In United States v. Vera, Nos. 16-50364, 16-50366, the Ninth Circuit addressed whether a district court could rely solely upon Rule 804(b)(3) (statements against interest) of the Federal Rules of Evidence to use non-self-inculpatory statements in a co-conspirator’s plea agreement to determine a defendant’s drug-quantity liability. The Ninth Circuit first recognized that the Confrontation Clause does not apply at sentencing, and that district courts have wide discretion when deciding upon which information to rely. The court also recognized that, pursuant to USSG §6A1.3(a), the information must have “sufficient indicia of reliability to supports its probable accuracy.”
In the district court, the government used co-conspirator plea agreements to support the drug quantity attributable to Vera. The district court concluded that the plea agreements were reliable statements against interest under Rule 804(b)(3). The Ninth Circuit reversed, holding that at sentencing, “district courts may not rely solely on Rule 804(b)(3) to use non-self-inculpatory statements in a co-conspirator’s plea agreement to determine a defendant’s drug quantity liability.” In this case, the statements were not supported by sufficient indicia of reliability.