United States District Court, D. Nevada
ORDER GRANTING IN PART MOTION TO ADMIT STATEMENTS BY
THE VICTIM (ECF NO. 82)
P. GORDON, UNITED STATES DISTRICT JUDGE
Government moves for permission to admit into evidence at
trial statements made by the victim (A.D.) under the
"forfeiture by wrongdoing" doctrine. ECF No. 82.
Specifically, the Government seeks to admit A.D.'s
journal and her phone calls with defendant Brandon Lamar
Pruitt. The evidence demonstrates that on several occasions
Pruitt encouraged A.D. to avoid contact with, and tracking
by, the police, with the intent that A.D. not be available to
testify at trial. The efforts were apparently successful, as
A.D. has apparently ceased contact with the authorities and
concealed her whereabouts. Accordingly, I grant the
Government's motion in part.
parties are familiar with the facts, which are laid out in
detail in the briefs. I will not repeat them here except as
necessary for context. After he was arrested, Pruitt had
several phone calls with A.D. from the detention facility
using other detainees' identification. Pruitt encouraged
A.D. to not talk to police, and to tell his attorney that she
was "tricked" by the police into telling a false
story. He encouraged her to get a new cell phone and throw
away her old one to avoid being tracked by the police. He
also told A.D. to write him a letter with her new phone
number, using a false name and return address. Pruitt
acknowledged to A.D. that he was barred by the Magistrate
Judge from speaking with her. The Government has not been
able to locate A.D. since November 2016.
Sixth Amendment's Confrontation Clause bars
"admission of testimonial statements of a witness who
did not appear at trial unless he was unavailable to testify,
and the defendant had had a prior opportunity for
cross-examination." Crawford v. Washington. 541
U.S. 36. 53-54 (2004). "[A] statement cannot fall within
the Confrontation Clause unless its primary purpose was
testimonial. Where no such primary purpose exists, the
admissibility of a statement is the concern of state and
federal rules of evidence, not the Confrontation
Clause.'" Ohio v. Clark, 135 S.Ct. 2173.
2180 (2015) (citation and quotation omitted). For purposes of
the Confrontation Clause, statements "are testimonial
when the circumstances objectively indicate that ... the
primary purpose of the interrogation is to establish or prove
past events potentially relevant to later criminal
prosecution." Davis v. Washington, 547 U.S.
813, 822 (2006). "Statements made to someone who is not
principally charged with uncovering and prosecuting criminal
behavior are significantly less likely to be testimonial than
statements given to law enforcement officers, "
Clark, 135 S.Ct. at 2182.
A.D.'s journal entries and her phone calls with Pruitt
were not testimonial. The journal entries presumably record
her daily thoughts and activities. Her phone calls with Pruitt-
while he was in custody on these charges-were clearly not
meant to establish or prove events for later prosecution. To
the contrary, some of the calls involved the avoidance of
prosecution. Because the journal entries and phone calls were
not testimonial, their admission does not violate the
even if the journal and calls are considered testimonial,
they would be admissible based on the forfeiture by
wrongdoing doctrine. "The forfeiture-by-wrongdoing
doctrine is an exception to the Confrontation Clause's
protections. That doctrine permits the introduction of a
testimonial statement by an unavailable witness if the
preponderance of the evidence shows that the 'witness is
absent by [the defendant's] own wrongful
procurement.'" Carlson v, Att'yGen. of
Cal, 791 F.3d 1003, 1009 (9th Cir. 2015). The doctrine
applies only if the defendant engaged in "conduct
designed to prevent a witness from testifying."
Giles v. California, 554 U.S. 353, 365 (2008).
preponderance of the evidence shows that Pruitt intended to
prevent A.D. from testifying against him at trial, and that
his actions were the cause of her present unavailability.
United States v. Johnson. 161 F.3d 815, 822-23
(9th Cir. 2014). As summarized above, Pruitt
repeatedly encouraged A.D. to not cooperate with the
authorities, to change her story, to get rid of her cell
phone to avoid being tracked by the police, and to provide
her new phone number to him surreptitiously. He did all this
while knowing he had twice been told by the court to not
contact A.D. As a result of his actions, the Government has
not been able to locate A.D.
witness is considered unavailable for purposes of the
Confrontation Clause if the prosecutorial authorities have
made a good-faith effort to obtain his presence at
trial." United States v. Mafus-Zayas, 655 F.3d
1092, 1101 (9th Cir. 2011) (quotation omitted). In this case,
the sealed declarations of the Government's agents
describe their efforts to locate A.D. Despite those good-faith
efforts, the Government has not been able to contact or
locate her. At this time, she is apparently unavailable to
testify at trial. However, the Government must continue to
use good-faith efforts to locate A.D. up until the time of
trial. Id. at 1102 C'[T]he obligation remains on
the government to provide evidence at trial demonstrating the
witness's unavailability as a predicate to the admission
of the material witness's testimony."). Should the
Government not be able to locate and present A.D. at trial, I
will allow the Government to introduce her journal and the
phone call recordings at trial.
HEREBY ORDERED the Government's motion (ECF No.
82) is GRANTED IN PART. The Government's
requests to admit the journal and jail calls are not barred
by the Confrontation Clause. Whether specific portions of the
journal and calls are barred by other objections will be
decided at trial.
 The Government has not identified
which specific portions of the journal and the jail calls it
intends to offer at trial. Those portions may be subject to
other objections (e.g., relevance, hearsay, etc.). I will
rule on those issues as they come up at trial, when there is
more context in which to evaluate them.
I allowed the Government to
file under seal declarations and affidavits from detectives
detailing their efforts to locate A.D. I have reviewed them
in camera. The Government has used good-faith
efforts to locate A.D. Given Pruitt"s violations of this
court's no-contact orders and his attempts to dissuade
A.D. from testifying, the Government's efforts ...