                                                                            FILED
                            NOT FOR PUBLICATION                              MAR 01 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-50340

              Plaintiff - Appellee,              D.C. No. 3:09-cr-03769-IEG-1

  v.
                                                 MEMORANDUM *
JOSE LUIS REYES-NIETO,

              Defendant - Appellant.



                   Appeal from the United States District Court
                      for the Southern District of California
                 Irma E. Gonzalez, Chief District Judge, Presiding

                     Argued and Submitted February 17, 2011
                              Pasadena, California

Before: GOODWIN, KLEINFELD, and GRABER, Circuit Judges.


       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



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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



                                           2
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.




                                         3
