United States v. Yida ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-10460
Plaintiff-Appellant,
v.  D.C. No.
CR-00-00274-CRB
YACOV YIDA,
OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted
February 15, 2007—San Francisco, California
Filed August 16, 2007
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
*The Honorable Alfred V. Covello, Senior United States District Judge
for the District of Connecticut, sitting by designation.
9887
9890 UNITED STATES v. YIDA
COUNSEL
Josh A. Cohen (argued and on the brief), Assistant Federal
Public Defender, and Barry J. Portman (on the brief), Federal
Public Defender, San Francisco, California, for defendant-
appellee Yacov Yida.
UNITED STATES v. YIDA 9891
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, California, (on the brief) for
plaintiff-appellant United States of America.
OPINION
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 28 U.S.C. § 1291 and 18 U.S.C.
§ 3731. We affirm the district court’s decision excluding Rez-
iniano’s testimony.1
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 citi-
zen 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.
1
In a published order following oral argument, we invited amicus brief-
ing on the important issues raised in this appeal. See United States v. Yida,
478 F.3d 1068 (9th Cir. 2007). We thank the National Association of
Criminal Defense Lawyers, Professor Richard D. Friedman from the Uni-
versity of Michigan Law School, and Aaron Petty, a recent graduate of the
University of Michigan Law School, for their responsive amicus briefs,
which we received in addition to the parties’ supplemental briefing.
9892 UNITED STATES v. YIDA
Special Agent Catherine Miller of Immigration and Cus-
toms Enforcement obtained a material witness warrant for
Reziniano on December 8, 2005, as he was scheduled to tes-
tify 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 incar-
ceration, 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
On April 4, 2006, Reziniano testified that he had conspired
with Yida to import ecstasy into the United States via Europe
on multiple occasions.3 According to the government, “Rez-
iniano proved to be a critical witness at trial” because he (1)
corroborated testimony from other witnesses; (2) “presented
substantial first-hand information about Yida’s role in the
charged conspiracy that no other witness could provide”; and
(3) “testified about the origins of the conspiracy and described
in detail how he and Yida had smuggled ecstasy into the
United States.” Reziniano was thoroughly cross-examined at
trial by Yida’s defense counsel. The jury reached an impasse
in its deliberations, and the district court declared a mistrial
on April 13, 2006. At an April 26 status conference, the court
set a new trial date of July 24, 2006, which was later
advanced to July 17.
2
At no time during the five months that Reziniano was detained as a
material witness did the government or Reziniano seek bail. After January
13, 2006, neither the government nor Reziniano complained to the district
court about the conditions of Reziniano’s confinement or sought an expe-
dited trial date to accommodate his desire to be deported as soon as possi-
ble.
3
In addition to his testimony on his conspiracy with Yida, Reziniano
testified that he had been involved in other narcotics-related activities for
which he had not been prosecuted, and that he was at one time affiliated
with a South American drug cartel. Reziniano further testified that he was
involved in laundering money for drug dealers, possessed identification
under three different names, and was known at various times as David
Reziniano, David Freeman, David Rabin, Leo Horowitz, and Reggie.
UNITED STATES v. YIDA 9893
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 receiv-
ing assurances from both Reziniano and Pollock that Rezini-
ano 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 tes-
tify 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
4
The government advises that it decided not to serve “Reziniano with
a trial subpoena prior to releasing him because no trial date had yet been
set, because such a subpoena would have been unenforceable once Rezini-
ano left the United States, and because it was concerned that the invoca-
tion of compulsory process would alienate Reziniano and make him less
likely to honor his commitment to return.”
9894 UNITED STATES v. YIDA
testify. Reziniano told the government that he was having
medical problems related to the conditions he had developed
in custody, including a bleeding stomach that might require
surgery, and that he was unwilling to leave Israel until these
problems were resolved. He estimated that it would be months
until he would be able to travel internationally. The govern-
ment reiterated that it would pay all expenses related to Rez-
iniano’s trip and suggested that he could obtain medical
attention while in San Francisco. Reziniano, however, contin-
ued to refuse to come to the United States to testify at Yida’s
retrial.
On July 5, 2006, the government filed a motion in limine
seeking to admit Reziniano’s testimony from Yida’s first trial
pursuant to Federal Rule of Evidence 804(b)(1), arguing that
Reziniano was unavailable under 804(a)(5) and 804(a)(4).
After supplemental briefing and oral argument, the district
court, in a well-reasoned memorandum and order, denied the
government’s motion in limine. See United States v. Yida, No.
CR 00-00274, 2006 WL 1980390 (N.D. Cal. July 13, 2006).
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 Rezini-
ano to be deported in the first place, while in the custody of
the Government, was a ‘reasonable means’ to ‘procure the
declarant’s testimony.’ ” (citing Fed. R. Evid. 804(a)(5))
(footnote omitted) (emphasis in original). After distinguishing
our decisions in United States v. Winn, 767 F.2d 527 (9th Cir.
1985) (per curiam), and United States v. Olafson, 213 F.3d
435 (9th Cir. 2000), the district court considered extra-circuit
authority and adopted the First Circuit’s application of a rea-
sonable means inquiry to the government’s efforts to preserve
the presence of a witness within its jurisdiction before, as well
as after, the witness was deported. See United States v. Mann,
590 F.2d 361 (1st Cir. 1978). Although the district court
found that the government had acted in good faith when it
UNITED STATES v. YIDA 9895
allowed Reziniano to be deported, it did not conclude that the
government had acted reasonably. Accordingly, the district
court held that Reziniano’s testimony could not be admitted
under either Rule 804(a)(4) or 804(a)(5)’s hearsay exceptions
because he was not an “unavailable” witness.
On July 14, 2006, the government filed this expedited
appeal pursuant to 18 U.S.C. § 3731.
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
hearsay exceptions, governing unavailable declarants, applies.
The government argues that Reziniano is unavailable as a wit-
ness under both 804(a)(4)6 and 804(a)(5).7 “[I]f the declarant
5
Neither party disputes that Reziniano’s testimony from the initial trial
constitutes “former testimony,” one of the enumerated hearsay exceptions,
under Rule 804(b)(1). This is in accord with our precedent and the plain
text of the Rule. See 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 intro-
duced at the second trial.”); accord United States v. Vargas, 933 F.2d 701,
705 (9th Cir. 1991).
6
Federal Rule of Evidence 804(a)(4) provides that a witness is unavail-
able where the declarant “is unable to be present or to testify at the hearing
9896 UNITED STATES v. YIDA
is unavailable as a witness,” a court may admit “[t]estimony
given as a witness at another hearing of the same or a differ-
ent proceeding . . . if the party against whom the testimony
is now offered . . . had an opportunity and similar motive to
develop the testimony by direct, cross, or redirect examina-
tion.” Fed. R. Evid. 804(b)(1). All parties agree that Rezini-
ano’s statements qualify as former testimony which was
subject to cross-examination in accordance with 804(b)(1).
This appeal turns on whether Reziniano is “unavailable as a
witness” such that his former testimony is admissible at
Yida’s retrial.
Rule 804(b)(1) implements the command of the Sixth
Amendment’s Confrontation Clause: “the accused shall enjoy
the right . . . to be confronted with the witnesses against him.”
U.S. Const. amend. VI. The prosecution may not offer proof
of a prior statement that is testimonial in nature unless (1) the
accused has had, will have, or has forfeited the opportunity to
“be confronted with” the witness who made the statement,
and (2) the witness is unavailable to testify at trial. See Craw-
ford v. Washington, 541 U.S. 36, 68 (2004) (“[T]he Sixth
Amendment demands what the common law required:
unavailability and a prior opportunity for cross examina-
tion.”). The constitutional requirement that a witness be “un-
available” before his prior testimony is admissible stands on
separate footing that is independent of and in addition to the
requirement of a prior opportunity for cross-examination. See
Barber v. Page, 390 U.S. 719, 724-25 (1968) (holding that the
admission of prior testimony that had been subjected to cross-
examination violated the Confrontation Clause because the
state did not prove that the witness was unavailable), cited
with approval in Crawford, 541 U.S. at 57.
because of death or then existing physical or mental illness or infirmity.”
7
Federal Rule of Evidence 804(a)(5) provides that a witness is unavail-
able where the declarant “is absent from the hearing and the proponent of
a statement has been unable to procure the declarant’s attendance . . . by
process or other reasonable means.”
UNITED STATES v. YIDA 9897
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 con-
frontation, stressing that through live testimony, “and this
[procedure] only, the persons who are to decide upon the evi-
dence have an opportunity of observing the quality, age, edu-
cation, 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 Law-
yers (“NACDL”) amicus brief highlights, the superiority of
live testimony as contrasted with a transcript of prior testi-
mony 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 (1895) (“The primary object of the constitutional
provision in question was to prevent depositions . . . being
used against the prisoner in lieu of a personal examination and
cross-examination of the witness, in which the accused has an
opportunity, not only of testing the recollection and sifting the
conscience of the witness, but of compelling him to stand face
to face with the jury in order that they may look at him, and
judge by his demeanor upon the stand and the manner in
which he gives his testimony whether he is worthy of
belief.”); see also NLRB v. Universal Camera Corp., 190 F.2d
429, 430 (2d Cir. 1951) (“[T]hat part of the evidence which
the printed words do not preserve . . . . is the most telling part,
for on the issue of veracity the bearing and delivery of a wit-
ness will usually be the dominating factors. . . .”); Broad.
Music, Inc. v. Havana Madrid Rest. Corp., 175 F.2d 77, 80
(2d Cir. 1949) (“The liar’s story may seem uncontradicted to
one who merely reads it, yet it may be contradicted . . . by his
manner . . . which cold print does not preserve.”) (internal
quotations omitted).
9898 UNITED STATES v. YIDA
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 deter-
mination of the credibility of a witness. The innu-
merable 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 credibil-
ity and the reliability of his evidence than is the lit-
eral 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.’
Aquino, 378 F.2d at 548 (quoting Broad. Music, 175 F.2d at
80).
Professor Richard D. Friedman of the University of Michi-
gan 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 testi-
mony via “transcript speaks as of the time of the prior pro-
ceeding, 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 avail-
UNITED STATES v. YIDA 9899
able 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
With this background on unavailability established by the
Constitution, the Federal Rules of Evidence, and precedent,
we turn to the specific provisions of Rule 804(a) relied on by
the government in this case.
IV
[1] Federal Rule of Evidence 804(a)(5) provides that a
declarant is unavailable as a witness if he “is absent from the
hearing and the proponent of a statement has been unable to
procure the declarant’s attendance . . . by process or other rea-
8
Professor Friedman explains the possibility of prosecutorial manipula-
tion, which is not at issue in this case, but which points to an advantage
of live testimony, as follows:
If the prosecution believed that its case would be stronger by pre-
senting 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.
9900 UNITED STATES v. YIDA
sonable means.” Fed. R. Evid. 804(a)(5) (emphasis added).
These reasonable means must be “genuine and bona fide.”
Gov’t of the Virgin Is. v. Aquino, 378 F.2d 540, 552 (3d Cir.
1967); see also United States v. Lynch, 499 F.2d 1011, 1023-
24 (D.C. Cir. 1974); cf. Phillips v. Wyrick, 558 F.2d 489, 494
(8th Cir. 1977) (requiring that a good faith effort be made as
a component of the Sixth Amendment right to confrontation).
Prosecutors must not only act in good faith but also operate
in a competent manner; a prosecutor cannot claim that a wit-
ness is unavailable because the prosecutor has acted in an
“empty-head pure-heart” way. See Fed. R. Civ. P. 11 advisory
committee’s note. See also California v. Green, 399 U.S. 149,
189 n.22 (1970) (Harlan, J., concurring); United States v. Wil-
son, 36 F. Supp. 2d 1177, 1180 (N.D. Cal. 1999) (“The cen-
tral constitutional inquiry is whether or not the government’s
actions were reasonable given all the circumstances of a par-
ticular case.”). Thus, “[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.’ ” United States v. Mann, 590 F.2d 361, 367
(1st Cir. 1978) (quoting Aquino, 378 F.2d at 551).
This appeal turns on the meaning of “reasonable means”
and the relevant time-frame for assessing the proponent’s con-
duct. The government argues that the district court erred by
using a “reasonable means” inquiry to assess the govern-
ment’s efforts to procure Reziniano both before and after he
was deported, contending that this legal standard is neither
found in Rule 804 nor consistent with controlling authorities.
In the alternative, the government argues that even if the dis-
trict court applied the correct legal standard, its application of
the “reasonable means” inquiry to the facts of the case was
erroneous. Appellee Yida argues that the district court applied
the correct standard, appropriately exercised its discretion
within the context of both the controlling authorities and the
structure of Rule 804, and did not abuse its discretion when
it found that Reziniano was not “unavailable” under
804(a)(5).
UNITED STATES v. YIDA 9901
We have considered the application of Rule 804(a)(5) to
deported witnesses on two previous occasions and the govern-
ment argues that those cases are dispositive. See Olafson, 213
F.3d 435; Winn, 767 F.2d 527. However, both of these cases
involved illegal immigration prosecutions in which material
witnesses were removed from the country before trial and
were not present to testify. They are readily distinguishable
from the instant case.
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 gov-
ernment 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 San-
tos and Murillo’s hearsay statements, holding that the govern-
ment had established unavailability under Rule 804 because
“[t]he government had no addresses or any other information
that would help locate [them] . . . [and u]nder the circum-
stances, it was reasonable for the government to make no
effort to find the two aliens.”9 Id. at 530.
9
In Winn we also held that the admission of the hearsay statements did
not violate the defendant’s confrontation rights under the Sixth Amend-
ment because the statements had certain “indicia of reliability” given the
circumstances under which they were made. 767 F.2d at 531. Under
Crawford, we no longer analyze alleged violations of defendants’ confron-
tation clause rights based on “indicia of reliability,” but instead focus on
unavailability and prior opportunity for cross-examination. See 541 U.S.
at 68.
9902 UNITED STATES v. YIDA
United States v. Olafson also involved two witnesses from
Mexico who gave statements to border patrol agents convey-
ing that they were Mexican citizens and had entered the
United States illegally. 213 F.3d at 438. “[T]he district court
concluded 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 con-
trary, neither Winn nor Olafson is controlling here, as the dis-
trict court correctly concluded, because neither case
considered or addressed Rule 804’s unavailability require-
ment and the government’s obligation to use “reasonable
means” to “procure the declarant’s testimony” in the context
of the government’s affirmative role in a witness’s deporta-
tion. The percipient witnesses in Winn were deported without
the prosecutor’s knowledge or involvement; indeed, they were
deported before any criminal charges were filed against Winn
whatsoever. See 767 F.2d at 530. Under these circumstances,
the court was not presented with an occasion to assess the rea-
sonableness of the government’s actions before the witnesses
were deported.
[2] In Olafson, where the deportation before trial was “in-
advertent,” 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 made after a witness’s deportation are reasonable if an
affirmative, good faith attempt is made to convince the wit-
ness to return to the United States to testify, we have not yet
had occasion to consider whether the government’s involve-
UNITED STATES v. YIDA 9903
ment, through the prosecutor’s office, in the deportation of a
witness should be assessed for reasonableness and considered
in our unavailability analysis.10 Because both Winn and Olaf-
son are factually distinguishable and did not raise the issue of
“whether the Government’s role in a witness’s deportation
affects the reasonableness inquiry into his unavailability,” the
district court appropriately concluded that there was no Ninth
Circuit precedent directly addressing the key issue raised in
this appeal.
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 reason-
able 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 pro-
cure 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 Rule 804(a)(5)
because the government made the witness’s departure from
the country possible); United States v. Guadian-Salazar, 824
F.2d 344, 346-47 (5th Cir. 1987) (per curiam) (both the
defense and the government agreed that the government had
10
We did not have this issue squarely presented in Olafson because the
defendant did not argue the unreasonableness of the government’s actions,
but instead contended that “there was no showing made by the govern-
ment . . . regarding the procurement of his testimony.” See Appellant’s
Opening Brief at 15, United States v. Olafson, 213 F.3d 435 (9th Cir.
2000) (No. 99-50216). Moreover, in Olafson the witnesses were “inadver-
tently” deported by the government, whereas here, the government know-
ingly and willingly deported Reziniano knowing that he was an important
witness for their case.
9904 UNITED STATES v. YIDA
not shown that the witnesses were “unavailable” where the
government took videotaped depositions of the witnesses,
transported them to the border, served them with subpoenas,
and notified them that they were to appear at the border on a
specified date to be taken to court and serve as witnesses at
trial); Aguilar-Ayala v. Ruiz, 973 F.2d 411, 419 (5th Cir.
1992) (noting that it is not unreasonable for the government
to detain alien witnesses).
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 video-
taped depositions of four aliens to be admitted due to the “ex-
ceptional 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 Fed. R. Crim. P. 15 depositions based on “exceptional
circumstances” after a motion was made by the illegal aliens’
attorney which the government supported, and where defen-
dant was out on bail but the aliens, who were being held
solely as material witnesses, remained incarcerated); see also
United States v. Eufracio-Torres, 890 F.2d 266, 270 (10th Cir.
1989) (affirming the trial court’s decision to grant the govern-
ment’s motion to take Fed. R. Crim. P. 15 depositions of ille-
gal alien material witnesses and subsequently admit the
testimony at trial after the witnesses were deported and
became unavailable, where witnesses, who were not charged
with any crimes, were detained for more than six weeks, and
defendant was out on bail). These cases however, are distin-
guishable, along the lines of Olafson and Winn, whereas the
First Circuit’s decision in Mann is strikingly similar to this
case.
In Mann, the key witness against the defendant was a
seventeen-year-old Australian citizen, Joanne Shine, who was
UNITED STATES v. YIDA 9905
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 possess-
ing 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. Fol-
lowing Shine’s departure from Puerto Rico, the defense con-
tinued to object “to any contemplated use of the deposition,
stating that the government had ‘procured’ Shine’s unavaila-
bility 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.
[3] 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 govern-
ment’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 tes-
tify, and set aside the defendant’s conviction because it was
error for the trial court to admit the witness’s prior deposition
testimony under Rule 804(a)(5). Id.9906 UNITED STATES v. YIDA
[4] The Ninth Circuit authority on the application of Rule
804(a)(5) to deported witnesses is silent on the issues raised
by this appeal — rather than foreclosing them, as the govern-
ment suggests. We must look elsewhere to determine the rea-
sonableness of the prosecution’s conduct here. To that end,
we agree with the First Circuit that “[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 pres-
ent witness from becoming absent.” See Mann, 590 F.2d at
368. To be sure, the appropriate time-frame for assessing the
government’s actions will vary, according to the specific facts
presented. Here, it is clear that the appropriate time-frame
should not be limited to the government’s efforts to procure
Reziniano’s testimony after it let him be deported, but should
instead include an assessment of the government’s affirmative
conduct which allowed Reziniano to be deported to Israel in
the first instance, similar to the First Circuit’s assessment in
Mann.
This understanding of an expanded temporal period finds
support in Supreme Court case law. See Roberts, 448 U.S. at
74 (“The ultimate question is whether the witness is unavail-
able 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
UNITED STATES v. YIDA 9907
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 rele-
vant evidence that through no fault of its own cannot be intro-
duced in any other way”).
The government offers no viable alternative standard. It
urges us to assess its actions only during the period “immedi-
ately 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 inev-
itably 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 pur-
suant to a detainer, and that its obligation to procure the wit-
ness’s attendance at the retrial through reasonable means does
not arise until that same witness is beyond its reach. To sup-
port its argument, the government points to the last sentence
of Rule 804(a) which states that “[a] declarant is not unavail-
able as a witness if exemption, refusal, claim of lack of mem-
ory, inability, or absence is due to the procurement or
wrongdoing of the proponent of a statement for the purpose
of preventing the witness from attending or testifying.” This
last sentence is a catchall provision designed to prevent the
admission of hearsay testimony where the witness technically
falls under one of the five enumerated categories in 804(a),
but the proponent intentionally or wrongfully caused the wit-
ness’s unavailability. The question of whether the government
procured Reziniano’s absence through wrongdoing need not
9908 UNITED STATES v. YIDA
be reached, unless the government first meets its obligation
under Rule 804(a)(5) of proving that it used “reasonable
means” to procure Reziniano’s attendance.
[5] Accordingly, we decline the government’s invitation to
adopt such a cramped and constricted theory of reasonable-
ness, which is not supported by any body of law. Instead, we
adopt the First Circuit’s approach, as articulated in Mann,
assessing the reasonableness of the government’s actions both
before and after Reziniano’s material witness warrant was
released and he was deported.
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 determina-
tion 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] Rezini-
ano to return to Israel.” However, as the district court
explained, good faith, “while necessary to a finding of reason-
able [means], does not end the reasonableness inquiry” for
“good faith is but one component” of that inquiry. We there-
fore turn to the central question on appeal: whether the gov-
ernment used reasonable means to procure Reziniano’s
attendance at Yida’s retrial.
In support of its motion to admit Reziniano’s former testi-
mony, 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 govern-
ment prior to the first trial; (3) the government was concerned
UNITED STATES v. YIDA 9909
about his Fifth Amendment due process rights (because it was
keeping him imprisoned solely on the material witness war-
rant after he had completed his sentence); and (4) the govern-
ment 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 unrea-
sonably, and offered alternative courses of action the govern-
ment could have taken to better ensure Reziniano’s presence
at the retrial. We agree with and adopt the district court’s rea-
soning as part of our assessment of the reasonableness of the
government’s actions.
[6] The district court properly gave little weight to Rezini-
ano’s oral assurances that he would return, emphasizing Rez-
iniano’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 ali-
ases 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 rea-
sonable expectation that Reziniano would return to testify if
asked. The district court appropriately concluded that “[a]n
oral promise from such an individual, without more, is . . . not
a valid reason to determine that he no longer poses a risk of
flight.”
11
The district court also considered the government’s statements about
Reziniano’s medical condition as a reason why Reziniano was no longer
a risk of flight after the first trial. The government does not directly make
this argument on appeal, and, even if it were, such an argument is pre-
cluded by the government’s representation before the district court that it
“didn’t let [Reziniano] go because he had medical problems.” We address
the government’s argument that Reziniano is unavailable by reason of
medical necessity under 804(a)(4) in section VII.
9910 UNITED STATES v. YIDA
[7] 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 Govern-
ment apparently fails to recognize the likelihood that Rezini-
ano 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 repeat-
edly 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 coopera-
tion from Reziniano was “coerced in some fashion by the fact
that he remained in federal custody” and that “such involun-
tary cooperation was insufficient to indicate to the Govern-
ment 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 par-
ticular, this case does not present a situation where the defen-
dant 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
12
In Aguilar-Ayala, 973 F.2d at 419-20, the Fifth Circuit stated that “un-
documented aliens have an overriding liberty interest in not being detained
as material witnesses, when the deposition procedure serves as an ade-
quate alternative to prolonged detention.” The Tenth Circuit noted a simi-
lar concern in Eufracio-Torres, 890 F.2d at 270, stating that “[t]he
competing interests to be weighed against those [Sixth Amendment rights]
of the accused are the witnesses’ procedural due process rights.” This con-
UNITED STATES v. YIDA 9911
The district court was troubled by the government’s failure to
explain why the “calculus [had] changed” after the govern-
ment 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
Fifth Amendment rights were truly the animating factor driv-
ing the government’s actions, a “number of alternatives to
ensure Reziniano’s presence at the re-trial while reducing or
eliminating his confinement in federal prison” existed, as the
district court made clear in its analysis. The existence of such
alternatives played a role in the First Circuit’s analysis in
Mann. See 590 F.2d at 366 (“Sufficient relief could have been
offered the witness by placing her in lesser custody, or per-
haps simply by supplying maintenance, and retaining her
passport and ticket.”); see also Wilson, 36 F. Supp. 2d at 1182
cern in Eufracio-Torres was heightened by the fact that while the material
witnesses, who were not charged with a crime, remained in custody, the
defendant was free on bail. See id. Yida, on the other hand, had spent more
than a year in custody before his retrial and was charged with a serious
crime that would result in a significant sentence if convicted.
13
As the district court pointed out: “The Government acknowledged at
the pretrial conference that it made the decision to retry defendant imme-
diately, and it therefore knew that a re-trial date would be imminent, or at
least within its control. Notably, this was not a situation where Rezini-
ano’s detention would be of a ‘prolonged’ nature, particularly when con-
sidered in light of the fact that he had already spent a significant amount
of time in custody.”
9912 UNITED STATES v. YIDA
(discussing good faith and reasonable efforts as affirmative
actions “such as issuing a subpoena, arranging payment of
travel expenses, or taking affirmative steps to ensure the alien
remains in the United States until trial”).
[8] 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 find-
ing 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).
[9] 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 govern-
ment’s actions would be altered if its efforts included the tak-
ing 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 infor-
mation acquired since his first trial in examining Reziniano;
UNITED STATES v. YIDA 9913
(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 Profes-
sor 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 suffi-
ciently narrow, at least absent a showing that Yida
was substantially disadvantaged by the timing of the
deposition, that the Government could argue force-
fully that it acted reasonably in not further delaying
Reziano’s deportation, which would be necessary to
ensure his presence at the second trial.
The district court reached a similar conclusion, and criti-
cized 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 appropriate way to handle a delicate situa-
tion,” the district court stated that it might “have been able to
arrange for a video deposition of Reziniano while he was in
custody in order to expedite his return to Israel” as the courts
had done in Terrazas-Montano and Eufracio-Torres. The dis-
trict court further explained that:
Notably, the Government does not wish to conduct
a Rule 15(a) videotaped deposition in Israel of Rez-
iniano because it claims such testimony would be
redundant given his former testimony at trial. While
indeed the testimony may be redundant, it goes with-
out saying that a jury’s ability to measure a witness’s
credibility, which directly implicates the Confronta-
tion Clause rights of the accused, is significantly
enhanced if the jury can actually see the witness tes-
9914 UNITED STATES v. YIDA
tifying, 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 Govern-
ment’s case, the standard of reasonableness is further height-
ened 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.”).
[10] 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
[11] Finally, while the government did offer to pay Rezini-
ano’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 Govern-
ment handled this matter, . . . it does not demonstrate the Gov-
14
We note however, that it may still be possible to take Reziniano’s tes-
timony via video recording or transmission in Israel which could then, in
turn, be presented in the courtroom. It is also conceivable that a video
deposition could be held in Israel, resulting in either the recording being
brought back to the trial or allowing for Reziniano to essentially testify
live through a direct video feed to the courtroom. We leave this issue to
the district court to address as it sees fit.
UNITED STATES v. YIDA 9915
ernment’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 Govern-
ment’s only legitimate effort to ensure that Reziniano would
be present at defendant’s re-trial.”
[12] 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 declar-
ant’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 estab-
lished unavailability under the Rule. The district court
explained its finding that Reziniano was not “unavailable”
under Rule 804(a)(5) with sound reasoning and did not abuse
its discretion. We affirm the district court’s denial of the gov-
ernment’s motion to admit Reziniano’s testimony under Fed-
eral Rule of Evidence 804(a)(5).
9916 UNITED STATES v. YIDA
VII
[13] We also reject the government’s argument that Rezini-
ano is unavailable by reason of medical necessity pursuant to
Federal Rule of Evidence 804(a)(4). Rule 804(a)(4) provides
that a declarant is unavailable as a witness if he “is unable to
be present or to testify at the hearing because of death or then
existing physical or mental illness or infirmity.” The district
court found that “Reziniano is not unavailable under Rule
804(a)(4)”15 and stated that 804(a)(5) “is the only subsection
applicable here.” The government argues that the district
court committed further, independent error “when it refused
to consider” the submitted declarations as evidence that Rez-
iniano was unavailable for medical reasons, arguing that
although the declarations did not necessarily compel a finding
of medical unavailability, they were adequate to support such
a finding.
[14] 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 gov-
ernment’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 Rule 804(a)(4) from the pre-trial conference and oral argu-
ment on the government’s motion. During the July 6th argu-
ment, the district court explained its view that there was
nothing in the record to suggest that Reziniano’s health pre-
cluded him from “traveling for a short period of time,” and
15
The district court explained its finding in its memorandum and order:
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 admissi-
ble 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 under Rule 804(a)(4).
UNITED STATES v. YIDA 9917
that it seemed more likely, based on its observations of the
witness and the information presented that Reziniano “just
didn’t want to come back and testify against his friend.”
While explaining its concerns, the district court asked the
government if there was “a doctor’s certificate [stating] that
he’s unavailable to travel.” In response, the government could
point to no such medical evidence and almost conceded its
argument under 804(a)(4), while it instead focused on
804(a)(5) as the appropriate exception upon which the district
court could ground a finding of unavailability:
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 quali-
fies 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 impossi-
ble for us to do anything further to secure his pres-
ence here at this point.
Consistent with the district court’s observation, and as the
government concedes in its briefing before this court, the dec-
larations submitted by the government “did not necessarily
compel a finding of medical unavailability.” Instead, the dec-
larations 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 Rule 804(a)(4). The 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
9918 UNITED STATES v. YIDA
unavailability based on medical necessity. Nothing in the gov-
ernment’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 Rule 804(a)(4).
VIII
[15] 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 (1968) (“[A] witness is not
‘unavailable’ for purposes of the . . . exception to the confron-
16
Because we ground our opinion on interpretation of Federal Rule of
Evidence 804, we have no need to reach and do not decide whether the
Sixth Amendment imposes constitutional requirements concerning
unavailability that require the same result. See, e.g., Town of Castle Rock,
Colo. v. Gonzales, 545 U.S. 748, 778 (2005) (longstanding doctrine of
constitutional avoidance cautions courts to avoids making unnecessary
constitutional determinations); Bellotti v. Baird, 428 U.S. 132, 146-51
(1976).
UNITED STATES v. YIDA 9919
tation 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 (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 v. Page, 390 US. at 724-25 (emphasis
added) [other citations omitted]. * * * [I]f there is a
possibility, albeit remote, that affirmative measures
might produce the declarant, the obligation of good
faith may demand their effectuation. “The lengths to
which the prosecution must go to produce the wit-
ness . . . is a question of reasonableness.” California
v. Green, 399 U.S. at 189, n.22, 90 S.Ct., at 1951(concurring opinion, citing Barber v. Page, supra).Roberts, 448 U.S. at 74 (emphasis added). Accord, e.g.,
Christian v. Rhode, 41 F.3d 461, 467 (9th Cir. 1994); United
States v. Winn, 767 F.2d 527, 530 (9th Cir. 1985) (per
curiam).
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 (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 (1900) (“[T]he question [of admis-
9920 UNITED STATES v. YIDA
sibility 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. Craw-
ford, 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 stat-
ute 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 (1970); Harrison v. NAACP,
360 U.S. 167, 177 (1959); Railroad Comm’n v. Pullman Co.,
312 U.S. 496; cf. Ashwander v. TVA, 297 U.S. 288, 346-47
(Brandeis, J., concurring). In my view, the doctrine of consti-
tutional avoidance reinforces the interpretation of Federal
Rule of Evidence 804 that we make today.