Opinion
CR-19-01838-001-TUC-RM (MSA)
11-20-2023
United States of America, Plaintiff, v. Christian Nicholas Orozco, Defendant.
REPORT AND RECOMMENDATION
HONORABLE MARIA S. AGUILERA, UNITED STATES MAGISTRATE JUDGE
Before the Court is a petition to revoke Defendant Christian Orozco's probation. For the following reasons, the Court will recommend that the allegations against him be sustained.
I. Background
In 2019, Defendant pleaded guilty to transportation of illegal aliens for profit. (Docs. 24, 26.) He was sentenced to a five-year term of probation, which was later revoked and then reinstated. (Docs. 46, 48, 66.) The judgment reinstating Defendant's probation requires that he follow certain conditions of supervision, including mandatory condition 1: “You must not commit another federal, state or local crime.” (Doc. 66; Gen. Order 17-18.)
In June 2023, Defendant's probation officer filed a petition to revoke his probation, alleging that he had violated mandatory condition 1. (Doc. 67.) The petition alleges that, on June 3, Defendant committed domestic violence assault and domestic violence disorderly conduct in violation of Arizona law. (Id. at 1.) Defendant denied the allegations, so an evidentiary hearing was held on October 17. (Docs. 75, 77.)
At the hearing, the Government called Probation Officer Arleen Morales, who is the supervisor to Defendant's probation officer. (Doc. 81 at 6.) Officer Morales testified that Defendant's supervision began on February 10, 2020; that, as a condition of probation, he was not to commit another local, state, or federal crime; and that Defendant's probation officer filed a petition to revoke on June 20, 2023, alleging that Defendant had violated that condition by committing two domestic violence offenses. (Id. at 6-8.)
The Government then called Tucson Police Department Officer Elizabeth Murphy-Thomas. (Id. at 25.) Officer Murphy testified that she responded on June 3 to a call about a domestic-violence incident. (Id. at 29-30.) From the call, she understood that the victim, Lisa Contreras, had called her father and stated that she had just been assaulted by her boyfriend, Defendant. (Id. at 30.)
About 20 minutes after the call, Officer Murphy found Contreras in the parking lot of the apartment complex where she lived with Defendant. (Id. at 30, 32.) Officer Murphy described Contreras as “crying,” “hysterical,” “upset,” and “breathing heavily,” as if she were “going to hyperventilate.” (Id. at 32-33.) Officer Murphy spoke with Contreras about the assault and took pictures of Contreras's face and shoulder. (Id. at 37-38.) The encounter was captured by Officer Murphy's body camera. (Id. at 31-32.) The body camera footage and photographs were admitted into evidence. (Pl.'s Exs. 1, 2, 3, 4, 5, 6, 7, 8, 9.)
Officer Murphy testified that, after Defendant was arrested for the assault on July 3, Contreras went to the police station and recanted her statement. (Doc. 81 at 49.) According to Officer Murphy, abusive relationships often are characterized by what is called the “circle of violence,” which involves a “tension building” phase, an “explosion” (violence), and then a “honeymoon” phase. (Id. at 50.) Officer Murphy explained that the honeymoon phase is usually when victims recant. (Id.)
II. Legal Standard
The Government must prove by a preponderance of the evidence that Defendant violated a condition of his probation. United States v. Ramirez, 347 F.3d 792, 798 & n.5 (9th Cir. 2003); United States v. Perkins, 67 F.4th 583, 615 (4th Cir. 2023).
III. Discussion
Defendant is accused of violating mandatory condition 1, which prohibits him from committing another federal, state, or local crime. The Court finds by a preponderance of the evidence that Defendant violated that condition by committing domestic violence assault and domestic violence disorderly conduct.
Under Arizona law, a person commits assault by “[i]ntentionally, knowingly or recklessly causing any physical injury to another person.” A.R.S. § 13-1203(A)(1). A person commits disorderly conduct if, “with intent to disturb the peace” of another person, he “[e]ngages in fighting, violent or seriously disruptive behavior.” Id. § 13-2904(A)(1). These are designated as “domestic violence” crimes if “the victim and the defendant . . . resid[e] or hav[e] resided in the same household,” or if “[t]he victim and the defendant have a child in common.” Id. § 13-3601(A)(1), (2).
Cardenas's statements, as captured on the body camera footage, are persuasive evidence that Defendant committed the foregoing crimes. As a threshold matter, the Court finds that it may consider Cardenas's hearsay statements. Hearsay is admissible during revocation proceedings. Fed.R.Evid. 1101(d)(3). Moreover, Cardenas's initial statements to Officer Murphy are excited utterances. An excited utterance is “[a] statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.” Fed.R.Evid. 803(2). Cardenas was plainly in distress when Officer Murphy encountered her-she was visibly shaking and crying, and her voice wavered as she spoke-and her statements concerned an assault by Defendant that had occurred within about the last 30 minutes. From an evidentiary perspective, then, it is proper to consider those statements. See United States v. Rivera, 43 F.3d 1291, 1296 (9th Cir. 1995) (finding that hearsay statements made at least 30 minutes after the startling event were admissible as excited utterances).
The Court also finds that the absence of Cardenas's live testimony does not violate Defendant's due process right of confrontation. “To determine ‘whether the admission of hearsay evidence violates the releasee's right to confrontation in a particular case, the court must weigh the releasee's interest in his constitutionally guaranteed right to confrontation against the Government's good cause for denying it.'” United States v. Hall, 419 F.3d 980, 986 (9th Cir. 2005) (quoting United States v. Comito, 177 F.3d 1166, 1170 (9th Cir. 1999)). The releasee's interest turns on “the importance of the hearsay evidence” and “the accuracy and reliability of the proffered evidence.” Comito, 177 F.3d at 1171. The Government's good cause generally turns on “both the difficulty and expense of procuring [the] witness[] and the traditional indicia of reliability borne by the evidence,” Hall, 419 F.3d at 988 (quoting United States v. Martin, 984 F.2d 308, 312 (9th Cir. 1993)), but other factors may demonstrate good cause “depending on the specific circumstances,” Comito, 177 F.3d at 1172.
Cardenas's statements are the primary evidence against Defendant, but his interest in confronting her is lessened by the fact that many of her statements are excited utterances. Excited utterances are inherently “trustworthy,” such that “cross-examination would be superfluous.” Idaho v. Wright, 497 U.S. 805, 820 (1990); see Hall, 419 F.3d at 987 (“[L]ong-standing exceptions to the hearsay rule that meet the more demanding requirements for criminal prosecutions should satisfy the lesser standard of due process accorded the respondent in a revocation proceeding.”). In addition, Cardenas's statements are corroborated by Officer Murphy's observations of redness and swelling on Cardenas's face and of a red mark on Cardenas's left shoulder. (Doc. 81 at 37; Pl.'s Exs. 2, 5.) The statements are also highly detailed, which supports the conclusion that they are reliable. See United States v. Lloyd, 566 F.3d 341, 345 (3d Cir. 2009) (stating that hearsay is more reliable when it is “replete with detail” (citing United States v. Bell, 785 F.2d 640, 644 (8th Cir. 1986))).
While the Government has not shown that it would be difficult to secure Cardenas's appearance, the Court finds that the numerous reliability factors establish good cause for her absence. Therefore, the Court considers Cardenas's statements.
The footage shows Cardenas telling Officer Murphy that Defendant became angry and hit her in the face and shoulder. She said “he kept hitting [her] and hitting [her]” to the point that she feared he would give her a concussion. The photographs show swelling and redness on Cardenas's face and redness on her shoulder. This evidence establishes that Defendant intentionally caused physical injury to Cardenas and engaged in violent behavior with intent to disturb her peace. Cardenas's statements made clear that she lived with Defendant in the complex where officers encountered her, and that the two shared a child in common; this establishes the type of relationship that gives rise to a domestic violence crime. Finally, Cardenas was crying, had a trembling voice, and was short of breath while making the foregoing statements, indicating that her peace was in fact disturbed. This evidence establishes by a preponderance of the evidence that Defendant committed domestic violence assault and domestic violence disorderly conduct.
Defendant highlights that Cardenas recanted her statement, but that is not persuasive evidence that her initial statements were false. As previously noted, her initial statements are excited utterances, which are inherently reliable, and are corroborated by the evidence of her injuries. See White v. Illinois, 502 U.S. 346, 355 n.8 (1992) (explaining that statements falling within “firmly rooted” hearsay exceptions, like the exited utterance exception, are inherently reliable). In addition, there is good reason to doubt Cardenas's later recantation. Officer Murphy testified that it is not unusual for victims of domestic violence to recant their statements, and, here, Cardenas recanted only after Defendant was arrested.
Defendant also argues that Cardenas is not credible because he has never tested positive for fentanyl while on probation, yet Cardenas told Officer Murphy that he uses, and has overdosed on, fentanyl. However, Defendant misstates what Cardenas actually said. Cardenas told Officer Murphy that Defendant was a “drug addict” and had “overdosed on [her] twice in the past two years.” (Pl.'s Ex. 1 at 11:00-11:09.) When asked what he uses, she said, “the pills, I don't know,” and then said, “I caught him one time with the blues.” (Id. at 11:11-11:18.) Thus, she never stated that Defendant was a frequent fentanyl user or that Defendant had overdosed twice on fentanyl. ....
IV. Conclusion
The Court finds by a preponderance of the evidence that, on or about June 3, 2023, Defendant committed domestic violence assault and domestic violence disorderly conduct, both in violation of Arizona law. Therefore, the Court recommends that the district court find that Defendant violated mandatory condition 1 of his conditions of probation. This recommendation is not immediately appealable to the United States Court of Appeals for the Ninth Circuit. The parties have 14 days to file specific written objections with the district court. Fed. R. Crim. P. 59(b)(2). The parties have 14 days to respond to objections. The parties may not file replies to objections absent the district court's permission. The failure to file timely objections may result in the waiver of de novo review. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).