Unpublished Disposition, 921 F.2d 281 (9th Cir. 1990)

MEMORANDUM

Estrada-Solarzano appeals from his conviction for importation of a controlled substance in violation of 21 U.S.C. §§ 952 and 960, and possession with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a) (1). The district judge had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this timely petition pursuant to 28 U.S.C. § 1291. We affirm.

Estrada-Solarzano contends that the judge abused his discretion in excluding an out-of-court statement made by Martinez. Arzivu, the owner of the car Estrada-Solarzano was driving when he was arrested, sought to testify that Martinez offered him "hush money" not to report the car seizure to the Mexican authorities. Estrada-Solarzano argues that this statement proved Martinez's involvement in the smuggling of the drugs, and supports the defense theory that both he and Arzivu had been duped by Martinez. However, the district court excluded the evidence, finding that it was hearsay, and also irrelevant to the issues in the case.

The decision of whether evidence is relevant is committed to the trial court's sound discretion. United States v. Gilley, 836 F.2d 1206, 1213 (9th Cir. 1988). Whether the judge correctly construed the hearsay rule is a question of law we review de novo. United States v. Layton, 855 F.2d 1388, 1398 (9th Cir. 1988), cert. denied, 489 U.S. 1046 (1989). However, the district judge's decision to admit evidence under a hearsay exception is reviewed for abuse of discretion. See, e.g., United States v. Satterfield, 572 F.2d 687, 690 (9th Cir.) (Satterfield) (admissibility under Fed. R. Evid. 804(b) (3)), cert. denied, 439 U.S. 840 (1978); United States v. Sherlock, 865 F.2d 1069, 1083 (9th Cir. 1989) (admissibility under Fed.R.Evid. 803(2)). Under the abuse of discretion standard, a reviewing court cannot reverse unless it has a definite and firm conviction that the court below committed a clear error of judgment. Abatti v. Commissioner, 859 F.2d 115, 117 (9th Cir. 1988).

Estrada-Solarzano first argues that Martinez's statement was not hearsay, because it was not offered to prove the truth of the matter asserted. In support of his argument Estrada-Solarzano cites United States v. Detrick, 865 F.2d 17 (2d Cir. 1988), where the Second Circuit held that an out-of-court statement was not hearsay because it was offered to show its effect on the hearer.

Detrick is not applicable here. In Detrick, the out-of-court statement was made to the defendant, and was admissible to show the defendant's state of mind. Here, the state of mind of the hearer, Arzivu, is not relevant to any issue in the case. Instead, Martinez's out-of-court statement was offered to support the inference that Martinez was involved in the drug smuggling scheme. Such an inference can only arise if "the matter asserted" in the statement is believed; that is, that Martinez would pay Arzivu not to report the seizure to the authorities.

The statement also does not qualify as non-hearsay statements of coconspirators. Under Fed.R.Evid. 801(d) (2) (E), a statement is not hearsay if it is "offered against a party ... and is a statement of a coconspirator of a party during the course and in furtherance of the conspiracy." Statements qualifying under this rule are "admissible as vicarious admissions against another conspirator." United States v. Sandoval-Villalvo, 620 F.2d 744, 746 (9th Cir. 1980). Because Martinez's statement was offered as exculpatory evidence, and not "against a party" to a conspiracy, it does not qualify under this admission exception to the hearsay rule.

Finally, Estrada-Solarzano argues that the statement is admissible as a declaration against penal interest. See Fed.R.Evid. 804(b) (3). However, Estrada-Solarzano admits that this ground for admissibility was not raised in the district court. Therefore, we review the exclusion only for plain error. United States v. Lara-Hernandez, 588 F.2d 272, 274 (9th Cir. 1978) (" [a]bsent plain error, a conviction will not be reversed on evidentiary grounds not revealed to the trial court at the time of the allegedly erroneous ruling"). Plain error is only found in exceptional circumstances. United States v. Simms, 617 F.2d 1371, 1377 (9th Cir. 1980).

The judge did not plainly err by failing to admit the hearsay evidence as a declaration against interest. Estrada-Solarzano has not alleged that reversal "is necessary to preserve the integrity and reputation of the judicial process, or to prevent a miscarriage of justice." Id., quoting United States v. Krasn, 614 F.2d 1229, 1236 (9th Cir. 1980). Moreover, he has failed to carry his initial burden of proving that the evidence was admissible.

Under 804(b) (3), the proponent of hearsay evidence has the burden of establishing, among other things, that corroborating circumstances clearly indicate the trustworthiness of the statement. Satterfield, 572 F.2d at 691. Here, Estrada-Solarzano admits that there is no evidence corroborating Martinez's involvement in the drug smuggling scheme. In addition, because the statement does not directly subject Martinez to criminal liability, and was made after the arrest, it could have been made in an attempt to exculpate Estrada-Solarzano. See United States v. Hoyos, 573 F.2d 1111, 1115 (9th Cir. 1978) (statements inadmissible when they were made after the arrest, were unlikely to result in criminal liability, and there were few corroborating facts). Because corroborating circumstances do not clearly indicate the trustworthiness of the statement, the statement was inadmissible under 804. See Fed.R.Evid. 804(b) (3) ("A statement tending to expose the declarant to criminal liability in an effort to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.").

Estrada-Solarzano next contends that the judge erred by not giving him a sentence reduction because he was only a minor participant in the offense. See United States Sentencing Commission, Guidelines Manual, Sec. 3B1.2 (Nov. 1990) (U.S.S.G.). The judge's finding that a defendant did not play a minimal or minor role in a crime is a factual determination, reviewable for clear error. United States v. Howard, 894 F.2d 1085, 1087-88 (9th Cir. 1990) (Howard).

The district judge did not clearly err by denying Estrada-Solarzano a sentence reduction under section 3B1.2. We have previously stated that this reduction should be infrequently granted. United States v. Gillock, 886 F.2d 220, 222 (9th Cir. 1989). The reduction is only merited when the defendant proves that he is "substantially less culpable than the average participant." U.S.S.G. Sec. 3B1.2, comment. (backg'd.); see also Howard, 894 F.2d 1090 (defendant bears the burden of proof). Here, there is no evidence that there were other participants in the crime, much less that the defendant, who transported 2.5 million dollars worth of cocaine, was "less culpable" than other parties. See United States v. Sanchez-Lopez, 879 F.2d 541 (9th Cir. 1989) (one factor relevant to 3B1.2 reduction is quantity of drugs involved).

Estrada-Solarzano has not provided any grounds for reversal of his conviction or his sentence.

AFFIRMED.