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 backt