                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 12 2013

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-30312

              Plaintiff - Appellant,             D.C. No. 3:10-cr-05293-BHS-1

       v.
                                                 MEMORANDUM *
ROBERT UNDERWOOD, JR.,

              Defendant - Appellee.

                    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.




        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      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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