United States of America v. JOSE TAVARES-HERNANDEZ, AKA Jose Hernandez, Jr., AKA Jose Taraves, AKA Jose H.…

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE TAVARES-HERNANDEZ, AKA
Jose Hernandez, Jr., AKA Jose Taraves,
AKA Jose H. Tavares, AKA Jose
Hernandez Tavares,
Defendant - Appellant.
No. 15-50116
D.C. No. 8:11-cr-00232-JLS-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Josephine L. Staton, District Judge, Presiding
Submitted May 3, 2016**
Pasadena, California
Before: FISHER, M. SMITH, and NGUYEN, Circuit Judges.
Jose Tavares-Hernandez (Tavares) appeals from his conviction for violation
of 18 U.S.C. § 287. We affirm.
FILED
MAY 05 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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 of 5 --

1. The district court did not err in its construction of the hearsay rule and
did not abuse its discretion in deciding to exclude the contested statements as
hearsay. We assume, as Tavares urges, that statements third parties made to
Tavares concerning the legality of the tax refund scheme may have been
admissible as nonhearsay to show Tavares’s state of mind. Thus, Tavares could
have testified to those statements. However, Tavares attempted to introduce those
statements through cross-examination of an IRS agent who interviewed him.
Tavares’s own out-of-court statements about what third parties told him, elicited
from the agent, were hearsay.
Tavares argues that his own statements elicited from the agent were also
admissible as nonhearsay state of mind evidence. He contends the statements show
his “consciousness of innocence and lack of mens rea” because they demonstrate
he cooperated “openly and fully” with the IRS’s investigation. But Tavares’s
statements to the agent prove cooperation only if the information he provided was
true. Therefore, Tavares’s out-of-court statements about what third parties told him
were relevant only if offered for their truth. See 2 McCormick on Evidence § 246
n.6 (“An argument that a statement is not offered for its truth is not tenable . . . if it
is relevant only if true.”).
2

-- 2 of 5 --

2. The district court did not err in striking the contested hearsay the
morning after it had been given. “[A] district court may reconsider its prior rulings
so long as it retains jurisdiction over the case.” United States v. Smith, 389 F.3d
944, 949 (9th Cir. 2004) (citing City of Los Angeles v. Santa Monica Baykeeper,
254 F.3d 882, 888 (9th Cir. 2001)). The government had contemporaneously
objected to some, but not all, of the hearsay-eliciting questions, and Tavares
contends the government’s request the following day to strike all of the testimony
constituted impermissible “sandbagging.” “[T]he contemporaneous-objection rule
prevents a litigant from ‘sandbagging’ the court—remaining silent about his
objection and belatedly raising the error only if the case does not conclude in his
favor.” Puckett v. United States, 556 U.S. 129, 134 (2009) (some internal quotation
marks omitted).
The government did not “sandbag” Tavares because it did not await the
outcome of the case before raising the issue. Although the government did not
object to every hearsay-eliciting question immediately after it was asked, “trial
courts have broad discretion in making evidence rulings and handling late
objections.” Jerden v. Amstutz, 430 F.3d 1231, 1237 (9th Cir. 2005) (internal
quotation marks omitted) (quoting Home Indem. Co. v. Lane Powell Moss &
3

-- 3 of 5 --

Miller, 43 F.3d 1322, 1329 (9th Cir. 1995)). The district court did not abuse that
discretion here.
Tavares also urges that the district court’s formulation of its instruction to
the jury to disregard the testimony was overly broad. We review for abuse of
discretion, Mueller v. Auker, 700 F.3d 1180, 1193 (9th Cir. 2012), and hold that the
district court did not abuse its discretion in formulating the instruction.
3. Tavares argues that the timing of the district court’s ruling striking
the testimony “prejudiced his right to freely choose whether to testify” because the
contested statements were in evidence when Tavares had to decide overnight
whether to testify, but were stricken the following morning. Neither United States
v. Bensimon, 172 F.3d 1121 (9th Cir. 1999), nor United States v. Gaskins, 849 F.2d
454 (9th Cir. 1988), supports Tavares’s argument.
On the same day the hearsay testimony was erroneously admitted, and
before Tavares purportedly made his final decision not to testify, the district court
informed Tavares of its view that the statements should have been excluded. The
district court retroactively excluded the statements the very next morning, when the
government’s case was still ongoing. Before resting, the government put on
another 75 pages worth of testimony and had additional discussions with the court.
4

-- 4 of 5 --

This timing did not prejudice Tavares. He would not have known whether
the statements came in through the investigating agent until the day before his
scheduled trial testimony, so either he was prepared to testify in case the statements
were excluded, or he had decided he was not going to testify regardless of whether
they came in. And, while not dispositive, Tavares did not ask for a continuance to
reconsider testifying in light of the district court’s ruling.
AFFIRMED.
5

-- 5 of 5 --