1

REVISED

United States Court of Appeals,

Fifth Circuit.

Nos. 96-50785, 97-50159.

Pedro L. GOCHICOA, Petitioner-Appellee,

v.

Gary L. JOHNSON, Director, Texas Department of Criminal Justice,

Institutional Division, Respondent-Appellant.

Aug. 4, 1997.

Appeals from the United States District Court for the Western

District of Texas.

Before JOLLY, DUHÉ and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Respondent Gary L. Johnson, on behalf of the State of Texas

(hereinafter the "State"), appeals the district court's grant of a

writ of habeas corpus under 28 U.S.C. § 2254 to Petitioner Pedro

Gochicoa. We reverse.

I

While responding to a call complaining of a "suspicious

person," Officer Victor Prieto of the Pecos, Texas police

department encountered Jorge Gochicoa, Pedro's brother, sitting in

a parked car near an apartment building. As Officer Prieto spoke

to Jorge, Pedro (also known as "Peter") approached the car from an

alley. Pedro greeted Officer Prieto "nervously" and said to his

brother "let's go." Officer Prieto questioned the Gochicoas

briefly and then allowed them to leave.

Immediately after the brothers left, Reeves County Sheriff's
2

Deputy Andy Gomez arrived at the scene. Deputy Gomez told Officer

Prieto that the sheriff's department had also received a call, this

time from a confidential informant, reporting that an individual

named Manuel Salcido was in the area selling heroin to Pedro

Gochicoa. Deputy Gomez and Officer Prieto then proceeded to search

the alley from which Pedro emerged. As they searched, a young man

named Michael Carrasco approached the officers and told them that

he had been watching the alley from an apartment window

approximately 100 to 150 feet away. Carrasco reported that when

Pedro rounded the corner of the alley and saw Officer Prieto, he

quickly reached into his pocket and made a motion as if he were

throwing something to the ground. Carrasco, however, did not

actually see anything leave Gochicoa's hand. Carrasco led the

officers in the direction of Gochicoa's gesture where they found a

small red balloon containing nineteen dosage units of heroin. The

officers found no other objects or refuse on the ground in the

area.

Police arrested Pedro Gochicoa two days later and charged him

with felony possession of heroin. Gochicoa pleaded not guilty to

the indictment. At his trial, the State did not identify the

confidential informant or call the informant to testify. However,

the State mentioned the call from the confidential informant

several times during its case in chief. During his opening

statement, the prosecutor made the following remark:

Deputy Gomez ... pulls up and tells [Officer Prieto] that he

has gotten a tip from a confidential informant concerning the

defendant, and they start searching the area where Pedro was

coming from for contraband that has been left behind.
3

During the prosecutor's direct examination of Officer Prieto, the

following exchange took place:

Q: Did you say anything to him [Pedro Gochicoa]?

A: No, sir.

Q: Did you have any reason at this point in time to stop him, to

investigate any crime that may have been committed, or do

anything else concerning Pedro?

A: No, sir, I had no reason.

Q: Did you in fact allow them to drive away?

A: Yes, sir.

Q: At about that time as they were driving away, did a peace

officer approach your position?

A: Yes, sir.

Q: What officer was that?

A: It was Reeves County Sheriff's Deputy Andy Gomez.

Q: Okay. And what was Deputy Gomez's purpose in being there—do you

have any idea?

A: He advised me that he had some information that Peter was

selling ...

MR. PAINTER [Gochicoa's attorney]: Your Honor, I object.

That's hearsay.

MR. ZAVODA [prosecutor]: I'll withdraw the question,

Your Honor.

THE COURT: Sustained.

Gochicoa's counsel did not ask that the answer be stricken or that

the jury be instructed to disregard the testimony. Moreover,

despite the court's ruling, the prosecutor elicited testimony from

Officer Prieto that indirectly apprised the jury of the substance

of the confidential informant's out-of-court statement:

Q: Did you and Deputy Gomez have a conversation?
4

A: Yes, sir.

Q: Without telling me what he said, based upon that conversation

did you and Deputy Gomez undertake a search?

A: Yes, sir, we did.

Q: And where were you looking at? What area were you searching?

A: We was looking on the alley mostly from where I had seen Peter

coming from.

Q: All right. And what were you looking for—yourself, personally?

A: Well, we were looking for any kind of drugs.

Gochicoa's counsel failed to object to this continuing line of

questioning.

On redirect examination of Officer Prieto, the prosecutor

again introduced the confidential informant's telephone message

into evidence without objection:

Q: Now you mentioned the name of Manuel Salcido when you were

answering questions of Mr. Painter.

A: Yes, sir.

...

Q: You called him the other suspect. Was he another person that

was supposed to be possessing heroin or selling heroin?

...

A: Yes, sir.

...

Q: And [Manuel Salcido's residence is] the general location that

Pedro was coming from, is that correct?

A: That is correct.

When Deputy Gomez took the stand, the prosecutor again

acknowledged the court's earlier ruling and admonished Gomez not to

reveal the substance of the statement.
5

Q: You cannot tell me what the confidential informant told you, but

based upon that information did you proceed to the 1000 block

of East 10th in Pecos, Reeves County, Texas?

A: Yes, I did.

...

Q: Again, based upon the information you received from the

confidential informant, did you and Victor Prieto—Officer

Prieto—conduct a search of the area where Officer Prieto was

at?

A: Yes, we did.

Q: What were you looking for?

A: I was looking for heroin is what I was looking for.

Again, Gochicoa's counsel did not object to this testimony. At

closing, the prosecutor cited the substance of the confidential

informant's tip as direct evidence against Gochicoa.

What do we know by direct evidence? ... We know that Pedro

was out at the project on August 15, 1991, at about five or

5:15 P.M. We know his brother Jorge was waiting for him to

come back from where he was at. We know that when he saw

Victor Prieto—Officer Prieto—that Pedro got nervous. We heard

that from two different witnesses, Officer Prieto and Michael

Carrasco. We know that Deputy Gomez had information from a

confidential informant that Manuel Salcido was in this area in

his home selling heroin and that Pedro was buying it at this

particular time....

Again Gochicoa's counsel failed to object to this argument.

After deliberating for approximately two hours, the jury

requested an additional definition of "possession" from the judge,

but the judge informed them that the definition of possession in

the jury instructions was the only one that he could give them.

After further deliberations, the jury announced that it was
 

1Allen v. United States, 164 U.S. 492, 501-02, 17 S.Ct. 154,

157, 41 L.Ed. 528 (1896). An Allen charge is a supplemental

instruction urging jurors to forego their differences and reach a

unanimous verdict. United States v. Winters, 105 F.3d 200, 202 n.

1 (5th Cir.1997). 

 

2Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.

1396, 18 L.Ed.2d 493 (1967), appointed counsel on appeal may move

to withdraw from a case after fully examining the facts and the law

pertaining to the case, concluding that the appeal presents no

legally non-frivolous questions, and filing a brief with the court

explaining its conclusion. United States v. Henderson, 72 F.3d

463, 464 n. 5 (5th Cir.1995). 

6

deadlocked. The judge then read the jury a modified Allen charge.1

After about an hour, the jury returned a verdict of guilty. Based

on Gochicoa's prior criminal history, the jury assessed a

punishment of sixty years imprisonment.

Gochicoa's attorney filed an Anders brief,2 and withdrew from

the case. Gochicoa then filed an appeal pro se, and the Texas

court of appeals affirmed his conviction in an unpublished opinion.

Gochicoa filed a petition for writ of habeas corpus with the Texas

Court of Criminal Appeals, which denied relief without written

order. Gochicoa then filed a habeas petition in federal district

court.

In his petition, Gochicoa asserted violation of his Sixth

Amendment right of confrontation based on the admission of the

hearsay statements of the confidential informant. The State

responded that the references to the confidential informant's

statement were not hearsay at all under Texas law because they were

elicited to explain the actions of the police officers, not for the

truth of the matter asserted. The magistrate judge agreed with the

State and recommended that the writ of habeas corpus be denied.
 

3Because the court granted the writ based on violations of the

Confrontation Clause, it declined reach Gochicoa's claims of

ineffective assistance of counsel, violation of due process, and

failure of the State to disclose the identity of the confidential

informant. 

7

After reviewing Gochicoa's objections to the magistrate judge's

findings, the district court appointed counsel to represent

Gochicoa and held an evidentiary hearing on his claims. The

district court rejected the magistrate judge's recommendation,

finding that the confidential informant's statements were offered

for the truth of the matter asserted and constituted hearsay under

Texas law. The district court further found that admission of

these hearsay statements violated Gochicoa's rights under the

Confrontation Clause of the Sixth Amendment and that the error had

a substantial and injurious effect on the jury's verdict under

Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353

(1993) (setting forth "substantial and injurious effect" test for

harmless error on habeas review). The court granted the writ,3 and

the State timely appealed. Gochicoa filed a motion for release

pending appeal, which the district court granted; we subsequently

stayed the district court's order granting release.

II

A

We review the district court's findings of fact for clear

error and review its conclusions of law de novo, applying the same

standard of review to the state court's decision as the district

court. Spence v. Johnson, 80 F.3d 989, 993 (5th Cir.), cert.

denied, --- U.S. ----, 117 S.Ct. 519, 136 L.Ed.2d 407 (1996).
 

4Section 107 of the AEDPA creates an entirely new chapter 154

to Title 28 providing for expedited procedures for habeas petitions

filed in capital cases. The new expedited procedures are available

only where the state satisfies certain "opt-in" requirements,

including establishing a mechanism for appointment of

post-conviction counsel for indigent prisoners and standards of

competency for such counsel. 28 U.S.C. § 2261(b); see Mata v.

Johnson, 99 F.3d 1261, 1266 (5th Cir.1996), vacated in part on

other grounds, 105 F.3d 209 (5th Cir.1997).

Section 104 of the AEDPA (amending chapter 153 of Title

28) is silent as to its applicability to pending cases;

section 107(c), however, expressly provides that the

provisions of new chapter 154 shall apply to cases pending on

the date of enactment of the Act. The Supreme Court in Lindh

held that section 107(c)'s express provision creates a

negative implication that Congress did not intend that the

amendments to chapter 153 apply to pending cases. Thus, the

new standards of review in section 2254 do not generally apply

to habeas cases pending on the date of enactment of the AEDPA.

They do, however, apply to capital cases under chapter 154;

28 U.S.C. § 2264(b) expressly provides that chapter 154

determinations are "subject to sections (a), (d), and (e) of

section 2254." Lindh, 1997 WL 338568 at *6, --- U.S. at ----,

--- S.Ct. at ----.

8

While Gochicoa's petition was pending before the district court,

the President signed into law the Antiterrorism and Effective Death

Penalty Act of 1996 ("AEDPA" or "Act"), Pub.L. No. 104-132, 110

Stat. 1214 (1996). Section 104(3) of the AEDPA amends 28 U.S.C. §

2254(d) to afford greater deference to state court judgments on

federal collateral review. The Supreme Court recently held in

Lindh v. Murphy, --- U.S. ----, ----, --- S.Ct. ----, ----, ---

L.Ed.2d ----, 1997 WL 338568 at *8 (June 23, 1997), that the new

provisions of chapter 153 of Title 28, including amended section

2254(d), do not apply to cases pending on the effective date of the

Act. This holding overrules, in part, our decision in Drinkard v.

Johnson, 97 F.3d 751, 764-66 (5th Cir.1996), cert. denied, --- U.S.

----, 117 S.Ct. 1114, 137 L.Ed.2d 315 (1997).4
Lindh involved a noncapital case. Drinkard, on the

other hand, involved a capital case. However, the special

provisions of chapter 154 did not apply to Drinkard's petition

because Texas does not yet qualify for expedited procedures under

28 U.S.C. § 2261(b). See Mata, 99 F.3d at 1266-67. Therefore,

Lindh overrules Drinkard insofar as it holds that the AEDPA's new

standards of review in 28 U.S.C. § 2254 apply to cases not subject

to chapter 154, whether capital or noncapital, pending on the date

of enactment of the AEDPA. See, e.g., Blankenship v. Johnson, 106

F.3d 1202, 1204 (5th Cir.1997) (applying Drinkard to noncapital

case). 

9

Since Gochicoa filed his habeas petition in district court

prior to April 24, 1996, the date of the AEDPA's enactment, we must

apply the pre-AEDPA standards of review to the state court's

determination. Lindh, 1997 WL 338568 at *8, --- U.S. at ----, ---

S.Ct. at ----. Whether admission of hearsay evidence violated a

defendant's Sixth Amendment right of confrontation is a mixed

question of law and fact that we review de novo under former 28

U.S.C. § 2254(d). See Perillo v. Johnson, 79 F.3d 441, 445 (5th

Cir.1996) (noting that federal habeas court reviews state court

determinations of mixed questions de novo ); see also Swan v.

Peterson, 6 F.3d 1373, 1379 (9th Cir.1993) (holding that whether

Confrontation Clause is violated is mixed question of law and fact

subject to de novo review).

B

 We pause to note that after his initial objection, Gochicoa

failed to object to the admission of the confidential informant's

statements. Gochicoa therefore waived any hearsay or Confrontation

Clause objection under Texas's contemporaneous objection rule.

Tex.R.App. P. 52(a) ("In order to preserve a complaint for

appellate review, a party must have presented to the trial court a
10

timely request, objection or motion, stating the specific grounds

for the ruling he desired the court to make if the specific grounds

were not apparent from the context."); Tapia v. State, 933 S.W.2d

631, 633 (Tex.App.1996, writ ref'd). Where a state court has

declined to review a criminal defendant's federal claims for

failure to comply with state procedural rules, a federal court on

habeas review may not address those claims absent a showing of

"cause" and "actual prejudice." Wainwright v. Sykes, 433 U.S. 72,

87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977).

However, "the procedural default rule bars federal

jurisdiction only if the state court denied relief because of the

defendant's violation of state procedural requirements. The mere

existence of a procedural default, without more, does not deprive

federal courts of jurisdiction." Shaw v. Collins, 5 F.3d 128, 131

(5th Cir.1993). Instead, the state court must have actually relied

on the procedural bar as a separate and independent reason for

denying the claim. Id. Where the state court does not clearly and

expressly rely on procedural default to dispose of the case, we may

address the merits of the petition. Coleman v. Thompson, 501 U.S.

722, 735, 111 S.Ct. 2546, 2557, 115 L.Ed.2d 640 (1991).

In this case, neither the state court of appeals on direct

review nor the Texas Court of Criminal Appeals on collateral attack

relied on an independent and adequate state procedural bar in

rejecting Gochicoa's claims. At any rate, the State does not

assert Gochicoa's failure to comply with the contemporaneous

objection rule as a bar to our consideration of his claims on
11

appeal, nor did it raise procedural default in opposition to

Gochicoa's petition in district court. See Jenkins v. Anderson,

447 U.S. 231, 234 n. 1, 100 S.Ct. 2124, 2127 n. 1, 65 L.Ed.2d 86

(1980) (holding that state waived procedural bar to habeas

petitioner's claims where it failed to raise issue in district

court or on appeal). Therefore, Gochicoa's failure to object to

the admission of the out-of-court statements of the confidential

informant does not prevent our consideration of his Confrontation

Clause claims on habeas review.

C

We must first determine whether the various references at

trial to the confidential informant's tip constituted hearsay.

What is or is not hearsay evidence in a state court trial is

governed by state law. Cupit v. Whitley, 28 F.3d 532, 536 (5th

Cir.1994), cert. denied, 513 U.S. 1163, 115 S.Ct. 1128, 130 L.Ed.2d

1091 (1995). Under Texas law, hearsay is defined as "a statement,

other than one made by the declarant while testifying at the trial

or hearing, offered in evidence to prove the truth of the matter

asserted." Tex.Crim. Evid. R. 801(d). We agree with the district

court that the prosecutor offered the confidential informant's

out-of-court statement not only to explain the officers' actions at

the scene, but also for its truth—that is, that Gochicoa was buying

heroin from Manuel Salcido. Although a testifying officer may

refer to a tip from a confidential informant in order to show why

he happened upon the scene of a crime, the officer may not

otherwise relate the substance of that communication to the jury.
12

Schaffer v. State, 777 S.W.2d 111, 114-15 (Tex.Crim.App.1989) (en

banc). Similarly, the prosecutor may not "circumvent the hearsay

prohibition through artful questioning designed to elicit hearsay

indirectly." Id. at 114. This is exactly what the prosecutor did

in this case; his questioning of both Officer Prieto and Deputy

Gomez concerning Manuel Salcido as "the other suspect ... that was

supposed to be possessing heroin or selling heroin" left little

doubt as to the substance of the confidential informant's

communication to police. The prosecutor quelled any remaining

doubt in the minds of the jurors when, during closing argument, he

explicitly told them what the informant had said, citing the tip as

"direct evidence" that Gochicoa possessed drugs on the night in

question. The State's argument that the prosecutor offered the

informant's communication for the sole purpose of explaining the

officers' actions is without merit; the prosecutor elicited far

more information than necessary for the stated purpose. Id. at 115

n. 4 (noting that where, as here, "the officer's actions (e.g., an

arrest or a search) are not put into question before the jury,

testimony that the officer acted upon "information received" or

words to that effect should be sufficient"). The statements of the

informant were offered for the truth of the matter asserted and are

therefore hearsay under Texas law.

However, a federal court may grant habeas relief based on an

erroneous state court evidentiary ruling only if the ruling also

violates a specific federal constitutional right or renders the

petitioner's trial fundamentally unfair. Cupit, 28 F.3d at 536.
13

Gochicoa asserts that the admission of the hearsay statements

violated his rights under the Sixth Amendment—made applicable to

the states by the Fourteenth Amendment—which provides that "[i]n

all criminal prosecutions, the accused shall enjoy the right ... to

be confronted with the witnesses against him...." The

Confrontation Clause reflects a preference for face-to-face

confrontation at trial to allow the accused to test the

recollection and motives of the witness through cross-examination

and to allow the jury to judge the credibility of the witness by

his demeanor. Ohio v. Roberts, 448 U.S. 56, 63-64, 100 S.Ct. 2531,

2537-38, 65 L.Ed.2d 597 (1980).

Although the protections of the Confrontation Clause and the

hearsay rule overlap, they are not coextensive; "the

[Confrontation] Clause does not necessarily prohibit the admission

of hearsay statements against a criminal defendant, even though the

admission of such statements might be thought to violate the

literal terms of the Clause." Idaho v. Wright, 497 U.S. 805, 813,

110 S.Ct. 3139, 3145, 111 L.Ed.2d 638 (1990). The wrongful

admission of hearsay evidence violates the Confrontation Clause

only when the evidence was a "crucial, critical or highly

significant factor in the framework of the whole trial." Cupit, 28

F.3d at 537. In making this determination, we consider five

general factors derived from the Supreme Court's opinion in Dutton

v. Evans, 400 U.S. 74, 87, 91 S.Ct. 210, 219, 27 L.Ed.2d 213

(1970):

(1) whether the hearsay evidence was "crucial" or "devastating";
14

(2) whether prosecutors misused a confession or otherwise engaged

in misconduct;

(3) whether a joint trial or the wholesale denial of

cross-examination was involved;

(4) whether the most important prosecution witness, as well as

other prosecution witnesses, was available for

cross-examination; and

(5) the degree to which the hearsay evidence is supported by

"indicia of [its] reliability."

Cupit, 28 F.3d at 532 (citing Johnson v. Blackburn, 778 F.2d 1044,

1051 (5th Cir.1985)).

Examination of precedent indicates that the most important of

the five factors are the first and the fifth—whether the evidence

was "crucial" or "devastating" and whether it is supported by

indicia of reliability. For example, the Supreme Court holds that

the reliability of hearsay evidence is generally determinative of

whether an out-of-court statement may be properly admitted at trial

under the Confrontation Clause. Dutton, 400 U.S. at 89, 91 S.Ct.

at 220. A statement of an unavailable witness is sufficiently

reliable only if it falls within a firmly rooted exception to the

hearsay rule or if it carries particularized guarantees of

trustworthiness. Roberts, 448 U.S. at 66, 100 S.Ct. at 2539. The

determination of whether the evidence is "crucial" or

"devastating," on the other hand, recognizes that the erroneous

admission of unreliable hearsay may nonetheless be harmless in

light of other evidence at trial; by examining whether hearsay was

"crucial" or "devastating," the court seeks to determine whether

the impermissible hearsay evidence was sufficiently damaging to the

defense to warrant reversal. United States v. Sarmiento-Perez, 633
 

5The "crucial" and "devastating" prong of the test is

therefore somewhat redundant in light of the harmless error rule.

Sarmiento-Perez, 633 F.2d at 1103 n. 6 (noting that although

"[m]uch has been made of the "crucial' and "devastating' language

in Dutton and Douglas," test simply restates harmless error rule);

United States v. Bernard S., 795 F.2d 749, 754 n. 6 (9th Cir.1986)

(noting redundancy of "crucial" and "devastating" prong and

explaining that "a showing that the hearsay evidence was not

"crucial' can lead to either a finding that the confrontation

clause was not violated or a finding that such a violation was

harmless"). 

15

F.2d 1092, 1103 n. 6 (5th Cir.1981), cert. denied, 459 U.S. 834,

103 S.Ct. 77, 74 L.Ed.2d 75 (1982); see also Cupit, 28 F.3d at 537

(holding that Confrontation Clause inquiry must determine not only

whether hearsay evidence is admissible but also whether it is

"material," i.e., whether it was "crucial" or "critical" in the

"framework of the whole trial").5

After examining the state court record with all of these

considerations in mind, we conclude that use of the hearsay

evidence at trial did not violate the Confrontation Clause under

the Cupit test. On the one hand, the government concedes that the

hearsay statements of the informant do not fall within a firmly

rooted exception to the hearsay rule or carry any particularized

indicia of reliability. The identity, perception, and biases of

the informant are unknown, as is the basis for his or her knowledge

of the facts reported to police. On the other hand, however, the

hearsay evidence was neither crucial to the prosecution nor

devastating to the defense in the context of the trial as a whole.

In granting the writ, the district court found that the

hearsay was crucial and devastating because it was the only

evidence that directly linked Gochicoa to the heroin; "no fact
 

6Nor do we find persuasive the district court's assertion that

the jurors' difficulties during deliberation demonstrate that their

verdict hinged on the prohibited testimony. The jury's request for

an additional "possession" instruction is at best ambiguous; the

most likely interpretation of the jurors' request is that they

disagreed as to whether Gochicoa could be guilty of possessing

contraband not found on his person. 

16

offered into evidence at trial was as convincing of guilt as the

substance of the informant's statement that Petitioner was buying

heroin." However, the tip from the informant standing alone did

not connect Gochicoa to the balloon of heroin found in the public

alleyway; only Carrasco's testimony established an immediate,

albeit circumstantial, link between Gochicoa and the drugs.

Carrasco testified that, as soon as Gochicoa spotted Officer

Prieto, he reached into his pocket and made a gesture as if he were

throwing something to the ground. On the basis of this information

alone, Deputy Gomez found the balloon filled with heroin. Both

Officer Prieto and Deputy Gomez testified that there were no other

objects or refuse on the ground within a ten yard radius of the

area. Carrasco's testimony, coupled with Gochicoa's nervous

behavior, presented strong circumstantial evidence that Gochicoa

had exercised direct physical control over the heroin. See Mills

v. State, 847 S.W.2d 453, 455 (Tex.App.1993, writ ref'd) (finding

sufficient affirmative links to contraband to support conviction

where police officer testified that defendant threw something into

closet and only object found in closet that could have been thrown

was vial of cocaine). Although the informant's tip certainly

bolstered the state's case, it was not "crucial or devastating"

given Carrasco's testimony.6
 

7Otherwise inadmissible hearsay admitted without objection is

treated the same as any other evidence, and may be considered by

the jury in support of its verdict. Chambers v. State, 711 S.W.2d

240, 247 (Tex.Crim.App.1986); Tex.Crim. Evid. R. 802

("Inadmissible hearsay admitted without objection shall not be

denied probative value merely because it is hearsay."). 

17

The most important prosecution witness was, therefore,

Carrasco, not the hearsay declarant. Gochicoa had a full and fair

opportunity to cross-examine Carrasco, as well as all other

prosecution witnesses. Furthermore, the prosecutor's use of the

hearsay evidence did not constitute prosecutorial misconduct; the

hearsay statements, once admitted in evidence without objection,

were a proper subject of the prosecutor's closing argument.7 Lopez

v. State, 632 S.W.2d 709, 713 (Tex.App.1982, no writ); see also

Lacoste v. Blackburn, 592 F.2d 1321, 1325 (5th Cir.) (finding no

prosecutorial misconduct under Dutton test where prosecutor joined

court in admonishing testifying officer to omit reference to

substance of confidential tip), cert. denied, 444 U.S. 968, 100

S.Ct. 458, 62 L.Ed.2d 381 (1979). Therefore, the Cupit factors

weigh against a finding that admission of the hearsay statements of

the confidential informant violated the Confrontation Clause.

III

For the foregoing reasons, we REVERSE the district court's

grant of the writ of habeas corpus and REMAND for consideration of

Gochicoa's remaining claims.

E. GRADY JOLLY, Circuit Judge, dissenting:

I agree with much of the majority's analysis. In the end,

however, I must conclude that the impermissibly admitted hearsay in
18

this case was "devastating" to the defense and was unsupported by

any indicia of reliability. I would therefore affirm the district

court's judgment, and I respectfully dissent.

The majority opinion correctly notes that the district court's

grant of habeas relief in this case is appropriate only if (a) the

state court erroneously admitted hearsay, and (b) the admission of

this hearsay violated Gochicoa's rights under the Confrontation

Clause. Maj. Op. at ----. I agree with the majority's conclusion

that hearsay was improperly admitted in this case. Id. The only

question, therefore, is whether this improper admission of hearsay

violated the rights guaranteed by the Confrontation Clause.

The majority opinion is further correct in concluding that the

most important factors in determining whether the Confrontation

Clause has been violated is whether the improperly admitted

evidence was "crucial" or "devastating" and whether it was

supported by any independent "indicia of reliability." Maj. Op. at

----. Applying these factors, the majority nevertheless concludes

that, although the impermissible hearsay was supported by no

independent indicia of reliability, its admission did not violate

Gochicoa's constitutional rights, because the evidence was neither

crucial to the prosecution nor devastating to Gochicoa's defense.

With this ultimate conclusion, I disagree.

The majority holds that "although the informant's tip

certainly bolstered the state's case, it was not "crucial or

devastating' given [Michael] Carrasco's testimony." Maj. Op. at --

--. Carrasco's testimony was indeed damaging to Gochicoa:
 

8I can agree that the properly admitted evidence in this case

was sufficient to allow a rational jury to convict Gochicoa, but

that is not a question before this court today. A Confrontation

Clause violation may occur when inadmissible evidence was

devastating to the defense, even if the properly admitted evidence,

viewed in isolation, is sufficient to sustain the verdict. 

19

Carrasco testified that he had watched Gochicoa walk through the

alleyway and observed Gochicoa reach into his pocket and make a

gesture as though he was throwing something to the ground. In

addition, Carrasco testified that Gochicoa became nervous when he

saw the police officers. The police found a balloon containing

heroin after being directed to the location by Carrasco, and found

no other objects within the immediate area.

Although this evidence may well support a verdict of guilt,8

it does not compel such a verdict. The balloon containing heroin

was found in a public area—an area in which drug trafficking may

have been common. Carrasco testified that he observed Gochicoa

from a distance of 100 to 150 feet, and although he observed

Gochicoa gesture as though discarding something, he saw nothing

leave his hand. Thus, Carresco was unable to directly link

Gochicoa to the drugs. Although nervousness and an unexplained

gesture provide some nexus between Gochicoa and the drugs, the

evidence that Gochicoa was in the area to buy heroin provides a

crucial link between the defendant and the drugs. Therefore, the

hearsay testimony from an unidentified informant surely made a

unanimous verdict substantially easier to reach, and was

devastating to the defense.

The importance of the improperly admitted hearsay is
 

9The majority opinion cites Mills v. State, 847 S.W.2d at 455,

to support the conclusion that the informant's information was not

critical in this case. In Mills, the Texas court rejected a

criminal defendant's contention that the evidence was insufficient

to show that he knowingly possessed cocaine.

Because Mills involved a challenge to the sufficiency of

evidence supporting a conviction, it is of little relevance to

our issue today. Resolving a sufficiency of the evidence

issue requires the court to resolve only whether a minimally

sufficient evidence exists to support a conviction. In

contrast, in reviewing a Confrontation Clause challenge, we

determine if the jury was improperly influenced by the

impermissible evidence.

Moreover, Mills is distinguishable from the case before

us today. In Mills, police officers entered the defendant's

residence pursuant to a search warrant. The officers observed

the defendant throw something into an open closet. In

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underscored by the prosecution's repeated reliance upon it. In the

opening statement, throughout the trial, and in closing argument,

the prosecutor relied upon information from the confidential

informant to link Gochicoa to the drugs. In the closing argument,

the prosecutor told the jury:

What do we know by direct evidence? We know that Pedro

Gochicoa was out at the project on August 15th, 1991, at about

five or 5:15 P.M. We know his brother Jorge was waiting for

him to come back from where he was at.

We know that when he saw [Officer Prieto] that Pedro Gochicoa

got nervous. We heard that from two different witnesses,

Officer Prieto and Michael Carrasco.

We know that Deputy Gomez had information from a confidential

informant that Manuel Salcido was in this area in his home

selling heroin and that Gochicoa was buying it at this

particular time.

I am unable to conclude that the jury was not substantially

influenced by this impermissibly admitted evidence. Therefore, the

evidence provided by the informant was devastating to Gochicoa's

case.9
contrast to the testimony in this case, the officer saw the object

leave the defendant's hand, and was able to identify

its approximate size. More importantly, the defendant was in his

private residence when this event occurred, in sharp contrast to

the instant case, where the contraband was found in a public area.

 

10Although Gochicoa has not prevailed today, on remand the

district court will undoubtedly carefully consider whether Gochicoa

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In addition to determining whether inadmissible evidence is

"crucial or devastating," we must also evaluate the reliability of

the hearsay. As the majority opinion recognizes, "the Supreme

Court holds that the reliability of hearsay evidence is generally

determinative of whether an out-of-court statement may be properly

admitted at trial under the Confrontation Clause." Maj. Op. at ---

-. When hearsay evidence is improperly admitted, has no indicia of

reliability, and makes a conviction substantially easier to obtain,

the Confrontation Clause has been violated. The majority concedes

that the hearsay statements of the informant have no indicia of

reliability: the "identity, perception, and biases of the

informant are unknown, as is the basis for his or her knowledge of

the facts reported to police." Yet, the majority hold that

Gochicoa's Sixty Amendment rights have not been violated.

Apparently, the United States Supreme Court has no influence with

the majority members of this panel.

In sum, because the impermissibly admitted hearsay was

"devastating" to Gochicoa's defense, and was not supported by any

independent indicia of reliability. I would therefore affirm the

district court's grant of habeas corpus but would permit the state

to retry Gochicoa.10
received adequate representation at his initial trial. 

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