                               NOT FOR PUBLICATION                        FILED
                        UNITED STATES COURT OF APPEALS                    MAR 16 2015
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                               FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                            No. 14-10042

           Plaintiff - Appellee,                     D.C. No. 5:11-cr-00458-EJD-1

     v.
                                                     MEMORANDUM*
MIKE GAMA,

           Defendant - Appellant.

                       Appeal from the United States District Court
                         for the Northern District of California
                       Edward J. Davila, District Judge, Presiding

                                   Submitted March 12, 2015**
                                    San Francisco California

Before: McKEOWN, MURGUIA, and FRIEDLAND, Circuit Judges.

          Mike Gama appeals his convictions for importing and possessing with the

intent to distribute heroin. At trial, Gama sought to invoke the exception to the

hearsay rule for statements against penal interest in order to introduce out-of-court

statements made by his brother. The district court concluded that the statements

*
 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-
were insufficiently corroborated and therefore inadmissible. Gama challenges this

evidentiary ruling and also argues that exclusion of the statements deprived him of

his constitutional right to present a defense. Because we agree with the district

court that the out-of-court statements were insufficiently corroborated, we affirm.

      We review a district court’s evidentiary rulings for an abuse of discretion.

United States v. Gadson, 763 F.3d 1189, 1199 (9th Cir. 2014). Federal Rule of

Evidence 804(b)(3) provides that, in order to be admissible in a criminal case, an

out-of-court statement against penal interest must be “supported by corroborating

circumstances that clearly indicate its trustworthiness.” Here, the district court’s

determination that there was insufficient corroboration of Gama’s brother’s out-of-

court statements was not an abuse of discretion for least three reasons. First, “the

exculpatory statements of family members ‘are not considered to be highly

reliable.’” Id. at 1200 (quoting LaGrand v. Stewart, 133 F.3d 1253, 1268 (9th Cir.

1998)). Second, the statements lacked spontaneity—they were made to Gama’s

defense investigator eighteen months after Gama’s arrest. See United States v.

Ospina, 739 F.2d 448, 452 (9th Cir. 1984). Third, there was a paucity of

corroborating evidence. Aside from Gama’s own trial testimony, the corroboration

that Gama offered for his brother’s hearsay statements largely consisted of other

hearsay statements. In light of these considerations, the district court’s decision to

exclude the statements was not “‘illogical, implausible, or without support in

                                         -2-
inferences that may be drawn from the facts in the record.’” Gadson, 763 F.3d at

1199 (quoting United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en

banc)).

      We consider de novo whether an evidentiary ruling unconstitutionally

interfered with a criminal defendant’s right to present a defense. United States v.

Stever, 603 F.3d 747, 752 (9th Cir. 2010). The exclusion of hearsay evidence can

only violate a defendant’s right to present a defense if the proposed evidence bears

“persuasive assurances of trustworthiness.” United States v. Hayat, 710 F.3d 875,

899 (9th Cir. 2013) (internal quotation marks omitted). For the same reasons that

the trustworthiness of the brother’s out-of-court statements was not clearly

indicated for purposes of the statement-against-penal-interest exception, we

conclude that the statements did not bear persuasive assurances of trustworthiness

for purposes of Gama’s constitutional claim.

      AFFIRMED.




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