                   FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,              No. 17-10270
           Plaintiff-Appellee,
                                         D.C. No.
              v.                   5:15-cr-00264-LHK-1

JOSEPH SHAYOTA,
         Defendant-Appellant.



UNITED STATES OF AMERICA,              No. 17-10271
           Plaintiff-Appellee,
                                         D.C. No.
              v.                   5:15-cr-00264-LHK-2

ADRIANA SHAYOTA,
        Defendant-Appellant.               OPINION


      Appeal from the United States District Court
        for the Northern District of California
        Lucy H. Koh, District Judge, Presiding

       Argued and Submitted February 14, 2019
              San Francisco, California

                   Filed August 19, 2019
2                  UNITED STATES V. SHAYOTA

    Before: Mary M. Schroeder, Diarmuid F. O’Scannlain,
          and Johnnie B. Rawlinson, Circuit Judges.

                Opinion by Judge O’Scannlain;
               Concurrence by Judge O’Scannlain


                            SUMMARY*


                           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

    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
               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.


                        COUNSEL

Theodore Sampsell-Jones (argued), Sampsell-Jones Law,
Minneapolis, Minnesota; Dennis P. Riordan and Donald M.
Horgan, Riordan & Horgan, San Francisco, California; for
Defendant-Appellant Joseph Shayota.

John D. Cline (argued), Law Office of John D. Cline, San
Francisco, California, for Defendant-Appellant Adriana
Shayota.

Jonas Lerman (argued), Assistant United States Attorney; J.
Douglas Wilson, Chief, Appellate Division; United States
Attorney’s Office, San Francisco, California; for Plaintiff-
Appellee.
4               UNITED STATES V. SHAYOTA

                         OPINION

O’SCANNLAIN, Circuit Judge:

    We are 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.

                               I

    At the time of the events giving rise to this case,
defendants Joseph Shayota and his wife Adriana Shayota ran
Baja Exporting, LLC (“Baja Exporting”)—a California
company that imported, exported, and distributed snacks and
drinks to gas stations, convenience stores, and bodegas, both
in the United States and abroad. In 2009, Baja Exporting
contracted with Living Essentials, LLC and its related entities
(collectively “Living Essentials”) to sell the liquid dietary
supplement 5-Hour Energy in Mexico.

    Unfortunately, the product did not sell well. The parties
terminated their sales agreement in 2010, and Baja Exporting
was left with excess bottles of Spanish-labeled 5-Hour
Energy. Rather than dispose of the bottles, Baja Exporting
tried to sell them in the United States, despite not having
approval from Living Essentials to do so. When the product
again failed to sell, the Shayotas and their associates
relabeled the bottles in English and sold them without
authorization from Living Essentials.
                UNITED STATES V. SHAYOTA                     5

    By December 2011, Baja Exporting had sold the last of its
5-Hour Energy supply. Given the potential market in the
United States, the Shayotas and their associates then
conspired to create a counterfeit version of the drink, pass it
off as genuine 5-Hour Energy, and distribute it across the
country.

                              A

    The scheme lasted from early 2012 to November 2012
and involved several key players. Joseph Shayota oversaw
and financed the operation. Adriana Shayota was in charge
of the accounting; she collected invoices for the counterfeit
product and made wire transfers to cover costs. Walid Jamil
(Joseph’s brother-in-law) and Justin Shayota (Joseph and
Adriana’s nephew) coordinated the repackaging and
relabeling of the counterfeit drink at Baja Exporting’s San
Diego warehouse. They worked closely with Leslie Roman,
who supplied blank bottles and manufactured counterfeit 5-
Hour Energy labels. Jamil hired others to create the
counterfeit drink and to manufacture boxes for the finished
product. Finally, Justin sent the finished product either to
Baja Exporting or to Dan Dee Company—a cash-and-carry
warehouse owned by Kevin Attiq—for distribution across the
country.

     Living Essentials became aware of the scheme in 2012,
after it noticed a mysterious drop-off in its California sales.
Living Essentials hired private investigators, who ultimately
raided warehouses controlled by Baja Exporting and Jamil
and discovered boxes of counterfeit 5-Hour Energy.
Consequently, Living Essentials sued the Shayotas, Jamil,
and others, alleging numerous violations of laws pertaining
to trademark infringement and false advertising.
6               UNITED STATES V. SHAYOTA

    During discovery, Living Essentials deposed numerous
participants in the scheme, including Jamil and Roman.
Because the Shayotas were parties to the suit, their counsel
attended the depositions and questioned the witnesses. The
civil suit ultimately ended in a settlement in which Baja
Exporting agreed to pay $6 million to Living Essentials.

                               B

    Subsequent to the civil proceedings, the government
launched a criminal investigation into the scheme. A grand
jury returned an indictment against the Shayotas, Jamil, and
Roman, among others. The government ultimately filed a
two-count Superseding Information charging each defendant
with (1) conspiracy to traffic in counterfeit goods, in violation
of 18 U.S.C. § 2320(a), and (2) conspiracy to commit
copyright infringement and to introduce misbranded food
into interstate commerce, in violation of 17 U.S.C. § 506,
18 U.S.C. § 2319, and 21 U.S.C. §§ 331 and 333. Jamil and
Roman pleaded guilty; the Shayotas proceeded to trial.

    As trial approached, the government notified defense
counsel of its intent to offer into evidence statements made by
Jamil and Roman during their civil depositions. The
Shayotas moved to exclude the testimony on the ground that
its admission would violate the Sixth Amendment’s
Confrontation Clause if Jamil and Roman refused to testify,
but the district court denied the motion. The depositions were
introduced at trial after Jamil and Roman invoked their Fifth
Amendment privilege not to testify, and the jury ultimately
found the Shayotas guilty of the charged offenses.

    The Shayotas timely appealed their convictions.
                 UNITED STATES V. SHAYOTA                          7

                                 II

  The Shayotas argue that admission of Jamil’s and
Roman’s deposition testimony violated the Sixth
Amendment’s Confrontation Clause.1

    The Sixth Amendment to the United States Constitution
provides in pertinent part: “[I]n all criminal prosecutions the
accused shall enjoy the right . . . to be confronted with the
witnesses against him.” U.S. Const. amend. VI. Generally,
this means that the government must produce at trial any
witnesses who have offered testimonial evidence against the
accused. But where, as here, the prosecution chooses not to
produce such witnesses and offers their hearsay statements
instead, a defendant’s right of confrontation is satisfied if
(1) the declarant is unavailable, and (2) the defendant had a
prior opportunity to confront him through cross-examination.
Crawford v. Washington, 541 U.S. 36, 68 (2004). The district
court concluded that Jamil and Roman were unavailable
because they had validly invoked their Fifth Amendment
privilege against self-incrimination. The court also ruled that
the Shayotas had a prior opportunity to cross-examine Jamil
and Roman in the civil suit, given that the Shayotas sent their
lawyers to attend Jamil’s and Roman’s depositions in that
case.

    The Shayotas dispute the district court’s legal conclusion
that Jamil and Roman were unavailable. They argue that
Jamil and Roman were in fact available because the


    1
       We address the Shayotas’ other arguments on appeal in a
memorandum disposition issued concurrently with this opinion. See
United States v. Shayota, Nos. 17-10270 & 17-10271, — F. App’x — (9th
Cir. 2019).
8               UNITED STATES V. SHAYOTA

government could have granted them immunity and
compelled them to testify.

    We have held on numerous occasions that a witness’s
assertion of Fifth Amendment privilege renders him
“unavailable” for purposes of the Confrontation Clause. See,
e.g., United States v. Wilmore, 381 F.3d 868, 872 (9th Cir.
2004); see also California v. Green, 399 U.S. 149, 167–68
(1970) (explaining in dicta that once a witness has been
produced at trial and “claimed his privilege against
compulsory self-incrimination, . . . nothing in the
Confrontation Clause prohibit[s] the State from . . . relying on
his prior testimony to prove its case”). But we have yet to
confront the Shayotas’ precise argument here—that the
government’s inherent discretion to grant a witness immunity
and thereby prevent him from invoking the privilege against
self-incrimination renders the witness effectively available to
the government for testimony at trial. Nevertheless, we need
not resolve the issue here: even if the district court erred by
concluding that Jamil and Roman were unavailable, the error
was harmless.

    “[C]onfrontation [C]lause violations are subject to
harmless error analysis.” United States v. Bernard S.,
795 F.2d 749, 756 (9th Cir. 1986). “Whether a violation of
the [C]onfrontation [C]lause is harmless depends on a variety
of factors including: (1) the importance of the evidence to the
prosecution’s case; (2) whether the evidence was cumulative;
(3) the presence of corroborating evidence; (4) the overall
strength of the prosecution’s case.” Id. To be sure, the
testimony of Jamil and Roman was an important component
of the trial. But the testimony was also corroborated by live
witness testimony, including that of Kevin Attiq and Justin
Shayota who described the Shayotas’ involvement in the
                   UNITED STATES V. SHAYOTA                             9

scheme, and a bounty of other circumstantial evidence
relating to the Shayotas’ management of the counterfeit
product and exchange of invoices with other members of the
conspiracy. Considering the other evidence presented at trial,
the prosecution’s case against the Shayotas was strong. We
conclude that the outcome of the trial would not have
changed had the depositions been excluded.2

                                   III

    The judgment of the district court is AFFIRMED.



O’SCANNLAIN, Circuit Judge, specially concurring:

    I write separately to call attention to our court’s precedent
regarding the “unavailability” requirement of the Sixth
Amendment’s Confrontation Clause. We have held that a
witness is unavailable for purposes of the Confrontation
Clause if he invokes his Fifth Amendment privilege and
refuses to testify. See, e.g., United States v. Wilmore,
381 F.3d 868, 872 (9th Cir. 2004). Presumably we have done
so because such a witness is considered unavailable under the
former testimony exception to the federal hearsay rule. See
id. (citing Fed. R. Evid. 804(b)(1)). But the right of
confrontation is “most naturally read as a reference to the
right of confrontation at common law, admitting only those


    2
       We also reject on harmless error grounds the Shayotas’ argument
that former testimony cannot be admitted unless the parties and issues in
the prior civil proceeding were identical to those at the subsequent
criminal trial and the defendants were physically present during the prior
testimony.
10             UNITED STATES V. SHAYOTA

exceptions established at the time of the founding.”
Crawford v. Washington, 541 U.S. 36, 54 (2004). Thus, a
determination of whether the former testimony of a witness
who has since invoked his Fifth Amendment privilege is
admissible necessarily requires an analysis of whether such
testimony would have been admitted at the time of the
founding. Our court has yet to do that work, but history
suggests that the scope of unavailability may be narrower
than our court has recognized. I respectfully suggest that we
should revisit our prior decisions to perform the historical
analysis that Crawford demands.

                              I

    To understand how the Confrontation Clause applies, we
must first understand its history. I will not duplicate the
efforts of courts and commentators who have thoroughly
recounted the development of the right of confrontation from
sixteenth-century England to the founding. See, e.g.,
Crawford, 541 U.S. at 42–49; Daniel H. Pollitt, The Right of
Confrontation: Its History and Modern Dress, 8 J. Pub. L.
386 (1959). It is enough to say that the common law right
emerged in England in the mid-1600s as a reaction to the
widespread use of ex parte affidavits and depositions instead
of face-to-face examination in criminal trials against the
accused. See Crawford, 541 U.S. at 44–45. To prevent such
abuses from taking root in the United States, the First
Congress in 1789 included “the Confrontation Clause in the
proposal that became the Sixth Amendment.” Id. at 49; see
also Mattox v. United States, 156 U.S. 237, 242 (1895)
(recognizing that the primary object of the Clause was to
“prevent depositions or ex parte affidavits, such as were
sometimes admitted in civil cases, [from] being used against
the prisoner in lieu of a personal examination and cross-
                UNITED STATES V. SHAYOTA                    11

examination of the witness”). Thus, “[t]he right of
confrontation did not originate with the provision in the Sixth
Amendment, but was a common-law right having recognized
exceptions.” Salinger v. United States, 272 U.S. 542, 548
(1926); accord 3 Joseph Story, Commentaries on the
Constitution of the United States 662 (1st ed. 1833).

    In England, such exceptions relied on a “relatively strict
rule[] of unavailability.” Crawford, 541 U.S. at 44; see also
Tim Donaldson, Gradually Exploded: Confrontation vs. The
Former Testimony Rule, 46 St. Mary’s L.J. 137, 156 (2015)
(collecting cases). Lord Morley’s Case, 6 How. St. Tr. 769
(H.L. 1666), for example, explained that a coroner’s out-of-
court examinations of witnesses were admissible if “the
witnesses . . . were dead or unable to travel,” or if they were
“absent . . . by the means or procurement of the prisoner.” Id.
at 770–71. Such a rule persisted in England well into the
1700s. See 2 William Hawkins, A Treatise of the Pleas of the
Crown 429 (1721) (explaining that depositions “may be given
in evidence . . . if it be made out by Oath to the Satisfaction
of the Court, that such Informer is dead, or unable to travel,
or kept away by the Means or Procurement of the Prisoner”).
Other sources of English law suggest that depositions could
also be admitted if the witness was beyond the jurisdictional
reach of the court. See Henry Bathurst, The Theory of
Evidence 34 (1761) (“[I]f the Witnesses examined on a
Coroner’s Inquest are . . . beyond Sea, their Depositions may
be read.”).

    The American tradition similarly permitted the use of
deposition testimony, at least when the witness was dead and
perhaps also when he was missing or outside of the court’s
jurisdiction. See Cline v. State, 36 Tex. Crim. 320, 360–61
(Tex. Crim. App. 1896) (Henderson, J., dissenting)
12                 UNITED STATES V. SHAYOTA

(collecting cases); see also Johnston v. State, 10 Tenn. 58,
59–60 (Err. & App. 1821) (holding that “depositions . . . may
be read on trial against a prisoner” when the witness is proven
dead); State v. Atkins, 1 Tenn. 229, 229 (Super. L. & Eq.
1807) (per curiam) (same). But see United States v. Angell,
11 F. 34, 43 (C.C.D. N.H. 1881) (“I have found no case
where the testimony of a witness, absent but living, given at
a former trial, has been allowed to be proved at a subsequent
trial.”); People v. Newman, 5 Hill 295, 296 (N.Y. Sup. Ct.
1843) (“[N]othing short of the witness’[s] death can be
received to let in his testimony given on a former trial.”).

     Notably absent from founding-era case law,1 however, are
decisions permitting the adverse use of former testimony of
witnesses who claimed a testimonial privilege—even though
such privileges existed at common law, see, e.g., Quinn v.
United States, 349 U.S. 155, 161 (1955) (explaining that the
privilege against self-incrimination was “firmly established
. . . in the common law of England” by the mid-1600s and
“[t]ransplanted to this country as part of our legal heritage”).
The absence of such cases suggests that there may not have
been a common-law exception to the right of confrontation
for former testimony of witnesses who claimed a privilege
against self-incrimination.

                                    II



     1
     There are cases from the early 1900s which admit former testimony
by a witness who claims a privilege. But in addition to being farther in
time from the founding, these cases do not discuss the right of
confrontation at all. See, e.g., State v. Stewart, 85 Kan. 404 (1911). Such
cases therefore have little—if any—bearing on the question of
unavailability under the Confrontation Clause at the time of the founding.
                UNITED STATES V. SHAYOTA                    13

    The Supreme Court has yet to consider the historical
limitations of the unavailability requirement. Rather, in
decisions that predate Crawford, the Court has provided
conflicting guidance on the scope of the unavailability
requirement. On the one hand, in Douglas v. Alabama,
380 U.S. 415 (1965), the Court held that the defendant’s right
of confrontation was violated by the admission of a
confession that implicated the defendant and that was given
by a witness who invoked the Fifth Amendment. Id. at 420.

     By contrast, in California v. Green, the Court observed
that the Confrontation Clause would not be violated if a
witness “claimed his privilege against compulsory self-
incrimination.” 399 U.S. 149, 167 (1970); accord Lee v.
Illinois, 476 U.S. 530, 549–50 (1986) (Blackmun, J.,
dissenting) (concluding that a witness was unavailable
because he would have invoked his Fifth Amendment
privilege). And, most recently, in Lilly v. Virginia, 527 U.S.
116 (1999), a plurality of the Court “assumed” without
deciding that a witness is “unavailable . . . for Confrontation
Clause purposes” when he invokes his Fifth Amendment right
against self-incrimination. Id. at 124 n.1. The need for such
an assumption suggests that the question of unavailability is
far from settled and requires further examination by lower
courts.

                              III

    Rather than consider the common law, our court has
relied on the former testimony exception to the hearsay
rule—Federal Rule of Evidence 804—to define the contours
of unavailability under the Confrontation Clause. See
Wilmore, 381 F.3d at 872 (citing Fed. R. Evid. 804(a) and
14                 UNITED STATES V. SHAYOTA

relying only on circuit precedent that predates Crawford).2 In
my view, such reasoning is problematic.

    Crawford all but rejected the view that the Confrontation
Clause is satisfied so long as the evidence fits neatly within
a federal hearsay exception. As the Court explained, the
Confrontation Clause’s application does not “depend[] upon
the law of Evidence.” 541 U.S. at 50; see also id. at 51
(acknowledging that “ex parte examinations might sometimes
be admissible under modern hearsay rules, but the Framers
certainly would not have condoned them” (emphasis added)).
A contrary conclusion would improperly conflate the
requirements of the Confrontation Clause and the hearsay rule
when the two often serve distinct functions in the presentation
of evidence and the preservation of rights. See id. at 51
(“Leaving the regulation of out-of-court statements to the law
of evidence would render the Confrontation Clause powerless
to prevent even the most flagrant inquisitorial practices.”).
We must, therefore, do more than look only to the
requirements of Rule 804 when deciding whether the
admission of certain testimony violates a defendant’s right of
confrontation.

   Relying on dicta in United States v. Yida, 498 F.3d 945,
950 (9th Cir. 2007), however, the government argues that
“Rule 804(b)(1) implements the command of the . . .

Confrontation Clause,” and that satisfying Rule 804 therefore
satisfies the right of confrontation. But Yida acknowledges
nothing more than the obvious: Rule 804 incorporates the


     2
      Federal Rule of Evidence 804 permits the introduction of former
testimony if the witness is “unavailable” and defines unavailability to
include a valid assertion of privilege. See Fed. R. Evid. 804(a)(1), (b)(1).
                UNITED STATES V. SHAYOTA                   15

Constitution’s general requirements of unavailability and a
prior opportunity for cross-examination. Yida expressed no
view on whether Rule 804(a)’s enumerated classes of
unavailable witnesses echo those existing at common law.

     Indeed, there are sound reasons to conclude that
unavailability for purposes of the Confrontation Clause ought
not to include the assertion of a testimonial privilege.
Considering the common law sources described above in part
I, the scope of unavailability at common law appeared to be
defined by circumstances outside the prosecution’s
control—the death of the witness, for example, or the
prosecution’s inability to procure his attendance due to
jurisdictional limitations. Yet the government is not so
powerless to prevent a claim of privilege, as it can grant the
witness immunity or enter into a plea agreement with the
witness to provide for his testimony. In either case, the
witness would be unable to invoke the Fifth Amendment and
could then be made to testify. See Kastigar v. United States,
406 U.S. 441, 458 (1972) (“[U]se and derivative-use
immunity is constitutionally sufficient to compel testimony
over a claim of the privilege.”); 5 Wayne R. LaFave,
Criminal Procedure § 21.2(e), at 60 (2d ed. Supp. 2007) (“[I]t
is generally accepted that ‘when a defendant breaches his plea
agreement, the Government has the option to either seek
specific performance of the agreement or treat it as
unenforceable’ (at least absent language in the plea agreement
specifying fewer or other remedies).”)

    To be sure, such choices “entail significant costs.” Lee,
476 U.S. at 550 (Blackmun, J., dissenting). “A plea
agreement necessarily compromises the community’s
legitimate correctional interests, and a grant of immunity
places a heavy evidentiary burden on any future prosecution
16              UNITED STATES V. SHAYOTA

of the witness.” Id. But nothing entitles a prosecutor to
introduce any evidence he wishes; the Constitution, by
contrast, entitles the defendant to confront the witnesses
against him unless a well-recognized exception to the right of
confrontation applies. That there may be significant costs
should not lead us to ignore Sixth Amendment protections.
Cf. United States v. Stevens, 559 U.S. 460, 470 (2010) (“The
First Amendment’s guarantee of free speech does not extend
only to categories of speech that survive an ad hoc balancing
of relative social costs and benefits. The First Amendment
itself reflects a judgment by the American people that the
benefits of its restrictions on the Government outweigh the
costs.”).

                             IV

    The district court’s decision to admit the testimony of
Jamil and Roman finds support in our case law. But “the
Sixth Amendment demands what the common law required.”
Crawford, 541 U.S. at 68. In future cases, I hope that our
court, inspired by Crawford, might reconsider the scope of
the unavailability requirement in light of the common law.
