United States v. Johnson, No. 10-50401 (9th Cir. 2014)
Annotate this CaseDefendants Johnson and Williams appealed their convictions for armed robbery and murder. At issue was the so-called "forfeiture exception" to the Confrontation Clause of the Sixth Amendment, which applies when the defendant is responsible for the witness being unavailable. The court must decide whether proof of the defendant's responsibility for the witness's absence must be shown by a preponderance of the evidence, as provided by Rule 804(b)(6) of the Federal Rules of Evidence, or in light of Crawford v. Washington and its progeny, by clear and convincing evidence. With respect to the forfeiture exception, the court joined the circuits that have decided the issue since Crawford in holding that the standard has not changed and the provisions of the Rule continue to apply. In this case, the court concluded that the evidence was sufficient to satisfy the preponderance standard where it tended to show that Johnson alone had the means, motive, and opportunity to threaten the witness and did not show anyone else did; in regards to Williams's Confrontation Clause claim, the witness's statements were not strongly inculpatory of Williams given their inconsistency and there was no reason to conclude that the limiting instruction was insufficient; and defendants' additional claims of trial errors have no merit. Accordingly, affirmed the judgment of the district court.
Court Description: Criminal Law. The panel affirmed Antoine Johnson’s and Michael Williams’s convictions for armed robbery and murder in a case in which the district court admitted, pursuant to the forfeiture exception to the Confrontation Clause, an unavailable witness’s out-of-court testimonial statements to the police. The forfeiture exception applies when the defendant is responsible for the witness being unavailable. The panel held that preponderance of the evidence remains, after Crawford v. Washington, 541 U.S. 36 (2004), the standard by which the Government must prove that the defendant intentionally secured the witness’s absence. The panel therefore rejected Johnson’s contention that the applicable standard is clear and convincing evidence. The panel held that the district court did not err in concluding that the Government produced sufficient evidence to demonstrate that Johnson had intentionally prevented the witness from testifying. The panel held that the district court did not abuse its discretion in denying Williams’s request for severance before Johnson’s attorney elicited testimony from the investigating officer that the witness had identified Williams, where the witness’s statements were not strongly inculpatory of Williams and there is no reason to conclude that the district court’s limiting instruction was insufficient. The panel rejected as meritless the defendants’ claims of several additional trial errors.
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