## Facts

- Alfonso Torres drove a Dodge Ram from Mexico into the United States through the Otay Mesa Port of Entry using the SENTRI lane.
- During an August 2012 crossing, a CBP officer observed behavior he considered abnormal and noticed a discrepancy suggesting the truck bed did not align with the chassis; the officer entered a lookout to refer the vehicle to secondary inspection on a later crossing.
- On September 5, 2012, Torres crossed again and was sent to secondary inspection pursuant to the lookout.
- Inspectors found a professionally constructed compartment welded under the truck bed containing approximately 73 kilograms of cocaine.
- Torres was charged with knowingly importing cocaine in violation of 21 U.S.C. §§ 952 and 960.
- At retrial, Torres pursued a lack-of-knowledge defense, attributing responsibility to a friend in Tijuana, Fernando Griese, who allegedly borrowed the truck on multiple occasions (testimony on the borrowings was admitted).
- Torres also sought to testify that Griese repeatedly asked him to perform “favors” (e.g., errands in San Diego) to show manipulation consistent with Torres being used as an unwitting courier.
- The district court excluded the “favors” testimony as hearsay and as irrelevant or of marginal relevance, and Torres was convicted.

## Issues

1. Whether the district court properly treated Griese’s favor-requests (posed as questions or instructions) as hearsay under Federal Rule of Evidence 801 when offered for an implied assertion.
2. Whether excluding the “favors” testimony violated Torres’s constitutional right to present a complete defense.
3. If exclusion was error, whether it was harmless in light of the record.

## Decision

- The Ninth Circuit affirmed the conviction.
- The court held the “favors” testimony was properly excluded as hearsay because the requests were offered for an intended implied assertion about Griese’s plan and Torres’s role.
- The court held the exclusion did not deny Torres a meaningful opportunity to present his defense because he introduced the core lack-of-knowledge theory through other admitted evidence.
- Alternatively, the court held any error was harmless because it was more probable than not the exclusion did not materially affect the verdict.

## Legal Principles

- A question or request is not categorically non-hearsay; it is hearsay when the declarant intends it to communicate an implied assertion and the proponent offers it for that intended message under Rule 801.
- Trial courts may exclude marginally probative evidence where risks such as confusion or delay substantially outweigh its limited relevance.
- The constitutional right to present a defense does not require admission of defense-favorable evidence that is properly excluded under standard evidentiary rules, particularly where the defendant can still present the core defense theory.
- Nonconstitutional evidentiary error warrants reversal only if it is more probable than not that the error materially affected the verdict.

## Conclusion

The Ninth Circuit held that Griese’s repeated “favor” requests were inadmissible hearsay when offered to prove an implied assertion of manipulation, that excluding the testimony did not violate Torres’s right to present a defense because the core lack-of-knowledge theory reached the jury, and that any arguable error was harmless given the strength of the government’s evidence and the cumulative nature of the excluded narrative.


United States v. Torres, 794 F.3d 1053 (9th Cir. 2015)