United States v. Armando Vera

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-50364

Plaintiff-Appellee,

D.C. No.

v. 8:08-cr-00280-

JVS-2

ARMANDO REYES VERA, AKA

Mando, AKA Armando Vera,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 16-50366

Plaintiff-Appellee,

D.C. No.

v. 8:08-cr-00280-

JVS-1

SALVADOR REYES VERA,

Defendant-Appellant.

OPINION

Appeal from the United States District Court

for the Central District of California

James V. Selna, District Judge, Presiding

Argued and Submitted May 17, 2018

Pasadena, California

Filed June 25, 2018

2 UNITED STATES V. VERA

Before: Kim McLane Wardlaw, Jacqueline H. Nguyen,

and John B. Owens, Circuit Judges.

Opinion by Judge Owens

SUMMARY *

Criminal Law

The panel vacated two defendants’ sentences imposed on

remand for resentencing in a drug-trafficking conspiracy

case, and again remanded for resentencing.

In the prior appeal, this court affirmed the convictions

but remanded the sentences because unreliable evidence had

been presented to the jury.

The panel held that the district court, on remand,

committed reversible error by relying heavily upon co-

conspirator plea agreements to determine the drug quantities

attributable to the defendants on the ground that the plea

agreements were reliable statements against interest under

Fed. R. Evid. 804(b)(3). The panel held that district courts

may not rely solely on Rule 804(b)(3) to use non-self-

inculpatory statements in a co-conspirator’s plea agreement

to determine a defendant’s drug-quantity liability.

The panel recognized that co-defendant plea agreements

could have some probative value at sentencing if otherwise

*

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. VERA 3

supported by sufficient indicia of reliability. On this record,

the panel concluded there were not sufficient indicia of

reliability to support the plea agreements’ probable accuracy

as to drug quantity, and that the factual bases in the plea

agreements were not corroborated by other information that

made their reliability apparent.

COUNSEL

Thomas Paul Sleisenger (argued), Los Angeles, California,

for Defendant-Appellant Armando Reyes Vera.

Gretchen Fusilier (argued), Carlsbad, California, for

Defendant-Appellant Salvador Reyes Vera.

Bram M. Alden (argued), Assistant United States Attorney;

Lawrence S. Middleton, Chief, Criminal Division; United

States Attorney’s Office, Los Angeles, California; for

Plaintiff-Appellee.

OPINION

OWENS, Circuit Judge:

Defendants (and brothers) Salvador and Armando Vera

appeal their sentences for drug-trafficking conspiracy. We

previously affirmed their convictions but remanded their

sentences because unreliable evidence had been presented to

the jury. See United States v. Vera, 770 F.3d 1232, 1253 (9th

Cir. 2014) (Vera I). On remand, the district court used

evidence of questionable value in determining the drug

quantities attributable to each defendant, so we again vacate

and remand for resentencing.

4 UNITED STATES V. VERA

I. FACTUAL BACKGROUND AND

PROCEDURAL HISTORY

A. Vera I

As our previous opinion detailed the crimes of the Vera

brothers, we will get to the point. In October 2008, the

Veras, along with thirteen co-conspirators, were charged

with conspiracy to distribute narcotics in violation of

21 U.S.C. §§ 841(a)(1), 846. Their thirteen co-conspirators

eventually pled guilty, but the Veras proceeded to trial under

a superseding indictment. The jury was tasked with deciding

if the Veras were guilty of (1) conspiring to distribute

controlled substances and (2) using a minor in drug

operations. Vera I, 770 F.3d at 1235. And if the answer was

yes for either charge, then the jury would determine the

quantity of drugs attributable to the defendants. Id. at 1237.

After a five-day trial, the jury found the Veras guilty and

returned a special verdict holding them responsible for at

least: 100 grams of heroin, 500 grams of cocaine, and

280 grams of cocaine base. Id. With those findings in hand,

the district court sentenced Salvador to 360 months’ and

Armando to 210 months’ imprisonment. 1 Id.

On appeal, we affirmed their convictions but reversed

their sentences due to the testimony of the government’s

“key witness,” FBI Special Agent Lavis. Id. at 1236. Lavis

opined about the government’s “primary evidence” against

the Veras: over seventy wiretapped phone calls that were

played or read before the jury. Id. Aside from one proven

sale of heroin by Armando, “Lavis’ opinions interpreting the

wiretapped calls were the only evidence of specific

1

For consistency with Vera I, we refer to the defendants by their

first names, Salvador and Armando.

UNITED STATES V. VERA 5

quantities at trial.” Id. at 1243. This opinion testimony, we

concluded, “did not rest on reliable methods.” Id. at 1247.

In some instances, Lavis opined on the meaning of

ambiguous terms based on false assumptions. Id. at 1247–

48. At one point, Lavis construed a call with neither direct

nor encoded words as a drug transaction. Id. at 1248. We

recognized that this “opinion plainly rested on nothing more

than speculation.” Id.

And because “[t]he defendants’ lengthy sentences” and

statutory mandatory minimums “depended on [the jury’s]

drug quantity findings,” id. at 1235, 1249, we concluded that

resentencing was required 2—either with a new sentencing

jury, or by the district court under the default sentencing

provisions in 21 U.S.C. § 841(b)(1)(C), id. at 1253. The

government elected to proceed before the district court. 3

B. Resentencing

Rather than remedy Lavis’ improper methodology or call

the Veras’ co-conspirators to testify about their dealings with

the defendants, the government instead relied heavily upon

the co-conspirators’ plea agreements to establish the

quantities of drugs attributable to the Vera brothers. In

effect, the government swapped out the wiretapped calls for

2

We also vacated the sentences because the district court failed to

require that the government lay an adequately specific foundation for

Lavis’ testimony or to instruct the jury that Lavis was testifying as both

an expert and lay witness. Vera I, 770 F.3d at 1243–44.

3

Proceeding without a sentencing jury meant that the Veras faced

(1) no mandatory minimum sentence, and (2) a smaller statutory

maximum. See 21 U.S.C. § 841(b)(1)(C). But for practical purposes,

there was no difference to the Vera brothers—Salvador still faced a

sixty-year statutory maximum due to a prior conviction, and Armando a

forty-year statutory maximum. See 21 U.S.C. § 861(b).

6 UNITED STATES V. VERA

the plea agreements. The district court recognized as much

in its sentencing order. It explained that it found the

government’s sentencing memoranda “more credible” than

the presentence investigation reports and Armando’s

sentencing memorandum because it was the “least

dependent on interpretation of [the] recordings.” It also

recognized that the plea agreements were the government’s

“single most significant data source.”

These plea agreements, which the government drafted,

frequently pointed fingers at the Veras. Of the twelve plea

agreements relied upon by the government, ten named

Armando as a co-conspirator. Five of those also named

Salvador. The factual bases of some of the plea agreements

referenced the Veras more specifically. One provided that a

co-conspirator “conspired to distribute between five and

20 grams of cocaine base with Armando,” and another stated

that a co-conspirator “obtained cocaine base” from him.

These and several other plea agreements also catalogued

wiretapped calls between both Vera brothers and their co-

conspirators.

Over the defendants’ objections, the district court found

these plea agreements reliable. Citing Federal Rule of

Evidence 804(b)(3), (the statement-against-interest

exception to the hearsay rule), the district court concluded

that the co-conspirators’ “admissions in [the] plea

agreement[s] clearly amount[ed] to declarations against

interest.” “Moreover,” the district court explained, “the

Government provide[d] specific corroboration for a number

of the plea agreements.”

After applying some additional sentencing

enhancements, the court re-sentenced Salvador to

324 months’ and Armando to 168 months’ imprisonment.

UNITED STATES V. VERA 7

This timely appeal followed.

II. DISCUSSION

A. Jurisdiction and Standard of Review

We have jurisdiction under 18 U.S.C. § 3742(a) and

review for abuse of discretion the district court’s evaluation

of the reliability of evidence at sentencing. United States v.

Hernandez-Guerrero, 633 F.3d 933, 935 (9th Cir. 2011).

B. The District Court Abused its Discretion in

Relying on the Co-Defendants’ Plea

Agreements to Determine the Veras’ Drug

Quantities

At sentencing, the Confrontation Clause does not apply,

United States v. Littlesun, 444 F.3d 1196, 1197 (9th Cir.

2006), and district courts have wide latitude when deciding

upon which information to rely, United States v. Showalter,

569 F.3d 1150, 1159 (9th Cir. 2009). But that information

must still have “sufficient indicia of reliability to support its

probable accuracy.” U.S.S.G. § 6A1.3(a). Here, the district

court relied heavily upon the co-conspirator plea agreements

to determine the drug quantities attributable to the Veras,

concluding that the plea agreements were reliable statements

against interest under Federal Rule of Evidence 804(b)(3).

This was reversible error.

The text of Rule 804(b)(3) explains why a purely

inculpatory statement is deemed reliable: “a reasonable

person in the declarant’s position would have made [it] only

if the person believed it to be true because, when made, it . . .

had so great a tendency . . . to expose the declarant to civil

or criminal liability.” Fed. R. Evid. 804(b)(3). Yet a factual

basis in a negotiated plea agreement, pointing the finger at

8 UNITED STATES V. VERA

others, is no such thing. This principle was recognized in

Williamson v. United States, 512 U.S. 594 (1994), where the

Supreme Court held that a statement must be “genuinely

self-inculpatory” to qualify under Rule 804(b)(3), and

vacated a defendant’s conviction because it was supported

by his accomplice’s confession which, in certain parts, “did

little to subject” the accomplice “to criminal liability.” Id. at

604–05. And as our court has recognized, the Supreme

Court’s “time-honored teaching” that “a codefendant’s

confession inculpating the accused is inherently unreliable”

is “equally applicable in the sentencing as in the conviction

context.” United States v. Pimentel-Lopez, 859 F.3d 1134,

1144 (9th Cir. 2016) (quoting Lee v. Illinois, 476 U.S. 530,

546 (1986)).

A defendant signing a plea agreement may adopt facts

that the government wants to hear in exchange for some

benefit, usually a lesser sentence. In pointing their fingers at

the Vera brothers, the co-conspirators were acknowledging

neither their own guilt nor conduct that would necessarily

enhance their own sentences. Rather, these statements

merely helped the government’s prosecution of the Veras.

See Williamson, 512 U.S. at 600 (“The fact that a statement

is self-inculpatory does make it more reliable; but the fact

that a statement is collateral to a self-inculpatory statement

says nothing at all about the collateral statement’s

reliability.”). And while the factual basis in a plea agreement

binds the party who signed it, that factual basis carries far

less weight against a co-defendant. See Lee, 476 U.S. at 541

(“Due to his strong motivation to implicate the defendant

and to exonerate himself, a codefendant’s statements about

what the defendant said or did are less credible than ordinary

hearsay evidence.” (internal quotation marks omitted)). The

Advisory Committee Notes to Rule 804(b)(3) stress that “a

statement admitting guilt and implicating another person,

UNITED STATES V. VERA 9

made while in custody, may well be motivated by a desire to

curry favor with the authorities and hence fail to qualify as

against interest.” Fed. R. Evid. 804(b)(3) advisory

committee’s note to 1972 proposed rules. Neither the district

court nor the government cited any authority suggesting that

a factual basis in a plea agreement pointing the finger at

someone else qualifies as Rule 804(b)(3) material, and there

is ample case law, in addition to Williamson, suggesting

otherwise.

For example, in United States v. Magana-Olvera,

917 F.2d 401 (9th Cir. 1990), we reviewed a similar issue

and held that statements of an in-custody co-conspirator

implicating the defendant did not qualify as a statement

against interest because “they were made in an attempt to

curry favor from the federal authorities.” Id. at 409; see also

United States v. Monaco, 735 F.2d 1173, 1177 (9th Cir.

1984) (recognizing that “courts have closely scrutinized

statements made while the declarant is in custody and

offered against the accused, and have consistently held that

the circumstances render such statements unreliable”).

And we are not alone in coming to this common sense

conclusion. The Fifth Circuit explained the dynamic of the

co-conspirator in custody this way:

There were, in addition [to the potentially

coercive circumstances of custody], obvious

motives for falsification [—;] the very natural

desire to curry favor from the arresting

officers, the desire to alleviate culpability by

implicating others, the enmity often

generated in a conspiracy gone awry . . . all

might lead an arrestee-declarant to

misrepresent or to exaggerate the role of

others in the criminal enterprise.

10 UNITED STATES V. VERA

United States v. Sarmiento-Perez, 633 F.2d 1092, 1102 (5th

Cir. 1981). This reluctance to allow reliance on co-

conspirator admissions is widespread throughout the

circuits. See United States v. Johnson, 802 F.2d 1459, 1465

(D.C. Cir. 1986) (holding a post-arrest statement not

sufficiently against interest because it is “highly logical” for

an arrestee to trivialize his own involvement by implicating

the defendant as the kingpin in a drug operation); United

States v. Riley, 657 F.2d 1377, 1384 (8th Cir. 1981) (holding

a hearsay statement not sufficiently against interest because

the declarant was in police custody and warned of the

adverse consequences of conviction, and thus “may well

have believed that it was in her best interest to make a

statement implicating [the defendant] in order to ingratiate

herself with the authorities and divert attention to another”);

United States v. Bailey, 581 F.2d 341, 345 & n.4 (3rd Cir.

1978) (holding a hearsay statement not sufficiently against

interest because the declarant was in custody and aware of

the possibility of leniency if he confessed and implicated the

defendant); cf. United States v. Nagib, 56 F.3d 798, 805 (7th

Cir. 1995) (holding that a hearsay statement qualified under

Rule 804(b)(3) in part because there was “no record of any

plea agreement or downward departure for cooperation” that

could have called the declarant’s penal interest into

question).

Of course, “hearsay is admissible at sentencing, so long

as it is accompanied by some minimal indicia of reliability.”

Littlesun, 444 F.3d at 1200 (internal quotation marks

omitted). But here, the district court’s primary rationale for

relying upon the plea agreements—Rule 804(b)(3)—was

incorrect. At sentencing, district courts may not rely solely

on Rule 804(b)(3) to use non-self-inculpatory statements in

a co-conspirator’s plea agreement to determine a defendant’s

drug-quantity liability.

UNITED STATES V. VERA 11

At the same time, we recognize that co-defendant plea

agreements could have some probative value at sentencing

if otherwise supported by “sufficient indicia of reliability.”

U.S.S.G. § 6A1.3(a). In United States v. Berry, 258 F.3d 971

(9th Cir. 2001), we held that the district court properly relied

on co-defendant hearsay statements because multiple

statements corroborated each other and thus provided

“external consistency” that evidenced their reliability. Id. at

976–77; see also United States v. Valensia, 222 F.3d 1173,

1184 (9th Cir. 2000) (“[T]he hearsay statements at issue . . .

consist of three identical statements, given independently

under circumstances which limited the possibility for

collusion, that corroborate one another.”), vacated on other

grounds sub nom. Valensia v. United States, 532 U.S. 901

(2001). And “[w]hile we encourage and appreciate express

findings by a district court regarding the reliability of

hearsay statements introduced at sentencing,” we have not

reversed for failure “to articulate such findings” where the

statements’ reliability “is apparent from the record.” Berry,

258 F.3d at 976.

On this record, however, we do not find “sufficient

indicia of reliability to support [the plea agreements’]

probable accuracy” as to drug quantity. U.S.S.G.

§ 6A1.3(a). It was the question of drug quantity, not

conspiracy, that was before the district court. And thus it

was quantity, not conspiracy, that required corroboration.

As corroboration for the plea agreements, the

government has offered other co-defendants’ plea

agreements and the intercepted calls admitted at trial, as well

as the criminal complaint, investigative reports, and DEA

laboratory reports that the government submitted with its

sentencing memoranda. While these sources may have

corroborated the plea agreements as to the Vera brothers’

12 UNITED STATES V. VERA

participation in the drug-trafficking conspiracy, they were

not corroborative as to the drug quantities attributable to

them.

Turning first to the plea agreements themselves, we

reject the government’s contention that they corroborate

each other. The twelve plea agreements in the record—all

drafted by the government—collectively listed over forty

narcotics transactions. Each transaction included the

specific type and quantity of drugs purchased or sold. Of all

these transactions, we found only four that were specifically

referenced in the factual bases of more than one plea

agreement. None of these four specifically referenced

involvement by either Vera brother. The plea agreements

therefore do not corroborate each other as to the drug

quantities attributable to the Veras.

Nor do the majority of the wiretapped calls. In our

review of the record, we found only five transactions listed

in the plea agreements that the calls corroborated as to

quantity. And while the government argues that encoded

words like “rock” or “pants” are corroborative, unless those

terms are preceded by quantity designations, we decline to

find they corroborate anything more than the Veras’

participation in the drug-trafficking conspiracy.

The government also offers the criminal complaint,

investigative reports, and DEA laboratory reports as

corroboration. Assuming without deciding that a criminal

complaint can be used against a defendant at sentencing, 4 we

4

In a 28(j) letter, the government provided two out-of-circuit cases

suggesting that district courts may rely on complaint affidavits at

sentencing. See United States v. Clark, 538 F.3d 803, 814 (7th Cir. 2008)

(holding that the sentencing court could rely on the complaint to

UNITED STATES V. VERA 13

found that only two transactions in the plea agreements were

indeed corroborated by the complaint as to quantity.

Likewise, though we recognize that investigative reports

may be relied upon at sentencing, see United States v. Mara,

523 F.3d 1036, 1039 (9th Cir. 2008), we found that only two

transactions in the plea agreements were corroborated by the

reports. And finally, while the DEA laboratory reports may

indicate the reliability of the methamphetamine quantities

listed in one co-conspirator’s plea agreement, neither the

plea agreement nor the DEA laboratory reports directly ties

the Veras to these methamphetamine sales, and we decline

to make this inference without factual support in the record.

Reversal may be necessary when a district court bases a

sentence on sources whose reliability is not apparent from

the record. See Berry, 258 F.3d at 976. And “remand is

required” when a “sentencing judge considers unreliable

information” that was “demonstrably made the basis for the

sentence.” United States v. Huckins, 53 F.3d 276, 280 (9th

Cir. 1995) (internal quotation marks omitted). Here, the

factual bases in the plea agreements were neither inherently

reliable as statements against interest nor corroborated by

other information that made their reliability apparent. They

were also demonstrably made the bases of the Veras’

sentences. Accordingly, we vacate the sentences and

remand for resentencing.

At oral argument, the government argued for the first

time that there was ample evidence to support the sentences

without considering the plea agreements, so any reliance on

corroborate testimony as to the drug quantity attributable to the

defendant); cf. United States v. Jones, 453 F.3d 777, 780 (6th Cir. 2006)

(“An affidavit of complaint is a type of record that a district court can

properly rely on in determining the nature of predicate offenses . . . .”).

14 UNITED STATES V. VERA

the plea agreements was harmless. And while that may

ultimately be true (and this appears to be a much stronger

argument than the one presented in the appellate briefs), we

think it best for the district court to consider this argument

on remand: it previously considered the plea agreements to

be the “single most significant data source,” for its drug-

quantity calculations, and it is better positioned to reassess

the reliable evidence and make factual findings in the first

instance. We also decline to review the other sentencing

enhancements at this time, as we remand this case to the

district court to resentence on an open record. 5

VACATED AND REMANDED.

5

Because the errors here would require remand under either a

preponderance or a clear-and-convincing evidentiary standard, we do not

take up the government’s invitation to reconsider the validity of United

States v. Staten, 466 F.3d 708 (9th Cir. 2006).