another. The
30 UNITED STATES V. FRANKLIN
defendant had pleaded guilty to one count of possession of
stolen mail arising out of a scheme involving depositing
stolen checks and using stolen credit cards. Id. at 974–75. In
preparing the PSR, the probation officer interviewed the
defendant’s coconspirators, who all stated that the defendant
had “solicited them to pass stolen and forged checks through
their personal bank accounts” and that the defendant “would
retain the majority of the ill-gotten proceeds despite the co-
defendants’ frequent assumption of the greatest risks in
perpetrating the crimes.” Id. at 977. The defendant denied
those allegations, instead stating that the coconspirators had
“all solicited him to run stolen checks through their
accounts” and that “the person who deposited the stolen
checks into their account received between seventy and
eighty percent of the recovered funds.” Id. at 975. The
district court rejected Mr. Berry’s version and relied on the
coconspirators’ statements to impose a four-level
leadership-role enhancement. Ibid.We affirmed. Although the district court had not made
express findings about the reliability of the coconspirators’
statements, we held that reversal was not warranted because
the “reliability of the hearsay statements [wa]s apparent from
the record.” Id. at 976. Citing cases from the First and
Eleventh Circuits, we adopted the rule that “hearsay
statements by co-defendants that are consistent with each
other may be deemed sufficiently reliable even if such
statements are self-serving and contrary to the testimony of
the defendant.” Id. at 976–77. And three coconspirators’
statements that the defendant had directed the enterprise in
the same manner with respect to each defendant was enough
consistency to satisfy us that the statements had “some
minimal indicia of reliability.” Ibid. (quoting Petty, 982 F.2d
at 1369).
UNITED STATES V. FRANKLIN 31
Thus, for the first time in Berry, we held that hearsay
allegations denied by the defendant—and uncorroborated by
external evidence that a defendant could challenge using the
normal tools of criminal procedure—could support facts
underlying sentencing enhancements. The doctrine no
longer provided a purely procedural protection for the
defendant. So long as the district court did not use
substantively unreliable information to sentence the
defendant, the defendant had received due process. That
aligns with the goal of maximizing the amount of
information available to the district court to “ensure[] that
the punishment will suit not merely the offense but the
individual defendant.” Pepper v. United States, 562 U.S.
476, 488 (2011) (quoting Wasman v. United States, 468 U.S.
559, 564 (1984)); see also 18 U.S.C. § 3661; U.S.S.G.
§ 1B1.4.
c. Balancing Procedural and Substantive Protections
Following Berry, our cases continued to show some
concern with affording the defendant procedural protections
against coconspirator hearsay, generally in cases with no
substantive indicia of reliability.
i. United States v. McGowan, 668 F.3d 601 (9th Cir.
2012). In McGowan, we vacated the sentence of a prison
guard convicted of assaulting inmates. One inmate had
testified in a different case that he had given the defendant
drugs to smuggle into prison, and the district court admitted
that testimony during sentencing in transcript form. Id.
at 607. That same inmate had also given similar statements
to FBI agents. Ibid. The government tried to corroborate the
inmate’s statements by noting that the inmate had known
where the defendant’s house was located. Ibid. Disagreeing
with the district court, we held such knowledge to be
insufficient corroboration, noting that the defendant had
32 UNITED STATES V. FRANKLIN
explained why the inmate would have known that fact: The
inmate had been a squatter in that house before the defendant
had bought it. Id. at 607–08 & n.3. We also observed that
there was no other evidence to corroborate the allegations.
Id. at 608.
In rejecting the inmate’s hearsay, we emphasized the
procedural defects. Even though the inmate had testified—
“fleetingly”—under oath in a different case, the sentencing
judge had only the bare transcript and therefore no
opportunity to perceive the inmate’s demeanor during that
testimony. Id. at 607. Moreover, the defendant had no
opportunity to cross-examine the inmate’s testimony
because it was in a different case, and neither did the
defendant (nor the government) in that case have any
incentive to cross-examine the inmate. Id. at 607–08. Thus,
we held, the “allegations were made under oath but absent
any other procedural mechanism that would ensure that a
witness with the incentive to lie was telling the truth.” Id.
at 608 (emphasis added).
ii. United States v. Pimentel-Lopez, 859 F.3d 1134 (9th
Cir. 2016). In Pimentel-Lopez, we applied the rule from
Berry in considering the statements of a codefendant,
Mr. Elizondo, as related through a government agent at
sentencing. The agent testified that Mr. Elizondo had said
that Mr. Pimentel-Lopez had directed Mr. Elizondo’s
fiancée and her sister “to rent a house ‘to be used . . . to
distribute drugs’” and that he had “directed two individuals
to deposit the proceeds of the drug sales into a bank
account.” Id. at 1144. The fiancée had corroborated those
allegations in a police interview before trial. Ibid. But, at
trial, neither the fiancée nor her sister testified that
Mr. Pimentel-Lopez had directed them to rent any house or
directed anyone to deposit drug proceeds. Ibid. In fact, the
UNITED STATES V. FRANKLIN 33
sister testified “that she couldn’t even communicate with
Pimentel-Lopez because she didn’t speak Spanish.” Ibid.Even so, the district court relied on those pretrial statements
to enhance Mr. Pimentel-Lopez’s sentence because he
directed his coconspirators’ behavior. Id. at 1143.
Because Mr. Elizondo’s “statements were not made
under oath, nor at trial where he could be cross-examined,”
id. at 1144 (quoting Huckins, 53 F.3d at 279), we applied the
presumption that “a codefendant’s confession inculpating
the accused is inherently unreliable,” ibid. (quoting Lee,
476 U.S. at 546). And, following Berry, we asked whether
external evidence corroborated Mr. Elizondo’s hearsay
statements. Ibid. The only external corroboration of his
statements was another out-of-court statement by his
fiancée. Ibid. Recognizing that even “self-serving”
statements can constitute minimal indicia of reliability, ibid.(quoting Berry, 258 F.3d at 976–77), we nevertheless had
sufficient “doubt” of Mr. Elizondo’s purported statements to
deem them uncorroborated, ibid. For one thing, even though
the fiancée had corroborated those hearsay statements before
trial, she did not testify to them at trial. Ibid. For another, the
sister’s testimony that she could not speak Spanish made the
proposition that Mr. Pimentel-Lopez had “directed” her to
do something unlikely. Ibid.Our inquiry in Pimentel-Lopez was essentially factual.
Although we noted that the statement at issue and the
corroborating statement were both out-of-court hearsay, the
defendant’s inability to challenge them did not drive our
decision. Nor could it have after Berry. Instead, contrary to
the district court, we assigned greater weight to the
statements given under oath in open court, even considering
silence on some issue in court to be enough to discount an
earlier hearsay statement. And we considered the logical
34 UNITED STATES V. FRANKLIN
import of the hearsay statements and the testimony given at
trial, inferring from the sister’s testimony that the hearsay
statements were less likely to be true. Weighing the evidence
and determining relative credibility are not legal questions—
they involve “the application of the fact-finding tribunal’s
experience with the mainsprings of human conduct.”
Hinkson, 585 F.3d at 1259 (quoting McConney, 728 F.2d
at 1202). Although we did not say so explicitly, we
conducted clear-error review in Pimentel-Lopez, reversing
the district court’s implicit finding that Mr. Elizondo’s
hearsay statements were reliable. 6
iii. United States v. Vera, 893 F.3d 689 (9th Cir. 2018).
In Vera, the government sought to prove the amount of drugs
that the defendant brothers had sold by using the factual
statements from twelve codefendants’ plea agreements. Id.
at 691, 694. Again applying Berry, we examined those plea
agreements to determine whether they sufficiently
corroborated one another. We extensively analyzed the facts
alleged in the plea agreements. Although those allegations
adequately established that the Veras had some part in the
drug scheme, only four specific drug transactions were
referenced in more than one plea agreement (out of the forty
total transactions represented in the agreements). Id. at 694–
95. The plea agreements attributed none of those four
transactions specifically to either brother. Id. at 695.
Although the drug quantities listed in one plea agreement
were verified independently by DEA laboratory reports,
neither the plea agreement nor the laboratory reports
6
We did use clear-error review to find the sentencing enhancement
inappropriate, but that was because, after we threw out the hearsay
statements, there was “no evidence” that the defendant had directed
others. 859 F.3d at 1144. We did not cite any standard of review—not
even abuse of discretion—of the district court’s reliability determination.
UNITED STATES V. FRANKLIN 35
connected those transactions to the Veras. Ibid. We thus
found that there was insufficient external corroboration for
those agreements to be evidence against the brothers in their
sentencing hearing. Ibid.
4. Synthesizing the Case Law
Having examined the development of the minimal-
indicia-of-reliability doctrine over the last half-century, we
conclude that there are two distinct questions that we answer
in examining a hearsay statement at sentencing: (1) whether
the statement is “procedurally reliable” and (2) whether the
statement is “substantively reliable.” This is a disjunctive
test: If we answer either question in the affirmative, then the
statement may be considered at sentencing.
First, procedural reliability. We ask whether there are
sufficient procedural protections so that the defendant does
not have to “prove a negative” in the face of government
allegations. This is an essentially legal question because
whether the defendant is in that position “implicate[s]
constitutional rights” and requires us “to exercise judgment
about the values that animate legal principles.” Hinkson,
585 F.3d at 1260 (citation omitted).
Generally, if the government supports the hearsay
statements with extrinsic evidence that the defendant can
challenge on cross-examination, then we have found the
process to be adequate to ensure that the defendant is not
sentenced on the basis of unreliable or false information. See
Petty, 982 F.2d at 1366–69. The district court may then
consider the hearsay statement under the rubric of procedural
36 UNITED STATES V. FRANKLIN
reliability after finding the extrinsic evidence to sufficiently
corroborate the hearsay statement. 7 Ibid.Second, if the government offers no corroboration of a
hearsay statement that the defendant can challenge at
sentencing through the normal adversarial process, we
proceed to the substantive inquiry. As our cases show,
substantive indicia of reliability can be enough to safeguard
the defendant’s right not to be sentenced on the basis of
unreliable or false information. Thus, hearsay from a source
that is self-demonstrably reliable is permissible on its own.
See Chee, 110 F.3d at 1492. And even if the hearsay is from
a presumptively unreliable source, such as a coconspirator,
the government can prove its reliability by exhibiting other,
independently obtained, consistent hearsay statements—
even other presumptively unreliable statements, as in Berry.
But, unlike procedural reliability, substantive reliability is an
essentially factual issue. It requires judging whether a
statement is probably truthful in light of all the
circumstances—that is, “the application of the fact-finding
tribunal’s experience with the mainsprings of human
conduct.” Hinkson, 585 F.3d at 1259 (quoting McConney,
728 F.2d at 1202).
The upshot is this. A determination of procedural
reliability—that the hearsay in question does not put the
burden on the defendant to prove a negative and that the
defendant has adequate opportunity to confront
corroborative evidence of the hearsay—is an essentially
legal question that we review de novo. A determination of
The defendant may, of course, challenge such a finding on appeal,
7
and we would review that finding for clear error. See United States v.
Hernandez, 105 F.3d 1330, 1332 (9th Cir. 1997); United States v. Miller,
874 F.2d 1255, 1279–80 (9th Cir. 1989).
UNITED STATES V. FRANKLIN 37
substantive reliability—whether hearsay statements
admitted at sentencing are from reliable sources or are
consistent enough with one another to indicate their probable
truth—is an essentially factual question that we review for
clear error. And so long as each hearsay statement offered
by the government at sentencing is either procedurally
reliable or substantively reliable, due process is not
offended.
D. Application
Here, the government gives two reasons that the use of
Mr. Hiler’s and Mr. Pitsch’s statements 8 at Mr. Franklin’s
sentencing did not violate his due-process rights. One
invokes procedural reliability; the other invokes substantive
reliability.
1. Procedural Reliability
We first consider the government’s argument that
external, nonhearsay evidence corroborates Mr. Hiler’s
hearsay statements. The statements at issue here are (1) that
8
As a reminder: After Mr. Franklin’s first, failed change-of-plea
hearing, Mr. Hiler told FBI Special Agent Bowen that he had received a
note from Mr. Franklin. That note asked Mr. Hiler to testify at trial
consistently with Mr. Franklin’s statements at the plea hearing. After
disclosing the note to the government, Mr. Hiler claimed to have been
assaulted by other inmates at Mr. Franklin’s behest, sustaining “[v]ery
minor injuries” in his mouth. Special Agent Bowen later received a
second note, written by Mr. Hiler as a response to Mr. Franklin “to get
[Mr. Franklin] off of his back.”
Separately, Mr. Pitsch told Special Agent Bowen that Mr. Franklin
had warned him that he was going to be branded as a snitch and advised
him to be cautious. Taking the warning as a threat, Mr. Pitsch asked for
a transfer to a different detention facility.
38 UNITED STATES V. FRANKLIN
Mr. Franklin sent Mr. Hiler a note asking him to give false
testimony and (2) that Mr. Franklin sent inmates to rough up
Mr. Hiler after he disclosed the note to the government. We
analyze de novo whether Mr. Franklin was required to
“prove a negative”—whether he had adequate opportunity to
meet external evidence at his sentencing hearing.
Mr. Franklin did not bear the burden of disproving
conclusory government allegations. Unlike in Weston and
Garcia-Sanchez, the government did not use a government
agent as a mere mouthpiece for unsourced obstruction-of-
justice allegations. Instead, Special Agent Bowen related
detailed, specific statements and identified the sources of
those statements—Mr. Hiler and Mr. Pitsch. The
government also offered extrinsic, nonhearsay evidence to
corroborate those hearsay statements: (1) Special Agent
Bowen’s personal observation of Mr. Hiler’s mouth injuries,
(2) the copy of the note (purportedly from Mr. Franklin) that
Special Agent Bowen received, and (3) the transcript of
Mr. Franklin’s first change-of-plea hearing. 9 Combined with
the rebuttable presumption of unreliability that we impose
on coconspirators’ inculpatory statements, the government
was indeed saddled with the burden to prove the obstruction
enhancement’s applicability.
As for opportunities to challenge the government’s
external, nonhearsay evidence: First, Special Agent Bowen
testified at the sentencing hearing, and Mr. Franklin cross-
examined him. Cross-examination is the “gold standard” of
9
Although the latter two pieces of evidence are out-of-court
statements, their relevance to the obstruction-of-justice enhancement
does not come from whether the statements are true, so they are not
hearsay. Instead, the note and transcript together are evidence that the
author of the note is likely someone familiar with the hearing.
UNITED STATES V. FRANKLIN 39
procedural reliability. Murdoch v. Castro, 609 F.3d 983,
1003 (9th Cir. 2010) (en banc) (Kozinski, C.J., dissenting).
So Mr. Franklin could adequately meet Special Agent
Bowen’s observations of Mr. Hiler’s injuries.
Second: The copy of the note was present at the
sentencing hearing and entered into evidence. If the note
really had been forged, Mr. Franklin could have tried to
challenge the note’s provenance by, for example,
introducing an exemplar of his own handwriting or having a
handwriting analysis expert testify to show that he had not
written the note. Or he could have attempted to find some
detail stated in the note that he would not have known but
someone else (presumably whoever forged it) would have
known. And so on. In other words, Mr. Franklin had a full
and fair opportunity to challenge the premise that he was the
source of the note. So he could adequately meet that
evidence, too.
And third: The transcript of the first plea hearing.
Although Mr. Franklin could not reasonably dispute the
reliability of the transcription, that is not a procedural
problem—it is substantive. His remedy would have been to
argue in the district court, as he does now on appeal, that the
corroborative inference is weak—perhaps because Mr. Hiler
had easy access to a transcript of the hearing and could have
used it to forge the note. Cf. United States v. Matta-
Ballesteros, 71 F.3d 754, 766–67 (9th Cir. 1995)
(defendant’s objection—that forensic expert’s finding that
hairs at crime scene were consistent with defendant’s did not
prove defendant was the only person who could have left the
hairs—went to weight, not admissibility); id. at 768–69
(objection to defect in chain of custody went to weight, not
admissibility).
40 UNITED STATES V. FRANKLIN
Thus, there were adequate procedural opportunities for
Mr. Franklin to challenge the extrinsic, nonhearsay evidence
corroborating Mr. Hiler’s hearsay statements. Perceiving no
error in the district court’s conclusion that this evidence
sufficiently corroborated Mr. Hiler’s statements, we
conclude that the admission of those statements at
sentencing did not deprive Mr. Franklin of due process.
2. Substantive Reliability
We also consider the government’s argument that
Mr. Hiler’s and Mr. Pitsch’s hearsay statements corroborate
each other enough to be admissible at sentencing. Although
the district court did not make an express finding of
reliability, we read the court’s ruling on the obstruction-of-
justice enhancement as making such a finding implicitly. 10
We review it for clear error.
And we find none. Each coconspirator reported that
Mr. Franklin pressured him to testify a certain way—or not
to testify—following the first change-of-plea hearing.
Although the two accounts were not uniformly consistent, as
was the case in Berry, they both flowed from the same
triggering incident: Mr. Franklin’s first plea hearing. They
shared the common premise that Mr. Franklin had a
consistent underlying motivation: that he wanted no one to
testify contrary to his statements at that plea hearing,
whether to avoid a perjury charge or to potentially win an
acquittal at trial. And Mr. Hiler’s statement that “Curly” is a
10
From the record: “I have reviewed this matter in its entirety,
including the [coconspirators’] statements that appear in the presentence
report, the testimony that was given in supplementation at the hearing
here today, and it is my conclusion that taken as a whole, that the
evidence, in fact, does support the obstruction of justice recommended
by the presentence officer in the presentence report.”
UNITED STATES V. FRANKLIN 41
nickname for Mr. Pitsch, combined with the note’s
mentioning that “Curly” had been “squawking,”
corroborates Mr. Pitsch’s statement that Mr. Franklin had
been threatening to brand Mr. Pitsch a snitch. The district
court therefore did not clearly err in finding the two
coconspirators’ statements to corroborate each other enough
to be substantively reliable. Thus, the statements’ admission
at sentencing did not violate due process.
IV. Conclusion
Binding precedent forecloses Mr. Franklin’s claim that
Hobbs Act robbery is not a crime of violence under
18 U.S.C. § 924(c)(3)(A). And the district court did not
abuse its discretion in considering the statements of
Mr. Hiler and Mr. Pitsch in imposing an obstruction-of-
justice enhancement at sentencing. The government
provided enough specifics so that Mr. Franklin was not put
to the burden of proving that the enhancement did not apply,
Mr. Hiler’s statements were tied to other evidence that was
subject to procedural tests of reliability, and the two men’s
statements otherwise corroborated each other enough to be
substantively reliable.
AFFIRMED.
BERZON, Circuit Judge, concurring in the judgment:
I agree with the majority’s conclusion that the district
court did not err in relying on hearsay statements from Hiler
and Pitsch as the basis for an obstruction-of-justice
enhancement to Franklin’s sentence. I write separately
because my interpretation of our case law on the minimal-
indicia-of-reliability doctrine is somewhat different from the
42 UNITED STATES V. FRANKLIN
majority’s. Specifically, I disagree that we have developed a
disjunctive test under which a hearsay statement may form
the basis for a defendant’s sentence if it is either
“procedurally reliable” or “substantively reliable.” Majority
op. 37. I read our cases as requiring, at a minimum,
substantive reliability.
I
We have regularly stated that we “review for abuse of
discretion the district court’s evaluation of the reliability of
evidence at sentencing.” United States v. Vera, 893 F.3d 689,
692 (9th Cir. 2018); see, e.g., United States v. McGowan,
668 F.3d 601, 606–08 (9th Cir. 2012); United States v.
Berry, 258 F.3d 971, 976 (9th Cir. 2001); United States v.
Chee, 110 F.3d 1489, 1492–93 (9th Cir. 1997). As the
majority observes, however, we have not clearly explained
how we determine whether a district court abused its
discretion by basing a sentence on hearsay. Majority op. 15.
The majority carefully traces the development of our
case law in this area and demonstrates that our earlier cases
often focused on the procedural injury to a defendant when
the district court based a sentence on unreliable hearsay,
while our later cases were more likely to engage in a close
factual examination of a hearsay statement to evaluate its
reliability. Id. at 21–35. Based on this inquiry, the majority
concludes that due process allows a district court to base a
sentence on a hearsay statement if either the statement is
“procedurally reliable,” that is, “there are sufficient
procedural protections so that the defendant does not have to
‘prove a negative’ in the face of government allegations,” id.
at 35, or the statement is “substantively reliable,” meaning,
for example, that the statement is “from a source that is self-
demonstrably reliable” or there is independent evidence
corroborating it, id. at 36.
UNITED STATES V. FRANKLIN 43
The majority does not point to any case in which we
approved the district court’s reliance on a hearsay statement
at sentencing solely because the statement was “procedurally
reliable,” without any indicia of substantive reliability. True,
many of our cases have rightly emphasized the procedural
problems inherent in relying on a hearsay statement at
sentencing that a defendant never had an opportunity to test
by cross-examination. But these same cases also show a
parallel concern about the substantive reliability of hearsay
statements.
For example, the majority points to United States v.
Weston, 448 F.2d 626 (9th Cir. 1971), as “stand[ing] for the
proposition that if the sentencing process effectively puts the
burden of proof on the defendant to refute a damaging
hearsay allegation, particularly when the factual basis for
believing such a charge is practically nonexistent, that
process is legally flawed.” Majority op. 23. But, as the
majority acknowledges, the reason we were concerned about
putting the burden on the defendant in Weston to refute the
hearsay statements in the presentence report is that we
doubted the statements’ substantive reliability: “the factual
basis for believing the charge was almost nil.” 448 F.2d
at 633. In other words, the government had failed to produce
substantive indicia of reliability to support the hearsay
statements, instead leaving it to the defendant to refute them.
We vacated the sentence and forbid the district court from
relying on the presentence report on resentencing “unless”
the government “amplified [it] by information such as to be
persuasive of the validity of the charge there made”—i.e.,
unless the government produced substantive indicia of
reliability. Id. at 634. We did not suggest that reviewing the
sentencing hearing but applying the correct burden of proof
would suffice.
44 UNITED STATES V. FRANKLIN
The majority proposes a single example of a case in
which we relied on “procedural reliability” alone to approve
the district court’s reliance on hearsay statements at
sentencing: United States v. Petty, 982 F.2d 1365 (9th Cir.
1993). Majority op. 24–25, 35–36. But in Petty, we did not
discuss procedural protections at all.
Petty concluded that the district court “did not abuse its
discretion in concluding that the [hearsay] Statement, when
viewed in light of the corroborating evidence [introduced by
the government], was sufficiently reliable.” 982 F.2d
at 1369. The extrinsic evidence included trial testimony,
post-arrest admissions by codefendants, and “tape recorded
admissions of . . . one of the defendants.” Id.The majority suggests that “the external corroborating
evidence considered by the district court in Petty was
evidence that the defendants could have attempted to
impeach via cross-examination in the normal course of the
hearing.” Majority op. at 25. Thus, the majority concludes,
the hearsay statements were “procedurally reliable.” Id.at 35–36.
Although it does appear that in Petty the defendants had
an opportunity to test some of the extrinsic evidence by
cross-examination (such as the trial testimony), we did not
rely on that circumstance to decide the case. Instead, we
concluded, albeit with scant reasoning, that the extrinsic
evidence “corroborat[ed]” the hearsay statements
“sufficiently” to establish their substantive reliability, or at
least that the district court did not err in so finding. 982 F.2d
at 1369. If we had concluded that the extrinsic evidence did
not corroborate the hearsay statements (as Judge Noonan, in
dissent, suggested it did not, 982 F.2d at 1372), I do not see
how we could have deemed the hearsay statements reliable,
UNITED STATES V. FRANKLIN 45
regardless whether the extrinsic evidence was subject to
cross-examination.
It may well be true that we are more likely to accept a
hearsay statement as substantively reliable if the government
introduces corroborating evidence that is subject to cross-
examination. But I read our cases as consistently requiring
at least some indicium of substantive reliability before a
hearsay statement may form the basis of a sentence.
Procedural protections—such as the ability to cross-examine
evidence the government introduces to corroborate
hearsay—are a useful adjunct, but cannot alone establish the
reliability of a hearsay statement.
II
I agree with the majority that substantive reliability is an
essentially factual issue that we review for clear error.
Majority op. 36–37. Here, although there may be a
procedural dimension to our inquiry, see id. at 37–40, the
questions whether Hiler’s and Pitsch’s statements
corroborate each other, and whether the note purportedly
from Franklin corroborates any of the statements, are
essentially factual questions. Although I view the questions
as close, I cannot say that the district court clearly erred in
finding the statements sufficiently corroborated to be
reliable.
Hiler’s and Pitsch’s statements were different from each
other: Hiler said that Franklin sent him a note asking him to
testify to specific facts, while Pitsch said that Franklin
warned him that what he said “would be on paper, and that
he should be careful.” Hiler also said that after he shared
Franklin’s note with the government, he was assaulted by
two other inmates who told him that Franklin had told them
to “slap [him] around.”
46 UNITED STATES V. FRANKLIN
On their own, these statements are only partly
corroborative of each other. But as the majority explains,
they are at least somewhat consistent in that they “shared the
common premise that Mr. Franklin had a consistent
underlying motivation: that he wanted no one to testify
contrary to his statements at [his first] plea hearing.”
Majority op. 40.
The note purportedly from Franklin is corroborative of
Hiler’s first statement and of Pitsch’s statement. According
to Hiler, the note referred to Pitsch as “Curly.” For example,
the note asked Hiler to testify to the fact that “Curly had his
own peice [sic] and I had nothing to do with it.” The note
also says, “I know you said nothing against my best interest
and it was Son and Curly that was squaking [sic] like birds.”
The note’s suggestion that its author believed Pitsch had
implicated Franklin but Hiler had not provides an
explanation for why Franklin would ask Hiler to testify to
specific facts, but would simply warn Pitsch to watch what
he said.
As the majority explains, the fact that Franklin had an
opportunity to challenge the note at his sentencing hearing
increases its value as corroborating evidence. Majority
op. 39. Franklin could have attempted to prove that he was
not the author of the note in various ways—for example,
through a handwriting analysis—but he did not.
Given that Hiler’s and Pitsch’s statements were at least
somewhat corroborative of each other, that the note was
corroborative of both men’s statements, and that “Franklin
had a full and fair opportunity to challenge the premise that
he was the source of the note,” Majority op. 39, I cannot say
that the district court clearly erred in finding that Hiler’s and
Pitsch’s statements bore adequate indicia of reliability to
UNITED STATES V. FRANKLIN 47
supply the basis for an obstruction-of-justice enhancement.
I therefore concur in the judgment.