                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 9 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

SAMUEL MESGHENA NEGASH,                         No.    17-35034

                Petitioner–Appellant,           D.C. No.
                                                2:14-CV-00106-BR-1
 v.

STEVE FRANKE,                                   MEMORANDUM*

                Respondent–Appellee.

                   Appeal from the United States District Court
                            for the District of Oregon
                    Anna J. Brown, District Judge, Presiding

                      Argued and Submitted on June 6, 2018
                               Portland, Oregon

Before: M. SMITH and MURGUIA, Circuit Judges, and KORMAN,** District
Judge.


      Samuel Negash was convicted of twenty-four sexual offenses against his

cousin, including first-degree rape, committed when she was fourteen to seventeen

years old. After he exhausted his state court post-conviction remedies, Negash


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
petitioned for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his

conviction on the ground that the Confrontation Clause was violated when the trial

judge denied his motion to strike translated testimony of the victim’s mother, and

when the trial judge admitted prior testimony from a witness who was unavailable

to testify at trial. This appeal followed.

      We review de novo the denial of a habeas petition. Jones v. Taylor, 763 F.3d

1242, 1245 (9th Cir. 2014). A petitioner must demonstrate that the state-court

proceeding “resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court

of the United States.” 28 U.S.C. § 2254(d)(1). Relief may not be granted without a

showing of prejudice that “had substantial and injurious effect or influence in

determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)

(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).

      1. At trial, Negash’s counsel moved to strike the victim’s mother’s translated

testimony, arguing that alleged inaccuracies in the interpretation prevented Negash

from confronting the witness. The judge denied the motion, holding that any

mistranslations resulted in “very little” prejudice to Negash. Negash, who apparently

understood the untranslated testimony, identified only one potential ambiguity in the

translation—the difference between the words “discipline” and “control” in

testimony about Negash’s authority over the victim. Negash acknowledged in his

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direct appeal that the “translated ‘testimony’ was largely benign” and “is not at

issue.” Instead, Negash suggested that, even though the witness was testifying for

the prosecution, the translation may have missed testimony that “could have

provided helpful information for the defense. Witnesses do, on occasion, surprise.”

This speculation is hardly sufficient to demonstrate the “actual prejudice” necessary

to defeat the application of the harmless error rule, id. at 637, even assuming a

violation of the Confrontation Clause.

      2. Negash also challenges the admission of the transcript of restraining-order

hearing testimony of an unavailable witness, Thomas Fetur, who was a friend of

victim’s family. At that hearing, Negash questioned Fetur without limitation about

Fetur’s relationship with the victim and her family, and about conversations Fetur

had with the victim about her relationship with Negash.

      Negash argues that, because the consequences of the restraining-order hearing

and the trial were different, he did not have the same motivation to cross-examine

Fetur at the prior hearing, and thus that admission of the testimony violated the

Confrontation Clause. The Supreme Court has held that the prior testimony of an

unavailable witness is admissible “if the defendant had an adequate opportunity to

cross-examine.” Crawford v. Washington, 541 U.S. 36, 57 (2004). It has never held

that an adequate opportunity to cross-examine requires a “similar motive to develop

the testimony by direct, cross, or redirect examination,” as some evidentiary rules

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require. Or. Rev. Stat. § 40.465(3)(a) (2018); see also Fed. R. Evid. 804(b)(1)(A–B)

(same).

      Moreover, it is an open question whether the Confrontation Clause applies if

the testimony from the earlier hearing was elicited by the defendant himself.

Although Ohio v. Roberts, 448 U.S. 56, 70 (1980), abrogated by Crawford, 541 U.S.

at 59, involved such a case, the Supreme Court did not expressly address this issue.

Instead, Roberts assumed that the Confrontation Clause applied and left open the

question whether “the mere opportunity to cross-examine rendered the prior

testimony admissible” and “whether de minimis questioning is sufficient.” Id. at 70.

Indeed, as a leading treatise on the law of evidence observes:

      The constitutional ramifications when testimony originally offered by
      the accused is now admitted against him or her have not yet been
      resolved by the Supreme Court. The accused in such a case will have
      had at least some opportunity to develop the testimony by direct and re-
      direct examination, and this prior testimony was given in the accused’s
      presence. The examination should be deemed the equivalent of cross-
      examination for the purposes of confrontation.

5 Mark S. Brodin et al., Weinstein’s Federal Evidence § 804.04[6] (2d ed.

1997) (2018 printing). The State argued this on direct appeal.

      Even if the Confrontation Clause applies to such testimony, Negash had a

“similar motive” to question Fetur. The record indicates that Negash understood he

would likely be a defendant in a criminal proceeding arising out of the conduct

testified to during the hearing, and that subsequent criminal proceedings could likely

                                          4
involve a charge that he raped the victim. Indeed, Negash affirmatively contested

the restraining order, and when he was called by the victim’s attorney to testify, he

invoked his right not to. Under these circumstances, Negash’s argument that he

lacked sufficient motivation to examine Fetur is without merit.

      Nor is that conclusion undermined by Negash’s related argument that a

restraining-order hearing involves “a less searching exploration into the merits of a

case than a trial.” California v. Green, 399 U.S. 149, 166 (1970). Indeed, in Green

the Supreme Court held that prior testimony of an unavailable witness at a

preliminary hearing was admissible at trial, where the only function of the hearing

was to determine whether probable cause exists to hold the accused for trial, id. at

165, and in which “‘cross-examination which would surely impeach a witness at trial

would not preclude a finding of probable cause at the preliminary stage,’” id. at 195

n.7 (Brennan, J., dissenting) (quoting People v. Green, 70 Cal. 2d 654, 663 (1969)).

Cf. United States v. McFall, 558 F.3d 951, 963 (9th Cir. 2009) (holding, in applying

Fed. R. Evid. § 804(b)(1), that the motive to cross-examine at a prior hearing need

not be “as intense as it would have been at trial”).

      AFFIRMED.




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