In United States v. Blackshire, --- F.4th ---, No. 21-10230 (9th Cir. 2024), the Court affirmed Lawrence Blackshire’s convictions and sentence for various offenses arising out of an assault on his girlfriend, C.S.
Lawrence Blackshire was convicted of various offenses arising out of an assault on his girlfriend, C.S. After the government could not locate C.S. to testify at trial, the district court admitted statements she gave to police officers and a nurse. The central issue on appeal is whether the district court erred in finding that Blackshire forfeited his right to confront C.S. by causing her unavailability. We hold that it did not, and—finding Blackshire’s remaining arguments unpersuasive—affirm his convictions.The “Confrontation Clause” bars testimonial hearsay by an unavailable declarant2 unless “the defendant has had a prior opportunity to cross-examine” the declarant. Crawford v. Washington, 541 U.S. 36, 59 (2004). However, “[a] defendant may forfeit confrontation rights and render hearsay rules inapplicable if the defendant is responsible for the witness’s unavailability.” United States v. Johnson, 767 F.3d 815, 820 (9th Cir. 2014). This “forfeiture by wrongdoing” rule “permit[s] the introduction of statements of a witness who was ‘detained’ or ‘kept away’ by the ‘means or procurement’ of the defendant.”Federal Rule of Evidence 804(b)(6) “codifies” the forfeiture by wrongdoing doctrine. Davis v. Washington, 547 U.S. 813, 833 (2006). The Rule allows introduction of hearsay when a party “wrongfully caused—or acquiesced in wrongfully causing—the declarant’s unavailability as a witness, and did so intending that result.”“Supreme Court authority . . . clearly establishes that the forfeiture-by-wrongdoing doctrine applies where there has been affirmative action on the part of the defendant that produces the desired result, non-appearance by a prospective witness against him in a criminal case.” Carlson, 791 F.3d at 1010. To establish forfeiture by wrongdoing, the government must demonstrate that the defendant intentionally “engaged in conduct designed to prevent a witness from testifying.” Giles, 554 U.S. at 361. “Causing the declarant’s unavailability with the intent of doing so is critical to the doctrine of forfeiture by wrongdoing.”Wrongful action is a separate requirement from causation and intent in the Rule, as well as in the traditional hearsay exception. But the government need not show that Blackshire engaged in criminal wrongdoing that caused C.S.’s unavailability. See Fed. R. Evid. 804(b)(6) Advisory Committee Note to Amendment (1997). Instead, the doctrine acknowledges the principle that, “[w]hile defendants have no duty to assist the State in proving their guilt, they do have the duty to refrain from acting in ways that destroy the integrity of the criminal trial system.”With respect to whether Blackshire caused C.S.’s absence, there is sufficient evidence to support the district court’s finding. In one recorded conversation, Blackshire told someone that law enforcement would not be able to find “victims” because “we already discussed the whole fucking not showing up to court thing.” And, he was recorded asking two other women to tell C.S. not to appear in court. He took “affirmative action,” Carlson, 791 F.3d at 1010, “designed” to prevent C.S. from testifying, Giles, 554 U.S. at 359.Blackshire’s recorded statements need not be understood, as he suggests, simply as efforts at “making peace,” or informing C.S. of her right not to testify. Instead, they can reasonably be interpreted as evidencing efforts to “coerc[e], undu[ly] influence, or pressure” C.S. into not showing up in court.
The Court also rejected his remaining claims, including a jury instruction issue based on the invited error doctrine.
