## Facts

- Miguel Felix-Jerez was incarcerated at a minimum-security federal prison camp in Stafford, Arizona, with no fences or armed guards.
- Inmates commonly left the grounds without permission to visit a nearby restaurant and bar about a half-mile away, despite violating prison rules.
- On November 5, 1980, Felix-Jerez was missing during a 10:00 p.m. head count and had not obtained permission to leave.
- The next day, an off-duty guard found him walking about 10 miles from the camp; he was arrested and returned, carrying two bottles of wine.
- On November 7, a Deputy U.S. Marshal interrogated Felix-Jerez at the prison using a guard as a Spanish-to-English interpreter because the marshal spoke no Spanish and Felix-Jerez spoke no English.
- The marshal took handwritten notes of the interpreted questions and answers; the notes were not translated back to Felix-Jerez, and he never saw, signed, or otherwise verified them.
- At trial for escape under 18 U.S.C. § 751, the government had the marshal’s notes read to the jury over a hearsay objection, without establishing that the marshal lacked sufficient present recollection to testify without the notes.

## Issues

1. Whether the marshal’s interrogation notes were admissible under Federal Rule of Evidence 803(5) as a recorded recollection.
2. Whether the interpreter-mediated interrogation, as reflected in the notes, constituted inadmissible hearsay within hearsay absent an applicable exception for each layer.
3. Whether, excluding the notes, the remaining evidence was insufficient as a matter of law to support an escape conviction under 18 U.S.C. § 751.

## Decision

- The Ninth Circuit reversed the conviction due to erroneous admission of hearsay evidence.
- The court held the notes were not admissible as a recorded recollection because the government failed to lay the required foundation, including insufficient showing of the witness’s lack of present recollection and reliability/accuracy of the record.
- The court concluded the interpreter’s translation introduced an additional hearsay layer requiring its own justification, which was not provided.
- The court found the error prejudicial because the notes supplied key evidence of intent to escape.
- The court declined to order an acquittal, concluding the remaining evidence was not legally insufficient to permit retrial.

## Legal Principles

- A writing may be read into evidence as a recorded recollection under Fed. R. Evid. 803(5) only if the proponent shows the witness once knew the matter, now cannot recall it well enough to testify fully and accurately, and the record accurately reflects the witness’s knowledge when made or adopted.
- Absent the Rule 803(5) foundation, investigative notes offered for the truth of asserted statements are inadmissible hearsay.
- Interpreter-mediated statements can present hearsay within hearsay under Fed. R. Evid. 805; each layer must independently satisfy an exclusion from hearsay or a hearsay exception.
- Erroneous admission of hearsay is not harmless when it bears directly on a disputed mens rea element and likely influenced the verdict.
- Evidence of an unauthorized absence from an open or minimum-security facility can support an escape charge under 18 U.S.C. § 751 when circumstances permit a finding of escape intent.

## Conclusion

The Ninth Circuit reversed Felix-Jerez’s escape conviction because the government improperly introduced interpreter-dependent interrogation notes without satisfying Rule 803(5) or addressing hearsay within hearsay, and the error was prejudicial; however, the court left open the possibility of retrial because the remaining evidence was not insufficient as a matter of law.


United States v. Felix-Jerez, 667 F.2d 1297 (9th Cir. 1982)