United States v. 2010-03-08 | 09-10066 | USA V. JESUS MOLINA | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 09-10066
Plaintiff-Appellee, D.C. No.
v. 4:08-cr-00480-FRZ-  JJM-1JESUS ANTONIO MOLINA,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, District Judge, Presiding
Argued and Submitted
January 15, 2010—San Francisco, California
Filed March 8, 2010
Before: J. Clifford Wallace, Procter Hug, Jr. and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Hug
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COUNSEL
S. Jonathan Young, Williamson & Young, P.C., Tucson, Ari-
zona, for the appellant.
Michael D. Logalbo, Assistant U.S. Attorney, Tucson, Ari-
zona, for the appellee.
OPINION
Hug, Circuit Judge:
Jesus Antonio Molina (“defendant”) appeals the district
court’s admission of hearsay statements pursuant to a stipula-
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tion and the denial of his request for an adjustment for accep-
tance of responsibility pursuant to U.S.S.G. § 3E1.1(a). On
March 7, 2008, the defendant was arrested and charged with
two counts of transporting illegal aliens for profit in violation
of 8 U.S.C. § 1324(a)(1)(A)(ii) and (B)(i). Two of the aliens
transported by the defendant were caught and detained by the
government as material witnesses in order to testify against
the defendant.
On March 20, 2008, the government sent the defendant a
plea agreement and a written stipulation. The plea agreement
provided that the defendant agreed to plead guilty to trans-
porting an illegal alien in violation of § 1324(a)(1)(A)(ii) and
(B)(i). The stipulation focused on the two material witnesses
being held by the government. A letter accompanying the plea
agreement and stipulation stated that “[t]he purpose of the
stipulation is to protect the government in the event your cli-
ent accepts the plea offer and then changes their [sic] mind
after the witness is released.” The stipulation provided (1) that
the two named witnesses were aliens who entered the United
States illegally and were found in a car; (2) that the “govern-
ment may elicit hearsay testimony from the arresting agents
regarding any statements made by the above-referenced mate-
rial witnesses contained in the disclosure, and such testimony
shall be admitted as substantive evidence in any hearing or
trial . . . ;” and (3) that “the parties jointly move for the
release of the above-named material witnesses to the Depart-
ment of Homeland Security for return to their country of ori-
gin.”
On March 24, 2008, the defendant, his attorney, and the
Assistant United States Attorney handling the case all signed
the stipulation, and it was filed that day. The next day, the two
alien material witnesses were released by the government. On
April 11, 2008, the defendant signed the plea agreement.
On July 23, 2008, the district court sentenced the defendant
to 24 months imprisonment. After this sentence was
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announced, the defendant told the district court that he could
not “do that much” and asserted a defense of duress, stating
for the first time that he was forced to transport the illegal
aliens because his life had been threatened. The district court
stated that the defendant could have a coercion defense and
vacated the plea agreement, guilty plea and sentence, and set
the case for trial.
Prior to trial, the defendant moved to suppress the hearsay
statements of the material witnesses who had been released.
On October 16, 2008, the district court denied the motion,
holding that the hearsay statements were admissible pursuant
to the signed stipulation. The district court stated that the
defendant had obtained the advice of counsel prior to signing
the stipulation and that voiding the stipulation would mean
that any defendant could enter such an agreement, back out of
it, and have an advantage at trial due to the lack of witnesses.
The district court stated that it would not be fair to the govern-
ment, which had gone to the lengths of having a stipulation
drawn up to cover that eventuality.
On October 22, 2008, the defendant was convicted by a
jury of two counts of transporting an illegal alien in violation
of § 1324(a)(1)(A)(ii) and (B)(ii). At sentencing, the district
court declined to apply an adjustment for acceptance of
responsibility under U.S.S.G. § 3E1.1(a), holding that the
assertion of a duress defense undermined the defendant’s
claim of acceptance of responsibility. The district court then
sentenced the defendant to 18 months imprisonment.
We review for abuse of discretion the district court’s deci-
sion admitting the hearsay evidence of the material witnesses.
United States v. Orellana-Blanco, 294 F.3d 1143, 1148 (9th
Cir. 2002). We review for clear error the district court’s denial
of a sentencing adjustment for acceptance of responsibility.
United States v. Vance, 62 F.3d 1152, 1157 (9th Cir. 1995).
We affirm the district court’s decision.
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[1] The defendant argues that the district court erred by
admitting the hearsay evidence pursuant to the stipulation
because the stipulation was conditioned on the plea agreement
and the plea agreement was vacated. We disagree. The test
regarding the validity of a stipulation is voluntariness. This
court has held that “[s]tipulations freely and voluntarily
entered into in criminal trials are as binding and enforceable
as those entered into in civil actions.” United States v. Technic
Servs., Inc., 314 F.3d 1031, 1045 (9th Cir. 2002) (quoting
United States v. Gwaltney, 790 F.2d 1378, 1386 (9th Cir.
1986)). “[S]tipulations serve both judicial economy and the
convenience of the parties, [and] courts will enforce them
absent indications of involuntary or uninformed consent.”
CDN Inc. v. Kapes, 197 F.3d 1256, 1258 (9th Cir. 1999). A
“defendant who has stipulated to the admission of evidence
cannot later complain about its admissibility” unless he can
show that the stipulation was involuntary. Technic Servs.,
Inc., 314 F.3d at 1045.
[2] In this case, there is no evidence that the stipulation
was involuntary. The defendant had the advice of counsel
prior to signing the stipulation and had several days to con-
sider whether to sign the stipulation. The stipulation, entitled
“Stipulation and Joint Motion for Release of Material Wit-
nesses,” clearly stated that the hearsay evidence of the mate-
rial witnesses would be admissible in any hearing or trial in
the defendant’s matter. The government’s letter accompany-
ing the stipulation also clearly stated that the purpose of the
stipulation was to allow the government to admit the evidence
in the event that the defendant accepted the plea offer and
later changed his mind after the witnesses had been released.
Armed with this knowledge, the defendant later withdrew his
guilty plea, having caused the change in circumstances him-
self. Based on all of the circumstances, there is no evidence
that the stipulation was not voluntarily entered into by the
defendant. Thus, because there is no evidence of involuntari-
ness, the district court properly admitted the hearsay evidence
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pursuant to the signed stipulation. See id.; CDN Inc., 197 F.3d
at 1258.
[3] The district court did not clearly err in denying the
defendant a downward adjustment for acceptance of responsi-
bility under U.S.S.G. § 3E1.1(a). After the district court
announced the defendant’s 24-month sentence, the defendant
asserted a duress defense and essentially denied culpability
for the offense. The defendant proceeded to trial where he
asserted that he was not guilty of the offense because he only
transported the illegal aliens after someone threatened to harm
him unless he did so. The jury rejected the defendant’s duress
defense and he was sentenced to 18 months in prison, a
shorter term than he had originally received. Although a
duress defense may not always be inconsistent with accepting
responsibility for the offense, see United States v. Molina, 934
F.2d 1440, 1451 (9th Cir. 1991) (noting that an entrapment
defense was not in all cases incompatible with a reduction for
acceptance of responsibility but affirming the denial of the
reduction in that case), it was not clear error for the district
court to deny this defendant a downward adjustment for
acceptance of responsibility under § 3E1.1(a). See United
States v. Hall, 952 F.2d 1170, 1171-72 (9th Cir. 1991) (hold-
ing that the defendant was not entitled to a downward adjust-
ment for acceptance of responsibility because he confessed
only in order to receive a lighter sentence). Moreover, the
defendant offered inconsistent versions of the facts leading to
his arrest. He told the probation officer preparing the pre-
sentence report that he picked up the aliens because he did not
want to leave women and children stranded in the desert; he
told the magistrate judge that he picked them up because
someone was going to turn him in for a theft of drugs if he
did not; and he told the district judge that he picked them up
because he feared that criminals would hurt or kill him if he
did not. Such conflicting stories weigh against a finding that
he accepted responsibility for his actions. See United States v.
Smith, 905 F.2d 1296, 1301-02 (9th Cir. 1990) (holding that
the defendant was not entitled to a downward adjustment for
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acceptance of responsibility because he told FBI agents that
he committed the robbery and then minimized his own
involvement when speaking with the probation officer).
AFFIRMED.
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