NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 24 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10126
Plaintiff-Appellee, D.C. No.
4:15-cr-01500-JZ-EJM-1
v.
ARTURO GARCIA-CALDERON, AKA MEMORANDUM*
Arturo Calderon Garcia,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 18-10128
Plaintiff-Appellee, D.C. No.
4:17-cr-00777-JGZ-EJM-1
v.
ARTURO GARCIA-CALDERON, AKA
Arturo Calderon Garcia,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Submitted December 18, 2018**
San Francisco, California
Before: M. SMITH and NGUYEN, Circuit Judges, and RESTANI,*** Judge.
After a jury trial, Arturo Garcia-Calderon (“Garcia-Calderon”) was
convicted of the transportation of illegal aliens for profit, in violation of 8 U.S.C.
§ 1324(a)(1).1 He challenges the admission of material witnesses’ videotaped
depositions at his trial on the ground that it violates the Confrontation Clause of the
Sixth Amendment. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo whether the Confrontation Clause was violated. United States v. Morales,
720 F.3d 1194, 1199 (9th Cir. 2013).
Notwithstanding the Sixth Amendment guarantee that an accused has the
right to be confronted with the witnesses against him, 8 U.S.C. § 1324(d)
authorizes the use at trial of the videotaped deposition of a witness to a § 1324(a)
violation “who has been deported or otherwise expelled from the United States, . . .
**
This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.
1
Garcia-Calderon was also convicted by the court of failing to appear before a
court in violation of 18 U.S.C. § 3146(a)(1). Because Garcia-Calderon’s
submissions do not raise an argument challenging this conviction, he has waived
this issue. See United States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005)
(“Generally, an issue is waived when the appellant does not specifically and
distinctly argue the issue in his or her opening brief.”).
2
if the witness was available for cross examination and [such a] deposition
otherwise complies with the Federal Rules of Evidence.” Admission of the
deposition comports with the Confrontation Clause “where the declarant is
unavailable, and only where the defendant has had a prior opportunity to cross-
examine.” Crawford v. Washington, 541 U.S. 36, 59 (2004). A witness is
considered unavailable for purposes of the Confrontation Clause if the government
made a good-faith effort to produce the witness at trial. United States v. Santos-
Pinon, 146 F.3d 734, 736 (9th Cir. 1998). The lengths to which the government
must go to establish good faith is a question of reasonableness. Ohio v. Roberts,
448 U.S. 56, 74 (1980), abrogated on other grounds by Crawford, 541 U.S. 36.
The district court properly found the witnesses to be unavailable because the
government made a good-faith effort to secure their presence at trial. The
government communicated with the witnesses’ counsel, and sent letters to the
witnesses through their counsel informing them of the trial date, requesting their
presence at trial, and offering to pay for their travel to the United States. We have
previously found similar efforts to be sufficient. See United States v. Soto-
Mendoza, 641 F. App’x 691, 694 (9th Cir. 2016) (finding that the government
made good faith efforts by communicating with the witnesses’ counsel, sending
both witnesses letters requesting their presence at trial and offering to pay their
transportation back to the United States).
3
Garcia-Calderon’s argument that the prosecution failed to produce evidence
to establish the witnesses’ unavailability is similarly unavailing. The prosecution
informed the court of its efforts to procure the witnesses, and the Supreme Court
has permitted the use of these statements in determining a witness’s unavailability.
See Roberts, 448 U.S. at 75–76 (relying in part on prosecutor’s statement to the
court regarding his efforts to procure the witness). Garcia-Calderon did not argue
on appeal that he did not have an opportunity to cross-examine the witnesses at the
depositions. Therefore, the district court did not err in admitting at trial the
videotaped witness depositions.
AFFIRMED.
4