United States v. Joshua Shuemake

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FOR PUBLICATION

     UNITED STATES COURT OF APPEALS
          FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 22-30210

                Plaintiff-Appellee,                D.C. No.
                                                2:21-cr-00194-
    v.                                              RAJ-1

JOSHUA ADAM SHUEMAKE,
                                                  OPINION
                Defendant-Appellant.


         Appeal from the United States District Court
           for the Western District of Washington
          Richard A. Jones, District Judge, Presiding

               Submitted November 18, 2024 *
                   Seattle, Washington

                   Filed December 26, 2024

    Before: M. Margaret McKeown, Ronald M. Gould, and
               Kenneth K. Lee, Circuit Judges.

                     Opinion by Judge Lee

*
 The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2                        USA V. SHUEMAKE


                          SUMMARY **


                          Criminal Law

    The panel affirmed Joshua Shuemake’s conviction for
obstruction of justice in a case in which the district court
admitted his friend Luke Ulavale’s grand jury testimony
implicating Shuemake after Ulavale tried to backtrack at trial
claiming memory loss.
    Under the prior inconsistent statement rule, Fed. R. Evid.
801(d)(1)(A), a district court can admit an earlier sworn
statement if a witness on the stand contradicts that statement.
    Rejecting Shuemake’s argument that the district court
erred in admitting Ulavale’s grand jury testimony, the panel
held that dubious claims of memory loss—as shown by
inexplicable claims of faulty memory, evasive testimony, or
similar red flags—may be enough to be treated as an
inconsistency under Rule 801(d)(1)(A).
    The panel explained that a court cannot admit earlier
sworn testimony as a prior inconsistent statement merely
because a witness asserts that he cannot recall that prior
statement. The dispositive inquiry is whether both the trial
testimony and the prior testimony could be equally truthful
when asserted. Courts must engage in a fact-intensive
inquiry to smoke out a witness’ attempt to walk away from
prior sworn testimony by asserting a lack of memory.
    The panel concluded that Uvalale feigned memory loss
on the stand, making Rule 801(d)(1)(A) applicable. Telltale

**
  This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                     USA V. SHUEMAKE                      3


signs of insincerity were plentiful. Uvalale was an
uncooperative witness who did not appear to suffer genuine
memory loss, and his statements on the stand and his
testimony before the grand jury could not be found equally
truthful.



                       COUNSEL

Tania M. Culbertson and Jonas B. Lerman, Assistant United
States Attorney; Jessica Manca, Special Assistant United
States Attorney; Tessa M. Gorman, Acting United States
Attorney; United States Department of Justice, Office of the
United States Attorney, Seattle, Washington; for Plaintiff-
Appellee.
Casey M. Arbenz and John A. Sheeran, Puget Law Group
LLP, Tacoma, Washington, for Defendant-Appellant.
4                      USA V. SHUEMAKE


                          OPINION

LEE, Circuit Judge:

    Under the prior inconsistent statement rule of the Federal
Rules of Evidence, a district court can admit an earlier sworn
statement if a witness on the stand contradicts that statement.
FED. R. EVID. 801(d)(1)(A). But can a court admit a prior
statement if a witness claims at trial that he does not
remember saying it? We hold that a feigned lack of
recollection may fall within Rule 801’s prior inconsistent
statement provision. We thus reject Joshua Shuemake’s
argument that the district court erred in admitting his friend’s
grand jury testimony implicating Shuemake after he tried to
backtrack at trial by claiming memory loss. Shuemake’s
conviction for obstruction of justice is affirmed.
                      BACKGROUND
    I. Shuemake borrows a handgun from his friend,
       despite a court order preventing him from having
       firearms.
    Joshua Shuemake served as a correctional officer at a
federal detention center in SeaTac. He became entangled
with the criminal justice system—outside of his
workplace—in April 2021 when he was arrested for
allegedly assaulting his former girlfriend. A Washington
state court issued a no-contact order against him, which
prohibited him from possessing firearms. The state court
also ordered Shuemake to surrender any firearms he may
have.
    Shuemake, however, wanted to continue his private
security side hustle at a local restaurant and bar. He asked
to borrow a handgun from his close friend and co-worker,
                      USA V. SHUEMAKE                       5


Luke Ulavale, who knew him for years and considered
Shuemake to be his best friend. Being a loyal friend but not
a model citizen, Ulavale agreed and lent Shuemake his gun.
    But unbeknownst to Shuemake, the local police feared
he would not comply with the order to surrender firearms
and had reached out to the FBI. The FBI executed a search
warrant for his (new) girlfriend’s apartment, where
Shuemake lived. The FBI found two firearms in the
apartment’s bedroom—one registered to Shuemake’s
girlfriend, and one registered to his friend, Luke Ulavale.
Shuemake’s DNA was found on Ulavale’s gun.
  II. Shuemake and Ulavale concoct a story about the
      borrowed gun.
    A few months after the raid, Shawna McCann, an FBI
agent, served Ulavale with a grand jury subpoena and asked
to interview him beforehand. Ulavale agreed.
   For the first portion of the interview, Ulavale offered the
“Dale Story”—that Ulavale loaned his gun to Nicholas Dale,
another friend and coworker, several months before the
FBI’s search of the apartment. Ulavale explained Shuemake
and Dale were drinking at the apartment the night before the
FBI’s search, and Dale accidentally left the gun behind. But
McCann did not buy it. McCann informed Ulavale that “the
only way that he would get in trouble during the interview
was if he didn’t tell the truth” and gave him a chance to
amend his statement.
    Ulavale changed his tune.      Ulavale told Agent
McCann—and later testified under oath before the grand
jury—that Shuemake asked Ulavale to lend him a gun.
Ulavale also testified to the grand jury that Shuemake
approached him with the “Dale Story” and encouraged
6                      USA V. SHUEMAKE


Ulavale to lie to the FBI. Ulavale explained he met with
Shuemake the night before his interview with McCann. At
that meeting, Shuemake tried to dissuade Ulavale from
going to the interview and encouraged him to “remember
what [they] discussed about the gun.”
    But Ulavale’s newfound honesty was fleeting. Despite
being a government witness, Ulavale did not appear on the
day of his testimony, and FBI agents had to escort him to the
courthouse. The government received permission to treat
Ulavale as a hostile witness before calling him to the stand.
    Just after the government’s questioning began, Ulavale’s
memory inexplicably began to falter. Ulavale claimed he
could not remember over a dozen times in response to the
government’s questions. To refresh his memory, the
government handed Ulavale a transcript of his grand jury
testimony. Ulavale asserted that the transcript did not
refresh his memory or otherwise refused to answer the
government’s questions.
    Ulavale at times made statements that directly conflicted
with his grand jury testimony but then retreated to his claim
of memory loss. For example, he first asserted he did not
discuss the grand jury subpoena with Shuemake and then,
when asked again, replied he did not remember if he
discussed it with Shuemake. In response, the government
read in his grand jury testimony where he stated that he did
discuss the subpoena with Shuemake. Similarly, Ulavale
testified at trial that he came up with the “Dale Story” to tell
the FBI, but then said he could not recall who came up with
the story. The government then read in Ulavale’s grand jury
testimony where he stated Shuemake came up with the “Dale
Story.”
                      USA V. SHUEMAKE                        7


    The government also asked Ulavale about the timing of
when he and Shuemake discussed the “Dale Story.” Ulavale
again refused to answer, and the government read in his
grand jury testimony in which Ulavale said, “it took a while
to agree on a specific story, . . . [Shuemake] would come
bounce an idea off me . . . . And then, you know, it was a
series of bounce ideas, and then, ‘Okay, let's agree on this.’”
    Shuemake objected to the admission of only some parts
of Ulavale’s grand jury testimony, and only on foundation or
relevance grounds.
    Shuemake was convicted of unlawful possession of a
firearm and obstruction of justice. He now challenges his
obstruction of justice conviction, contending that the district
court erred in admitting Ulavale’s grand jury testimony.
                STANDARD OF REVIEW
    We review unpreserved challenges to the admission of
evidence for plain error. See United States v. Gomez-
Norena,
908 F.2d 497, 500
(9th Cir. 1990). To merit
reversal, there must be a plain error that affects Shuemake’s
substantial rights and seriously affects “the fairness,
integrity or public reputation of judicial proceedings.”
United States v. Young,
470 U.S. 1, 15
(1985) (citation
omitted).
                       DISCUSSION
    The district court admitted Ulavale’s grand jury
testimony as a recorded recollection, but this court can
“affirm on any basis supported by the record.” Hall v. N.
Am. Van Lines, Inc.,
476 F.3d 683, 686
(9th Cir. 2007). The
recorded recollection hearsay exception does not apply here
because the government did not lay the proper foundation.
Instead, we affirm the admission of Luke Ulavale’s prior
8                     USA V. SHUEMAKE


grand jury testimony under Rule 801(d)(1)(A) as a “prior
inconsistent statement.” FED. R. EVID. 801(d)(1)(A).
    We hold that dubious claims of memory loss—as shown
by inexplicable claims of faulty memory, evasive testimony,
or similar red flags—may be enough to be treated as an
inconsistency under Rule 801(d)(1)(A).
    A. Feigned memory loss may be a prior inconsistent
       statement under Rule 801(d)(1)(A).
    Under Rule 801, a declarant’s prior inconsistent
statement is admissible non-hearsay if (1) the declarant
testifies and is subject to cross-examination about the prior
statement; (2) the prior statement is inconsistent with the
declarant’s current testimony; and (3) the prior statement
“was given under penalty of perjury at a trial, hearing, or
other proceeding or in a deposition.” FED. R. EVID.
801(d)(1)(A). It is undisputed that the first and third
requirements have been met: Ulavale was subject to cross-
examination at trial, and his earlier grand jury testimony was
given under penalty of perjury.
18 U.S.C. § 1623
; see, e.g.,
United States v. Champion Int’l Corp.,
557 F.2d 1270
, 1274
(9th Cir. 1977). The key question is whether his grand jury
testimony is inconsistent with his assertions at trial that he
does not remember his earlier testimony.
    The trial court judge has “a high degree of flexibility in
deciding the exact point at which a prior statement is
sufficiently inconsistent with a witness’s trial testimony to
permit its use in evidence.” United States v. Morgan,
555
F.2d 238, 242
(9th Cir. 1977). As leading treatises have
pointed out, an “inconsistent statement” can include vague
or evasive answers, claims of memory loss, and explicit
refusals to answer. See 5 WEINSTEIN’S FEDERAL EVIDENCE
§ 801.21[b] (2024 ed.); 30B WRIGHT & MILLER, FEDERAL
                      USA V. SHUEMAKE                        9


PRACTICE AND PROCEDURE § 6744 (2024 ed.).                The
Advisory Committee Notes to Rule 801(d)(1)(A), quoting
observations about California’s similar provision, state that
admitting these statements guards against the turncoat
witness who changes his story on the stand and deprives the
party calling him of essential evidence. FED. R. EVID.
801(d)(1)(A) advisory committee’s note to 1972 proposed
rules; see also WRIGHT & MILLER at § 6744. Cf. California
v. Green,
399 U.S. 149
, 151–52 (1970) (upholding
constitutionality of California Evidence Code Section 1235,
a parallel to Rule 801(d)(1)(A), when preliminary hearing
testimony was introduced at trial after witness claimed he
could not remember).
    The “ultimate test is whether one could reasonably
maintain that both the witness’ testimony and the witness’
prior statement were equally truthful when uttered.”
WRIGHT & MILLER at § 6744. “It would seem strange . . . to
assert that a witness can avoid introduction of testimony
from a prior proceeding that is inconsistent with his trial
testimony . . . by simply asserting lack of memory of the facts
to which the prior testimony related.” United States v.
Owens,
484 U.S. 554, 563
(1988) (citing United States v.
Murphy,
696 F.2d 282
, 283–84 (4th Cir. 1982), where grand
jury testimony was held properly introduced under Rule
801(d)(1) when a witness claimed memory loss). Simply
put, a witness cannot have it both ways: a witness cannot
make a sworn statement and then attempt to wiggle out from
it by refusing to answer or falsely asserting he cannot recall
it.
   Our court has not delineated the precise boundaries of
Rule 801(d)(1)(A), but we have suggested that claims of
memory loss may conflict with earlier testimony—at least
when coupled with somewhat varying testimony on the
10                        USA V. SHUEMAKE


stand. See United States v. Tory,
52 F.3d 207
, 209 n.2, 210
(9th Cir. 1995) (prior inconsistent statement admitted for
impeachment when witness claimed memory loss and gave
somewhat different testimony of suspect wearing “white
type of pant” versus “sweatpants”); United States v. Tran,
568 F.3d 1156
, 1162–63 (9th Cir. 2009) (Rule 801(d)(1)(A)
applies when witness’ testimony was “vague and evasive,”
including claim of lack of memory and slightly varying
details in testimony). Cf. also Morgan, 555 F.2d 242–42
(admitting grand jury testimony as direct evidence under
Rule 801(d)(1)(A) where government witnesses were
“indefinite and uncertain” when examined at trial).
    We affirm these prior decisions and are aligned with our
sister circuits in holding that a district court may find that
dubious claims of memory loss satisfy Rule 801(d)(1)(A)’s
inconsistency requirement. 1 To be clear, we do not hold that
a court can admit earlier sworn testimony as a prior
inconsistent statement merely because a witness asserts that
he cannot recall that prior statement. After all, a witness
genuinely may not remember his earlier testimony; in that
case, a lawyer can rely on other evidentiary rules such as
refreshing the witness’ recollection (Rule 612) or using the
recorded recollection exception to the hearsay rule (Rule

1
  See United States v. Truman,
688 F.3d 129, 142
(2d Cir. 2012) (“the
refusal to answer” may be “inconsistent with his prior testimony”);
United States v. Iglesias,
535 F.3d 150, 159
(3d Cir. 2008); United States
v. Cisneros-Gutierrez,
517 F.3d 751, 757
(5th Cir. 2008) (“[A] witness’s
‘feigned’ memory loss can be considered inconsistent under the Rule, for
‘the unwilling witness often takes refuge in a failure to remember’”);
United States v. Hadley,
431 F.3d 484, 512
(6th Cir. 2005) (“limited and
vague recall of events, equivocation, and claims of memory loss satisfy
the requirement of Rule 801(d)(1)(A)”); United States v. Gajo,
290 F.3d
922, 931
(7th Cir. 2002); United States v. Dennis,
625 F.2d 782, 796
(8th
Cir. 1980).
                      USA V. SHUEMAKE                      11


803(5)). Under the prior inconsistent statement rule, the
dispositive inquiry is whether both the trial testimony and
the prior testimony could be equally truthful when asserted.
In making this assessment, trial courts can consider various
factors—such as (i) inexplicable or questionable
explanations for the lack of recollection, (ii) vague and
evasive responses suggesting a refusal to answer truthfully,
and (iii) potentially conflicting testimony—as signs that a
witness is feigning memory loss. Courts must engage in this
fact-intensive inquiry to smoke out a witness’ attempt to
walk away from prior sworn testimony by asserting a lack of
memory.
  B. Luke Ulavale feigned memory loss on the stand,
     making Rule 801(d)(1)(A) applicable.
    Ulavale’s questionable assertions that he could not recall
his grand jury testimony fall within the boundaries of
Rule 801(d)(1)(A). See Tran, 568 F.3d at 1162–63; Tory, 52
F.3d at 209–10.
    Telltale signs of insincerity were plentiful. For example,
Ulavale twice gave responses inconsistent with his grand
jury testimony and then tried to walk back his responses by
feigning memory loss. Ulavale first asserted he did not
discuss the grand jury subpoena with Shuemake and then,
when asked again, replied he did not remember. In the
second instance, Ulavale initially said he came up with the
“Dale Story” to tell the FBI, then replied he could not recall
who came up with the story. What’s more, Ulavale over a
dozen times asserted that he could not recall, despite reading
his grand jury testimony from only about a year prior.
    In sum, Ulavale’s statements on the stand and his
testimony before the grand jury could not be found equally
truthful. Ulavale was an uncooperative witness who did not
12                    USA V. SHUEMAKE


appear to suffer genuine memory loss. His testimony on the
stand, while not always categorically contradictory, was still
inconsistent with his grand jury testimony under Rule
801(d)(1)(A).
                      CONCLUSION
   We AFFIRM Shuemake’s obstruction of justice
conviction.