FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 09-10492 Plaintiff-Appellee,

D.C. No. v. 

1:07-cr-00039-

RAYMOND IGNACIO DUENAS, Jr., DDP-1

Defendant-Appellant. 

UNITED STATES OF AMERICA,  No. 09-10496

Plaintiff-Appellee, D.C. No.

v.  1:07-cr-00039-

DDP-2 LOURDES CASTRO DUENAS,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the District of Guam

Dean D. Pregerson, District Judge, Presiding

Argued and Submitted

June 14, 2011—Honolulu, Hawaii

Filed August 16, 2012

Before: Arthur L. Alarcón, Kim McLane Wardlaw, and

N. Randy Smith, Circuit Judges.

Opinion by Judge Wardlaw

9335
COUNSEL

Mark Eibert, Half Moon Bay, California, for defendantappellant Raymond Ignacio Duenas, Jr.

Gretchen Fusilier, Carlsbad, California, for defendantappellant Lourdes Castro Duenas.

Alicia Limtiaco, United States Attorney; Karon Virginia

Johnson, Assistant United States Attorney; Hagatna, Guam,

for plaintiff-appellee United States of America.

OPINION

WARDLAW, Circuit Judge:

These consolidated appeals arise from the chaotic two-day

execution of a search warrant by the Guam Police DepartUNITED STATES v. DUENAS 9339
ment’s (“GPD”) SWAT team, in coordination with federal

DEA and ATF agents. The search resulted in one of the largest “busts” of stolen items in Guam’s history. The “woefully

inadequate” management of the search of Raymond (“Ray”)

and Lourdes (“Lou”) Duenas’s compound and the staging of

the inventory of seized drugs and goods on the compound’s

front yard attracted members of the media and victims who

came to claim their property while the two-day execution of

the warrant was ongoing.

Ray and Lou were arrested and separately gave statements

to police officers. The district court denied their motions to

suppress evidence of the drugs and stolen goods seized in the

raid and their statements. A jury convicted each of the Duenases on multiple counts. Both appeal their convictions, contending that the suppression motions should have been

granted, that former testimony of by-then-deceased Officer

Frankie Smith should not have been admitted at trial, and that

there was insufficient evidence to support their convictions.

Although the conduct of the search was highly questionable,

given the participation of the public and the media, the district

court did not err by deciding not to exclude the stolen items,

drugs, and other paraphernalia found in the compound. However, the district court abused its discretion by admitting the

former testimony of Officer Smith under Rule 804(b)(1) of

the Federal Rules of Evidence, because it incorrectly concluded that defense counsel had a similar motive to crossexamine Officer Smith when it questioned him at the suppression hearing as it would have had at the trial. Because Ray’s

statement was admitted through Smith’s former testimony,

Ray’s conviction must be reversed. However, we affirm Lou’s

conviction, as it was supported by sufficient evidence.

I. Factual Background

Ray and Lou lived on an isolated jungle property in

Dededo, Guam, with Ray’s mother, Ray’s daughter, and

another man. Ray’s mother owned the property. A main house

9340 UNITED STATES v. DUENAS
and a shipping container faced the dirt road leading up to the

property. Behind the house and container, toward the rear of

the property, was a make-shift four-room shack in which Ray

and Lou lived.1

At approximately 5:40 a.m. on April 19, 2007, GPD officers, along with DEA and ATF agents, executed a search warrant at the Duenases’ residence for evidence of narcotics

trafficking. Ray and Lou were asleep in the room dubbed

“Lou room/Ray’s room” when the officers entered the residence. The search scene was “almost chaotic,” according to

Guam Chief of Police Paul Suba. The district court characterized GPD’s management of the scene as “woefully inadequate.” Although up to forty officers were present, no single

officer was clearly in charge of managing the scene. The testimony at trial demonstrated that members of the media and

other civilians were allowed on the Duenas property during

the search to film and photograph the scene. Journalist Eric

Palacios testified that he arrived shortly after 9:00 a.m., following an anonymous phone call indicating that something

was happening on Ysengsong Road, where the Duenases

lived. Trina San Augustin, another journalist, testified that she

too went to the Duenas property after receiving an anonymous

call.

The media were instructed to remain in the front yard and

were not permitted past the shipping container. Officers

allowed the media to film and photograph stolen property as

it was taken from the residence and surrounding structures

and placed in a staging area in the front yard. GPD Officer

Scott Wade escorted some members of the media down a jungle path to the rear of the property to view and photograph a

marijuana patch. Officer Kim Santos said that she escorted

Palacios further into the property “to where the SWAT officers were situated.” Officer Allan Guzman testified that, in a

1Law enforcement agents termed the four rooms in this shack the

“kitchen,” “Lou room/Ray’s room,” “storage,” and “drug room.” 

UNITED STATES v. DUENAS 9341
highly unusual departure from protocol, Chief Suba took

some journalists on a tour of the scene so they could film the

items being staged, with the hope that theft victims could

thereby identify their stolen property. Officer Wade also testified that he held a press conference at the edge of the front

yard.

The presence of members of the general public contributed

to the chaos at the search scene. Numerous denizens of Guam

came to the Duenas residence during the search to identify

items that had allegedly been stolen from them. Some of these

people touched the items in the staging area, and several

claimed property, which was released to them at the scene.

For example, one police officer was permitted to retrieve a

plasma television, and a local judge was permitted to retrieve

a gavel—which she later returned after realizing it was not

hers. 

The search warrant authorized the police to seize items

including drugs, drug paraphernalia, weapons, and “illegally

obtained proceeds derived from violations of federal or state

statutes concerning felony possession, distribution and/or

manufacturing of controlled substances.” Officers seized

approximately 82 grams of methamphetamine, including 74

grams found in a safe at the foot of the bed in “Lou

room/Ray’s room.” Officers also seized guns, drug paraphernalia, three ledgers, and several thousand pieces of stolen

property. The ledgers, one of which Officer Frank Santos testified at trial “represented a typical drug ledger,” identify dollar amounts in the hundreds and thousands, along with dates,

notes such as “credit,” and descriptions of items such as

“bracelet” or “beer.” In “Lou Room/Ray’s Room,” the officers found not only the ledger and the drug-filled safe, but

also guns and more drugs. GPD officers photographed that

evidence in situ and then removed it from the property. Officers moved the other seized property to the staging area in the

front yard. The search lasted two days because of the several

thousands of items the officers needed to catalog. 

9342 UNITED STATES v. DUENAS
Meanwhile, Ray and Lou were arrested shortly after the

search commenced and were taken to the Tamuning precinct.

Thereafter, Ray and Lou each gave written and oral statements regarding the drugs and the stolen property. In his

statement, Ray wrote that he had purchased numerous items,

including firearms, plasma televisions, power tools, and jewelry, with either cash or methamphetamine. Ray added that he

“received the drug ‘ice’ through a friend who needed help to

find buyers.” Officer Smith took Ray’s statement, and later

testified at a suppression hearing that Ray told him that he had

been selling methamphetamine in exchange for stolen goods.2

Ray, Officer Smith, and Special Agent Michelle Jong of the

DEA gave contradictory testimony about how Ray came to

give his statements to Officer Smith. After he was initially

apprehended by the SWAT team, Ray complained of injury.

He was eventually taken to the hospital by Officer Smith.

Smith and Ray had once been friends and had worked

together as cable installers, but had parted ways in 1997 when

Smith entered the police academy. According to Smith, Ray

called him over at the hospital and said, “Frank, the stuff at

the house . . . .” Smith testified that he interrupted Ray, telling

him “Ray, this is not the time, let’s get you treated first, talk

about this at the precinct.” Ray was examined at the hospital

and returned to the Tamuning precinct that afternoon. 

Once Ray returned to the precinct, Special Agents Jong and

Than Churchin attempted to interview him, after advising him

of his Miranda rights. Jong stated that Ray said that he

wanted to talk with an attorney before making a statement.

Jong testified that she then ended the interview and told Ray

2Because neither Ray nor Lou testified at trial, the prosecution used

redacted versions of these statements to avoid a Confrontation Clause violation. See Bruton v. United States, 391 U.S. 123 (1968). The district court

instructed the jury that it could not consider Lou’s statement against Ray,

or Ray’s statement against Lou, when weighing each of the defendants’

guilt or innocence. 

UNITED STATES v. DUENAS 9343
she would look into getting him a Federal Public Defender.

She also told Ray that if he wanted to speak with her, he

would need to reinitiate contact. As she left the room, she

encountered Officer Smith. Jong informed Smith that Ray had

invoked his right to counsel. Smith then went into the conference room. When Jong saw Smith and Ray talking, she

entered to ask whether Ray wanted her present. When he

shook his head “no,” she left, and had no more contact with

Ray.

At the suppression hearing, Smith offered a different story3

: he testified that Jong did not tell him that Ray had asked for

an attorney, but instead “informed me that he didn’t want to

talk to her, but wanted to talk to one of us.” “I told her,”

Smith added, “I said I know why . . . I know him, and I told

her that I would go and talk to him.” Smith went into the conference room and said: “How are you doing, Ray?” Ray

responded that he did not want to talk to the federal agents,

because they scared him, but that he would talk to Smith.

Smith then re-advised Ray of his Miranda rights. Ray signed

a form waiving those rights and indicating that he was willing

to make a statement. Ray then gave oral and written statements admitting to selling methamphetamine out of his home

in exchange for stolen items; he also named his source.4

3Defense counsel cross-examined Smith during the suppression hearing.

The circumstances and nature of Ray’s cross-examination are critical to

determining whether the district court erred by admitting Officer Smith’s

suppression-hearing testimony at trial under Federal Rule of Evidence

804(b)(1), and are described in detail in Section VI, infra. 

4Ray did not testify at the suppression hearing, but offered a declaration,

in which he stated that after he returned to the precinct he was yelled at

by Officers Smith and Piolo, who threatened him and told him that unless

he cooperated he would never see his mother, wife, or children again. Ray

claimed that Smith came into the conference room, showed him Lou’s

written confession and, without advising him of his rights, told him to

“sign a waiver and write down everything they wanted to know and everything will stop . . . .” Smith denied that he threatened Ray, and said he

would not threaten a friend. In denying the suppression motion, the district

court did not address Ray’s declaration. 

9344 UNITED STATES v. DUENAS
Lou’s statement acknowledged that police had found many

items, including “bush cutters, generator, cars, laptops,” and

that both she and Ray were “aware of what’s going on, that

the item are stolen, we exchange dope & cash to merchandise.” GPD Officer Albert Piolo testified at trial that he and

Officer Smith took Lou’s oral statement, and that she admitted to trafficking in methamphetamine for about a year and

selling methamphetamine in exchange for, among other

things, jewelry and a washing machine. Lou told the officers

that she distributed about one gram of methamphetamine at a

time. Special Agent Jong, who interviewed Lou separately,

testified at trial that Lou said that she occasionally used

methamphetamine, and kept about a gram at the house.

II. Procedural Background

A Superseding Indictment charged Ray with: (1) conspiracy to distribute more than 50 grams of methamphetamine in

violation of 21 U.S.C. §§ 841(a)(1) and 846; (2) possessing

more than 50 grams of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1); (3) using and

carrying a firearm during a drug trafficking crime in violation

of 18 U.S.C. § 924(c)(1)(A)(i); (4) being a felon in possession

of firearms in violation of 18 U.S.C. § 922(g)(1); and (5) possessing stolen guns in violation of 18 U.S.C. § 922(j). Lou

was charged with: (1) conspiracy to distribute more than 50

grams of methamphetamine in violation of 21 U.S.C.

§§ 841(a)(1) and 846; and (2) possessing more than 50 grams

of methamphetamine with intent to distribute in violation of

21 U.S.C. § 841(a)(1). 

Following a lengthy suppression hearing, the district court

denied the Duenases’ joint motion to suppress the physical

evidence seized from their property. The district court reasoned that while the presence of members of the media on the

property during the search violated the Duenases’ Fourth

Amendment rights, the physical evidence was not subject to

the exclusionary rule because there was no evidence that any

UNITED STATES v. DUENAS 9345
member of the media was permitted to roam the property

freely “or in any way assisted in the search or touched any of

the property.”

Ray also moved to suppress his statements, arguing that

they were obtained in violation of Miranda because he had

been questioned before his rights were read to him, and that,

in any event, his statements were involuntary because his will

“had been . . . overborne” by the police on the day of the

search, as he had been injured, tired, frightened, and emotional when questioned. The district court denied Ray’s

motion, finding that despite his initial refusal to talk, Ray subsequently waived his right to counsel before speaking with

Officer Smith, and gave his statements voluntarily.

After the suppression hearing and before trial, Officer

Smith was killed by a drunk driver. Over Ray’s hearsay

objection, the district court concluded that Smith’s testimony

was “former testimony” under Federal Rule of Evidence

804(b)(1), and allowed Special Agent Sedberry to read portions of Smith’s suppression hearing testimony to the jury. 

At the end of the case-in-chief, Ray and Lou moved for a

judgment of acquittal pursuant to Federal Rule of Criminal

Procedure 29. Lou argued that there was no evidence of conspiracy, and that there was no proof that she had “possessed”

any drugs. Ray argued, inter alia, that there was no evidence

that he resided at the house. The district court denied both

motions. 

On March 17, 2009, a jury convicted Ray of conspiracy and

possession with intent to distribute, use of a firearm during a

drug crime, and possession of stolen firearms. The jury convicted Lou of both conspiracy and possession with intent to

distribute. 

Ray and Lou timely renewed their Rule 29 motions. On

December 2, 2009, the district court denied their motions, and

9346 UNITED STATES v. DUENAS
sentenced Ray to 25 and Lou to 20 years of imprisonment, the

statutory mandatory minimums for both.

III. Jurisdiction and Standards of Review

We have jurisdiction under 28 U.S.C. § 1291. We review

de novo the denial of a motion to suppress, United States v.

Crawford, 372 F.3d 1048, 1053 (9th Cir. 2004) (en banc), and

review for clear error factual findings underlying the denial of

such a motion, United States v. Bynum, 362 F.3d 574, 578

(9th Cir. 2004). We also review de novo whether the exclusionary rule applies to a given case. Crawford, 372 F.3d at

1053 (citing United States v. Hammett, 236 F.3d 1054, 1057-

58 (9th Cir. 2001)). “ ‘The District Court’s construction or

interpretation of . . . the Federal Rules of Evidence, including

whether particular evidence falls within the scope of a given

rule, is subject to de novo review.’ ” United States v. Garrido,

596 F.3d 613, 616 (9th Cir. 2010) (quoting United States v.

Durham, 464 F.3d 976, 981 (9th Cir. 2006)). “Once it has

been determined that challenged evidence falls within the

scope of a given rule, the District Court’s decision to admit

the evidence is reviewed for abuse of discretion.” Id. (internal

quotation marks omitted). Where, as here, a defendant preserves her claim of insufficient evidence by making a motion

under Federal Rule of Criminal Procedure 29 at the close of

the evidence, we review de novo the sufficiency of the evidence supporting the conviction. United States v. Tucker, 641

F.3d 1110, 1118 (9th Cir. 2011) (citing United States v. Ruiz,

462 F.3d 1082, 1087-88 (9th Cir. 2006)).

IV. Suppression of the Physical Evidence

The district court did not err by denying the Duenases’

motions to suppress the physical evidence seized from their

property. The district court found that the media were present

on the front yard of the Duenas compound, but that their presence did not violate the Fourth Amendment because the front

yard was not curtilage, and there was no basis to find a reaUNITED STATES v. DUENAS 9347
sonable expectation of privacy in the front yard. The district

court also found, however, that the GPD violated the Fourth

Amendment by escorting certain members of the media

beyond the front yard. Nonetheless, the district court declined

to exclude the physical evidence resulting from the execution

of the warrant because the police conducted the search within

the parameters of the warrant, and there was no suggestion

that any member of the media discovered or developed any

evidence seized from the property.

A. Fourth Amendment Violation

[1] The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures.” U.S. Const.

amend. IV. The Duenases contend that the presence of the

media rendered the search of their compound unreasonable.

Whether the police violated the Duenases’ Fourth Amendment rights is difficult to determine based on the factual

record developed below, as it is unclear whether any members

of the media entered the Duenases’ home or its curtilage. 

[2] The leading case that addresses the presence of the

media during the execution of a search warrant is Wilson v.

Layne, 526 U.S. 603 (1999). In Wilson, U.S. Marshals and

county police permitted a reporter and a photographer from

the Washington Post to “ride-along” as they entered a home

pursuant to an arrest warrant. Id. at 607. The photographer

took “numerous pictures” in the home during the execution of

the warrant. Id. The homeowners sued the Marshals under

Bivens5 and the county police under 42 U.S.C. § 1983. Id. at

608. The Court first noted “the ‘overriding respect for the

sanctity of the home that has been embedded in our traditions

5Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403

U.S. 388, 395 (1971) (holding that “damages may be obtained for injuries

consequent upon a violation of the Fourth Amendment by federal officials”). 

9348 UNITED STATES v. DUENAS
since the origins of the Republic,’ ” id. at 610 (quoting Payton

v. New York, 445 U.S. 573, 601 (1980)), adding that “the

Fourth Amendment does require that police actions in execution of a warrant be related to the objectives of the authorized

intrusion,” id. at 611 (citing Arizona v. Hicks, 480 U.S. 321,

325 (1987)). In Wilson, the warrant made no mention of

media presence or assistance, id. at 606, and “the presence of

reporters inside the home was not related to the objectives of

the authorized intrusion,” id. at 611. The Supreme Court thus

held that “it is a violation of the Fourth Amendment for police

to bring members of the media or other third parties into a

home during the execution of a warrant when the presence of

the third parties in the home was not in aid of the execution

of the warrant.” Id. at 614. 

The government challenges the Duenases’ standing to raise

a Fourth Amendment claim, arguing that the media never

entered any area in which Ray and Lou had a “legitimate

expectation of privacy.” See Rakas v. Illinois, 439 U.S. 128,

143 (1978)). In Katz v. United States, 389 U.S. 347 (1967),

the Supreme Court, reasoning that “the Fourth Amendment

protects people, not places,” concluded that the government

violated Katz’s Fourth Amendment rights by attaching an

eavesdropping device to a public phone booth in which he

was engaged in conversation. Id. at 351. Justice Harlan, concurring, construed the majority opinion as holding that a

Fourth Amendment violation occurs where the government

intrudes upon an individual’s “reasonable expectation of privacy.” Id. at 360-61. Some of our past opinions have mistakenly imported Justice Harlan’s “reasonable expectation of

privacy” test into areas expressly protected by the Fourth

Amendment—the home and the area traditionally treated as

the home, the curtilage to the home. See, e.g., United States

v. Pineda-Moreno, 591 F.3d 1212, 1215 (9th Cir. 2010),

vacated, 132 S. Ct. 1533 (2012); United States v. Magana,

512 F.2d 1169, 1170-71 (9th Cir. 1975). 

[3] In fact, as the Supreme Court recently clarified in

United States v. Jones, 132 S. Ct. 945 (2012), the Katz “exUNITED STATES v. DUENAS 9349
pectation of privacy” test extends the traditional reach of the

Fourth Amendment to areas outside one’s home, such as

phone booths, hotel rooms, homes at which one is an overnight guest, and workplace offices. See, e.g., Katz, 389 U.S.

at 351 (phone booths); Minnesota v. Olson, 495 U.S. 91, 98-

99 (1990) (hotel rooms and overnight guests); O’Connor v.

Ortega, 480 U.S. 709, 718 (1987) (offices). In Jones, the

Court reaffirmed that the home and its curtilage are sacrosanct, and that nothing in Katz requires courts to apply the

reasonable expectation of privacy standard in addition to finding that the subject of the search was “persons, houses,

papers, [or] effects.” 132 S. Ct. at 951. Reasoning that “Katz

did not narrow the Fourth Amendment’s scope,” id., but

instead extended the Fourth Amendment’s protection to nontraditional areas, id. at 952, the Court noted that the Katz test

was “added to, not substituted for, the common-law trespassory test.” Id. (emphasis in original). Whether Ray and Lou

have standing thus turns on the same determination as the

Fourth Amendment claim itself: whether the media entered

the Duenases’ home or its curtilage, or any place in which

they had a reasonable expectation of privacy.

[4] The curtilage of one’s home warrants the same Fourth

Amendment protection as the home itself. Oliver v. United

States, 466 U.S. 170, 180 (1984). “[T]he extent of the curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should

be treated as the home itself.” United States v. Dunn, 480 U.S.

294, 300 (1987) (citing Oliver, 466 U.S. at 180). We consider

four factors in determining whether an area is curtilage: “the

proximity of the area claimed to be curtilage to the home,

whether the area is included within an enclosure surrounding

the home, the nature of the uses to which the area is put, and

the steps taken by the resident to protect the area from observation by people passing by.” Id. at 301. While combining

these factors does not produce “a finely tuned formula that,

when mechanically applied, yields a ‘correct’ answer to all

extent-of-curtilage questions,” the factors are useful in deter9350 UNITED STATES v. DUENAS
mining “the centrally relevant consideration—whether the

area in question is so intimately tied to the home itself that it

should be placed under the home’s ‘umbrella’ of Fourth

Amendment protection.” Id.

[5] The district court found that most of the journalists

were confined to the front yard, which it determined was not

curtilage. It correctly concluded that only the first of the four

Dunn factors suggested that the front yard was curtilage. The

front yard was not enclosed; there was no evidence as to how

the yard was used; nor was there any evidence that the Duenases tried to protect the yard from observation. We therefore

agree with the district court that the front yard was not curtilage, and the presence of the media there did not violate the

Fourth Amendment. 

However, some journalists were escorted beyond the front

yard. Officer Scott Wade escorted journalists to the rear of the

residence to photograph a marijuana patch. The media

described the marijuana patch as “at the end of a nearly 150-

foot jungle trail, amid a forest of ferns and shrubbery.” Chief

of Police Suba took some journalists on a tour of the compound to film the seized stolen property, hoping victims might

come forward to claim their property, but it is unclear from

the record whether Suba led the journalists inside any of the

structures on the property or onto the curtilage.

[6] The district court declined to make an explicit factual

determination as to whether the media entered the curtilage,

but, in finding a Fourth Amendment violation, it focused on

the fact that the police escorted journalists to the jungled area

at the back of the property to photograph a marijuana patch.

The parties do not point to evidence in the record regarding

whether that area meets any of the Dunn criteria. While the

Dunn factors are not strictly applicable to the Duenases’ private jungle compound, there is some evidence suggesting that

the backyard was curtilage: it was adjacent to the four structures, was in a heavily jungled area, and was not visible from

UNITED STATES v. DUENAS 9351
either the main road or the dirt road. See, e.g., United States

v. Romero-Bustamente, 337 F.3d 1104, 1108 (9th Cir. 2003)

(holding that backyard falls within the curtilage); United

States v. Struckman, 603 F.3d 731, 739 (9th Cir. 2010)

(same). However, there is scant evidence as to the uses to

which the backyard was put, the proximity of the marijuana

patch to the Duenases’ shack, and whether it was within an

enclosure surrounding the home. On this record, it is not clear

whether the media entered the Duenases’ curtilage when it

walked through the rear of the property to view the marijuana

patch.6

[7] Although the district court decided that the media’s

presence beyond the front yard was a Fourth Amendment violation, the record does not necessarily support this finding.

However, this lack of clarity is at least partially attributable

to the GPD’s “woefully inadequate” management of the

search scene. Given the district court’s ruling that the evidence was nevertheless non-excludable, and the government’s

responsibility for this murky record, we assume, without

deciding, that a Fourth Amendment violation occurred, and

turn our attention to whether the district court properly held

that the evidence should not be excluded.

6As the district court noted, the police also may have violated the Duenases’ constitutional rights by removing the seized evidence from the

house and structures and placing it in the staging area in the front yard for

the media to photograph. The district court did not expressly rule on this

issue, although it did note that it was “concerned” by the behavior of the

police. While we have not previously considered whether Wilson extends

to this activity, we need not reach the question here, because contraband

does not lie within the express protection of the Fourth Amendment and

the Duenases had no legitimate expectation of privacy in property that did

not belong to them. See Rakas, 439 U.S. at 143 n.12. We are concerned,

as was the district court, that the GPD removed all property from the compound, and that some of that property was likely the Duenases’ “papers

and effects,” given the GPD’s haphazard management of the search. 

9352 UNITED STATES v. DUENAS
B. Exclusionary Rule

[8] Assuming that a Fourth Amendment violation

occurred, we, like the district court, reject the Duenases’ contention that suppression is the appropriate remedy. Because

Wilson was a Bivens action, the Supreme Court was not

required to address the application of the exclusionary rule.

526 U.S. at 608. The Court expressly declined to decide

“whether the exclusionary rule would apply to any evidence

discovered or developed by the media representatives.” Id. at

614 n.2. We, similarly, have not previously decided whether

the exclusionary rule applies to evidence obtained by police

who have violated the Fourth Amendment by allowing the

media to intrude into the location of the search.

[9] A Fourth Amendment violation does not automatically

trigger the exclusionary rule. Rather, the rule applies only

where the benefit of deterrence outweighs the rule’s “ ‘substantial social costs.’ ” Davis v. United States, 131 S. Ct.

2419, 2427 (2011) (quoting United States v. Leon, 468 U.S.

897, 907 (1984)). Application of the exclusionary rule is a

fact-intensive inquiry. See United States v. $186,416.00 in

U.S. Currency, 590 F.3d 942, 950 (9th Cir. 2010) (citation

omitted). “To apply the exclusionary rule to [a] unique set of

facts . . . we must consider the rule’s dual purposes: to deter

similar police misconduct in the future and to preserve the

integrity of the courts.” Id. (citing Dunaway v. New York, 442

U.S. 200, 217-18 (1979)). 

[10] The Eleventh Circuit has weighed the benefits and

costs of applying the exclusionary rule in an analogous context. See United States v. Hendrixson, 234 F.3d 494, 496-97

(11th Cir. 2000). In Hendrixson, police were accompanied by

a television reporter while searching a defendant’s residence

for methamphetamine. Id. at 496. The reporter “arrived after

the search was in progress and did not move, touch or handle

anything in the residence.” Id. Although the Eleventh Circuit

found that the media’s presence violated the Fourth AmendUNITED STATES v. DUENAS 9353
ment, it declined to suppress the evidence found during the

search. Id. The court emphasized that the purpose of the warrant clause of the Fourth Amendment is to prevent the police

from conducting “general searches” that go beyond the scope

of the warrant. Id. at 497 (citing Maryland v. Garrison, 480

U.S. 79, 84 (1987)). In Hendrixson, the police did not exceed

the parameters of the warrant, because the “media presence

did not expand the scope of the search,” the search was “actually carried out by the police themselves,” and there was “no

allegation that the reporter aided the search; he did not touch,

move, or handle anything in the residence.” Id. at 497. The

court suggested that the deterrence goals of the exclusionary

rule in such circumstances could be better served through 42

U.S.C. § 1983 or Bivens actions. Id. at 497 n.4. 

[11] We agree with the Eleventh Circuit that where the

media were present, but did not discover or develop any of the

evidence later used at trial, the evidence need not be excluded.

Here, the media did not expand the scope of the search

beyond the warrant’s dictates; nor did the media assist the

police, or touch, move, handle or taint the admitted evidence

in any way. Because the GPD complied with the terms of the

warrant and the media did not disturb any evidence later admitted,7

 the more appropriate remedy here, as the Eleventh Circuit concluded in Hendrixson, is a Bivens or a 42 U.S.C.

§ 1983 action.

V. Sufficiency of the Evidence Supporting

Lou’s Conviction

[12] Lou contends that the evidence at trial was insuffi7We note that the stolen property seized by the GPD and staged in the

front lawn was not introduced at trial by the government. The government’s exhibit list was limited to the guns, drugs, drug paraphernalia, drug

records, valuables, and related photographs and diagrams seized from the

shack. In a sense, then, the prosecution self-executed the exclusionary rule

with respect to the most questionable evidence. 

9354 UNITED STATES v. DUENAS
cient to show that she conspired to distribute (Count One) or

possessed with intent to distribute (Count Two) more than 50

grams of methamphetamine. Evidence is sufficient to sustain

a conviction if, when it is construed in the light most favorable to the prosecution, “any rational trier of fact could have

found the essential elements of the crime beyond a reasonable

doubt.” United States v. Nevils, 598 F.3d 1158, 1161 (9th Cir.

2010) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307,

319 (1979)) (emphasis in original). We conclude that the district court correctly denied Lou’s Rule 29 motion.

A. The Possession Count

To establish that Lou was guilty on Count One, the government was required to prove that Lou: (1) knowingly possessed

over 50 grams of methamphetamine; and (2) intended to

deliver it to another person. See United States v. DiazCardenas, 351 F.3d 404, 407 (9th Cir. 2003). Lou concedes

that the evidence, including her written statement, was sufficient to show that she possessed and intended to distribute

some methamphetamine, but she argues that the evidence was

insufficient to support a finding as to quantity. We disagree.

Viewed in the light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt

that Lou constructively possessed and intended to distribute at

least the 74 grams of methamphetamine found in the safe in

her bedroom.

Possession of a controlled substance may be either actual

or constructive. See United States v. Disla, 805 F.2d 1340,

1350 (9th Cir. 1986). An individual constructively possesses

drugs when he or she exercises “dominion and control” over

them. Id. Constructive possession may be established by

direct or circumstantial evidence that the defendant had the

power to dispose of the drug, the ability to produce the drug,

or that the defendant had the “ ‘exclusive control or dominion

over property on which contraband narcotics are found.’ ” Id.

(quoting Arellanes v. United States, 302 F.2d 603, 606 (9th

UNITED STATES v. DUENAS 9355
Cir. 1962)). It may also be demonstrated “by a defendant’s

participation in a joint venture, by which he shares authority

with others to exercise dominion and control over the drug.”

United States v. Ramos-Rascon, 8 F.3d 704, 711 (9th Cir.

1993).

[13] “Mere proximity to contraband, presence on property

where it is found, and association with a person or persons

having control of it are all insufficient to establish constructive possession.” United States v. Rodriguez, 761 F.2d 1339,

1341 (9th Cir. 1985). For instance, the mere fact that a defendant is a joint occupant of a residence at which contraband is

found is insufficient to establish constructive possession by

any particular occupant. See, e.g., Delgado v. United States,

327 F.2d 641, 642 (9th Cir. 1964) (marijuana found in nightstand in defendant couple’s shared bedroom did not, standing

alone, establish that either individual had possession). In cases

of shared occupancy, the government must introduce “some

evidence tying the defendant to the particular contraband.”

United States v. Barajas-Montiel, 185 F.3d 947, 955 (9th Cir.

1999).

[14] Here, ample evidence tied Lou to the 74 grams of

methamphetamine in the safe in her bedroom. Lou admitted

to Officer Piolo and Special Agent Jong that she used

methamphetamine and trafficked in it in exchange for stolen

goods. She was at the residence during the search, and the

room officers designated as “Lou room/Ray’s room,” where

the safe was found at the foot of the bed, was actually Lou’s

and Ray’s bedroom, in which both were found sleeping on the

morning of the search. Many of Lou’s personal effects were

found in that room, including wedding pictures of Ray and

Lou and their W-2 forms. From this evidence, the jury could

reasonably infer that Lou exercised dominion and control over

the bedroom and its contents. 

Lou’s argument that she did not have access to the safe and

was unaware of its contents is belied by the evidence. Officer

9356 UNITED STATES v. DUENAS
Santos and Special Agent Jong testified that the safe was

unlocked.8 In addition to the 74 grams in the safe, smaller

pouches of methamphetamine and drug paraphernalia were

scattered about the bedroom. Police found three drug ledgers

in the room, reflecting trafficking involving thousands of dollars. Because Lou admitted that she trafficked in methamphetamine, and her shared bedroom was littered with obvious

evidence of a drug dealing operation, a rational trier of fact

could conclude that Lou was aware of and exercised dominion and control over the drugs in the room. See United States

v. Hernandez, 876 F.2d 774, 778 (9th Cir. 1989) (fact that

defendant resided at co-defendant’s apartment during the

week and kept clothes there “raises an inference of constructive possession” of drugs kept in apartment); United States v.

Castillo, 866 F.2d 1071, 1088 (9th Cir. 1988) (“[E]vidence

that cocaine was found in plain view, coupled with the evidence of [defendant’s] physical control of the bedroom, was

sufficient to demonstrate knowledge and his dominion and

control of all the narcotics found in the bedroom.”). 

The conclusion that Lou possessed and intended to distribute over 50 grams of methamphetamine is bolstered by Lou’s

admission to Officer Piolo that she trafficked in methamphetamine because it was the only way she could make a living.

That Lou depended on methamphetamine deals as her sole

source of income is strong evidence that she trafficked in

quantities over 50 grams.

8Lou argues that evidence was presented at trial suggesting that the safe

was locked, and thus unavailable to her. However, the only evidence to

that effect was Lou’s own statement, made to Special Agent Sedberry, that

she did not have access to or knowledge of the contents of the safe.

“[W]hen ‘faced with a record of historical facts that supports conflicting

inferences’ a reviewing court ‘must presume . . . that the trier of fact

resolved any such conflicts in favor of the prosecution, and must defer to

that resolution.’ ” Nevils, 598 F.3d at 1164 (quoting Jackson, 443 U.S. at

326). Viewed in the light most favorable to the prosecution, the evidence

supports an inference that the safe was closed but unlocked. 

UNITED STATES v. DUENAS 9357
[15] Therefore, the district court did not err in concluding

that a rational trier of fact could find that Lou had dominion

and control over the bedroom and thus “possessed” its contents, including the 74 grams of methamphetamine in the safe.

B. The Conspiracy Count

[16] “To establish a drug conspiracy, the government must

prove (1) an agreement to accomplish an illegal objective; and

(2) the intent to commit the underlying offense.” United

States v. Reed, 575 F.3d 900, 923 (9th Cir. 2009) (quoting

United States v. Iriarte–Ortega, 113 F.3d 1022, 1024 (9th Cir.

1997), amended by 127 F.3d 1200 (9th Cir. 1997)). Lou

argues that there was insufficient evidence of her agreement

to possess or distribute methamphetamine. She asserts that the

government never proved that she possessed more than one

gram of methamphetamine at a time, and thus never proved

that she agreed to sell more than 50 grams. 

[17] Agreement to commit a crime exists where all the parties work together “with a single design for the accomplishment of a common purpose.” Marino v. United States, 91 F.2d

691, 694 (9th Cir. 1937) (quoting Fowler v. United States,

273 F. 15, 19 (9th Cir. 1921)). The government need not

prove an express or formal agreement; instead, “agreement

may be inferred from conduct.” United States v. Mincoff, 574

F.3d 1186, 1192 (9th Cir. 2009) (quoting United States v.

Hegwood, 977 F.2d 492, 497 (9th Cir. 1992) (citation omitted)). Agreement may also be proved by circumstantial evidence. See United States v. Chong, 419 F.3d 1076, 1079 (9th

Cir. 2005) (citing United States v. Pemberton, 853 F.2d 730,

733 (9th Cir. 1988)). 

[18] Here, the evidence was such that a rational juror could

find that Lou worked with at least one other individual “with

a single design for the accomplishment of a common purpose.” Marino, 91 F.2d at 694. Lou’s written statement provides the most direct evidence of an agreement. After naming

9358 UNITED STATES v. DUENAS
her supplier, Lou wrote, “My husband and I we both aware

of what’s going on, that the item are stolen, we exchange

dope (ice) & cash to merchandise.” Lou’s admission that “we”

exchange methamphetamine for merchandise more than supports a finding that Lou and Ray were working in concert to

distribute the drugs.

At trial, Officer Piolo testified that Lou admitted to distributing methamphetamine in exchange for stolen goods, and

that she told him that she did so because it was her only way

of making a living. Piolo and Special Agent Jong testified that

Lou gave them the name of her supplier and the name of an

individual who brought stolen items to the property. Piolo testified that Lou told him that her mother-in-law “may have

been suspicious of their activity, but [was] not involved in it,

they just tried and hide it from her.” (emphasis added). Lou’s

use of the words “their” and “they” is evidence that she was

acting in concert with, and thus agreed with, at least one other

individual.

Moreover, 74 grams of methamphetamine were found in an

unlocked safe at the foot of the bed that Lou shared with Ray.

A rational juror could conclude that neither Ray nor Lou

would have left such a large quantity of drugs in an unlocked

safe in a room they both used were they not working together

to distribute the drugs. 

[19] Therefore, the district court did not err in concluding

that a rational trier of fact could find beyond a reasonable

doubt that Lou and Ray agreed to distribute over 50 grams of

methamphetamine.

VI. Officer Smith’s Former Testimony

However, we are compelled to conclude that the district

court should not have admitted Officer Smith’s suppression

hearing testimony following his unfortunate demise. The district court admitted the testimony as “former testimony” under

UNITED STATES v. DUENAS 9359
Federal Rule of Evidence 804(b)(1), reasoning that Ray “had

a meaningful opportunity to cross-examine Officer Smith”

about the “context and details” of Officer Smith’s testimony

at the suppression hearing, but made “a tactical decision” not

to do so. We disagree, because the district court failed to compare Ray’s “fundamental objectives” at each hearing to find

a similar motive under Rule 804(b)(1).9

[20] “Former testimony” is not hearsay if a declarant is

unavailable. “Former testimony” is testimony that:

(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and

(B) is now offered against a party who had—or, in

a civil case, whose predecessor in interest had—an

opportunity and similar motive to develop it by

direct, cross-, or redirect examination.

Fed. R. Evid. 804(b)(1). Smith was “unavailable” because he

was deceased, and his former testimony was given during the

pre-trial suppression hearing. See Fed. R. Evid. 804(a)(4).

Thus, the critical question is whether Ray had the “opportunity and similar motive” to develop Officer Smith’s testimony

by direct, cross-, or redirect examination at the suppression

hearing as he would have had at trial. See United States v.

Salerno, 505 U.S. 317, 321 (1992) (holding that former testimony may not be introduced under Rule 804(b)(1) without a

showing of “similar motive”).10 Because Ray’s motive at the

9Ray moved to suppress the written and oral statements he gave to Officer Smith on the alternative ground that they were obtained in violation

of the Fifth Amendment. We do not reach this argument given our conclusion that the statements were inadmissible under Rule 804(b)(1). 

10Ray does not argue that the admission of Smith’s testimony violated

his Sixth Amendment right to confrontation. Where the requirements of

Rule 804(b)(1) are met, we generally conclude that the Confrontation

9360 UNITED STATES v. DUENAS
suppression hearing was solely to demonstrate that his statements were involuntary and obtained in violation of Miranda,

and thus inadmissible, his motive for cross-examining Officer

Smith at trial, to challenge the substance of the statements as

opposed to the circumstances in which they were given, was

substantially dissimilar.

In Salerno, the only Supreme Court decision to address the

“similar motive” requirement, the Court clarified that “similar

motive” is a necessary element of Rule 804(b)(1). Id. at 321.

However, it did not explain how courts should determine

whether a party’s motives are “similar.” Id. at 325. Justice

Blackmun, concurring, provided some guidance by noting

that “similar motive” does not mean “identical motive,” and

that the “similar motive” analysis is “inherently a factual

inquiry” based on “the similarity of the underlying issues and

on the context of the . . . questioning.” Id. at 326 (emphasis

in original). 

We have twice addressed whether, under Rule 804(b)(1),

suppression hearing testimony is admissible at a later proceeding. See United States v. Geiger, 263 F.3d 1034 (9th Cir.

2001); United States v. Poland, 659 F.2d 884 (9th Cir. 1981)

(per curiam). The government argues that these cases dictate

the outcome of our “similar motive” analysis. We find Poland

and Geiger to be factually inapposite, however, and conclude

that neither decision controls our “inherently . . . factual

inquiry.” Salerno, 505 U.S. at 326 (emphasis omitted).

In Poland, an eye-witness identified the defendant in a lineup. 659 F.2d at 896. A suppression hearing, at which the

Clause is not violated. See United States v. Yida, 498 F.3d 945, 950 (9th

Cir. 2007) (“Rule 804(b)(1) implements the command of the Sixth

Amendment’s Confrontation Clause.”); see also United States v. Salim,

855 F.2d 944, 955 (2d Cir. 1988) (“[S]tatements that are admitted pursuant

to [the Rule 804(b)(1)] exception commonly have been found to satisfy

the confrontation clause”). 

UNITED STATES v. DUENAS 9361
defense cross-examined the witness, was held to determine

whether the line-up was impermissibly suggestive. Id. at 895-

96. Denying the motion to suppress, the district court concluded that the lineup was “fair and not unjust.” Id. at 895.

The witness died before trial, and the district court granted the

prosecution’s motion to admit a transcript of the suppression

hearing testimony at trial. Id. at 895-896. On appeal, the

defendant argued that he would have been motivated at trial

to test the witness’s reliability by cross-examining him about

his eyesight, whether he was intoxicated, and the distance

from which he observed the defendant, inquiries that he was

not motivated to make at the suppression hearing. Id. at 896.

We rejected this argument and concluded that the “similar

motive” requirement was satisfied, noting that pretrial identifications are admissible if they are reliable, even if the identification procedure is unduly suggestive. Id. Thus the

defendant’s motive in cross-examining the witness at both the

suppression hearing and trial was the same: to cast doubt on

the witness’s reliability with questions about his eyesight,

intoxication, and the like. Id. 

In Geiger, the question was not whether suppression hearing testimony was admissible at trial, but rather whether an

officer’s testimony at a state suppression hearing was admissible at a subsequent federal suppression hearing. 263 F.3d at

1038. The defendant in Geiger admitted in a taped confession

taken by Officer Churchill that he had placed a bomb in the

victim’s truck. Id. at 1036. Before Geiger was indicted in federal court, the state of Alaska charged him with first degree

murder. Id. at 1038. Geiger successfully sought suppression

of the recorded confession in state court, because the arresting

officers, including Officer Churchill, had failed to comply

with Alaska’s custodial interrogation requirements. Id. Officer

Churchill, who testified at the state suppression hearing, died

before the federal suppression hearing. The magistrate judge

admitted his testimony at the federal hearing under Rule

804(b)(1). Id. Geiger contended that the court erred in admitting the former testimony, because the state hearing focused

9362 UNITED STATES v. DUENAS
on Alaska’s custodial interrogation requirements, while the

federal suppression hearing concerned the sufficiency of his

Miranda warning, the voluntariness of his statement, and his

request for counsel. Id. We rejected Geiger’s argument, reasoning that the similarity of his state and federal motions to

suppress belied his claim of dissimilar motives: “Both

motions to suppress presented virtually the same issues:

whether Geiger’s taped confession was coerced and involuntary; whether Geiger had been properly Mirandized; whether

the arrest was pretextual; and whether Geiger had been

unlawfully detained.” Id. Geiger also introduced the exact

same detailed affidavit in both hearings. Id. at 1038-39. Moreover, Churchill’s testimony at the state hearing addressed

issues pertinent to the federal hearing, such as his role in the

interrogation, whether Geiger asked for an attorney or refused

to speak, whether he coerced Geiger into confessing, and

whether he threatened Geiger’s family. Id. at 1039. Because

the legal and factual issues in both hearings were “substantially similar,” we concluded that Geiger had a “similar

motive” at both hearings. Id. 

We have also addressed the “similar motive” prong in other

contexts. In United States v. McFall, 558 F.3d 951 (9th Cir.

2009), we examined whether exculpatory grand jury testimony is admissible at trial against the prosecution, an issue on

which the courts of appeals are split. Id. at 962. The First and

Second Circuits examine whether the government “t[ook] the

same side on the same issue” and whether it had the same

degree of interest to prevail at each proceeding. Id. (citing

United States v. DiNapoli, 8 F.3d 909 (2d Cir. 1993) (en

banc); United States v. Omar, 104 F.3d 519, 522-24 (1st Cir.

1997)). In McFall, we rejected this “fine-grained” method and

followed the D.C. and Sixth Circuits in comparing motives at

a “high level of generality.” Id. (citing United States v. Miller,

904 F.2d 65, 68 (D.C. Cir. 1990)). We noted that the government need not have the same “intensity” of motivation at each

proceeding, because the plain language of Rule 804(b)(1)

requires similar, but not identical, motivation. Id. at 963. 

UNITED STATES v. DUENAS 9363
McFall was charged with conspiracy to commit extortion.

Id. at 955. McFall’s co-conspirator, Sawyer, at that point

uncharged, appeared before a grand jury and offered a firstperson account of key events that contradicted the testimony

of the government’s primary witness and corroborated

McFall’s version of the events. Id. at 961. Sawyer died before

trial, and McFall sought to introduce a transcript of the exculpatory grand jury testimony under Rule 804(b)(1). Id. The

district court did not admit the transcript, concluding that the

government’s motive at trial was “completely different” than

its motive before the grand jury because Sawyer was not a

suspect at the time of his testimony and because the grand

jury was a fact-finding investigation, not an adversarial proceeding. Id. at 962. We held that the district court “erred in

concluding that the government’s respective motives were

‘completely different,’ and the exclusion of Sawyer’s grand

jury testimony as hear-say amounted to an abuse of discretion.” Id. at 963. Although we noted that the government’s

incentive to develop incriminating testimony before the grand

jury was “likely not as intense as it would have been at trial,”

we nevertheless held that the government’s “fundamental

objective” was the same at each proceeding. Id. That “fundamental objective” was “to draw out testimony that would support its theory that McFall conspired with Sawyer to commit

extortion—the same motive it possessed at trial.” Id.

Finally, we recently had occasion to address the issue of

“similar motive” in the context of an SEC investigation of a

CFO involved in a stock option back-dating scandal. See Sec.

& Exch. Comm’n v. Jasper, 678 F.3d 1116 (9th Cir. 2012).

The SEC alleged that Jasper engaged in an illegal scheme to

back-date stock options granted to employees and directors.

Id. at 1119. The company’s former treasurer, Ruehle, made

exculpatory statements in sworn testimony taken in connection with the SEC’s fact-gathering investigation. Id. at 1128.

Because Ruehle was unavailable at the time of trial, Jasper

attempted to introduce his testimony under Rule 804(b)(1). Id.

The district court found the testimony inadmissible, conclud9364 UNITED STATES v. DUENAS
ing that the SEC had a different motive at the accusatory stage

of the proceedings than it did during the investigatory stage.

Id. We affirmed, because the district court did not abuse its

discretion based on the inherently different motives involved

in an early investigation, at which “open-ended questions are

typically asked without expectation the witness will be needed

at trial,” and a cross-examination of an adverse witness. Id. at

1128-29.

As the foregoing cases demonstrate, we have not developed

a bright-line test for determining similarity of motive. Nor

should we. As Justice Blackmun instructed, the “similar

motive” analysis is “inherently a factual inquiry” based on

“the similarity of the underlying issues and on the context of

the . . . questioning.” Salerno, 505 U.S. at 326 (emphasis

omitted). Here we are faced with a unique set of facts that

does not fit squarely within the ambit of any of our aforementioned precedent. 

The transcript of Ray’s suppression hearing demonstrates

that his counsel did not have a similar motive in questioning

Officer Smith at the suppression hearing as at trial. Ray’s

“fundamental objective,” McFall, 558 F.3d at 963, in questioning Officer Smith at the suppression hearing was to elicit

testimony to prove that his statements to Smith were involuntary and obtained in violation of Miranda. This was Ray’s

sole purpose in examining Smith, a point Ray’s counsel made

emphatically when the prosecution veered into the substance

of the statement and sought details about Ray’s meetings with

his drug source. Ray’s counsel objected to this inquiry as

“having no relevance or bearing on” the only question at issue

—whether Ray voluntarily spoke with Smith. After the district court overruled Ray’s objection, Ray’s counsel offered to

enter the written statement into evidence for purposes of the

suppression hearing, rather than to permit the prosecutor to go

into detail about the substance of the statement. The prosecutor acquiesced to the defense’s limitation on its inquiry and

UNITED STATES v. DUENAS 9365
simply asked Officer Smith to identify Ray’s statement before

introducing it into evidence.

During the cross-examination of Officer Smith at the suppression hearing, Ray’s counsel inquired only about the circumstances under which Ray was arrested and made the

statement. Counsel asked about the duration of Smith’s interview with Ray, whether Ray was under the influence of any

drugs or medication at the time of the statement, whether he

had consumed alcohol the night before giving the statement,

whether Smith offered leniency if Ray cooperated in finding

an alleged associate, and whether Smith threatened Ray. The

record of the suppression hearing plainly shows that Ray’s

motive at that proceeding was to question Officer Smith about

circumstances bearing on the voluntariness of the statement,

and not to delve into the contents of the statement.

[21] Ray’s written motion to suppress confirms that his

motive was confined to demonstrating involuntariness and a

Miranda violation. See Geiger, 263 F.3d at 1038 (comparing

defendant’s state and federal motions to dismiss to determine

similarity of motive). The motion argues only that Ray was

improperly Mirandized and that his statement was involuntary. The motion makes no reference to the substance of

Ray’s statement.

[22] Ray’s fundamental objective at the suppression hearing was not the same as his motive would have been had

Smith testified at trial. The issue at trial was whether the evidence proved Ray’s guilt beyond a reasonable doubt, not the

circumstances of his confession. By the time of trial, neither

voluntariness nor the alleged Miranda violation was even at

issue. Rather, Ray’s objective at trial would have been to vigorously challenge Officer Smith on the details of the oral and

written statements, to cast doubt on his credibility and on the

reliability and completeness of his version of Ray’s statement.

For instance, Ray’s written statement says that “[f]irearms

found on property were traded with meth.” The statement

9366 UNITED STATES v. DUENAS
does not indicate which particular firearms were acquired via

methamphetamine trafficking. Similarly, although the statement makes clear that Ray traded methamphetamine for

stolen items, it never refers to a specific quantity of drugs.

Ray’s counsel also would have had a motive to question

Officer Smith about the substance of Ray’s oral statements to

Smith. In Smith’s suppression hearing testimony, Smith

“summarize[d]” Ray’s oral statements. He testified that Ray

admitted to trading methamphetamine for jewelry, tools, and

recreational vehicles, and named his source of methamphetamine. Smith also testified to a purported admission that Ray

knew the items he was receiving were stolen. Had Smith testified at trial, Ray’s counsel certainly would have been motivated to develop more than a “summary” of Ray’s oral

statement. Counsel would have had a strong motive to cast

doubt on Officer Smith’s summary, by determining the specific questions that Smith asked Ray, testing the accuracy of

Smith’s recollection, and seeking to learn Ray’s full responses

to those questions. Smith’s account of Ray’s oral statement

makes no reference to the quantity of methamphetamine being

sold or exchanged, nor to the value of the stolen items

received in exchange; a thorough cross-examination of Smith

regarding his interview with Ray might have drawn out such

facts. Ray’s counsel also would have been motivated on

cross-examination to reveal inconsistencies between Ray’s

written statement and Smith’s version of Ray’s oral statement.

These motives stand in stark contrast to Ray’s motive at the

suppression hearing, which was limited to developing testimony concerning voluntariness and whether Ray was properly Mirandized.

We therefore conclude that the district court’s “similar

motive” determination must be reversed. The district court

failed to properly compare Ray’s “fundamental objective” at

the suppression hearing to his motive at trial, and instead

focused on Ray’s opportunity to cross-examine Officer Smith.

The district court noted that the government had a motive to

UNITED STATES v. DUENAS 9367
explore the details of Ray’s statements and, from that, apparently inferred that Ray also had a motive to delve into the substance of the statements. But the government’s only purpose

in questioning Officer Smith about the details of the statement

was to demonstrate voluntariness, under the theory that “[t]he

detail that a person goes into is an indicia of how open, how

comfortable they feel with the person that they’re talking to.”

Thus, only the amount of detail—and not the accuracy of

those details—was relevant to the suppression motion, and

even after the district court permitted the government to

explore the details of the statement, Ray continued to lack any

motive to probe Officer Smith about the accuracy of the statement or about Smith’s recollection. 

[23] The extent of the district court’s comparison of Ray’s

motives is contained in its conclusory statement that “[a]

purely tactical decision not to develop particular testimony

despite the same issue and level of interest at each proceeding

does not constitute a lack of opportunity or a dissimilar

motive for purposes of Rule 804(b)(1).” This is of course circular, in that it predicates its conclusion that Ray’s counsel’s

decision was tactical on the unfounded assumption that the

same issue and level of interest existed at each proceeding.

Because it failed to directly compare Ray’s “fundamental

objectives” at trial and at the suppression hearing, the district

court abused its discretion by admitting Smith’s testimony.

See McFall, 558 F.3d at 963 (district court’s decision to admit

or exclude evidence under Rule 804(b)(1) is reviewed for

abuse of discretion).

Our conclusion that the district court should not have

admitted Officer Smith’s testimony does not end our inquiry.

We must also determine whether the error was harmless. Generally, a nonconstitutional error at trial does not result in

reversal if the government shows that the error was more

probably than not harmless.11 See United States v. Vgeri, 51

11Because the admission of Smith’s testimony arguably violated Ray’s

Confrontation Clause rights, it may be appropriate to apply the “harmless

9368 UNITED STATES v. DUENAS
F.3d 876, 882 (9th Cir. 1995). To meet that standard, “the

government must ‘show a fair assurance that the verdict was

not substantially swayed by the error.’ ” United States v.

Chase, 340 F.3d 978, 993 (9th Cir. 2003) (en banc) (quoting

United States v. Bauer, 132 F.3d 504, 510 (9th Cir. 1997)).

[24] The parties did not address the prejudicial effect of

the district court’s admission of Smith’s testimony, but we

have no difficulty concluding that the error was not harmless.

As the government concedes, it would not have been able to

introduce Ray’s written statement at trial without Smith’s testimony, because Smith was the only officer present when Ray

executed the written statement. Aside from Ray’s written and

oral statements, both of which were admitted through Smith,

there was no evidence directly tying him to the drugs, firearms, and stolen property in the compound. Nor did Lou’s

statement link Ray to the drugs, firearms, and stolen items, as

it was redacted to comply with Bruton, and the district court

instructed the jury that it could not consider Lou’s statement

against Ray when weighing his guilt or innocence. 

Ray was one of five people living on the property; his confession was the critical piece of evidence linking him to the

contraband found on the compound. In the absence of Ray’s

confession that he trafficked in methamphetamine, it would

have been plausible that the drugs were Lou’s alone. See

United States v. Barajas-Montiel, 185 F.3d 947, 956 (9th Cir.

1999) (in cases of shared occupancy, government must introbeyond a reasonable doubt” standard of Chapman v. California, 386 U.S.

18, 24 (1967). See, e.g., United States v. Gillam, 167 F.3d 1273, 1277 (9th

Cir. 1999) (“Once we find a [Confrontation Clause] error, the prosecution

has the burden of showing that the error was harmless beyond a reasonable

doubt.”). We need not determine which standard applies here. Because we

conclude that the admission of Smith’s statement was not harmless under

the less stringent nonconstitutional standard, it follows that the government failed to show that the error was harmless beyond a reasonable

doubt. 

UNITED STATES v. DUENAS 9369
duce “some evidence tying the defendant to the particular

contraband”). Although there was circumstantial evidence

connecting Ray to the drugs and guns, such as the W-2 forms,

wedding photos, and other personal documents found in the

bedroom, Ray’s confession was by far the most compelling

and vital evidence. The government admitted as much at the

hearing on the motion to introduce Smith’s testimony, when

it stated, “of course it’s crucial to our case because it is a confession.”

[25] The prosecutor’s closing argument amply illustrates

just why its case against Ray would have unraveled without

the confessions. After briefly explaining the nature of the

charges against Ray and Lou, the prosecutor told the jury:

“Go to the evidence in this case. The crux of the case against

Raymond Duenas is the confession. In fact, two confessions.”

(emphasis added). The prosecutor described the circumstances surrounding Ray’s confession in some detail, and then

argued to the jury, “Now you’ve got these confessions, both

orally and in writing. Should you rely on them[?]. Absolutely.

Because they are corroborated by what was found in their

premises.” The government viewed the totality of the other

evidence, which did not directly link Ray to the drugs, as evidence that corroborated Ray’s confessions, not as evidence

sufficient to sustain Ray’s conviction. The government reiterated this point once more toward the end of its argument, after

recapping the circumstantial evidence: “In short, everything

corroborates their confession.” Because the government chose

to make the confessions the centerpiece of its case, we are

compelled to conclude that the erroneous admission of Officer

Smith’s testimony was not harmless. While it may have been

possible for a jury to convict Ray on the basis of the circumstantial evidence alone, the government has failed to “ ‘show

a fair assurance that the verdict was not substantially swayed

by the error.’ ” Chase, 340 F.3d at 993 (quoting Bauer, 132

F.3d at 510). We therefore hold that the error was not harmless.

9370 UNITED STATES v. DUENAS
VII.

[26] The district court properly denied Ray’s and Lou’s

motion to suppress the physical evidence seized at the house.

Although the presence of the media during the search may

have violated the Fourth Amendment, the district court properly declined to exclude the evidence. The exclusionary rule

does not apply where the presence of the media does not

expand the scope of or interfere with the execution of the

search. The evidence sufficiently demonstrated that the materials found in “Lou room/Ray’s room” were under Lou’s

dominion and control, and thus there was sufficient evidence

to support Lou’s convictions. The district court therefore did

not err in denying Lou’s Rule 29 motion for a judgment of

acquittal. However, because Ray did not have a “similar

motive” to cross-examine Officer Frankie Smith at the suppression hearing as at the trial, the district court erred in

admitting Officer Smith’s suppression-hearing testimony into

evidence. Ray’s conviction must therefore be reversed. We do

not address his arguments concerning the voluntariness of his

statements or the sufficiency of the evidence. We vacate

Ray’s sentence and reverse Ray’s conviction, and affirm

Lou’s conviction.

No. 09-10492: VACATED and REVERSED.

No. 09-10496: AFFIRMED.

UNITED STATES v. DUENAS 9371