U.S. v. Yida

• Citation: 498 F.3d 945
• Decision Date: 16 August 2007
• Docket Number: No. 06-10460.,06-10460.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Yacov YIDA, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

498 F.3d 945

UNITED STATES of America, Plaintiff-Appellant, v. Yacov YIDA, Defendant-Appellee.

No. 06-10460.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 15, 2007.

Filed August 16, 2007.

Josh A. Cohen (argued and on the brief), Assistant Federal Public Defender, and Barry J. Portman (on the brief), Federal Public Defender, San Francisco, CA, for defendant-appellee Yacov Yida.

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, CA, (on the brief) for plaintiff-appellant United States of America.

Appeal from the United States District Court for the Northern District of California; Charles R. Breyer, District Judge, Presiding. D.C. No. CR-00-00274-CRB.

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.

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 Reziniano'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 citizen 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.

Special Agent Catherine Miller of Immigration and Customs Enforcement obtained a material witness warrant for Reziniano on December 8, 2005, as he was scheduled to testify 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 incarceration, 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, "Reziniano 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.

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 receiving assurances from both Reziniano and Pollock that Reziniano 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 testify 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 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 government reiterated that it would pay all expenses related to Reziniano's trip and suggested that he could obtain medical attention while in San Francisco. Reziniano, however, continued 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 Reziniano 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 reasonable 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 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 witness under both 804(a)(4)⁶ and 804(a)(5).⁷ "[I]f the declarant is unavailable as a witness," a court may admit "[t]estimony given as a witness at another hearing of the same or a different 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 examination." Fed.R.Evid. 804(b)(1). All parties agree that Reziniano'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 Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ("[T]he Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross examination."). The constitutional requirement that a witness be "unavailable" 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, 88 S.Ct....