                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAY 05 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-50116

              Plaintiff - Appellee,              D.C. No. 8:11-cr-00232-JLS-1

 v.
                                                 MEMORANDUM*
JOSE TAVARES-HERNANDEZ, AKA
Jose Hernandez, Jr., AKA Jose Taraves,
AKA Jose H. Tavares, AKA Jose
Hernandez Tavares,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Central District of California
                   Josephine L. Staton, District Judge, Presiding

                             Submitted May 3, 2016**
                               Pasadena, California

Before: FISHER, M. SMITH, and NGUYEN, Circuit Judges.

      Jose Tavares-Hernandez (Tavares) appeals from his conviction for violation

of 18 U.S.C. § 287. We affirm.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
       1.     The district court did not err in its construction of the hearsay rule and

did not abuse its discretion in deciding to exclude the contested statements as

hearsay. We assume, as Tavares urges, that statements third parties made to

Tavares concerning the legality of the tax refund scheme may have been

admissible as nonhearsay to show Tavares’s state of mind. Thus, Tavares could

have testified to those statements. However, Tavares attempted to introduce those

statements through cross-examination of an IRS agent who interviewed him.

Tavares’s own out-of-court statements about what third parties told him, elicited

from the agent, were hearsay.

       Tavares argues that his own statements elicited from the agent were also

admissible as nonhearsay state of mind evidence. He contends the statements show

his “consciousness of innocence and lack of mens rea” because they demonstrate

he cooperated “openly and fully” with the IRS’s investigation. But Tavares’s

statements to the agent prove cooperation only if the information he provided was

true. Therefore, Tavares’s out-of-court statements about what third parties told him

were relevant only if offered for their truth. See 2 McCormick on Evidence § 246

n.6 (“An argument that a statement is not offered for its truth is not tenable . . . if it

is relevant only if true.”).




                                             2
      2.      The district court did not err in striking the contested hearsay the

morning after it had been given. “[A] district court may reconsider its prior rulings

so long as it retains jurisdiction over the case.” United States v. Smith, 389 F.3d

944, 949 (9th Cir. 2004) (citing City of Los Angeles v. Santa Monica Baykeeper,

254 F.3d 882, 888 (9th Cir. 2001)). The government had contemporaneously

objected to some, but not all, of the hearsay-eliciting questions, and Tavares

contends the government’s request the following day to strike all of the testimony

constituted impermissible “sandbagging.” “[T]he contemporaneous-objection rule

prevents a litigant from ‘sandbagging’ the court—remaining silent about his

objection and belatedly raising the error only if the case does not conclude in his

favor.” Puckett v. United States, 556 U.S. 129, 134 (2009) (some internal quotation

marks omitted).

      The government did not “sandbag” Tavares because it did not await the

outcome of the case before raising the issue. Although the government did not

object to every hearsay-eliciting question immediately after it was asked, “trial

courts have broad discretion in making evidence rulings and handling late

objections.” Jerden v. Amstutz, 430 F.3d 1231, 1237 (9th Cir. 2005) (internal

quotation marks omitted) (quoting Home Indem. Co. v. Lane Powell Moss &




                                           3
Miller, 43 F.3d 1322, 1329 (9th Cir. 1995)). The district court did not abuse that

discretion here.

      Tavares also urges that the district court’s formulation of its instruction to

the jury to disregard the testimony was overly broad. We review for abuse of

discretion, Mueller v. Auker, 700 F.3d 1180, 1193 (9th Cir. 2012), and hold that the

district court did not abuse its discretion in formulating the instruction.

      3.      Tavares argues that the timing of the district court’s ruling striking

the testimony “prejudiced his right to freely choose whether to testify” because the

contested statements were in evidence when Tavares had to decide overnight

whether to testify, but were stricken the following morning. Neither United States

v. Bensimon, 172 F.3d 1121 (9th Cir. 1999), nor United States v. Gaskins, 849 F.2d

454 (9th Cir. 1988), supports Tavares’s argument.

      On the same day the hearsay testimony was erroneously admitted, and

before Tavares purportedly made his final decision not to testify, the district court

informed Tavares of its view that the statements should have been excluded. The

district court retroactively excluded the statements the very next morning, when the

government’s case was still ongoing. Before resting, the government put on

another 75 pages worth of testimony and had additional discussions with the court.




                                           4
       This timing did not prejudice Tavares. He would not have known whether

the statements came in through the investigating agent until the day before his

scheduled trial testimony, so either he was prepared to testify in case the statements

were excluded, or he had decided he was not going to testify regardless of whether

they came in. And, while not dispositive, Tavares did not ask for a continuance to

reconsider testifying in light of the district court’s ruling.

       AFFIRMED.




                                             5
