Argued and Submitted, Pasadena, California: November
Appeal from the United States District Court for the Southern District of California. D.C. No. 3:11-cr-01451-MMA-1. Michael M. Anello, District Judge, Presiding.
The panel vacated a conviction for importing marijuana and remanded, in a case in which the defendant attempted to enter the United States, driving a car that had multiple packages of marijuana hidden in the gas tank and dashboard.
The only contested issue at trial was the defendant's knowledge, and specifically who owned the car. At the time of the defendant's arrest, Diana Hernandez was the car's registered owner.
The panel held that Hernandez's statement to the Department of Motor Vehicles -- that she had sold the car to the defendant six days before the defendant's arrest -- was testimonial, and that because the defendant was not given an opportunity to confront her as a witness, the government's use of the hearsay statement violated the defendant's rights under the Confrontation Clause. The panel concluded that the admission of Hernandez's statement, which the government used as proof that the defendant owned the car and therefore knew about the hidden drugs, was not harmless beyond a reasonable doubt.
Kent D. Young (argued), Federal Defenders of San Diego, Inc., San Diego, California, for Defendant-Appellant.
Laura E. Duffy, United States Attorney, Bruce R. Castetter, Assistant United States Attorney, Chief, Appellate Section, Criminal Division, and D. Benjamin Holley (argued), Assistant United States Attorney, San Diego, California, for Plaintiff-Appellee.
Before: Mary M. Schroeder and Jacqueline H. Nguyen, Circuit Judges, and Jack Zouhary, District Judge.[*]
NGUYEN, Circuit Judge:
Arturo Esparza appeals his conviction for importing marijuana in violation of 21 U.S.C. § § 952 and 960. On February 19, 2011, Esparza attempted to enter the United States, driving a car that had multiple packages of marijuana hidden in the gas tank and dashboard. At trial, the only contested issue was the critical fact of Esparza's knowledge, and specifically who actually owned the car he was driving.
At the time of Esparza's arrest, Diana Hernandez was the car's registered owner. The government did not call Hernandez as a witness. Instead, the government relied on two hearsay documents containing Hernandez's statement that she had sold the car to Esparza six days before his arrest. Hernandez made this statement to the California Department of Motor Vehicles (" DMV" ) only after she was notified by law enforcement that her car had been seized for smuggling drugs. The government used Hernandez's statement as proof that Esparza actually owned the car, and therefore knew about the hidden drugs. Esparza, on the other hand, claimed that he borrowed the car from a friend to visit his children and attend their soccer game. At the time of his arrest, Esparza's children lived in San Diego, California, with his mother, while he lived just across the border in Tijuana, Mexico.
The question that we must decide is whether the government's use of Hernandez's hearsay statement violated the Confrontation Clause.
We hold that because Hernandez's statement was " testimonial," see Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), Esparza had the right to confront her as a witness. His rights were violated because he was not given an opportunity to do so. We also conclude that the admission of Hernandez's statement was not harmless ...