                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            FEB 24 2016
                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 13-50555

              Plaintiff - Appellee,              D.C. No. 8:12-cr-00241-JVS-1

 v.
                                                 MEMORANDUM*
JESUS QUINONES-CHAVEZ,

              Defendant - Appellant.



                   Appeal from the United States District Court
                      for the Central District of California
                    James V. Selna, District Judge, Presiding

                    Argued and Submitted September 2, 2015
                             Pasadena, California

Before: O’SCANNLAIN, FISHER, and BYBEE, Circuit Judges.

      Jesus Quinones-Chavez appeals his jury convictions and sentence for

conspiring to bring aliens into the United States, 8 U.S.C. §§ 1324(a)(1)(A)(v)(I),

(a)(1)(A)(i), (a)(1)(B)(i), bringing aliens to the United States for private financial


        *
            This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
gain, 8 U.S.C. § 1324(a)(2)(B)(ii), and aiding and assisting an alien convicted of

an aggravated felony to enter the United States, 8 U.S.C. § 1327.

                                         I

      Quinones argues that his Due Process and Confrontation Clause rights

were violated by the exclusion of a self-exculpatory statement he claims to have

made during his post-arrest interview. But unlike the interviewing officer’s

testimony about Quinones’ admission, that purported statement was inadmissible

hearsay. See Fed. R. Evid. 801(d)(2)(A); United States v. Ortega, 203 F.3d 675,

682 (9th Cir. 2000). Due Process forbids the government from knowingly

introducing false evidence. See Napue v. Illinois, 360 U.S. 264, 269 (1959). It

does not, however, mandate that a court allow a defendant to place his

inadmissible statements “before the jury without subjecting [himself] to cross-

examination.” United States v. Fernandez, 839 F.2d 639, 640 (9th Cir. 1988)




                                        2
(per curiam). If Quinones wished to communicate his version of events, he could

have testified.1

      Likewise, Quinones’ Confrontation Clause rights were not violated by

limiting his cross-examination of the officer to admissible testimony. Defense

counsel extensively cross-examined the officer about his motivations for

arresting and subsequently Mirandizing Quinones. Such questioning was

adequate to allow the jury to “appropriately draw inferences relating to the




      1
         In his concurrence, Judge Fisher agrees with our ultimate conclusion, but
insists that Quinones’ claim should be analyzed under the “common law rule of
completeness.” We decline to address this issue, which was waived. See Cruz v.
Int’l Collection Corp., 673 F.3d 991, 998 (9th Cir. 2012) (explaining that an
appellate court reviews “only issues which are argued specifically and distinctly in
a party’s opening brief” (citation omitted)). Moreover, leaving aside the fact that
this Court has never held that the rule of completeness applies to oral statements,
see Ortega, 203 F.3d at 682, the record here clearly indicates that the district court
“carefully and thoroughly considered the government’s proffered statements from
the post-arrest interview and correctly determined that those statements were
neither misleading nor taken out of context,” United States v. Liera-Morales, 759
F.3d 1105, 1111 (9th Cir. 2014). The court engaged in an extended colloquy with
defense counsel concerning Quinones’ version of his post-arrest interview, and
even permitted defense counsel to elicit a yes or no answer from Agent Rodriguez
as to whether Quinones said more than just that he was the driver of the boat. We
fail to see how the district court’s ruling in this regard could possibly be construed
as an abuse of discretion. See United States v. Collicott, 92 F.3d 973, 983 (9th Cir.
1996).

                                          3
reliability of the witness.” Slovik v. Yates, 556 F.3d 747, 752 (9th Cir. 2009)

(citation omitted).

                                         II

      Quinones next argues that the officer’s testimony that “multiple witnesses”

identified Quinones as the driver of the smuggling boat violated the

Confrontation Clause because only some of these witnesses testified. But that

testimony emerged only after defense counsel opened the door by eliciting

testimony concerning these witnesses. See United States v. Reyes-Alvarado, 963

F.2d 1184, 1187 (9th Cir. 1992) (“[A]ppellants may not seek reversal on the basis

of their own evidentiary errors.” (citation omitted)); Burgess v. Premier Corp.,

727 F.2d 826, 834 (9th Cir. 1984).

      Even more importantly, the officer’s testimony was introduced for the non-

hearsay purpose of explaining the officer’s motivation to Mirandize Quinones.

See United States v. Cruz-Diaz, 550 F.3d 169, 176-77 (1st Cir. 2008); see also

United States v. Jiminez, 564 F.3d 1280, 1288 (11th Cir. 2009). Further, the trial

judge’s limiting instruction—although imperfect—was sufficient to cure any

possibly prejudicial effect and was not plain error.

                                        III

                                         4
      The trial court properly excluded evidence concerning two absent

witnesses. Quinones claims that one witness’s statement that Quinones was “on

top getting fuel” should have been admitted under Rule 803(3) because the

witness also said he would not identify the driver out of fear. But Rule 803(3) by

its very terms forbids this kind of maneuver. See Fed. R. Evid. 803(3) (declaring

“a statement of memory or belief to prove the fact remembered or believed”

inadmissible under the rule); United States v. Emmert, 829 F.2d 805, 810 (9th

Cir. 1987) (“If the reservation in the text of the rule is to have any effect, it must

be understood to narrowly limit those admissible statements to declarations of

condition—‘I’m scared’—and not belief—‘I’m scared because Galkin threatened

me.’”) (citation and emphasis omitted).

      Likewise, the trial judge correctly ruled that evidence of a second absent

witness’s criminal conviction was inadmissible. Because the agent’s reference to

“multiple witnesses” was not hearsay, that witness’s credibility was simply not at

issue. See Fed. R. Evid. 806 (limiting attacks on a declarant’s credibility to

instances in which hearsay has been admitted).

                                          IV



                                           5
      Quinones’ conviction under 8 U.S.C. § 1327 was valid. Section 1327

makes it a crime to “knowingly aid[] or assist[]” an inadmissible alien to enter

the United States where that alien has been convicted of an aggravated felony

that also qualifies as a crime of moral turpitude under 18 U.S.C. § 1182(a)(2).

For purposes of § 1327, the term “aggravated felony” includes “an offense

relating to . . . counterfeiting [or] forgery.” 18 U.S.C. § 1101(a)(43)(R). One

alien Quinones transported had been convicted of “manufactur[ing],

distribut[ing], or sell[ing] false documents to conceal the true citizenship or

resident alien status of another person” in violation of California Penal Code

§ 113. Quinones contends that this crime qualifies as neither an aggravated

felony nor a crime of moral turpitude under § 1327. He also argues that recent

Supreme Court precedent requires the government to prove Quinones knew the

nature of the alien’s crimes. We disagree.

      Section 1101(a)(43)(R) offers a broad definition of an aggravated felony.

See Rodriguez-Valencia v. Holder, 652 F.3d 1157, 1159 (9th Cir. 2011) (per

curiam) (“[W]hen Congress added convictions relating to counterfeiting to the

definition of aggravated felony, it was well understood . . . that the generic crime

of counterfeiting extended far beyond the imitation of currency.”); Albillo-

                                          6
Figueroa v. INS, 221 F.3d 1070, 1073 (9th Cir. 2000) (noting that the ‘relating

to’ language in § 1101(a)(43)(R) covers “a range of activities beyond those of

counterfeiting or forgery itself”). Quinones nonetheless argues that § 113 does

not qualify because it lacks an explicit “intent to defraud” element that this Court

has sometimes required. See Morales-Alegria v. Gonzales, 449 F.3d 1051,1056

(9th Cir. 2006). But the California Supreme Court has observed that the

elements of § 113 are: “(1) the manufacture, distribution or sale of false

documents; and (2) the intent to conceal the true citizenship or resident alien

status of another person.” People v. Rizo, 996 P.2d 27, 30 (Cal. 2000) (quotation

marks omitted). Moreover, in Rodrigez-Valencia, our Court held that an

underlying criminal statute may constitute an aggravated felony under

§ 1101(a)(43)(R) where the underlying offense does not explicitly require an

intent to defraud but is by its nature “an inherently fraudulent crime.” Rodriguez-

Valencia, 652 F.3d at 1160 (citation omitted). Because any crime committed




                                         7
under § 113 requires an intent to defraud, there is little doubt that § 113 is an

“inherently fraudulent crime” and thus qualifies as an aggravated felony.2

      Quinones’ argument that § 113 does not qualify as a crime of moral

turpitude is similarly unconvincing. “A crime having as an element the intent to

defraud clearly is one involving moral turpitude,” and may be ascertained by “the

statutory definition or by the nature of the crime.” McNaughton v. INS, 612 F.2d

457, 459 (9th Cir. 1980) (per curiam). The crime prohibited in § 113 is one that

by nature involves both an intent to produce counterfeit documents and the intent

to conceal the immigration status of others wrongfully. See Rizo, 996 P.2d at 30.

Because the intent to defraud is inseparable from the acts encompassed by § 113,

the district court rightly determined that § 113 is a crime of moral turpitude.




      2
         Quinones attempts to avoid this conclusion by distinguishing the “intent
to defraud” and the “intent to deceive.” But that argument proves too much. The
Supreme Court has observed that the term defraud means “to deprive of some
right, interest, or property by deceit.” See United States v. Yermian, 468 U.S. 63,
73 n.12 (1984) (citation and internal quotation marks omitted). The manufacture,
distribution, or sale of false documents undeniably deprives the government of its
exclusive legal right to issue valid identification, and deprives those receiving
such documents of their valid legal interest in confirming the conveyer’s true
citizenship status. See, e.g., 18 U.S.C. § 1028 (criminalizing various uses of
“false identification document[s],” and defining such documents as “not issued
by or under the authority of a governmental entity” but appearing to be so
issued).

                                          8
      Finally, contrary to Quinones’ assertion, recent Supreme Court precedent

is consistent with our Court’s holding that § 1327 does not require the

government to prove a defendant knew why the alien he was transporting was

inadmissible. See United States v. Flores-Garcia, 198 F.3d 1119 (9th Cir. 2000).

In Flores-Figueroa v. United States, 556 U.S. 646 (2009), the Supreme Court

explicitly recognized that “context” may suggest that a mens rea term does not

apply to all elements in a crime, id. at 652, and one Justice specifically cited

§ 1327 as an example, id. at 660 (Alito, J., concurring in part and concurring in

the judgment). Quinones’ conviction under § 1327 was valid, and his sentence

was not unreasonable.

      AFFIRMED.




                                          9
                                                                             FILED
United States v. Quinones-Chavez, No. 13-50555
                                                                              FEB 24 2016
FISHER, Circuit Judge, concurring in part, dissenting in part and concurring
                                                                      MOLLY C.inDWYER,
                                                                                 the CLERK
                                                                       U.S. COURT OF APPEALS
judgment:

      I join in the judgment and in the reasoning of the majority with the exception

of the discussion in part I. I would hold the district court erred by failing to

recognize its discretion under the rule of completeness to permit the defense to

cross examine the government’s witness regarding Quinones’ postarrest statement.

Because the error was harmless, however, I concur in the result.

      Agent Rodriguez testified Quinones admitted to driving the smuggling boat.

This testimony was important to the prosecution because it suggested Quinones

had confessed to bringing aliens into the United States and contradicted his defense

that he was a mere passenger. Quinones maintains he actually told Rodriguez he

drove the boat only while the captain was urinating and fixing the engine, evidence

that would support his defense that he was not part of the smuggling operation. He

contends the government “sliced and diced” his words into a confession by

eliciting testimony solely about the incriminating portion of his statement while

omitting testimony about the exculpatory portion. The district court refused to

allow Quinones to cross examine Rodriguez about the exculpatory part of the

statement, concluding “[t]he rule of completeness . . . does not apply because the



                                           1
statements were made orally” rather than in writing. In the alternative, the court

ruled that, even if the rule of completeness applied to unrecorded oral statements,

the court would be compelled to exclude the testimony Quinones sought to elicit

from Rodriguez as inadmissible hearsay, citing United States v. Ortega, 203 F.3d

675, 682 (9th Cir. 2000). The court advised Quinones that if he wished to contest

the government’s portrayal of his role on the boat, he would have to waive his

Fifth Amendment privilege and testify himself.

      I would hold the district court misapplied the rule of completeness.

Although the rule of completeness as partially codified in Rule 106 of the Federal

Rules of Evidence is limited to written and recorded statements, the common law

rule of completeness continues to carry weight, and it applies broadly not only to

written and recorded statements but also to unrecorded oral statements. The

common law rule of completeness, moreover, trumps the hearsay rule. Thus, the

district court had discretion to permit Quinones to cross examine Rodriguez

regarding his complete postarrest statement. The court abused its discretion by

ruling otherwise.

      A.     The Common Law Rule of Completeness Applies to Unrecorded
             Oral Statements

      The district court properly recognized the rule of completeness codified by



                                          2
Rule 106 applies solely to written and recorded statements, not to unrecorded oral

statements. Under Rule 106, when “a party introduces all or part of a writing or

recorded statement, an adverse party may require the introduction, at that time, of

any other part . . . that in fairness ought to be considered at the same time.” Fed. R.

Evid. 106. “For practical reasons, [Rule 106] is limited to writings and recorded

statements and does not apply to conversations.” Fed. R. Evid. 106 advisory

committee’s note.

      Rule 106, however, is not the final word on the rule of completeness. Under

the common law, the rule of completeness “cover[s] not only writings taken out of

context, but also . . . the truncated use of acts, declarations, and conversations.”

21A Kenneth W. Graham, Jr., Federal Practice and Procedure § 5072 (2d ed.

2015). As both this court and the Supreme Court have recognized, the common

law rule of completeness continues to operate independently notwithstanding its

partial codification in Rule 106. See Beech Aircraft Corp. v. Rainey, 488 U.S. 153,

171-72 (1988) (applying the common law rule of completeness even after it was

“partially codified” in Rule 106); United States v. Collicott, 92 F.3d 973, 983 n.12

(9th Cir. 1996) (recognizing Rule 611(a) “grants district courts the same authority

regarding oral statements which [Rule] 106 grants regarding written and recorded

statements” (alteration in original) (quoting United States v. Li, 55 F.3d 325, 329

                                           3
(7th Cir. 1995))); cf. United States v. Liera-Morales, 759 F.3d 1105, 1111 (9th Cir.

2014) (citing Collicott, 92 F.3d at 983 & n.12 and assuming without deciding the

common law rule of completeness applies to oral statements).1

      District courts’ authority to apply the common law rule is reenforced by

Rule 611, which states “[t]he court should exercise reasonable control over the

mode and order of examining witnesses and presenting evidence so as to . . . make

those procedures effective for determining the truth,” Fed. R. Evid. 611(a), and

“restates in broad terms the power and obligation of the judge as developed under

common law principles,” Fed. R. Evid. 611 advisory committee’s note. In

applying this rule, district courts should “exercise common sense and a sense of

      1
        In Beech Aircraft, the government questioned a witness about whether he
made certain statements in a letter, then used evidentiary objections to prevent the
opposing party from cross examining the witness about other parts of the letter to
show its overall meaning differed from the misleading impression given by the
government’s selective presentation. Although “much of the controversy” in the
case “centered on whether Rule 106 applies,” the Supreme Court found it
“unnecessary to address that issue” because under the common law rule of
completeness, it was “obvious[] that when one party has made use of a portion of a
document, such that misunderstanding or distortion can be averted only through
presentation of another portion, the material required for completeness is . . .
admissible.” Beech Aircraft, 488 U.S. at 172. Beech Aircraft’s embrace of the
common law completeness doctrine without determining whether Rule 106 applied
demonstrates the common law rule survives independently of Rule 106. See 21A
Graham, supra, § 5073 n.1 (“In Beech Aircraft Corp. v. Rainey, the Supreme Court
held that adoption of Rule 106 did not repeal the common law completeness
doctrine; hence, that doctrine can be invoked for completeness where Rule 106
does not apply.” (citation omitted)).

                                         4
fairness” and “require[] a party offering testimony as to an [oral] utterance to

present fairly the ‘substance or effect’ and context of the statement” such that “the

testimony . . . ‘at least represent[s] the tenor of the utterance as a whole, and not

mere fragments of it.’” United States v. Castro, 813 F.2d 571, 576 (2d Cir. 1987)

(quoting 7 J. Wigmore, Evidence § 2099 (Chadbourn rev. 1978)).

      A district court abuses its discretion under Rule 106 when it excludes part of

a statement if “the edited version . . . ‘distorts the meaning of the statement or

excludes information substantially exculpatory of the declarant.’” United States v.

Dorrell, 758 F.2d 427, 434-35 (9th Cir. 1985) (quoting United States v. Kaminski,

692 F.2d 505, 522 (8th Cir. 1982)). The same standard should apply to oral

statements under the common law rule of completeness operating through Rule

611(a). Thus, if the partial statement elicited from Rodriguez on direct

examination was misleading under the Dorrell standard, Quinones should have

been permitted to elicit the complete statement on cross examination of Rodriguez.

      B.     The Common Law Rule of Completeness Should Be Construed to
             Trump the Hearsay Rule

      In my view, the district court also erred in ruling it was compelled to exclude

the remainder of Quinones’ statement under the hearsay rule. To be sure, the

district court was correct that the hearsay rule was implicated here. The



                                            5
government was free to elicit testimony from Rodriguez about Quinones’

postarrest statement because Quinones and the government were party opponents.

See Fed. R. Evid. 801(d)(2). But were Quinones to elicit testimony from

Rodriguez about the remainder of the same postarrest statement, the statement

would be hearsay because Quinones would be offering his own out-of-court

statement rather than the statement of an opposing party. See Fed. R. Evid. 801(c),

802.

       Wise courts and commentators, however, have concluded the rule of

completeness should override, or “trump,” the hearsay rule in this specific context.

See, e.g., 21A Graham, supra, § 5072 (“[T]he common law doctrine carries with it

what Professor Nance calls ‘the trumping function’; that is, evidence that falls

within the completeness doctrine is [admissible2] even though it would otherwise

be inadmissible under some other rule of evidence. Thus, the opponent can

introduce what would otherwise be hearsay to complete a truncated statement

offered by the proponent.” (footnotes omitted)); Stephen A. Saltzburg et al.,

Federal Rules of Evidence Manual § 106.02 (11th ed. 2015) (“A party should not


       2
        Although this word appears as “inadmissible” in the original text, this is
clearly a typographical error in context and in light of the citation to Professor
Nance’s law review article. See Dale A. Nance, A Theory of Verbal Completeness,
80 Iowa L. Rev. 825, 839 (1995).

                                          6
be able to admit an incomplete statement that gives an unfair impression, and then

object on hearsay grounds to completing statements that would rectify the

unfairness. The appropriate way to resolve the hearsay issue is to hold that the

party who offers an incomplete statement or document forfeits any hearsay

objection to completing evidence that is necessary to correct a misleading

impression.”); Dale A. Nance, Verbal Completeness and Exclusionary Rules Under

the Federal Rules of Evidence, 75 Tex. L. Rev. 51, 54 (1996) (“If a proponent has

evidence of the opponent’s admission, the proponent may well be tempted to

introduce the part of that admission that is most damaging to the opponent, secure

in the knowledge that the opponent cannot respond. The completeness doctrine

vitiates this maneuver by assuring the introduction of all parts of the admission that

are demanded by the opponent and that affect the inferences that may legitimately

be drawn from the part of the utterance the proponent has chosen to introduce.

Thus, the completeness doctrine serves a trumping function in that it trumps

exclusionary rules that would otherwise prevent the opponent’s response.”); United

States v. Bucci, 525 F.3d 116, 133 (1st Cir. 2008) (“[O]ur case law unambiguously

establishes that the rule of completeness may be invoked to facilitate the

introduction of otherwise inadmissible evidence.”); United States v. Sutton, 801

F.2d 1346, 1368 (D.C. Cir. 1986) (“Rule 106 can adequately fulfill its function

                                          7
only by permitting the admission of some otherwise inadmissible evidence when

the court finds in fairness that the proffered evidence should be considered

contemporaneously. A contrary construction raises the specter of distorted and

misleading trials, and creates difficulties for both litigants and the trial court.”);

United States v. Castro-Cabrera, 534 F. Supp. 2d 1156, 1160-61 & n.6 (C.D. Cal.

2008) (“[T]he Rule of Completeness was designed to prevent the Government

from offering a ‘misleadingly-tailored snippet.’ . . . . Although the Rule of

Completeness cannot serve as an end run around the prohibition on inadmissible

hearsay, this principle does not allow the Government to offer abridged portions of

statements that distort the meaning of a statement.” (quoting Collicott, 92 F.3d at

983)). Indeed, when courts have refused to recognize the common law rule’s

trumping function, some judges have come to regret that decision. See United

States v. Adams, 722 F.3d 788, 826-27 & n.31 (6th Cir. 2013) (criticizing the Sixth

Circuit’s “bar against admitting hearsay” under the rule of completeness as

“leav[ing] defendants without redress” for “the government’s unfair presentation of

the evidence” and suggesting en banc reconsideration of that rule).

       The trumping function served by the rule of completeness is all the more

important where, as here, a criminal defendant’s constitutional right against self-

incrimination is involved. As numerous courts have recognized, a criminal

                                             8
defendant should not be forced to choose between leaving the government’s

distorted presentation unanswered and surrendering the Fifth Amendment right not

to testify. See Sutton, 801 F.2d at 1370 (“Since this was a criminal case [the

defendant] had a constitutional right not to testify, and it was thus necessary for

[the defendant] to rebut the government’s inference with the excluded portions of

these recordings.”); United States v. Marin, 669 F.2d 73, 85 n.6 (2d Cir. 1982)

(“[W]hen the government offers in evidence a defendant’s confession and in

confessing the defendant has also made exculpatory statements that the

government seeks to omit, the defendant’s Fifth Amendment rights may be

implicated.”); United States v. Walker, 652 F.2d 708, 713-14 (7th Cir. 1981)

(observing “the Government’s incomplete presentation may have painted a

distorted picture of [the criminal defendant’s] prior testimony which he was

powerless to remedy without taking the stand” and acknowledging that “[f]orcing

the defendant to take the stand in order to introduce the omitted exculpatory

portions of [a] confession . . . is a denial of his right against self-incrimination”

(alternations in original) (quoting 1 J. Weinstein & M. Berger, Weinstein's

Evidence ¶ 106[01] (1979)) (internal quotation marks omitted)); cf. Simmons v.

United States, 390 U.S. 377, 394 (1968) (“[O]ne constitutional right should [not]




                                            9
have to be surrendered in order to assert another.”).3

      I do not read our case law as precluding us from applying the trumping

principle here and making it a part of our circuit law. Neither United States v.

Ortega, 203 F.3d 675 (9th Cir. 2000), nor United States v. Fernandez, 839 F.2d

639 (9th Cir. 1988), expressly bars a district court from allowing a criminal

defendant to introduce otherwise inadmissible evidence under the common law

rule of completeness when the prosecution abuses the asymmetric hearsay rule to

introduce a misleadingly tailored snippet of the defendant’s statement.4 In Ortega,


      3
        Even when a criminal defendant chooses to testify, the trumping function
remains important. Absent trumping, the defendant could testify to the issues (i.e.,
underlying facts), but could not, consistent with the hearsay rule, testify to the
remainder of the truncated statement offered by the prosecution. Testifying to the
underlying facts may not be as effective as providing the complete statement. See
Nance, A Theory of Verbal Completeness, supra, at 846-47 n.68 (“One might argue
that trumping the hearsay rule is unnecessary in view of the opponent’s
opportunity to testify directly to the issues, one of the factors that seems to warrant
the asymmetry in the admissions exception in the first place. This opportunity,
however, will often be inadequate, since a trier of fact ignorant of the true tenor of
the hearsay is likely to discount the in-court, self-serving testimony in favor of the
out-of-court, adverse admission.” (citation omitted)).
      4
        We have held “Rule 106 does not compel admission of otherwise
inadmissible hearsay evidence.” Collicott, 92 F.3d at 983 (citations and internal
quotation marks omitted); see also Ortega, 203 F.3d at 682 (citing Collicott, 92
F.3d at 983). But we have never so held regarding the common law rule of
completeness, which is the relevant doctrine here. Nor have we ever held district
courts lack discretion under Rule 106 or the common law rule to admit otherwise
inadmissible hearsay when the government abuses the hearsay rule to introduce
                                                                       (continued...)

                                          10
the common law rule of completeness was not implicated, because we concluded

“[t]he officer’s testimony did not distort the meaning of Ortega’s statements.” 203

      4
         (...continued)
misleading evidence. See Castro-Cabrera, 534 F. Supp. 2d at 1161 (“[W]hile the
Rule of Completeness cannot be used in a general sense as an end run around the
usual rules of admissibility, each analysis must be done on a case-by-case basis in
order to avoid the injustice of having the meaning of a defendant’s statement
distorted by its lack of context.”). As Castro-Cabrera intimates, our cases
declining to recognize a trumping function of Rule 106 have not involved
manipulation of the hearsay rule to introduce a “misleadingly-tailored snippet,” let
alone in a criminal trial when a defendant cannot correct the distortion except by
waiving his privilege against self-incrimination. See id. at 1161 n.6 (distinguishing
Ortega and Collicott on the ground that “there is not an indication in either [case]
that the offered portions of statements created distortion or misrepresentation of the
meaning of the statement”); Ortega, 203 F.3d at 683 (“The officer’s testimony did
not distort the meaning of Ortega’s statements because Ortega testified to the
statements not mentioned by the officer.”); Collicott, 92 F.3d at 983 (“[T]he
purpose of Rule 106 would not be served if Zaidi’s statements were admitted
because there was no concern in this case that Collicott introduced a
misleadingly-tailored snippet from Zaidi’s statement to Kehl.”). See also United
States v. Mitchell, 502 F.3d 931, 965 (9th Cir. 2007) (“The inculpatory statements
elicited on direct examination of Agents Kirk and Duncan were not taken out of
context or otherwise distorted.” (citing Ortega, 203 F.3d at 683, and United States
v. Nakai, 413 F.3d 1019, 1022 (9th Cir. 2005))); Nakai, 413 F.3d at 1022 (“In
neither instance was the unadmitted hearsay necessary to place the admitted
statement in context.” (citing Ortega, 203 F.3d at 682)); United States v. Burreson,
643 F.2d 1344, 1349 (9th Cir. 1981) (holding the district court did not abuse its
discretion under Rule 106 when it “carefully considered the entire transcript, and
added material to the excerpt offered by the government to put it in proper context .
. . [but] concluded that the portion appellants wished to submit was irrelevant and
was inadmissable hearsay”). Whatever the limits of the trumping function of the
rule of completeness, at minimum it should apply in the particular circumstances
where the government has abused the asymmetrical nature of the hearsay rule in a
criminal trial and exclusion under the hearsay rule would implicate a criminal
defendant’s Fifth Amendment right not to testify on his or her own behalf.

                                          11
F.3d at 683. Furthermore, we held requiring the defendant to rely on his own

testimony as to his exculpatory statements “did not infringe upon his Fifth

Amendment right not to testify because he had already testified prior to the

officer’s testimony.” Id. (emphasis added). In Fernandez, there was no issue of

completeness, as the defendant sought to elicit his standalone denial made to an

FBI agent following his arrest. See 839 F.2d at 640. Thus, Fernandez says

nothing about the scope of the rule of completeness.

                                         ***

      In sum, I would hold the district court misapprehended the rules of evidence

in two significant respects. First, the court erred by limiting the rule of

completeness to written and recorded statements; under Rule 611, the court was

free to avail itself of the common law rule of completeness, which extends to

unrecorded oral statements as well. Second, I would hold the rule of completeness

serves a trumping function that overrides the hearsay rule in limited circumstances.

      Nonetheless, I concur in the result reached by the majority because I cannot

say the district court’s misapprehensions regarding the scope of its authority were

prejudicial. See United States v. Morales, 108 F.3d 1031, 1040 (9th Cir. 1997) (en

banc). Quinones failed to make an adequate offer of proof to show that Rodriguez

would have testified to the alleged exculpatory statement. See Fed. R. Evid.

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103(a)(2). When asked on cross examination whether Quinones had said anything

else “about him driving the boat,” Rodriguez testified: “He said he also needed

money, and he was coming here to see family.” Rodriguez did not testify or

suggest that Quinones had said he drove the boat only while the captain was

otherwise occupied. Although Rodriguez’s response was stricken upon objection,

he most likely would have given the same answer had the court permitted

Quinones to cross examine him about the complete postarrest statement. Because

Quinones has proffered no basis to conclude Rodriguez would have offered the

alleged exculpatory testimony if the challenged cross examination had been

allowed, I cannot conclude the district court’s misunderstandings regarding the rule

of completeness were prejudicial.




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