Unpublished Disposition, 930 F.2d 29 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,v.Ruben CHAVEZ-GARCIA, Defendant-Appellant.

No. 89-30319.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 1, 1990.^* Decided April 2, 1991.

Before HUG and D.W. NELSON, Circuit Judges, WALKER,^**  District Judge.

MEMORANDUM^*** 

Appellant-defendant Ruben Chavez-Garcia ("Chavez") was convicted of conspiracy to distribute a controlled substance and use of a communications facility in furtherance of a narcotics felony. Chavez received an upward departure under the Sentencing Guidelines based on the likelihood that he would be deported after his release from prison. We affirm the convictions, but reverse the upward departure decision.

Chavez alleges error in the admission of the extrajudicial statements of his codefendant, Juan Castro Rodriguez ("Rodriguez"), through the testimony of two detectives. Chavez maintains the admission violated both the rule against hearsay and the Confrontation Clause contained in the Sixth Amendment.

The district court admitted the evidence on the basis that the witness was unavailable and, thus, the statements were admissible under Fed.R.Evid. 804(a). Unavailability may be found if there is a refusal to testify. However, this requires that the declarant "persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so." Fed.R.Evid. 804(a) (2). While Rodriguez did not testify in a manner consistent with his earlier statements to the detectives, it was not a "refusal to testify" as defined by Rule 804(a) (2) and it was not within the intended scope of that exception. Nor did his testimony indicate that there was a "loss of memory" to the extent that he could be considered unavailable under Rule 804(a) (3). Rodriguez was not claiming a lack of memory as to the extrajudicial statements, but rather, he indicated that he had not made the statements. His testimony in that regard cannot be considered unavailable due to "loss of memory."

The extrajudicial statements may have been admissible for impeachment purposes. See Fed.R.Evid. 613(b); United States v. McLaughlin, 663 F.2d 949, 952-53 (9th Cir. 1981). However, the evidence was not admitted for this purpose and a proposed instruction limiting its use for this purpose was refused. Thus, the admission of the testimony as substantive proof in the Government's case in chief was error. However, we find the error harmless in light of the other evidence that was properly admitted. United States v. Greene, 698 F.2d 1364, 1375 (9th Cir. 1983) (This court reverses only if the error affected 'substantial rights').

Chavez' Sixth Amendment confrontation right was not violated by the admission of the extrajudicial statements. It has consistently been held that, when the declarant is present at trial and subject to cross-examination, there is no denial of rights protected by the Confrontation Clause. See United States v. Owens, 484 U.S. 554, 557-61 (1988); Nelson v. O'Neil, 402 U.S. 622, 626-30 (1971); United States v. Bonnano, 852 F.2d 434, 439 (9th Cir. 1988) ("Generally, once cross-examination reveals sufficient information with which to appraise a witness's possible bias and motives, confrontation demands are satisfied."), cert. denied, 488 U.S. 1016 (1989).

Chavez also claims error in the admission of certain physical evidence. The evidence includes cocaine and a digital scale found in what the evidence strongly indicated was Chavez' residence and heroin found in the motor vehicle registered in Chavez' name at the time the vehicle was being driven by Rodriquez. This evidence was properly admitted. The existence of paraphernalia used in drug transactions tends to show the defendant's knowledge and familiarity with drugs and drug transactions and is properly admissible as it is probative of the defendant's intention to participate in the distribution of drugs. See United States v. Federico, 658 F.2d 1337, 1342 (9th Cir. 1981), rev'd on other grounds, United States v. De Bright, 730 F.2d 1255, 1259-60 (9th Cir. 1984) (en banc). Wide discretion is given to the trial court in deciding whether the prejudicial effect of the evidence outweighed the probative value. See United States v. Smith, 893 F.2d 1573, 1579 (9th Cir. 1990). Once the evidence has been authenticated and its reliability and relevancy established, the appellant must demonstrate that the unfair prejudice substantially outweighed the probative value. Id. at 1580. The district judge did not abuse his discretion in concluding that the probative value of the evidence was not outweighed by any unfair prejudice.

Finally, Chavez contends that the district court erred by departing upward from the Sentencing Guidelines based on the likelihood Chavez would be deported. The Government has conceded this issue in light of United States v. Chavez-Botello, 905 F.2d 279 (9th Cir. 1990) (per curiam). In Chavez-Botello, this court held that a departure based upon the ground that a defendant would be immediately deported following release is not permissible. Id. at 281.

Accordingly, Chavez' convictions are affirmed but the sentence must be vacated and the case remanded for resentencing.

AFFIRMED; SENTENCE VACATED and REMANDED.