Appeal from the United States District Court for the District of Guam Dean D. Pregerson, District Judge, Presiding D.C. No. 1:07-cr-00039- DDP-1 D.C. No. 1:07-cr-00039- DDP-2
The opinion of the court was delivered by: Wardlaw, Circuit Judge:
Argued and Submitted June 14, 2011-Honolulu, Hawaii
Before: Arthur L. Alarcon, Kim McLane Wardlaw, and N. Randy Smith, Circuit Judges.
These consolidated appeals arise from the chaotic two-day execution of a search warrant by the Guam Police Depart- ment's ("GPD") SWAT team, in coordination with federal DEA and ATF agents. The search resulted in one of the largest "busts" of stolen items in Guam's history. The "woefully inadequate" management of the search of Raymond ("Ray") and Lourdes ("Lou") Duenas's compound and the staging of the inventory of seized drugs and goods on the compound's front yard attracted members of the media and victims who came to claim their property while the two-day execution of the warrant was ongoing.
Ray and Lou were arrested and separately gave statements to police officers. The district court denied their motions to suppress evidence of the drugs and stolen goods seized in the raid and their statements. A jury convicted each of the Duenases on multiple counts. Both appeal their convictions, contending that the suppression motions should have been granted, that former testimony of by-then-deceased Officer Frankie Smith should not have been admitted at trial, and that there was insufficient evidence to support their convictions. Although the conduct of the search was highly questionable, given the participation of the public and the media, the district court did not err by deciding not to exclude the stolen items, drugs, and other paraphernalia found in the compound. However, the district court abused its discretion by admitting the former testimony of Officer Smith under Rule 804(b)(1) of the Federal Rules of Evidence, because it incorrectly concluded that defense counsel had a similar motive to cross-examine Officer Smith when it questioned him at the suppression hearing as it would have had at the trial. Because Ray's statement was admitted through Smith's former testimony, Ray's conviction must be reversed. However, we affirm Lou's conviction, as it was supported by sufficient evidence.
Ray and Lou lived on an isolated jungle property in Dededo, Guam, with Ray's mother, Ray's daughter, and another man. Ray's mother owned the property. A main house and a shipping container faced the dirt road leading up to the property. Behind the house and container, toward the rear of the property, was a make-shift four-room shack in which Ray and Lou lived.*fn1
At approximately 5:40 a.m. on April 19, 2007, GPD officers, along with DEA and ATF agents, executed a search warrant at the Duenases' residence for evidence of narcotics trafficking. Ray and Lou were asleep in the room dubbed "Lou room/Ray's room" when the officers entered the residence. The search scene was "almost chaotic," according to Guam Chief of Police Paul Suba. The district court characterized GPD's management of the scene as "woefully inadequate." Although up to forty officers were present, no single officer was clearly in charge of managing the scene. The testimony at trial demonstrated that members of the media and other civilians were allowed on the Duenas property during the search to film and photograph the scene. Journalist Eric Palacios testified that he arrived shortly after 9:00 a.m., following an anonymous phone call indicating that something was happening on Ysengsong Road, where the Duenases lived. Trina San Augustin, another journalist, testified that she too went to the Duenas property after receiving an anonymous call.
The media were instructed to remain in the front yard and were not permitted past the shipping container. Officers allowed the media to film and photograph stolen property as it was taken from the residence and surrounding structures and placed in a staging area in the front yard. GPD Officer Scott Wade escorted some members of the media down a jungle path to the rear of the property to view and photograph a marijuana patch. Officer Kim Santos said that she escorted Palacios further into the property "to where the SWAT officers were situated." Officer Allan Guzman testified that, in a highly unusual departure from protocol, Chief Suba took some journalists on a tour of the scene so they could film the items being staged, with the hope that theft victims could thereby identify their stolen property. Officer Wade also testified that he held a press conference at the edge of the front yard.
The presence of members of the general public contributed to the chaos at the search scene. Numerous denizens of Guam came to the Duenas residence during the search to identify items that had allegedly been stolen from them. Some of these people touched the items in the staging area, and several claimed property, which was released to them at the scene. For example, one police officer was permitted to retrieve a plasma television, and a local judge was permitted to retrieve a gavel-which she later returned after realizing it was not hers.
The search warrant authorized the police to seize items including drugs, drug paraphernalia, weapons, and "illegally obtained proceeds derived from violations of federal or state statutes concerning felony possession, distribution and/or manufacturing of controlled substances." Officers seized approximately 82 grams of methamphetamine, including 74 grams found in a safe at the foot of the bed in "Lou room/Ray's room." Officers also seized guns, drug paraphernalia, three ledgers, and several thousand pieces of stolen property. The ledgers, one of which Officer Frank Santos testified at trial "represented a typical drug ledger," identify dollar amounts in the hundreds and thousands, along with dates, notes such as "credit," and descriptions of items such as "bracelet" or "beer." In "Lou Room/Ray's Room," the officers found not only the ledger and the drug-filled safe, but also guns and more drugs. GPD officers photographed that evidence in situ and then removed it from the property. Officers moved the other seized property to the staging area in the front yard. The search lasted two days because of the several thousands of items the officers needed to catalog.
Meanwhile, Ray and Lou were arrested shortly after the search commenced and were taken to the Tamuning precinct. Thereafter, Ray and Lou each gave written and oral statements regarding the drugs and the stolen property. In his statement, Ray wrote that he had purchased numerous items, including firearms, plasma televisions, power tools, and jewelry, with either cash or methamphetamine. Ray added that he "received the drug 'ice' through a friend who needed help to find buyers." Officer Smith took Ray's statement, and later testified at a suppression hearing that Ray told him that he had been selling methamphetamine in exchange for stolen goods.*fn2
Ray, Officer Smith, and Special Agent Michelle Jong of the DEA gave contradictory testimony about how Ray came to give his statements to Officer Smith. After he was initially apprehended by the SWAT team, Ray complained of injury. He was eventually taken to the hospital by Officer Smith. Smith and Ray had once been friends and had worked together as cable installers, but had parted ways in 1997 when Smith entered the police academy. According to Smith, Ray called him over at the hospital and said, "Frank, the stuff at the house . . . ." Smith testified that he interrupted Ray, telling him "Ray, this is not the time, let's get you treated first, talk about this at the precinct." Ray was examined at the hospital and returned to the Tamuning precinct that afternoon.
Once Ray returned to the precinct, Special Agents Jong and Than Churchin attempted to interview him, after advising him of his Miranda rights. Jong stated that Ray said that he wanted to talk with an attorney before making a statement. Jong testified that she then ended the interview and told Ray she would look into getting him a Federal Public Defender. She also told Ray that if he wanted to speak with her, he would need to reinitiate contact. As she left the room, she encountered Officer Smith. Jong informed Smith that Ray had invoked his right to counsel. Smith then went into the conference room. When Jong saw Smith and Ray talking, she entered to ask whether Ray wanted her present. When he shook his head "no," she left, and had no more contact with Ray.
At the suppression hearing, Smith offered a different story*fn3
: he testified that Jong did not tell him that Ray had asked for an attorney, but instead "informed me that he didn't want to talk to her, but wanted to talk to one of us." "I told her," Smith added, "I said I know why . . . I know him, and I told her that I would go and talk to him." Smith went into the conference room and said: "How are you doing, Ray?" Ray responded that he did not want to talk to the federal agents, because they scared him, but that he would talk to Smith. Smith then re-advised Ray of his Miranda rights. Ray signed a form waiving those rights and indicating that he was willing to make a statement. Ray then gave oral and written statements admitting to selling methamphetamine out of his home in exchange for stolen items; he also named his source.*fn4
Lou's statement acknowledged that police had found many items, including "bush cutters, generator, cars, laptops," and that both she and Ray were "aware of what's going on, that the item are stolen, we exchange dope & cash to merchandise." GPD Officer Albert Piolo testified at trial that he and Officer Smith took Lou's oral statement, and that she admitted to trafficking in methamphetamine for about a year and selling methamphetamine in exchange for, among other things, jewelry and a washing machine. Lou told the officers that she distributed about one gram of methamphetamine at a time. Special Agent Jong, who interviewed Lou separately, testified at trial that Lou said that she occasionally used methamphetamine, and kept about a gram at the house.
II. Procedural Background
A Superseding Indictment charged Ray with: (1) conspiracy to distribute more than 50 grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846; (2) possessing more than 50 grams of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1); (3) using and carrying a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i); (4) being a felon in possession of firearms in violation of 18 U.S.C. § 922(g)(1); and (5) possessing stolen guns in violation of 18 U.S.C. § 922(j). Lou was charged with: (1) conspiracy to distribute more than 50 grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846; and (2) possessing more than 50 grams of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1).
Following a lengthy suppression hearing, the district court denied the Duenases' joint motion to suppress the physical evidence seized from their property. The district court reasoned that while the presence of members of the media on the property during the search violated the Duenases' Fourth Amendment rights, the physical evidence was not subject to the exclusionary rule because there was no evidence that any member of the media was permitted to roam the property freely "or in any way assisted in the search or touched any of the property."
Ray also moved to suppress his statements, arguing that they were obtained in violation of Miranda because he had been questioned before his rights were read to him, and that, in any event, his statements were involuntary because his will "had been . . . overborne" by the police on the day of the search, as he had been injured, tired, frightened, and emotional when questioned. The district court denied Ray's motion, finding that despite his initial refusal to talk, Ray subsequently waived his right to counsel before speaking with Officer Smith, and gave his statements voluntarily.
After the suppression hearing and before trial, Officer Smith was killed by a drunk driver. Over Ray's hearsay objection, the district court concluded that Smith's testimony was "former testimony" under Federal Rule of Evidence 804(b)(1), and allowed Special Agent Sedberry to read portions of Smith's suppression hearing testimony to the jury.
At the end of the case-in-chief, Ray and Lou moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. Lou argued that there was no evidence of conspiracy, and that there was no proof that she had "possessed" any drugs. Ray argued, inter alia, that there was no ...