U.S. v. Allie

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

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No. 92-5516

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

STEPHEN ROSS ALLIE,

Defendant-Appellant.

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Appeal from the United States District Court
for the Western District of Texas

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(November 25, 1992)

Before GOLDBERG, SMITH and EMILIO M. GARZA, Circuit Judges.

GOLDBERG, Circuit Judge:

Stephen Ross Allie appeals his conviction for harboring

illegal aliens. Allie contends that the district court erred by

permitting the government to depose the illegal aliens and by

admitting the depositions into evidence. Allie also argues that

the court below erred by admitting hearsay statements into evidence

and by misinstructing the jury. We affirm.

1
 Facts and District Court Proceedings

On April 17, 1991, Immigration and Naturalization Service

("INS") agents searched Allie's residence and found three Mexican

citizens, Reyes Sifuentes-Espinoza, Alfonso Lares-Arevalo and Juan

Francisco Lares-Mongaray, working and living on Allie's property.

As the men did not possess documents permitting them to be in the

United States, a criminal complaint was filed against Allie for

harboring illegal aliens.

The government requested that the three aliens be detained as

material witnesses pursuant to 18 U.S.C. § 3144.1 Unable to post

the $25,000 bond set as a condition for their release, the

witnesses were incarcerated.

On June 10, 1991, fifty-four days into the alien witnesses'

incarceration, the government filed a motion to extend the

detention of the witnesses or alternatively for permission to

depose them. The government's motion was prompted by the Western

District's standing order2, which mandates the release of detained

witnesses after sixty days of incarceration unless further

detention is necessary to prevent "a failure of justice." The

sixtieth day of the alien witnesses' detention would have occurred

1
Section 3144 provides in relevant part:
If it appears from an affidavit filed by a party that
the testimony of a person is material in a criminal
proceeding, and if it is shown that it may become
impracticable to secure the presence of the person by
subpoena, a judicial officer may order the arrest of
the person and treat the person in accordance with the
provisions of section 3142.
2
In Re Material Witnesses, entered on June 2, 1986.

2
ten days before the trial, set for June 24, 1991. The Magistrate

denied the government's request to extend the detention of the

alien witnesses but permitted the government to depose the

witnesses. The depositions were videotaped and transcribed on June

18, 1991.

After being deposed, the witnesses were released with a

subpoena to appear at Allie's trial, which had been rescheduled for

July 22, 1991. The alien witnesses were given the option of

remaining in the United States with a work permit pending trial, or

returning to Mexico. All three witnesses chose to return to Mexico

but stated that they would return to the United States to testify

at Allie's trial. The witnesses were apprised of reentry

procedures into the United States and given letters to be presented

at the United States inspection station on the Mexican border to

aid their reentry. The aliens were told that the government would

pay them a witness fee for testifying as well as reimburse them for

their travel expenses.

On June 20, 1991, the witnesses appeared before an immigration

judge for their deportation hearing. At the hearing, the witnesses

again gave their assurances that they would return for Allie's

trial. The witnesses were again given reentry instructions and

told about the witness fees and the travel reimbursements.

INS agent Andrade instructed the witnesses to meet him at a

specified port of entry on July 19, 1991. Andrade recorded the

witnesses' addresses and telephone numbers in Mexico. After the

aliens returned to Mexico, agent Andrade called the witnesses

3
several times to confirm that the witnesses would return as

promised and to verify the date, time and place of reentry.

Although Andrade was unable to contact Reyes Sifuentes-Espinoza, he

did contact Alfonso Lares-Arevalo and Juan Francisco Lares-

Mongaray. Both men promised to return to testify and to contact

Reyes Sifuentes-Espinoza about returning with them. Andrade

arranged for checks to be issued to the aliens upon their arrival

at the border. Andrade also contacted the authorities at the

designated port of entry to apprise the inspectors of the expected

arrival of the aliens.

Despite the government's efforts, the alien witnesses did not

show up. Allie filed a pretrial motion to preclude the government

from introducing the depositions of the alien witnesses at trial.

The district court denied Allie's motion, finding that the

witnesses were "unavailable" and that the government made a good

faith effort to procure their presence at trial.

At trial, the videotaped depositions of the three aliens were

admitted over Allie's renewed objections. Also over Allie's

hearsay objection, the government played a videotape made during

the search of Allie's property, showing one of the aliens

indicating that he slept in Allie's garage.

The jury, after deliberating for several hours, sent a note to

the judge asking what Allie's duties were as an employer hiring

alien laborers. Over Allie's objection, the court issued a

supplemental instruction answering the jury's question. The jury

returned a verdict of guilty on all counts.

4
 On appeal we face two questions concerning the depositions of

the alien witnesses. The first is whether it was appropriate to

permit the government to take the depositions. The second is

whether the depositions were properly admitted into evidence at

trial. The remaining questions concern the alleged hearsay

violation and the supplemental instruction to the jury.

Rule 15(a) and §3144

Allie challenges the district court's decision permitting the

government to depose the alien witnesses. The permissibility of

deposing witnesses in a criminal trial is generally governed by

Fed. R. Crim. P. 15(a). Rule 15(a) provides:

Whenever due to exceptional circumstances of the case it
is in the interest of justice that the testimony of a
prospective witness of a party be taken and preserved for
use at trial, the court may upon motion of such party and
notice to the parties order that the testimony of such
witness be taken by deposition . . . If a witness is
detained pursuant to section 3144 of Title 18, United
States Code, the court on written motion of the witness
and upon notice to the parties may direct that his
deposition be taken. After the deposition has been
subscribed the court may discharge the witness. (emphasis
added)

Allie contends that no "exceptional circumstances," as

required by Fed. Crim. P. 15(a), existed in this case to justify

deposing the alien witnesses. Before addressing Allie's argument,

we must first consider the government's suggestion that no

"exceptional circumstances" need be established before deposing a

detained witness. The government relies on 18 U.S.C. § 3144, which

requires that detained material witnesses be deposed "within a

5
reasonable period of time" if "further detention is not necessary

to prevent a failure of justice."3

The government's argument is facially supported by the fact

that § 3144 does not state that a showing of "exceptional

circumstances" is required. However, in light of Rule 15(a), the

government's position is plausible only if § 3144 is interpreted as

modifying Rule 15(a)'s "exceptional circumstances" requirement by

establishing that the detention of a witness constitutes a per se

exceptional circumstance.

This interpretation of Rule 15(a) and § 3144 is not tenable.

Rule 15(a) plainly establishes that § 3144 modifies its

"exceptional circumstances" requirement with regard to motions for

depositions made by detained witnesses.4 However, Rule 15(a)'s

explicit and limited reference to depositions taken pursuant to a

motion of a detained witness indicates that a motion for the

deposition of a detained witness made by a party (either the

3
Section 3144 provides in relevant part:
No material witness may be detained because of
inability to comply with any condition of release if
the testimony of such witness can adequately be secured
by deposition, and if further detention is not
necessary to prevent a failure of justice. Release of
a material witness may be delayed for a reasonable
period of time until the deposition of the witnesses
can be taken pursuant to the Federal Rules of Criminal
Procedure.

4
In Aguilar-Ayala v. Ruiz, Slip No. 91-2848, 7296 (Sept.
25, 1992), we explained that "[r]ead together, Rule 15(a) and §
3144 provide a detained witness with a mechanism for securing his
own release." Material witnesses "detained under § 3144 are
explicitly excepted from demonstrating exceptional circumstances
to effectuate their own depositions." Id. at 7305, n.6.

6
government or the defendant) is subject to Rule 15(a)'s

"exceptional circumstances" requirement. Because the government,

as opposed to the witnesses, requested the depositions of the

detained witnesses in the instant case, Rule 15(a) requires that

the government establish exceptional circumstances warranting the

depositions.

The district court held that exceptional circumstances

existed in this case because the Western District's standing order

mandated the release of the detained witnesses before the date of

Allie's trial. The district court's finding of exceptional

circumstances was supported by additional factors such as the

aliens' illegal presence in the United States, their lack of ties

to San Antonio, and the government's inability to make its case

against Allie without their testimony.

We review the trial court's Rule 15(a) findings of exceptional

circumstances only for abuse of discretion. United States v.

Farfan-Carreon, 935 F.2d 678, 679 (5th Cir. 1991). See also United

States v. Fuentes-Galdino, 929 F.2d 1507, 1509 (10th Cir. 1991).

The district court has "broad discretion in granting rule 15(a)

motions, and in considering the particular characteristics of the

case to determine whether the 'exceptional circumstances'

requirement has been met." United States v. Farfan-Carreon, 935

F.2d at 679. See also United States v. Bello, 532 F.2d 422, 423

(5th Cir. 1976).

The district court did not abuse its discretion in finding

that "exceptional circumstances" exist in this case. The trial

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court's holding is consistent with our decision in U.S. v. Farfan-

Carreon, 935 F.2d at 679-680. In Farfan-Carreon we found

"exceptional circumstances" when an alien witness was unlikely to

return to the United States from Mexico to testify at the

defendant's trial. Similarly, in the case before us, the fact that

the witnesses would be released in compliance with the Western

District's standing order, and the indications that they were

likely to return to Mexico, constituted exceptional circumstances.

Allie argues that the Western District's standing order is

invalid and thus the district court's reliance on the standing

order to find exceptional circumstances is misplaced. Allie

maintains that the standing order is violative of Rule 15(a) and

the Due Process clause because it deprives a defendant of an

individualized judicial determination regarding the appropriateness

of a deposition in the particular case.

Contrary to Allie's argument, the Western District's standing

order merely implements 18 U.S.C. § 3144. The order provides that

upon a motion,

[t]he deposition procedure [for detained witnesses] must
be pursued unless further detention is necessary to
prevent a failure of justice . . . In the absence of a
District Court ruling that further detention is
necessary, any material witness in custody shall be
released by the Attorney General of the United States
after Sixty days of incarceration . . ." (emphasis
added)

The standing order's time limitation gives meaning to the §

3144 requirement that depositions of detained witnesses be taken

within a "reasonable period of time." The Western District's

standing order defines "reasonable time" as sixty days. Except for

8
the time limitation, the standing order provides the trial court

with essentially the same degree of discretion in the resolution of

individual cases as § 3144, i.e., determining whether a failure of

justice would result if the depositions were taken and the

witnesses released.

We recently noted in Aguilar-Ayala v. Ruiz, Slip No. 91-2848

(Sept 25, 1992), in discussing the Southern District's standing

order which was modeled after the standing order at issue in this

case, that the "district court order established a procedural

framework for implementing [§ 3144]. Other than commanding that

the material witnesses be released after forty-five days and

specifying certain time limitations, the district court's standing

order . . . tracked the requirements of § 3144 and Rule 15(a)." Id

at 7299.

We hold that the Western District's standing order is a valid

implementation of § 3144 and that the trial court did not abuse it

discretion in finding "exceptional circumstances" warranting the

taking of the depositions.

The Confrontation Clause

Allie argues that the trial court erred by admitting the

deposition testimony of the three alien witnesses into evidence

because the introduction of the depositions violated his Sixth

Amendment right to confront his accusers at trial.

The Sixth Amendment's Confrontation Clause provides:

"In all criminal prosecutions, the accused shall enjoy the right .

9
. . to be confronted with the witnesses against him." The Supreme

Court explained in Ohio v. Roberts, 448 U.S. 56 (1980), that the

Confrontation Clause envisions:

a personal examination and cross examination of the
witness, in which the accused has an opportunity, not
only of testing the recollection and sifting the
conscience of the witness, but of compelling him to stand
face to face with the jury in order that they may look at
him, and judge by his demeanor upon the stand and the
manner in which he gives his testimony whether he is
worthy of belief. Id. at 63-64 (quoting Mattox v. United
States, 156 U.S. 237, 242 (1895).

The Court, however, has recognized that the right to

confrontation is not absolute and that some circumstances justify

dispensing with confrontation at trial. Out of court statements,

like the depositions at issue in this case, may be introduced

against a criminal defendant if the government can "demonstrate the

unavailability of the declarant whose statements it wishes to use,"

and that the out of court statements bear adequate "indicia of

reliability." Roberts, 448 U.S. at 65-66. As the reliability of

the alien witnesses' depositions is not contested, we need only

address the "unavailability" of the witnesses.

A witness is "unavailable" for Confrontation Clause purposes

if the "prosecutorial authorities have made a good-faith effort to

obtain his presence at trial." Id. at 74 (emphasis in original)

(quoting Barber v. Page, 390 U.S. 719, 724-725 (1968)).5

5
The Confrontation Clause's requirement of unavailability
is the same requirement embodied in Fed. R. Crim. P. 15(e),
governing the use of depositions at criminal trials. United
States v. Martinez-Perez, 916 F.2d 1020, 1023 (5th Cir. 1990).
See also United States v. Kehm, 799 F.2d 354, 360 (7th Cir.
1986). Thus, cases discussing "unavailability" under Rule 15(e)
are applicable to the instant analysis.

10
Attempting to elaborate on the "good faith" standard, the Roberts

Court suggested that "[t]he length[] to which the prosecution must

go to produce a witness . . . is a question of reasonableness."

Id. at 74 (quoting California v. Green, 399 U.S. 149, 189 n. 22

(1970)). See also Aguilar-Ayala v. Ruiz, Slip No. 91-2848, 7302

(Sept 25, 1992) ("deposition testimony is admissible only if the

government has exhausted reasonable efforts to assure that the

witness will attend trial"). The inevitable question of precisely

how much effort is required on the part of the government to reach

the level of a "good faith" and "reasonable" effort eludes absolute

resolution applicable to all cases.

In United States v. Martinez-Perez, 916 F.2d 1020 (5th Cir.

1990), we applied the Roberts "good faith" standard in reversing

the conviction of a defendant who had been convicted on the basis

of deposition testimony. We held that the government did not

demonstrate a good faith effort because "[t]he government adduced

no evidence that the [witness] was unavailable to testify at trial;

it introduced no evidence of any efforts to procure [the witness']

presence; [and] the district court made no finding on the record

that [the witness] was in fact was unavailable." Id. at 1023.

Similarly, in United States v. Guadian-Salazar, 824 F.2d

344 (5th Cir. 1987), we reversed a conviction obtained with

deposition testimony of alien witnesses, finding that the witnesses

were not "unavailable." Prior to being returned to Mexico, the

alien witnesses were given subpoenas written in English only, and

notices in English and Spanish informing the aliens that the INS

11
would make provisions for them to reenter the United States. An

INS agent instructed the aliens to come to a specified port of

entry on a specified date. However, no attempt was made to contact

the witnesses in Mexico in the intervening months before trial, and

no one awaited the witnesses at the port of entry on the designated

date. Id. at 346. Under these facts we accepted the government's

concession that the depositions introduced at trial were

inadmissible. Id. at 347.

The government's effort in obtaining the witnesses' attendance

at trial in the instant case is significantly greater than the

effort exhibited by the government in Guadian-Salazar and in

Martinez Perez. The government's efforts in this case, as

described earlier, included giving the witnesses the option of

remaining in the United States with work permits, telling the

witnesses about the payment of witness fees and travel cost

reimbursement, giving the witnesses a subpoena and a letter to

facilitate their reentry into the United States, calling the

witnesses in Mexico, getting the witnesses' repeated assurances

that they would return, apprising the border inspectors of the

witnesses' expected arrival and issuing checks to be given to the

witnesses upon their reentry in to the United States.

The fact that the witnesses did not ultimately show up does

not diminish the government's considerable effort. In Aguilar-

Ayala v. Ruiz, Slip No. 91-2848 (Sept 25, 1992), we noted that

"[t]he ultimate success or failure of [the government's] efforts is

not dispositive. So long as the government has employed reasonable

12
measures to secure the witness' presence at trial, the fact that

the witness has nevertheless failed to appear will not preclude the

admission of deposition testimony. Such a witness will be deemed

unavailable." Id. at 7302-3. See also United States v. Eufracio-

Torres, 890 F.2d 266, 270 (10th Cir. 1989), cert. denied, 494 U.S.

1008 (1990) ("The fact that the means utilized were unsuccessful

does not mean that the government's efforts were not made in good

faith"). Given the government's efforts in this case, we hold that

the trial court did not err in finding that the government

exhibited a good faith effort in attempting to obtain the

witnesses' presence at trial.

Allie argues that the government's efforts were not in good

faith because the government contributed to the aliens'

unavailability. According to Allie, the government encouraged the

witnesses' unavailability by offering them the option of leaving

the United States. Allie emphasizes that the government had means

at its disposal to keep the alien witnesses from leaving the United

States, citing the administrative controls available to the INS

under 8 C.F.R. §§ 215.2(a)-(b) and 215.3(g).6

Allie principally relies on the First Circuit's decision in

United States v. Mann, 590 F.2d 361 (1st Cir. 1978), in which the

6
Section 215.2(a) states that "[n]o alien shall depart, or
attempt to depart, from the United States if his departure would
be prejudicial to the interests of the United States. Matters
"prejudicial to the interests of the United States" are defined
in § 215.3(g) to include "[a]ny alien who is needed in the United
States as a witness in, or as a party to, any criminal case"
unless the alien has the "consent of the appropriate prosecuting
authority."

13
court held that the admission of a deposition of a witness

permitted by the government to leave the United States violated the

Confrontation Clause. The Mann court explained that implicit "in

the duty to use reasonable means to procure the presence of an

absent witness is the duty to use reasonable means to prevent a

witness from becoming absent." Id. at 368.

We agree with the Mann court that the government's good faith

efforts to assure the witnesses' availability at trial should

include efforts aimed at keeping the witnesses in the United

States. In the instant case, the government attempted to keep the

witnesses in the United States by offering them work permits.

Although such efforts are important, we refuse to adopt a per se

rule, as suggested by Allie, precluding a finding of good faith

unless the government attempts to coercively detain the witnesses

in the United States.

The Tenth Circuit's decision in United States v. Eufracio-

Torres, 890 F.2d 266 (10th Cir. 1989), upholding the admission of

deposition testimony of aliens permitted to leave the country, is

instructive. Like Allie, the defendant in Eufracio-Torres argued

that the government did not act in good faith because it permitted

the alien witnesses to leave the United States. The court rejected

the defendant's argument, explaining: "What the government did not

do, and what [the defendant] urges should be a precondition to the

finding of unavailability, is to ask the trial court to impose

executive restraints on the witnesses to keep them in this country

to testify before being deported by the INS." Id. at 217. The

14
court refused to adopt this "precondition" and held that the

governments' actions were "reasonable" and in "good faith" despite

permitting the witnesses to depart. Id. See also United States v.

Rivera, 859 F.2d 1204, 1207-1208 (4th Cir. 1988), cert denied, 490

U.S. 1020 (1989) (holding that "the illegal alien witnesses, who

had been deposed and had left the country rather than awaiting

deportation were unavailable," and that the government was

"reasonable" in its effort to produce the witnesses).

There is no doubt that a "[t]rial by deposition steps hard on

the right of criminal defendants to confront their accusers."

Aguilar-Ayala v. Ruiz, Slip No. 91-2848, 7303 (Sept 25, 1992).

Because of the importance our constitutional tradition attaches to

a defendant's right to confrontation, the "good faith effort"

requirement demands much more than a merely perfunctory effort by

the government. Under the facts of this case, we agree with the

district court that the efforts made by the government to obtain

the attendance of the alien witnesses at Allie's trial were

reasonable and in good faith.7

7
Allie also alleges that his Fifth Amendment Due Process
rights were violated by the introduction of the depositions. The
right to confront adverse witnesses has been recognized as an
essential component of due process of law. Chambers v.
Mississippi, 410 U.S. 284, 294 (1973). Allie argues that Due
Process was violated because, absent a showing of unavailability,
there was no legitimate government interest in using the
depositions at trial. As we hold that the government did
establish the witnesses' unavailability, Allie's argument fails.

15
 The hearsay claim

Allie argues that the district court erred by admitting

into evidence a silent videotape showing one of the alien witnesses

getting into and out of a bed in Allie's garage. Allie claims that

the tape constituted inadmissible hearsay.8

The trial court allowed the videotape into evidence, over

Allie's objection, under the catch-all hearsay exception, Fed. R.

of Evid. 803(24). In finding that the videotape was admissible

under Rule 803(24) the trial court had to determine that (a) the

statement was of a material fact, (b) the statement was more

probative on the point for which it was offered than any other

evidence which the proponent could procure through reasonable

efforts, and (c) the general purposes of the rules and the

interests of justice were best served by admission of the statement

into evidence.

We review the district court's evidentiary rulings under an

abuse of discretion standard. United States v. Lopez, 873 F.2d 769,

771 (5th Cir. 1989). Allie does not argue, and nothing in the

record indicates, that the court's ruling constituted abuse of

discretion. Even if we were to find abuse of discretion, the

admission of the videotape would be a harmless error. The

government introduced the videotape to establish the fact that

Allie harbored the aliens in his house. However, in addition to

the videotape, the government introduced the deposition testimony

8
Under Fed. R. of Evid. 801(a)(2), assertive conduct may be
hearsay if introduced for the truth of the matter asserted.

16
of two aliens testifying that they lived in Allie's garage.9 Given

this testimony, the videotape was merely cumulative evidence and

its introduction constitutes harmless error. "Error may not be

predicated upon a ruling which admits or excludes evidence unless

a substantial right of the party is affected." Fed. R. of Evid.

103(a). See Foster v. Ford Motor Co., 621 F.2d 715, 721 (5th Cir.

1980).

The supplemental instructions

After several hours of deliberations, the jury sent a note to

the court, asking: "Is it possible to find out what Mr. Allie's

responsibilities were when seeking alien laborers to work on his

place? What does the law expect?" Even though Allie was not

charged with improper hiring, the judge provided a supplemental

instruction regarding an employer's obligation when hiring aliens.

Allie claims that the supplementary instructions misled the jury as

to the legal issues before them.

"A determination of the prejudicial nature of a supplemental

charge can only be made after reviewing both the original and

supplemental charges as a whole. (citation omitted) Reversible

error does not occur so long as the combined charges viewed as a

whole accurately reflect the legal issues." United States v.

Taylor, 680 F.2d 378, 381 (5th Cir. 1982).

9
Q: Where did you live while you were working on the
charcoal piles? Juan Francisco Lares-Mongaray: In a garage that
he had there . . .
Q: While you were working there those seven days, where did
you live? Reyes Sifuentes-Espinoza: Right there in the garage.

17
 The instructions in this case, read as a whole, accurately

reflected the legal issues involved. Although in responding to the

jury's question the supplemental instructions addressed a legal

question not before the jury, the possibility of confusing the jury

was precluded by the supplemental instruction's restatement of the

elements of the offense as set forth in the original instructions.

The supplemental instructions emphasized that "the defendant is not

on trial for any act, conduct, or offense not alleged in the

indictment." The supplemental instructions also reminded the jury

that "you are here to decide whether the government has proved

beyond a reasonable doubt that the defendant is guilty of the

crimes charged." We hold that the district court's instructions

did not mislead the jury.

Conclusion

For the foregoing reasons the judgment below is AFFIRMED.

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