* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-50784

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RAUL FERNANDO SANTOS-SANDOVAL,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Western District of Texas

USDC No. EP-01-CR-2214-2-DB

--------------------

February 13, 2003

Before DAVIS, WIENER and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Raul Fernando Santos-Sandoval was convicted for conspiracy

to import and importation of 50 or more kilograms of marijuana

and conspiracy to possess and possession of the same, in

violation of 21 U.S.C. §§ 841, 846, 952, 960, 963. SantosSandoval argues that the district court erred in granting the

Government’s motion in limine with respect to hearsay statements

made by his co-defendants. Santos-Sandoval contends that the

statements qualified as declarations against interest and,
No. 02-50784

-2-

alternatively, as residual exceptions to the hearsay rule. The

Government’s motion to supplement the record is GRANTED. 

The admission or exclusion of evidence is reviewed for abuse

of discretion. United States v. Perez, 217 F.3d 323, 329-30

(5th Cir. 2000). Rule 804(b)(3) of the Federal Rules of Evidence

provides a hearsay exception for statements made by an

unavailable declarant, that are against his penal interest, and

corroborated by circumstances clearly indicating the

trustworthiness of the statement. See United States v. Dean,

59 F.3d 1479, 1492 (5th Cir. 1995) (internal quotation marks

and citation omitted). Under the Rule 807 “residual exception”

to the hearsay rule, a statement “not specifically covered by

Rule 803 or 804” must have inter alia, circumstantial guarantees

of trustworthiness. FED. R. EVID. 807. 

Neither co-defendants’ statement disavowing involvement with

the marijuana meets the requirement of trustworthiness common to

both Rule 804 and Rule 807, in light of extensive testimony from

Border Patrol agents observing six individuals carrying six

backpacks full of marijuana. Moreover, the co-defendants’ guilty

pleas entered after their statements further refutes the

trustworthiness of the statements. 

Santos-Sandoval also argues that the district court denied

him the right to confront a witness on cross-examination. 

Confrontation Clause errors are reviewed for harmless error. 

United States v. Ismoila, 100 F.3d 380, 391 (5th Cir. 1996). 
No. 02-50784

-3-

The Government questioned a Drug Enforcement Administration (DEA)

special agent about a co-defendant’s post-arrest statement of

residency. Although Santos-Sandoval’s inability to question his

co-defendant on cross-examination was error, the error was not

harmful. The testimony of the Border Patrol agents who

apprehended him along with three other individuals and the

testimony of the DEA special agent with respect to his interview

with Santos-Sandoval established the overall strength of the

Government’s case. See United States v. Landerman, 109 F.3d

1053, 1064 (5th Cir. 1997). Accordingly, the judgment of the

district court is AFFIRMED.