United States of America v. Ernesto Hernandez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERNESTO HERNANDEZ,
Defendant - Appellant.
No. 14-10232
D.C. No. 1:13-cr-00511-JMS-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Hawaii
J. Michael Seabright, District Judge, Presiding
Argued and Submitted June 9, 2015
Honolulu, Hawaii
Before: WARDLAW, BERZON, and OWENS, Circuit Judges.
Defendant-Appellant Ernesto Hernandez appeals his conviction of one count
of conspiracy to distribute and possess with intent to distribute methamphetamine,
in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A), and one count of
FILED
JUL 16 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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possession of methamphetamine with intent to distribute, in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(C). We affirm.
1. “We review the district court’s decision to . . . exclude evidence for an
abuse of discretion.” United States v. Edwards, 235 F.3d 1173, 1178 (9th Cir.
2000) (per curiam); see also United States v. Osazuwa, 564 F.3d 1169, 1173 (9th
Cir. 2009). “A district court abuses its discretion when it bases its decision on an
erroneous view of the law or a clearly erroneous assessment of the facts.” United
States v. Morales, 108 F.3d 1031, 1035 (9th Cir. 1997) (en banc). Despite a
district court’s error, where “there is a ‘fair assurance’ of harmlessness . . .[, i.e.,] it
is more probable than not that the error did not materially affect the verdict,” we
will affirm. United States v. Moran, 493 F.3d 1002, 1014 (9th Cir. 2007) (quoting
Morales, 108 F.3d at 1040); see also United States v. Seschillie, 310 F.3d 1208,
1214–16 (9th Cir. 2002). We have found evidentiary rulings not harmless where
the other evidence was “insufficient to support a conviction beyond a reasonable
doubt,” Edwards, 235 F.3d at 1179, or where the excluded evidence “went to the
heart of [the defendant’s] defense.” Moran, 493 F.3d at 1014.
2. “Rule 608(b) of the Federal Rules of Evidence authorizes courts to permit
inquiry into specific instances of conduct during cross-examination if they are
probative of the character for untruthfulness of the witness—subject . . . to the
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balancing analysis of Rule 403.” United States v. Olsen, 704 F.3d 1172, 1184 n.4
(9th Cir. 2013); see also Fed. R. Ev. 608(b). Rule 403 provides that “[t]he court
may exclude relevant evidence if its probative value is substantially outweighed by
a danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” “As originally proposed[,] Fed. R. Evid. 608(b) prohibited
the admission of remote acts of misconduct”; however, “Congress deleted this
requirement” “[i]n order to encourage flexibility” in the district courts’ evidentiary
rulings. United States v. Jackson, 882 F.2d 1444, 1448 (9th Cir. 1989) (citation
omitted). Thus, though remoteness remains relevant to the probative value of Rule
608(b) evidence, even remote acts of untruthfulness may be found to have
probative value. See id.
3. We assume, without deciding, that the district court abused its discretion
in precluding the defense from cross-examining Costa about the prior incident of
untruthfulness, which was serious, even if remote. Assuming the district court did
err, however, that error was harmless. The other evidence was more than sufficient
to support Hernandez’s conviction, see Edwards, 235 F.3d at 1179, and Costa’s
credibility did not go “to the heart of” Hernandez’s defense, Moran, 493 F.3d at
1014.
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Even without Costa’s testimony, there was extensive evidence from which a
reasonable jury could conclude beyond a reasonable doubt that Hernandez was
guilty of both the conspiracy and possession counts. See Edwards, 235 F.3d at
1179. Several law enforcement witnesses testified about the discovery of the
parcel containing methamphetamine and investigators’ controlled delivery of that
parcel to the Waaula Street address where Hernandez was arrested. Co-conspirator
Patrick Duy implicated Hernandez in a years-long methamphetamine importation
scheme. Duy’s testimony that Hernandez had ordered the parcel’s delivery,
opened the parcel, and retrieved its contents corresponded precisely with DEA
Agent Richard Jones’s testimony that Hernandez alone of the four Waaula Street
occupants was found to have fluorescent Sirchie powder—which investigators had
placed on the interior of the parcel only—on his hands. Additionally, government
witness Dina Ali-Bang testified that she had purchased $5,000 of money orders for
Hernandez, and that he had told her they were to send to his family in Mexico; the
jury was entitled to disbelieve Hernandez’s flat denial that he had ever asked Ali-
Bang to do so, particularly given evidence suggesting co-conspirator Joseph
Robaczewski had purchased additional postal money orders around that time, and
that the money orders had all been sent to an address in San Ysidro, California.
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The government also benefitted from Hernandez’s own entirely
unpersuasive and shifting testimony. Hernandez could not indicate which part of
the parcel had allegedly been on fire, undermining his explanation for how he
might have gotten Sirchie powder on his hands. He ultimately testified that he had
used his hands only to put out flames on the outside of the parcel, yet DEA Agent
Jones testified he had confirmed there was no Sirchie powder on the exterior of the
package. Hernandez’s claim that he had been burned from putting out the flames
was also contradicted by Jones’s testimony that Hernandez’s hands were not
injured when he inspected them closely for Sirchie powder. Finally, Hernandez
was forced to retract his claim that he had not used methamphetamine for 14 or 15
years and instead admit that he had in fact tested positive for methamphetamine
barely six months before his arrest, which cannot have helped his credibility with
the jury. The recent usage also tended to support Duy’s testimony that Hernandez
had frequently used and sold methamphetamine for years before his arrest.
If Costa had been the only law enforcement witness, then perhaps
Hernandez’s ability to introduce reasonable doubt as to Costa’s credibility would
have gone “to the heart of [his] defense.” Moran, 493 F.3d at 1014. In this case,
however, Costa’s testimony was extensively corroborated by the testimony of other
law enforcement witnesses. Presumably for that reason, Hernandez’s defense was
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not premised on undermining the law enforcement witnesses’ testimony. Rather,
Hernandez’s defense attempted to convince the jury that Hernandez was a patsy
who had been set up by Duy and Robaczewski. Impeaching Costa with his prior
incident of untruthfulness, however serious that incident may have been, would
have done little to advance that ultimately unsuccessful defense.
AFFIRMED.
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