Federal Evidence Review

In ecstasy distribution retrial, excluding prior trial testimony of a cooperating witness whom the government later deported (without notifying defense counsel or the trial court); even though the former trial testimony satisfied FRE 804(b)(1), the government had not shown that the deported witness was unavailable under FRE 804(a)(5); Ninth Circuit agrees with the First Circuit that “[i]mplicit . . . in the duty to use reasonable means to procure the presence of an absent witness” under FRE 804(a)(5) “is the duty to use reasonable means to prevent a present witness from becoming absent,” in United States v. Yida, 498 F.3d 945 (9th Cir. Aug. 16, 2007) (No. 06-10460)

Under Crawford v. Washington, 541 U.S. 36, 59 (2004) the Sixth Amendment Confrontation Clause was construed to restrict the admission of hearsay at criminal trials, so that “[t]estimonial statements of witnesses absent from trial" would be "admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” Under the FRE, a declarant is deemed “unavailable” where the declarant asserts a claim of privilege against self-incrimination (FRE 804(a)(1)), or, refuses to testify despite a court order (FRE 804(a)(1)), suffers from a lack of memory,(FRE 804(a)(3)), is deceased, (FRE 804(a)(4)) or is simply absent despite the proponent's "reasonable" efforts to procure the declarant's attendance (FRE 804(a)(5)). FRE 804(a)(5) specifically defines for purposes of applying the hearsay exceptions specified in FRE 804(b) when a declarant is deemed unavailable. When is a witness unavailable? In one of the few cases to consider this issue, the Ninth Circuit explicitly applied a test used by the First Circuit to consider when the witness is unavailable for purposes of applying the FRE 804(b) hearsay exceptions.

In the case, witnesses Reziniano testified at defendant's first trial for distribution of ecstasy and was subject to the defendant's cross-examination. However, a mistrial was declared in the case when the jury was unable to arrive at a unanimous verdict. Although preparing to re-try the defendant, the government allowed the witness to be removed from the country. When the defendant's second trial commenced, the government found that the witness would not (or claimed he medically could not) return to the United States. Unable to secure the witness's return for the defendant's retrial, the government moved in limine to introduce the witness's first trial testimony in the pending second trial by having a transcript of that witness's testimony from the first trial read into the record.

The trial judge rejected this motion, concluding that the government failed to show Reziniano was an “unavailable” witness after it permitted him to be deported. The court noted the government did not use “reasonable means” to “procure” his testimony under FRE 804(a)(5). After distinguishing Ninth Circuit cases, the trial court was persuaded that the witness should not be considered “unavailable” under FRE 804(a), consistent with the position taken by the First Circuit in United States v. Mann, 590 F.2d 361 (1st Cir. 1978) (after court-ordered deposition, government allowed witness to leave country by returning airline tickets and passport; witness was not “unavailable” after she refused to return and testify under FRE 804(a)(5)).

The government then made an expedited appealed of this ruling under 18 U.S.C. § 3731. The Ninth Circuit affirmed the exclusion of the former testimony from the first trial. The Circuit noted that the parties in defendant's case agreed that the testimony from the first trial satisfied the former testimony exception under FRE 804(b)(1). Yila, 498 F.3d at 949-50 n.5 (citing United States v. Mohawk, 20 F.3d 1480, 1488 (9th Cir. 1994) (“If important witnesses [from a first trial] have become, for one reason or another, unavailable, their former testimony may be introduced at the second trial.”); accord United States v. Vargas, 933 F.2d 701, 705 (9th Cir. 1991) (FRE 804(b)(1) did not apply where witness was available as a witness)). The central issue the Circuit faced on appeal was whether the government could show Reziniano was an unavailable witness under either FRE 804(a)(4) or FRE 804(a)(5).

The Ninth Circuit noted its agreement with the First Circuit that a “reasonable means” to seek the attendance of an unavailable witness under FRE 804(a)(5) also includes “the duty to use reasonable means to prevent a present witness from becoming absent.” Yila, 498 F.3d at 955 (citing United States v. Mann, 590 F.2d 361, 363, 367, 368 (1st Cir. 1978) (“[e]ven where the absent witness is beyond the court’s jurisdiction, ‘the government must show diligent effort on its part to secure the (witness’) voluntary return to testify’”; while the government acted in good faith in obtaining a court-ordered deposition of an Australian citizen, “the prosecution returned to [witness] Shine both her airplane tickets and her passport”; given the government’s role in facilitating her departure, the government “failed to demonstrate that the witness was unavailable” after she refused to return and testify under FRE 804(a)(5)) (citation omitted).

In measuring the “reasonableness” of the government conduct, the circuit broadened the temporal period to include “the government’s actions both before and after Reziniano’s material witness warrant was released and he was deported.” Yila, 498 F.3d at 957. The circuit agreed with the trial court that the government acted in good faith. Nonetheless, the government’s conduct was not reasonable given other available options. Yila, 498 F.3d at 960 (“We agree with the district court and conclude that the government’s decision to deport Reziniano without informing either the court or Yida’s counsel, without taking a video deposition, and without having any means of compelling his return, was not reasonable, particularly when contrasted with the alternatives available to the government.”)

As the Ninth Circuit explained:

Because the choices open to the government were not limited to either detaining Reziniano or deporting him, it is hard to credit the government’s Fifth Amendment argument [about keeping Reziniano in custody as a material witness after his sentence was served], particularly its conclusion that such concerns compel a finding that deportation was reasonable under the circumstances. Instead, the government could have released Reziniano from federal custody, but required him to remain in the United States until he had testified at the retrial. Such release might have been accompanied by the confiscation of his passport, service of a subpoena, and the imposition of conditions on his release such as home confinement, limited travel, and/or some form of electronic detention.

Yila, 498 F.3d at 959 (citing United States v. Mann, 590 F.2d 361, 363, 366 (1st Cir. 1978) (trial court erred in granting prosecution motion to depose its principal witness who was a juvenile Australian citizen who left Puerto Rico for Australia once her deposition was taken because the case against the defendant was substantially or entirely dependent upon testimony of the witness, there was no indication of any personal hardship or necessity that required her presence elsewhere, and sufficient relief could have been offered the witness by placing her in lesser custody or by supplying her maintenance and retaining her passport and plane tickets so she could not leave the jurisdiction); see also United States v. Linton, 502 F. Supp. 878, 879-81 (D. Nev. 1980) (after witness deposition, requiring twice-weekly probation visits and restricted travel))].

The circuit noted that the government could have considered a video deposition which would “(1) allow the jury to observe Reziniano’s demeanor; (2) allow Yida to use information acquired since his first trial in examining Reziniano; (3) allow Yida to develop and explore any inconsistencies between Reziniano’s testimony at the first trial and testimony during the video deposition; and (4) avoid the possibility of the government using the transcript because it believes that ‘it may fare worse if the witness has to testify again.’” Yila, 498 F.3d at 959 (citation omitted). The circuit also suggested that the witness could provide a video deposition in Israel or “testify live through a direct video feed to the courtroom.” Yila, 498 F.3d at 960 n.14.

The circuit also concluded that the witness was not “unavailable” by medical necessity based on physical or mental illness or infirmity under FRE 804(a)(4). The government had submitted declarations to support the medical necessity. However, there was no “doctor’s certificate” that the witness could not travel. The government conceded on appeal that the declarations “did not necessarily compel a finding of medical unavailability.” Yila, 498 F.3d at 961. The circuit noted that “[t]he district court did not abuse its discretion in requiring more than Reziniano’s self-serving statements about his health, as relayed through his conversations with government agents, in order to find him unavailable due to physical illness or infirmity. It is clear from the transcript and record that the district court considered the government’s motion, along with the government’s declarations regarding Reziniano’s medical problems, and found them to be insufficient to establish unavailability based on medical necessity. Nothing in the government’s supplemental briefing or supplemental declaration offered any further information regarding Reziniano’s health, despite the district court’s indication that a doctor’s certificate or something more indicating that Reziniano could not travel, as opposed to, preferred not to travel because of his health, was necessary.” cite>Yila, 498 F.3d at 962.

The circuit also noted in its opinion that there was a judicial preference for live testimony of witnesses, which the Confrontation Clause facilitated, particularly the value of evaluating witness demeanor, noting it was important because:

Demeanor is of the utmost importance in the determination of the credibility of a witness. The innumerable telltale indications which fall from a witness during the course of his examination are often much more of an indication to judge or jury of his credibility and the reliability of his evidence than is the literal meaning of his words. Even beyond the precise words themselves lies the unexpressed indication of his alignment with one side or the other in the trial. It is indeed rarely that a cross-examiner succeeds in compelling a witness to retract testimony which is harmful to his client, but it is not infrequently that he leads a hostile witness to reveal by his demeanor -- his tone of voice, the evidence of fear which grips him at the height of cross-examination, or even his defiance — that his evidence is not to be accepted as true, either because of partiality or overzealousness or inaccuracy, as well as outright untruthfulness. The demeanor of a witness, as Judge Frank said, is "wordless language.”

(citing Gov’t of the Virgin Is. v. Aquino, 378 F.2d 540, 552 (3d Cir. 1967) (quoting Broad. Music, Inc. v. Havana Madrid Rest. Corp., 175 F.2d 77, 80 (2d Cir. 1949)).

Expanding on the Confrontation Clause further, the circuit also found “persuasive” further reasons noted by Professor Richard D. Friedman of the University of Michigan Law School, in his amicus brief:

First, since ‘[w]itnesses who testify live at the current trial speak as of the current time,’ while witness testimony via ‘transcript speaks as of the time of the prior proceeding, and cannot be updated’ the accused can only use recently acquired information in crossexamining a witness if that testimony is live. The ability to cross-examine a witness at trial using the most current investigative information available cuts to the heart of the Sixth Amendment’s confrontation clause. Second, witnesses who testify at both proceedings may expose inconsistencies between the two versions of their testimony, that can be exploited by the adverse party during cross-examination at the second proceeding, but witnesses whose prior testimony is introduced through a transcript at the current trial do not. Again, the core of the accused’s right to confront the witnesses against him is implicated. Finally, allowing the prosecution to present a transcript, rather than live testimony, may lead to the presentation of that transcript when live testimony is vulnerable for the prosecution’s case.

Yila, 498 F.3d at 951 (footnote omitted)

For these reasons, the circuit affirmed the district court’s conclusion that the government had failed to show the witness was unavailable under FRE 804(a). Based on the resolution of the issue under FRE 804, the circuit did not consider whether Confrontation Clause “requirements concerning unavailability … require the same result.” Yila, 498 F.3d at 962 n.14 (citing Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 778 (2005) (doctrine to avoid unnecessary constitutional determinations); Bellotti v. Baird, 428 U.S. 132, 146-51 (1976) (avoiding constitutional challenge based on statutory interpretation)).

Significantly, Circuit Judge Gould, who authored the opinion, also concurred to note that “there is also a constitutional dimension to the concept of unavailability” which was independent of FRE 804. As he noted, “if we were to interpret Federal Rule of Evidence 804 to give carte blanche to the government to send a witness who has already testified to a location beyond the court’s process, we would have to assess whether that witness was ‘unavailable’ within the meaning of the bounds set by the Sixth Amendment.” cite>Yila, 498 F.3d at 963.