Opinion
No. 10-50340.
Argued and Submitted February 17, 2011.
Filed March 1, 2011.
Daniel Earl Zipp, Assistant U.S., Robert Steven Huie, Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.
Kristi A. Hughes, Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California, Irma E. Gonzalez, Chief District Judge, Presiding. D.C. No. 3:09-cr-03769-IEG-1.
Before: GOODWIN, KLEINFELD, and GRABER, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Jose Luis Reyes-Nieto challenges his conviction on one count of importation of marijuana, 21 U.S.C. §§ 952 and 960, and one count of possession with the intent to distribute, 21 U.S.C. § 841(a)(1). Reyes-Nieto argues that the district court erred by excluding most of the evidence that the woman who sold him his car had lied to Immigration and Customs Enforcement agents and had previously been convicted of lying to law enforcement officers. Reyes-Nieto contends that the district court's ruling deprived him of his right to present a complete defense.
At argument, the government clarified that it relied only on the propriety of the district court's evidentiary ruling, as opposed to a lack of prejudice. Consequently, we look only to the district court's ruling on the evidence.
The district court abused its discretion by excluding the evidence of what Vanessa Sanchez told federal agents on two occasions as hearsay and for risk of confusion outweighing probative significance. The evidence was not offered for the truth of what the woman had said, but to show that she gave inconsistent accounts and was probably lying. Her lying was not irrelevant or likely to cause confusion. In United States v. Vallejo, 237 F.3d 1008, 1022 (9th Cir. 2001), we held that the district court abused its discretion by excluding evidence of third party culpability under Rule 403 where there was a lack of direct evidence supporting the conviction. Likewise here, the government's case was largely circumstantial, and the evidence that Sanchez had lied would have bolstered the defense case for third-party culpability. Since the government does not dispute prejudice, we assume it for purposes of decision.
REVERSED and REMANDED.