UNITED STATES of America, Plaintiff-Appellant, v. Yacov YIDA, Defendant-Appellee.
No. 06-10460.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Feb. 15, 2007. Filed Aug. 16, 2007.
498 F.3d 945
Before RONALD M. GOULD and MILAN D. SMITH, JR., Circuit Judges, and ALFRED V. COVELLO, District Judge.
Opinion by Judge GOULD; Concurrence by Judge GOULD.
Dana R. Wagner (argued and on the brief), Assistant United States Attorney, and Kevin V. Ryan, United States Attorney, Barbara J. Valliere, Assistant United States Attorney, Chief, Appellate Section, and James T. Chou, Assistant United States Attorney, San Francisco, CA, (on the brief) for plaintiff-appellant United States of America.
GOULD, Circuit Judge:
The United States government appeals the district court‘s order excluding the former trial testimony of witness David Reziniano in the retrial of defendant Yacov Yida. We have jurisdiction pursuant to
I
In 1999 and 2000, Yida, Reziniano, and other co-conspirators allegedly participated in an ecstasy smuggling operation. Reziniano pleaded guilty in 2004 to conspiring to import ecstasy and was sentenced to a term of sixty-three months. On November 25, 2005, Reziniano, a native and citizen of Israel, was released into the custody of the Department of Homeland Security (“DHS“) for deportation proceedings. Reziniano did not contest the proceedings and on December 7, 2005, an immigration judge ordered his deportation.
Special Agent Catherine Miller of Immigration and Customs Enforcement obtained a material witness warrant for Reziniano on December 8, 2005, as he was scheduled to testify at Yida‘s upcoming trial. Reziniano remained in custody pursuant to the material witness warrant for about five months before and during Yida‘s April 2006 trial. During his incarceration, Reziniano complained that his medical and dietary needs were not being adequately addressed, and that he wished to be released from custody and deported.2
After the district court declared a mistrial, Reziniano‘s attorney, Randy Sue Pollock, contacted the government in an attempt to resume her client‘s deportation proceedings. The government explored whether it would be possible to release Reziniano and arrange for his return in the event of a retrial. The government did not, however, notify the district court or Yida‘s defense counsel about these conversations or about Reziniano‘s subsequent release and deportation. After receiving assurances from both Reziniano and Pollock that Reziniano would return to testify if asked, and receiving advance approval from DHS to have him paroled back into the United States, the government agreed to Reziniano‘s deportation. The government also agreed to pay for Reziniano‘s airfare, hotel, food, and incidental expenses if it called upon him to testify at the retrial. After the government released Reziniano‘s material witness warrant, he was returned to DHS custody and deported to Israel.4
Pollock continued to communicate with Reziniano after his deportation in order to keep him apprised of developments in the Yida case. On June 12, 2006, Reziniano called Pollock and said that he would not return to the United States to testify because “he needed to obtain medical treatment and ... he had not been well since his return to Israel.” Pollock and another former attorney for Reziniano, Michael Stepanian, were unable to convince Reziniano to return to testify. They then notified Assistant United States Attorney Dana Wagner and gave him Reziniano‘s contact information.
Both Wagner and Special Agent Miller called Reziniano and tried to convince him to fulfill his promise to return and testify. Reziniano told the government that he was having medical problems related to the
On July 5, 2006, the government filed a motion in limine seeking to admit Reziniano‘s testimony from Yida‘s first trial pursuant to
The district court explained that the dispositive issue “is not whether the Government‘s efforts to convince a since-deported witness to return to testify were reasonable” but instead “whether the Government‘s decision to permit Reziniano to be deported in the first place, while in the custody of the Government, was a ‘reasonable means’ to ‘procure the declarant‘s testimony.‘” (quoting
On July 14, 2006, the government filed this expedited appeal pursuant to
II
“Although we generally review evidentiary determinations involving an application of the Federal Rules of Evidence for an abuse of discretion, we review de novo the district court‘s interpretation of those rules.” United States v. Norris, 428 F.3d 907, 913 (9th Cir.2005) (quoting United States v. Sioux, 362 F.3d 1241, 1244 n. 5 (9th Cir.2004)). Thus, we review whether the district court correctly construed the hearsay rule, which is a question of law, de novo and the district court‘s decision not to admit evidence under a hearsay exception for abuse of discretion. Olafson, 213 F.3d at 441.
III
Reziniano‘s former testimony,5 which qualifies as hearsay, is only admissible if one of Federal Rule of Evidence 804‘s
Underlying both the constitutional principles and the rules of evidence is a preference for live testimony. Live testimony gives the jury (or other trier of fact) the opportunity to observe the demeanor of the witness while testifying. William Blackstone long ago recognized this virtue of the right to confrontation, stressing that through live testimony, “and this [procedure] only, the persons who are to decide upon the evidence have an opportunity of observing the quality, age, education, understanding, behavior, and inclinations of the witness.” 3 William Blackstone, Commentaries on the Laws of England 373-74 (1768). Transcripts of a witness‘s prior testimony, even when subject to prior cross-examination, do not offer any such advantage, because “all persons must appear alike, when their [testimony] is reduced to writing.” Id. at 374. As the National Association of Criminal Defense Lawyers (“NACDL“) amicus brief highlights, the superiority of live testimony as contrasted with a transcript of prior testimony has been equally praised in our own judicial system since its inception. See, e.g., Mattox v. United States, 156 U.S. 237, 242-43, 15 S.Ct. 337, 39 L.Ed. 409 (1895) (“The primary object of the constitutional provision in question was to prevent depo-
More recently, the United States Court of Appeals for the Third Circuit voiced the importance of observing, first hand, a witness‘s demeanor while testifying:
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.’
Gov‘t of the Virgin Islands v. Aquino, 378 F.2d 540, 548 (3d Cir.1967) (quoting Broad. Music, 175 F.2d at 80).
Professor Richard D. Friedman of the University of Michigan Law School, in his amicus brief, offers additional reasons for the courts’ preference for live testimony, which we find persuasive. 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 cross-examining 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.8
IV
This appeal turns on the meaning of “reasonable means” and the relevant timeframe for assessing the proponent‘s conduct. The government argues that the district court erred by using a “reasonable means” inquiry to assess the government‘s efforts to procure Reziniano both before and after he was deported, contending that this legal standard is neither found in
We have considered the application of
In Winn, the defendant was a passenger in a car stopped by border patrol agents who was subsequently arrested after the agents found four illegal aliens in the trunk. 767 F.2d at 529. After taking statements from aliens Santos and Murillo the agents “chose not to prosecute [Winn] and they returned the two aliens to Mexico.” Id. Several days later Winn was arrested for smuggling aliens after other border patrol agents discovered fourteen illegal immigrants in the back of a U-Haul truck which was rented in Winn‘s name. Id. “The government charged [Winn] with conspiracy to transport illegal aliens and with four counts of transporting illegal aliens.... [which] included the transportation of Santos and Murillo, the two aliens who the government sent back to Mexico.” Id. On appeal, we affirmed the district court‘s decision to admit Santos and Murillo‘s hearsay statements, holding that the government had established unavailability under
United States v. Olafson also involved two witnesses from Mexico who gave statements to border patrol agents conveying that they were Mexican citizens and had entered the United States illegally. 213 F.3d at 438. “[T]he district court con-9cluded that under Winn, [the witnesses] were unavailable because they were inadvertently returned to Mexico, were beyond the subpoena power of the district court, and failed to respond to efforts to persuade them to return to the United States to testify.” Id. at 441. We affirmed, reasoning that the district court‘s conclusion “was consistent with Winn, was well-reasoned and, thus, was not an abuse of discretion.” Id. at 442.
Notwithstanding the government‘s arguments to the contrary, neither Winn nor Olafson is controlling here, as the district court correctly concluded, because neither case considered or addressed
In Olafson, where the deportation before trial was “inadvertent,” the court relied on Winn and affirmed the district court‘s finding that the witnesses were unavailable because despite being contacted by the government, they refused to return to the United States to testify. See Olafson, 213 F.3d at 438, 442. While Olafson establishes that the government‘s efforts
V
Several of our sister circuits, as well as a district court in our own circuit, have however, “addressed the issue of whether the government‘s conduct in a case involving alien witnesses who subsequently left the United States was reasonable and in good faith.” See, e.g., Wilson, 36 F.Supp.2d at 1181-82 (surveying cases from the First, Fourth, Fifth, Eighth, and Tenth Circuits, before concluding that the government has a duty to make reasonable and good faith efforts to procure the witness‘s attendance at trial before the witness leaves the United States); see also Mann, 590 F.2d at 368 (holding that though the government acted reasonably and in good faith in trying to convince a witness to return to testify for trial, the witness was not “unavailable” under
Other circuits, however, have found depositions of out-of-country aliens to be admissible. See United States v. Terrazas-Montano, 747 F.2d 467, 469 (8th Cir.1984) (allowing videotaped depositions of four aliens to be admitted due to the “exceptional circumstances” where the aliens went on a hunger strike, refusing to eat until they were returned to Mexico and the government moved for and was granted permission to take the depositions and deport the witnesses after it was shown that they were suffering “ill effects from not eating” for more than ten days); United States v. Rivera, 859 F.2d 1204, 1205-06 (4th Cir.1988) (affirming the trial court‘s decision to allow
In Mann, the key witness against the defendant was a seventeen-year-old Australian citizen, Joanne Shine, who was arrested at an airport in Puerto Rico along with Mann after she was found carrying eleven packages of cocaine. 590 F.2d at 363. While Mann was indicted for importing and possessing with intent to distribute, the charges against Shine for “aiding and abetting” were dismissed by the court. Id. Shortly thereafter, the prosecution filed a motion seeking to take Shine‘s deposition. Id. Over the defense‘s objection, Shine‘s deposition was taken, at which time “the prosecution returned to Shine both her airplane tickets and her passport.” Id. Following Shine‘s departure from Puerto Rico, the defense continued to object “to any contemplated use of the deposition, stating that the government had ‘procured’ Shine‘s unavailability by turning over [her] plane tickets and passport, which were evidence in the case.” Id. In despite of court issuance of a subpoena and a request from the State Department, Shine refused to return to testify. Id. The trial court admitted Shine‘s deposition after receiving assurances from the government that it had offered to pay for her expenses and subsistence and that she had still refused to return. Id. at 364.
On appeal, the First Circuit stated that its inquiry into the government‘s efforts to produce the witness “need not [be] limit[ed] ... to that narrow time frame,” i.e. the time frame immediately before the trial but after the witness had left the United States. Mann, 590 F.2d at 368. Because “[i]mplicit ... in the duty to use reasonable means to procure the presence of an absent witness is the duty to use reasonable means to prevent a present witness from becoming absent,” the court concluded that where the government had such means at its disposal—i.e. retaining the witness‘s passport and plane tickets which it had seized—and did not use them, “[t]he defendant should not suffer the injury from the government‘s choice.” Id. Therefore, the First Circuit held that the government had “failed to demonstrate that the witness was unavailable,” when she refused to return from Australia to testify, and set aside the defendant‘s conviction because it was error for the trial court to admit the witness‘s prior deposition testimony under
The Ninth Circuit authority on the application of
This understanding of an expanded temporal period finds support in Supreme Court case law. See Ohio v. Roberts, 448 U.S. 56, 74, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) (“The ultimate question is whether the witness is unavailable despite good-faith efforts undertaken prior to trial to locate and present that witness.“) (emphasis added). We read “efforts undertaken prior to trial,” to include the government‘s actions during the time between the declaration of a mistrial and the commencement of the retrial, particularly where as here, the proponent of the witness‘s statement is in control of both the witness (because he is in custody on a detainer) and its own decision to re-try the case.
We also agree with NACDL‘s argument that the “Supreme Court has never extended the concept of unavailability to the point where the government seeks to extend it here—that is, to find a witness unavailable when the government itself shares some of the responsibility for its inability to produce the witness at trial.” Instead, the common law and the courts have always required that any introduction of prior testimony against a criminal defendant be derived from “the necessities of the case.” Mattox, 156 U.S. at 243 (emphasis added); see also Joel P. Bishop, Criminal Procedure, § 1097, at 691 (2d ed. 1872) (stating that it is “plain in matter of juridical reason that this right to introduce the deposition grows out of the great doctrine of necessity.“). “Necessity” means that “the declarant‘s inability to give live testimony is in no way the fault of the State.” Green, 399 U.S. at 166 (emphasis added); see also id. at 167 n. 16 (the “necessity” that supports the unavailability doctrine is “the State‘s ‘need’ to introduce relevant evidence that through no fault of its own cannot be introduced in any other way“).
The government offers no viable alternative standard. It urges us to assess its actions only during the period “immediately before trial” and “after the deportation had occurred.” However, as the district court emphasized, “once a witness has been deported, ‘[a]ny steps taken thereafter ... were inevitably too little too late,‘” when the witness was no longer within the court‘s jurisdiction or the government‘s reach. (quoting Wilson, 36 F.Supp.2d at 1182.). The government would urge us to determine that its only obligation is to avoid acting in bad faith when a witness is subject to its control pursuant to a detainer, and that its obligation to procure the witness‘s attendance at the retrial through reasonable means does not arise until that same witness is beyond its reach. To support its argument, the government points to the last sentence of
VI
Having determined that our reasonable means assessment should not be temporally limited to the government‘s efforts to procure Reziniano‘s presence after his deportation, we next consider whether the government acted in good faith and used reasonable means to procure Reziniano‘s attendance at Yida‘s retrial.
At the outset, we agree with the district court‘s determination that the government was neither “motivated in any way by bad faith” nor “engaged in deliberate misconduct [when it] remove[d] the material witness warrant and allow[ed] Reziniano to return to Israel.” However, as the district court explained, good faith, “while necessary to a finding of reasonable [means], does not end the reasonableness inquiry” for “good faith is but one component” of that inquiry. We therefore turn to the central question on appeal: whether the government used reasonable means to procure Reziniano‘s attendance at Yida‘s retrial.
In support of its motion to admit Reziniano‘s former testimony, the government argued that it acted reasonably because: (1) Reziniano and his attorney made oral assurances that he would return; (2) he had cooperated with the government prior to the first trial; (3) the government was concerned about his Fifth Amendment due process rights (because it was keeping him imprisoned solely on the material witness warrant after he had completed his sentence); and (4) the government agreed to pay his expenses to return to testify. The district court addressed each proffered reason,11 stated facts that supported its conclusion that the government acted unreasonably, and offered alternative courses of action the government could have taken to better ensure Reziniano‘s presence at the retrial. We agree with and adopt the district court‘s reasoning as part of our assessment of the reasonableness of the government‘s actions.
The district court properly gave little weight to Reziniano‘s oral assurances that he would return, emphasizing Reziniano‘s status as a “convicted felon who was being deported as a result of his felony.” The strength of Reziniano‘s word is further called into question by his own prior testimony, which included an admission that he had used numerous aliases to avoid detection and continue his criminal activity. As the district court said: “At the very least, Reziniano is not a trustworthy individual.” Moreover, the government‘s decision to detain Reziniano on a material witness warrant for the five months preceding Yida‘s trial indicated that the “Government acknowledged as much.” The government could have no reasonable expectation that Reziniano would return to testify if asked. The district court appropriately concluded that “[a]n oral promise
The government‘s reliance on Reziniano‘s cooperation before and during Yida‘s first trial, is similarly misplaced and unavailing. As the district court emphasized: “the Government apparently fails to recognize the likelihood that Reziniano cooperated with the Government because he remained in custody for that sole purpose.” Again, Reziniano‘s testimony at Yida‘s first trial supports this conclusion because he repeatedly indicated that he did not want to be in the United States and had wished to return to Israel since completing his prison sentence in late November 2005. Reziniano‘s cooperation was a condition of his plea agreement and his testimony could have been compelled by contempt proceedings if necessary. The district court concluded, and we agree, that any cooperation from Reziniano was “coerced in some fashion by the fact that he remained in federal custody” and that “such involuntary cooperation was insufficient to indicate to the Government that he would return to testify once he was deported to Israel.”
The government recites a concern about Reziniano‘s Fifth Amendment due process rights, as contributing to its releasing Reziniano from federal custody. It is true that material witness warrants that require an innocent person to remain in custody raise due process concerns. The district court correctly noted that this case is unlike the situations in Terrazas-Montano, 747 F.2d at 467, and Eufracio-Torres, 890 F.2d at 270. In particular, this case does not present a situation where the defendant was out on bail and the witnesses, who had not been charged or convicted of any crimes, were detained solely as material witnesses. See Eufracio-Torres, 890 F.2d at 270.12
The district court was troubled by the government‘s failure to explain why the “calculus [had] changed” after the government initially weighed the due process concerns against the risk of flight in Reziniano‘s case and “determined that his importance as a witness overcame any due process rights he may have possessed“; and, accordingly, detained Reziniano on a material witness warrant for five months. The district court also emphasized that this was not a situation in which the date for retrial was speculative or potentially far distant, resulting in any “prolonged” custody of Reziniano.13
Given these factors, we agree with the district court‘s assessment that the government‘s proffered Fifth Amendment concerns do not warrant a conclusion that it acted reasonably in allowing Reziniano to be deported. Indeed, if Reziniano‘s
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, 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. See, e.g., Mann, 590 F.2d at 366; see also United States v. Linton, 502 F.Supp. 878, 879-81 (D.Nev.1980) (requiring witness after deposition to adhere to conditions including twice-weekly probation visits and restricted travel within a particular state).
Linton illustrates another option the government did not exercise: the taking of a video-recorded deposition of Reziniano before his release. The government argues that doing so would not have made a difference in this case, because video depositions, like testimony from a prior trial, can only be admitted if the witness is unavailable. While this is true, our assessment of the reasonableness of the government‘s actions would be altered if its efforts included the taking of a witness‘s video-recorded deposition before allowing deportation to occur. A video deposition, when considered in light of the advantages of live testimony discussed earlier, would be almost as good as if Reziniano had testified live at the second trial and better than use of his testimony from the first trial. A video deposition 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.” As Professor Friedman argues, had a video deposition been taken:
[T]he situation would be very close in effect to the optimal situation, in which Reziniano testifies live at the [second] trial. The difference would be sufficiently narrow, at least absent a showing that Yida was substantially disadvantaged by the timing of the deposition, that the Government could argue forcefully that it acted reasonably in not further delaying Reziniano‘s deportation, which would be necessary to ensure his presence at the second trial.
The district court reached a similar conclusion, and criticized the government for failure to notify either Yida‘s defense counsel or the court that it was considering allowing Reziniano to be deported. If the government had sought “guidance as to an
Notably, the Government does not wish to conduct a Rule 15(a) videotaped deposition in Israel of Reziniano because it claims such testimony would be redundant given his former testimony at trial. While indeed the testimony may be redundant, it goes without saying that a jury‘s ability to measure a witness‘s credibility, which directly implicates the Confrontation Clause rights of the accused, is significantly enhanced if the jury can actually see the witness testifying, as opposed to merely listening to testimony read cold by a neutral individual.
The district court concluded that the “obvious implication” of the government‘s decision to allow Reziniano to be deported without notifying the court or defense counsel, was “that the Government was more willing to allow Reziniano to leave the country once it had his trial testimony.” See Mann, 590 F.2d at 367 (faulting the government for not making “as vigorous an attempt to secure the presence of the witness as it would have made if it did not have the prior recorded testimony“). Relying further on Mann, the district court reasoned “[w]here, as here, the testimony plays a significant role in the Government‘s case, the standard of reasonableness is further heightened because the accused‘s Confrontation Clause rights are strengthened.” Cf. id. at 367 n. 6 (“A lesser effort might be reasonable where the testimony goes to minor, collateral, or uncontested matters.“).
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.14
Finally, while the government did offer to pay Reziniano‘s travel expenses, the district court was “not convinced” that this was sufficient under the circumstances, though it “demonstrates the good faith nature with which the Government handled this matter, it does not demonstrate the Government‘s reasonableness.” Here, the district court found that while travel payment was certainly a necessary condition to ensuring the return of a foreign witness, alone it was “not a sufficient condition.” Referring to Reziniano, the district court noted:
A witness who poses a risk of flight, who has spent nearly five years in prison serving his sentence for a felony conviction, who has stated that he did not wish to testify in the first trial, and who has expressed his desire to return to his native county [sic], is unlikely to be swayed to return to the United States by the Government‘s offer to pay his expenses.
The district court sensibly concluded that the offer to pay Reziniano‘s travel expenses was “effectively the Government‘s only legitimate effort to ensure that Rezi-
Here, we are convinced that both extra-circuit law and the plain language of Rule 804(a)(5)—which requires the proponent of a statement to attempt to “procure the declarant‘s attendance ... by process or other reasonable means” in order to establish “unavailability“—support a conclusion that the district court did not commit error when it assessed the totality of the government‘s actions, both before and after Reziniano‘s deportation to determine whether the government had employed “reasonable means” and accordingly established unavailability under the Rule. The district court explained its finding that Reziniano was not “unavailable” under
VII
We also reject the government‘s argument that Reziniano is unavailable by reason of medical necessity pursuant to
We conclude that the district court did not err when it found that the government had failed to establish Reziniano‘s unavailability due to medical necessity. As Yida points out, “[n]othing about the district court‘s ruling supports the government‘s contention that the district court failed to consider the medical-necessity argument.” In its written decision, the district court explicitly referred to its conclusions with regard to
And that may be [i.e. Reziniano is not precluded from traveling], but I don‘t think that, whether it‘s true or not, bears upon either the question of his unavailability or the question of whether
this qualifies as former testimony because regardless of his—I mean, it may bear upon which of the unavailability prongs it falls under, but it doesn‘t render it impossible for us to do anything further to secure his presence here at this point.
Consistent with the district court‘s observation, and as the government concedes in its briefing before this court, the declarations submitted by the government “did not necessarily compel a finding of medical unavailability.” Instead, the declarations indicated only that Reziniano told the government that he was unwilling to travel until his medical issues were resolved, not that he was unable to do so as a result of medical necessity, as required by
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. The district court did not refuse to consider the government‘s proffered evidence as the government contends; rather, it found the evidence insufficient to support a finding of unavailability under
VIII
Accordingly, we affirm the district court‘s exclusion of Reziniano‘s prior testimony in Yida‘s retrial because the government has not established that the witness is unavailable under Federal Rule of Evidence 804(a).16
AFFIRMED.
GOULD, Circuit Judge, concurring:
I write separately to point out that, although the majority opinion is grounded solely on the panel‘s interpretation of Federal Rules of Evidence 804 there is also a constitutional dimension to the concept of unavailability. See Barber v. Page, 390 U.S. 719, 724-25, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968) (“[A] witness is not ‘unavailable’ for purposes of the ... exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.“); see also Ohio v. Roberts, 448 U.S. 56, 74, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).
The basic litmus of Sixth Amendment unavailability is established: “[A] witness is not ‘unavailable’ for purposes of the exception to the confrontation requirement unless the prosecutorial authorities have made a good faith effort to obtain his presence at trial.” Barber, 390 U.S. at 724-25 (emphasis added) [other citations omitted]. * * * [I]f there is a possibility, albeit remote, that affirmative measures
However the Rules of Evidence are interpreted, the Sixth Amendment to the United States Constitution requires that testimony of an absent witness be considered only when the witness is unavailable. See Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (“Where testimonial evidence is at issue ... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.“). Accordingly, 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. See Motes v. United States, 178 U.S. 458, 474, 20 S.Ct. 993, 44 L.Ed. 1150 (1900) (“[T]he question [of admissibility of a prior statement of an absent declarant] cannot be made to depend upon the rules of criminal evidence.... It must be determined with reference to the rights of the accused as secured by the Constitution of the United States. That instrument must control the action of the courts of the United States in all criminal prosecutions before them.“); cf. Crawford, 541 U.S. at 61, 68 (stating that the Confrontation Clause‘s protection does not turn on “the vagaries of the rules of evidence” but on “what the common law required.“).
It is often the correct approach for a court to interpret a statute or rule, when permissible in light of its language, in a way that avoids making unnecessary constitutional decisions. See, e.g., Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 778 (2005); Bellotti v. Baird, 428 U.S. 132, 146-51 (1976); Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970); Harrison v. NAACP, 360 U.S. 167, 177, 79 S.Ct. 1025, 3 L.Ed.2d 1152 (1959); Railroad Comm‘n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941); cf. Ashwander v. TVA, 297 U.S. 288, 346-47, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). In my view, the doctrine of constitutional avoidance reinforces the interpretation of Federal Rule of Evidence 804 that we make today.
Notes
If the prosecution believed that its case would be stronger by presenting the live, vivid testimony of the witness at the current trial, than by presenting the transcript of the prior testimony, then the prosecution would presumably secure the witness‘s presence and testimony at the current trial. Suppose, however, the witness‘s demeanor tends to be such that it diminishes rather than enhances his credibility; similarly, suppose the prosecution believes that cross-examination of the witness at the current trial would likely impeach her testimony more powerfully than would a reading of the transcript from the prior proceeding. In such circumstances, the prosecution might prefer to “stand pat,” using the transcript rather than presenting the witness live at trial.
The Government also contends that Reziniano is unavailable under
Rule 804(a)(4) .... As the Court concluded in open court at the pre-trial conference, the United States provides no admissible evidence to support a finding that Reziniano is unavailable to testify as a result of medical necessity. Accordingly, the Court finds that Reziniano is not unavailable underRule 804(a)(4) .