United States v. Kevin Davis

MEMORANDUM AND ORDER

Kevin Davis appeals the district court’s denial of his motion for postconviction relief pursuant to 28 U.S.C. § 2255 . The sole issue on appeal is whether the admission of the statement of Sandy Medina was harmless error. Davis’s trial took place before the Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004). Medina’s arrest precipitated Davis’s prosecution, and her refusal to testify was unexpected. Her statement to police was read to the jury toward the end of the prosecution’s case, and the prosecutor did refer to it repeatedly during closing and rebuttal. The applicable harmless error standard is whether the error had a substantial and injurious effect or influence in determining the jury’s verdict. Brecht v. Abrahamson, 507 U.S. 619, 637-38 , 113 S.Ct. 1710 , 123 L.Ed.2d 353 (1993); United States v. Mon-talvo, 331 F.3d 1052, 1058 (9th Cir.2003) (per curiam).

We have said that the factors we apply in determining whether a Confrontation Clause violation satisfies that standard are: the importance of the testimony in the government’s case; whether the testimony was cumulative; the presence or absence of…