FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-10230
Plaintiff-Appellee, D.C. Nos.
2:19-cr-01033-
v. SMB-1
2:19-cr-01033-
LAWRENCE LORENZO SMB
BLACKSHIRE,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Arizona
Susan M. Brnovich, District Judge, Presiding
Argued and Submitted February 5, 2024
Phoenix, Arizona
Filed April 19, 2024
Before: Marsha S. Berzon, Andrew D. Hurwitz, and
Anthony D. Johnstone, Circuit Judges.
Opinion by Judge Hurwitz
2 USA V. BLACKSHIRE
SUMMARY *
Criminal Law
The panel affirmed Lawrence Blackshire’s convictions
and sentence for various offenses arising out of an assault on
his girlfriend, C.S.
After the government could not locate C.S. to testify at
trial, the district court admitted statements she gave to police
officers and a nurse.
The panel held that the district court did not err in finding
that Blackshire forfeited his right to confront C.S. by causing
her unavailability and in admitting C.S.’s out-of-court
statements. To admit C.S.’s statements under the forfeiture
by wrongdoing rule, the government was required to prove
by a preponderance of the evidence that Blackshire
intentionally and wrongfully caused C.S.’s
unavailability. Blackshire conceded that the record
supported an inference that he had the requisite intent, but
contended (1) the government failed to prove that his
conduct caused C.S.’s absence and (2) there was no
wrongdoing because recordings relied upon by the district
court show only that he made “peace” with C.S. and told her
that she could not be compelled to testify. The panel rejected
those arguments. The panel held that circumstantial
evidence supports the inference that Blackshire caused
C.S.’s absence. As to the wrongfulness requirement, the
panel explained (1) the government did not need to show that
Blackshire engaged in criminal wrongdoing that caused
*
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. BLACKSHIRE 3
C.S.’s unavailability; and (2) Blackshire’s past domestic
violence against C.S. is relevant to determining whether
Blackshire’s actions were wrongful. Against the backdrop
of past abuse, Blackshire’s recorded statements can
reasonably be interpreted as evidencing efforts to coerce,
unduly influence, or pressure C.S. into not showing up in
court.
The panel held that Blackshire’s sufficiency-of-the-
evidence challenge on a kidnapping charge, on which he was
acquitted, is clearly moot; and that any variance of the
kidnapping instruction in this case from United States v.
Jackson, 24 F.4th 1308 (9th Cir. 2022), could not have
prejudiced him on that charge. Any error in an unlawful
imprisonment instruction was invited and cannot serve as the
basis for reversal.
Affirming the district court’s application of a sentencing
enhancement under U.S.S.G. § 3C1.1 (2018) for obstruction
of justice, the panel held that the district court did not clearly
err in concluding that Blackshire unlawfully influenced C.S.
Affirming the district court’s application of a sentencing
enhancement under U.S.S.G. § 2A2.2(b)(4) (2018) for
aggravated assault, the panel held that there was ample
evidence from which the district court could have found
strangulation, or attempted strangulation, by a
preponderance of the evidence.
4 USA V. BLACKSHIRE
COUNSEL
Michele R. Moretti (argued), Law Office of Michele R.
Moretti, Lake Butler, Florida, for Defendant-Appellant.
Peter S. Kozinets (argued) and Sharon K. Sexton, Assistant
United States Attorneys; Kevin Pooley, Special Assistant
United States Attorney; Krissa M. Lanham, Appellate
Division Chief; Gary M. Restaino, United States Attorney,
District of Arizona; United States Department of Justice,
Office of the United States Attorney, Phoenix, Arizona; for
Plaintiff-Appellee.
OPINION
HURWITZ, Circuit Judge:
Lawrence Blackshire was convicted of various offenses
arising out of an assault on his girlfriend, C.S. After the
government could not locate C.S. to testify at trial, the
district court admitted statements she gave to police officers
and a nurse. The central issue on appeal is whether the
district court erred in finding that Blackshire forfeited his
right to confront C.S. by causing her unavailability. We hold
that it did not, and—finding Blackshire’s remaining
arguments unpersuasive—affirm his convictions.
I.
A.
In September 2018, Blackshire repeatedly punched and
slapped C.S., threw her to the ground, kicked her, grabbed
her by the neck, and restrained her when she tried to leave
their home. The next morning, after Blackshire kicked C.S.
USA V. BLACKSHIRE 5
again, she fled to a neighbor’s house and called tribal police,
to whom she provided statements about the incident.
Medical providers found that C.S. had cranial swelling,
abrasions, bruises, and a fractured nose. C.S. met with a
forensic nurse, Jill Rable, the following day.
Blackshire was charged under the Indian Major Crimes
Act, 1 18 U.S.C. § 1153, with (1) assault resulting in serious
bodily injury, in violation of 18 U.S.C. §§ 1153 and
113(a)(6); (2) assault resulting in substantial bodily injury of
an intimate partner, in violation of 18 U.S.C. §§ 1153 and
113(a)(7); (3) assault of an intimate partner by strangulation,
in violation of 18 U.S.C. §§ 1153 and 113(a)(8); and
(4) kidnapping, in violation of 18 U.S.C. §§ 1153 and 1201.
B.
Despite multiple attempts, the government was unable to
locate C.S. to call her as a witness at trial. In her absence,
the government offered her recorded interviews with tribal
police providing details of the assault and identifying
Blackshire as the perpetrator, arguing that these out-of-court
statements were admissible under the forfeiture by
wrongdoing exception.
In support of its proffer, the government submitted three
recordings of conversations Blackshire had while in jail. In
the first, Blackshire told his new girlfriend in a phone call
that he would “be just fine” at trial because “[t]here are no
victims. They can’t find shit.” He said no one would find
any “victims” because “I already fucking made peace with
everybody and shit, everything’s fucking cool, and we
already discussed the whole fucking not showing up to court
1
Blackshire and C.S. are members of the Salt River Pima-Maricopa
Indian Community, and the altercation occurred on the reservation.
6 USA V. BLACKSHIRE
thing.” In a phone call recorded a few days later, Blackshire
asked a woman to tell C.S. that “if the Feds get a hold of her,
just play dumb, whatever. Not show up, whatever.” In the
third recording, he told his new girlfriend during an in-
person visit that “people are gonna be lookin’ for her. So you
need to tell [C.S.’s ex-boyfriend] there he don’t know
nothing about nothin.” Blackshire asked his girlfriend to
“find her and tell her – make sure . . . make sure she does not
fuckin’ . . . no matter what the fuck they tell her they can’t
fuckin’ – they can’t force her to go.” The district court found
that these recordings established “by a preponderance of the
evidence that Mr. Blackshire acted intentionally to cause
[C.S.’s] unavailability,” and admitted the recorded
interviews of C.S. by law enforcement under the “forfeiture
by wrongdoing” exception to the hearsay rule and
Confrontation Clause.
The government also offered statements made by C.S. to
Jill Rable, a forensic nurse. Over Blackshire’s Confrontation
Clause and hearsay objections, the court permitted Rable to
recount statements made by C.S. during her examination that
Blackshire “punched me all over my head and the sides,”
“slapped me and threw me to the ground,” and “put me in a
choke hold and dragged me inside and stepped on my chest
and kicked me a few times.” Rable also testified that “during
the examination, it was disclosed that there was
strangulation or suffocation.”
At the close of the government’s case-in-chief,
Blackshire unsuccessfully moved under Federal Rule of
Criminal Procedure 29 for acquittal on all counts. A jury
later returned guilty verdicts on Counts 1 and 2 as charged;
on a lesser included offense of Count 3, simple assault, in
violation of 18 U.S.C. §§ 1153 and 113(a)(5); and on a lesser
included offense of Count 4, unlawful imprisonment, in
USA V. BLACKSHIRE 7
violation of 18 U.S.C. § 1153 and Ariz. Rev. Stat. § 13-
1303(A). Applying Sentencing Guidelines adjustments for
obstruction of justice and strangulation, the court sentenced
Blackshire to ninety-six months’ imprisonment.
II.
A.
“In all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him.”
U.S. Const. amend. VI. This “Confrontation Clause” bars
testimonial hearsay by an unavailable declarant 2 unless “the
defendant has had a prior opportunity to cross-examine” the
declarant. Crawford v. Washington, 541 U.S. 36, 59 (2004).
However, “[a] defendant may forfeit confrontation rights
and render hearsay rules inapplicable if the defendant is
responsible for the witness’s unavailability.” United States
v. Johnson, 767 F.3d 815, 820 (9th Cir. 2014). This
“forfeiture by wrongdoing” rule “permit[s] the introduction
of statements of a witness who was ‘detained’ or ‘kept away’
by the ‘means or procurement’ of the defendant.” Giles v.
California, 554 U.S. 353, 359 (2008) (collecting cases).
Federal Rule of Evidence 804(b)(6) “codifies” the
forfeiture by wrongdoing doctrine. Davis v. Washington,
547 U.S. 813, 833 (2006). The Rule allows introduction of
hearsay when a party “wrongfully caused—or acquiesced in
wrongfully causing—the declarant’s unavailability as a
witness, and did so intending that result.” Fed. R. Evid.
2
A witness is “unavailable” if the prosecution “made a good-faith effort
to obtain [the declarant’s] presence at trial.” Hardy v. Cross, 565 U.S.
65, 69 (2011) (per curiam) (quoting Barber v. Page, 390 U.S. 719, 724–
25 (1968)). Blackshire has not challenged the district court’s finding that
C.S. was unavailable.
8 USA V. BLACKSHIRE
804(b)(6); see Carlson v. Att’y Gen. of Cal., 791 F.3d 1003,
1011 n.6 (9th Cir. 2015) (“[T]o the extent that the Rule does
‘codify’ the forfeiture doctrine, it must be read ‘to permit the
admission of those hearsay statements that would be
admissible under the constitutional doctrine of waiver by
misconduct.’”) (emphasis omitted) (quoting United States v.
Cherry, 217 F.3d 811, 816 (10th Cir. 2000)).
“Supreme Court authority . . . clearly establishes that the
forfeiture-by-wrongdoing doctrine applies where there has
been affirmative action on the part of the defendant that
produces the desired result, non-appearance by a prospective
witness against him in a criminal case.” Carlson, 791 F.3d
at 1010. To establish forfeiture by wrongdoing, the
government must demonstrate that the defendant
intentionally “engaged in conduct designed to prevent a
witness from testifying.” Giles, 554 U.S. at 361. “Causing
the declarant’s unavailability with the intent of doing so is
critical to the doctrine of forfeiture by wrongdoing.” United
States v. Cazares, 788 F.3d 956, 974 (9th Cir. 2015)
(emphasis added).
Blackshire argues that there is a third element to
forfeiture by wrongdoing in addition to intent and
causation—the actual wrongdoing—and simply “causing a
person not to testify at trial cannot be considered the
‘wrongdoing’ itself.” United States v. Scott, 284 F.3d 758,
763 (7th Cir. 2002). That is true. Wrongful action is a
separate requirement from causation and intent in the Rule,
as well as in the traditional hearsay exception. But the
government need not show that Blackshire engaged in
criminal wrongdoing that caused C.S.’s unavailability. See
Fed. R. Evid. 804(b)(6) Advisory Committee Note to
Amendment (1997). Instead, the doctrine acknowledges the
principle that, “[w]hile defendants have no duty to assist the
USA V. BLACKSHIRE 9
State in proving their guilt, they do have the duty to refrain
from acting in ways that destroy the integrity of the criminal-
trial system.” Davis, 547 U.S. 833 (emphasis in original).
See also Fed. R. Evid. 804(b)(6) Advisory Committee Note
to Amendment (1997) (noting that the adoption of the
exception “recognizes the need . . . to deal with abhorrent
behavior ‘which strikes at the heart of the system of justice
itself’”) (quoting United States v. Mastrangelo, 693 F.2d
269, 273 (2d Cir. 1982)).
To elucidate the kind of wrongdoing that can trigger
forfeiture by wrongdoing, the starting place is the seminal
Supreme Court case applying the forfeiture doctrine,
Reynolds v. United States, 98 U.S. 145 (1878). Reynolds
explained that statements of an unavailable witness
“detained by the means or procurement of the prisoner” and
“wrongfully kept away” have long been considered
admissible. Id. at 158–59 (quoting Lord Morley’s Case, 6
How. St. Tr. 769, 771 (H.L. 1666)). Reasoning that
“principles of common honesty” required that no one “be
permitted to take advantage of his own wrong,” the Reynolds
Court upheld the introduction of out-of-court statements by
the defendant’s wife after an officer unsuccessfully
attempted to serve her a subpoena and the defendant refused
to disclose her whereabouts, stating, “[s]he does not appear
in this case.” Id. at 159–60. Because “[t]he accused was
himself personally present in court when the showing was
made, and had full opportunity to account for the absence of
the witness, if he would, or to deny under oath that he had
kept her away,” he bore the burden of “showing that he had
not been instrumental in concealing or keeping the witness
away.” Id. at 160.
Over a century later, the Supreme Court confirmed that
“when defendants seek to undermine the judicial process by
10 USA V. BLACKSHIRE
procuring or coercing silence from witnesses and victims,
the Sixth Amendment does not require courts to acquiesce.”
Davis, 547 U.S. at 833. “[C]oercion, undue influence, or
pressure to silence testimony” suffices to establish the
requisite wrongdoing. Scott, 284 F.3d at 764. More recently,
on a “similar set of facts” to Reynolds, we upheld the
admission of out-of-court statements by a defendant’s wife
based on evidence that the defendant “actively procured” her
failure to appear by leaving their home with her, concealing
her whereabouts, and instructing his children “not to call
their mother.” Carlson, 791 F.3d at 1012. This “culpable”
conduct showed the defendant’s intentional “insulation of
the witnesses from the reach of either compulsion or
persuasion regarding showing up at trial.” Id. at 1005, 1013.
Through this affirmative act—whether or not it was
unlawful—the defendant forfeited his confrontation rights.
Id. at 1013; see also United States v. Leal-Del Carmen, 697
F.3d 964, 974 (9th Cir. 2012) (statement by unavailable
witness admissible under Rule 804(b)(6) when the
“government was responsible for rendering” the witness
unavailable by deporting him).
B.
To admit C.S.’s statements under the forfeiture by
wrongdoing rule, the government was required to prove by
a preponderance of the evidence that Blackshire
intentionally and wrongfully caused C.S.’s unavailability.
Johnson, 767 F.3d at 822–23. We review the district court’s
factual finding on that issue for clear error. See United States
v. Alahmedalabdaloklah, 94 F.4th 782, 816 (9th Cir. 2024).
Blackshire concedes that the record “supported an
inference” that he had the requisite intent because it
demonstrates that he “did not want C.S. to testify at trial.”
But he contends that the government failed to prove that his
USA V. BLACKSHIRE 11
conduct caused C.S.’s absence. He also argues that there was
no wrongdoing because the recordings relied upon by the
district court show only that he made “peace” with C.S. and
told her that she could not be compelled to testify.
We reject those arguments. With respect to whether
Blackshire caused C.S.’s absence, there is sufficient
evidence to support the district court’s finding. In one
recorded conversation, Blackshire told someone that law
enforcement would not be able to find “victims” because
“we already discussed the whole fucking not showing up to
court thing.” And, he was recorded asking two other women
to tell C.S. not to appear in court. He took “affirmative
action,” Carlson, 791 F.3d at 1010, “designed” to prevent
C.S. from testifying, Giles, 554 U.S. at 359. As in Johnson,
here “the evidence tended to show that [Blackshire] alone
had the means, motive, and opportunity to threaten [C.S.],
and did not show anyone else did.” Johnson, 767 F.3d at
823. Circumstantial evidence supports the inference that
Blackshire caused C.S.’s absence.
As to whether the action was wrongful, the domestic
violence background is pertinent in establishing that
Blackshire applied “coercion, undue influence, or pressure.”
Scott, 284 F.3d at 764. The Supreme Court has indicated that
a “domestic-violence context” is “relevant” to the forfeiture
analysis, as “[a]cts of domestic violence often are intended
to dissuade a victim from resorting to outside help, and
include conduct designed to prevent testimony to police
officers or cooperation in criminal prosecutions.” Giles, 544
U.S. at 377. In the context of a murder trial, Giles reasoned
that “[e]arlier abuse, or threats of abuse, intended to dissuade
the victim from resorting to outside help would be highly
relevant to this inquiry.” Id. See also Davis, 547 U.S. at
832–33 (noting that domestic-violence-related crimes are
12 USA V. BLACKSHIRE
“notoriously susceptible to intimidation or coercion of the
victim to ensure that she does not testify at trial”).
Here, the charged crime was not itself intended to
prevent C.S. from testifying. But the context of past abuse
in this case remains relevant to determining whether
Blackshire’s actions were wrongful. C.S. told law
enforcement that Blackshire had fractured her ribs four
months prior to this incident and had previously threatened
her “because [she] had called the cops before on him.”
Furthermore, the charged conduct itself involves
Blackshire’s punching, slapping, and dragging C.S. in a
chokehold, and at one point threatening that “he [would] find
[her] and [her] family” if she tried to leave. Against that
backdrop, Blackshire’s recorded statements need not be
understood, as he suggests, simply as efforts at “making
peace,” or informing C.S. of her right not to testify. Instead,
they can reasonably be interpreted as evidencing efforts to
“coerc[e], undu[ly] influence, or pressure” C.S. into not
showing up in court. Scott, 284 F.3d at 764.
Considering all the evidence, the district court did not err
in invoking the forfeiture doctrine and admitting C.S.’s out-
of-court statements to law enforcement and Nurse Rable. 3
III.
Blackshire also challenges the district court’s denial of
his motion for judgment of acquittal on the kidnapping
charge, the jury instructions for kidnapping and unlawful
3
We therefore need not decide whether C.S.’s statements to Rable were
testimonial or admissible under Federal Rule of Evidence 803(4) as
statements made to a medical provider for the purposes of treatment. See
United States v. Kootswatewa, 893 F.3d 1127, 1132 (9th Cir. 2018).
USA V. BLACKSHIRE 13
imprisonment, and the imposition of sentencing
enhancements.
A.
We review the denial of a Rule 29 motion de novo,
considering “whether ‘any rational trier of fact could have
found the essential elements of the crime beyond a
reasonable doubt.’” United States v. Nevils, 598 F.3d 1158,
1161 (9th Cir. 2010) (en banc) (quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979)). We consider the evidence “in the
light most favorable to the prosecution.” Id.
Blackshire’s sufficiency-of-the-evidence challenge on
the kidnapping charge, on which he was acquitted, is clearly
moot. See United States v. Lawrence, 189 F.3d 838, 844 n.2
(9th Cir. 1999) (finding Rule 29 motion involving specific
aspect of a charge moot when jury convicted on other
grounds); see also United States v. Partida, 385 F.3d 546,
560 n.10 (5th Cir. 2004) (finding insufficiency claim moot
as to an acquitted count).
B.
Blackshire contends that the jury instructions for
kidnapping and unlawful imprisonment conflict with
Government of Virgin Islands v. Berry, 604 F.2d 221 (3d Cir.
1979) and United States v. Jackson, 24 F.4th 1308 (9th Cir.
2022).
In Jackson, decided two years after Blackshire’s trial, we
held that facts needed to establish kidnapping included:
(1) the duration of the detention or
asportation; (2) whether the detention or
asportation occurred during the commission
of a separate offense; (3) whether the
14 USA V. BLACKSHIRE
detention or asportation which occurred is
inherent in the separate offense; and
(4) whether the asportation or detention
created a significant danger to the victim
independent of that posed by the separate
offense.
24 F.4th at 1312. This four-factor approach, adopted from
Berry, 604 F.2d at 227, emphasizes the need to “distinguish
facts that constitute kidnapping from those that do not.”
Jackson, 24 F.4th at 1312.
Although we had not yet decided Jackson at the time of
his trial, Blackshire requested that the district court add to
the Ninth Circuit Model Criminal Jury Instruction § 8.1115
(in place prior to June 2019) on kidnapping additional
elements based on the Berry factors. The district court
denied the request, instructing the jury that kidnapping
required proof beyond a reasonable doubt that Blackshire
“seized, or confined, or kidnapped, or abducted, or carried
away” C.S., and that he “held” C.S. “for any benefit.”
Nevertheless, because Blackshire was acquitted of
kidnapping, any variance of the kidnapping instruction in
this case from Jackson and Berry could not have prejudiced
him on that charge.
At Blackshire’s request, the district court also instructed
the jury that, if “not convinced beyond a reasonable doubt
that the defendant is guilty of the crime of Kidnapping,” it
could find Blackshire guilty of unlawful imprisonment if it
concluded beyond a reasonable doubt that Blackshire
“knowingly restrained” C.S. The court defined “restrain” as
“to restrict a person’s movements without consent, without
legal authority, and in a manner which interferes
substantially with such person’s liberty by either moving
USA V. BLACKSHIRE 15
such person from one place to another, or confining such
person.” See Ariz. Rev. Stat. § 13-1301(2).
On appeal, Blackshire urges that this unlawful
imprisonment instruction runs afoul of an animating concern
in Jackson—the danger of conflating assault-related conduct
and restraining conduct whenever an assault involves a
period of detention. 24 F.4th at 1311–12; see also Berry, 604
F.2d at 227 n.13 (holding the four-factor approach “governs
the construction of the lesser included [Virgin Islands]
offense of false imprisonment”). However, Blackshire,
although clearly aware of the Berry factors, proposed the
unlawful imprisonment instruction that the district court
gave and that he now challenges on appeal. Any error was
therefore invited and cannot serve as the basis for reversal.
See United States v. Hui Hsiung, 778 F.3d 738, 747–48 (9th
Cir. 2015) (finding the “case falls squarely within the
‘invited error’ doctrine” where, “despite having knowledge
of the law, the defendants ‘proposed or accepted’ what they
now claim to be ‘a flawed instruction’”) (quoting United
States v. Perez, 116 F.3d 840, 842, 845 (9th Cir. 1997) (en
banc)).
C.
Finally, Blackshire challenges the sentencing
enhancements for obstruction of justice and strangulation.
We review a district court’s interpretation of the Sentencing
Guidelines de novo, its application of the Guidelines to the
facts for abuse of discretion, and its underlying factual
findings for clear error. United States v. Gasca-Ruiz, 852
F.3d 1167, 1170 (9th Cir. 2017) (en banc).
The Guidelines permit a two-level increase if a
“defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice.” U.S.
16 USA V. BLACKSHIRE
Sent’g Guidelines Manual (“U.S.S.G.”) § 3C1.1 (U.S.
Sent’g Comm’n 2018). The enhancement applies to
“threatening, intimidating, or otherwise unlawfully
influencing a co-defendant, witness, or juror, directly or
indirectly, or attempting to do so.” U.S.S.G.§ 3C1.1 cmt.
n.4(A). For the same reasons that the forfeiture by
wrongdoing standard was met, the district court did not
clearly err in concluding that Blackshire “unlawfully
influenc[ed]” C.S.
The Guidelines allow for a three-level increase to an
aggravated assault sentence when the offense involves
“strangling, suffocating, or attempting to strangle . . . a[n]
intimate partner, or dating partner.” U.S.S.G. § 2A2.2(b)(4)
(2018). Blackshire argues that because the jury acquitted
him on the strangulation charge, application of this
enhancement is unconstitutional. But, “a jury’s verdict of
acquittal does not prevent the sentencing court from
considering conduct underlying the acquitted charge, so long
as that conduct has been proved by a preponderance of the
evidence.” United States v. Watts, 519 U.S. 148, 157 (1997).
There was ample evidence from which the district court
could have found strangulation, or attempted strangulation,
by a preponderance of the evidence.
IV.
We AFFIRM the convictions and sentence.