FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ALFONSO TORRES,

Defendant-Appellant.

No. 13-50553

D.C. No.

3:12-cr-04081-JAH-1

OPINION

Appeal from the United States District Court

for the Southern District of California

John A. Houston, District Judge, Presiding

Argued and Submitted

March 5, 2015—Pasadena, California

Filed July 22, 2015

Before: Michael R. Murphy,

* Ronald M. Gould,

and Richard C. Tallman, Circuit Judges.

Opinion by Judge Tallman

* The Honorable Michael R. Murphy, Senior Circuit Judge for the U.S.

Court of Appeals for the Tenth Circuit, sitting by designation.
2 UNITED STATES V. TORRES

SUMMARY**

Criminal Law

The panel affirmed a conviction for knowingly

transporting cocaine across the United States-Mexico border

concealed in a specially constructed compartment of the

defendant’s pickup truck.

The panel held that while some questions may constitute

non-hearsay, where the declarant intends the question to

communicate an implied assertion and the proponent offers

it for this intended message, the question falls within the

definition of hearsay. The panel held that the district court

therefore properly excluded as hearsay the defendant’s

testimony about requests made by his friend, whom the

defendant claimed was manipulating him into unknowingly

carrying drugs across the border by asking him for favors

running errands into San Diego.

The panel held that even if the district court erred in

sustaining the hearsay objection, the exclusion did not

amount to constitutional error, and that exclusion of the

testimony about the friend’s requests would also have been

harmless under the non-constitutional error standard.

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

been prepared by court staff for the convenience of the reader.
UNITED STATES V. TORRES 3

COUNSEL

Devin Burstein (argued), Warren & Burstein, San Diego,

California, for Defendant-Appellant.

Kyle W. Hoffman (argued), Assistant United States Attorney;

Laura E. Duffy, United States Attorney; Bruce R. Castetter,

Assistant United States Attorney, Chief Appellate Section,

Criminal Division, San Diego, California, for PlaintiffAppellee.

OPINION

TALLMAN, Circuit Judge:

Alfonso Torres appeals his conviction for knowingly

transporting seventy-three kilograms of cocaine across the

United States-Mexico border concealed in a specially

constructed compartment of his pickup truck. See 21 U.S.C.

§§ 952, 960. At his first trial, which ended in a hung jury, the

district court permitted Torres to testify that his friend in

Tijuana, Fernando Griese, borrowed his truck on several

occasions. During this time, Torres alleged the modifications

and concealment could have been made to his truck without

his knowledge. On retrial, Torres attempted to testify about

other requests made to him by Griese, who Torres claimed

was manipulating him into unknowingly carrying drugs

across the border by asking him for favors running errands in

San Diego. The district court, however, precluded this line of

questioning as hearsay and irrelevant.
4 UNITED STATES V. TORRES

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

that the district court properly excluded Torres’s “favors”

testimony as hearsay because—although some questions and

inquiries may constitute non-hearsay—where the declarant

intends the question to communicate an implied assertion and

the proponent offers it for this intended message, the question

falls within the hearsay definition. But even if the exclusion

was error, we find “it is more probable than not that the error

did not materially affect the verdict.” United States v.

Seschillie, 310 F.3d 1208, 1214 (9th Cir. 2002). Thus, we

affirm.

I

A

On August 14, 2012, Alfonso Torres drove his Dodge

Ram pickup truck through the Otay Mesa, California, Port of

Entry from Mexico into the United States using the Secure

Electronic Network for Travelers Rapid Inspection 

(“SENTRI”) lane. A SENTRI card holder is allowed to use

special entry lanes reserved for pre-screened, trusted

travelers. Manning the SENTRI lane that day, Customs and

Border Protection (“CBP”) Officer Rodolfo Sanchez

inspected Torres’s documents and returned them; Torres

paused, gripped the steering wheel, and then hit the gas. The

manner in which Torres paused and stared at him seemed

abnormal to Officer Sanchez; and as Torres drove away,

Officer Sanchez noticed a space discrepancy between the

pickup’s bed and the chassis underneath the tailgate door. 

This prompted Officer Sanchez to enter a “forced secondary

referral lookout” on Torres’s truck in the CBP computer to

alert inspectors the next time he crossed.
UNITED STATES V. TORRES 5

Two days later, on August 16, 2012, Torres once again

drove through the Otay Mesa Port of Entry. Based on the

computer alert, he was referred to secondary inspection for

closer examination, including an x-ray of his truck. The x-ray

produced a “no scan” as a result of Torres stopping only

briefly during the scan. CBP officers then instructed Torres

to park in the secondary lot for a manual search. Moments

later, CBP Officer Benjamin Joseph approached Torres and

asked him to turn off the ignition. Officer Joseph testified

that as Torres handed over his keys, his hands were shaking.

In secondary, a drug dog alerted to Torres’s truck and,

after further inspection, officers found a hole and strings

leading to packages underneath the truck bed. Because the

hole was not big enough to extract the packages, the officers

first attempted to pull out the drugs using a crow bar. When

this failed, they lifted the truck bed from the chassis and

removed an access panel. Still unable to remove all the

parcels, CBP officers then instructed a mechanic to cut

another access panel. It took CBP officers about two hours

to access the compartment. Ultimately, seventy-three

kilograms of cocaine were recovered from the well-hidden

compartment in Torres’s truck.1Installation of the

compartment had increased the space between the bottom of

the truck bed and the chassis of the truck, which Officer

Sanchez had noticed two days earlier. The government’s auto

expert testified that accessing the cocaine bricks in the hidden

compartment required either heavy machinery, such as a car

lift, or three to four people to lift the truck bed off the chassis.

1 One officer testified that eighty-eight kilograms of cocaine were found

in the truck, but both the Government and Torres agreed it was seventythree kilograms in their closing arguments.
6 UNITED STATES V. TORRES

During Torres’s post-arrest interview, he insisted that he

had no knowledge of the drugs. Torres stated that he had

taken his truck to a mechanic in Tijuana a few months prior

to his arrest where modifications could have been made

without his knowledge.

B

Torres’s first trial began on April 9, 2013, but ended in a

hung jury. At the first trial, Torres testified that he had left

his truck with the mechanic in Tijuana for a month. The

mechanic had botched the paint job and then offered to buy

the truck from Torres. Torres also testified that he had loaned

the truck to his friend, Fernando Griese (“Fernando”), on four

different occasions.2 Torres said that Fernando returned the

truck each time meticulously cleaned “inside and out.” 

Fernando last borrowed Torres’s truck about a week and a

half prior to Torres’s arrest. On the day Fernando returned

the truck, he asked Torres if he could take Fernando’s friend

to the D.M.V. near San Ysidro, California, about eight miles

from the Otay Mesa Port of Entry. Torres declined. The next

day Fernando called making the same request, and Torres

declined a second time. Later, Fernando asked Torres to

drive his friend to a tire shop in San Diego to pick up some

tires. Torres never acted on this request either.

Although at the first trial the Government objected to

Torres’s testimony as hearsay, at sidebar, Torres argued that

he was “not seeking to introduce this for the truth of the

matter, but rather for the effect on the listener.” The district

2 The transcript of the second trial misspells the last name as Gress,

however, both parties’ briefs refer to Fernando as Griese.
UNITED STATES V. TORRES 7

court overruled the Government’s hearsay objection.3 After

3 The testimony before and after the Government’s initial objection at

the first trial was:

Q. When Fernando returned the truck to you that day,

a week or a week and a half before your arrest, did he

ask you anything?

A. Yes.

Q. What did Fernando want?

[Government]: Objection. Hearsay.

The Court: Sustained. Sustained.

[Defense Counsel]: Your Honor, may I speak?

The Court: Sidebar.

(Sidebar reported; not transcribed herein.)

The Court: One second. The objection is

overruled. You may proceed.

[Defense Counsel]: I’ll just ask my question again.

Q. What did Fernando want when he returned a week

and a half before your arrest?

A. He asked me if I could do a favor for him. He

asked that if I could pick up a friend, a friend of his. 

He wanted me to take him to the D.M.V. because the

person did not know where [the] D.M.V. was. And he

asked me if there was like a D.M.V. near San Ysidro,

or in San Diego, and I said that, yes, I did know. So he

asked me if I could do him a favor, if I could take a

friend of his. He told me something like he wanted to
8 UNITED STATES V. TORRES

further objections, and once it became apparent that Torres

declined the favor and never drove to the D.M.V., the district

court instructed defense counsel at a second sidebar that “the

extent of the examination should be, to the extent it may be

permissible, that Fernando asked to take someone to the

D.M.V., gave me some instruction, but it didn’t happen. That

should be it.”4 The trial ended in a hung jury after a day and

change his license, like change the category, because he

wanted to drive another kind of car.

 

4

 The testimony leading up to the second side bar at the first trial was:

Q. Did Fernando want you to pick up his friend –

Where did Fernando want you to pick up his friend?

[Government]: Objection. Hearsay.

The Court: Sustained. Sustained.

Q. In your mind, where would you be picking up his

friend?

The Court: Sustained, counsel.

[Government]: Objection.

The Court: Move on to the reason for the effect on

the listener.

Q. Where was the D.M.V. that you were planning to go

to?

A. It’s close to Brown Field. . . [¶]

. . .

Q. So when Fernando asked you to take his friend to

the D.M.V., did he also ask you for anything else?
UNITED STATES V. TORRES 9

half of deliberations.

C

The second trial began June 4, 2013, and lasted two days. 

It resulted in a guilty verdict. Prior to the commencement of

the second trial, Torres moved to permit the challenged

“favors” testimony, but the district court excluded Fernando’s

requests as hearsay and irrelevant. Because the district court

was under the impression that Torres had acted on Fernando’s

directives, it initially thought the testimony would be

admissible under the hearsay exception for the effect on the

listener. The district court explained the second time around

that after listening to the proffered testimony at the first trial,

“the court had the Hobson’s choice of directing the jury to

disregard that entire batch of testimony from the defendant

[Government]: Objection. Leading and calls for

hearsay.

The Court: Sustained.

. . .

Q. In your mind, after you took this person to the

D.M.V., did you think you would go anywhere else?

A. Yes. He told me –

[Government]: Objection. Hearsay.

The witness: – that I was going –

The Court: Sustained. Sidebar, counsel.

(Sidebar reported; not transcribed herein.)
10 UNITED STATES V. TORRES

because [Torres] didn’t tie it up [] to acting on that

instruction,” or admitting it.

However, since Torres never drove to the D.M.V. or the

tire shop, the district court found Torres had actually offered

his testimony regarding the inquiries “for the assumption of

the truth, for the assumption they are true to build a thirdparty defense . . . .” It concluded, “if [the inquiries] are not

presented for the truth of the matter, or if they don’t prove or

disprove any facts as the defendant suggests, they are not

relevant.” In other words, “[a]s the statement is not offered

to prove any facts or its truth, it’s not relevant.” However,

Torres was permitted to testify that Fernando had borrowed

his truck on four occasions leading up to his arrest.

The other major difference between the first and second

trial was the testimony of a defense expert witness—Efren

Lapuz, a former special agent with the Drug Enforcement

Administration. Although the Government did not present

drug trafficking organization (“DTO”) “structure” or “modus

operandi” evidence in its case-in-chief, Lapuz testified for the

defense about the value of seventy-three kilograms of cocaine

and where DTOs generally purchased the drug. The district

court ruled that Torres had opened the door to DTO “modus

operandi” evidence, and the Government then impeached

Lapuz on cross-examination about prior testimony from an

unrelated trial where he had averred that DTOs rarely utilized

“blind mules”

5

because drug traffickers preferred

straightforward transactions—“I pay you, you take the risk.” 

The Government also elicited helpful testimony from Lapuz

that because border crossings were a point of risk, DTOs

5 A “blind mule” is a person who transports drugs for a DTO without his

knowledge or consent.
UNITED STATES V. TORRES 11

generally attempted to minimize the number of such

crossings with a single load concealed in the vehicle.

On defense re-direct Lapuz testified that drug cartels

generally did not care if the courier was unknowing. He

testified that cartels like to use a blind mule because it

diffuses the risk of compromising the entire organization if he

is arrested; it is an inexpensive mode of transporting drugs;

and, so long as they can control the transaction on the other

side, the cartel has gained something without losing anything. 

On re-cross examination, the Government questioned Lapuz

about whether he had ever heard of a blind mule with a wellhidden compartment transporting drugs, as opposed to

magnetic compartments on the undercarriage that are easily

removable. Lapuz stated he had not personally seen them,

but had heard about it in the media.

On June 6, 2013, after deliberating for approximately two

and a half hours, the jury found Torres guilty of one count of

importation of cocaine under 21 U.S.C. §§ 952 and 960. The

district court sentenced Torres to 132 months’ imprisonment. 

This appeal followed.

II

We review the interpretation of the rules of evidence de

novo, but a district court’s decision to exclude evidence for

abuse of discretion. See United States v. Mitchell, 502 F.3d

931, 964 (9th Cir. 2007); United States v. Castillo, 181 F.3d

1129, 1134 (9th Cir. 1999). In assessing whether a district

court abused its discretion, we first “determine de novo

whether the trial court identified the correct legal rule to

apply to the relief requested.” United States v. Hinkson,

585 F.3d 1247, 1262 (9th Cir. 2009) (en banc). If so, we then
12 UNITED STATES V. TORRES

consider “whether the trial court’s application of the correct

legal standard was (1) illogical, (2) implausible, or

(3) without support in inferences that may be drawn from the

facts in the record.” Id. (internal quotation marks and citation

omitted). “We review de novo whether an evidentiary error

rises to the level of a constitutional violation.” United States

v. Pineda-Doval, 614 F.3d 1019, 1032 (9th Cir. 2010)

(citation omitted).

A

As a general rule, a party is prohibited from introducing

a statement made by an out-of-court declarant when it is

offered at trial to prove the truth of the matter asserted. Fed.

R. Evid. 801(c), 802. For the purposes of hearsay, a

“statement” is defined as “a person’s oral assertion, written

assertion, or nonverbal conduct, if the person intended it as an

assertion.” Fed. R. Evid. 801(a). The Advisory Committee

Note clarifies that the effect of the “statement” definition is

to “exclude from the operation of the hearsay rule all

evidence of conduct, verbal or nonverbal, not intended as an

assertion. The key to the definition [of a statement] is that

nothing is an assertion unless intended to be one.” Fed. R.

Evid. 801 advisory committee’s note to Subdivision (a) 1972

Proposed Rules (emphasis added).

Torres alleges that the district court erred in precluding

his testimony about Fernando’s inquiries because this

evidence does not constitute hearsay. We hold that while

some questions may constitute non-hearsay, where the

declarant intends the question to communicate an implied

assertion and the proponent offers it for this intended

message, the question falls within the definition of hearsay.
UNITED STATES V. TORRES 13

Some of our sister circuits have held that questions or

requests are admissible as non-hearsay because questions are

not intended to assert anything. See, e.g., United States v.

Lewis, 902 F.2d 1176, 1179 (5th Cir. 1990).

6

In Lewis, for

example, after a defendant’s drug-related arrest, his pager or

“beeper” went off. Id. The police officer who confiscated

the pager called the number and impersonated the defendant. 

Id. The unidentified person asked: “Did you get the stuff?”

and “Where is Dog?” Id. At trial, the district court allowed

the officer to testify to the questions asked by the unidentified

caller over the defendant’s hearsay objections. Id. The Fifth

Circuit determined that “[t]he questions asked by the

unknown caller, like most questions and inquiries, are not

hearsay because they do not, and were not intended to, assert

anything.” Id. (citations omitted). Thus, Lewis held that the

implied assertion contained in the caller’s question (i.e.,

defendant was expecting to receive “stuff”) was not hearsay

6

See also United States v. Rodriguez-Lopez, 565 F.3d 312, 314–15 (6th

Cir. 2009) (“[A] question is typically not hearsay because it does not

assert the truth or falsity of a fact.” (citation omitted)); United States v.

Thomas, 451 F.3d 543, 547–48 (8th Cir. 2006) (“Questions and

commands generally are not intended as assertions, and therefore cannot

constitute hearsay.”); Lexington Ins. Co. v. W. Pa. Hosp., 423 F.3d 318,

330 (3d Cir. 2005) (“Courts have held that questions and inquiries are

generally not hearsay because the declarant does not have the requisite

assertive intent, even if the question conveys an implicit message or

provides information about the declarant’s assumptions or beliefs.”

(citations and quotationmarks omitted)); United States v. Oguns, 921 F.2d

442, 449 (2d Cir. 1990) (“Because a question cannot be used to show the

truth of the matter asserted, the dangers necessitating the hearsay rule are

not present.”); United States v. Long, 905 F.2d 1572, 1579–80 (D.C. Cir.

1990) (“While [Defendant’s] criticism of a rigid dichotomy between

express and implied assertions is not without merit, it misses the point that

the crucial distinction under rule 801 is between intentional and

unintentional messages, regardless of whether they are express or

implied.”).
14 UNITED STATES V. TORRES

because the definition of “statement” in Rule 801(a)

“remov[ed] implied assertions from the coverage of the

hearsay rule.” Id. (citation omitted).

Notwithstanding the Fifth Circuit’s broad holding in

Lewis, we think the issue is more nuanced and context

specific. It is widely recognized that the grammatical form of

a verbal utterance does not govern whether it fits within the

definition of hearsay. See 4 Christopher B. Mueller & Laird

C. Kirkpatrick, Federal Evidence, § 8.6, at 57 (4th ed. 2013)

(“For purposes of the hearsay doctrine [] the term ‘assertion’

or‘statement’ includes questions and imperatives that express

or communicate facts or information about acts, events, or

conditions in the world. Indeed, such formulations of human

expression are as much within the hearsay doctrine as simple

declarative sentences.”); 4 Clifford S. Fishman & Anne T.

McKenna, Jones on Evidence, § 24:13, 168 (7th ed. Supp.

2012) (“An utterance that is in the form of a question can in

substance contain an assertion of fact.” (quotation marks and

citation omitted)).

Other circuits have not foreclosed the possibility that

questions can be classified as hearsay. See, e.g., United

States v. Summers, 414 F.3d 1287, 1299–1300 (10th Cir.

2005). In Summers, police arrested defendant Marvin

Thomas along with three co-defendants on bank robbery and

aiding and abetting charges. Id. at 1293. While being led to

a police car, one of the co-defendants inquired of the arresting

officer: “How did you guys find us so fast?” Id. The codefendant pled guilty, while Thomas proceeded to trial. Id.

At trial, the district court allowed the police officer to testify

about the co-defendant’s inquiry under the present-sense

impression exception to the hearsay rule. Id. at 1298; Fed. R.

Evid. 803(1).
UNITED STATES V. TORRES 15

On appeal, Summers reasoned that, unlike the “innocuous

and ambiguous question” in United States v. Jackson, 88 F.3d

845 (10th Cir. 1996)—where a police officer spoke with an

unidentified person paging the defendant’s confiscated

beeper, who asked “Is this Kenny?”—in Thomas’s case the

declarant’s intent was apparent. Summers, 414 F.3d at

1299–1300. “It begs credulity to assume that in positing the

question [the co-defendant] was exclusively interested in

modern methods of law enforcement, including surveillance,

communication, and coordination. Rather, fairly construed

the statement intimated both guilt and wonderment at the

ability of the police to apprehend the perpetrators of the crime

so quickly.” Id. at 1300. Thus, the Tenth Circuit held that

“Thomas ha[d] met his burden of demonstrating that by

positing the question, ‘How did you guys find us so fast?,’

[the co-defendant] intended to make an assertion.” Id.

While we have not previously addressed whether

questions constitute hearsay, we think “the term ‘matter

asserted’ as employed in Rule 801(c) and at common law

includes both matters directly expressed and matters the

declarant necessarily implicitly intended to assert.” 30B

Kenneth W. Graham, Jr. & Michael H. Graham, Federal

Practice & Procedure § 7001 (2014) (emphasis added). 

Because there may be instances where a party attempts to

admit hearsay by cloaking statements under the guise of a

question, the focus of the inquiry should be on what the

declarant intended to say, whether implied or directly

asserted. See Fed. R. Evid. 801 advisory committee’s note to

Subdivision (a) 1972 Proposed Rules; cf. Long, 905 F.2d at

1580 (“[T]he crucial distinction under rule 801 is between

intentional and unintentional messages, regardless of whether

they are express or implied.”).
16 UNITED STATES V. TORRES

We hold the district court’s application here of Rule 801

is not without support or “illogical.” See Hinkson, 585 F.3d

at 1262. Fernando asked: Can you take my friend to the

D.M.V.? Torres said no. Fernando asked a second time: Can

you take my friend to the D.M.V.? Torres said no. Fernando

asked a third time: Can you take my friend to a tire shop?

Torres said no. Fernando’s intent in asking for Torres’s truck

on three separate occasions in the span of a week and a half

is apparent: Fernando wanted control of Torres’s truck on the

U.S.-side of the border. In other words, Fernando intended

the implied assertion rather than the express one, and Torres

offered the questions for this intended implied message to

show it was Fernando who was calling the shots and who

unknowingly set him up on the drug importation scheme. 

Thus, Torres offered the statements for the truth of the

defense asserted. We hold the district court did not abuse its

discretion in finding that Torres offered Fernando’s inquiries

for the truth of the matter asserted to prove his third-party

culpability defense. Thus, the objections were properly

sustained on hearsay grounds.

B

But even assuming that the district court erred, as Torres

alleges, a defendant must still prove that the error or defect

was prejudicial. See Fed. R. Crim. P. 52(a); see also United

States v. Olano, 507 U.S. 725, 734 (1993) (holding that where

the defendant has made a timely objection to an error, Rule

52(a) applies).7 Under Federal Rule of Criminal Procedure

7 Torres also challenges the district court’s finding that his testimony

relating to Fernando’s inquiries was irrelevant. Fed. R. Evid. 401. 

Because we find the district court’s exclusion under the hearsay rule to be

dispositive, we need not reach the issue of relevancy.
UNITED STATES V. TORRES 17

52(a), we engage in a “harmless error” inquiry to determine

whether the error was prejudicial. Olano, 507 U.S. at 734. 

Torres, however, argues that the district court’s exclusion of

Fernando’s inquiries were not only prejudicial, but

constitutional in nature because the trial court prevented him

from presenting a complete defense. A constitutional error

under Rule 52(a) heightens the government’s burden of proof:

reversal is warranted unless the error was “harmless beyond

a reasonable doubt.” Compare Neder v. United States,

527 U.S. 1, 7 (1999) (citation and internal quotations marks

omitted), and United States v. Caruto, 532 F.3d 822, 831 (9th

Cir. 2008) (analyzing a constitutional error), with United

States v. Gonzalez-Flores, 418 F.3d 1093, 1099 (9th Cir.

2005) (holding that we reverse a non-constitutional error

unless there is a “fair assurance” of harmlessness, i.e., “it is

more probable than not that the error did not materially affect

the verdict”), and United States v. Edwards, 235 F.3d 1173,

1178 (9th Cir. 2000) (analyzing a non-constitutional error).

“[T]he Constitution guarantees criminal defendants ‘a

meaningful opportunity to present a complete defense.’” 

Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (quoting

Crane v. Kentucky, 476 U.S. 683, 690 (1986)). This right

includes, “at a minimum . . . the right to put before a jury

evidence that might influence the determination of guilt.” 

Pennsylvania v. Ritchie, 480 U.S. 39, 56 (1987). “When

evidence is excluded on the basis of an improper application

of the hearsay rules, due process concerns are still greater

because the exclusion is unsupported by any legitimate state

justification.” United States v. Lopez-Alvarez, 970 F.2d 583,

588 (9th Cir. 1992) (emphasis in original) (citing Crane,

476 U.S. at 691–92).
18 UNITED STATES V. TORRES

But “not every [evidentiary] error amounts to a

constitutional violation.” United States v. Boulware, 384 F.3d

794, 808 (9th Cir. 2004) (quoting Lopez-Alvarez, 970 F.2d at

588) (internal quotation marks omitted). As Boulware and

Lopez-Alvarez make clear, a defendant must demonstrate the

erroneous exclusion was important to his defense in order to

rise to the level of a constitutional violation. Id. For

example, in Lopez-Alvarezwe held that—although the district

court misapplied the hearsay rule by cutting short defense

counsel’s line of questioning furthering a defense theory—the

exclusion did not amount to constitutional error because the

“testimony sought to be adduced would not have added

substantially to the knowledge the jury gained during the

course of the trial.” 970 F.2d at 588.

Torres’s reliance on United States v. Steverto support his

argument that the evidentiary exclusion amounted to

constitutional error is misplaced. 603 F.3d 747 (9th Cir.

2010). In Stever, the defendant was indicted for one count of

conspiracy to, and one count of the underlying crime of,

manufacture of marijuana. Id. at 750. In his defense, Stever

sought to prove that the marijuana found on an isolated corner

of his mother’s 400-acre property was the work of a Mexican

DTO that had recently infiltrated rural Oregon. Id. The

district court barred the Government from arguing that Stever

conspired with a DTO to manufacture marijuana since it had

denied pre-trial discovery regarding Mexican DTOs, but also

ruled sua sponte that it would not permit Stever to put on

third-party culpability evidence regarding Mexican DTOs or

“who else might have been involved.” Id. at 751. The

district court precluded Stever from presenting any defense at

all. Id. at 752. Defense counsel argued that Stever had no

involvement but, given the district court’s ruling, proffered

no affirmative defense, telling the jury only that the
UNITED STATES V. TORRES 19

prosecution had the burden of proof. Id.; see also PinedaDoval, 614 F.3d at 1032–33 (finding that the exclusion of the

evidence “effectively denied the defendant the only argument

that he had”).

Here, the district court did not preclude Torres from

proffering an affirmative defense. During closing arguments,

Torres’s counsel argued that Fernando or the mechanic

probably planted the drugs in Torres’s truck. Indeed, Torres

testified that Fernando had previously borrowed his truck on

four occasions, that Fernando knew where Torres lived, knew

where Torres parked his truck, and had the opportunity to

make a spare key. Torres also testified about the Tijuana

mechanic who kept Torres’s pickup for a month and had

offered to purchase the truck from Torres after the botched

paint job. In other words, additional information about

Fernando’s requests to take a friend to the D.M.V. or pick up

tires from a San Diego tire shop “would not have added

substantially to the knowledge the jury gained during the

course of the trial.” Lopez-Alvarez, 970 F.2d at 588. Thus,

even assuming the district court erred in sustaining the

hearsay objection, we find the exclusion did not amount to

constitutional error.

C

Finally, the exclusion of Torres’s testimony about

Fernando’s requests would also have been harmless under the

non-constitutional error standard. A non-constitutional error

requires reversal unless there is a “fair assurance” of

harmlessness, or stated another way, unless “it is more

probable than not that the error did not materially affect the

verdict.” Seschillie, 310 F.3d at 1214 (quoting United States

v. Morales, 108 F.3d 1031, 1040 (9th Cir. 1997) (en banc))
20 UNITED STATES V. TORRES

(internal quotation marks omitted). “Review for harmless

error requires not only an evaluation of the remaining

incriminating evidence in the record, but also the most

perceptive reflections as to the probabilities of the effect of

error on a reasonable trier of fact.” United States v. Bishop,

264 F.3d 919, 927 (9th Cir. 2001) (citation and internal

quotation marks omitted); United States v. Oaxaca, 233 F.3d

1154, 1158 (9th Cir. 2000) (noting “the harmlessness of an

error is distinct from evaluating whether there is substantial

evidence to support a verdict”).

Torres argues that even under the non-constitutional

harmless error standard, we should find the error prejudicial

simply by comparing what happened in the first trial with

Fernando’s inquiries (hung jury after a day and a half of

deliberations) and what occurred without it in the second trial

(guilty verdict in two hours and thirty minutes).8 But the

record shows another major difference between the first and

second trial—the testimony of defense expert witness and

former DEA special agent, Efren Lapuz.

8 Torres argues that the improperly excluded evidence “would have

bolstered [the] defense” where the “government’s case was hardly

overwhelming.” United States v. Crosby, 75 F.3d 1343, 1349 (9th Cir.

1996). While it may be true that the inquiries would have added to

Torres’s defense theory, the Government’s case here was stronger than in

Crosby, especially considering the DTO “modus operandi” evidence

introduced at the second trial. See id. at 1349–50 (concluding that the

victim’s testimony that defendant punched her was undercut by the fact

that she was inebriated the night of the assault, continuously changed her

story, and the government proffered inconclusive blood tests). 

Furthermore, in Crosby, the district court completely precluded a thirdparty culpability defense when it prevented defendant from introducing

evidence of the victim’s husband’s prior domestic violence. Id.
UNITED STATES V. TORRES 21

While the Government did not present DTO “structure”

or “modus operandi” evidence in its case-in-chief, the court

ruled that Torres opened the door to such evidence in calling

Lapuz to testify about the value of seventy-three kilograms of

cocaine and how DTOs purchase and import the drugs into

the United States. Consequently, the Government was able

to cross-examine Lapuz who had testified about the

uncommon use of “blind mules” because drug traffickers

preferred straightforward transactions—“I pay you, you take

the risk.”

While Lapuz also testified about the advantages of using

a blind mule in importing cocaine, the strategic decision to

call an expert witness and then inadvertently open the door to

DTO “modus operandi” evidence undercut Torres’s defense

that he was an unknowing courier in two ways: (1) the

defense expert’s testimony highlighted the rarity of using

blind mules in the DTO’s importation business; and (2) it

allowed the Government to ask the expert witness about a

recent case where a DTO had easily attached drugs under the

vehicle of an unknowing courier using magnets. The

Government effectively contrasted the easily removable

magnets with Torres’s well-hidden compartment, where the

truck bed had to be raised in order to hold the storage box and

to extract the drugs. None of this “modus operandi” evidence

was before the first jury.

Considering “the probabilities of the effect of error on a

reasonable trier of fact” in the context of the remaining

incriminating evidence, Bishop, 264 F.3d at 927, we find “it

is more probable than not that the error did not materially

affect the verdict,” Seschillie, 310 F.3d at 1214. It was

undisputed at both trials that CBP officers eventually

extracted seventy-three kilograms of cocaine from a truck
22 UNITED STATES V. TORRES

registered and driven by Torres. Even though it was disputed

at trial whether the modifications would have been visible

from the rear of the truck to anyone standing behind it, the

government proffered sufficient circumstantial evidence of

knowledge. To prove knowledge,theGovernment introduced

testimony that Torres’s hands were shaking as he handed over

the keys during secondary inspection. Two days prior to his

arrest, another officer also testified about Torres’s

“abnormal” behavior. Less weighty but relevant, the

Government also introduced evidence that Torres stopped

briefly during the x-ray, creating a “no scan,” and then inched

toward the exit until an officer told him to park his pickup in

secondary.

Unique to the second trial, the Government chipped away

at Torres’s third-partyculpability defense because—as Lapuz

testified—it was unlikely that a DTO would expose a load of

seventy-three kilograms of cocaine to multiple border

crossings as this was a point of risk DTOs sought to

minimize. Here, because Torres testified that Fernando last

borrowed his truck about a week and a half prior to his arrest

and Torres crossed the border on three occasions prior to his

arrest, but after Fernando returned the truck, Lapuz’s

testimony about DTOs using blind mules made Torres’s

third-party culpability defense less credible. The exclusion

of Fernando’s inquiries, while arguably relevant, became less

probative at the second trial with the introduction of the DTO

“modus operandi” evidence. Furthermore, the district court

could and did properly exclude Fernando’s out-of-court

statements on hearsay grounds. But even if the district court

erred in doing so, any error in excluding Torres’s testimony
UNITED STATES V. TORRES 23

about Fernando’s statements was not constitutional and was

harmless.

AFFIRMED.