Appellant Ellis Williams Gomez appeals from a judgment of conviction for conspiracy to distribute and to possess with intent to distribute 3,4 Methylenedioxy-methamphetamine ("Ecstasy"). Detective Michael Ryan, who interviewed Gomez's co-conspirator, Fred Rivas, after Rivas was arrested for selling Ecstasy to a confidential informant, provided key testimony in the case. The prosecution alleged that Gomez was Rivas's supplier. Gomez contends that the government elicited from Detective Ryan inadmissible prejudicial hearsay testimony, which communicated to the jury that Rivas identified Gomez as his supplier. We agree.
The opinion of the court was delivered by: Pooler, Circuit Judge
Before: LEVAL, POOLER, and B.D. PARKER, Circuit Judges.
Ellis Williams Gomez appeals from a judgment of conviction (Swain, J.) for conspiracy to distribute and to possess with intent to distribute 3,4-Methylenedioxy-methamphetamine ("Ecstasy") and the resulting sentence, which consisted primarily of sixty-six months imprisonment. Key testimony in the case against Gomez was provided by Detective Michael Ryan, who interviewed Gomez's co-conspirator, Fred Rivas, after Rivas was arrested for selling Ecstasy to a confidential informant. On appeal, Gomez primarily argues that the district court admitted prejudicial hearsay in permitting Detective Ryan to testify, by inference, that Rivas told Ryan that Gomez supplied Rivas with Ecstasy. The government argues that Gomez waived his hearsay objection, that any possible hearsay problem was cured by the district court's limiting instructions, and that, in any event, the evidence was admissible for the proper, non-hearsay purpose of showing context, in that it explained how Ryan came to place a call to Gomez. We hold that Ryan's testimony included highly prejudicial hearsay, and we reject the government's contentions. Moreover, while we find it unnecessary to reach the issue, we note that Ryan's testimony also poses a serious Confrontation Clause issue. We vacate Gomez's conviction and remand for a new trial.
The defendants in the charged Ecstasy conspiracy were Gomez, Rivas, and Darwin Pena. Rivas and Pena were arrested after they sold 5,000 Ecstasy pills to a confidential informant. Following their arrest, Rivas cooperated with the government, and the phone calls at the center of this appeal were made as part of that cooperation. Prior to Gomez's trial, Rivas and Pena pleaded guilty.
The Government's Opening Statement
In its opening, the government told the jury that the evidence would show that after Rivas's arrest:
[he] spoke with the agents who arrested him. And the agents instructed him to make phone calls to the person who supplied him with the five thousand pills. They told him to say he was with the guy who purchased the five thousand pills, and that Rivas had money to give to that person. So who did Rivas call? He called the defendant.
Detective Ryan's Testimony
Only three witnesses testified against Gomez at trial. The most important of the three was New York City Police Detective Michael Ryan who testified concerning the arrest and interrogation of Rivas and supplied foundation for transcripts of recorded conversations between Rivas and Gomez. Ryan testified that he arrested Rivas on June 8, 2006, and later interviewed Rivas along with United States Drug Enforcement ("DEA") Special Agent Rodolfo Cesario, who spoke Spanish, Rivas's native language. Ryan told Rivas "to call the person who had given him the 5,000 pills that we had seized that morning. We told him to call that person to tell him that you were with the person, the customer who he sold the 5,000 pills to, that he was collecting money from that person and that he needed an additional 2,000 pills of Ecstasy." The agents provided Rivas with written instructions to state: "I'm here with the guy from the five on 190th. He gave me something, he wants two more. I'll call you when I'm nearby."
Ryan testified that he dialed Gomez's number on Rivas's cell phone by locating Gomez's number on the phone, setting up a recording device for Rivas, then pressing the send button on the phone to make the call before passing the cell phone to Rivas. The defense objected on hearsay grounds to Ryan's testimony. In response to those objections, the district court instructed the jury that: the testimony that you have just heard about instructions given to Mr. Rivas and Mr. Rivas's actions in response to those instructions is not being offered to establish and is not to be considered by you as evidence that the defendant was, in fact, Mr. Rivas's supplier.
Rather, the evidence is offered for the more limited purpose of explaining how it happened that Mr. Rivas made calls to the defendant.
The government did not call Rivas as a ...