by Douglas Ankney

The United States Court of Appeals for the Ninth Circuit reversed the defendant’s Hobbs Act robbery and firearm-brandishing convictions and remanded for a new trial. The Court held that conditioning jury inspection of the tattoos on Valencia’s hands on his testimony infringed the Fifth Amendment privilege against self-incrimination. Under United States v. Bay, 762 F.2d 1314 (9th Cir. 1984), such an exhibition is non-testimonial, and the Government failed to prove harmlessness beyond a reasonable doubt.

Background

On November 18, 2020, two masked men stole approximately $16,000 from Yakima, Washington’s La Milpa Market. The two men left an envelope and a left glove behind. Laboratory testing matched DNA from the glove to Eduardo Valencia’s genetic profile. The envelope bore the address of Valencia’s parents’ home and came from his child’s school district. Surveillance footage showed a black Chrysler 300 before the robbery, and officers arrested Valencia on July 26, 2022, while he drove that model of vehicle.

Tattoos extend across the back of each of Valencia’s hands. Although the footage was blurry, it did not appear to reveal tattoos on the left hand of the robber who lost the glove. Valencia asked to exhibit his hands before the jury without becoming a witness, arguing that a physical display was not testimony. The U.S. District Court for the Eastern District of Washington required him to take the stand even after the Government identified Bay and agreed that the display would not permit questioning. Valencia testified that his left-hand tattoos were nearly nine years old. After questioning Valencia, the Government obtained permission to present additional proof in the form of a Facebook photograph posted on June 11, 2020, that appeared to show untattooed fingers. The jury requested another inspection of his hands while deliberating and convicted him on both counts. Valencia timely appealed, claiming reversible Fifth Amendment error.

Analysis

The Court began its analysis by reviewing the Fifth Amendment’s Self-Incrimination Clause. The Amendment provides that “[n]o person … shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. A criminal defendant possesses an “absolute right not to testify” and may decline to give testimony against himself at trial, the Court observed. Salinas v. Texas, 570 U.S. 178 (2013) (plurality opinion); Vega v. Tekoh, 597 U.S. 134 (2022).

In Bay, a defendant charged with bank robbery wanted jurors to inspect his distinctive hand tattoos because a witness’ description of the robber’s hands omitted such markings. The District Court treated the inspection as testimony and would allow it only if he accepted cross-examination, so he did not present the tattoos. Bay held that presenting identifying physical traits to the jury does not constitute testimony. Because the Government may compel a defendant to reveal those features without implicating the Fifth Amendment, the classification does not change when the display benefits the defense, the Court explained.

The Court rejected the Government’s contention that Bay did not control because jurors could observe Valencia’s hands at counsel table. Visibility there did not resolve whether the District Court could condition a deliberate display on Valencia’s testimony. The compelled choice was the error, according to the Court. The Bay defendant declined the display to preserve his silence, whereas Valencia testified to present the evidence. The Court explained that those responses did not alter the constitutional analysis. A District Court must follow published Ninth Circuit decisions until an authorized tribunal overrules them, the Court stated. Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001); In re Zermeno-Gomez, 868 F.3d 1048 (9th Cir. 2017). The Court ruled that because Bay remained controlling, the District Court erred by refusing to apply it.

Harmless Error and Remedy

The Court then applied the constitutional harmless-error standard from Chapman v. California, 386 U.S. 18 (1967). A federal constitutional error permits affirmance only if the reviewing court determines beyond a reasonable doubt that the violation was harmless, and the Government bears that burden. Pitts v. Mississippi, 607 U.S. 1 (2025) (per curiam); United States v. Velarde-Gomez, 269 F.3d 1023 (9th Cir. 2001).

The Government pointed to the Chrysler, envelope, glove DNA, short deliberations, and the jurors’ ability to see Valencia’s hands from counsel table. The Court concluded that those circumstances did not satisfy Chapman. The Government’s conduct demonstrated the testimony’s importance, according to the Court. After Valencia left the stand, it reopened the evidentiary record for the Facebook photograph and relied on the apparent discrepancy in closing argument. The jury’s request to inspect his hands again also showed that the tattoo evidence was important to its assessment of guilt. Counsel-table visibility did not cure the error because the harm arose from the compelled testimony and the Facebook evidence introduced in response. The Court declined to infer harmlessness from the deliberations’ length because the record did not explain the rapid verdict and the jury’s request focused on Valencia’s tattoos.

The Court rejected a limited foundation remand because the Government had not objected on that basis when Valencia offered the evidence.

Conclusion

Accordingly, the Court reversed Valencia’s convictions and remanded for a new trial. See: United States v. Valencia, 2026 U.S. App. LEXIS 27285 (9th Cir. 2026).  

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