United States v. Gabriel Mirabal

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-50217

Plaintiff-Appellee, D.C. No.

5:18-cr-00335-

v. MWF-2

GABRIEL MIRABAL,

OPINION

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of California

Michael W. Fitzgerald, District Judge, Presiding

Argued and Submitted March 5, 2024

Pasadena, California

Filed April 16, 2024

Before: Holly A. Thomas and Roopali H. Desai, Circuit

Judges, and James Alan Soto,* District Judge.

Opinion by Judge H.A. Thomas

*

The Honorable James Alan Soto, United States District Judge for the

District of Arizona, sitting by designation.

2 USA V. MIRABAL

SUMMARY **

Criminal Law

The panel vacated Gabriel Mirabal’s conviction by jury

trial for two counts of assaulting a federal officer resulting

in bodily injury, in violation of 18 U.S.C. § 111, and

remanded for further proceedings.

The panel held the district court abused its discretion in

excluding the sworn statement of a government attorney as

hearsay at Mirabal’s trial because, in a criminal case, the

sworn statement of a government attorney in a plea

agreement or sentencing memorandum is a party admission,

excluded from the definition of hearsay under Federal Rule

of Evidence 801(d)(2). The panel further held that the error

was not harmless.

COUNSEL

Alix L. McKenna (argued) and Jena A. MacCabe, Assistant

United States Attorneys; Bram M. Alden, Assistant United

States Attorney, Chief, Criminal Appeals Section; E. Martin

Estrada, United States Attorney; United States Department

of Justice, Office of the United States Attorney, Los

Angeles, California; for Plaintiff-Appellee.

Elizabeth Richardson-Royer (argued), Law Office of

Elizabeth Richardson-Royer, San Francisco, California, for

Defendant-Appellant.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

USA V. MIRABAL 3

OPINION

H.A. THOMAS, Circuit Judge:

Federal Rule of Evidence 801(d)(2) excludes from the

definition of hearsay several categories of statements

“offered against an opposing party.” 1 Thirty-five years ago,

in United States v. Van Griffin, 874 F.2d 634, 635, 638 (9th

Cir. 1989), we held that in a criminal prosecution for driving

under the influence of alcohol on federal land, the defendant

could introduce a United States Department of

Transportation manual on sobriety testing under Rule

801(d)(2). We reasoned that the document had been written

by “the relevant and competent section of the government,”

and was thus the admissible statement of the government as

a party opponent. Id. at 638 (citing Fed. R. Evid.

801(d)(2)(D)).

Today, we examine the application of Van Griffin and

Rule 801(d)(2) in the context of government attorney

statements. Doing so, we hold that, in a criminal case, the

sworn statement of a government attorney in a plea

agreement or sentencing memorandum is a party admission,

excluded from the definition of hearsay under Rule

801(d)(2).

I.

A.

Gabriel Mirabal is a prisoner at a federal correctional

institution in Victorville, California. On June 17, 2022,

1

These exclusions from hearsay are commonly described as the

exclusions for party admissions. See, e.g., United States v. Burreson, 643

F.2d 1344, 1349 (9th Cir. 1981).

4 USA V. MIRABAL

Mirabal was convicted of two counts of assaulting a federal

officer resulting in bodily injury under 18 U.S.C. § 111. He

now appeals, arguing in part that the district court abused its

discretion when it excluded the sworn statement of a

government attorney as hearsay at his trial. We have

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

Because we conclude that the statement was improperly

excluded, and that this exclusion was not harmless, we

vacate Mirabal’s conviction and remand for further

proceedings.

B.

On August 19, 2017, Mirabal and a fellow inmate, Erik

Rojo, passed through metal detectors while returning to their

housing units after lunch. One of them wore a white shirt,

and the other wore a brown shirt. The white-shirted

individual traversed the metal detectors without incident, but

the brown-shirted individual triggered an alarm. Two

correctional officers, Brian Moreno and Anthony Guerrero,

were stationed at the metal detectors. After the brown-

shirted individual triggered the alarm on a second

passthrough, Moreno initiated a pat-down search.

The parties dispute exactly what happened next. They

agree that the brown-shirted individual and Moreno entered

a verbal back-and-forth, and that the former threw the first

punch. The government claims that the blow was

unprovoked; Mirabal, however, asserts that the brown-

shirted individual threw the punch in self-defense after

Moreno first quickly raised his arm.

After the fight broke out between the brown-shirted

individual and Moreno, Guerrero rushed to assist his fellow

officer. The white-shirted individual—who by now was

already some distance beyond the metal detectors—turned

USA V. MIRABAL 5

back to join the fray, punching Moreno in the back of the

head and knocking him unconscious, before attacking

Guerrero. Other officers eventually arrived and stabilized the

situation, but not before Moreno and Guerrero both suffered

physical injuries.

On December 11, 2018, a grand jury indicted both Rojo

and Mirabal on two counts of assaulting a federal officer

resulting in bodily injury and the aiding and abetting thereof,

with one count for the assault on Moreno and the second for

the assault on Guerrero. Mirabal proceeded to trial.

C.

To fully explain Mirabal’s trial, a detour is necessary to

discuss the proceedings in Rojo’s case. On August 15, 2019,

Rojo and the government entered into a plea agreement in

which Rojo pleaded guilty to one count of assaulting a

federal officer resulting in bodily injury. The plea

agreement’s factual basis identified Rojo as the individual in

the white shirt who passed through the metal detectors

without incident, and Mirabal as the individual in the brown

shirt who set off the alarm, was searched by Moreno, and

threw the first punch. The United States Attorney’s Office

(USAO) for the Central District of California agreed to and

accepted the plea agreement, and a Special Assistant United

States Attorney signed it.

The district court held Rojo’s change of plea hearing

roughly one month later. The district court summarized the

factual basis of the plea agreement as describing a “scuffle

or altercation between Mirabal and the two correctional

officers” in which Rojo subsequently “got involved.” Rojo

agreed to this description of events, and the government

raised no objection to it. For the next two months, the

government showed no signs of deviating from this

6 USA V. MIRABAL

narrative. Indeed, on November 25, 2019, the government

reiterated this factual basis in its sentencing position,

deeming Mirabal the brown-shirted individual who got into

an altercation with the correctional officers, and Rojo the

white-shirted individual who ran back after the fact to get

involved.

The following day, however, the government filed a

notice of errata withdrawing its sentencing position. And on

December 4, 2019, the government filed an amended plea

agreement, which removed all references to Mirabal from

the factual basis. 2

II.

We have discussed Rojo’s proceedings at length, and we

repeatedly employ the phrases “the brown-shirted

individual” and “the white-shirted individual,” because a key

issue at Mirabal’s trial concerned what color shirt he wore

on the day of the incident. At Mirabal’s trial, the government

consistently portrayed him as the person in the white shirt,

while Mirabal consistently maintained that he was clad in

brown.

That the jury conclude Mirabal was wearing brown was

key to his defense, which was predicated upon the theory

that he acted to protect himself from perceived aggression

by Moreno during the search. This self-defense theory was,

practically speaking, unavailable to the white-shirted

individual, who ran back from across the courtyard to join

the fight after it started. To support his theory, Mirabal

2

As do the parties and the district court, we refer collectively to the

statements contained in the factual basis in Rojo’s original plea

agreement, and those same statements in the government’s first

sentencing memorandum, as Rojo’s original factual basis.

USA V. MIRABAL 7

sought to introduce, as the statement of a party opponent,

Rojo’s original factual basis as evidence that the government

had previously taken the position that Mirabal wore the

brown shirt.

The government filed a motion in limine to exclude the

original factual basis under Federal Rules of Evidence 401,

403, and 802. The government argued, in part, that the

original factual basis was irrelevant because, “[a]s a general

matter, the fact of a plea or conviction of a non-testifying co-

defendant is inadmissible”; the original factual basis was

merely the mistaken “personal opinion” of the prosecutor at

the time; and the original factual basis was inoperative and

no longer had any “legal significance.” The government also

maintained that the original factual basis constituted hearsay

because it was “an out-of-court admission by Rojo,” who

was not testifying at Mirabal’s trial.

The district court granted the government’s motion,

reasoning that the original factual basis constituted

inadmissible hearsay. The court held that Rule

801(d)(1)(A)’s hearsay exclusion for prior inconsistent

statements did not apply to the original factual basis because

Rojo was not called to testify at Mirabal’s trial. And it

reasoned that Rule 801(d)(2)’s hearsay exclusion for an

admission of a party opponent did not apply to the “opinion”

of a prosecutor.

Who wore which shirt was a significant focus at

Mirabal’s trial, with the parties eliciting conflicting evidence

on the matter. The government presented surveillance

footage and photographic evidence and called multiple

correctional officers, including Moreno and Guerrero, to

testify about the incident. Moreno and Guerrero each

testified that Rojo wore the brown shirt. But other officers—

8 USA V. MIRABAL

including the one who handcuffed the brown-shirted

individual, and another who escorted the brown-shirted

individual to a restricted housing unit after the fight—

testified that Mirabal wore the brown shirt. In closing

arguments, the government suggested, for the first and only

time, that the jury could convict Mirabal regardless of

whether he wore the brown or white shirt. The district court

instructed the jury on self-defense.

The jury convicted Mirabal on both counts of assault

resulting in bodily injury against Moreno and Guerrero.

Mirabal was ultimately sentenced to 57 months’

imprisonment and ordered to pay restitution in the amount

of $8,983.39 for Moreno and Guerrero’s lost wages.

III.

We review a district court’s evidentiary rulings for abuse

of discretion. United States v. Mikhel, 889 F.3d 1003, 1035

(9th Cir. 2018). “[A] district court abuses its discretion when

it makes an error of law.” United States v. Hinkson, 585 F.3d

1247, 1261 (9th Cir. 2009) (en banc).

IV.

A.

Mirabal argues that the district court abused its discretion

when it excluded Rojo’s original factual basis as hearsay.

We agree and, for the reasons described below, vacate

Mirabal’s conviction and remand for further proceedings.

Under Federal Rule of Evidence 801(d)(2), a statement

is not hearsay if it is offered against an opposing party and if

the statement

(A) was made by the party in an individual or

representative capacity;

USA V. MIRABAL 9

(B) is one the party manifested that it adopted or believed

to be true;

(C) was made by a person whom the party authorized to

make a statement on the subject;

(D) was made by the party’s agent or employee on a

matter within the scope of that relationship and while

it existed; or

(E) was made by the party’s coconspirator during and in

furtherance of the conspiracy.

Rojo’s original factual basis plainly falls within Rule

801(d)(2)(A)–(D). It therefore should not have been

excluded on the basis that it constitutes hearsay.

Our decision in United States v. Van Griffin, 874 F.2d

634 (9th Cir. 1989), supports this conclusion. There, the

defendant, charged with driving under the influence on

federal land, sought to introduce at his trial a Department of

Transportation pamphlet regarding the procedures to be used

in field sobriety tests, including a test for nystagmus. The

district court excluded the pamphlet as hearsay. Although we

found that the exclusion of the pamphlet was harmless, we

held that it was nevertheless in error. We explained that

under Rule 801(d)(2)(D), the pamphlet “could have been

introduced by the defendant . . . to show the measures that

are necessary to be taken in order to have a reliable test for

nystagmus.” Id. at 638. Although we explicitly refrained

from holding that “every publication of every branch of

government of the United States can be treated as a party

admission by the United States,” we held that the pamphlet

had been developed by the “relevant and competent section

of the government,” one “charged with the development of

10 USA V. MIRABAL

rules for highway safety.” Id. We therefore found the

pamphlet “was an admissible party admission.” Id.

There is no question that, as our decision in Van Griffin

implies, “the Federal Rules clearly contemplate that the

federal government is a party-opponent of the defendant in

criminal cases.” United States v. Morgan, 581 F.2d 933, 937

n.10 (D.C. Cir. 1978) (citing Fed. R. Evid. 803(8)). Nor can

it be seriously disputed that, as the Department of

Transportation in Van Griffin was the “relevant and

competent section of the government” when it came to

highway safety, so is the Department of Justice with respect

to criminal prosecutions. The logic of our decision in Van

Griffin comfortably encompasses formal, signed statements

made by a government attorney in filings before a court,

such as plea agreements and sentencing memoranda. We

therefore hold that when a criminal defendant seeks to

introduce such statements at trial, they fall within Rule

801(d)(2)’s hearsay exclusion for statements made by an

opposing party.

B.

The government contends that allowing the introduction

of Rojo’s original factual basis is to mistake the mere

“opinions” of a government attorney for a statement of the

kind admissible as a hearsay exclusion under Rule 801(d).

This argument is unpersuasive.

As the D.C. Circuit stated in Morgan, “when the

government authorizes its agent to present his sworn

assurances to a judicial officer[,] the statements of fact or

belief in the officer’s affidavit represent the position of the

government itself, not merely the views of its agent.” 581

F.2d at 937 n.10. Similarly, here, the government’s theory of

the case was not the mere errant remark or personal

USA V. MIRABAL 11

viewpoint of a government attorney. Memorialized in

writing and set forth multiple times before the district court

in sentencing memoranda and plea agreements, Rojo’s

original factual basis constituted the official position of the

United States regarding what happened during the August 19

altercation. The factual basis plainly states that “Defendant

[Rojo] and the USAO agree to the statement of facts

provided below and agree that this statement of facts is

sufficient to support a plea of guilty to the charge described

in this agreement.” The factual basis was signed by both the

Special Assistant United States Attorney and by Rojo

himself.

It is true that the government subsequently filed an

amended plea agreement. But that amendment does not

change the fact that the government had once adopted the

original factual basis. Nor, as the government contends, does

Rojo’s status as a co-signatory to that factual basis change

the fact that the government’s independent statements fall

within the party admission hearsay exclusion. Both Rojo and

the government were declarants within the meaning of Rule

801(b). No issue of nested hearsay presents itself because the

factual basis reflected the government’s understanding of the

case based upon the entirety of its investigation at the time,

not merely a parroting of Rojo’s statements. Cf. Breneman

v. Kennecott Corp., 799 F.2d 470, 473 (9th Cir. 1986)

(nested hearsay occurs when one declarant testifies as to

another declarant’s out-of-court statement).

C.

We do not determine how far Rule 801(d)(2) extends to

other government employees. And exactly which

departments of the federal government are a party-opponent

will depend on a case’s factual circumstances. Today, we

12 USA V. MIRABAL

hold only that “in criminal cases, the Justice Department

certainly should be considered” a party-opponent of criminal

defendants. United States v. Kattar, 840 F.2d 118, 130 (1st

Cir. 1988) (citation omitted); see also Morgan, 581 F.2d at

937 n.10; United States v. Yildiz, 355 F.3d 80, 82 (2d Cir.

2004) (“[T]he government’s attorneys can bind the

government with their in-court statements.”). 3 Rule

801(d)(2)’s hearsay exclusions, in turn, apply to government

attorneys’ statements in plea agreements and sentencing

memoranda. 4

D.

“We may only conclude that an error was harmless if it

is ‘more probable than not that the erroneous admission of

the evidence did not affect the jury’s verdict.’” United States

v. Vizcarra-Martinez, 66 F.3d 1006, 1017 (9th Cir. 1995)

(quoting United States v. Hill, 953 F.2d 452, 458 (9th Cir.

3

But see United States v. Zizzo, 120 F.3d 1338, 1351–52 & n.4 (7th Cir.

1997) (declining “to apply Rule 801(d)(2) to statements made by

government employees in criminal cases,” based upon “the common law

principle that no individual should be able to bind the sovereign,” but

ultimately upholding the exclusion of evidence at issue under Rule 403).

We reject Zizzo’s dicta as unpersuasive when applied to government

attorneys. It is indisputable that government attorneys can and do bind

the United States because the United States “can act only through its

officers and agents” when conducting a criminal prosecution.

Wellingham v. Morgan, 395 U.S. 402, 406 (1969). And, in any event,

applying Rule 801(d)(2) does not “bind the sovereign” because it merely

allows a party to admit in-court statements that government agents

previously made; it does not mandate a course of conduct, forbid any

action, or even require the government to continue to stand by those

statements.

4

In so holding, we of course do not suggest that trial courts should refrain

from analyzing such statements under Rule 403, or that they should

admit such statements when they are irrelevant.

USA V. MIRABAL 13

1991)). Applying this principle here requires vacating

Mirabal’s conviction.

Had Mirabal had the opportunity to present Rojo’s

original factual basis, his argument that he wore the brown

shirt would have had considerably more support. As the

district court noted, “who was who c[ould] make a difference

here,” because the brown-shirted individual had a stronger

self-defense claim than did the white-shirted individual, who

joined the altercation after it had begun. The focus of the

government’s evidence at trial was demonstrating that Rojo,

not Mirabal, wore the brown shirt. Mirabal elicited

testimony suggesting that Moreno raised his arm shortly

before the first punch was thrown and that he gave

inconsistent reasons for doing so. Although the jury

theoretically could have convicted Mirabal regardless of

whether he wore the brown or white shirt, the government

pressed that point only once, in its closing argument. And

although the government presented to the district court a

facially innocuous explanation for changing the original

factual basis—namely that its previous prosecutor was

simply mistaken—we cannot conclude based on our review

of the record that the jury would have credited its

explanation.

V.

Rojo’s original factual basis, containing statements of

the USAO, was a party admission under Rule 801(d)(2). The

government has not met its burden of showing that the

exclusion of this basis did not affect the outcome of

Mirabal’s trial. Mirabal’s conviction is therefore

14 USA V. MIRABAL

VACATED and this matter is REMANDED for further

proceedings. 5

5

Because we vacate Mirabal’s conviction and remand for further

proceedings, we do not address at length his remaining contentions on

appeal, noting only that we perceive no due process violations that would

have warranted the granting of his motion for a new trial, nor any abuse

of discretion related to the exclusion of evidence of Moreno’s Three

Percenters tattoo. While we do not presume the course of any further

proceedings, we also remind the parties that “[a]ny dispute as to the

proper amount or type of restitution” raised at sentencing must be

“resolved by the court by the preponderance of the evidence,” with the

government bearing the burden of “demonstrating the amount of the loss

sustained by a victim as a result of the offense.” 18 U.S.C. § 3664(e); see

also United States v. Waknine, 543 F.3d 546, 556–57 (9th Cir. 2008)

(holding that the government does not meet its burden when it relies only

on conclusory loss summaries).