United States v. Duenas

691 F.3d 1070 (9th Cir. 2012)

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Nature of the Case

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Facts

Raymond ('Ray') and Lourdes ('Lou') Duenas (Ds) lived on an isolated jungle property in Dededo, Guam, with Ray's mother, Ray's daughter, and another man. Ray's mother owned the property. GPD officers, along with DEA and ATF agents, executed a search warrant at the residence for evidence of narcotics trafficking. They found one of the largest stashes of stolen items in Guam’s history. Ray and Lou each gave written and oral statements regarding the drugs and the stolen property. A suppression hearing was held for confessions. Defense counsel cross-examined officer Smith during the suppression hearing. The circumstances and nature of Ray's cross-examination are critical to determining whether the district court erred by admitting Officer Smith's suppression-hearing testimony at trial under Federal Rule of Evidence 804(b)(1). Ray did not testify at the suppression hearing but offered a declaration, in which he stated that after he returned to the precinct, he was yelled at by Officers Smith and Piolo, who threatened him and told him that unless he cooperated, he would never see his mother, wife, or children again. Ray claimed that Smith came into the conference room, showed him Lou's written confession, and without advising him of his rights, told him to 'sign a waiver and write down everything they wanted to know and everything will stop . . . .' Smith denied that he threatened Ray, and said he would not threaten a friend. In denying the suppression motion, the district court did not address Ray's declaration. After the suppression hearing and before the trial, Officer Smith was killed by a drunk driver. Over Ray's hearsay objection, the district court concluded that Smith's testimony was 'former testimony' under Federal Rule of Evidence 804(b)(1), and allowed Special Agent Sedberry to read portions of Smith's suppression hearing testimony to the jury. Ds were convicted. And Ray appealed.