Unpublished Disposition, 930 F.2d 30 (9th Cir. 1991)

MEMORANDUM^** 

Manuel Navarro-Dominguez appeals his conviction, following a jury trial, for importation of heroin and possession of heroin with intent to distribute, in violation of 21 U.S.C. §§ 841(a) (1), 952, and 960. Navarro-Dominguez contends that the district court erred by excluding hearsay statements under Fed.R.Evid. 804(b) (5). We review for an abuse of discretion, United States v. Bonallo, 858 F.2d 1427, 1435 (9th Cir. 1988), and we affirm.

Pursuant to Fed.R.Evid. 804(b) (5), if the declarant is unavailable as a witness, a hearsay statement not covered by any of the specific exceptions to the hearsay rule "but having equivalent guarantees of trustworthiness" may be admitted under certain circumstances. See Fong v. American Airlines, 626 F.2d 759, 763 (9th Cir. 1980) ("traditional exceptions to the hearsay rule depend for their support on circumstances such as belief of impending death, high degree of excitement, dependable written records, ... each of which tends to support otherwise untrustworthy hearsay evidence"). Rule 804(b) (5) further provides that:

[A] statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.

Here, Navarro-Dominguez was arrested upon entering California from Mexico when U.S. Customs officials found a package containing approximately one pound of heroin concealed in his underwear. At trial, Navarro-Dominguez testified that during his visit to Mexico he met with an individual named Carlos Ortega, who asked Navarro-Dominguez to deliver a package of medicine to Ortega's cousin Roberto. Navarro-Dominguez further testified that he previously had delivered a package containing meat, cheese, and bread to Gloria Ortega, another cousin of Carlos Ortega. To corroborate his testimony, Navarro-Dominguez's brother, Avelino Navarro, testified that a woman named Gloria Ortega Sanchez made a phone call from Avelino's home and in his presence to a defense investigator. Pursuant to Fed.R.Evid. 804(b) (5), Navarro-Dominguez also sought to have his brother testify that during this telephone conversation Gloria told the investigator that Navarro-Dominguez had once delivered a package of food to her. The district court sustained the government's objection that this testimony was inadmissible hearsay.

The district court did not abuse its discretion by excluding this testimony because Navarro-Dominguez did not satisfy the requirements of Rule 804(b) (5). First, the district court correctly found that the alleged statement lacked any circumstantial guarantees of trustworthiness. See Fong, 626 F.2d at 763. Second, the government was not notified until the day before trial of the name of the woman who allegedly made the phone call to the investigator, and was never told her address.

AFFIRMED.