FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TALOA LATU,

Defendant-Appellant.

No. 19-10069

D.C. No.

1:17-cr-00364-

JMS-1

OPINION

Appeal from the United States District Court

for the District of Hawaii

J. Michael Seabright, Chief District Judge, Presiding

Argued and Submitted July 7, 2022

Honolulu, Hawaii

Filed August 31, 2022

Before: Kim McLane Wardlaw, Jacqueline H. Nguyen, 

and John B. Owens, Circuit Judges.

Opinion by Judge Nguyen
2 UNITED STATES V. LATU

SUMMARY*

Criminal Law

The panel affirmed a conviction for assault resulting in 

serious bodily injury, a violation of 18 U.S.C. § 113(a)(6), in 

a case in which Taloa Latu, an inmate at a federal detention 

center, repeatedly punched and kicked inmate Joseph 

Yamaguchi, who suffered multiple serious injuries.

Yamaguchi did not testify, but the district court admitted 

his statements—that he was assaulted and that his pain level 

was an eight out of ten—through the testimony of a nurse 

and a surgeon who treated him. 

Latu argued that admitting this testimony violated the 

rule against hearsay and the Confrontation Clause of the 

Sixth Amendment. 

The panel held that the district court properly admitted 

the statements made by Yamaguchi to his medical providers, 

as the statements fell within the hearsay exception for 

statements made for purposes of medical diagnosis or 

treatment under Fed. R. Evid. 803(4). The panel also held 

that admission of these statements did not violate the 

Confrontation Clause because their primary purpose was to 

evaluate and treat Yamaguchi's injuries rather than to 

establish past facts for trial.

 The panel addressed other issues in a concurrently filed 

memorandum disposition.

* This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
UNITED STATES V. LATU 3 

COUNSEL

DeAnna S. Dotson (argued), Dana Point, California, for 

Defendant-Appellant. 

Michael Nammar (argued), Assistant United States 

Attorney; Marion Percell, Chief of Appeals; Judith A. 

Philips, Acting United States Attorney; United States 

Attorney’s Office, Honolulu, Hawaii; for Plaintiff-Appellee.

OPINION

NGUYEN, Circuit Judge:

On September 11, 2016, Taloa Latu, an inmate at the 

Federal Detention Center (FDC) in Honolulu, repeatedly 

punched and kicked inmate Joseph Yamaguchi. Yamaguchi 

suffered multiple serious injuries, including a broken jaw. 

Latu was convicted following a jury trial of assault resulting 

in serious bodily injury, a violation of 18 U.S.C. § 113(a)(6).

At trial, Yamaguchi did not testify. The district court 

nevertheless admitted Yamaguchi’s statements—that he was 

assaulted and that his pain level was an eight out of ten—

through the testimony of a nurse and a surgeon who treated 

him. Latu argues that admitting this testimony violated the 

rule against hearsay and the Confrontation Clause of the 

Sixth Amendment.

We hold that the district court properly admitted the 

statements made by Yamaguchi to his medical providers. 

The statements fell within the hearsay exception for 

statements made for purposes of medical diagnosis or 

treatment under Fed. R. Evid. 803(4). The admission of 

these statements did not violate the Confrontation Clause 
4 UNITED STATES V. LATU

because their primary purpose was to evaluate and treat 

Yamaguchi’s injuries rather than to establish past facts for 

trial. We therefore affirm Latu’s conviction.1

I.

A. Factual Background

Latu’s assault of Yamaguchi was captured on 

surveillance video played to the jury. Just before the 

incident, Latu was seen pacing back and forth and peering 

into a recreation room in the FDC. Inside the room, a 

handful of inmates including Yamaguchi were seated around 

a table playing cards. Latu opened the door and immediately 

began punching and kicking Yamaguchi, who fell to the 

floor. Once the attack ended, struggling to steady himself, 

Yamaguchi limped away with a large bloodstain on his shirt.

An hour and twenty-five minutes later, FDC staff saw 

visible swelling to Yamaguchi’s jaw and eye and promptly 

sent him to the medical unit. Yamaguchi’s jaw had been 

fractured in two places, requiring same-day surgery. 

Yamaguchi had also suffered face and rib fractures, face and 

eyebrow lacerations, and a concussion.

Yamaguchi saw Nurse Daniel Chi at the FDC health unit. 

Chi’s practice is to perform “a head-to-toe assessment to 

determine what was injured, extent of injury, and then course 

of action.” As part of that assessment, Chi asks about the 

cause of a patient’s injuries because the “[m]echanism of 

injury can also play into the severity of the injury.” When 

asked, Yamaguchi initially responded that he had fallen out 

1 We address Latu’s other issues on appeal in a concurrently filed 

memorandum disposition.
UNITED STATES V. LATU 5

of bed. But given the extent of the injuries, Chi did not 

believe that explanation and pressed further. Yamaguchi 

then admitted that he was assaulted.

Nurse Chi’s practice is also to ask patients about their 

subjective pain level. He explained that “pain is a very 

subjective type of symptom” and that an initial pain level 

provides a “starting point” to monitor during treatment. 

When asked, Yamaguchi said that his pain level was an eight 

out of ten, with his jaw as his greatest source of pain.

Yamaguchi was transported that same day to the 

emergency room at Queen’s Medical Center. He was treated 

there by oral and maxillofacial surgeon Dr. James Michino. 

Dr. Michino’s “first question” with patients is always “what 

happened.” He tries “to gather as much information as 

possible regarding the traumatic injury.” That includes the 

cause of a patient’s injuries because “the amount of force” 

involved in an injury can alert him to “possible injuries that 

could get missed.” When Dr. Michino asked, Yamaguchi 

responded that while he did not “remember the details,” he 

“was assaulted” and “essentially lost consciousness.”

B. Procedural History

Latu was charged with assault resulting in serious bodily 

injury under 18 U.S.C. § 113(a)(6). Yamaguchi did not 

testify at trial. The government instead moved to admit his 

statements about the cause of his injuries and his pain level 

through the testimony of his medical providers under Fed. R. 

Evid. 803(4). Over Latu’s objection, the district court 

admitted the statements.

The jury returned a guilty verdict, and the district court 

sentenced Latu to 96 months’ imprisonment. Latu timely 

appealed.
6 UNITED STATES V. LATU

II. Jurisdiction and Standard of Review

We have jurisdiction under 28 U.S.C. § 1291. We 

review evidentiary rulings for abuse of discretion, see United 

States v. Perez, 962 F.3d 420, 434 (9th Cir. 2020), and 

Confrontation Clause rulings de novo, see United States v. 

Fryberg, 854 F.3d 1126, 1130 (9th Cir. 2017).

III. Federal Rule of Evidence 803(4)

Latu contends that Nurse Chi and Dr. Michino’s 

testimony about Yamaguchi’s statements was hearsay and 

did not meet the exception for statements for medical 

diagnosis or treatment. Rule 803(4) applies to “[a] statement 

that: (A) is made for—and is reasonably pertinent to—

medical diagnosis or treatment; and (B) describes medical 

history; past or present symptoms or sensations; their 

inception; or their general cause.” Fed. R. Evid. 803(4).

This hearsay exception reflects the view that statements 

for medical diagnosis or treatment “are made under 

circumstances in which the declarant would be particularly 

unlikely to lie.” United States v. Kootswatewa, 893 F.3d 

1127, 1132 (9th Cir. 2018). That is because a patient has a 

“selfish interest in obtaining appropriate medical care.” Id. 

“An individual seeking medical care is unlikely to lie about 

her medical history or symptoms because she knows that ‘a 

false statement may cause misdiagnosis or mistreatment.’” 

Id. (citation omitted); see McCormick on Evidence § 277 

(8th ed. 2022) (discussing “selfish treatment motivation”).

Yamaguchi’s statements to Nurse Chi and Dr. Michino 

plainly fall within both prongs (A) and (B) of Rule 803(4). 

Nurse Chi and Dr. Michino both testified that Yamaguchi 

told them that the “general cause” of his injuries was an 

assault. Fed. R. Evid. 803(4)(B). Yamaguchi’s statements 
UNITED STATES V. LATU 7

were made to medical providers during their clinical 

assessment of his traumatic injuries within hours of 

receiving those injuries. Both Nurse Chi and Dr. Michino 

testified that they asked about the cause of Yamaguchi’s 

injuries because it would inform their evaluation and 

treatment. Nurse Chi explained that the cause helped him 

determine an injury’s severity, and Dr. Michino stated that 

knowing the cause would help him avoid missing possible 

injuries. This context demonstrates that Yamaguchi’s 

statements were “made for—and [were] reasonably 

pertinent to—medical diagnosis or treatment.” Fed. R. Evid. 

803(4)(A). See Kootswatewa, 893 F.3d at 1133 (“An 

adequate foundation may be laid under Rule 803(4) by 

introducing objective evidence of the context in which the 

statements were made . . . , includ[ing] testimony provided 

by the medical professional who conducted the 

examination.”).

Nurse Chi also testified that Yamaguchi said his pain 

level was an eight out of ten. That statement was about 

“present symptoms or sensations,” Fed. R. Evid. 803(4)(B), 

and it was made during the same clinical assessment 

described above. Nurse Chi testified that he asks about a 

patient’s pain level because pain is subjective and an initial 

level provides a “starting point” to track during treatment. 

Yamaguchi’s statement about his pain level was thus also 

“made for—and [was] reasonably pertinent to—medical 

diagnosis or treatment.” Fed. R. Evid. 803(4)(A); see United 

States v. Santos, 589 F.3d 759, 763 (5th Cir. 2009) 

(affirming admission of nearly identical pain level testimony 

under Rule 803(4)).

Therefore, we hold that the district court properly 

admitted Nurse Chi’s and Dr. Michino’s testimony about 

Yamaguchi’s statements under Rule 803(4).
8 UNITED STATES V. LATU

IV. Confrontation Clause

Latu next argues that the admission of Yamaguchi’s 

statements violated the Confrontation Clause of the Sixth 

Amendment. The Confrontation Clause provides that “[a] 

witness’s testimony against a defendant is . . . inadmissible 

unless the witness appears at trial or, if the witness is 

unavailable, the defendant had a prior opportunity for crossexamination.” Fryberg, 854 F.3d at 1134 (quoting 

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309 (2009)). 

But “only statements whose ‘primary purpose’ was 

testimonial trigger the constitutional requirement.” Id.

(quoting Ohio v. Clark, 576 U.S. 237, 244 (2015)) (emphasis 

added). Testimonial statements resemble “[a] solemn 

declaration or affirmation made for the purpose of 

establishing or proving some fact.” Crawford v. 

Washington, 541 U.S. 36, 51 (2004) (citation omitted). 

Examples can include affidavits, depositions, prior 

testimony, or police interrogation. See United States v. 

Esparza, 791 F.3d 1067, 1071–72 (9th Cir. 2015).

To assess whether statements are testimonial, we apply a 

“‘primary purpose’ test.” Clark, 576 U.S. at 244. We ask 

whether out-of-court statements “result from questioning, 

‘the primary purpose of [which was] to establish or prove 

past events potentially relevant to later criminal 

prosecution,’” and whether they are “‘functionally identical 

to live, in-court testimony,’ ‘made for the purpose of 

establishing or proving some fact’ at trial.” Lucero v. 

Holland, 902 F.3d 979, 989 (9th Cir. 2018) (first quoting 

Davis v. Washington, 547 U.S. 813, 822 (2006); and then 

quoting Melendez-Diaz, 557 U.S. at 310–11). “[W]e 

objectively evaluate the circumstances in which the 

encounter occurs and the statements and actions of the 
UNITED STATES V. LATU 9

parties.” Id. (quoting Michigan v. Bryant, 562 U.S. 344, 359 

(2011)).

Statements aimed at meeting an ongoing emergency are 

generally not testimonial. While not “dispositive,” “[t]he 

existence of an emergency or the parties’ perception that an 

emergency is ongoing is among the most important 

circumstances that courts must take into account.” Bryant, 

562 U.S. at 366, 370. That is because an ongoing emergency 

“focuses the participants on something other than ‘prov[ing] 

past events potentially relevant to later criminal 

prosecution.’” Id. at 361 (quoting Davis, 547 U.S. at 822). 

“[I]t focuses them on ‘end[ing] a threatening situation.’” Id.

(quoting Davis, 547 U.S. at 832). For example, in Clark, the 

Supreme Court held that a three-year-old abuse victim’s 

statements to his teachers identifying his abuser were not 

testimonial because the “[teachers’] questions and [the 

student’s] answers were primarily aimed at identifying and 

ending the threat.” 576 U.S. at 247. In Bryant, the Court 

held that a wounded man’s statements to police about how 

he was shot were not testimonial because they were elicited 

“to allow the police to ‘assess the situation, the threat to their 

own safety, and possible danger to the potential victim,’ and 

to the public.” 562 U.S. at 376 (quoting Davis, 547 U.S. at 

832).

Here, too, Yamaguchi’s statements to Nurse Chi and 

Dr. Michino had the primary purpose of meeting the ongoing 

emergency presented by Yamaguchi’s traumatic injuries. 

Yamaguchi sought help only an hour and twenty-five 

minutes after he was attacked. Yamaguchi had visible 

injuries, including dramatic swelling around his jaw and eye, 

as well as bruising, lacerations, and abrasions. Yamaguchi 

was evaluated by Dr. Michino for same-day jaw surgery 

after being transported to the emergency room. As discussed 
10 UNITED STATES V. LATU

above, both Nurse Chi and Dr. Michino testified that they 

asked Yamaguchi how he was injured to better understand 

the type and severity of injuries from which he was still 

suffering. Nurse Chi and Dr. Michino elicited information 

about the cause of Yamaguchi’s injuries not to prosecute his 

assailant but to help address the ongoing threat to his health 

created by his injuries.

The same is true of Yamaguchi’s statement about his 

pain level. Nurse Chi explained that pain is “subjective,” 

and he needed a “starting point” to track over time. There is 

no indication that the true purpose of Nurse Chi’s question 

and Yamaguchi’s answer was “establishing or proving” 

Yamaguchi’s pain level “at trial.” Lucero, 902 F.3d at 989 

(quoting Melendez-Diaz, 557 U.S. at 310–11). Rather, 

Nurse Chi wanted information to help evaluate and 

effectively treat Yamaguchi’s pain among his other injuries. 

See Santos, 589 F.3d at 763 (5th Cir.) (holding that an 

inmate’s nearly identical statement about his pain level to a 

prison nurse was “for medical treatment to ‘meet an ongoing 

emergency’” rather than “to gather evidence for trial or 

prison disciplinary proceedings”).

Other factors bolster this conclusion. First, Yamaguchi’s 

medical providers were not responsible for obtaining and 

preserving evidence for trial. Clark explained that 

“[s]tatements 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.” 576 U.S. at 249. Just as 

the preschool teachers in Clark had a role to play in keeping 

students safe, rather than prosecuting crime, Nurse Chi’s and 

Dr. Michino’s jobs were to treat Yamaguchi’s injuries rather 

than to collect evidence to prosecute his assailant.
UNITED STATES V. LATU 11

That a statement is made in a medical context is “highly 

relevant” to the primary purpose analysis. Id. We held 

above that Yamaguchi’s statements were admissible under 

Rule 803(4) because they were made for purposes of medical 

diagnosis or treatment. “[S]tandard rules of hearsay, 

designed to identify some statements as reliable, will be 

relevant” to the primary purpose inquiry. Bryant, 562 U.S. 

at 358–59. The Supreme Court has suggested that such 

statements are likely to be non-testimonial because Rule 

803(4) “rest[s] on the belief” that statements for diagnosis or 

treatment “are, by their nature, made for a purpose other than 

use in a prosecution.” Id. at 362 n.9; see Kootswatewa, 

893 F.3d at 1132 (explaining patient’s “selfish interest in 

obtaining appropriate medical care”). Rule 803(4) covers 

statements that address an ongoing medical situation and 

will generally filter out statements designed to establish past 

facts to aid a prosecution.

In the ordinary case, therefore, statements made for 

medical diagnosis or treatment likely will not be 

testimonial.2

 However, we adopt neither a categorical rule 

nor a presumption to this effect. Before the Supreme Court 

in Crawford adopted a new approach to the Confrontation 

2 Indeed, several circuits have held that statements for medical 

purposes are non-testimonial. See United States v. Gonzalez, 905 F.3d 

165, 202 (3d Cir. 2018) (“Belford’s statements to her therapist are not 

testimonial in nature [because] the purpose of Belford’s visits were to 

receive therapy to treat her anxiety and depression [and] not to create a 

record for a future prosecution.”); United States v. Barker, 820 F.3d 167, 

171–72 (5th Cir. 2016) (holding that a child sexual abuse victim’s 

statements to a nurse about the defendant’s abuse were nontestimonial 

because the victim’s “well-being and health were the principal focus”);

United States v. Norwood, 982 F.3d 1032, 1051 (7th Cir. 2020) (holding 

that a sex trafficking victim’s statements to a nurse “about what had 

happened and when . . . were for the primary purpose of medical 

treatment” and were “nontestimonial”).
12 UNITED STATES V. LATU

Clause, we categorically rejected Confrontation Clause 

challenges to statements admitted under Rule 803(4) 

because we considered that exception to be “firmly rooted.” 

See United States v. George, 960 F.2d 97, 99 (9th Cir. 1992) 

(“When hearsay testimony is properly admitted pursuant to 

this exception, no further guarantees of trustworthiness are 

required.”). However, Crawford recognized that “the 

Framers” did not “leave the Sixth Amendment’s protection 

to the vagaries of the rules of evidence,” 541 U.S. at 61, and 

it rejected such categorical treatment of Confrontation 

Clause arguments. Crawford requires that we consider “all 

of the relevant circumstances,” Bryant, 562 U.S. at 369, and 

circumstances may arise in which statements for medical 

purposes will be testimonial.

Latu contends such circumstances exist here because 

Nurse Chi was an employee of the Bureau of Prisons (BOP) 

and had a limited power of arrest under 18 U.S.C. § 3050. 

But the Supreme Court has held that even a questioner’s 

“duty to report” criminal conduct “cannot convert a 

conversation . . . into a law enforcement mission.” Clark, 

576 U.S. at 249. Latu points to nothing in the record 

indicating that Nurse Chi had any closer relationship to law 

enforcement functions. Even if Nurse Chi had a power of 

arrest as a BOP employee, that played no role in his 

assessment of Yamaguchi, and it did not turn Chi’s mission 

of providing medical care into an effort to prosecute 

Yamaguchi’s assailant.

A second factor pertinent here is the extent of 

Yamaguchi’s injuries. A victim’s medical condition 

“provides important context for first responders to judge the 

existence and magnitude of a continuing threat to the victim, 

themselves, and the public.” Bryant, 562 U.S. at 365. Even 

if Yamaguchi was not incapacitated or cognitively impaired, 
UNITED STATES V. LATU 13

he was suffering from extreme pain with fractures to his jaw, 

face, and ribs; lacerations to his face and eyebrows; and a 

concussion. Such severe injuries and pain would focus both 

patient and provider on promptly evaluating and treating 

Yamaguchi’s condition rather than on a more remote goal 

like establishing past facts for prosecution.

A third relevant factor is that the conversations lacked 

the formality that often accompanies testimonial statements. 

See id. at 366. Without the structure of stationhouse 

questioning or an affidavit, a medical examination can give 

rise to a more “informal and spontaneous” flow of 

information. Clark, 576 U.S. at 247. Nothing suggests that 

the setting of Yamaguchi’s conversations with Nurse Chi or 

Dr. Michino was designed to establish past facts for trial.

Latu argues that Yamaguchi’s statements were 

testimonial because they “were seeking to determine ‘what 

happened’ not ‘what is happening.’” But past-tense 

statements are not per se testimonial. Information about past 

events can have the primary purpose of informing future 

action. The ongoing emergency cases discussed above 

involved statements about past events that shaped a response 

to a present threat. See Clark, 576 U.S. at 246 (abuse 

victim’s statement about how he was injured informed 

“whether it was safe to release [him] to his guardian at the 

end of the day”); Bryant, 562 U.S. at 376 (victim’s 

statements about past shooting informed officers about the 

type and severity of any ongoing threat).

We therefore conclude that the primary purpose of 

Yamaguchi’s statements to Nurse Chi and Dr. Michino was 

not testimonial. Accordingly, the admission of those out-ofcourt statements did not violate the Confrontation Clause.

AFFIRMED.