United States V Sanchez-Lima

161 F.3d 545 (9th Cir. 1998)

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Nature of the Case

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Facts

D was arrested near a port of entry for illegally crossing the border. P contends that D attacked Agents Salzano and Kermes, who were trying to arrest him. P presented evidence at trial that tended to show that Agent Bush directed Agents Kermes, Salzano, and Martinez to a group of illegal aliens. The agents first attempted to apprehend the group, but D escaped, pushing Agent Kermes away. Agent Bush located three more aliens crawling through the brush and directed Agent Salzano to them. As Agent Salzano attempted to sneak up on the aliens, D struck Agent Salzano in the head with a rock. D fled directly to Agent Kermes' position and tried to take Agent Kermes' gun. Agent Kermes subdued D by striking him in the head with his firearm. D presented evidence that Agent Kermes lied on the stand, and that at the beginning of the incident, Agent Kermes pistol-whipped D as he was trying to escape. When D encountered Agent Salzano sneaking up on him through the brush - without using his flashlight and without identifying himself - D reasonably believed that he was in immediate danger of another beating. D's arguments were supported by the Grand Jury testimony of several illegal aliens that they heard D screaming that he was being beaten at the beginning of the incident. P apprehended twenty-two, illegal aliens, in the incident. P interviewed them and D alleges that these interviews contained evidence in support of a self-defense theory. D's investigator took the witnesses' statements. Believing that the illegal aliens were being deported that day, D did not file a material witness complaint. P failed to inform counsel that the witnesses were not being deported on May 29, 1996. The illegal aliens were ultimately deported to Mexico on May 31, 1996. P filed a two-count indictment and the jury returned a verdict of guilty relating to the assault on Agent Salzano, but hung on count two, relating to the assault on Agent Kermes. D appealed. D argues that the sworn, videotaped statements of the eyewitnesses in Mexico should have been admitted into evidence under the 'catch-all' hearsay exception of Rule 804(b)(5), now recodified as Rule 807.