United States v. Robert Underwood, Jr. , 507 F. App'x 733 ( 2013 )


Menu:
  •                                                                            FILED
    NOT FOR PUBLICATION                             FEB 12 2013
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                        No. 11-30312
    Plaintiff - Appellant,             D.C. No. 3:10-cr-05293-BHS-1
    v.
    MEMORANDUM *
    ROBERT UNDERWOOD, JR.,
    Defendant - Appellee.
    Appeal from the United States District Court
    for the Western District of Washington
    Benjamin H. Settle, District Judge, Presiding
    Argued and Submitted February 5, 2013
    Seattle, Washington
    Before: FISHER, GOULD and PAEZ, Circuit Judges.
    The government appeals the district court’s order granting defendant Robert
    Underwood Jr.’s motion to exclude the alleged victim’s deposition testimony and
    dismiss the original indictment. Reviewing de novo, see United States v. Larson,
    
    495 F.3d 1094
    , 1102 (2007) (en banc), we vacate and remand.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    1. The district court excluded the witness’ deposition under our three-part
    test for determining when restrictions on cross-examination violate the
    Confrontation Clause: (1) whether the excluded evidence was relevant; (2) whether
    there were other legitimate interests outweighing the defendant’s interest in
    presenting the evidence; and, as relevant here, (3) whether the exclusion of
    evidence left the jury with sufficient information to assess the credibility of the
    witness. See 
    id. at 1103
    ; United States v. Beardslee, 
    197 F.3d 378
    , 383 (9th Cir.
    1999). The court concluded that, without the ability to cross-examine the witness
    regarding evidence discovered after the initial deposition was completed, the jury
    lacked sufficient information regarding the witness’ medications, mental capacity
    and memory to assess her credibility. We respectfully disagree with that
    assessment.
    We are persuaded that, even though Underwood is prevented from
    conducting further cross-examination, the jury will have sufficient information to
    assess the witness’ credibility. This is so because: (1) the important evidence
    regarding the witness’ medications and mental condition can be presented to the
    jury through means other than cross-examination; and (2) the existing deposition
    testimony provides information on the witness’ mental capacity and credibility.
    Cf. Perry v. New Hampshire, 
    132 S. Ct. 716
    , 723 (2012) (“The Constitution, our
    2
    decisions indicate, protects a defendant against a conviction based on evidence of
    questionable reliability, not by prohibiting introduction of the evidence, but by
    affording the defendant means to persuade the jury that the evidence should be
    discounted as unworthy of credit.”).
    2. We reject Underwood’s contention that the witness’ direct testimony
    must be stricken under Murdoch v. Castro, 
    609 F.3d 983
    , 996 (9th Cir. 2010) (en
    banc) (Silverman, J., concurring), and Toolate v. Borg, 
    828 F.2d 571
    , 572 (9th Cir.
    1987). That line of authority does not apply because Underwood had an
    unrestricted opportunity to cross-examine the witness regarding her direct
    testimony.
    We hold that the district court erred in determining that presenting the
    deposition testimony to the jury would violate the Confrontation Clause. We
    therefore vacate the order excluding the witness’ testimony and dismissing the
    original indictment. Like the district court, we do not reach Underwood’s other
    arguments for excluding the testimony or dismissing the indictment. Nor do we
    express an opinion as to other issues that may arise on remand.
    VACATED AND REMANDED.
    3
    

Document Info

Docket Number: 11-30312

Citation Numbers: 507 F. App'x 733

Judges: Fisher, Gould, Paez

Filed Date: 2/12/2013

Precedential Status: Non-Precedential

Modified Date: 11/6/2024