United States v. Shayota, No. 17-10270 (9th Cir. 2019)
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Defendants appealed their convictions for conspiracy to traffic counterfeit goods, and conspiracy to commit copyright infringement and to introduce misbranded food into interstate commerce. Defendants' convictions stemmed from their scheme to sell counterfeit 5-hour Energy liquid dietary supplements.
The Ninth Circuit held that it need not resolve the issue of whether prior civil deposition testimony of a witness, who has subsequently invoked his Fifth Amendment right against self-incrimination, may be introduced against defendants in a criminal trial without violating their Confrontation Clause right to confront the witnesses against them. Rather, the panel held that even if the district court erred by concluding that the witnesses were unavailable, the error was harmless because the outcome of the trial would not have changed had the depositions been excluded.
Court Description: Criminal Law. The panel affirmed the district court’s judgment in a case in which the panel was asked to decide whether prior civil deposition testimony of a witness, who has subsequently invoked his Fifth Amendment right against self- incrimination, may be introduced against defendants in a criminal trial without violating their Confrontation Clause right to confront the witnesses against them. At the defendants’ trial, the district court admitted the civil deposition testimony of two individuals after they invoked their Fifth Amendment privilege not to testify. The district court concluded that their invocation of their Fifth Amendment privilege rendered them unavailable for purposes of the Confrontation Clause. The defendants argued that the government’s inherent discretion to grant a witness immunity and thereby prevent him from invoking the Fifth Amendment privilege renders the witness effectively available to the government for testimony at trial. The panel did not need to resolve that issue because even if the district court erred by UNITED STATES V. SHAYOTA 3 concluding that the witnesses were unavailable, the error was harmless because the outcome of the trial would not have changed had the depositions been excluded. The panel addressed other arguments in a memorandum disposition. Specially concurring, Judge O’Scannlain wrote separately to call attention to this court’s precedent regarding the “unavailability” requirement of the Confrontation Clause. Observing that the right of confrontation is “most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding,” Crawford v. Washington, 541 U.S. 36, 54 (2004), Judge O’Scannlain suggested that this court revisit its prior decisions to perform the historical analysis that Crawford demands.
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