United States v. Robert Underwood, Jr.

MEMORANDUM

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.

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…