United States v. Jose Reyes-Nieto ( 2011 )

FILED
NOT FOR PUBLICATION MAR 01 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50340
Plaintiff - Appellee, D.C. No. 3:09-cr-03769-IEG-1
v.
MEMORANDUM *
JOSE LUIS REYES-NIETO,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, Chief District Judge, Presiding
Argued and Submitted February 17, 2011
Pasadena, California
Before: GOODWIN, KLEINFELD, and GRABER, Circuit Judges.
Jose Luis Reyes-Nieto challenges his conviction on one count of importation
of marijuana, 21 U.S.C. §§ 952 and 960, and one count of possession with the
intent to distribute, 21 U.S.C. § 841(a)(1). Reyes-Nieto argues that the district
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
court erred by excluding most of the evidence that the woman who sold him his car
had lied to Immigration and Customs Enforcement agents and had previously been
convicted of lying to law enforcement officers. Reyes-Nieto contends that the
district court’s ruling deprived him of his right to present a complete defense.
At argument, the government clarified that it relied only on the propriety of
the district court’s evidentiary ruling, as opposed to a lack of prejudice.
Consequently, we look only to the district court’s ruling on the evidence.
The district court abused its discretion by excluding the evidence of what
Vanessa Sanchez told federal agents on two occasions as hearsay and for risk of
confusion outweighing probative significance. The evidence was not offered for
the truth of what the woman had said, but to show that she gave inconsistent
accounts and was probably lying. Her lying was not irrelevant or likely to cause
confusion. In United States v. Vallejo, 237 F.3d 1008, 1022 (9th Cir. 2001), we
held that the district court abused its discretion by excluding evidence of third
party culpability under Rule 403 where there was a lack of direct evidence
supporting the conviction. Likewise here, the government’s case was largely
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circumstantial, and the evidence that Sanchez had lied would have bolstered the
defense case for third-party culpability. Since the government does not dispute
prejudice, we assume it for purposes of decision.
REVERSED and REMANDED.
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