FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIONWIDE LIFE INSURANCE 

COMPANY,

Plaintiff-Counterdefendant,

v. No. 06-56562

ANGELINA RICHARDS,

D.C. No. Defendant-Counterclaimant-  CV 02-7583 CAS Appellant, (RNBx)

and OPINION

KEITH RICHARDS, Guardian Ad

Litem for BRYCE RICHARDS and

KENDALL RICHARDS,

Defendant-Crossclaimant-Appellee. 

Appeal from the United States District Court

for the Central District of California

Christina A. Snyder, District Judge, Presiding

Argued and Submitted

May 6, 2008—Pasadena, California

Filed August 28, 2008

Before: Kim McLane Wardlaw and Sandra S. Ikuta,

Circuit Judges, and Jeremy Fogel, District Judge*

Opinion by Judge Fogel

*The Honorable Jeremy Fogel, United States District Judge for the

Northern District of California, sitting by designation. 

11867
COUNSEL

Richard L. Garrigues (argued) and Varoujan Nalbandian, Torrance, California, for the appellant. 

Richard E. Haskin (argued), Gibbs, Giden, Locher & Turner

LLP, Los Angeles, California, for the appellee.

OPINION

FOGEL, District Judge: 

Nationwide Life Insurance Company (“Nationwide”)

brought this non-statutory interpleader action to resolve conflicting claims to the proceeds of a one million dollar insurance policy written on the life of Bryan Richards (“Bryan”),

who was murdered on December 21, 2001. Bryan’s wife,

11872 RICHARDS v. RICHARDS
Angelina Richards (“Angelina”), appeals the district court’s

judgment against her and in favor of Bryan’s brother, Keith

Richards (“Keith”), in his role as guardian ad litem for Bryce

and Kendall Richards (“Bryce” and “Kendall”), the two minor

children of Bryan and Angelina. Following a bench trial, the

district court made a factual determination that Angelina conspired in, aided, and abetted Bryan’s murder, and thus is disqualified from receiving any proceeds of the life insurance

policy under California law. Angelina asserts error in the district court’s treatment of her pretrial assertion of the Fifth

Amendment privilege against self-incrimination and in its

admission of the deposition testimony of witness Gerald Strebendt. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm. 

I. BACKGROUND

Angelina and Bryan married in 1998. In 2001, Bryan

obtained a life insurance policy from Nationwide in the

amount of one million dollars, effective in September of that

year. The policy names Angelina as the primary beneficiary

and names Bryce and Kendall as alternate beneficiaries.

Bryan was murdered on December 21, 2001 by means of nonligature manual strangulation. A state court jury subsequently

convicted Rafiel Torre (“Torre”) of the murder; Torre’s

appeal of that conviction is pending. 

Angelina sought an advance on the policy proceeds within

days after Bryan’s death, made a formal claim for the proceeds on January 30, 2002, and received a $50,000 advance

on March 5, 2002. On September 27, 2002, pursuant to Rule

22 of the Federal Rules of Civil Procedure, Nationwide filed

its complaint in interpleader in the district court. The complaint names Angelina, Bryce and Kendall as defendants.

Keith subsequently was appointed guardian ad litem for Bryce

and Kendall. 

RICHARDS v. RICHARDS 11873
Angelina filed a cross-claim against Keith and a counterclaim against Nationwide, seeking a declaration that she is

entitled to the proceeds as the primary named beneficiary

under the policy. Keith filed a cross-claim against Angelina,

seeking a declaration that Bryce and Kendall are entitled to

the proceeds, and seeking return of the $50,000 that Nationwide advanced to Angelina. Keith asserted that Angelina conspired in Bryan’s murder, thus disqualifying herself from

receiving any proceeds of the policy, and that as a result the

policy benefits are payable to Bryce and Kendall as the alternate named beneficiaries.1

 Nationwide deposited the policy

proceeds into the district court’s registry and was granted

judgment in interpleader. 

The district court conducted a bench trial and thereafter

issued Findings of Fact and Conclusions of Law (“FFCL”) in

which it determined that Angelina did conspire in, aid, and

abet Bryan’s murder, and thus is disqualified from receiving

any proceeds from the policy. The district court entered judgment against Angelina and for Keith as guardian ad litem for

Bryce and Kendall. The FFCL contain a lengthy narrative

describing the events leading up to Bryan’s murder and the

evidence presented at trial, summarized as follows: 

Angelina met Torre at a nightclub in July or August 2001.

Torre competed professionally in hand-to-hand mixed martial

arts and also was a martial arts instructor. Sometime thereafter, Angelina and Torre became lovers. Angelina testified at

trial that her relationship with Torre did not become romantic

until after Bryan’s death. Several other witnesses testified that

by the fall of 2001 Angelina’s marriage was strained, that

1California Probate Code § 252 provides that: “[a] named beneficiary of

a bond, life insurance policy, or other contractual arrangement who feloniously and intentionally kills the principal obligee or the person upon

whose life the policy is issued is not entitled to any benefit under the bond,

policy, or other contractual arrangement, and it becomes payable as

though the killer had predeceased the decedent.” Cal. Prob. Code § 252.

11874 RICHARDS v. RICHARDS
Bryan spoke of divorcing her, and that Angelina and Torre

were seen together regularly, acting in a manner that suggested they were having an affair. In September 2001 Angelina loaned Torre $10,000, and in October 2001 she co-signed

Torre’s lease for commercial space to start a martial arts studio. The property manager testified that Bryan was not a party

to the negotiations or the lease, and that Angelina and Torre

never mentioned Bryan. Angelina testified that she and Bryan

had problems but were committed to staying married. 

At approximately 11:00 p.m. on December 21, 2001, Angelina called Keith’s wife, Lisa Richards (“Lisa”), and stated

that she did not know where Bryan was. Angelina called the

police the following morning, December 22, to report Bryan

missing. Angelina also called Keith and told him that Bryan

had planned to go to a warehouse to pick up Christmas gifts

stored there. Angelina asked Keith to check the warehouse.

Keith did so, but found no evidence that Bryan had been there

recently. Sometime on the afternoon of December 22, Bryan’s

brothers, Keith and Matthew Richards (“Matthew”), visited

Angelina at home. Angelina was drinking wine with a female

friend. Keith testified that he noticed Bryan’s insurance policy

binder on the kitchen table; that he asked Angelina if she had

found Bryan’s life insurance policy, and she said that she had

not; and that later that evening the policy binder was moved

to the top of the washing machine in the laundry room, where

it was partially hidden under a pile of clothes. 

Keith testified that at some point he asked Angelina where

Bryan’s white utility truck was, and that Angelina said Torre

had it. Bryan had let Torre drive the truck in the past. At

Keith’s request, Angelina called Torre and asked him to bring

the truck to the house. When Torre arrived, Matthew looked

in the truck’s lock box for Bryan’s Glock handgun, which

normally was kept there, but the gun was gone. Keith testified

that while he and Matthew were outside near the truck, Angelina and Torre spoke to each other in the doorway of the

house. Torre left with Bryan’s utility truck, after which AngeRICHARDS v. RICHARDS 11875
lina stated for the first time that Bryan had gone to the store

to buy firewood. According to Keith, Angelina asked him to

search for Bryan at nearby grocery stores. Keith and Matthew

left the house at about 9:00 p.m. to do so. Approximately

twenty minutes later, they discovered Bryan’s other pick-up

truck in the parking lot of a nearby Albertson’s market.

Bryan’s body was in the bed of the truck. He had been strangled. 

On the following morning, December 23, sheriff’s detectives interviewed Angelina, other members of Bryan’s family,

and Torre. When asked about life insurance, Angelina stated

that Bryan had life insurance but that she did not know the

amount of the death benefit. Angelina told the detectives that

at one time Bryan had been involved with a man named

Thomas Esparza (“Esparza”) in a scheme involving the

receipt and sale of stolen medical equipment, and that both

Bryan and Esparza had been convicted of crimes arising out

of that scheme. Angelina stated that after his release from

prison earlier in the year, Esparza frequently had called the

Richards’ home, had attempted to extort money from Bryan,

and had argued with Bryan. Torre likewise told the detectives

about Bryan’s conflict with Esparza. Neither Angelina nor

Torre told the detectives about their relationship. 

Sometime later that day, or within a few days, Angelina

spoke with the insurance agent who sold Bryan the policy,

Phil Beh (“Beh”), and inquired whether the death benefit was

$500,000 or $1,000,000. Beh testified that Angelina called

him, while Angelina testified that Beh called her. Beh further

testified that he and Angelina spoke several times in the days

after Bryan’s death, and that Angelina asked for an advance

on the policy’s benefits. Beh characterized the promptness of

Angelina’s inquiry as surprising, atypical and odd. Beh also

testified that Angelina was calm and unemotional during their

conversations. Angelina made a formal claim for the policy

proceeds on January 30, 2002, and received a $50,000

advance on March 5, 2002. Six days later, on March 11,

11876 RICHARDS v. RICHARDS
Angelina purchased a vacation package to Cancun, Mexico

for herself and Torre. Witnesses testified that Torre constantly

was at Angelina’s home beginning approximately two weeks

after Bryan’s death. 

Lisa testified that she and Matthew’s wife, Linda Richards

(“Linda”), invited Angelina out for the evening of February

16, 2002, Bryan’s birthday. According to Lisa, Angelina

stated on that occasion that Bryan was a drug dealer, that the

sheriff’s department had recovered the drug “ecstacy” in

Bryan’s pick-up truck, and that there was an ongoing investigation into a possible link between Bryan’s drug activities and

his death. Sheriff’s detectives testified that no drugs were

found in Bryan’s truck and that they never suspected Bryan

of dealing drugs. 

A. Deposition Testimony Of Gerald Strebendt

Gerald Strebendt (“Strebendt”), a close personal friend of

Torre, did not testify in person at the trial. The district court

admitted his prior deposition testimony over Angelina’s

objection. The court found that Strebendt resided in North

Bend, Oregon, and thus that his deposition testimony was

admissible under former Rule 32(a)(3)(B) of the Federal

Rules of Civil Procedure, now Rule 32(a)(4)(B).2 That provision states in relevant part that a party may use the deposition

of a witness at a hearing or trial if the court finds “that the

witness is more than 100 miles from the place of hearing or

trial.” Fed. R. Civ. P. 32(a)(4)(B) (formerly Fed. R. Civ. P.

32(a)(3)(B)). The court rejected as unsupported by the evidence Angelina’s assertion that Strebendt in fact resided in

Los Angeles, California, and thus was not subject to the applicable provision. 

2Rule 32 was amended effective December 1, 2007 as part of a general

restyling of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 32 &

note. The provision relied upon by the district court now appears at Rule

32(a)(4)(B) without substantive change. 

RICHARDS v. RICHARDS 11877
Strebendt is a professional fighter and martial arts instructor, and a former U.S. Marine sniper and sniper instructor. He

was deposed on February 13 and 14, 2004, at which time he

testified that he met Angelina through Torre in early September 2001, and that later the same month he witnessed Angelina and Torre get Bryan intoxicated so that the two of them

could spend the evening together without Bryan’s knowledge.

Angelina testified at trial that the idea to get Bryan intoxicated

was proposed by others, and that while she drove Torre to his

car after Bryan went home, she did not have a sexual encounter with Torre that night. 

During his deposition, Strebendt testified that Angelina told

him that she and Torre were having an affair. Strebendt also

testified that he saw Angelina give Torre $10,000 in cash, and

that shortly afterward Torre said the following: “Angelina just

wishes she could be rid of Bryan, she wishes he was just gone

. . . and she’s even willing to pay somebody $10,000 to do it

. . . and she knows you [Strebendt] were a sniper in the

Marines and she wanted to know if you’re interested . . . .”

Strebendt stated that he told Torre that he would not kill

Bryan. 

According to Strebendt, Torre called him several times in

late December and early and mid-January, stated that Bryan

had been killed, and emphasized his need to see Strebendt in

person. Strebendt testified that when he met with Torre in

early or mid-January 2002, Torre admitted to killing Bryan

but claimed that it was self-defense. Torre said that Bryan

accused him of having an affair with Angelina and pointed a

Glock handgun at him. Torre claimed that he knocked the gun

from Bryan’s hands and applied a choke hold known in Brazilian Ju-Jitsu as “Mata Leon,” or “To Kill the Lion.” According to Strebendt, Torre stated that he just wanted to render

Bryan unconscious, but that he felt something crush in

Bryan’s neck, and that when he released the hold Bryan was

dead.3 Torre asked Strebendt to provide an alibi, which Stre3The medical examiner testified that although Bryan’s hyoid bone

(located in the throat) was broken, the break did not cause his death. The

11878 RICHARDS v. RICHARDS
bendt refused to do, although Strebendt did agree to keep

Bryan’s handgun. Strebendt stored the gun at his home in

Oregon. 

Strebendt subsequently contacted sheriff’s detectives,

recounted the conversation with Bryan, and gave them the

gun. Strebendt agreed to make recorded telephone calls to Angelina.4

 On December 11, 2003, which was the first time Strebendt had spoken with Angelina in approximately two years,

Strebendt told Angelina that “[t]he gun that Rafiel gave me

has been recovered,” to which Angelina responded that she

did not know what Strebendt was talking about and that he

had better talk to Torre. On December 12, 2003, during their

second conversation, Strebendt told Angelina that Torre had

admitted to killing Bryan in self-defense, had given Strebendt

Bryan’s gun, and had told Strebendt that Angelina would pay

$10,000 for someone to kill Bryan. Angelina responded:

“That’s ridiculous. I would never say that.” Angelina did not

call the sheriff’s department or any other authorities to report

the conversation. When questioned by sheriff’s deputies the

following day, Angelina admitted that she had spoken to Strebendt the previous evening, but said the only matter discussed

was whether Torre was home. When asked how Strebendt

came to possess Bryan’s gun, Angelina said that she did not

know. 

At trial, Angelina raised a hearsay objection to Strebendt’s

testimony regarding Torre’s statements. The district court

made a factual finding that Angelina and Torre were engaged

in a conspiracy to murder Bryan, and that Torre’s statements

examiner testified that Bryan died of non-ligature manual strangulation,

and opined that a choke hold must have been applied to Bryan’s neck for

several minutes. There were no signs of struggle or marks on Bryan’s

body consistent with defense wounds. 

4Strebendt also made recorded telephone calls to Torre, which are not

referenced in the district court’s FFCL. 

RICHARDS v. RICHARDS 11879
as reported by Strebendt thus were admissible as non-hearsay

statements of a co-conspirator under Rule 801(d)(2)(E) of the

Federal Rules of Evidence. 

On December 17, 2003, Torre was arrested and charged

with Bryan’s murder. Following a jury trial, Torre was convicted of murder in the first degree for killing Bryan with the

intent to profit from the policy proceeds. 

B. Angelina’s Assertion Of The Fifth Amendment

Privilege

Angelina asserted the Fifth Amendment privilege against

self-incrimination at Torre’s criminal trial and declined to testify. She likewise invoked the privilege during her deposition

taken in the instant lawsuit, refusing to answer the following

seven questions: 

a. “Did you ever express to Rafiel Torre a desire

to, quote, get rid of Brian [sic]?” 

b. “[D]id you ever tell Rafiel to kill Brian [sic]?”

c. “Prior to Brian’s [sic] murder, did you ever tell

anybody that you and Rafiel were going to move

away together?” 

d. “[D]id you have any involvement at all in Brian

[sic] Richards’ murder?” 

e. “Did you ever proposition Rafiel to kill Brian

[sic] Richards?” 

f. “Did you ever ask Gerald Strebendt to kill Brian

[sic] Richards?” 

g. “Did you ever ask Rafiel Torre to provide you

with an alibi because you had killed Brian [sic]

Richards?” 

11880 RICHARDS v. RICHARDS
The district court precluded Angelina from testifying at trial

as to her involvement, or lack thereof, in Bryan’s murder

because she had refused to answer questions about this subject during her deposition. Angelina was permitted to testify

about all other subjects. The district court also exercised its

discretion to draw an adverse inference from Angelina’s

assertion of the Fifth Amendment privilege against selfincrimination.

II. STANDARDS OF REVIEW

“A district court’s ruling precluding testimony is an evidentiary ruling that is reviewed for abuse of discretion.” United

States v. Lynch, 437 F.3d 902, 913 (9th Cir. 2006) (citing

United States v. Ravel, 930 F.2d 721, 726 (9th Cir. 1991)).

We also review for abuse of discretion a district court’s decision to draw an adverse inference from a party’s invocation

in a civil case of the Fifth Amendment privilege against selfincrimination. SEC v. Cherif, 933 F.2d 403, 417 (7th Cir.

1991) (applying abuse of discretion standard); see also SEC

v. Colello, 139 F.3d 674, 677 (9th Cir. 1998) (noting that a

district court has discretion whether to draw an adverse inference from the invocation in a civil case of the privilege

against self-incrimination). 

We review for abuse of discretion a district court’s decision

to admit deposition testimony under Rule 32(a)(4)(B) of the

Federal Rules of Civil Procedure. See Garcia-Martinez v. City

& County of Denver, 392 F.3d 1187, 1191-92 (10th Cir.

2004). Finally, “[w]e review for an abuse of discretion the

district court’s decision to admit coconspirators’ statements,

and review for clear error the district court’s underlying factual determinations that a conspiracy existed and that the

statements were made in furtherance of that conspiracy.”

United States v. Shryock, 342 F.3d 948, 981 (9th Cir. 2003)

(citing United States v. Bowman, 215 F.3d 951, 960 (9th Cir.

2000)). 

RICHARDS v. RICHARDS 11881
III. DISCUSSION

A. Preclusion Of Angelina’s Testimony

At trial, Angelina attempted to testify that she did not have

anything to do with Bryan’s murder, but the district court precluded any testimony on this subject on the ground that Angelina had asserted the Fifth Amendment privilege against selfincrimination when asked during her deposition about her

involvement in the murder.5 The district court found expressly

that Keith was prejudiced by Angelina’s refusal to answer

deposition questions about this subject. 

[1] Trial courts generally will not permit a party to invoke

the privilege against self-incrimination with respect to deposition questions and then later testify about the same subject

matter at trial. See FTC v. Sharp, 782 F. Supp. 1445, 1452 (D.

Nev. 1991). The Federal Rules of Civil Procedure “contemplate . . . ‘full and equal discovery’ . . . so as to prevent surprise, prejudice and perjury” during trial. Id. “[B]ecause the

privilege may be initially invoked and later waived at a time

when an adverse party can no longer secure the benefits of

discovery, the potential for exploitation is apparent.” SEC v.

Graystone Nash, Inc., 25 F.3d 187, 190 (3d Cir. 1994). The

rights of the other litigant must be taken into consideration

“when one party invokes the Fifth Amendment during discovery, but on the eve of trial changes his mind and decides to

waive the privilege. At that stage, the adverse party — having

conducted discovery and prepared the case without the benefit

of knowing the content of the privileged matter — would be

placed at a disadvantage.” Id. at 191; see also GutierrezRodriguez v. Cartagena, 882 F.2d 553, 577 (1st Cir. 1989)

(“A defendant may not use the fifth amendment to shield herself from the opposition’s inquiries during discovery only to

impale her accusers with surprise testimony at trial.”). “The

5The district court struck Angelina’s response when her attorney asked

whether she was involved in the planning of Bryan’s death. 

11882 RICHARDS v. RICHARDS
opportunity to combat the newly available testimony might no

longer exist, a new investigation could be required, and

orderly trial preparation could be disrupted.” Graystone Nash,

25 F.3d at 191. “ ‘Because the privilege is constitutionally

based,’ ” however, “the competing interests of the party

asserting the privilege, and the party against whom the privilege is invoked must be carefully balanced,” and “ ‘the detriment to the party asserting it should be no more than is

necessary to prevent unfair and unnecessary prejudice to the

other side.’ ” Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d

1258, 1265 (9th Cir. 2000) (quoting Graystone Nash, 25 F.3d

at 192) (addressing propriety of adverse inference as a consequence of asserting Fifth Amendment privilege during pretrial

deposition). 

Angelina argues, as she did at trial, that Keith was not prejudiced by her assertion of the privilege at her deposition. She

asserts that during the investigation of Bryan’s murder, she

answered all questions asked by the investigating officers,

including questions as to whether she was involved in Bryan’s

murder, and that she denied any involvement unequivocally.

She also contends that Keith knew of those denials, and that

her deposition testimony on the subject would not have provided any additional useful information. She further argues

that her statements to the officers investigating Bryan’s death

were sufficient to waive her Fifth Amendment privilege, and

that Keith could have filed a motion to compel her to answer

deposition questions regarding the issue of her involvement,

or lack of involvement, in Bryan’s death. 

[2] Angelina’s arguments are not persuasive. Many of the

interviews with investigating officers occurred shortly after

Bryan’s death in December 2001, approximately four years

prior to the deposition. During those years, a number of significant events occurred that might have altered Angelina’s

testimony and certainly would have been proper subjects for

inquiry during the deposition. Most significantly, Torre was

arrested and convicted of Bryan’s murder, and Strebendt’s

RICHARDS v. RICHARDS 11883
statements describing the conspiracy between Torre and

Angelina came to light. Angelina was not questioned about

these events in any proceeding, as she did not testify at

Torre’s criminal trial and declined to answer questions regarding her alleged involvement in the murder during her deposition in the instant case. Under these circumstances, we

conclude that the district court’s finding of prejudice was warranted. 

[3] Moreover, Angelina’s statements to investigating officers in the days following Bryan’s death did not waive her

privilege against self-incrimination with respect to the later

criminal proceeding against Torre or with respect to the

instant civil proceeding. See United States v. Licavoli, 604

F.2d 613, 623 (9th Cir. 1979) (holding that voluntary testimony before a grand jury did not waive the privilege at trial,

because “[i]t is settled that a waiver of the Fifth Amendment

privilege is limited to the particular proceeding in which the

waiver occurs”) ; see also McCarthy v. Arndstein, 262 U.S.

355, 357—59 (1923) (holding that when a witness’s previous

disclosure is not an actual admission of guilt or incriminating

facts, the witness subsequently may assert the privilege and

decline to testify as to matters that might incriminate him). 

[4] Notably, the district court precluded Angelina from testifying only as to the subject as to which she asserted the Fifth

Amendment privilege, that is, her involvement (or lack

thereof) in Bryan’s murder. The court’s order was narrowly

tailored to impose upon Angelina only that detriment necessary to prevent unfair prejudice to Keith. Accordingly, the

order did not constitute an abuse of discretion. 

[5] Even if we were to find that the district court did err in

precluding a portion of Angelina’s testimony, any such error

was harmless. When reviewing the effect of an evidentiary

ruling in a civil case, we presume prejudice absent a showing

that it is more probable than not that the same verdict would

have been reached without the erroneous ruling. Obrey v.

11884 RICHARDS v. RICHARDS
Johnson, 400 F.3d 691, 701 (9th Cir. 2005) (citing Haddad v.

Lockheed Cal. Corp., 720 F.2d 1454, 1459 (9th Cir. 1983)).

Here, the district court made an explicit adverse credibility

finding with respect to Angelina’s assertion that she did not

know the amount of the policy’s death benefit, and noted several instances in which Angelina’s testimony conflicted with

other evidence. The court also cited to more than a dozen

facts in support of its determination that Angelina was

involved in Bryan’s murder. Based upon this record, we conclude that it is more probable than not that the district court

would have reached the same verdict even if Angelina had

testified. 

B. Adverse Inference

[6] In addition to precluding Angelina from testifying with

respect to her involvement in Bryan’s murder, the district

court drew an adverse inference from Angelina’s assertion of

the Fifth Amendment as to this subject. When a party asserts

the privilege against self-incrimination in a civil case, the district court has discretion to draw an adverse inference from

such assertion. See Glanzer, 232 F.3d at 1264 (citing Colello,

139 F.3d at 677). A decision not to draw the inference

“ ‘poses substantial problems for an adverse party who is

deprived of a source of information that might conceivably be

determinative in a search for the truth.’ ” Id. (quoting Graystone Nash, 25 F.3d at 190). However, “under certain circumstances . . . an adverse inference from an assertion of one’s

privilege not to reveal information is too high a price to pay.”

Id. at 1265. “The tension between one party’s Fifth Amendment rights and the other party’s right to a fair proceeding is

resolved by analyzing each instance where the adverse inference was drawn, or not drawn, on a case-by-case basis under

the microscope of the circumstances of that particular civil litigation.” Id. (citing Graystone Nash, 25 F.3d at 192). The

inference may not be drawn “unless there is a substantial need

for the information and there is not another less burdensome

way of obtaining that information.” Id. (citing Serafino v.

RICHARDS v. RICHARDS 11885
Hasbro, Inc., 82 F.3d 515, 518-19 (1st Cir. 1996). The district

court must determine “whether the value of presenting [the]

evidence [is] substantially outweighed by the danger of unfair

prejudice” to the party asserting the privilege. Id. at 1266 (citing Fed. R. Evid. 403; Brink’s Inc. v. City of New York, 717

F.2d 700, 710 (2d Cir. 1983)). Moreover, the inference may

be drawn only when there is independent evidence of the fact

about which the party refuses to testify. Id. at 1264. 

Angelina argues that there was no substantial need for her

deposition testimony as to her involvement in Bryan’s murder; that in any event she offered trial testimony on this subject; that there is no independent evidence of her involvement

in the murder; and that the adverse inference constituted a

double penalty for her legitimate assertion of her privilege

against self-incrimination, because she already was precluded

from testifying as to her alleged involvement. 

[7] The district court found explicitly that there was a substantial need for Angelina’s testimony with respect to the

deposition questions she refused to answer, because those

questions went to the central question in this case, which was

whether Angelina asked Torre to murder Bryan or had any

other involvement in his death. As discussed previously,

Angelina asserts that she told investigators that she had no

involvement in Bryan’s death, and that obviously she would

have said the same thing had she testified. Angelina argues

that under these circumstances Keith was not deprived of any

information necessary to litigate this case. Angelina’s argument ignores the fact that the deposition questions at issue

went beyond a simple, “did you conspire to kill your husband?” For example, one question asked whether before the

murder Angelina told others that she and Torre were going to

move away together. Another asked whether Angelina ever

told Torre that she wanted to be rid of Bryan. The responses

to these questions are not apparent from the record, and in fact

there are conflicts in the evidence as to the status of Angeli11886 RICHARDS v. RICHARDS
na’s relationships with Bryan and with Torre. Keith was entitled to pursue these avenues of inquiry. 

With respect to Angelina’s offer of trial testimony on these

subjects, the district court was within its discretion to preclude

such testimony on the ground of prejudice to Keith, as discussed above. Although Angelina had offered bare denials of

her involvement during the investigation of Bryan’s 2001

murder, by the time of her 2005 deposition a number of significant new facts had come to light, including Torre’s criminal conviction for the murder and Strebendt’s statements

regarding Angelina’s involvement. 

With respect to the requirement of independent evidence of

Angelina’s involvement in the murder, the district court’s

FFCL list numerous facts and pieces of evidence, in addition

to Strebendt’s testimony, in support of the court’s finding that

Angelina conspired in, aided, and abetted Bryan’s murder: (1)

that Bryan possessed a policy with a one million dollar death

benefit; (2) Angelina’s knowledge of the death benefit; (3)

Angelina’s affair with Torre; (4) that Angelina and Torre

leased a commercial building together without Bryan’s

knowledge or participation; (5) Angelina’s knowledge that

her marriage might end in divorce; (6) evidence that Torre

murdered Bryan; (7) that Angelina and Torre initially concealed their affair from the detectives investigating Bryan’s

death; (8) Angelina’s misrepresentations to sheriff’s detectives regarding her knowledge of the policy; (9) Angelina’s

query to Beh within days after Bryan’s murder as to the

amount of the death benefit; (10) that Angelina’s affair with

Torre continued after Bryan’s murder; (11) that Angelina purchased the Cancun vacation package for herself and Torre six

days after receiving the $50,000 advance on the policy benefits; (12) Angelina’s lies to sheriff’s detectives regarding her

December 2003 conversations with Strebendt; and (13) the

adverse inference drawn from Angelina’s invocation of the

Fifth Amendment right against self-incrimination. This direct

RICHARDS v. RICHARDS 11887
and circumstantial evidence satisfies the requirement of independent evidence of Angelina’s involvement in the murder. 

[8] Angelina argues that the district court failed to consider

evidence that she was not involved in the murder, citing to the

transcript of a telephone call Strebendt made to Torre at the

behest of investigating officials. In that call, Torre unequivocally denied that Angelina wanted Bryan killed or knew about

Torre’s involvement. It is true that the district court did not

address this particular piece of evidence. However, it did

address at length other evidence and arguments made by

Angelina. For example, it addressed Angelina’s argument that

Bryan had purchased expensive gifts for her and paid for her

plastic surgery, and that this conduct was inconsistent with the

theory that he was contemplating divorce. It also noted Angelina’s contention that Torre, as Angelina’s lover, obviously

would have been a prime suspect in Bryan’s murder, and that

to contend that she would have conspired with Torre under

those circumstances is to impute to her an improbable degree

of stupidity. The district court clearly considered the record as

a whole, and found that the totality of the evidence supported

a conclusion that Angelina was involved in Bryan’s murder.

Reaching such a conclusion on this record was not an abuse

of discretion. 

[9] Angelina claims that she was subjected to a double penalty for a legitimate exercise of her Fifth Amendment privilege, first by being precluded from testifying at trial that she

did not have anything to do with Bryan’s murder, and then by

an adverse inference that she did participate in Bryan’s murder because of her lack of testimony as to this point. While

Angelina’s “piling on” argument has some appeal, we conclude that given the state of the evidence the district court did

not abuse its discretion in imposing both sanctions. As is discussed above, the district court was well within its discretion

to exclude Angelina’s testimony as to her involvement, or

lack thereof, in Bryan’s murder. Faced with an absence of any

testimony from Angelina on the central issue in the case, the

11888 RICHARDS v. RICHARDS
district court was entitled to draw the adverse inference. The

court observed appropriately that because the case was tried

to the court rather than a jury, there was no danger that the

adverse inference would be given undue weight. 

[10] We caution that what Angelina characterizes as a

“double penalty” may be too extreme a sanction in some

cases, and that district courts should be hesitant to impose it

absent compelling circumstances. That said, we cannot say

that the district court in this case abused its discretion. The

district court’s decision was thoroughly and carefully reasoned. The adverse inference was only one of fourteen facts

listed by the district court in support of its conclusion that

Angelina conspired in, aided, and abetted Bryan’s murder.

More probably than not, the court would have reached the

same verdict even absent the inference. 

C. Strebendt As An Unavailable Witness

The district court admitted Strebendt’s deposition testimony on the ground that he resided in Oregon and thus was

unavailable for trial. Under Rule 32(a)(4)(B) of the Federal

Rules of Civil Procedure (formerly Rule 32(a)(3)(B)), a party

may use the deposition of a witness at a hearing or trial if the

court finds “that the witness is more than 100 miles from the

place of hearing or trial.” Fed. R. Civ. P. 32(a)(4)(B). 

[11] Angelina asserted at trial, and argues again here, that

Strebendt in fact resided in Los Angeles and thus was not subject to Rule 32(a)(4)(B). Angelina’s argument at trial relied

upon a July 2006 posting on a martial arts website. The posting provided background on Strebendt and indicated that his

“Home City” was “Los Angeles, CA.” The district court characterized the website posting as an “unauthenticated and

ambiguous statement,” and concluded that it was insufficient

to demonstrate that Strebendt resided in California given the

evidence to the contrary. The court noted that Strebendt testified at his deposition that he lives in Oregon; that Keith had

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filed a witness list identifying Strebendt’s residence as

Eugene, Oregon; and that Keith’s counsel had telephoned the

Oregon telephone number provided by Strebendt and spoken

with him at that number. Based upon this record, the district

court did not abuse its discretion in admitting Strebendt’s

deposition testimony under Rule 32(a)(4)(B). 

Angelina argues that the district court also abused its discretion in admitting Strebendt’s testimony under Rule

804(b)(1) of the Federal Rules of Evidence. However,

because Strebendt’s testimony properly was admitted under

Rule 32(a)(4)(B), it need not also meet the requirements for

admissibility set forth in Rule 804(b)(1). Under Rule 802,

hearsay is admissible where allowed by the Federal Rules of

Evidence, or “by other rules prescribed by the Supreme Court

pursuant to statutory authority or by Act of Congress.” Fed.

R. Evid. 802. Rule 32(a)(4)(B) is one of these “other rules.”

See Fed. R. Evid. 802 advisory committee’s note (identifying

Rule 32 as one of the “other rules”); Fed. R. Civ. P. 32 advisory committee’s note (explaining that new Rule 32(a) was

intended to “eliminate[ ] the possibility of certain technical

hearsay objections which are based, not on the contents of

deponent’s testimony, but on his absence from court”). Our

sister circuits have recognized that Rule 32(a) is an independent exception to the hearsay rule. See Ueland v. United

States, 291 F.3d 993, 996 (7th Cir. 2002) (“Rule 32(a), as a

freestanding exception to the hearsay rule, is one of the ‘other

rules’ to which Fed. R. Evid. 802 refers. Evidence authorized

by Rule 32(a) cannot be excluded as hearsay, unless it would

be inadmissible even if delivered in court.”); Angelo v. Armstrong World Indus., Inc., 11 F.3d 957, 962-63 (10th Cir.

1993) (“Deposition testimony is normally inadmissible hearsay, but Fed. R. Civ. P. 32(a) creates an exception to the hearsay rules.”); S. Indiana Broadcasting, Ltd. v. FCC, 935 F.2d

1340, 1341—42 (D.C. Cir. 1991) (recognizing that Fed. R.

Civ. P. 32(a) creates an exception to the hearsay rule); United

States v. Vespe, 868 F.2d 1328, 1339 (3d Cir. 1989) (Rule

32(a)(3)(B) “constitutes an independent exception to the hear11890 RICHARDS v. RICHARDS
say rule”); Carey v. Bahama Cruise Lines, 864 F.2d 201, 204

& n.2 (1st Cir. 1988) (explaining that Rule 32(a)(3)(B) “is

more permissive than Federal Rule of Evidence 804(a)(5)”).

Because the district court did not abuse its discretion in admitting Strebendt’s deposition testimony under Rule 32(a)(4)(B),

Rule 804 is irrelevant to our analysis. 

D. Strebendt’s Testimony Regarding Torre’s Statements

Angelina also raised a hearsay objection to the admission

of Strebendt’s testimony regarding Torre’s statements. The

district court made a factual finding that Angelina and Torre

were engaged in a conspiracy to murder Bryan, and that as a

result Torre’s statements as reported by Strebendt were

admissible as non-hearsay statements of a co-conspirator

under Rule 801(d)(2)(E) of the Federal Rules of Evidence.

That rule provides in relevant part that a statement is not hearsay if it is “a statement by a coconspirator of a party during

the course and in furtherance of the conspiracy.” Fed. R. Evid.

801(d)(2)(E). The proponent of the statement must demonstrate by a preponderance of the evidence the existence of,

and participation in, the conspiracy. United States v. Peralta,

941 F.2d 1003, 1005 (9th Cir. 1991) (citing Bourjaily v.

United States, 483 U.S. 171, 175 (1987)). 

[12] Angelina argues that there was insufficient evidence in

the record to support a finding that she and Torre were

engaged in a conspiracy to murder Bryan, and that the district

court failed to consider evidence in her favor as to this point.

This argument is identical to that addressed above with

respect to the district court’s decision to draw an adverse

inference. It is apparent from the FFCL that the district court

considered the record as a whole and made a factual determination that Angelina did conspire with Torre to kill Bryan. As

discussed previously, the district court identified more than a

dozen specific facts upon which it relied in reaching this conclusion. The conclusion is not clearly erroneous. It is apparent

that, assuming a conspiracy between Angelina and Torre, the

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subject statements were made in the course of and in furtherance of the conspiracy. Accordingly, the district court did not

abuse its discretion in admitting the subject statements under

Rule 801(d)(2)(E). 

IV. CONCLUSION

We conclude that the district court did not abuse its discretion in precluding Angelina from testifying that she was not

involved in Bryan’s murder, or in drawing an adverse inference from her assertion of the Fifth Amendment privilege

against self-incrimination, and that any error in these rulings

was harmless. We also conclude that the district court properly admitted Strebendt’s deposition testimony. 

AFFIRMED.

11892 RICHARDS v. RICHARDS