                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           SEP 11 2019
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No.   18-10339

              Plaintiff-Appellee,                D.C. No.
                                                 1:16-cr-00322-LEK-1
 v.

JIA HUI CAI,                                     MEMORANDUM*

              Defendant-Appellant.


                   Appeal from the United States District Court
                              for the District of Hawaii
                   Leslie E. Kobayashi, District Judge, Presiding

                      Argued and Submitted August 16, 2019
                              Pasadena, California

Before: CALLAHAN and CHRISTEN, Circuit Judges, and CHEN,** District
Judge.

      Defendant-Appellant Jia Hui Cai appeals from the district court’s judgment

revoking his probation and sentencing him to a term of ten months in custody and



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Edward M. Chen, United States District Judge for the
Northern District of California, sitting by designation.
thirty-six months of supervised release. We have jurisdiction pursuant to 28

U.S.C. § 1291, and we reverse and remand.1

      Cai contends that the admission of hearsay evidence during his probation

revocation hearing violated his due process rights to confront adverse witnesses.

We agree. See United States v. Hall, 419 F.3d 980, 988 (9th Cir. 2005).

      Pursuant to Morrissey v. Brewer, 408 U.S. 471 (1972), every defendant “is

guaranteed the right to confront and cross-examine adverse witnesses at a

revocation hearing, unless the government shows good cause for not producing the

witnesses.” United States v. Comito, 177 F.3d 1166, 1170 (9th Cir. 1999); see also

Hall, 419 F.3d at 986. This right is codified in Federal Rule of Criminal Procedure

32.1, which provides the “opportunity to question any adverse witness, unless the

judge determines that the interest of justice does not require the witness to appear.”

FED. R. CRIM. P. 32.1(b)(1)(B)(iii), 32.1(b)(2)(C); see also FED. R. CRIM. P. 32.1

advisory committee’s note to 2002 amendment (“The court is to balance the

person’s interest in the constitutionally guaranteed right to confrontation against

the government’s good cause for denying it.”).




      1
       Because the parties are familiar with the facts and the procedural history,
we do not recount them here.
                                           2
      “The weight to be given the right to confrontation in a particular case

depends on two primary factors: the importance of the hearsay evidence to the

court’s ultimate finding and the nature of the facts to be proven by the hearsay

evidence.” Comito, 177 F.3d at 1171 (footnote omitted). “In determining the

government’s good cause in not producing a witness, we look to ‘both the

difficulty and expense of procuring witnesses and the traditional indicia of

reliability borne by the evidence.’” Hall, 419 F.3d at 988 (quoting United States v.

Martin, 984 F.2d 308, 312 (9th Cir. 1993)).

      Because the district court relied exclusively on the challenged hearsay

evidence when it determined that Cai had violated his probation, it is undisputed

that Cai’s interest in confrontation was “very strong.”2 The government is correct

that Cai’s interest in confrontation was diminished by the reliability of the hearsay

evidence, but our case law makes clear that reliability alone does not render

hearsay evidence admissible in revocation proceedings. Id. (noting that an

“otherwise strong interest in confrontation is somewhat lessened by the reliability

of the hearsay evidence, but it is not defeated”). The government still needed to




      2
       Specifically, the government relied on the recording of a 911 call by
Monique Lai (Cai’s wife), and victim statements by Lai and Li Ying Lo (Lai’s
mother) that were contained in police reports.
                                           3
show good cause for not producing the witnesses in order to outweigh Cai’s

confrontation right. Id.

      The record does not show that the government made any effort to procure

either witness, both of whom resided locally. The 911 call allows for an inference

that at least Lai was frightened on the night of the alleged incident. But there is no

record evidence that Lai or Lo were frightened at the time of the revocation

proceeding and unwilling to testify. Having failed to show that it made some effort

to procure the witnesses’ testimony, the government failed to meet its burden.

      Because the government failed to show good cause, the district court erred

by admitting this hearsay evidence. On this record, we cannot say that the error

was harmless.

      We therefore REVERSE the judgment of the district court and REMAND

for resentencing or for a new revocation hearing consistent with this disposition.




                                           4
                                                                         FILED
                                                                         SEP 11 2019
United States v. Cai, No. 18-10339                                    MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS

CALLAHAN, Circuit Judge, dissenting:

      I disagree with the majority’s conclusion that the district court erred in

admitting the 911 call and the victims’ statements to police. A decision as to

whether to admit hearsay evidence in a revocation proceeding depends on an

assessment of “the significance of the releasee’s interest in the right to

confrontation,” which “is not static but is of greater or lesser significance

depending on the circumstances.” United States v. Comito, 177 F.3d 1166, 1171

(9th Cir. 1999). The Comito due process balancing analysis generally requires the

court to weigh the probationer’s right to confrontation against the government’s

“good cause for not producing witnesses.” Id. The district court correctly did so

here. Specifically, the district court found that, even though “the hearsay evidence

[was] critical to the Court’s ultimate finding” and that Cai had a “very strong

interest” in challenging the evidence and confronting the witnesses, his interest

was outweighed by the “highly reliable” nature of the hearsay evidence and the

government’s showing of good cause for not producing the witnesses based on the

fact “that both witnesses fear for their safety.”

      The majority faults the government for not making any additional effort to

procure the witnesses and concludes that there is no record evidence that the

victims were frightened and unwilling to testify at the time of the revocation
proceeding. But, as the majority acknowledges, the record clearly shows that the

victims sincerely and reasonably feared Cai on the night of the alleged incident.

Both the 911 call and the victims’ statements to police, taken immediately after Cai

allegedly tried to attack them with a knife, demonstrate their apparent fear of him

at the time. It was reasonable for the district court to infer from this evidence—

especially in the context of the domestic relationships involved, and coupled with

the eventual recantation of both victims after the emergency subsided—that the

victims remained fearful of Cai and were unwilling to testify against him at the

time of the revocation proceeding. Indeed, during the proceedings, the government

counsel informed the court that the Cai’s wife’s attorney had expressly stated that

she would invoke the marital privilege and refuse to testify if the government were

to subpoena her to testify against Cai. On this record, the district court did not err

in concluding that the government had shown good cause for not producing the

witnesses, and that this good cause outweighed Cai’s confrontation interest. Thus,

I would affirm.
