United States v. Mike Gama

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 16 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10042
Plaintiff - Appellee, D.C. No. 5:11-cr-00458-EJD-1
v.
MEMORANDUM*
MIKE GAMA,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Submitted March 12, 2015**
San Francisco California
Before: McKEOWN, MURGUIA, and FRIEDLAND, Circuit Judges.
Mike Gama appeals his convictions for importing and possessing with the
intent to distribute heroin. At trial, Gama sought to invoke the exception to the
hearsay rule for statements against penal interest in order to introduce out-of-court
statements made by his brother. The district court concluded that the statements
*
This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2).
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were insufficiently corroborated and therefore inadmissible. Gama challenges this
evidentiary ruling and also argues that exclusion of the statements deprived him of
his constitutional right to present a defense. Because we agree with the district
court that the out-of-court statements were insufficiently corroborated, we affirm.
We review a district court’s evidentiary rulings for an abuse of discretion.
United States v. Gadson, 763 F.3d 1189, 1199 (9th Cir. 2014). Federal Rule of
Evidence 804(b)(3) provides that, in order to be admissible in a criminal case, an
out-of-court statement against penal interest must be “supported by corroborating
circumstances that clearly indicate its trustworthiness.” Here, the district court’s
determination that there was insufficient corroboration of Gama’s brother’s out-of-
court statements was not an abuse of discretion for least three reasons. First, “the
exculpatory statements of family members ‘are not considered to be highly
reliable.’” Id. at 1200 (quoting LaGrand v. Stewart, 133 F.3d 1253, 1268 (9th Cir.
1998)). Second, the statements lacked spontaneity—they were made to Gama’s
defense investigator eighteen months after Gama’s arrest. See United States v.
Ospina, 739 F.2d 448, 452 (9th Cir. 1984). Third, there was a paucity of
corroborating evidence. Aside from Gama’s own trial testimony, the corroboration
that Gama offered for his brother’s hearsay statements largely consisted of other
hearsay statements. In light of these considerations, the district court’s decision to
exclude the statements was not “‘illogical, implausible, or without support in
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inferences that may be drawn from the facts in the record.’” Gadson, 763 F.3d at
1199 (quoting United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en
banc)).
We consider de novo whether an evidentiary ruling unconstitutionally
interfered with a criminal defendant’s right to present a defense. United States v.
Stever, 603 F.3d 747, 752 (9th Cir. 2010). The exclusion of hearsay evidence can
only violate a defendant’s right to present a defense if the proposed evidence bears
“persuasive assurances of trustworthiness.” United States v. Hayat, 710 F.3d 875,
899 (9th Cir. 2013) (internal quotation marks omitted). For the same reasons that
the trustworthiness of the brother’s out-of-court statements was not clearly
indicated for purposes of the statement-against-penal-interest exception, we
conclude that the statements did not bear persuasive assurances of trustworthiness
for purposes of Gama’s constitutional claim.
AFFIRMED.
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