On April 16, 2024, the U.S. Court of Appeals for the Ninth Circuit reversed the conviction of a federal prisoner for assaulting two guards. The Court concluded that Gabriel Mirabal should have been permitted to present evidence that the government’s position during a co-defendant’s case was antithetical to that taken at his trial. The trial court excluded this evidence as hearsay, but the Court said that was error because the statements were made by a “party-opponent.”

Mirabal was a prisoner at the Federal Correctional Institution in Victorville, California, on August 19, 2017, when he and fellow prisoner Erik Rojo passed through a metal detector on their return to their cell block after lunch. One of them wore a white shirt, the other a brown shirt, but only the latter triggered the device. Guards Brian Moreno and Anthony Guerrero stopped the brown-shirted prisoner and initiated a pat down search. An argument ensued.

Moreno claimed the brown-shirted prisoner punched him without provocation. Mirabal, who claimed he was that prisoner, said he swung in self-defense after Moreno raised his arm to strike him. Guerrero intervened in the melee, and the other prisoner in the white shirt joined the fray, punching Moreno in the back of the head. The guard lost consciousness. Other guards rushed in to quell the disturbance. Both Moreno and Guerrero suffered physical injuries.

A federal grand jury indicted both Rojo and Mirabal on two counts of assaulting a federal officer resulting in bodily injury—one for each guard—and aiding and abetting thereof. Rojo took a plea deal, in which he was identified as the white-shirted prisoner. Government prosecutors did not disagree and in fact reaffirmed that Mirabal was the brown-shirted prisoner and Rojo wore the white shirt, both at Rojo’s change of plea and sentencing hearings. However, one day after Rojo’s sentencing hearing, the government filed an amended plea agreement omitting any reference to Mirabal.

Mirabal’s case proceeded to trial, at which the key issue was the color of shirt he wore. Throughout trial, he contended that it was brown, and that he swung at Moreno in self-defense. The government, however, contended that Mirabal was the white-shirted prisoner who punched Moreno from behind and knocked him out. Prosecutors filed a motion in limine to exclude their previous statements during Rojo’s case—identifying Mirabal as the brown-shirted prisoner—arguing that the evidence constituted inadmissible hearsay. The district court agreed and granted the motion. At trial then, the evidence presented did not clearly indicate which prisoner wore what shirt—even other guards involved couldn’t agree—but the jury rejected Mirabal’s self-defense claim and convicted him as charged. He appealed.

At the Ninth Circuit, Mirabal argued that government statements during Rojo’s case identifying Mirabal as the brown-shirted prisoner should have been admitted at trial, pursuant to Federal Rule of Evidence 801(d)(2); that rule exempts from the definition of “hearsay” any statements made by an opposing party. The government argued that prosecutors’ statements were merely “opinions.” But the Court flatly rejected this, concluding that the rule “encompasses formal, signed statements made by a government attorney in filings before a court, such as plea agreements and sentencing memoranda.”

Therefore, prosecution statements in Rojo’s case were those of a party-opponent and “constituted the official position of the United States regarding what happened during the August 19 altercation.” The district court erred in excluding them—an error that was not harmless, either, since the brown-shirted prisoner had a much stronger self-defense case. Accordingly, Mirabal’s conviction was vacated and his case remanded for a new trial. Before the Court, he was represented by San Francisco attorney Elizabeth Richardson-Royer. See: United States v. Mirabal, 98 F.4th 981 (9th Cir. 2024).

While his appeal was pending, Mirabal also filed a civil rights complaint against Moreno and Guerrero, claiming the guards are members of “hate groups” and that this animus motivated the altercation. But he sued under 42 U.S.C. § 1983, which does not apply to federal officials, rather than Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), which does. After giving the prisoner a chance to correct the deficiency, which he didn’t take advantage of, the district court dismissed the case on December 21, 2023. See: Mirabal v. Fed. Bureau of Prisons, 2023 U.S. Dist. LEXIS 236502 (C.D. Cal.).