                                                                              FILED
                           NOT FOR PUBLICATION
                                                                              JUL 19 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   17-50237

              Plaintiff-Appellant,               D.C. No. 2:17-cr-00067-R-4

 v.
                                                 MEMORANDUM*
ISMAEL TORRES,

              Defendant-Appellee.


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

                        Argued and Submitted July 12, 2018
                               Pasadena, California

Before: IKUTA and N.R. SMITH, Circuit Judges, and McNAMEE,** District
Judge.

1.    The district court erred in granting Torres’s motion in limine, which

excluded text messages between Torres and an alleged co-conspirator; recordings



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Stephen M. McNamee, Senior United States District
Judge for the District of Arizona, sitting by designation.
of meetings between an undercover agent and co-conspirators; and a recording of a

meeting between Torres, an alleged co-conspirator, and an undercover agent.1

      A.     Sufficient circumstantial evidence exists to connect Torres to the

referenced cell phone number. See United States v. Black, 767 F.2d 1334, 1342

(9th Cir. 1985) (requiring the government to “make a prima facie showing of

authenticity”). First, the cell phone number was used in booking the flight to

Hawaii for Torres. Second, the cell phone was located in both Los Angeles and

Hawaii on January 24, 2017 (the date of Torres’s flight). Third, the text messages

establish that a known conspirator and the person using the cell phone agreed to

make flight reservations from Los Angeles to Hawaii on January 23, for flights on

January 24. Fourth, a text message was sent from the referenced cell phone

number with a hotel reservation in Hawaii for January 24-25. Finally, Torres

personally arrived in Hawaii with a known conspirator on January 24. This

evidence establishes a prima facie case that Torres was the user of the referenced

cell phone number.




      1
        The district court did not provide its reasons for granting Torres’s motion
in limine. Thus, we are unable to determine whether the district court “identified
the correct legal rule to apply to the relief requested.” United States v. Espinoza,
880 F.3d 506, 511 (9th Cir. 2018) (citation omitted).
                                          2
      The text messages also qualify as statements of a party opponent. See Fed.

R. Evid. 801(d)(2)(A), 801(d)(2)(E). There is credible proof that a conspiracy

existed. See Bourjaily v. United States, 483 U.S. 171, 175-76 (1987) (holding for a

statement to qualify under Rule 801(d)(2)(E), “[t]here must be evidence that there

was a conspiracy involving the declarant and the nonoffering party, and that the

statement was made ‘during the course and in furtherance of the conspiracy’”

(quoting Fed. R. Evid. 801(d)(2)(E)). Here, the text messages, the booking of the

flight, and the physical appearance in Hawaii with a known conspirator present is

sufficient evidence that a jury could reasonably find a conspiracy existed under the

preponderance of the evidence standard. Huddleston v. United States, 485 U.S.

681, 690 (1988).

      Applying a de novo review,2 under Rule 403, the messages are “highly

probative” that Torres was a member of the conspiracy and engaged in acts to

further the conspiracy. See United States v. Decinces, 808 F.3d 785, 791 (9th Cir.

2015). Even though this evidence may harm Torres’s case, it is not unfairly

prejudicial. Id.




      2
        “[W]hen the court excludes evidence under Rule 403 but does not engage
in explicit balancing, we review such a determination de novo.” United States v.
Moran, 493 F.3d 1002, 1012 (9th Cir. 2007).
                                          3
      B.     Because sufficient preliminary evidence supports a conclusion that a

conspiracy existed, co-conspirator statements are admissible. Bourjaily, 483 U.S.

at 175. It is not relevant that Torres was not present or may not have been a part of

the conspiracy when the conversations were made. See Sendejas v. United States,

428 F.2d 1040, 1045 (9th Cir. 1970) (“It is well settled that a conversation between

two co-conspirators which takes place out of the presence of a third co-conspirator

is admissible into evidence against the third co-conspirator if at least a prima facie

case of the alleged conspiracy is made.”); see also United States v. Umagat, 998

F.2d 770, 772 (9th Cir. 1993) (“One may join a conspiracy already formed and in

existence, and be bound by all that has gone before in the conspiracy, even if

unknown to him.” (citation omitted)). However, “statements of co-conspirators

made prior to [Torres’s] involvement are not admissible to show his participation.”

United States v. Segura-Gallegos, 41 F.3d 1266, 1272 (9th Cir. 1994). Therefore,

to the extent that the Government is seeking to introduce the evidence to establish

the scope of the conspiracy, the statements are admissible.3 This evidence is not

unfairly prejudicial and is highly relevant with regard to the existence, scope, and

nature of the conspiracy. See Decinces, 808 F.3d at 791.



      3
        To the extent the Government is seeking to show Torres’s participation in
the conspiracy, more foundation must be made.
                                           4
      C.       Because sufficient preliminary evidence supports a conclusion that a

conspiracy existed, statements of Torres and his alleged co-conspirator to the

undercover agent are admissible and do not violate the Confrontation Clause. See

Crawford v. Washington, 541 U.S. 36, 51-52 (2004). The statement that Torres

was his co-conspirator’s “right-hand man,” was not testimonial but rather a

statement in furtherance of the conspiracy. United States v. Allen, 425 F.3d 1231,

1235 (9th Cir. 2005) (“[C]o-conspirator statements are not testimonial and

therefore beyond the compass of Crawford’s holding.”); see also Davis v.

Washington, 547 U.S. 813, 825 (2006) (explaining that “statements made

unwittingly to a Government informant” “were clearly nontestimonial”). This

statement is also “highly probative” to determine that Torres was a member of the

conspiracy and engaged in acts to further the conspiracy, and yet the statement’s

admission is not unfairly prejudicial. See Decinces, 808 F.3d at 791.

2.    Because the district court did not explain its reasoning with regard to why it

was excluding expert testimony or excluding Torres’s prior drug-trafficking

conviction, we therefore vacate the district court’s decisions and remand for further

proceedings.

3.    The Government’s request for reassignment upon remand is denied. “In the

absence of proof of personal bias, we remand to a new judge only under ‘unusual


                                           5
circumstances.’” United States v. Sears, Roebuck & Co., 785 F.2d 777, 780 (9th

Cir. 1986) (quoting United States v. Arnett, 628 F.2d 1162, 1165 (9th Cir. 1979)).

Here, the Government has not shown that the assigned district court judge has

shown bias or would “have substantial difficulty in putting out of his . . . mind

previously-expressed views or findings determined to be erroneous.” Id. (quoting

Arnett, 628 F.2d at 1165). This case does not present the unusual circumstances

that would otherwise justify reassignment. Id. The government has not shown that

reassignment is required to preserve the appearance of justice. Id.

      REVERSED IN PART; VACATED IN PART; REMANDED.




                                           6
