FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

GABRIEL MIRABAL, 

Defendant-Appellant.

No. 22-50217 

D.C. No. 

5:18-cr-00335-

MWF-2 

OPINION

Appeal from the United States District Court

for the Central District of California

Michael W. Fitzgerald, District Judge, Presiding

Argued and Submitted March 5, 2024

Pasadena, California

Filed April 16, 2024

Before: Holly A. Thomas and Roopali H. Desai, Circuit 

Judges, and James Alan Soto,* District Judge.

Opinion by Judge H.A. Thomas

* The Honorable James Alan Soto, United States District Judge for the 

District of Arizona, sitting by designation.
2 USA V. MIRABAL

SUMMARY**

Criminal Law

The panel vacated Gabriel Mirabal’s conviction by jury 

trial for two counts of assaulting a federal officer resulting 

in bodily injury, in violation of 18 U.S.C. § 111, and 

remanded for further proceedings.

The panel held the district court abused its discretion in 

excluding the sworn statement of a government attorney as 

hearsay at Mirabal’s trial because, in a criminal case, the 

sworn statement of a government attorney in a plea 

agreement or sentencing memorandum is a party admission, 

excluded from the definition of hearsay under Federal Rule 

of Evidence 801(d)(2). The panel further held that the error 

was not harmless.

COUNSEL

Alix L. McKenna (argued) and Jena A. MacCabe, Assistant 

United States Attorneys; Bram M. Alden, Assistant United 

States Attorney, Chief, Criminal Appeals Section; E. Martin 

Estrada, United States Attorney; United States Department 

of Justice, Office of the United States Attorney, Los 

Angeles, California; for Plaintiff-Appellee.

Elizabeth Richardson-Royer (argued), Law Office of 

Elizabeth Richardson-Royer, San Francisco, California, for 

Defendant-Appellant.

** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
USA V. MIRABAL 3

OPINION

H.A. THOMAS, Circuit Judge:

Federal Rule of Evidence 801(d)(2) excludes from the 

definition of hearsay several categories of statements

“offered against an opposing party.”1 Thirty-five years ago, 

in United States v. Van Griffin, 874 F.2d 634, 635, 638 (9th 

Cir. 1989), we held that in a criminal prosecution for driving 

under the influence of alcohol on federal land, the defendant 

could introduce a United States Department of 

Transportation manual on sobriety testing under Rule

801(d)(2). We reasoned that the document had been written

by “the relevant and competent section of the government,”

and was thus the admissible statement of the government as 

a party opponent. Id. at 638 (citing Fed. R. Evid.

801(d)(2)(D)).

Today, we examine the application of Van Griffin and 

Rule 801(d)(2) in the context of government attorney 

statements. Doing so, we hold that, in a criminal case, the 

sworn statement of a government attorney in a plea 

agreement or sentencing memorandum is a party admission, 

excluded from the definition of hearsay under Rule 

801(d)(2). 

I.

A.

Gabriel Mirabal is a prisoner at a federal correctional 

institution in Victorville, California. On June 17, 2022,

1 These exclusions from hearsay are commonly described as the 

exclusions for party admissions. See, e.g., United States v. Burreson, 643 

F.2d 1344, 1349 (9th Cir. 1981).
4 USA V. MIRABAL

Mirabal was convicted of two counts of assaulting a federal 

officer resulting in bodily injury under 18 U.S.C. § 111. He 

now appeals, arguing in part that the district court abused its 

discretion when it excluded the sworn statement of a 

government attorney as hearsay at his trial. We have 

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. 

Because we conclude that the statement was improperly 

excluded, and that this exclusion was not harmless, we 

vacate Mirabal’s conviction and remand for further 

proceedings. 

B.

On August 19, 2017, Mirabal and a fellow inmate, Erik 

Rojo, passed through metal detectors while returning to their 

housing units after lunch. One of them wore a white shirt, 

and the other wore a brown shirt. The white-shirted 

individual traversed the metal detectors without incident, but 

the brown-shirted individual triggered an alarm. Two 

correctional officers, Brian Moreno and Anthony Guerrero, 

were stationed at the metal detectors. After the brownshirted individual triggered the alarm on a second 

passthrough, Moreno initiated a pat-down search.

The parties dispute exactly what happened next. They 

agree that the brown-shirted individual and Moreno entered 

a verbal back-and-forth, and that the former threw the first 

punch. The government claims that the blow was

unprovoked; Mirabal, however, asserts that the brownshirted individual threw the punch in self-defense after 

Moreno first quickly raised his arm.

After the fight broke out between the brown-shirted 

individual and Moreno, Guerrero rushed to assist his fellow 

officer. The white-shirted individual—who by now was 

already some distance beyond the metal detectors—turned
USA V. MIRABAL 5

back to join the fray, punching Moreno in the back of the 

head and knocking him unconscious, before attacking 

Guerrero. Other officers eventually arrived and stabilized the 

situation, but not before Moreno and Guerrero both suffered 

physical injuries.

On December 11, 2018, a grand jury indicted both Rojo 

and Mirabal on two counts of assaulting a federal officer 

resulting in bodily injury and the aiding and abetting thereof, 

with one count for the assault on Moreno and the second for 

the assault on Guerrero. Mirabal proceeded to trial. 

C.

To fully explain Mirabal’s trial, a detour is necessary to

discuss the proceedings in Rojo’s case. On August 15, 2019, 

Rojo and the government entered into a plea agreement in 

which Rojo pleaded guilty to one count of assaulting a 

federal officer resulting in bodily injury. The plea 

agreement’s factual basis identified Rojo as the individual in 

the white shirt who passed through the metal detectors

without incident, and Mirabal as the individual in the brown 

shirt who set off the alarm, was searched by Moreno, and 

threw the first punch. The United States Attorney’s Office

(USAO) for the Central District of California agreed to and 

accepted the plea agreement, and a Special Assistant United 

States Attorney signed it.

The district court held Rojo’s change of plea hearing 

roughly one month later. The district court summarized the 

factual basis of the plea agreement as describing a “scuffle 

or altercation between Mirabal and the two correctional 

officers” in which Rojo subsequently “got involved.” Rojo 

agreed to this description of events, and the government 

raised no objection to it. For the next two months, the 

government showed no signs of deviating from this 
6 USA V. MIRABAL

narrative. Indeed, on November 25, 2019, the government 

reiterated this factual basis in its sentencing position, 

deeming Mirabal the brown-shirted individual who got into 

an altercation with the correctional officers, and Rojo the 

white-shirted individual who ran back after the fact to get 

involved.

The following day, however, the government filed a 

notice of errata withdrawing its sentencing position. And on 

December 4, 2019, the government filed an amended plea 

agreement, which removed all references to Mirabal from 

the factual basis.

2

II.

We have discussed Rojo’s proceedings at length, and we 

repeatedly employ the phrases “the brown-shirted 

individual” and “the white-shirted individual,” because a key 

issue at Mirabal’s trial concerned what color shirt he wore 

on the day of the incident. At Mirabal’s trial, the government 

consistently portrayed him as the person in the white shirt,

while Mirabal consistently maintained that he was clad in 

brown.

That the jury conclude Mirabal was wearing brown was 

key to his defense, which was predicated upon the theory 

that he acted to protect himself from perceived aggression 

by Moreno during the search. This self-defense theory was, 

practically speaking, unavailable to the white-shirted 

individual, who ran back from across the courtyard to join 

the fight after it started. To support his theory, Mirabal 

2 As do the parties and the district court, we refer collectively to the 

statements contained in the factual basis in Rojo’s original plea 

agreement, and those same statements in the government’s first 

sentencing memorandum, as Rojo’s original factual basis.
USA V. MIRABAL 7

sought to introduce, as the statement of a party opponent, 

Rojo’s original factual basis as evidence that the government 

had previously taken the position that Mirabal wore the 

brown shirt. 

The government filed a motion in limine to exclude the 

original factual basis under Federal Rules of Evidence 401, 

403, and 802. The government argued, in part, that the 

original factual basis was irrelevant because, “[a]s a general 

matter, the fact of a plea or conviction of a non-testifying codefendant is inadmissible”; the original factual basis was 

merely the mistaken “personal opinion” of the prosecutor at 

the time; and the original factual basis was inoperative and 

no longer had any “legal significance.” The government also 

maintained that the original factual basis constituted hearsay 

because it was “an out-of-court admission by Rojo,” who 

was not testifying at Mirabal’s trial. 

The district court granted the government’s motion, 

reasoning that the original factual basis constituted 

inadmissible hearsay. The court held that Rule 

801(d)(1)(A)’s hearsay exclusion for prior inconsistent 

statements did not apply to the original factual basis because 

Rojo was not called to testify at Mirabal’s trial. And it 

reasoned that Rule 801(d)(2)’s hearsay exclusion for an 

admission of a party opponent did not apply to the “opinion” 

of a prosecutor. 

Who wore which shirt was a significant focus at 

Mirabal’s trial, with the parties eliciting conflicting evidence 

on the matter. The government presented surveillance 

footage and photographic evidence and called multiple 

correctional officers, including Moreno and Guerrero, to 

testify about the incident. Moreno and Guerrero each 

testified that Rojo wore the brown shirt. But other officers—
8 USA V. MIRABAL

including the one who handcuffed the brown-shirted 

individual, and another who escorted the brown-shirted 

individual to a restricted housing unit after the fight—

testified that Mirabal wore the brown shirt. In closing

arguments, the government suggested, for the first and only

time, that the jury could convict Mirabal regardless of 

whether he wore the brown or white shirt. The district court 

instructed the jury on self-defense. 

The jury convicted Mirabal on both counts of assault 

resulting in bodily injury against Moreno and Guerrero. 

Mirabal was ultimately sentenced to 57 months’ 

imprisonment and ordered to pay restitution in the amount 

of $8,983.39 for Moreno and Guerrero’s lost wages. 

III.

We review a district court’s evidentiary rulings for abuse 

of discretion. United States v. Mikhel, 889 F.3d 1003, 1035 

(9th Cir. 2018). “[A] district court abuses its discretion when 

it makes an error of law.” United States v. Hinkson, 585 F.3d 

1247, 1261 (9th Cir. 2009) (en banc).

IV.

A.

Mirabal argues that the district court abused its discretion 

when it excluded Rojo’s original factual basis as hearsay.

We agree and, for the reasons described below, vacate 

Mirabal’s conviction and remand for further proceedings.

Under Federal Rule of Evidence 801(d)(2), a statement 

is not hearsay if it is offered against an opposing party and if 

the statement

(A)was made by the party in an individual or 

representative capacity;
USA V. MIRABAL 9

(B) is one the party manifested that it adopted or believed 

to be true;

(C)was made by a person whom the party authorized to 

make a statement on the subject; 

(D)was made by the party’s agent or employee on a 

matter within the scope of that relationship and while 

it existed; or 

(E) was made by the party’s coconspirator during and in 

furtherance of the conspiracy.

Rojo’s original factual basis plainly falls within Rule 

801(d)(2)(A)–(D). It therefore should not have been 

excluded on the basis that it constitutes hearsay. 

Our decision in United States v. Van Griffin, 874 F.2d 

634 (9th Cir. 1989), supports this conclusion. There, the 

defendant, charged with driving under the influence on 

federal land, sought to introduce at his trial a Department of 

Transportation pamphlet regarding the procedures to be used 

in field sobriety tests, including a test for nystagmus. The 

district court excluded the pamphlet as hearsay. Although we 

found that the exclusion of the pamphlet was harmless, we 

held that it was nevertheless in error. We explained that 

under Rule 801(d)(2)(D), the pamphlet “could have been 

introduced by the defendant . . . to show the measures that 

are necessary to be taken in order to have a reliable test for 

nystagmus.” Id. at 638. Although we explicitly refrained

from holding that “every publication of every branch of 

government of the United States can be treated as a party 

admission by the United States,” we held that the pamphlet 

had been developed by the “relevant and competent section 

of the government,” one “charged with the development of 
10 USA V. MIRABAL

rules for highway safety.” Id. We therefore found the 

pamphlet “was an admissible party admission.” Id. 

There is no question that, as our decision in Van Griffin 

implies, “the Federal Rules clearly contemplate that the 

federal government is a party-opponent of the defendant in 

criminal cases.” United States v. Morgan, 581 F.2d 933, 937 

n.10 (D.C. Cir. 1978) (citing Fed. R. Evid. 803(8)). Nor can 

it be seriously disputed that, as the Department of 

Transportation in Van Griffin was the “relevant and 

competent section of the government” when it came to 

highway safety, so is the Department of Justice with respect 

to criminal prosecutions. The logic of our decision in Van 

Griffin comfortably encompasses formal, signed statements 

made by a government attorney in filings before a court, 

such as plea agreements and sentencing memoranda. We 

therefore hold that when a criminal defendant seeks to 

introduce such statements at trial, they fall within Rule 

801(d)(2)’s hearsay exclusion for statements made by an 

opposing party. 

B.

The government contends that allowing the introduction 

of Rojo’s original factual basis is to mistake the mere 

“opinions” of a government attorney for a statement of the 

kind admissible as a hearsay exclusion under Rule 801(d).

This argument is unpersuasive.

As the D.C. Circuit stated in Morgan, “when the 

government authorizes its agent to present his sworn 

assurances to a judicial officer[,] the statements of fact or 

belief in the officer’s affidavit represent the position of the 

government itself, not merely the views of its agent.” 581 

F.2d at 937 n.10. Similarly, here, the government’s theory of 

the case was not the mere errant remark or personal 
USA V. MIRABAL 11

viewpoint of a government attorney. Memorialized in 

writing and set forth multiple times before the district court 

in sentencing memoranda and plea agreements, Rojo’s 

original factual basis constituted the official position of the 

United States regarding what happened during the August 19

altercation. The factual basis plainly states that “Defendant

[Rojo] and the USAO agree to the statement of facts 

provided below and agree that this statement of facts is 

sufficient to support a plea of guilty to the charge described 

in this agreement.” The factual basis was signed by both the 

Special Assistant United States Attorney and by Rojo 

himself.

It is true that the government subsequently filed an 

amended plea agreement. But that amendment does not 

change the fact that the government had once adopted the 

original factual basis. Nor, as the government contends, does 

Rojo’s status as a co-signatory to that factual basis change 

the fact that the government’s independent statements fall 

within the party admission hearsay exclusion. Both Rojo and 

the government were declarants within the meaning of Rule 

801(b). No issue of nested hearsay presents itself because the 

factual basis reflected the government’s understanding of the 

case based upon the entirety of its investigation at the time, 

not merely a parroting of Rojo’s statements. Cf. Breneman 

v. Kennecott Corp., 799 F.2d 470, 473 (9th Cir. 1986) 

(nested hearsay occurs when one declarant testifies as to 

another declarant’s out-of-court statement). 

C.

We do not determine how far Rule 801(d)(2) extends to 

other government employees. And exactly which 

departments of the federal government are a party-opponent 

will depend on a case’s factual circumstances. Today, we 
12 USA V. MIRABAL

hold only that “in criminal cases, the Justice Department 

certainly should be considered” a party-opponent of criminal 

defendants. United States v. Kattar, 840 F.2d 118, 130 (1st 

Cir. 1988) (citation omitted); see also Morgan, 581 F.2d at 

937 n.10; United States v. Yildiz, 355 F.3d 80, 82 (2d Cir. 

2004) (“[T]he government’s attorneys can bind the 

government with their in-court statements.”).3 Rule 

801(d)(2)’s hearsay exclusions, in turn, apply to government 

attorneys’ statements in plea agreements and sentencing 

memoranda.4

D.

“We may only conclude that an error was harmless if it 

is ‘more probable than not that the erroneous admission of 

the evidence did not affect the jury’s verdict.’” United States 

v. Vizcarra-Martinez, 66 F.3d 1006, 1017 (9th Cir. 1995) 

(quoting United States v. Hill, 953 F.2d 452, 458 (9th Cir. 

3 But see United States v. Zizzo, 120 F.3d 1338, 1351–52 & n.4 (7th Cir. 

1997) (declining “to apply Rule 801(d)(2) to statements made by 

government employees in criminal cases,” based upon “the common law 

principle that no individual should be able to bind the sovereign,” but 

ultimately upholding the exclusion of evidence at issue under Rule 403). 

We reject Zizzo’s dicta as unpersuasive when applied to government 

attorneys. It is indisputable that government attorneys can and do bind 

the United States because the United States “can act only through its 

officers and agents” when conducting a criminal prosecution.

Wellingham v. Morgan, 395 U.S. 402, 406 (1969). And, in any event, 

applying Rule 801(d)(2) does not “bind the sovereign” because it merely 

allows a party to admit in-court statements that government agents 

previously made; it does not mandate a course of conduct, forbid any 

action, or even require the government to continue to stand by those 

statements. 

4 In so holding, we of course do not suggest that trial courts should refrain 

from analyzing such statements under Rule 403, or that they should 

admit such statements when they are irrelevant.
USA V. MIRABAL 13

1991)). Applying this principle here requires vacating 

Mirabal’s conviction. 

Had Mirabal had the opportunity to present Rojo’s

original factual basis, his argument that he wore the brown 

shirt would have had considerably more support. As the 

district court noted, “who was who c[ould] make a difference

here,” because the brown-shirted individual had a stronger

self-defense claim than did the white-shirted individual, who 

joined the altercation after it had begun. The focus of the 

government’s evidence at trial was demonstrating that Rojo, 

not Mirabal, wore the brown shirt. Mirabal elicited

testimony suggesting that Moreno raised his arm shortly 

before the first punch was thrown and that he gave 

inconsistent reasons for doing so. Although the jury 

theoretically could have convicted Mirabal regardless of 

whether he wore the brown or white shirt, the government 

pressed that point only once, in its closing argument. And 

although the government presented to the district court a

facially innocuous explanation for changing the original

factual basis—namely that its previous prosecutor was 

simply mistaken—we cannot conclude based on our review 

of the record that the jury would have credited its 

explanation. 

V.

Rojo’s original factual basis, containing statements of 

the USAO, was a party admission under Rule 801(d)(2). The 

government has not met its burden of showing that the 

exclusion of this basis did not affect the outcome of 

Mirabal’s trial. Mirabal’s conviction is therefore 
14 USA V. MIRABAL

VACATED and this matter is REMANDED for further 

proceedings.5

5 Because we vacate Mirabal’s conviction and remand for further 

proceedings, we do not address at length his remaining contentions on 

appeal, noting only that we perceive no due process violations that would 

have warranted the granting of his motion for a new trial, nor any abuse 

of discretion related to the exclusion of evidence of Moreno’s Three 

Percenters tattoo. While we do not presume the course of any further 

proceedings, we also remind the parties that “[a]ny dispute as to the 

proper amount or type of restitution” raised at sentencing must be 

“resolved by the court by the preponderance of the evidence,” with the 

government bearing the burden of “demonstrating the amount of the loss 

sustained by a victim as a result of the offense.” 18 U.S.C. § 3664(e); see 

also United States v. Waknine, 543 F.3d 546, 556–57 (9th Cir. 2008) 

(holding that the government does not meet its burden when it relies only 

on conclusory loss summaries).