United States v. Frank Fernandez, 839 F.2d 639 (9th Cir. 1988). · Go Syfert
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United States v. Frank Fernandez, 839 F.2d 639 (9th Cir. 1988). Cases Citing This Book View Copy Cite
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cited 3× by 3 distinct cases, last quoted 2006 · …it seems obvious defense counsel wished to place the defendant's statement to the officer before the jury without subjecting the defendant to cross-examination, precisely what the hearsay rule forbids. at p. 640 ≈ altered
20 citation events (14 in the last 25 years) across 5 distinct courts.
Strongest positive: United States v. Martin (dcd, 2025-07-10)
Treatment trajectory · 1992 → 2026 · click a year to view as-of
1992 2009 2026
Top citers, strongest first. 14 distinct citers. How cited ↗
discussed Cited as authority (rule) United States v. Martin
D.D.C. · 2025 · confidence medium
A defendant is generally not permitted to place his exculpatory statements “before the jury without subjecting [himself] to cross-examination, precisely what the hearsay rule forbids.” United States v. Fernandez, 839 F.2d 639, 640 (9th Cir. 1988) (per curiam). 16 charge in this case to avoid apprehension,” specifically the property damage he caused during the first and second flights respectively.
discussed Cited as authority (rule) United States v. Jesus Quinones-Chavez (2×) also: Cited "see"
9th Cir. · 2016 · confidence medium
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) (per curiam).
discussed Cited as authority (rule) United States v. Valentin Gonzales
9th Cir. · 2015 · signal: cf. · confidence medium
Cf. United States v. Fernandez, 839 F.2d 639, 640 (9th Cir.1988) (per curiam) (holding that exclusion of defendant’s exculpatory hearsay statement did not violate due process because government did not introduce inculpatory hearsay statements by defendant); United States v. Benveniste, 564 F.2d 335, 339-42 (9th Cir.1977) (holding that excluding declarant’s exculpatory .out-of-court statements while admitting her inculpa-tory out-of-court statements deprived defendant of a fair opportunity to defend himself). 2 .
discussed Cited as authority (rule) United States v. Gomez
C.D. Cal. · 2011 · confidence medium
Id. at 3 (citing Fed.R.Evid. 801(d)(2)(A); United States v. Ortega, 203 F.3d 675, 682-83 (9th Cir.2000); United States v. Fernandez, 839 F.2d 639, 640 (9th Cir.1988); United States v. Willis, 759 F.2d 1486, 1501 (11th Cir.1985)).
discussed Cited as authority (rule) State v. GABRIS
Haw. App. · 2008 · confidence medium
HRE Rules 801 (Supp. 2007) and 802 (1993); Mathis v. State, 594 S.E.2d 737, 741 (Ga. Ct. App. 2004) ("The defendant is allowed to declare his innocence in court; he is not allowed to avoid this opportunity by pre-trial declarations of innocence."); United States v. Fernandez, 839 F.2d 639, 640 (9th Cir. 1988) (holding that defendant's exculpatory statement to police constituted inadmissible hearsay when offered by the defendant); see State v. Jhun, 83 Hawai`i 472, 477-81, 927 P.2d 1355, 1360-64 (1996) (concluding that a witness's statements to police constituted hearsay).
examined Cited as authority (rule) United States v. Jose Roman Ortega, AKA Romualdo Roman Ortega, Opinion (3×) also: Cited "see", Cited "see, e.g."
9th Cir. · 2000 · confidence medium
If the district court were to have ruled in his favor, Ortega would have been able to place his exculpatory statements “before the jury without subjecting [himself] to cross-examination, precisely what the hearsay rule forbids.” United States v. Fernandez, 839 F.2d 639, 640 (9th Cir.1988).
discussed Cited as authority (rule) United States v. Mario Alberto Vallejo
9th Cir. · 1992 · confidence medium
Because we conclude that the district court committed reversible error by not permitting cross-examination under Rule 612, we find it unnecessary to reach Vallejo's argument regarding admissibility under Rule 106 or the common-law doctrine of completeness. 8 Although the district court properly granted the government's motion in limine with respect to the Vallejo's exculpatory statements to Agent Roberts because those statements were inadmissible hearsay, see United States v. Fernandez, 839 F.2d 639, 640 (9th Cir.), cert. denied, 488 U.S. 832 , 109 S.Ct. 89 , 102 L.Ed.2d 65 (1988), the distric…
discussed Cited "see" United States v. Mitchell
9th Cir. · 2007 · signal: see · confidence high
See Ortega, 203 F.3d at 683 (no violation in such circumstances, when a defendant testifies himself as to exculpatory statements) (citing United States v. Fernandez, 839 F.2d 639, 640 (9th Cir. 1988) (per curiam)); Nakai, 413 F.3d at 1022 (same, without consider- ation of whether the defendant testified or not).
discussed Cited "see" United States v. Mitchell (2×)
9th Cir. · 2007 · signal: see · confidence high
See Ortega, 203 F.3d at 683 (no violation in such circumstances, when a defendant testifies himself as to exculpatory statements) (citing United States v. Fernandez, 839 F.2d 639, 640 (9th Cir.1988) (per curiam)); Nakai, 413 F.3d at 1022 (same, without consideration of whether the defendant testified or not).
discussed Cited "see" United States v. Rapeta-Garcia
9th Cir. · 2006 · signal: see · confidence high
See United States v. Fernandez, 839 F.2d 639, 640 (9th Cir.1988) (“It seems obvious defense counsel wished to place [the defendant’s] statement to [the officer] before the jury without subjecting [the defendant] to cross-examination, precisely what the hearsay rule forbids.”). b.
cited Cited "see" United States v. Chavez
9th Cir. · 2001 · signal: see · confidence high
See United States v. Fernandez, 839 F.2d 639, 640 (9th Cir.1988).
discussed Cited "see" United States v. Ben Edward Tomlin
9th Cir. · 1995 · signal: see · confidence high
See United States v. Fernandez, 839 F.2d 639, 640 (9th Cir.) (per curiam) ("It seems obvious defense counsel wished to place [the defendant's] statement to [the officer] before the jury without subjecting [the defendant] to cross-examination, precisely what the hearsay rule forbids."), cert. denied, 488 U.S. 832 (1988).
discussed Cited "see" United States v. Ben Edward Tomlin
9th Cir. · 1994 · signal: see · confidence high
See United States v. Fernandez, 839 F.2d 639, 640 (9th Cir.) (per curiam) ("It seems obvious defense counsel wished to place [the defendant's] statement to [the officer] before the jury without subjecting [the defendant] to cross-examination, precisely what the hearsay rule forbids."), cert. denied, 488 U.S. 832 (1988).
discussed Cited "see, e.g." Robles (Fernando) v. State
Nev. · 2016 · signal: see also · confidence medium
Further, "a court may impose reasonable limits on cross-examination without violating the Confrontation Clause," and "[p]recluding [a defendant] from eliciting inadmissible hearsay on cross-examination . . . is not the type of severe limitation on cross-examination that violates the Confrontation Clause." United States v. Ortega, 203 F.3d 675, 682-83 (9th Cir. 2000); see also United States v. Fernandez, 839 F.2d 639, 640 (9th Cir. 1988) (finding that due process does not require a defendant be allowed to present exculpatory hearsay statements); Rose, 123 Nev. at 205 11.18, 163 P.3d at 416 n.18…
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Frank FERNANDEZ, Defendant-Appellant
87-5028.
Court of Appeals for the Ninth Circuit.
Feb 19, 1988.
839 F.2d 639
1988 U.S. App. LEXIS 1997
1988 WL 11294
Thomas A. Hagemann, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee., Joseph F. Walsh, Los Angeles, Cal., for defendant-appellant.
Browning, Skopil, Kozinski.
Cited by 15 opinions  |  Published
PER CURIAM:

Frank Fernandez was indicted and tried for bank robbery in violation of 18 U.S.C. § 2113(a). In cross-examination of F.B.I. Agent Thomas Bateman, defense counsel sought to elicit a post-arrest statement Fernandez made to Bateman in which Fernandez denied committing the robbery. The court sustained the government’s objection that the question sought to elicit hearsay.

Since the statement was not to be used against Fernandez, Fernandez acknowledges it was not admissible under the exception to the hearsay rule found in Rule 801(d)(2)(A), Federal Rules of Evidence. United States v. Palow, 777 F.2d 52, 56 (1st Cir.1985).

Fernandez contends his post-arrest statement was not hearsay because it was not offered for the truth of its contents, but to forestall any assumption that he had admitted guilt by silence. Since the government made no suggestion that Fernandez's silence was significant and did not introduce evidence that an accusatory statement was made in Fernandez’s presence or that he failed to respond to such a statement — prerequisites to inferring an admission by silence, see United States v. Moore, 522 F.2d 1068, 1075 (9th Cir.1975)— Fernandez’s justification for eliciting the statement is unconvincing.

Fernandez was not prevented from introducing his denial — he could have testified to the statement himself. He chose not to testify. It seems obvious defense counsel wished to place Fernandez’s statement to Bateman before the jury without subjecting Fernandez to cross-examination, precisely what the hearsay rule forbids. See Fed.R.Evid. 801(c); United States v. Willis, 759 F.2d 1486, 1501 (11th Cir.1985).

Fernandez argues exclusion of the statement violated his due process rights, relying upon United States v. Benveniste, 564 F.2d 335 (9th Cir.1977). In this case, unlike Benveniste, the government did not introduce any allegedly inculpatory hearsay statement by Fernandez; therefore due process does not require that Fernandez be allowed to present exculpatory hearsay statements.

AFFIRMED