United States v. Laron Carter , 907 F.3d 1199 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50271
Plaintiff-Appellee,
D.C. No.
v. 2:14-cr-00297-VAP-1
LARON DARRELL CARTER,
AKA Birdd, AKA Gardena OPINION
Pimpin Birdd, AKA Garr
Birdd, AKA Pi Birdd, AKA Pi
Pimpin Birdd,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, Chief Judge, Presiding
Argued and Submitted August 27, 2018
Pasadena, California
Filed November 2, 2018
Before: Ronald M. Gould and Jay S. Bybee, Circuit
Judges, and Marco A. Hernandez,* District Judge.
Opinion by Judge Bybee
*
The Honorable Marco A. Hernandez, United States District Judge
for the District of Oregon, sitting by designation.
2 UNITED STATES V. CARTER
SUMMARY**
Criminal Law
The panel vacated the defendant’s convictions on one
count of violating 18 U.S.C. § 1591 (sex trafficking of a
minor or by force, fraud, or coercion) and one count of
violating 18 U.S.C. § 2423(a) (transportation of a minor in
interstate commerce to engage in prostitution), and remanded
for resentencing on remaining counts as to which the panel
affirmed the defendant’s convictions in a concurrently-filed
memorandum disposition.
The panel held that a defendant’s right to physically
confront an adverse witness (whether child or adult) cannot
be compromised by permitting the witness to testify by video
(whether one-way or two-way) unless use of the remote video
procedure is necessary and the reliability of the testimony is
otherwise assured. Because alternatives were available for
obtaining a victim-witness’s testimony that would have
preserved the defendant’s right to physical confrontation, the
use of a remote video was not necessary in this case, and
violated the defendant’s Sixth Amendment right to confront
the witnesses against him.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. CARTER 3
COUNSEL
Benjamin L. Coleman (argued), Coleman & Balogh LLP, San
Diego, California, for Defendant-Appellant.
Jeffrey Chemerinsky (argued) and Jeff Mitchell (argued),
Assistant United States Attorneys, Violent & Organized
Crime Section; Lawrence S. Middleton, Chief, Criminal
Division; Nicola T. Hanna, United States Attorney; United
States Attorney’s Office, Los Angeles, California; for
Plaintiff-Appellee.
OPINION
BYBEE, Circuit Judge:
Laron Carter was tried and convicted on seven counts of
violating 18 U.S.C. § 1591, and seven counts of violating
18 U.S.C. § 2423(a), based on his trafficking and prostitution
of seven minor girls. During Carter’s trial, one of the
victims, J.C., testified against him from Minnesota by two-
way video, as she was seven months pregnant and unable to
travel. Carter contends that permitting J.C. to testify against
him remotely by two-way video, rather than in person,
violated his Sixth Amendment right to confront the witnesses
against him.
We agree. Criminal defendants have a right to “physical,
face-to-face confrontation at trial,” and that right cannot be
compromised by the use of a remote video procedure unless
it is “necessary” to do so and “the reliability of the testimony
is otherwise assured.” Maryland v. Craig, 497 U.S. 836, 850
(1990). Because alternatives were available for obtaining
4 UNITED STATES V. CARTER
J.C.’s testimony that would have preserved Carter’s right to
physical confrontation, the use of a remote video procedure
was not necessary in this case. We therefore vacate Carter’s
convictions on the two counts involving J.C. and remand to
the district court for resentencing on the remaining counts.1
I
Carter was convicted of forcing seven minor girls into
prostitution and trafficking them across state lines. The
crimes took place over a ten-year period from 2003 to 2013.
For each of the seven victims, Carter was charged with one
count of violating 18 U.S.C. § 1591 (sex trafficking of a
minor or by force, fraud, or coercion), and one count of
violating 18 U.S.C. § 2423(a) (transportation of a minor in
interstate commerce to engage in prostitution), for a total of
fourteen counts.
One week before Carter’s April 2016 trial, the
government filed an ex parte application regarding the
anticipated testimony of J.C., the victim for Counts 13 and
14. J.C., who was by then an adult living in Minnesota, was
seven months pregnant with a due date in June. The
government explained that J.C. had been hospitalized for
complications with her pregnancy and that her doctor had
instructed her not to travel from Minnesota to California.
Accordingly, the government sought either to take J.C.’s
deposition in Minnesota pursuant to Federal Rule of Criminal
Procedure 15, or to have her testify during trial from
Minnesota via live two-way video conference. With respect
to the out-of-court deposition, the government proposed that
1
In a concurrently-filed memorandum disposition, we affirm Carter’s
convictions on the remaining counts.
UNITED STATES V. CARTER 5
the parties would fly to Minnesota in the middle of trial and
suggested that it would try to secure, but could not guarantee,
Carter’s physical attendance.
Carter opposed both options on Confrontation Clause
grounds. He objected to the deposition because the logistics
for securing his attendance at the deposition could not be
arranged on such short notice, and because counsel would
have to forgo preparation for trial to attend the deposition.
He objected to the live two-way video procedure based on his
“constitutional rights to personally confront his accuser at
trial.” He concluded by noting that, if he were forced to
select one of the two alternatives, he would choose the two-
way video procedure. The district court granted the
government’s application to use two-way video, and the case
proceeded to trial.
On the second day of trial, Carter again objected to the
two-way video procedure. He argued that under Craig,
permitting J.C. to testify by two-way video would violate his
right to confrontation unless the court found that J.C.’s
absence was “necessary to further an important public
policy.” The district court overruled Carter’s objection.
Despite the government’s failure to provide any “direct
evidence from [J.C.’s] physician,” the court concluded that
J.C. was “unavailable” because “she had been advised by her
doctor not to travel, given the advanced state of her
pregnancy.” The court also concluded that J.C.’s “testimony
[was] necessary” to the government’s case, and that the two-
way video procedure would “satisfy all the requirements of
the Confrontation Clause”—J.C. would testify under oath, she
would be subject to cross-examination, and the jury would be
able to observe her demeanor.
6 UNITED STATES V. CARTER
J.C. testified by two-way video at trial. At the start of her
testimony, the court instructed the jurors that, although J.C.
was testifying “via live video feed,” they were “to treat the
testimony the same as a witness who is physically present in
the courtroom.” J.C. was then sworn in by the courtroom
deputy and asked to identify Carter while the camera scanned
the courtroom. She responded: “Um, is that him right there
next to – I can’t really see that well on you guy’s thing, but I
believe that’s him next to these two gentlemen right there. I
can’t really see that well.” After she described Carter’s
clothing, the court “note[d] that the witness has identified the
defendant.”
J.C. proceeded to testify about her relationship with
Carter. She stated that she met Carter in 2013, when she was
16 years old. She was living in Minnesota at the time, and
Carter bought her a bus ticket to Los Angeles under an alias
because she was underage. When she arrived in Los Angeles,
Carter picked her up and took her to a motel room. There, he
photographed her in lingerie and used the photographs in an
advertisement on Backpage, a website used to advertise
sexual services. She then worked as a prostitute for Carter for
approximately two weeks. She testified that Carter kept all
of her earnings, dictated how much she should charge and
what she should wear, and threatened to beat her if she did
not comply.
In addition to J.C.’s testimony, the government introduced
as evidence her birth certificate, which confirmed that she
was 16 years old when the conduct took place, as well as a
record of the bus ticket J.C. used to get to Los Angeles, which
confirmed that Carter purchased it. The government also
introduced the Backpage advertisement, evidence showing
that the credit card used to pay for this advertisement was the
UNITED STATES V. CARTER 7
same credit card used to pay for an advertisement of another
prostitute who worked for Carter, and evidence showing that
the Internet Protocol (“IP”) address used to access Carter’s
Facebook account matched the IP address used to create the
Backpage advertisement. That IP address was traced to a
Travelodge motel, the decor of which matched the
background in the Backpage advertisements featuring J.C.
Aside from J.C., five of the other victims testified in
person at trial, and one of the victims did not testify at all.
Carter was ultimately convicted on all fourteen counts and
sentenced to 40 years’ imprisonment. Because the group of
counts involving J.C. (Counts 13 and 14) carried the highest
offense level under the United States Sentencing Guidelines
(“U.S.S.G.”), those counts served as the base for calculating
his final sentencing range. See U.S.S.G. §§ 3D1.2, 3D1.4.
II
Carter argues that permitting J.C. to testify by two-way
video violated his rights under the Sixth Amendment’s
Confrontation Clause. “We review claims of a violation of
the Confrontation Clause de novo.” United States v. Nguyen,
565 F.3d 668, 673 (9th Cir. 2009).2
2
The government argues that this claim should be reviewed under the
plain error standard because Carter did not “request[] either a continuance
or severance” of Counts 13 and 14 in the district court. The argument has
no merit. Both before and during trial, Carter specifically objected to the
use of two-way video testimony on Confrontation Clause grounds. These
objections, which brought Carter’s “Confrontation Clause claim to the
attention of both the district court and the government,” were sufficient “to
avoid the plain error standard” on appeal. Nguyen, 565 F.3d at 673 n.2.
Carter was not obligated to suggest other strategies for how the
government could introduce evidence against him.
8 UNITED STATES V. CARTER
A
The Confrontation Clause of the Sixth Amendment
guarantees a criminal defendant the right “to be confronted
with the witnesses against him.” U.S. Const. amend. VI.
“[T]he Confrontation Clause provides two types of
protections for a criminal defendant: the right physically to
face those who testify against him, and the right to conduct
cross-examination.” Coy v. Iowa, 487 U.S. 1012, 1017
(1988) (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 51
(1987) (plurality opinion)). As the Supreme Court observed
in Coy, most Confrontation Clause cases concern the second
of these protections and its implications for using out-of-court
statements by witnesses who do not testify at trial. Id. at
1016. That remains true today. See, e.g., Ohio v. Clark,
135 S. Ct. 2173 (2015); Michigan v. Bryant, 562 U.S. 344
(2011); Giles v. California, 554 U.S. 353 (2008); Crawford
v. Washington, 541 U.S. 36 (2004). But at its core, “the
Confrontation Clause guarantees the defendant a face-to-face
meeting with witnesses appearing before the trier of fact.”
Coy, 487 U.S. at 1016; see California v. Green, 399 U.S. 149,
157 (1970) (explaining that the “literal right to ‘confront’ the
witness at the time of trial . . . forms the core of the values
furthered by the Confrontation Clause”).
The Supreme Court has twice addressed the right to face-
to-face confrontation. In Coy, the Court held that the
placement of a screen between the defendant and two child
witnesses, which allowed the “witnesses to avoid viewing
[the defendant] as they gave their testimony,” constituted an
“obvious . . . violation of the defendant’s right to a face-to-
face encounter.” 487 U.S. at 1020. In reaching that
conclusion, the Court illustrated “the profound effect upon a
witness of standing in the presence of the person the witness
UNITED STATES V. CARTER 9
accuses,” explaining that a physically-confronted “witness
‘may feel quite differently when he has to repeat his story
looking at the man whom he will harm greatly by distorting
or mistaking the facts.’” Id. at 1019–20 (quoting Zechariah
Chafee, The Blessings of Liberty 35 (1956)). The “right to
face-to-face confrontation” thus serves to “ensure the
integrity of the fact-finding process.” Id. (citation and
internal alteration omitted). Accordingly, the Court held that
the Confrontation Clause’s “irreducible literal meaning”
guarantees “a right to meet face to face all those who appear
and give evidence at trial.” Id. at 1021 (emphasis omitted)
(quoting Green, 399 U.S. at 175 (Harlan, J., concurring)).
Nevertheless, the Court acknowledged that “face-to-face
presence may, unfortunately, upset the truthful rape victim or
abused child; but by the same token it may confound and
undo the false accuser, or reveal the child coached by a
malevolent adult. It is a truism that constitutional protections
have costs.” Id. at 1020. The Court “le[ft] for another day”
the question whether there were exceptions to the right to
face-to-face confrontation, observing that any exception
“would surely be allowed only when necessary to further an
important public policy.” Id. at 1021.
That day came two years later in Craig. There, the Court
upheld a Maryland statute permitting child victims of abuse
to testify from outside the courtroom by one-way closed
circuit television. 497 U.S. at 840–41, 860. This procedure
could be invoked only if the trial judge found “that testimony
by the child victim in the courtroom will result in the child
suffering serious emotional distress such that the child cannot
reasonably communicate.” Id. at 840–41 (citation omitted).
The prosecutor and defense counsel could examine and cross-
examine the child witness in a separate room. Id. at 841. The
defendant and jury could see the testifying child witness on
10 UNITED STATES V. CARTER
a monitor in the courtroom, but the witness could not see the
defendant. Id. at 841–42.
The Court declared that, while “the Confrontation Clause
reflects a preference for face-to-face confrontation,”
defendants do not have an “absolute right to a face-to-face
meeting with witnesses against them at trial.” Id. at 844, 849
(quoting Ohio v. Roberts, 448 U.S. 56, 63 (1980)). But the
Court cautioned that “the face-to-face confrontation
requirement” should not “easily be dispensed with.” Id. at
850. Thus, the Court held that “a defendant’s right to
confront accusatory witnesses may be satisfied absent a
physical, face-to-face confrontation at trial only where”
(1) the “denial of such confrontation is necessary to further an
important public policy,” and (2) “the reliability of the
testimony is otherwise assured.” Id. at 850.
Armed with this two-part test, the Court turned to
Maryland’s video procedure. The Court first concluded that
the procedure adequately ensured the “reliability and
adversariness” of the testimony, as it “preserve[d] all of the
other elements of the confrontation right”—the child witness
had to be competent to testify under oath, the defendant could
conduct live cross-examination, and everyone in the
courtroom could observe the witness’s demeanor. Id. at 851.
The Court further concluded that “a State’s interest in the
physical and psychological well-being of child abuse victims
may be sufficiently important to outweigh, at least in some
cases, a defendant’s right to face his or her accusers in court.”
Id. at 853. But such cases would require a “case-specific
finding” that the procedure is “necessary to protect a child
witness from trauma that would be caused by testifying in the
physical presence of the defendant” when “such trauma
would impair the child’s ability to communicate.” Id. at
UNITED STATES V. CARTER 11
857–58. The Court explained that the trial court would need
to find that the witness would be traumatized by the
defendant’s presence in the courtroom, not from the
courtroom generally, and that the trauma would rise to a level
that is “more than de minimis.” Id. at 856.
B
Craig involved one-way video testimony by a child
witness, while this case involves two-way video testimony by
an adult witness. The Supreme Court has not decided
whether Craig’s standard applies in these circumstances,3 and
until now we have applied Craig only in the context of
18 U.S.C. § 3509, a statute enacted in direct response to
Craig that permits child witnesses to testify by two-way
video. See United States v. Etimani, 328 F.3d 493, 499 (9th
Cir. 2003); United States v. Quintero, 21 F.3d 885, 892 (9th
Cir. 1994); United States v. Garcia, 7 F.3d 885, 888–89 (9th
Cir. 1993). We now make clear that a defendant’s right to
physically confront an adverse witness (whether child or
adult) cannot be compromised by permitting the witness to
testify by video (whether one-way or two-way) unless
3
The vitality of Craig itself is questionable in light of the Supreme
Court’s later decision in Crawford, which abrogated Roberts, a case relied
upon heavily in Craig that permitted “open-ended exceptions from the
confrontation requirement” based on “judicial determination[s] of
reliability.” Crawford, 541 U.S. at 54, 62 (abrogating Roberts, 448 U.S.
56); see Craig, 497 U.S. at 847–52. But while Craig and Crawford stand
in “marked contrast” in several respects, “Crawford did not overturn
Craig.” United States v. Cox, 871 F.3d 479, 492–95 (6th Cir. 2017)
(Sutton, J., concurring), cert. denied, 138 S. Ct. 754 (2018). We thus
remain bound by Craig until the Supreme Court “see[s] fit to reconsider
[it], regardless of whether subsequent cases have raised doubts about [its]
continuing vitality.” Bosse v. Oklahoma, 137 S. Ct. 1, 2 (2016) (per
curiam) (citation omitted).
12 UNITED STATES V. CARTER
Craig’s standard is satisfied. And that standard is a stringent
one; the use of a remote video procedure must be reserved for
rare cases in which it is “necessary.” Craig, 497 U.S. at 850.
Our conclusion follows directly from the “core” of the
Confrontation Clause guarantee—providing the accused an
“opportunity to challenge his accuser in a face-to-face
encounter in front of the trier of fact.” Green, 399 U.S. at
156–57. Not only does physical confrontation at trial serve
as a symbol of fairness, but it also promotes reliability, for
“[i]t is always more difficult to tell a lie about a person ‘to his
face’ than ‘behind his back.’” Coy, 487 U.S. at 1019.
Compelling “adverse witnesses at trial to testify in the
accused’s presence” thus “enhances the accuracy of
factfinding” at trial. Craig, 497 U.S. at 846–47. So too does
“compelling [witnesses] to stand face to face with the jury”
as they tell their side of the story. Green, 399 U.S. at 158
(quoting Mattox v. United States, 156 U.S. 237, 242 (1895)).
These important components of confrontation are lost when
the witness is not testifying in court, regardless of the
witness’s age or ability to see the defendant on a screen from
a distant location. Any procedure that allows an adverse
witness to testify remotely necessarily diminishes “the
profound [truth-inducing] effect upon a witness of standing
in the presence of the person the witness accuses.” Coy,
487 U.S. at 1020 (emphasis added).
There are also important practical differences between
face-to-face confrontation and virtual confrontation. From
the remote witness’s point of view, the courtroom will
necessarily be defined by the angle and quality of the
courtroom camera as well as the size and quality of the screen
on which the video is projected. These variables can distort
any effort to approximate in-person testimony. The record in
UNITED STATES V. CARTER 13
this case bears this out. When asked to identify Carter in the
courtroom, J.C. hesitantly did so after testifying that she
“c[ould]n’t really see that well.” Moreover, unless the
defendant has multiple attorneys, such that one could travel
to the witness’s remote location while the other remains in
the courtroom, the defendant would be unable to ensure that,
for example, “the witness is not being coached or influenced
during testimony, and that the witness is not improperly
referring to documents.” United States v. Hamilton, 107 F.3d
499, 503 (7th Cir. 1997). There is no suggestion of such
misconduct in this case; we point this out only to show that
physical confrontation serves purposes other than permitting
cross-examination and allowing the jury to see the witness’s
face.
It also bears noting that no procedural mechanism exists
for employing a video procedure in the manner it was
employed here. Federal Rule of Criminal Procedure 26
requires that, absent certain circumstances, “[i]n every trial
the testimony of witnesses must be taken in open court.” The
Judicial Conference once suggested a revision to Rule 26 that
would have allowed testimony by two-way video in special
circumstances, but the Supreme Court declined to transmit
the proposed revision to Congress. Order of the Supreme
Court, 207 F.R.D. 89, 91–92 (2002). Justice Scalia filed a
statement explaining that he “share[d] the majority’s view”
that the proposal was “of dubious validity under the
Confrontation Clause,” as it failed to “limit the use of
testimony via video transmission to instances where there has
been a ‘case-specific finding’ that it is ‘necessary to further
an important public policy.’” Id. at 93 (statement of Scalia,
J.) (citing Craig, 497 U.S. at 850, 857–58). Although Justice
Scalia’s statement is not controlling, his reasoning supports
our conclusion that Craig supplies the governing standard
14 UNITED STATES V. CARTER
when the defendant is deprived of “a physical, face-to-face
confrontation at trial,” 497 U.S. at 850.
Further support for our view comes from other circuits
addressing this issue, which have held that Craig’s two-part
test applies to the use of two-way video testimony. See
United States v. Yates, 438 F.3d 1307, 1313–15 (11th Cir.
2006) (en banc); United States v. Bordeaux, 400 F.3d 548,
554–55 (8th Cir. 2005); see also State v. Rogerson,
855 N.W.2d 495, 502–03 (Iowa 2014) (collecting decisions
from several state courts holding that “Craig [provides] the
standard for assessing the constitutionality of two-way video
testimony”).4 We now join them and expressly hold that a
defendant’s right to “physical, face-to-face confrontation at
trial” may be compromised by the use of a remote video
procedure only upon a “case-specific finding” that (1) the
denial of physical confrontation “is necessary to further an
4
The Second Circuit has held that “the Craig standard” does not
apply to two-way video procedures, reasoning that, unlike the one-way
video in Craig, two-way video “preserve[s] the face-to-face
confrontation” required by the Confrontation Clause. United States v.
Gigante, 166 F.3d 75, 81 (2d Cir. 1999). Instead of applying Craig, the
Second Circuit thought the “more profitable comparison” was to Federal
Rule of Criminal Procedure 15, which permits the taking of an out-of-
court deposition for use in trial in “exceptional circumstances . . . in the
interest of justice.” Id. (quoting Fed. R. Crim. P. 15(a)). We agree with
the Eighth and Eleventh Circuits that Gigante is an outlier and that the
proper test is Craig. See Yates, 438 F.3d at 1313; Bordeaux, 400 F.3d at
555. Regardless of whether the video procedure is one-way or two-way,
the defendant is being denied “a physical, face-to-face confrontation at
trial.” Craig, 497 U.S. at 850. And equating a two-way video procedure
with face-to-face confrontation necessarily neglects the “intangible
elements” of confrontation that, as even the Gigante court admits, may be
“reduced or even eliminated by remote testimony.” 166 F.3d at 81.
UNITED STATES V. CARTER 15
important public policy,” and (2) “the reliability of the
testimony is otherwise assured.” Craig, 497 U.S. at 850, 857.
C
Craig’s requirement of necessity was not met here.
Although the district court concluded that J.C. was
“unavailable to travel to be physically present” at trial, all
agree that J.C.’s inability to travel was due to her
pregnancy—a temporary disability. There were alternatives
available to preserve Carter’s right to physical face-to-face
confrontation, meaning that denying him that right was not
necessary.
The most obvious alternative would have been to continue
the trial in anticipation of J.C.’s recovery. See United States
v. Jacobs, 97 F.3d 275, 281 (8th Cir. 1996); Peterson v.
United States, 344 F.2d 419, 425 (5th Cir. 1965). As the
government acknowledges in its brief, J.C. was unable to
travel “for the duration of her pregnancy (which was two
months).” Continuances have been granted in similar
circumstances. See, e.g., United States v. Howard, 218 F.3d
556, 562–63 (6th Cir. 2000) (affirming a four-month
“continuance requested by the government on the ground that
[a prosecution witness] had been hospitalized after going into
premature labor and was therefore unavailable to testify”).
Another alternative would have been to sever the two counts
involving J.C. while maintaining the scheduled trial date for
the remaining counts. See, e.g., Garris v. United States,
418 F.2d 467, 468–70 (D.C. Cir. 1969) (affirming severance
of counts at the government’s request when “the necessary
witnesses” for the various counts “could not be available at
the same time”). Although some of the government’s
evidence may have overlapped among the counts, the charges
16 UNITED STATES V. CARTER
were not inseparable. To the contrary, the jury was
specifically instructed that the “verdict on one count should
not control [the] verdict on any other count.” Either of these
alternatives would have allowed Carter to confront J.C. face-
to-face, without screens, cables, and thousands of miles
between them.
We are mindful that having to make these adjustments on
the eve of trial is not ideal. But a criminal defendant’s
constitutional rights cannot be neglected merely to avoid
“added expense or inconvenience.” Green, 399 U.S. at 189
n.22 (Harlan, J., concurring). We also realize that there may
be some cases in which it is truly necessary to forgo physical
confrontation at trial due to a witness’s medical condition.
See, e.g., Horn v. Quarterman, 508 F.3d 306, 310, 320 (5th
Cir. 2007) (finding Craig’s “necessity-based exception”
satisfied on habeas review when the witness was “terminally
ill with cancer and being treated in [another state]”). But in
this case, the government did not even attempt to continue the
trial, sever the counts, or both before resorting to a procedure
that prevented Carter from confronting his accuser in person.
“The right of confrontation may not be dispensed with so
lightly.” Barber v. Page, 390 U.S. 719, 725 (1968).
The government did suggest another possible
alternative—deposing J.C. in Minnesota.5 Although live, in-
person testimony would be preferable to out-of-court
5
The government proposed taking J.C.’s deposition under Rule 15,
and offered two-way video as an alternative. Carter objected to both
proposals, expressing doubts that the deposition could be scheduled
without interfering with the trial schedule. The district court rejected the
proposed deposition without comment and granted the government’s
application to proceed by video.
UNITED STATES V. CARTER 17
testimony, a deposition would have at least preserved Carter’s
right to physical confrontation. See Fed. R. Crim. P. 15(a),
(c)(1). Indeed, Craig itself notes that the “denial of face-to-
face confrontation would be unnecessary” if the witness could
testify elsewhere “with the defendant present.” 497 U.S. at
856; see Yates, 438 F.3d at 1317 (finding no necessity where
the defendants and witnesses could “be placed in the same
room for the taking of pre-trial deposition testimony pursuant
to Rule 15”). And if logistics prevented the government from
securing Carter’s physical presence at J.C.’s deposition while
also maintaining the trial schedule, the court could have
granted a brief continuance to allow the deposition to be
completed with Carter present.6 Given these various
alternatives, forgoing physical confrontation in favor of a
two-way video procedure was not “necessary.” Craig,
497 U.S. at 850.
The government tries to overcome this conclusion by
pointing to Federal Rule of Evidence 804, which permits the
introduction of certain hearsay statements made prior to trial
when the declarant is “unavailable” to testify in court because
of “a then-existing infirmity, physical illness, or mental
illness.” Fed. R. Evid. 804(a)(4), (b). As the government
correctly observes, we have held that “risks in late pregnancy,
when attested to by a physician, are an ‘infirmity’ within the
6
We express no opinion on whether the government could have
satisfied the Confrontation Clause by deposing J.C. without Carter
physically present, other than to note that the government is generally
required to “secure the defendant’s actual, physical presence” at a Rule 15
deposition and that we have excused this requirement only when fulfilling
it would be “impossibl[e].” United States v. Medjuck, 156 F.3d 916, 920
(9th Cir. 1998) (quoting Christian v. Rhode, 41 F.3d 461, 467 n.8 (9th Cir.
1994)); see Fed. R. Crim. P. 15(c)(1).
18 UNITED STATES V. CARTER
meaning of [Rule 804(a)(4)].” United States v. McGuire,
307 F.3d 1192, 1205 (9th Cir. 2002).
This argument suffers from two flaws. First, this case
does not involve hearsay statements made prior to trial; J.C.
gave live testimony during trial, albeit remotely. As a
constitutional matter, the test for admitting out-of-court
testimony is “quite separate from” the test adopted in Craig,
which governs “what in-court procedures are constitutionally
required to guarantee a defendant’s confrontation right once
a witness is testifying.” White v. Illinois, 502 U.S. 346, 358
(1992). If anything, our decision in McGuire only sharpens
the point, as the hearsay testimony introduced in that case
was videotaped testimony from the defendant’s first trial.
307 F.3d at 1196; see Fed. R. Evid. 804(b)(1). The defendant
thus had the opportunity to physically confront the witness at
the time the testimony was given. Carter, by contrast, never
had that opportunity with respect to J.C.
Second, Rule 804 is a rule of evidence, and the
Confrontation Clause’s protections do not turn on “the
vagaries of the rules of evidence.” Crawford, 541 U.S. at 61;
see Idaho v. Wright, 497 U.S. 805, 814 (1990) (“[W]e have
. . . been careful not to equate the Confrontation Clause’s
prohibitions with the general rule prohibiting the admission
of hearsay statements.”). Indeed, the right to confrontation is
a rule of procedure, not evidence. See Crawford, 541 U.S. at
60–61. When testimony is being introduced against a
defendant in a criminal case, the Confrontation Clause’s
guarantees do not simply “evaporate when [the] testimony
happens to fall within some broad, modern hearsay exception,
even if that exception might be justifiable in other
circumstances.” Id. at 56 n.7. We therefore find the
government’s reliance on Rule 804 unpersuasive.
UNITED STATES V. CARTER 19
The government also points out that the two-way video
procedure in this case preserved “all other elements of the
confrontation right,” Craig, 497 U.S. at 851, as J.C. was
required to be competent, to testify under oath, to undergo
contemporaneous cross-examination, and to be viewable by
the judge, jury, and defendant. But that is not sufficient.
Dispensing with physical confrontation must be “necessary.”
Id. at 850. And a finding that J.C. was temporarily unable to
come to court is not the sort of “requisite finding of
necessity” that justifies depriving Carter of his constitutional
right to physical, face-to-face confrontation. Id. at 855.
D
Having found a Confrontation Clause violation, Carter’s
convictions on Counts 13 and 14 cannot stand unless “the
error was harmless beyond a reasonable doubt.” United
States v. Larson, 495 F.3d 1094, 1107 (9th Cir. 2007) (en
banc). “The government bears the burden of proving that the
error was harmless beyond a reasonable doubt, and we assess
this issue by considering ‘the importance of the witness’
testimony in the prosecution’s case, whether the testimony
was cumulative, and, of course, the overall strength of the
prosecution’s case.’” United States v. Esparza, 791 F.3d
1067, 1074 (9th Cir. 2015) (internal alteration omitted)
(quoting Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)).
The “assessment of harmlessness cannot include
consideration of whether the witness’ testimony would have
been unchanged, or the jury’s assessment unaltered, had there
been confrontation”; rather, harmlessness must “be
determined on the basis of the remaining evidence.” Coy,
487 U.S. at 1021–22; see Nguyen, 565 F.3d at 675.
20 UNITED STATES V. CARTER
The government has not carried its burden of showing
that the Confrontation Clause violation was harmless beyond
a reasonable doubt. J.C. was not merely a witness, but the
alleged victim of Carter’s crimes, and she was the most recent
of Carter’s alleged victims. Her testimony was clearly
critical evidence with respect to Counts 13 and 14. The
government acknowledged as much in the district court,
arguing that “J.C.’s testimony [was] especially central to the
government’s case.” The remaining evidence for those
counts consisted of “documentary evidence” indicating that
Carter paid for J.C.’s bus ticket to Los Angeles and for a
Backpage ad that included a photograph of J.C. But this
evidence does not, standing alone, establish beyond a
reasonable doubt that Carter violated 18 U.S.C. §§ 1591 and
2423. The documents do not establish, for example, Carter’s
“intent that [J.C.] engage in prostitution.” 18 U.S.C.
§ 2423(a). Nor do they establish Carter’s knowledge that
“force, threats of force, fraud, [or] coercion . . . would be used
to cause [J.C.] to engage in a commercial sex act.” Id.
§ 1591(a). Only J.C. could fill in those gaps. And she
testified that she was 16 when Carter first contacted her, that
she told him she was 16, and that he purchased a bus ticket
because she was underage and could not get on a plane. J.C.
described how Carter put her up in motels, bought her
provocative clothes, and forced her onto the streets. She
testified that he coerced her into prostitution and maintained
control over her by collecting all of her earnings and by
threatening and beating her if she failed to follow his “rules.”
Her testimony was thus central to the government’s case on
Counts 13 and 14, which “strongly supports a finding that the
error was not harmless.” Fowler v. Sacramento Cty. Sheriff’s
Dep’t, 421 F.3d 1027, 1042 (9th Cir. 2005) (citing Olden v.
Kentucky, 488 U.S. 227, 232–33 (1988)).
UNITED STATES V. CARTER 21
In any event, “[e]ven when the government’s case is
‘strong,’ a Confrontation Clause violation is not harmless
where the erroneously admitted evidence could have
‘significantly altered the evidentiary picture.’” Esparza,
791 F.3d at 1074 (quoting United States v. Bustamante,
687 F.3d 1190, 1195 (9th Cir. 2012)). There is no question
that J.C.’s testimony significantly altered the evidentiary
picture with respect to Counts 13 and 14. The government’s
essential argument at closing—that J.C. “worked for [Carter]
out on the track, having sex with adult men in cheap motels,
and giving all the money to [Carter]”—hinged entirely on
J.C.’s testimony. The government has not met its burden to
show harmlessness beyond a reasonable doubt. Counts 13
and 14 must be vacated.
III
Because we vacate Carter’s convictions on Counts 13 and
14, the sentencing package imposed by the district court has
become “unbundled.” United States v. Christensen, 828 F.3d
763, 821 (9th Cir. 2015) (quoting United States v. Ruiz-
Alvarez, 211 F.3d 1181, 1184 (9th Cir. 2000)). Indeed,
Carter’s sentence was based on Counts 13 and 14, the group
of counts with the highest offense level. See U.S.S.G.
§§ 3D1.2, 3D1.4. We therefore follow “our customary
practice” of remanding for the district court “to put together
a new package reflecting its considered judgment as to the
punishment the defendant deserve[s] for the crimes of which
he [i]s still convicted.” Christensen, 828 F.3d at 821 (internal
alterations omitted) (quoting Ruiz-Alvarez, 211 F.3d at 1184).
We decline to address Carter’s additional challenges to his
sentence, which he may raise to the extent appropriate on
remand.
22 UNITED STATES V. CARTER
IV
Permitting J.C. to testify against Carter by two-way video
violated Carter’s Sixth Amendment right to confrontation,
and that error was not harmless beyond a reasonable doubt.
For these reasons and those given in the accompanying
memorandum disposition, we affirm Carter’s convictions on
Counts 1–12, vacate his convictions on Counts 13 and 14, and
remand to the district court for resentencing.
AFFIRMED IN PART, VACATED IN PART, AND
REMANDED.