United States of America v. Robert Underwood, Jr.

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.
ROBERT UNDERWOOD, JR.,
Defendant - Appellee.
No. 11-30312
D.C. No. 3:10-cr-05293-BHS-1
MEMORANDUM*
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.
FILED
FEB 12 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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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

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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.

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