Applying The Emergency Category of Nontestimonial Statements

In hostage taking case, Ninth Circuit affirms the admission of the mother's report to law enforcement concerning her call with the captors, who demanded money for her son's return; the statements were admitted under the "emergency category of nontestimonial statements" and the Confrontation Clause was not violated, in United States v. Liera-Morales, _ F.3d _ (9th Cir. July 21, 2014) (No. 12-10548)

Testimonial statements of non-testifying witnesses made to law enforcement are inadmissible under the Confrontation Clause unless the defendant had a prior chance to cross-examine the witness. Nontestimonial statements are not implicated by the Confrontation Clause. The Ninth Circuit recently considered whether statements made by a mother concerning her son who had been taken hostage were nontestimonial under an "emergency category of nontestimonial statements."

Trial Court Proceedings: Admitting Statements To Law Enforcement

In the case, after entering the United States unlawfully, defendant Liera-Morales worked “for the trafficking ring to pay off his remaining smuggling fee.” On one occasion, he assisted in smuggling three undocumented immigrants, including an eighteen-year-old from Honduras, Aguilar, who wanted to work and reunite with his mother, Sonia Avila residing in Houston. The defendant and others demanded ransom money for her son. In one call, they “threatened to ‘eliminate’” her son. The mother called 911. The matter was referred to Immigration and Customs Enforcement (ICE). ICE Agent Jose Goyco went to the mother’s residence and hoped to record the captors in a call. He instructed her inform them that “Tony” would meet them to make payment for the return of her son. The mother contacted the captors and relayed the information. However, an audible call could not be obtained because the mother “was shaking, crying, and very nervous.”

After the telephone call, Avila was still “shaking” and “crying . . . like she was lost” because, as she testified, she had just “received threats about” Aguilar, specifically “that [her son] was going to be eliminated . . . his life would be taken.” Agent Goyco testified that Avila told him that her son “was going to get killed,” and that the captors warned that “she needed to find a way to get the money and to make sure that she was going to get the money on time and that they had until 3:00 o’clock in the afternoon and they would speak to the other person to see whether can arrange [sic].”

Liera-Morales, _ F.3d at _. The agent left. The captors made another call. In this call, the mother:

“was told to say [her] good-byes to [her] son because [the captors] were going to do away with him. He was going to be taken to the desert.” Avila also spoke with Aguilar, who pleaded with her saying “Mommy, Mommy, give [the captors] the money.” Immediately afterward, Avila contacted the authorities to report the second telephone call.

Liera-Morales, _ F.3d at _. The agents proceeded with the undercover operation. An undercover agent, “Tony,” contacted the captors who agreed on a location to receive the payment. After the captors did not show up, another meeting was arranged. Later, agents stopped a vehicle driven by the defendant. His cell phone matched the number used to call the mother. The son was found "lying in the back seat of the truck." The defendant was arrest. He was charged with hostage taking offense.

Before trial, the trial court granted the government's motion in limine to admit the agent's testimony recounting what the mother told him during the first call to the captors. The court concluded the statements were admissible as either present sense impressions or excited utterances and were nontestimonial under the Confrontation Clause. The agent testified at trial. The jury convicted the defendant. On appeal, he claimed his Confrontation Clause rights were violated by the admission of the mother's statements through the agent.

Ninth Circuit Review: Applying The "Emergency Category Of Nontestimonial Statements"

The Ninth Circuit concluded the statements were admissible under the Confrontation Clause since they were nontestimonial. The circuit considered that the "primary purpose" of the communication was to assist law enforcement in responding to an emergency. The statements did not constitute interrogation “solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator.” Liera-Morales, _ F.3d at _ (quoting Davis v. Washington, 547 U.S. 813, 826 (2006) (deciding that "objectively considered, the interrogation that took place in the course of the 911 call produced testimonial statements")). The concluded that "the challenged statements fall squarely in the emergency category of nontestimonial statements
contemplated by Davis and its progeny."

Among the objective factors noted by the circuit were "the ongoing hostage situation and the risk of grave harm to Aguilar"; the purpose of the call was to respond to the ongoing emergency; in considering the conduct of the agents, "the primary purpose of the telephone call was to respond to these threats and to ensure Aguilar’s safety"; multiple payment demands were made under the threat of "eliminate[ing]" Aguilar; the mother "was very nervous, shaking, and crying in response to continuous ransom demands and threats to her son’s life"; the mother's statements also "lacked any indicia of formality." Liera-Morales, _ F.3d at _ (citing Michigan v. Bryant, 131 S. Ct. 1143, 1157, 1160 (2011) (noting “the existence of an ‘ongoing emergency’ at the time of an encounter between an individual and the police is among the most important circumstances informing the ‘primary purpose’ of an interrogation.”) (internal quotation marks omitted); Davis, 547 U.S. at 826–27 (“A 911 call, . . . and at least the initial interrogation conducted in connection with a 911 call, is ordinarily not designed to ‘establis[h] or prov[e]’ some past fact, but to describe current circumstances requiring police assistance.”) (alterations in original)); United States v. Arnold, 486 F.3d 177, 189–90 (6th Cir. 2007) (en banc) (witness’s statements during 911 call shortly after fleeing from gun-wielding assailant were made during an ongoing emergency and were nontestimonial).

The objective analysis was not influenced by the law enforcement efforts to record the call:

[The agent] primarily sought to record the call to obtain information about Aguilar’s location and to facilitate the plan to rescue Aguilar. Far from an attempt to build a case for prosecution, Agent Goyco’s actions were good police work directed at resolving a life-threatening hostage situation. Although the recording, if audible, might have been used in prosecuting Liera-Morales, “this potential future use does not automatically place [the statements] within the ambit of testimonial.” See, e.g., United States v. Morales, 720 F.3d 1194, 1201 (9th Cir. 2013) (alterations in original) (internal quotation marks omitted).

Liera-Morales, _ F.3d at _. Finally, the circuit noted the "dual responsibilities" of law enforcement who serve "as both first responders and criminal investigators.” On this record:

Agent Goyco’s principal motive in recording the telephone call was to ensure Aguilar’s safety and assist his fellow agents in executing a rescue mission. That Agent Goyco may have also recorded the call in part to build a criminal case does not alter our conclusion that the primary purpose of the call was to diffuse the emergency hostage situation. Consequently, the challenged statements from the telephone call were nontestimonial, and their introduction at trial did not violate Liera-Morales’s Confrontation Clause rights.

Liera-Morales, _ F.3d at _.


The Liera-Morales provides a recent application of the admission of nontestimonial statements during an ongoing emergency. The analysis highlights relevant factors that may be considered in objectively reviewing the circumstances.

For another issue in the case, see Circuit Split: Scope Of Rule Of Completeness To Oral Statements.


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