Argued and Submitted, Pasadena, California February 3, 2014.
Appeal from the United States District Court for the Central District of California. D.C. No. 2:05-cr-00920-RSWL-2, D.C. No. 2:05-cr-00920-RSWL-1. Ronald S.W. Lew, Senior District Judge, Presiding.
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, 124 S.Ct. 1354, 158 L.Ed.2d 177 (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.
Benjamin L. Coleman, Coleman & Balogh LLP, San Diego, California; Ethan A. Balogh (argued), Coleman & Balogh LLP, San Francisco, California, for Defendant-Appellant Antoine Lamont Johnson.
John C. Lemon (argued), San Diego, California, for Defendant-Appellant Michael Dennis Williams.
André Birotte Jr., United States Attorney, Robert E. Dugdale, Karen I. Meyer, and Elizabeth R. Yang (argued), Assistant United States Attorneys, Los Angeles, California, for Plaintiff-Appellee United States of America.
Before: Mary M. Schroeder and Richard R. Clifton, Circuit Judges, and John R. Tunheim, District Judge.[*] Opinion by Judge Schroeder.
SCHROEDER, Circuit Judge:
The world of evidence was shaken about ten years ago when the Supreme Court ruled that out-of-court " testimonial" statements of unavailable witnesses can be admitted only if they have been subject to cross-examination, regardless of the indicia of reliability. Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). This criminal appeal presents an issue of first impression for our circuit, post- Crawford.
The issue concerns the so-called " forfeiture exception" to the Confrontation Clause of the Sixth Amendment. That exception applies when the defendant is responsible for the witness being unavailable. We 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 and its progeny, by clear and convincing evidence.
The appellants are Antoine Johnson and Michael Williams, who appeal their convictions for armed robbery and murder. They each raise a number of issues from their joint trial for the robbery of an armored truck and murder of a guard, for which each received a life sentence. We affirm.
With respect to the forfeiture exception, we join 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. See Perkins v. Herbert, 596 F.3d 161, 167 (2d Cir. 2010); see also United States v. Dinkins, 691 F.3d 358, 383 (4th Cir. 2012). That is the clear implication of the Supreme Court's post- Crawford opinion in Davis v. Washington, 547 U.S. 813, 833, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), acknowledging that the circuits are following the standard set forth in the evidentiary rule. It is also the assumption underlying Giles v. California, 554 U.S. 353, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008), as expressly noted in Justice Souter's concurrence, 554 U.S. at 379.
On March 1, 2004, four assailants ambushed an armored truck as it was making a cash delivery to a Bank of America in South Central Los Angeles. One of the assailants was wearing a Rastafarian wig and at least one was wearing gloves. During the robbery, one of the armored truck security guards was shot and killed. On June 19, 2007, appellants Antoine Johnson and Michael Williams, both of whom had affiliations with a group known as the Hoover Street Gang, were indicted ...