934 F.3d 1049
9th Cir.2019Background
- Joseph and Adriana Shayota ran Baja Exporting and imported 5-Hour Energy under license; after the license ended they relabeled and sold remaining stock and then manufactured and distributed counterfeit 5-Hour Energy in 2012.
- Living Essentials sued in civil court; depositions of participants (Walid Jamil and Leslie Roman) were taken with Shayotas’ counsel present; the civil suit settled.
- A federal criminal prosecution later charged the Shayotas with conspiracy to traffic in counterfeit goods and related offenses; Jamil and Roman pleaded guilty in the criminal case or otherwise became targets.
- At the Shayotas’ criminal trial the government sought to admit Jamil’s and Roman’s prior civil deposition testimony after both witnesses invoked the Fifth Amendment and declined to testify at trial.
- District court admitted the depositions; the jury convicted the Shayotas. On appeal they argued admission violated the Sixth Amendment Confrontation Clause because the declarants were "available" (government could have compelled or immunized them).
- The Ninth Circuit affirmed, finding any error in treating the witnesses as "unavailable" was harmless given corroborating live testimony and strong overall evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prior civil depositions are admissible against criminal defendants when declarants later invoke the Fifth Amendment | Shayotas: Admission violated Confrontation Clause because declarants were effectively available (gov’t could grant immunity/compel) | Government: Declarants were unavailable because they validly asserted Fifth Amendment and defendants had prior opportunity to cross-examine in civil deposition | Admission affirmed; even if treating declarants as unavailable was error, it was harmless given corroborating evidence |
| Whether invoking Fifth Amendment renders a witness "unavailable" for Confrontation Clause purposes | Shayotas: No—prosecutor’s power to grant immunity means witness not truly unavailable | Government: Yes—courts in this circuit treat invocation of privilege as unavailability | Court applied circuit precedent treating invocation as unavailability but declined to resolve the underlying doctrinal tension because any error was harmless |
| Standard for harmlessness of Confrontation Clause violation | Shayotas: Violation not harmless because deposition testimony was important | Government: Error (if any) was harmless due to corroborating witness testimony and circumstantial evidence | Harmless error applied; conviction stands |
| Whether Rule 804’s definition of unavailability controls Confrontation Clause analysis | Shayotas: Rule 804 should not substitute for historical/common-law Confrontation analysis | Government: Rule 804 aligns with constitutional requirements | Court relied on precedent and harmless-error doctrine; concurrence urged revisiting historical scope but not controlling the outcome |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause requires prior opportunity for cross-examination unless declarant is unavailable)
- United States v. Wilmore, 381 F.3d 868 (9th Cir. 2004) (assertion of Fifth Amendment privilege renders witness unavailable for Confrontation purposes)
- California v. Green, 399 U.S. 149 (1970) (noting Confrontation Clause not necessarily violated if witness claims privilege against self-incrimination)
- Douglas v. Alabama, 380 U.S. 415 (1965) (admission of confession implicating defendant where declarant invoked Fifth can violate Confrontation Clause)
- Lilly v. Virginia, 527 U.S. 116 (1999) (plurality assumed invoking Fifth may render witness unavailable for Confrontation purposes)
- Kastigar v. United States, 406 U.S. 441 (1972) (use and derivative-use immunity sufficient to compel testimony over a Fifth Amendment claim)
- United States v. Bernard S., 795 F.2d 749 (9th Cir. 1986) (Confrontation Clause violations evaluated under harmless-error analysis)
- Mattox v. United States, 156 U.S. 237 (1895) (Confrontation Clause aimed to prevent introduction of depositions/ex parte affidavits in lieu of face-to-face examination)