705 F.3d 1117
9th Cir.2013Background
- Appellant Jorge de Jesus-Casteneda was convicted of possession with intent to distribute methamphetamine under 21 U.S.C. § 841(a)(1),(b)(1)(B)(viii).
- A confidential informant (CI) testified at trial; the government sought to disguise the CI with a wig and mustache to protect identity due to cartel involvement.
- The court allowed the CI to testify in disguise (wig and mustache; sunglasses not used); eyes remained visible and the CI testified under oath and was cross-examined.
- Defense objected, arguing the disguise could affect credibility and violate the Confrontation Clause; the court treated the disguise as a minor impairment to demeanor observation.
- Defendant had prior opportunity to see the CI in person at the undercover warehouse; trial proceedings proceeded with the CI in disguise and no curative instruction given.
- The district court denied a Confrontation Clause violation and held any due process error harmless; the appellate court reviews for abuse of discretion and harmless error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does disguise testimony violate the Confrontation Clause? | Casteneda argues the disguise violated confrontation rights. | Casteneda contends the disguise impairs demeanor observation and cross-examination. | No Confrontation Clause violation; discretion not abused. |
| Was any due process error in the disguise prejudicial? | Casteneda asserts prejudice from disguise against him. | Casteneda argues due process was violated by concealment of identity. | Any due process error, if any, was harmless. |
| Standard of review for district court’s decision to allow disguise | N/A | N/A | Abuse of discretion standard applies; no abuse found. |
| Whether Craig v. Maryland governs disguise cases in this circuit | Disguise may be permissible if reliability is assured. | Face-to-face confrontation is not absolute when reliability is assured. | Craig framework applies; disguise permissible where important state interest and reliability are assured. |
Key Cases Cited
- NLRB v. Dinion Coil Co., 201 F.2d 484 (2d Cir. 1952) (demeanor evidence informs trustworthiness)
- Churchill v. Waters, 977 F.2d 1114 (7th Cir. 1992) (eye contact among credibility factors)
- Craig v. Maryland, 497 U.S. 836 (1990) (face-to-face is not absolute; important state interests may justify testimony away from defendant)
- California v. Green, 399 U.S. 149 (1970) (central value of confrontation; demeanor observation aids credibility)
- Delaware v. Van Arsdall, 475 U.S. 673 (1986) (trial court may impose limits on cross-examination for safety; confrontation framework)
- Morales v. Artuz, 281 F.3d 55 (2d Cir. 2002) (demeanor and credibility remain assessable where testimony is observed)
- Chapman v. California, 386 U.S. 18 (1967) (harmless-error standard beyond reasonable doubt)
- Romero v. State, 173 S.W.3d 502 (Tex. Crim. App. 2005) (disguise analysis under Craig framework; state interests and reliability considerations)
- State v. Hernandez, N.H. 986 A.2d 480 (N.H. 2009) (adopts Craig approach to disguise testimony)