‘Favors’ Ruled Hearsay in Drug Mule’s Conviction

PASADENA, Calif. (CN) - Testimony that a hidden compartment containing 73 kilograms of cocaine could have been added to a convicted drug mule's truck without his knowledge was properly excluded as hearsay, the Ninth Circuit ruled Wednesday.

After his first trial yielded a hung jury, Alfonso Torres was found guilty of driving the drugs across the U.S.-Mexico border hidden in a specially constructed compartment of his pickup truck.

During the first trial, Torres testified that he had left his truck with a Tijuana mechanic for a month and that he had loaned the truck to a friend named Fernando four separate times.

He also testified that Fernando, after returning the truck to him, asked him three times to give a friend a ride in the truck somewhere - twice to the DMV and once to a tire shop. Torres said he declined all three requests, according to the opinion.

The prosecution objected to Torres's "favors" testimony as hearsay, but the objection was overruled after Torres argued at sidebar that he was "not seeking to introduce this for the truth of the matter, but rather for the effect on the listener."

But at the second trial - which resulted in the conviction - the court changed its mind and excluded Fernando's requests for favors as hearsay and irrelevant, finding that Torres had actually offered the testimony "for the assumption they are true to build a third-party defense," according to the Ninth Circuit's 23-page opinion.

A three-judge panel upheld the court's decision, because "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."

Writing for the panel, Circuit Judge Richard Tallman also said that even if the exclusion of the testimony at issue had been the court's error, the error would not have prevented Torres from presenting a complete and affirmative defense - by claiming as he did that either Fernando or the Tijuana mechanic had probably planted the drugs in the truck.

Neither side immediately responded to request for comment on Wednesday.

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