                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            AUG 15 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   14-50242

              Plaintiff-Appellee,                D.C. No.
                                                 3:13-cr-00841-BEN-1
 v.

JOSE MORENO NEVAREZ,                             MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                    Roger T. Benitez, District Judge, Presiding

                       Argued and Submitted August 1, 2016
                               Pasadena, California

Before: REINHARDT and WARDLAW, Circuit Judges, and WHYTE,** District
Judge.

      Jose Moreno Nevarez (“Moreno”) appeals his convictions and concurrent

sentences for the importations of cocaine and methamphetamine. We have



         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
         **
            The Honorable Ronald M. Whyte, United States District Judge for the
Northern District of California, sitting by designation.
jurisdiction under 28 U.S.C. § 1291. We reverse and remand for further

proceedings.

      1.       The district court erred by admitting statements made by Moreno’s

daughter, Cynthia, in a recorded jail call. Under Federal Rule of Evidence

801(d)(2)(B), a statement is not hearsay if it is offered against an opposing party

and it “is one the party manifested that it adopted or believed to be true.” Fed. R.

Evid. 801(d)(2)(B). Before admitting a third party’s statement as an adoptive

admission, however, a district court “must first find that sufficient foundational

facts have been introduced for the jury reasonably to conclude that the defendant

did actually hear, understand and accede to the statement.” United States v. Monks,

774 F.2d 945, 950 (9th Cir.1985). Here, there was no district court finding to that

effect. At trial, the district court simply stated, “It will be admitted over

objection.” During the pretrial hearing, the district court did not address Moreno’s

hearsay argument at all. Thus, the district court committed legal error by admitting

Cynthia’s statement as an adoptive admission without making a threshold finding

that the government had presented an adequate factual basis for a jury to

reasonably conclude that Moreno had “manifested an adoption” of Cynthia’s

statement. United States v. Orellana-Blanco, 294 F.3d 1143, 1148 (9th Cir. 2002)

(citation omitted).


                                           -2-
      2.     Regardless of the lack of the requisite finding, it was an abuse of

discretion to admit Cynthia’s statement as an adoptive admission under Rule

801(d)(2)(B). Moreno responded to his daughter’s statement that he “had it like

that, fixed up/modified for drugs” with just one word: “Cynthia,” which he said in

a “sharp tone.” Moreno’s terse response was insufficient to allow the jury to

reasonably conclude that he had adopted Cynthia’s statement as his own. Moreno

did not affirmatively agree with anything Cynthia had said. Moreover, rather than

suggesting agreement with Cynthia’s statement, Moreno’s response could have just

as readily indicated that Cynthia should not discuss his case in a phone call they

both knew was being recorded. In the absence of an adequate factual basis for a

jury to reasonably conclude that Moreno adopted Cynthia’s statement as his own,

the district court’s decision to admit her statement was an abuse of discretion.

      3.     The district court’s error in admitting Cynthia’s statement was not

harmless. The government highlighted Cynthia’s statement as critical evidence of

the most disputed element of the charged crime: Moreno’s knowledge. During

closing argument, for example, the government replayed the call, discussed it at

length, and told the jury that the call “makes clear that . . . the defendant knew that

it was in the car.” Other than Cynthia’s statement, the government’s evidence of

Moreno’s knowledge was far from overwhelming. Moreover, the government


                                          -3-
prejudicially characterized the statement as Moreno’s “confession of guilt.” See

Arizona v. Fulimante, 499 U.S. 279, 296 (1991) (explaining that a confession is

“like no other evidence”). Finally, during its deliberations, the jury twice asked to

have the recording replayed. The district court’s erroneous admission of Cynthia’s

statement was not harmless, and we must reverse. See United States v. Macias,

789 F.3d 1011, 1022 (9th Cir. 2015), cert. denied, 136 S. Ct. 1168 (2016).1

      REVERSED AND REMANDED.




      1
        Because we conclude that the district court erred in admitting Cynthia’s
statement on hearsay grounds, we need not address Moreno’s alternative
arguments that the district court’s admission of this statement violated Doyle v.
Ohio, 426 U.S. 610 (1976) or that the government unlawfully used an
administrative subpoena to obtain recordings of Moreno’s telephone conversations
from a detention facility.

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