Appeal from the United States District Court for the Eastern District of Washington. D.C. No. CR-89-00342-RJM. Robert J. McNichols, Chief Judge, Presiding.
Before: Otto R. Skopil, Jr., Arthur L. Alarcon and Robert R. Beezer, Circuit Judges. Opinion by Judge Skopil; Dissent by Judge Alarcon.
Victor Manuel Lee Armijo appeals his conviction following a jury trial for distribution of cocaine in violation of 21 U.S.C. § 841(a)(1) (1988). He contends that the district court erred by (1) admitting evidence of a witness' prior inconsistent statement; (2) admitting an English transcript of a recorded Spanish conversation; and (3) denying admission of a letter allegedly written by one witness to another witness. The government cross-appeals Armijo's sentence under the Sentencing Guidelines, assigning as error the reduction in his base offense level for acceptance of responsibility. We affirm.
FACTS AND PRIOR PROCEEDINGS
Armijo's conviction resulted from a Drug Enforcement Agency (DEA) sting operation in which Jose Contreras sold a kilogram of cocaine to undercover agents. Contreras disclosed his supplier as Armijo. Contreras and his girlfriend, Michelle Massengale, engaged Armijo in two recorded telephone conversations that disclosed his involvement in the transaction. The DEA obtained search warrants for Armijo's home, vehicles, and his parents' home. At trial, the evidence against Armijo consisted primarily of Contreras' testimony against Armijo, the recorded conversations, and pager records reflecting that Armijo received an extraordinary number of messages each month. The defense theory was that Contreras identified Armijo as his source in order to protect the true source, Contreras' uncle, Santiago Avina. The jury found Armijo guilty of distribution of cocaine.
1. Admission of Out of Court Statement
Armijo argues that the district court erred by failing to give a limiting instruction regarding Michelle Massengale's prior statement that Armijo had admitted to her that he supplied the cocaine delivered by Contreras. On direct examination, Massengale denied that she had previously identified Armijo as the cocaine supplier. The government asked Massengale about her previous written statement in which she had identified Armijo as the source for the cocaine. She testified that the written statement was incorrect. Massengale's written statement was admitted as an exhibit and was also introduced in the testimony of two FBI agents. One of the agents testified that he had read the written statement to Massengale, allowed her to review it, and gave her an opportunity to make changes. Both agents testified that Massengale had previously identified Armijo as the source of the cocaine.
Armijo contends that the district court committed plain error by failing to give a limiting instruction informing the jury that evidence of Massengale's prior inconsistent statement could be used only to impeach her character for truthfulness and could not be used as evidence of Armijo's guilt. A prior inconsistent statement is not hearsay and may be admitted as substantive evidence if the declarant testifies at trial subject to cross examination and the statement was given under oath at a trial, hearing, or other proceeding, or in a deposition. Fed. R. Evid. 801(d)(1)(A); United States v. Vargas, 933 F.2d 701, 705 (9th Cir. 1991). Massengale's prior inconsistent statement was inadmissible under Rule 801(d)(1)(A), however, because it was not given under oath. Since Armijo did not request a limiting instruction, see Fed. R. Evid. 105, the question is whether the district court committed plain error in failing to give sua sponte the instruction. See United States v. Hoac, 990 F.2d 1099, 1108 (9th Cir. 1993); see also Fed. R. Crim. P. 52(b).
We have authority to correct the error here only if it is "plain" and "affects substantial rights." United States v. Olano, 123 L. Ed. 2d 508, 113 S. Ct. 1770, 1778 (1993) (quoting Rule 52(b)). We are not to exercise our discretion to correct a plain forfeited error affecting substantial rights unless it "seriously affects the fairness, integrity or public reputation of judicial proceedings." 113 S. Ct. at 1779 (quoting United States v. Atkinson, 297 U.S. 157, 160, 80 L. Ed. 555, 56 S. Ct. 391 (1936)). Improper jury instructions will rarely justify a finding of plain error. Hoac, 990 F.2d at 1108; United States v. Bustillo, 789 F.2d 1364, 1367-68 (9th Cir. 1986).
Armijo argues that United States v. Ragghianti, 560 F.2d 1376, 1379-81 (9th Cir. 1977), controls this case. In Ragghianti, the defendant was charged with aiding and abetting a bank robbery. The defendant was never seen during the robbery but was observed with the bank robber in the back seat of the defendant's car, some 15 or 20 minutes later. Id. at 1377-78. Two witnesses including the bank robber corroborated the defendant's alibi that he was shopping when the bank was robbed. The defendant's claim of alibi was his sole defense. One of the corroborating witnesses testified that she did not remember making statements to FBI agents. An FBI agent testified, without objection, about statements made by the witness that contradicted her testimony as well as the defendant's testimony about his alibi. The court ruled that admission of hearsay evidence of the witness' prior inconsistent statements without limiting instructions was plain error. Id. at 1381.
We first note that our ruling in Ragghianti on the prior inconsistent statement was dictum and is therefore not binding. We stated that our reversal was based on the failure to give an alibi instruction, and we discussed the prior inconsistent statement issue "in the interest of an error-free retrial." Id. at 1377. Furthermore, our ruling was based on the fact that the sole contested issue was the defendant's claim of alibi, which had to "stand or fall on the question of credibility." Id. at 1381. Because the witness' prior inconsistent statement in Ragghianti was apparently the only evidence that contradicted the defendant's and the witness' testimony, the error was likely so prejudicial that it tainted the jury verdict. See Hoac, 990 F.2d at 1108. Here, in contrast, as discussed below, there was other evidence presented that did not depend on Massengale's credibility that the jury could have relied on to convict Armijo.
Moreover, the precedential value of Ragghianti is questionable because the Supreme Court has recently clarified the review for plain error. Olano, 113 S. Ct. at 1776-81. First, there must be a forfeited error rather than a waiver. 113 S. Ct. at 1777. Second, the error must be "plain" in that it was clear under current law. Id. Third, the error must affect substantial rights. Id. at 1777-78. The defendant bears the burden of persuading us that the error was prejudicial, that is, that it affected the outcome of the district court proceedings. Id. at 1778. If the forfeited error is plain and affects substantial rights, we have authority to exercise our discretion but we are not required to do so. Id. We ...